2014 Criminal Law Review.pdf

2014 BAR REVIEWER ON CRIMINAL LAW

BY: JUDGE MARLO CAMPANILLA

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA PRO REO In dubio pro reo is means "when in doubt, for the accused.” Intimately related to the in dubio pro reo principle is the rule of lenity. The rule applies when the court is faced with two possible interpretations of a penal statute, one that is prejudicial to the accused and another that is favorable to him. The rule calls for the adoption of an interpretation which is more lenient to the accused (Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). POSITIVIST THEORY AND CLASSICAL THERORY The positivist theory states that the basis for criminal liability is the sum total of the social and economic phenomena to which the offense is expressed. The purpose of penalties is to secure justice. The penalties imposed must not only be retributive but must also be reformative, to give the convict an opportunity to live a new life and rejoin society as a productive and civic-spirited member of the community. The adoption of the aspects of the Positivist theory is exemplified by the indeterminate sentence law, impossible crime, privilege mitigating circumstance of minority and modifying circumstances, rule on imposition of penalties for heinous and quasi-heinous crimes) (Joya vs. Jail Warden of Batangas, G.R. Nos. 15941819, December 10, 2003;). Under the classical theory, man is essentially a moral creature with an absolutely free will choose between good and evil. When he commits a felonious or criminal act, the act is presumed to have been done voluntarily, i.e. with freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired (People vs. Estrada, G.R. No. 130487, June 19, 2000). Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty for conspirators on the consequential theory that the act of one is thereby the act of all (Hon. Sandiganbayan, Honrado, G.R. No. 115439-41, July 16, 1997). Under this theory, the criminal liability is based on the result of the felonious act (proximate cause rule). CHARACTERISTIC OF CRIMINAL LAW There are three characteristics of criminal law, to wit: (1) generality (2) territoriality, and (3) prospectivity. The

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general, territorial and prospective characteristics of criminal law are principles that define and demarcate the scope and limitation of the operation of criminal law. Under these three principles, the operation or enforceability of criminal law is limited to wrongful acts committed on or after its effectivity (prospectivity) within the territory of the Philippines (territoriality) by person living and sojourning therein (generality). GENERALITY Generality principle is akin to territoriality principle in the sense that the demarcating factor of both principles is the territory of the Philippines. Under generality principle, criminal law is enforceable to person living or sojourning in the territory of the Philippines. Under the territoriality principle, criminal law is applicable only to criminal act committed within the territory of the Philippines. But the concept of generality is different from territoriality. The applicability of territoriality principle or generality principle will depend on the issue raised by the accused in questioning the jurisdiction of the court. If the accused attacks the jurisdiction of the court because of the unique characteristic of his person (e.g. he is a foreigner, military, hermit, primitive, ambassador, legislator, President), the applicable principle is generality. If the accused attacks the jurisdiction of the court due to the unique characteristic of the place where the crime was committed (e.g. the place of commission is foreign vessel, embassy or high sea) etc, the applicable principle is territoriality. 1. Military officers - The Revised Penal Code and special criminal laws are enforceable against military men living or sojourning in the Philippines. However, CA 408 (Articles of War) which vests jurisdiction over members of the AFP to the courts-martial. RA 7055 (AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY) did not divest the military courts of jurisdiction to try cases involving "service-connected crimes or offenses" under CA 408 (Example: Mutiny or sedition, quarrels, frays; disorders, breaking an arrest or escaping from confinement, releasing prisoners without proper authority, wrongful appropriation of captured property, corresponding with, or aiding the enemy, spies, dueling, fraud against the government affecting matters and equipment). In fact, RA No. 7055 mandates that these service-connected crimes shall be tried by the court-martial (Navales v. Abaya, G.R. No. 162318, October 25, 2004). CA 408 is a law of preferential application since it excludes members of the AFP from the operation of

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA the Revised Penal Code and special criminal laws if the crimes committed by them are service-connected as defined by RA 7055. 2. Consular officers - Despite the ruling in Schneckenburger vs. Moran, consular officers and employees are now enjoying immunity from criminal prosecution of acts performed in the exercise of consular function under 1967, Convention on Consular Relation. Slander (Liang vs. People, GR NO 125865, January 28, 2000) or reckless imprudence resulting in homicide is not function-related. Consul is liable for committing this crime. TERRITORIALITY PRINCIPLE: Under the principle of territoriality, the Philippines has jurisdiction over crimes committed inside its territory except as provided in the treaties and laws of preferential application. 1. Embassy - The ground occupied by US embassy is in fact the territory of the USA to which the premises belong through possession or ownership. A person who committed a crime within the premises of an embassy will be prosecuted under the law of Philippines because of the principle of territoriality (See: Reagan vs. Commission on Internal Revenue, 30 SCRA 968, En Banc; Answers to 2009 Bar Examination Questions by UP Law Complex). However, jurisdiction of the Philippines over the embassy is limited or restricted by “the principles of inviolability of diplomatic premises”, which is a generally accepted principle of international law. Warrant of arrest cannot be served inside US embassy without waiver of American government of its right under the principle of inviolability. 2. English rule - There are two fundamental rules in International Law regarding crimes committed aboard a foreign merchant vessel (not military vessel), if the same is within the 12-mile territorial water (not internal or archipelagic water or high seas) of the Philippines to wit: (1) French rule - Crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines are subject to the jurisdiction of the flag state (extra-territoriality principle) unless their commission affects the peace and security of our country. (2) English rule – Crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines are subject to jurisdiction of the Philippines (territoriality principle) unless their commission does not affect its peace and security, or has no pernicious effect therein. It is the English rule that obtains in this jurisdiction.

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3. Convention of the law of the Sea - Under the Convention on the Law of the Sea, the flag state of foreign merchant vessel passing through the territorial sea has jurisdiction over crimes committed therein. However, the Philippines can exercise jurisdiction to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage in the following cases: (1) if the consequences of the crime extend to the coastal State; (2) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (3) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (4) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 4. Drug trafficking - Following the English rule, the Philippines has no jurisdiction over transportation of opium in a foreign vessel in transit in territorial water of our country because possession of opium does not have a pernicious effect on our country (U.S. vs. Look Chaw). But under the Convention of the law of the Sea, the Philippines can exercise jurisdiction to arrest any person or to conduct any investigation involving transportation of dangerous drugs since this is a measure necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. EXTRA-TERRITORIALITY - Under the principle of extra-territoriality, the Philippines has jurisdiction over crimes committed outside its territory for those five instances mention in Article 2 such as crime committed in vessel of Philippines registry (ownership is not material), function-related crime committed by public officer (such as corruption or direct bribery), crimes against national security (such as treason, espionage; rebellion is not a crime against national security), and crime against law of nation such as piracy and mutiny). In People vs. Tulin, G.R. No. 111709, August 30, 2001- “Piracy is an exception to the rule on territoriality in criminal law (Article 2). The same principle applies even if accused were charged, not with a violation of qualified piracy under the penal code but under a special law, PD No. 532 which penalizes piracy in Philippine waters. It is likewise, wellsettled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world.”

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA PROSPECTIVITY: Article 22 of RPC - If the court in trying an accused, who committed a crime prior to the passage of the law, should give retroactive effect to the law provided that: (1) it is favorable to the accused and (2) the accused is not a habitual delinquent (Article 22). Ex post facto law - Congress in passing a law can insert retroactive effect provision therein subject to the Constitution of ex post facto law. If the retroactive provision of the law has passed the constitutional test on prohibition against ex post facto law, the court must give retroactive effect to this law even if the accused is a habitual delinquent. Nullum crimen poena sine lege – If the law repeals a previous law or provision defining a crime, the applicable principle is not Article 22 of RPC but nullum crimen poena sine lege (There is no crime when there is no law punishing it). Since the intention of the new law is to decriminalize an act punishable by the repealed law, the accused should be acquitted or released if the already convicted, even though he is a habitual delinquent. X committed crime under RA No. 6425, the penalty for which is life imprisonment. RA No. 7659 amended RA No. 6425 by prescribing the penalty of reclusion temporal. Should RA No. 7659 be given retroactive effect? Answer: Yes. The maximum duration of reclusion temporal is 40 years of imprisonment while life imprisonment has no duration. Thus, reclusion perpetua is a lighter penalty than life imprisonment. The amendatory law, being more lenient and favorable to the accused than the original provisions thereof should be accorded retroactive application (People vs. Morilla, GR No. 189833, February 05, 2014). RA No. 9346 prohibits the imposition of death penalty, prescribes reclusion perpetua in lieu of death penalty or life imprisonment if the special law does not use the nomenclature of the penalties under RPC and declares a person sentenced to reclusion perpetua as a prescribed or reduced penalty is ineligible for parole. This law has a retroactive effect. Penal laws which are favorable to accused are given retroactive effect. This principle is embodied under Article 22 of RPC, which provides: Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal (People vs. Talaro, et.al., GR No. 175781, March 20, 2012, Justice Peralta). REPEAL: Decriminalization - Repeal of a penal law deprives the courts of jurisdiction to punish persons charged

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with a violation of the old penal law prior to its repeal (Sindiong and Pastor, 77 Phil. 1000; Binuya, 61 Phil. 208; U.S. vs. Reyes, 10 Phil. 423; U.S. vs. Academia, 10 Phil. 431; Arizala vs. Court of Appeals, G.R. No. 43633, September 14, 1990; Almuete, et al., G.R. No. L-265, February 27,19 76). The intention of the new law is to decriminalize an act punishable of old law. Thus, person cannot be punished for subversion under RA 1700, which was repealed by RA 7637, even though he is a habitual delinquent. New regulation Repeal with re-enactment of a penal law does not deprive the courts of jurisdiction to punish persons charged with a violation of the old penal law prior to its repeal. Such repeal even without a saving clause would not destroy criminal liability of the accused (U.S. vs. Cana, 12 Phil. 241). The intention of the new law is not to decriminalize an act punishable of old law but merely to provide new regulation. If the new law is favorable to the accused, who is not a habitual delinquent, it shall be given retroactive effect. Example: “A” was charged for the crime of rape under Article 336 of RPC for raping his minor daughter. However, RA 8353 expressly repealed Article 336 but re-enacted the provision on rape by reclassifying it as a crime against person, redefining it and prescribing a graver penalty for the commission thereof. The repeal of Article 336 does not deprive the courts of jurisdiction to try and punish “A” for rape under Article 336. RA No. 8353 shall not be given retroactive effect since it is not favorable to the accused. DECRIMINALIZATION OF VAGRANCY BY RA NO. 10158 Article 202 of the Revised Penal Code as amended by RA No. 10158 provides: “Article 202. Prostitutes; Penalty. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. “Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.” RA No. 10158 has decriminalized vagrancy by omitting portions of Article 202 involving such crime. A reading of the Senate deliberation pertaining to the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA passage of law decriminalizing vagrancy shows that they considered vagrants as victims of poverty and that the law on vagrancy serves to oppress the very people that the government sought to protect. In view of the new policy of the State decriminalizing vagrancy, which is embodied in RA No. 10158, ordinance, which punishes vagrancy, should be declared as contrary to law, and hence, invalid. Settled is the rule that what the national legislature expressly allows by law, a local legislature may not disallow by ordinance or resolution (Lina vs. Pana, G.R. No. 129093, August 30, 2001). The spring cannot rise higher than its source. As aptly explained by Justice Nachura in his book, “An ordinance must not be contrary to the Constitution or law. Prohibited activities may not be legalized in the guise of regulation; activities allowed by law cannot be prohibited, only regulated.” Moreover, Section 4 of RA No. 10158 provides that “All laws, presidential decrees, executive orders, rules and regulations and other issuances, or any part thereof, inconsistent with this Act are hereby repealed, modified or amended accordingly.” An ordinance on vagrancy is a law, which is inconsistent with RA No. 10158. Hence, such local statute is deemed repealed. RA No. 10158 shall be given retroactive effect even if the offender or accused is a habitual delinquent. Section 2 of the said law provides “All pending cases under the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be dismissed upon effectivity of this Act” while Section 3 thereof states “All persons serving sentence for violation of the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained for any other offense or felony.” Article 22 of the Revised Penal Code, which requires that the offender must not be a habitual delinquent to give retroactive effect to a penal law, is not applicable since Sections 2 and 3 of RA No. 10158 expressly provide retroactive application to the law without distinction, whether the offender is a habitual delinquent or not. MISTAKE OF FACT PRINCIPLE: Requisites: (1) That the acts done would have been lawful had the facts been as the accused believed them to be (2) that the mistake of fact is not due to negligence or unlawful intent of the offender. The Supreme Court in several cases had applied the “mistake of fact” doctrine, which allowed the accused, who

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committed a crime on a mistaken belief, to enjoy the benefit of the justifying circumstance of self-defense (United States vs. Ah Chong, 15 Phil., 488), defense of person and right (US vs. Bautista, G.R. No. 10678 August 17, 1915), defense of honor (United States vs. Apego, 23 Phil. 391), performance of duty, (People vs. Mamasalaya, G.R. No.L-4911, February 10, 1953), and the exempting circumstance of obedience of an order of superior officer (People vs. Beronilla, G.R. No. L-4445, February 28, 1955). In Ah Chong, the accused, who believed that the victim was a robber and that his life was in danger because of the commencement of unlawful aggression, was acquitted due to mistake of fact doctrine in relation to the rule on self-defense. In Oanis vs. Galanta, the accused, who believed that the sleeping victim is a notorious criminal to be arrested by them, was held guilty of murder for shooting him since the mistake of fact principle in relation to performance of duty is not applicable. Second element is not present since they did not ascertain first his identify despite opportunity. The first element is not likewise present since the killing of victim believed to be a criminal was not necessary consequence of the due performance of duty of the accused as police officers. The gist of the theft is the intent to deprive another of his property in a chattel, either for gain or out of wantonness or malice to deprive another of his right in the thing taken. This cannot be where the taker honestly believes the property is his own or that of another, and that he has a right to take possession of it for himself or for another, for the protection of the latter. However, the belief of the accused of his ownership over the property must be honest and in good faith and not a mere sham or pretense. If the claim is dishonest, a mere pretense, taking the property of another will not protect the taker (Gaviola vs. People, G.R. No. 163927, January 27, 2006). This belief of ownership as a defense in theft is in accordance with the mistake of fact doctrine. X informed the authorities regarding armed rebel elements on board a vehicle in a certain barangay. Several policemen, Barangay officers and members of the Civil Home Defense Force (CHDF) responded to information and set a check point. X pointed at an approaching jitney occupied by rebels. They flagged down the vehicle but the same did not stop. They attacked the vehicle with automatic weapons by firing directly thereat. One died and another was wounded. It turned out however that the victims are unarmed innocent civilians. Are

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA those responsible for the death and injuries of the victims liable for homicide? Is the doctrine of mistake of fact applicable? Answer: They are liable for homicide and attempted homicide. The duty of those manning the check point is to identify the occupants of their suspect vehicle and search for firearms inside it to validate the information they had received; they may even effect a bloodless arrest. While, rebellion is a continuing offense, they cannot open fire at or kill the suspects under any and all circumstances. There is no evidence showing that they were placed in real mortal danger in the presence of the victims. Hence, the mistake of fact principle is not applicable since there is negligence or bad faith on their part (Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012, Justice Peralta). VOLUNTARINESS – Concurrence of freedom, intelligence and intent makes up the “criminal mind” behind the “criminal act.” Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent (People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004). Voluntariness is an element of crime, whether committed by dolo or culpa or punishable under special law. The act to be considered a crime must be committed with freedom and intelligence. In addition to voluntariness, intentional felony must be committed with dolo (malice), culpable felony with culpa, and mala prohibita under special law with intent to perpetrate the act or with specific intent (such as animus possidendi in illegal possession of firearm). Presumption of voluntariness: In the determination of the culpability of every criminal actor, voluntariness is an essential element. Without it, the imputation of criminal responsibility and the imposition of the corresponding penalty cannot be legally sanctioned. The human mind is an entity, and understanding it is not purely an intellectual process but is dependent to a large degree upon emotional and psychological appreciation. A man’s act is presumed voluntary. It is improper to assume the contrary, i.e. that acts were done unconsciously, for the moral and legal presumption is that every person is presumed to be of sound mind, or that freedom and intelligence constitute the normal condition of a person (People vs. Opuran, G.R. Nos. 147674-75, March 17, 2004).

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CRIMINAL INTENT – To be held liable for intentional felony, the offender must commit the act prohibited by RPC with specific criminal intent and general criminal intent. General criminal intent (dolo in Article 3 of RPC) is an element of all crimes but malice is properly applied only to deliberate acts done on purpose and with design. Evil intent must unite with an unlawful act for there to be a felony. A deliberate and unlawful act gives rise to a presumption of malice by intent. On the other hand, specific intent is a definite and actual purpose to accomplish some particular thing. In estafa, the specific intent is to defraud, in homicide intent to kill, in theft intent to gain (Recuerdo vs. People, G.R. No. 168217, June 27, 2006, ). In the US vs. Ah Chong, the accused was acquitted because of mistake of fact principle even though the evidence showed that he attacked the deceased with intent to kill (United States vs. Apego, G.R. No. 7929, November 8, 1912; Dissenting opinion of J. Trent), which was established by the statement of the accused "If you enter the room I will kill you." Article 249 (homicide) should be read in relation to Article 3. The accused was acquitted not because of the absence of intent to kill (specific intent) but by reason of lack of general intent (dolo or malice). PRESUMED MALICE - The general criminal intent (malice) is presumed from the criminal act and in the absence of any general intent is relied upon as a defense, such absence must be proved by the accused (Ah Chong case, the accused was able to rebut the presumption of general criminal intent or malice). Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused (Recuerdo vs. People, G.R. No. 168217, June 27, 2006, ). There are other specific intents that are presumed. If a person died due to violence, intent to kill is conclusively presumed. Intent to gain is presumed from taking property without consent of owner. MOTIVE Doubt as to the identity of the culprit - Motive gains importance only when the identity of the assailant is in doubt. As held in a long line of cases, the prosecution does not need to prove the motive of the accused when the latter has been identified as the author of the crime. The accused was positively identified by witnesses. Thus, the prosecution did not

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA have to identify and prove the motive for the killing. It is a matter of judicial knowledge that persons have been killed for no apparent reason at all, and that friendship or even relationship is no deterrent to the commission of a crime. The lack or absence of motive for committing the crime does not preclude conviction where there are reliable witnesses who fully and satisfactorily identified the petitioner as the perpetrator of the felony (Kummer vs. People, GR No. 174461, September 11, 2013). Circumstantial or inconclusive evidence - Indeed, motive becomes material when the evidence is circumstantial or inconclusive, and there is some doubt on whether a crime has been committed or whether the accused has committed it. The following circumstantial evidence is sufficient to convict accused: 1. Accused had motive to kill the deceased because during the altercation the latter slapped and hit him with a bamboo, prompting Romulo to get mad at the deceased; 2. Accused was chased by the deceased eastward after the slapping and hitting incident; 3. Said accused was the last person seen with the deceased just before he died; (4) Accused and Antonio Trinidad surrendered to police authorities with the samurai; (5) Some of the wounds inflicted on the deceased were caused by a bolo or a knife. (Trinidad vs. People, GR No. 192241, June 13, 2012, Justice Peralta). INDETERMINATE OFFENSE DOCTRINE – In People vs. Lamahang, G.R. No. 43530, August 3, 1935, En Banc - Accused who was caught in the act of making an opening with an iron bar on the wall of a store was held guilty of attempted trespassing and not attempted robbery. The act of making an opening on the wall of the store is an overt act of trespassing since it reveals an evident intention to enter by means of force said store against the will of its owner. However, it is not an overt act of robbery since the intention of the accused once he succeeded in entering the store is not determinate; it is subject to different interpretations. His final objective could be to rob, to cause physical injury to its occupants, or to commit any other offense. In sum, the crime the he intended to commit inside the store is indeterminate, and thus, an attempt to commit it is not punishable as attempted felony. In People vs. Crisostomo, et al., G.R. No. L-19034, February 17 1923 – The accused dragged the victim to a rice field. Fortunately, she was saved from her captors. It was held that the purpose of the accused in taking away the offended party could be to injure or affront her or to compel her through force to marry one of the accused. Thus, the acts are not

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constitutive of attempted coercion. Note: The accused were found guilty of illegal detention. Taking the victim reveals the evident intention of the accused to deprive the liberty of the latter, which is the mens rea in illegal detention. In U.S. vs. Simeon, G.R. No. 1603, April 15, 1904 - Raising a bolo and hacking the victim with it are acts of execution in homicide or murder. Such acts together with other circumstance may reveal intent to kill. However, raising bolo alone is susceptible to different interpretation. The intention of the offender may either to kill the victim or merely to threaten him. Since doubt should be interpreted in favor of the accused, such act should be considered to have been made with intent to threaten the victim. Thus, the crime commit is merely threat and not attempted homicide; PROXIMATE CAUSE Proximate cause is the primary or moving cause of the death of the victim; it is the cause, which in the natural and continuous sequence unbroken with any “efficient intervening cause” produces death and without which the fatal result could not have happened. It is the cause, which is the nearest in the order of responsible causation (Black’s Law Dictionary). Intervening cause - The direct relation between the intentional felony and death may be broken by efficient intervening cause or an active force which is either a distinct act or fact absolutely foreign from the felonious act of the offender. Lightning that kills the injured victim or tetanus infecting the victim several days after the infliction of injuries, or voluntary immersing the wounds to aggravate the crime committed by accused is an intervening cause. Thus, the accused is liable for physical injuries because of the intervening cause rule. On the other hand, carelessness of the victim, or involuntary removal of the drainage, lack of proper treatment is not an intervening cause. Hence, the accused is liable for the death because of the proximate cause rule. If the victim died due to tetanus of which he was infected when the accused inflicted injuries upon him, the crime committed is homicide (People vs. Cornel, G.R. No. L-204, May 16, 1947). If the victim died due to tetanus of which he was infected after the accused inflicted injuries upon him, the crime committed is physical injuries. The accused is not liable for homicide because tetanus is an efficient intervening cause. Thus, the proximate cause of the death of the victim is not the infliction of injuries. In Villacorta vs. People, G.R. No. 186412, September 7, 2011, there had been an interval of 22 days

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA between the date of the stabbing and the date when victim was rushed to hospital, exhibiting symptoms of severe tetanus infection. Since the victim was infected of severe tetanus, he died the next day. The incubation period of severe tetanus is less than 14 days. Hence, he could not have been infected at the time of the stabbing since that incident occurred 22 days before the victim was rushed to the hospital. The infection of victim’s stab wound by tetanus was an efficient intervening cause. The accused was held liable for physical injuries. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Although there was no direct injury on his vital organs of the victim, his wounds affected his kidneys, causing multiple organ failure and eventually his death. Accused is liable for homicide. Without the stab wounds, the victim could not have been afflicted with an infection which later on caused multiple organ failure that caused his death. The offender is criminally liable for the death of the victim if his delictual act caused, accelerated or contributed to the death of the victim (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012, Justice Peralta). ERROR IN PERSONAE - In case of error in personae, person is criminally responsible for committing an intentional felony although the consequent victim is different from that intended due to mistake of identity. Requisites: In order to make a person criminally liable in case of error in personae, the following requisites must be present: (1) Offender committed an intentional felony; (2) The consequent victim against whom the felony was directed is different from that intended due to mistake of identity. If the penalty for the intended crime is different from that of the committed crime, the court shall impose the penalty for the intended crime or committed crime, whichever is lesser. ABERRATIO ICTUS - In case of aberratio ictus, person is criminally responsible for committing an intentional felony although the consequent victim is different from that intended due to mistake of blow. Requisites: In order to make a person criminally liable in case of aberratio ictus, the following requisites must be present: (1) Offender committed an intentional felony; (2) The consequent victim against whom the felony was directed is different from that intended due to mistake of blow. The crime committed

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against the intended victim and victim injured due to aberratio ictus shall be made a complex crime (compound crime). The court shall impose the penalty for the most serious crime in its maximum period. The circumstance of aberratio ictus (mistake in the blow) can neither exempt the accused from criminal responsibility nor mitigate his criminal liability. Under Article 4 of RPC, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended (Matic vs. People, G.R. No. 180219, November 23, 2011). PRAETER INTENTIONEM: In case of praeter intentionem, person is criminally responsible for committing an intentional felony although its wrongful consequence is graver than that intended. Requisites: In order to make a person criminally liable under Article 4 (1) in case of praeter intentionem, the following requisites must be present: (1) Offender committed an intentional felony; (2) The wrongful act done, which is graver than that intended, is the direct, natural and logical consequence of the felony committed by the offender. Praeter intentionem may be appreciated as mitigating circumstance of lack of intent to commit so grave a wrong than that committed. When death resulted, even if there was no intent to kill, the crime is homicide, not just physical injuries, since with respect to crimes of personal violence the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. He who is the cause of the cause is the cause of the evil caused (Seguritan vs. People, G.R. No. 172896, April 19, 2010). 1. Mitigating circumstance - The mitigating circumstance that “the offender had no intention to commit so grave a wrong as that committed” or praeter intentionem is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the mode of attack employed and the injury sustained by the victim (People vs. Maglian, G.R. No. 189834, March 30, 2011).The mitigating circumstance of praeter intentionem cannot be appreciated if the acts employed by accused were reasonably sufficient to produce and did actually produce the death of the victim (People vs. Sales, G.R. No. 177218, October 3, 2011).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 2. Evident premeditation- In case of aberatiu ictus and error in personae, the SC did not appreciate evident premeditation since the victim, who was actually killed, is not contemplated in the premeditation of the accused (People vs. Trinidad, G.R. NO. L-38930, June 28, 1988; People vs. Mabug-at, 51 Phil., 967; People vs. Trinidad, G.R. No. L-38930, June 28, 1988). However, praeter intentionem and evident premeditation can be independently appreciated. there is no incompatibility between evident premeditation and no intention to commit so grave a wrong since the latter is based on the state of mind of the offender while the former manner of committing the crime (Reyes; People vs. Enriquez, 58 Phil. 536). 3. Treachery - If accused employed means to render the victim defenseless, treachery shall be appreciated even if the killing is due to error in personae (People vs. Del Castillo, Sr., G.R. No. L-32995, April 30, 1984) or aberratio ictus (People vs. Mabug-at, G.R. No. 25459, August 10, 1926, En Banc) or with the circumstance of praeter intentionem (People vs. Cagoco, G.R. No. 38511, October 6, 1933)

consequence of an act committed with criminal intent. a. With intent to hide the body of the crime – In People vs. Ortega, Jr., G.R. No. 116736, July 24, 1997 - Ortega stabbed the victim. Garcia assisted Ortega in concealing the body of the victim by throwing the body into the well. Victim died due to drowning. Issue: Is Garcia liable for the death of the victim as principal in homicide even if his intention was not to kill the victim but merely to assist Ortega in concealing his dead body not knowing that the victim was still alive at that time? In assisting Ortega carry the body of victim to the well, Garcia was committing an intentional felony; concealing the body of the crime to prevent its discovery makes him liable as an accessory in homicide. Hence, Garcia should be held liable for the direct, natural and logical consequence of his felonious act of assisting Ortega in hiding the body of the victim. Since proximate cause of death of the victim is the felonious and accessory act of throwing the victim into the well, Garcia should be held liable for the death as principal in homicide.

4. Conspiracy - Conspirators, who conspired to kill a particular parson, are equally liable for the killing of another person due to error in personae (People vs. Pinto, Jr. and Buenaflor, G.R. No. No. 39519, November 21, 1991). However, conspirator, who never even fired a single shot and whose only participation was to drive their getaway vehicle and to lend his firearm to his back rider so that the latter could finish off the target victim was not found accountable for the injury sustained by the unintended victim was just a starcrossed bystander who was accidentally hit in the process (aberratio ictus) (People vs. Herbias, G.R. No. 112716-17, December 16, 1996; People vs. Flora and Flora, G.R. No. 125909, June 23, 2000).

b. With intent to threaten – In US vs. Valdez, G.R. No. 16486, March 22, 1921, En Banc - The accused in rage he moved towards victim with a big knife in hand, threatening to stab him. Victim believing himself in great and immediate peril jumped into the water where he was drowned. The accused was found guilty of homicide. The act of threatening to stab victim constitutes a felony of threat. Hence, accused is liable for the direct, natural and logical consequence of his intentional and felonious act. It was held that: "If a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result."

INTENT TO KILL: Intent to kill is an element of homicide and murder. But even if offender had no intent to kill, he would be held just the same liable for homicide or murder if his felonious act is the proximate cause of the death of the latter. Even if there is no intent to kill, offender is liable for homicide or murder if the victim died as a result of the “felonious act” of the former. The offender’s act is considered felonious if it is accompanied with criminal or evil intent such as intent to inflict injury, intent to hide the body of the crime, intent to threaten victim, intent to silence the hold-up victim, or intent to rape. Offender is liable for homicide because it is the natural, direct and logical

d. Intent to inflict injury Intentional infliction of injury resulting in death of the victim constitutes homicide or murder. In People vs. Pugay, et al., No 74324, November 17, 1988, the deceased, a retardate, and the accused Pugay were friends. Deceased used to run errands for Pugay and at times they slept together. During a town fiesta fair was held in the public plaza. Accused, Pugay and Samson with several companions, who appeared to be drunk, made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the Ferris wheel and poured its

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2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA contents on the body of the former. Then, the accused Samson set victim on fire making a human torch out of him. Pugay and Samson were stunned when they noticed the deceased burning. Crime committed by Samson: There is no intent to kill. The act of the Accused was merely a part of their fun-making that evening. Accused merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony. Since such felony of physical injuries resulted into a graver offense, he must be held responsible therefor. (Note: The crime is not murder qualified by means of fire because the fire was not use to kill but merely to inflict injury). e. Recklessness – Even if there is no intent to kill and evil intent, offender is liable for culpable felony if the victim died as a result of the recklessness of the former. Crime committed by Pugay: Having taken the can from under the engine of the Ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. The accused is only guilty of homicide through reckless imprudence. f. Accident - If there is no intent to kill, evil intent and recklessness on the part of the accused, he is not liable for his intentional act, which caused the death of the victim. In United States vs. Tanedo (15 Phil. Rep., 196), deceased went with the accused to hunt wild chickens at the forest. While hunting, the accused came upon a wild chicken, and, not seeing deceased about and not knowing or having any reason to believe that he was in that vicinity shot the chicken. The bullet that hit the chicken recoiled and hit the deceased. It was held that accused is not criminally liable. Life was taken by misfortune or accident while in the performance of a lawful act executed with due care and without intention of doing harm. Note: The accused could not have foreseen that the slug after hitting the chicken would recoil and hit deceased. The principle enunciated in Tanedo case will not apply if the place where the accused lawfully discharged his firearm is populated. In People vs. Nocum, G.R. No.

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L-482, 25 February 1947, En Banc - There was a fistic fight between two persons. Desiring to stop the encounter, accused shouted at the combatants. As these paid him no attention, he drew a .45 caliber pistol and shot twice in the air. The bout continued, however; so he fired another shot at the ground, but unfortunately the bullet ricocheted, and hit an innocent bystander, resident of the place. Victim died. It was held that: “The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional. It is apparent that defendant willfully discharged his gun-for without taking the precautions demanded by the circumstance that the district was populated, and the likelihood that his bullet would glance over the hard pavement of the Manila thoroughfare. Note: The accused should have foreseen that the slug after hitting the pavement would recoil and might hit somebody. IMPOSSIBLE CRIME Offender shall be held liable for impossible crime if the following requisites are present: (1) offender performing an act which would have been an offense against person or property; (2) offender performed an act with evil intent; (3) offender did not commit the offense because of the impossibility of its accomplishment or employment of inadequate or ineffectual means; and (4) offender in performing an act is not violating another provision of the law (Luis B. Reyes). Impossible crime of theft - X, employee of Mega Inc., received check from the customer of her employer. Instead of remitting the check to her employer, X deposited the check under her account. However, the drawee bank dishonored the check because of insufficiency of funds. What is the crime committed by X? Answer: The crime committed is impossible crime of qualified theft. Qualified theft is a crime against property. The act of depositing the check is committed with evil intent. The mere act of unlawfully taking the check meant for Mega Inc. showed her intent to gain or be unjustly enriched. There is factually impossibility to accomplish the crime of qualified theft since the check is unfunded. (Jacinto vs. People, G.R. No. 162540, July 13, 2009, Justice Peralta). Intod principle - In Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992 – Outside the house of the victim, accused with intent to kill fired at the bedroom, where the victim is supposed to be sleeping. No one was in the room when the accused fired the shots. No one was hit by the gun fire. The accused were

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA convicted of impossible crime. Accused shoot the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the accused failed to accomplish their end due to its factual impossibility. In the United States, criminal laws are silent regarding impossible crimes; hence where the offense sought to be committed is factually impossible of accomplishment, the offender shall be liable for attempted crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime. In the Philippines, the crime committed is impossible crime if the offense sought to be committed is factually or legally impossible. Killing a dead person is impossible crime because of legal impossibility. Putting the hand inside an empty pocket with intention to steal a wallet is impossible crime because of factual impossibility. Raping a dead person - Prior to RA 8353, rape is a crime against chastity. Thus, if a person raped a dead person believing that she was just sleeping, offender could not be held liable for impossible crime (J. Ramon Aquino). In impossible crime the act could have constituted the crime against person or property if its accomplishment was not impossible. Rape is neither a crime against person nor against property. However, RA 8353 reclassifies rape from crime against chastity to crime against person. Hence, an offender for raping a dead person without knowing that she was already dead may now be held liable for impossible crime. Committing another crime - “A” discharged shotgun at “B” from a distance of 300 yards; but because of the limited range of the firepower of the shotgun, it would be impossible for “A” to harm “B”. “A” is liable of discharged of firearm and not impossible crime. Where the offender unlawful entered the house and took a watch that turned out to be his own, he is liable for trespass to dwelling and not impossible crime (Criminal Law Conspectus by Justice Florenz Regalado). If the accused administered abortive drugs upon his girlfriend whom he believed to be pregnant, which turned out not to be true, but the woman became ill for more than 30 days, the accused will be liable for serious physical injuries and not impossible crime of abortion (Criminal Law Reviewer by Gregorio). STAGES ATTEMPTED AND FRUSTRATED STAGES: In attempted felony, the offender

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performs directly an overt act, which consists of one or more acts of execution, but not enough to consequently produce the felony. In frustrated felony, the offenders perform all the acts of execution that would produce the felony as a matter of consequence. To determine whether the felony is at the attempted or frustrated stage, acts of execution of execution of a felony must be identified. Example: The acts of execution that would produce homicide or murder are infliction of mortal wounds upon the victim. If the wounds inflicted upon the victim with intent to kill are non-mortal, the crime committed is attempted homicide; if wounds are mortal, the crime committed is frustrated homicide. In attempted felony and frustrated felony, the external acts performed by the offender and the intended felony must have a direct connection; but in an attempted felony, the offender failed to perform all the acts of execution; thus his external acts would “not produce” the felony as a consequence; on the other hand in a frustrated felony, the offender performed all the acts of execution; thus, his external acts “would produce” the felony as a consequence. FRUSTRATED AND CONSUMMATED - In frustrated and consummated felony, the accused performed all acts of execution that would produce the felony as a consequence. If the felony is not produced due to external cause, the crime committed is frustrated felony; if the felony is produced the crime committed is consummated. In frustrated felony, the offender performed all the acts of execution but the felony was not produced as a consequence due to extraneous cause. However, there are felonies, the commission of which has no frustrated stage since the performance of all the acts of execution immediately consummates the felony. In homicide or murder case, once the offender inflicted mortal wound on the victim, all the acts of execution are considered performed. However, what consummates homicide or murder is not the infliction of mortal wounds but the death of the victim as a consequence of the mortal wound inflicted. Thus, if the mortally wounded victim did not die due to medical intervention, homicide or murder is only at the frustrated stage. On the other hand, in rape once the offender sexually penetrate the labia of the vagina of the victim, all the acts of execution are considered performed. But since sexual penetration consummates rape, there are no occasions where the offender performed all the acts

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA of execution and yet the felony was not produced as a consequence. In sum, there is no such thing as frustrated rape since the performance of all the acts of execution immediately consummates rape. ABSOLUTORY CAUSE – In attempted felony and frustrated felony, the offender failed to accomplish his criminal objective by reason of extraneous causes; if the causes are not extraneous, the accused will be absolved from criminal liability. a. Negative Act - In the attempted stage of the execution of a felony, the offender must do a “negative act” to be exempt from criminal liability for attempted felony; since the offender has not yet performed all the acts of execution that would produce the felony as a consequence, he must spontaneously desist from further doing criminal acts that will complete all the acts of execution. Example: “A” with intent to kill shot “B”; “B” sustained non-mortal wound. To be exempt from criminal liability for attempted homicide or murder, “A” must spontaneously desist from further shooting “B” in order not to inflict mortal injury upon him. b. Positive Act – If the offender performs all the acts of execution, which would produce the felony as a consequence, offender is not exempted from liability for frustrated felony even if he voluntary desisted from further doing criminal act. Spontaneous desistance is a defense in attempted felony but not in frustrated felony. In the frustrated stage of the execution of a felony, the offender must do a “positive act” to be exempt from criminal liability; since the offender has performed all the acts of execution that would produce the felony as a consequence, he must do something to prevent, or thwart the production of the felony. Example: “A” with intent to kill shot “B”; “B” sustained mortal wound. To be exempt from criminal liability for frustrated felony, it is not enough that “A” would desist from further shooting “B”. The spontaneous desistance is not a valid defense since “A” had already inflicted mortal wound on “B” that would cause his death as a consequence. Thus, “A” must save the life of “B” by treating his wound. If “B” did not die because “A’s” medical treatment, the latter will not be held liable for frustrated felony because the homicide was not produced due to the will of “A”. c. Not absolutory cause – If the felony is consummated, offender cannot undo what was done. Offender would not be absolved from criminal liability even if

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he had done something that will mitigate the effects of the felonious act. Example: (1) Restitution of funds malversed immediately and voluntarily made before the case was instituted is not an absolutory cause (Navarro vs. Meneses III, CBD Adm. Case No. 313, January 30, 1998, En Banc). (2) “A” stole chicken under the house of “B” one evening. Realizing that what he did was wrong, “A” returned the chicken to the place under the house of “B”. Since the crime of theft was already consummated, the return of the stolen property does not relieve “A” of criminal responsibility. “A” had already performed all the acts of execution, which produced the crime of theft before he returned the chicken (Reyes). (3) The fact that the accused abandoned victim after six days of captivity does not lessen his criminal culpability much less exempt him from criminal liability for the kidnapping and detention of victim (Baldogo, G.R. No. 128106-07, January 24, 2003, En Banc). Frustrated homicide or murder – The intent to kill, as an essential element of homicide at whatever stage, may be before or simultaneous with the infliction of injuries. The evidence to prove intent to kill may consist of, inter alia, the means used; the nature, location and number of wounds sustained by the victim; and the conduct of the malefactors before, at the time of, or immediately after the killing of the victim (Escamilla vs. People, GR No. 188551, February 27, 2013). X opened the door and while still in the car drew a gun and shot A once, hitting him just below the left armpit. X sped away. The wound sustained by A is not fatal. What is the crime committed? Answer: X only shot the victim once and did not hit any vital part of the latter's body. If he intended to kill him, X could have shot the victim multiple times or even ran him over with the car. Since intent to kill is lacking but wounds are inflicted upon the victim, the crime is not attempted murder but physical injuries only (Pentecostes, Jr. vs. People, GR No. 167766, April 07, 2010, Justice Peralta). X was charged with frustrated murder for hacking the neck of victim with the use of a scythe. Invoking the doctrine in Pentecostes, Jr., X claimed that had he intended to kill victim, he could have repeatedly hacked him to ensure the latter’s death. Is the argument tenable? Answer: No. Pentesoste Jr. case is not applicable since the victim in that case was shot in the arm, a non-vital part of the body. In this case, the use of a scythe against victim’s neck was determinative of the homicidal intent of X. A single hacking blow in the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA neck could be enough to decapitate a person and leave him dead. Refraining from further hacking the victim does not negate intent to kill. What could have been a fatal blow was already delivered and there was no more desistance to speak of (People vs. Abella, G.R. No. 198400, October 07, 2013). Using a gun, he shot the victim in the chest. Despite a bloodied right upper torso, the latter still managed to run towards his house to ask for help. Nonetheless, petitioner continued to shoot at him three more times, albeit unsuccessfully. The wound sustained by the victim is fatal. The crime committed is frustrated homicide (Escamilla vs. People, GR No. 188551, February 27, 2013). Attempted rape – In People vs. Castillo, GR No. 193666, February 19, 2014 - Accused mashed the breast of his daughter, kissed and licked her vagina, inserted his finger in her sex organ, and rubbed his sex organ against hers but he did not penetrate her vagina. Jurisprudence dictates that in order for rape to be consummated, there must be penetration of the penis into the vagina. 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, if not acts of lasciviousness. This Court is aware of cases where the conviction of the accused for consummated rape has been upheld even if the victim testified that there was no penetration and the accused simply rubbed his penis in the victim's vagina. However, in those cases, there were pieces of evidence such as the pain felt by the victim, injury to the sex organ of the victim (e.g., hymenal laceration), and bleeding of the victim's genitalia. Here, the victim not only categorically stated that there was no penetration, she also stated that she felt no pain and her vagina did not bleed. Thus, the appellant cannot be convicted for qualified rape by sexual intercourse. However, his conviction cannot be downgraded to qualified attempted rape. The prosecution has alleged and proved that there was qualified rape by sexual assault when the accused-appellant kissed and licked his daughter's vagina and inserted his finger in her sex organ. In People vs. Castillo, GR No. 193666, February 19, 2014 – the accused commenced the act of having sexual intercourse with his daughter but failed to make a penetration into her sexual organ

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not because of his spontaneous desistance but because of the relatively small size of her orifice. He is guilty of attempted rape. COMPLEX CRIME Killing persons and injuring two more by treacherously detonating a hand grenade in a dancing place constitutes the complex crime of multiple murders with double attempted murder. Single act of detonating an explosive device may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a single criminal impulse which shows his lesser degree of perversity. Even though the other victim did not suffer mortal wounds, the crime committed is not physical injuries, because accused was motivated by the same intent to kill when he detonated the explosive device inside the dancing place (People vs. Barde, G.R. No. 183094, September 22, 2010). RECOMMENDED EXECUTIVE CLEMENCY Accused was convicted of crime RA No. 8282 for his failure to remit SSS contributions of his employees and was sentenced to suffer up to 20 years of reclusion temporal. The penalty is excessive since he already paid his delinquent contribution. Under Article 5 of the Revised Penal Code, the courts are bound to apply the law as it is and impose the proper penalty, no matter how harsh it might be. The same provision, however, gives the Court the discretion to recommend to the President actions it deems appropriate but are beyond its power when it considers the penalty imposed as excessive. Although an accused is convicted under a special penal law, the Court is not precluded from giving the Revised Penal Code suppletory application in light of Article 10 of the same Code (Mendoza vs. People, G.R. No. 183891, October 19, 2011). CONSPIRACY IMPLIED CONSPIRACY - In People vs. Dollendo, G.R. No. 181701, January 18, 2012 -The “evidence of a chain of circumstances,” to wit: that appellant went inside the house of Romines to ascertain that the victim was there; that he fetched Dollendo to bring him to Ruiz; that he gave the dipang to Dollendo to commit the crime; and that they both fled after the stabbing, taken collectively, shows a community of criminal design to kill the victim. Evidently, there was conspiracy in the commission of the crime.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA COLLECTIVE RESPONSIBILITY - It is immaterial whether appellant acted as a principal or as an accomplice because the conspiracy and his participation therein have been established. In conspiracy, the act of one is the act of all and the conspirators shall be held equally liable for the crime (People vs. Siongco, G.R. No. 186472, July 5, 2010). DISSOCIATION - To exempt himself from criminal liability, a conspirator must have performed an overt act to dissociate or detach himself from the conspiracy to commit the felony and prevent the commission thereof (People vs. Ebet, G.R. No. 181635 November 15, 2010). MASTERMIND - To be held liable as conspirator, it must also be shown that the accused performed an overt act in furtherance of the conspiracy except in the case of the mastermind of a crime (People vs. Vera, GR No. 128966, August 18, 1999). One who plans the commission of a crime is liable as conspirator and principal by inducement (People vs. Comiling, G.R. No. 140405, March 4, 2004, En banc).Notwithstanding, the fact that one was not at the crime scene, evidence proved that he was the mastermind of the criminal act or the principal by inducement. What is important is that inducement was the determining cause of the commission of the crime. The command or advice made by principal by inducement was of such nature that, without it, the crime would not have materialized (People vs. Janjalani, G.R. No. 188314, January 10, 2011). PRESENCE - Accused, unarmed, appeared in the company of his employer, and another person. His employer shot and killedthe victim. Accused did nothing to prevent the killing. Accused fled together with his employer and other person.The fact that accused appeared together with employer and another and fled with them proves a certain degree of participation and cooperation in the execution of the crime. However, there is doubt as to whether accused acted as a principal or just a mere accomplice. Such doubt should be resolved in favor of the milder form of criminal liability—that of a mere accomplice (People vs. Tomas, G.R. No. 192251, February 16, 2011). If the accused is armed at the time, he could be held liable as principal on the basis of implied conspiracy. The fact that the companion of the criminal actor is armed may mean that the former is supplying moral assistance to the latter. The armed presence of conspiratorial companion may prove a sense of security and encouragement on the part of the material executor or may serve as deterrence against possible

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defender or rescuer (Galgo, G.R. 133887, May 28, 2002, En Banc).

No.

SPECIAL LAW - B.P. Blg. 22 does not expressly proscribe the supplementary application of the provisions RPC including the rule on conspiracy. Hence, such rule may be applied supplementarily. Thus, a non-issuer of bum check can be held liable for violation of BP Blg. 22 on the basis of conspiracy. (Ladonga vs. People, G.R. No. 141066, February 17, 2005). The principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as mother-inlaw), who has no marital, sexual or dating relationship with the victim, can be held liable for violence against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852, September 30, 2008) Anti-graft law - May a private person be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public officer, with whom he was alleged to have conspired, has died prior to the filing of the Information? Answer: Yes. The death of the public officer does not mean that the allegation of conspiracy between him and private individual can no longer be proved or that their alleged conspiracy is already expunged. The only thing extinguished by the death of the public officer is his criminal liability. His death did not extinguish the crime nor did it remove the basis of the charge of conspiracy between him and private individual (People vs. Go, GR NO. 168539, March 25, 2014, en banc). Robbery with rape – When a homicide takes place by reason of or on the occasion of the robbery, all those who took part shall be guilty of the special complex crime of robbery with homicide whether they actually participated in the killing, unless there is proof that there was an endeavor to prevent the killing. The records are bereft of any evidence to prove, or even remotely suggest, that appellant attempted to prevent the killing. Therefore, the basic principle in conspiracy that the "act of one is the act of all," applies in this case (People vs. Ebet, GR No. 181635, November 15, 2010, Justice Peralta; People vs. De Leon, GR No. 179943, June 26, 2009, Justice Peralta; People vs. Diu, GR No. 201449, April 03, 2013) If a robber tries to prevent the commission of homicide after the commission of the robbery, he is guilty only of robbery and not of robbery with homicide. All those who conspire to commit robbery with homicide are guilty as principals of such crime, although not all profited and gained from the robbery. One who joins a criminal conspiracy adopts the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA criminal designs of his co-conspirators and can no longer repudiate the conspiracy once it has materialized (People vs. Ebet, GR No. 181635, November 15, 2010, Justice Peralta; People vs. Diu, GR No. 201449, April 03, 2013). Kidnapping with rape - A, B and C kidnapped X from her house, and then detained her in a safe house for purpose of extorting ransom. While C went to Jolibee to buy food, A raped X in the presence of B. What is the crime committed by A, B and C? Answer: A is liable for special complex crime of kidnapping and serious illegal detention with rape. Since X is a female, taking her away from her house against her will and holding her as captive constitute kidnapping and serious illegal detention. Raping the kidnapped victim is a qualifying circumstance. These two crimes should be integrated together to form a composite crime where the law prescribes a single penalty. B is also liable for special complex crime of kidnapping and serious illegal detention with rape. Since conspiracy is established between A and B in the commission of kidnapping, the latter is responsible for the rape committed by former since there is no showing that B endeavored to prevent A from raping X (People vs. Anticamaray, GR No. 178771, June 08, 2011, Justice Peralta). C is only liable for kidnapping and serious illegal detention. Since there is no evidence that he is aware of the commission of rape, he could not have prevented A from raping the victim. Hence, he is not responsible for the rape (People vs. Anticamaray, supra, Justice Peralta). FENCING The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or on accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain for oneself or for another (Ong vs. People, GR No. 190475, April 10, 2013).

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The essential elements of the crime of fencing under PD No. 1612 are as follows: (1) A crime of robbery or theft has been committed; (2) The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft (or carnapping but not malversation or estafa), buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) There is on the part of the accused, intent to gain for himself or for another (Francisco vs. People, G.R. No. 146584, July 12, 2004). a. Proving robbery or theft – Commission of robbery or theft by the principal as an element of fencing should be proven beyond reasonable doubt to convict the fencer. One may not be convicted of the crime of fencing if the complainant did not lodge a criminal complaint against the principal in the crime of theft. This will create doubt if theft was really committed (Tan vs. People, G.R. No. 134298, August 26, 1999) Failure to show finality of conviction of theft against the principal is fatal to prosecution for fencing. In Francisco vs. People, G.R. No. 146584, July 12, 2004, - The decision of the trial court convicting the principal of theft does not constitute proof against the accused for the crime of fencing, that the principal had, indeed, stolen the jewelry. There is no showing that the said decision was already final and executory when the trial court rendered its decision in the fencing case. Accused was acquitted. b. Knowledge - In Dimat vs. People, G.R. No. 181184, January 25, 2012 – But Presidential Decree 1612 is a special law and, therefore, its violation is regarded as malum prohibitum, requiring no proof of criminal intent. Of course, the prosecution must still prove that accused knew or should have known that the Nissan Safari he acquired and later sold to complainant was derived from theft or robbery and that he intended to obtain some gain out of his acts. Accused knew that the Nissan Safari he bought was not properly documented. He said that Tolentino showed him its old certificate of registration and official receipt. But this certainly could not be true because, the vehicle having been carnapped, Tolentino had no documents to show. That Tolentino was unable to make good on his promise to produce new documents undoubtedly confirmed to accused that the Nissan Safari

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA came from an illicit source. Still, accused sold the same to complainant who apparently made no effort to check the papers covering her purchase. That complainant might herself be liable for fencing is of no moment since she did not stand accused in the case. Accused was in the business of buy and sell of tires for the past 24 years, ] ought to have known the ordinary course of business in purchasing from an unknown seller. Admittedly, Go approached accused and offered to sell the 13 tires (which were stolen) and he did not even ask for proof of ownership of the tires. The entire transaction, from the proposal to buy until the delivery of tires happened in just one day. His experience from the business should have given him doubt as to the legitimate ownership of the tires considering that it was his first time to transact with Go and the manner it was sold is as if Go was just peddling the 13 tires in the streets. Accused was convicted of fencing (Ong vs. People, GR No. 190475, April 10, 2013). Accused knew the requirement of the law in selling second hand tires. Section 6 of P.D. 1612 requires stores, establishments or entities dealing in the buying and selling of any good, article, item, object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where that store, establishment or entity is located before offering the item for sale to the public. In fact, accused has practiced the procedure of obtaining clearances from the police station for some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a diligent businessman who should have exercised prudence (Ong vs. People, GR No. 190475, April 10, 2013). The issuance of a sales invoice or receipt is proof of a legitimate transaction and may be raised as a defense in the charge of fencing; however, that defense is disputable. In this case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious. Accused failed to overcome the evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under Section 5 of P.D. 1612 (Ong vs. People, GR No. 190475, April 10, 2013).

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c. Presumption: Section 6 of PD No. 1612 provides: “Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing.”Possession is not limited to actual manual control of the offender over the stolen property but extends to power and dominion over it. Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that “mere possession of any goods, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing”. This presumption is reasonable for no other natural or logical inference can arise from the established fact of possession of the proceeds of the crime of robbery or theft (Ong vs. People, GR No. 190475, April 10, 2013). The accessory in theft should materially benefit from it. Riding in a stolen vehicle is “not profiting” within the contemplation of Article 17 of the Revised Penal Code since it does not improve his economic position. Profiting is not synonymous to intent to gain as an element of theft (Gregorio). However, in violation of PD No. 1612, use of stolen property gives rise to the presumption of fencing. Hence, the user may be held liable for fencing even though he did not materially benefit from crime of theft. The presumption of theft is disputable. The presumption of fencing may be overcome by showing proof that accused bought the item from a licensed dealer of second-hand items (HizonPamintuan vs. People, G.R. No. 11414, July 11, 1994) or by showing official receipts covering the purchases of property, which is the subject of fencing (D. M Consunji, Inc. vs. Esguerra, G.R. No. 118590, July 30, 1996). d. Recently stolen property – If suspect is found in possession of recently stolen property, he should be charged as principal in the crime of theft or robbery. Under Section 3 (j), Rule 131, a person found in possession of a thing taken in the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA doing of recently wrongful act is the taker and the doer of the whole act. Settled is the rule that unexplained possession of recently stolen property is prima facie evidence of guilt of the crime of theft ( US vs. Ungal, 37 Phil., 835). If the subject property is not recently stolen, the presumption under Section 3 (j), Rule 131 will not arise. However, the possessor is still presumed to have violated PD No. 1612 even if the property being possessed was not recently stolen. Under the law, mere possession of stolen property gives rise to the presumption of fencing. OBSTRUCTION OF JUSTICE Obstruction of justice under PD No. 1829 is committed by any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by (1) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; (2) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest prosecution and conviction; a. Commission of crime, not an element - To be held liable as accessory under the Revised Penal Code, it is required that the crime was committed by the principal. To be held liable for obstruction of justice, it is not necessary that the crime was committed by a criminal suspect. Example: “A” committed suicide. To make it appear that “B” murdered “A, “C” placed the gun used in perpetrating suicide inside the bag of “B”. “C” committed the crime of obstruction of justice for having obstructed the investigation of a criminal case involving the death of “A”. “C” cannot be held liable as accessory because murder was not really committed. b. Knowledge - An accessory under Revised Penal Code must have knowledge of the commission of the crime by the principal. To commit obstruction of justice, what is important is not knowledge of the commission of a crime but awareness of an ongoing or impending investigation and prosecution of a criminal case. In fact, even though the suspect did not commit a crime, obstruction of justice

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is committed if he knowingly obstructs, impedes, or frustrates the said investigation and prosecution. c. Obstructing criminal investigation or prosecution - Public officer, who destroyed dangerous drugs as evidence for monetary consideration, is liable for obstruction of justice in addition to graft and corruption and direct bribery (2005 Bar Exam) If a respondent in a preliminary investigation altered the allegation in the complaint-affidavit as to the date of criminal incident to make it appear that the crime, with which he was charged, had prescribed, the alteration is constitutive of the crime of falsification of document under Article 172 of the Revised Penal Code and obstruction of justice under PD No. 1829. d. Principal of the crime - “A” and “B” killed “X”. After the slaughter, “A” and “B” burned the dead body of “X” in the forest to prevent its discovery. Can “A” and “B” be charged as accessory of the crime to murder or obstruction of justice? “A” and “B” are principals by direct participation in the crime of murder qualified by employment of means to afford impunity. Hence, they cannot be charged as accessories. Under the Revised Penal Code, accessories must not have participated in the commission of the crime as principals. However, in addition to murder, they can be charged with the crime of obstruction of justice for destroying an object to impair its availability as evidence in a case. Under PD No. 1829, it is not required that the offenders must not have participated as principals. e. Suspicion - An accessory under Article 19 (3) of the Revised Penal Code must have knowledge of the commission of the crime by the principal. Entertaining suspicion is not itself proof of knowledge that a crime has been committed. “Knowledge” and “suspicion” are not synonymous. The word suspicion is defined as being the imagination of the existence of something without proof, or upon very slight evidence or upon no evidence at all (Reyes). On the other hand, the offender may violate Section 1 (c) of PD No. 1829 even though he has no knowledge of the commission of the crime as long as he has reasonable ground to believe or suspects that the person he assisted has committed a crime. In some, mere suspicion is enough to establish the second element of the offense.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA d. Preventing an illegal arrest – Harboring or concealing a criminal suspect in order to prevent a lawful warrantless arrest or the implementation of a warrant of arrest constitutes obstruction of justice. However, harboring or concealing a criminal suspect to prevent an illegal arrest is not a crime. The term “arrest” in Section 1 (c) of PD No. 1829 contemplates a lawful arrest (Posadas vs. the Hon. Ombudsman, G.R. No. 131492, September 29, 2000) e. Accessory – To make a person liable as accessory under the Revised Penal Code, it is required that he is a public officer, who acted with abuse of his public functions, or that the person assisted is guilty as principal in treason, parricide, murder, or an attempt to take the life of the Chief Executive or a principal, who is known to be habitually guilty of some other crime. This requirement is not applicable if the accused is charged with obstruction of justice. f. No exempting circumstance Accessories are exempt from criminal liability if the principal merely committed a light felony (Article 16 of the Revised Penal Code). Accessories of the second or third kind are exempt also from criminal responsibility if they are related to the criminal actor (Article 20 of the Code). However, if the accessories of the crime were charged with the crime of obstruction of justice, they cannot claim criminal exemption under the Revised Penal Code. PD No. 1829 has no provision on criminal exemption. AGGRAVATING CIRCUMSTANCES Generic aggravating circumstances has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated. Moreover, it can be offset by an ordinary mitigating circumstance (People vs. De Leon, GR No. 179943, June 26, 2009, Justice Peralta). Section 8, Rule 110 of the Rules of Court has expressly required that qualifying and aggravating circumstances be specifically alleged in the information. Due to such requirement being pro reo, the Court has authorized its retroactive application in favor of even those charged with felonies committed prior to December 1, 2000, which is the date of the effectivity of the 2000 revision of the Rules of Criminal Procedure that embodied the requirement

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(People vs. Dadulla, G. R. No. 172321, February 9, 2011). TAKING ADVANTAGE OF POSITION - The mere use of service firearm is not enough to constitute taking advantage of public position. Fact that accused made use of firearms which they were authorized to carry or possess by reason of their positions, could not supply the required connection between the office and the crime.The crime in question, for example, could have been committed by the defendants in the same or like manner and with the same case if they had been private individuals and fired with unlicensed weapons (People vs. Mandolado, G.R. No. L51304, June 28, 1983; People vs. Joyno, G.R. No. 123982, March 15, 1999, En Banc; People vs. Villa, Jr., G.R. No. 129899, April 27, 2000; People vs. Villamor, G.R. Nos. 140407-08 and 141908-09, January 15, 2002, En Banc; and People vs. Fallorina, G.R. No. 137347, March 4, 2004, En Banc). IGNONIMY - After killing the victim, the accused severed his sexual organ. Should ignominy be appreciated? No. For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim’s moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused (People vs. Cachola, G.R. Nos. 148712-15, January 21, 2004, )` TREACHERY – To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted. Treachery is not present because accused chased victim before the latter was hacked; hence, it cannot be concluded that accused employed means of execution which gives victim no opportunity to retaliate or escape. Moreover, the location of the hack wound on the left side of the face of the victim will also show that a frontal attack was made (People vs. Duavis, GR No. 190861, December 07, 2011, Justice Peralta). The fatal stabbing of Rosalino by Ramon was immediately preceded by two altercations between Ramon and Virgilio, on one hand, and Rosalino, on the other. The first altercation occurred right after the near-collision of the tricycles, while the other happened shortly after Ramon and Virgilio had blocked Rosalino’s

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA tricycle. During the second altercation, Rosalino stood face to face with Ramon and Virgilio. It was then when Ramon stabbed the victim twice, the sequential method of attack being borne out in the necropsy report showing that Rosalino had sustained two fatal stab wounds in the chest and abdomen. Under the circumstances, Rosalino was rendered completely aware of the imminent danger to himself from Ramon and Virgilio, rendering their assault far from sudden and unexpected as to put Rosalino off his guard against any deadly assault. To stress, treachery cannot be appreciated if the victim was forewarned of an impending danger and could have foreseen the aggression of the accused (People vs. Placer, GR No. 181753, October 09, 2013). Treachery is not a qualifying circumstance but a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime (People vs. Baron, G.R. No. 188601, June 29, 2010). As the killing, in this case, is perpetrated with both treachery and by means of explosives, the latter shall be considered as a qualifying circumstance since it is the principal mode of attack. Reason dictates that this attendant circumstance should qualify the offense while treachery will be considered merely as a generic aggravating circumstance (People vs. Barde G.R. No. 183094, September 22, 2010). EMPLOMENT OF MEANS TO WEAKEN DEFENSE - If the employment of means to weaken the defense of the victim renders the victim defenseless, treachery absorbs circumstance of employing means to weaken defense (People vs. Tunhawan, G.R. NO. L-81470, October 27, 1988). DISGUISE - If the accused covers his face with a handkerchief when he treacherously killed the victim, the crime committed is murder qualified by treachery and aggravated by disguise (People vs. Piring, G.R. No. 45053, October 19, 1936). If the accused covers his face with a handkerchief when he killed the victim, the crime committed is murder qualified by employment of means of affords impunity. If the accused treacherously stabbed the victim, and the crime committed is murder qualified by treachery and aggravated by disguise. If the accused covers his face with a handkerchief when he killed the victim, the crime committed is murder qualified by employment of means of affords impunity.

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NIGHTTIME - Thus, treachery absorbs nighttime where had it not been at night the offender, with his cohorts, would not have been able to approach the deceased without the latter's becoming aware of his presence and guessing his intention; If they were able to catch victim completely unawares, it was due to the darkness of the night which covered them (People vs. Gumarang , GR N. 46413, October 6, 1939). As a general rule, nighttime is aggravating because the darkness of the night facilitated the commission of the crime or insured impunity. Thus, nighttime cannot aggravate the crime if it is committed in a lighted place although at the wee hours of the night (People vs. Clariño, G.R. NO. 134634, July 31, 2001). The darkness of the night and “not nighttime per se” is important in appreciating it as modifying circumstance (People vs. Banhaon, G.R. No. 131117, June 15, 2004). But if the offender purposely selected the wee hour of the night when neighbors and occupants of the house including the victim were sleeping to facilitate the commission of the crime or to afford impunity, nighttime is appreciable even if the place of commission is lighted. (People vs. Demate, G.R. No. 132310, January 20, 2004, En Banc).While accused were already outside the victims’ house at around 11:00 p.m., they purposely waited until 2:00 a.m. before breaking into the residence so as not to call the attention of the victims, household members and/or their neighbors. Taking advantage of the fact that the victim and household members were asleep, accused entered the well-lighted bedroom and killed the victim. Nighttime should be appreciated since accused took advantage of the silence of the night (People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004, Per Curiam). ABUSE OF SUEPRIOR STRENGHT The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength, there being no proof of the relative strength of the aggressors and the victim. The evidence must establish that the assailants purposely sought the advantage, or that they had the deliberate intent to use this advantage (People vs. Beduya, G.R. No. 175315, August 9, 2010). Abuse of superior strength is an aggravating circumstance if the accused purposely uses excessive force out of proportion to the means of defense available to the person attacked, or if there is notorious inequality of forces between the victim and aggressor, and the latter takes advantage of superior strength (People vs. Del Castillo, G.R. No. 169084, January 18,

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 2012).The victim need not be completely defenseless in order for the said aggravating circumstance to be appreciated (People vs. Paling, G.R. No. 185390 March 16, 2011)If the victim is completely defenseless, treachery should be appreciated. When the circumstance of abuse of superior strength concurs with treachery, the former is absorbed in the latter (People vs. Rebucan, G.R. No. 182551, July 27, 2011). As regards the abuse of superior strength as aggravating circumstance, what should be considered is not that there were three, four or more assailants as against one victim, but whether the aggressors took advantage of their combined strength in order to consummate the offense. To take advantage of superior strength is to use excessive force out of proportion to the means available to the person attacked to defend himself, and in order to be appreciated it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof (People vs. Del Prado, GR No. 187074, October 13, 2009, Justice Peralta). Del Prado, together with his coaccused, abused their superior strength in killing victim. Victim was unarmed and defenseless at the time Del Prado and his co-accused bludgeoned his head and body with a baseball bat, hit him with a stone, and stabbed him twice. The number of assailants and the nature of the weapons used against victim show a notorious inequality of force between victim and his aggressors. The actuations of Del Prado and his co-accused in inflicting injury successively furthermore show that they purposely used excessive force to ensure the killing of victim (People vs. Del Prado, GR No. 187074, October 13, 2009, Justice Peralta). The victim, who was 16 year old, unarmed and pregnant, was stabbed by the appellant with a sharp bladed and pointed instrument while she was lying on her back. The Court has consistently held that an attack made by a man with a deadly weapon upon an unarmed and defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. The crime committed is complex crime of murder with unintentional abortion (People vs. Salcedo, GR No. 178272, March 14, 2011, Justice Peralta). EVIDENT PREMEDITATION - In order “for evident premeditation to be appreciated, the following [requisites must concur]: (1) the time when accused

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[decided] to commit the crime; (2) an overt act manifestly indicating that [he] has clung to his determination; and, (3) sufficient lapse of time between [such a determination and the actual] execution to allow the accused time to reflect upon the consequences of his act (People vs. SPO1 Alawig, GR No. 187731, September 18, 2013). The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment (People vs. Alinao, GR No. 191256, September 18, 2013). Accused, in razing victim’s house in order to drive him out and shooting him the moment he appears at his front door, clearly had a previously and carefully crafted plan to kill his victim. The time it took accused and his son to device their plan, plot where the gasoline should be poured, and procure the gasoline and the firearms, as well as the time it took to go to victim’s house, and even the time when they waited for victim to come out of the house, all afforded accused sufficient opportunity to reflect upon the consequences of his act to kill his brotherin-law and his determination to commit the cold-blooded deed from the time of its conception until it was carried out (People vs. Alinao, GR No. 191256, September 18, 2013). Evidence shows that Luague had a grudge against Porferia, and that their last confrontation occurred a day before the shooting. The involvement of appellants Dearo and Toledo was shown by the testimony of Jose Santiago that the two were with Luague three days before the shooting. Appellant Dearo then vowed to kill Emeterio. These uncontroverted pieces of evidence clearly showed the instances when appellants resolved to commit the felony. The space of time from the resolution to the actual execution allowed them to contemplate on the matter, or maybe even reconsider. Evident premeditation attended the killing of the victim (People vs. Dearo, et.al., GR No. 190862, October 09, 2013). The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment.[ For it to be appreciated, the following must be proven beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA accused clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act. The altercation between accused and victim took place at around 3:00 p.m. and the hacking incident took place at around 5:30 p.m. of the same day. The lapse of time between the decision and the execution is not sufficient to allow appellant to fully reflect upon the consequences of his act and to effectively and efficiently prepare and plan his actions prior to the commission of the crime (People vs. Duavis, GR No. 190861, December 07, 2011, Justice Peralta). DISREGARD OF SEX: Robbery with homicide is essentially a felony against property. The aggravating circumstance of disregard of the victim’s age is applied only to crimes against persons and honor. Moreover, the bare fact that the victim is a woman does not per se constitute disregard of sex. For this circumstance to be properly considered, the prosecution must adduce evidence that in the commission of the crime, the accused had particularly intended to insult or commit disrespect to the sex of the victim. In this case, the appellant killed the victim because the latter started to shout. There was no intent to insult nor commit disrespect to the victim on account of the latter’s sex (People vs. Reyes, G.R. No. 153119, April 13, 2004. The circumstances of disregard of sex, age or rank should be taken singly or together. But the circumstance of dwelling should be considered independently from the circumstance of disregard of age, sex and rank since these circumstances signify different concepts. In the latter, the disrespect shown by offender pertains to the person of the offended due to her rank, age and sex. In the former, the disrespect pertains to the dwelling of the offended party due to the sanctity of privacy which the law accords it. In People vs. Puno, G.R. No. L-33211, June 29, 1981, En Banc Disregard of rank and dwelling were appreciated independently. In robbery with violence and intimidation against persons, dwelling is aggravating because in this class of robbery, the crime may be committed without the necessity of trespassing the sanctity of the offended party's house(People vs. Evangelio, G.R. No. 181902, August 31, 2011). AID OF ARMED MEN: Aid of armed men or persons affording immunity requires (1) that the armed men are accomplices who take part in minor capacity, directly or indirectly (People vs.

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Lozano, G.R. Nos. 137370-71, September 29, 2003, En Banc) and (2) that the accused availed himself of their aid or relied upon them when the crime was committed. Thus, this circumstance should not be appreciated were armed men acted in concert to ensure the commission of the crime (People vs. Carino, G.R. No. 131117, June 15, 2004). In “aid of armed men,” the men act as accomplices only. They must not be acting in the commission of the crime under the same purpose as the principal accused, otherwise they are to be regarded as co-principals or co-conspirators (People vs. Enoja, GR No. 204894, March 10, 2014). CRUELTY: The crime is not aggravated by cruelty simply because the victim sustained ten stab wounds, three of which were fatal. For cruelty to be considered as an aggravating circumstance there must be proof that, in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the pain and suffering of the victim. The number of wounds inflicted on the victim is not proof of cruelty (Simangan vs. People, G.R. No. 157984. July 8, 2004, ). The crime was qualified by treachery. The victim, who was barely thirteen years old, was helpless and unable to defend himself. His feet and hands were tied while the appellant mauled and kicked him, and hit him with a piece of wood. The appellant was so depraved that he even electrocuted the victim by placing a live wire on the latter’s palms and burying him alive. This is borne by the autopsy report of Dr. Suzette Yalung, which indicates that the victim died because of cardiac arrest due to asphyxiation. By his detestable acts, the appellant intended to exacerbate the suffering of the victim. Hence, cruelty was attendant to the commission of the crime. However, cruelty is absorbed by treachery (People vs. Chua, G.R. No. 149538, July 26, 2004, ). MITIGATING CIRCUMSTANCES MINORITY - In People vs. Agacer, G.R. No. 177751, January 7, 2013 – Accused is entitled to the privileged mitigating circumstance of minority, which graduates the penalty one degree lower. The rationale of the law in extending such leniency and compassion is that because of his age, the accused is presumed to have acted with less discernment. This is regardless of the fact that his minority was not proved during the trial and that his birth certificate was belatedly presented for our consideration, since to rule accordingly

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA will not adversely affect the rights of the state, the victim and his heirs. VOLUNTARY SURRENDER – Voluntary surrender is a circumstance that reduces the penalty for the offense. Its requisites as a mitigating circumstance are that: (1) the accused has not been actually arrested; (2) the accused surrenders himself to a person in authority or the latter’s agent; and (3) the surrender is voluntary (People vs. Del Castillo, G.R. No. 169084, January 18, 2012; People vs. Placer, GR No. 181753, October 09, 2013). The surrender made after 14 days from the date of killing cannot be considered voluntary since his act did not emanate from a natural impulse to admit the killing or to save the police officers the effort and expense that would be incurred in his search and incarceration. (People vs. Agacer, G.R. No. 177751, December 14, 2011). Surrender is not voluntary where the accused went to Barangay Chairman after the killings to seek protection against the retaliation of the victims’ relatives, not to admit his participation in the killing of the victims (People vs. Del Castillo, G.R. No. 169084, January 18, 2012). The appellants are not entitled to the mitigating circumstance of voluntary surrender. The evidence shows that the appellants were arrested when the police officers manning the checkpoint stopped the passenger jeepney driven by appellant Ronald and arrested the appellants. The fact that the appellants did not resist but went peacefully with the peace officers does not mean that they surrendered voluntarily (People vs. Castillano, G.R. No. 139412, April 2, 2003). The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture. Without these elements, and where the clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not spontaneous and, therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating circumstance. In the present case, when the petitioners reported the incident and allegedly surrendered the bladed weapon used in the stabbing, such cannot be considered as voluntary surrender within the contemplation of the law. Besides, there was no spontaneity, because they only surrendered after a

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warrant of their arrest had already been issued (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012, Justice Peralta). VENDICATION: The mitigating circumstance of having acted in the immediate vindication of a grave offense was, likewise, properly appreciated. The appellant was humiliated, mauled and almost stabbed by the deceased. Although the unlawful aggression had ceased when the appellant stabbed Anthony, it was nonetheless a grave offense for which the appellant may be given the benefit of a mitigating circumstance. But the mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by Anthony, so that they should be considered as only one mitigating circumstance (People vs. Torpio, G.R. No. 138984, June 4, 2004, ). In vindication of grave offense, criminal exemption of accessories, alternative circumstance of relationship and defense of stranger, the concept of relationship is the same. It refers to (1) spouse, (2) ascendants, (3) descendants, or (4) legitimate, natural or adopted brothers or sisters or (5) of his relatives by affinity in the same degrees. However, in defense of relative, there is an additional concept of relationship. It includes relatives by consanguinity within the fourth civil degree. Thus, an uncle is a relative within the concept of defense of stranger (Reyes). However, relationship of uncle and niece is not an alternative circumstance (People vs. Ulit, G.R. Nos. 131799-801, February 23, 2004). PASSION - The following essential requirements must be present: (1) there was an act that was both unlawful and sufficient to produce such condition (passion or obfuscation) of the mind; and (2) such act was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might have recovered his normal equanimity (People vs. Comillo, G.R. No. 186538, November 25, 2009). Four days after the victims attempted on the virtue of his wife, accused killed them. The period of four days was sufficient enough a time within which accused could have regained his composure and self-control. Hence, passion should not be appreciated (People vs. Rebucan, G.R. No. 182551, July 27, 2011). ALTERNATIVE CIRCUMSTANCE

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. Based on a strict interpretation, alternative circumstances are thus not aggravating circumstances per se. (People vs. Orilla, G.R. Nos. 148939-40, February 13, 2004, En banc).

expressly or impliedly, to commit the subject felony (People vs. Carandang, G.R. No. 175926, July 6, 2011).

If the offender has committed a felony in a state of intoxication, this circumstance may be mitigating or aggravating. If the intoxication is habitual or intentional, the circumstance is aggravating (People vs. Patelan, G.R. No. 182918, June 6, 2011). If the intoxication is not habitual, and not subsequent to a plan to commit a felony, and that the accused's drunkenness affected his mental faculties, the circumstance is mitigating (People vs. Dela Cruz, G.R. No. 187683, February 11, 2010). For intoxication to be considered as a mitigating circumstance, it must be shown that the intoxication impaired the willpower of the accused that he did not know what he was doing or could not comprehend the wrongfulness of his acts (People vs. Patelan, supra). The absence of any independent proof that his alcohol intake affected mental faculties of the accused militates against a claim of the mitigating circumstance of intoxication (People vs. Dela Cruz, supra).

(a) Nature of crime – In recidivism, the first crime, and the aggravated second crime are embraced in the same Title of the Revised Penal Code; In quasi-recidivism, the nature of the first crime and aggravated second crime is not material. In reiteration, the penalty for the first crime is equal or greater than that for the aggravated second crime or the penalty for the first two crimes is lighter than that for the aggravated third crime. In habitual delinquency, the first, second and third crimes must be a habitual-delinquency crime, and that is, serious or less serious physical injuries, theft, robbery, estafa or falsification of document.

EVIDENT PEMIDITATION For evident premeditation to be appreciated, the following must be proven beyond reasonable doubt: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused clung to his determination; and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the circumstances of his act (People vs. Duavis, G.R. No. 190861, December 7, 2011).Accused told witness that they were “going to kill the doctor”. After less than thirty minutes, the accused killed the victim, who is a doctor. Evident premeditation should not be appreciated. The span of time (less than thirty minutes), from the time the accused showed their determination to kill the victim up to the time they shot the victim, could not have afforded them full opportunity for meditation and reflection on the consequences of the crime they committed (People vs. Patelan, G.R. No. 182918, June 6, 2011).Unlike evident premeditation, there is no requirement for conspiracy to exist that there be a sufficient period of time to elapse to afford full opportunity for meditation and reflection. Instead, conspiracy arises on the very moment the plotters agree,

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REPETITION Differences of recidivism, quasirecidivism, reiteracion and habitual delinquency:

(b) Time element – In recidivism, the accused was convicted of the first crime by final judgment at the time of trial of the second crime. In quasi-recidivism, the accused has been convicted by final judgment of the first offense but before beginning to serve his sentence or while servicing of his sentence, he committed the second crime. In reiteration, the accused was convicted of the first crime (or first two crimes) and served his sentences at the time he was convicted of the second crime (or third crime). In habitual delinquency, the accused was convicted of first habitualdelinquency crime; within 10 years after conviction or release, he was found guilty of habitual-delinquency crime for the second time; within 10 years after conviction or release he was found guilty of habitualdelinquency crime for the third time or oftener. (c) Nature of the aggravating circumstance - Recidivism and reiteration are ordinary aggravating circumstances, the presence of any of which will trigger the application of the penalty for the second crime committed in its maximum period unless it is off-set by mitigating circumstance. Quasi-recidivism is special aggravating circumstance, the presence of which will trigger the application of the penalty for the second crime or third crime in its maximum period regardless of the presence of mitigating circumstance. Habitual delinquency is an extraordinary or special aggravating circumstance, the presence of which will trigger the imposition of additional penalty for the third or

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA subsequent crime. This is not subject to the off-set rule. SELF-DEFENSE SELF-HELP PRINCIPLE - In People vs. Apolinar, CA, 38 O.G. 2870, it was held: Defense of property is not of such importance as right to life, and defense of property can be invoked as a justifying circumstance only when it is coupled with an attack on the person of one entrusted with said property. However, in People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983, the SC found the presence of unlawful aggression despite the fact that the invasion of his property right was not coupled by an attack against the accused. The accused has the right to resist pursuant Article 429 of the Civil Code, which provides: “The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.” However, since the means employed to resist the invader (killing) is not reasonable, the accused is merely given the benefit of incomplete selfdefense. Justice Florenz Regalado stated that the rule in Apolinar case may be deemed to have been superseded by Narvaez case. UNLAWFUL AGGRESSION – The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense. Verily, to invoke self-defense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012, Justice Peralta). The rule consistently adhered to in this jurisdiction is that when the accused’s defense is self-defense he thereby admits being the author of the death of the victim, that it becomes incumbent upon him to prove the justifying circumstance to the satisfaction of the court. The rationale for the shifting of the burden of evidence is that the accused, by his admission, is to be held criminally liable unless he satisfactorily establishes the fact of selfdefense. But the burden to prove guilt beyond reasonable doubt is not thereby lifted from the shoulders of the State, which

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carries it until the end of the proceedings. In other words, only the onus probandi shifts to the accused, for selfdefense is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof. He must now discharge the burden by relying on the strength of his own evidence, not on the weakness of that of the Prosecution, considering that the Prosecution’s evidence, even if weak, cannot be disbelieved in view of his admission of the killing (People vs. Roman, GR No. 198110, July 31, 2013). Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether complete or incomplete, that can validly be invoked. “There is an unlawful aggression on the part of the victim when he puts in actual or imminent danger the life, limb, or right of the person invoking selfdefense. There must be actual physical force or actual use of a weapon.” It is present only when the one attacked faces real and immediate threat to one’s life. It must be continuous; otherwise, it does not constitute aggression warranting selfdefense (People vs. Gamez, GR No. 202847, October 23, 2013). Accordingly, the accused must establish the concurrence of three elements of unlawful aggression, namely: (a) there must be a physical or material attack or assault; (b) the attack or assault must be actual, or, at least, imminent; and (c) the attack or assault must be unlawful (People vs. Roman, GR No. 198110, July 31, 2013). Kinds of aggression - Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful aggression means an attack that is impending or at the point of happening; it must not consist in a mere threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot (People v. Del Castillo, G.R. No. 169084, January 18, 2012; People vs. Roman, GR No. 198110, July 31, 2013).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Ordinarily there is a difference between the act of drawing one’s gun and the act of pointing one’s gun at a target. The former cannot be said to be unlawful aggression on the part of the victim. For unlawful aggression to be attendant there must be a real danger to life or personal safety. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude. Here, the act of the victim in drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant. The facts surrounding the case must, however, be differentiated from current jurisprudence on unlawful aggression. Accused was justified in defending himself considering that victim was a trained police officer and an inebriated and disobedient colleague. Even if the victim did not point his firearm at accused, there would still be a finding of unlawful aggression on the part of the victim (Nacnac vs. People, G.R. No. 191913, March 21, 2012). In People vs. Fontanilla, G.R. No. 177743, January 25, 2012 - Indeed, had victim really attacked accused, the latter would have sustained some injury from the aggression. It remains, however, that no injury of any kind or gravity was found on the person of accused when he presented himself to the hospital. In contrast, the physician who examined the cadaver of victim testified that he had been hit on the head more than once. The plea of selfdefense was thus belied, for the weapons used by accused and the location and number of wounds he inflicted on victim revealed his intent to kill, not merely an effort to prevent or repel an attack from victim. We consider to be significant that the gravity of the wounds manifested the determined effort of the accused to kill his victim, not just to defend himself. Ceased aggression - The unlawful aggression on the part of the victim ceased when accused Rodolfo was able to get hold of the bladed weapon. Although there was still some struggle involved between the victim and accused, there is no doubt that the latter, who was in possession of the same weapon, already became the unlawful aggressor. Retaliation is not the same as self-defense. In retaliation, the aggression that was begun by the injured party already ceased when the accused attacked him, while in self-defense the aggression still existed when the aggressor was injured by the accused. Such an aggression can also be surmised on the four stab wounds sustained by the victim on his back. It is hard to believe based on the location of the stab wounds, all at the back portion of the

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body, that accused was defending himself. It would have been different if the wounds inflicted were located in the front portion of the victim's body. Thus, the first element of self-defense is not present (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012, Justice Peralta). Necessary means - The means employed by a person claiming self-defense must be commensurate to the nature and the extent of the attack sought to be averted, and must be rationally necessary to prevent or repel an unlawful aggression. In the present case, four stab wounds that are the product of direct thrusting of the bladed weapon are not necessary to prevent what the accused claim to be the continuous unlawful aggression from the victim as the latter was already without any weapon. In connection therewith, having established that there was no unlawful aggression on the part of the victim when he was stabbed, accused cannot avail of the mitigating circumstance of incomplete self-defense (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012, Justice Peralta). Under doctrine of rationale equivalence, plea of self-defense would prosper if there is a rational equivalence between the means of attack by the unlawful aggressor and the means of defense by the accused that would characterize the defense as reasonable. The doctrine of rational equivalence presupposes the consideration not only of the nature and quality of the weapons used by the defender and the assailant—but of the totality of circumstances surrounding the defense vis-à-vis, the unlawful aggression. Clearly, this “continuous attack” by accused despite the fact that aggressor already was neutralized by the blow constitutes force beyond what is reasonably required to repel the aggression—and is therefore unjustified (Espinosa vs. People, G.R. No. 181071, March 15, 2010). BATTERED WOMAN SYNDROME: "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Section 3 of RA No. 9262). Each of the phases of the cycle of violence must be proven to have characterized “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. (People vs. Genosa, G.R. No.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 135981, January 15, 2004). The three phases of the Battered Woman Syndrome are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving or non-violent phase (People vs. Genosa, G.R. No. 135981, January 15, 2004; Answer to the 2010 Bar Examination Questions by UP Law Complex). The essence of this defense of “Battered Woman Syndrome” as a defense is that battered woman, who suffers from physical and psychological or emotional distress, is acting under an irresistible impulse to defend herself although at the time of commission of the crime the batterer-victim had not yet committed unlawful aggression. In Genosa supra, it was held that “it is crucial to the BWS defense is the state of mind of the battered woman at the time of the offense. She must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life.” That is why even in the absence of “actual aggression” or any other element of selfdefense, a woman, who is found to be suffering from battered woman syndrome is not criminally liable for killing her husband. IRRESISTABLE FORCE A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. Actus me invite factus non est meus actus. An act done by me against my will is not my act. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity for the accused for escape or self-defense in equal combat (People vs. Dequina, G.R. No. 177570, January 19, 2011) MINORITY To exempt a minor, who is 15 years old or more, from criminal liability, it must be shown that he committed the criminal act without discernment. Choosing an isolated and dark place to perpetrate the crime, to prevent detection and boxing the victim to weaken her defense” are indicative of accused’s mental capacity to fully understand the consequences of his

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unlawful action (People vs. Jacinto, G.R. No. 182239, March 16, 2011). SUSPENSION OF SENTENCE While Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already 18 years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. Hence, the child in conflict with the law, who reached 21 years, cannot avail of privilege of suspension of sentence. However, the child in conflict with the law may, after conviction and upon order of the court, be made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities (People vs. Mantalba, G.R. No. 186227, July 20, 2011). CREDIT OF THE PREVENTIVE IMPRISONMENT OF CHILD - Under Article 29 of RPC, a convicted recidivist is not entitled to a full or 4/5 credit of his preventive imprisonment. However, if the convict is a child, the applicable rule for crediting the period of commitment and detention is not Article 29 of RPC but Section 41, RA 9344. Under the said provision, the full time spent in actual commitment and detention of juvenile delinquent shall be credited in the services of his sentence. INSANITY Acts penalized by law are always presumed to be voluntary, and it is improper to conclude that a person acted unconsciously in order to relieve him of liability, unless his insanity is conclusively proved (People vs. Pambid, GR No. 124453, March 15, 2000).Insanity is the exception rather than the rule in the human condition. The presumption, under Article 800 of the Civil Code, is that every human is sane. Anyone who pleads the exempting circumstance of insanity bears the burden of proving it with clear and convincing evidence. It is in the nature of confession and avoidance. An accused invoking insanity admits to have committed the crime but claims that he or she is not guilty because of insanity (People vs. Tibon, G.R. No. 188320, June 29, 2010). Insanity as an exempting circumstance must relate to the time immediately preceding or coetaneous with the commission of the offense with which accused is charged (People vs. Tibon, supra).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA COGNITION TEST AND VOLITION TEST - The case of Formigones established two distinguishable tests to determine the insane condition of the accused: (a) The test of cognition – whether there was a “complete deprivation of intelligence in committing the criminal act” After satisfying his lust, accused threatened the victim. This implies that accused knew what he was doing, that it was wrong, and wanted to keep it a secret. It also indicated that the crime was committed during one of his lucid intervals. Accused is not exempt from liability for failure to pass the cognition test (People vs. Alipio, G.R. No. 185285, October 5, 2009) and Evidence tended to show that accused was not deprived of reason at all and can still distinguish right from wrong when, after satisfying his lust, he threatened victim. This single episode irresistibly implies, for one, that accused knew what he was doing, that it was wrong, and wanted to keep it a secret. And for another, it indicated that the crime was committed during one of lucid intervals of accused (People vs. Alipio, supra). (b) The test of volition – whether there was a “total deprivation of freedom of the will.” In the Bonoan case, schizophrenic accused, who acted under irresistible homicidal impulse to kill (volition test), was acquitted due to insanity. This is not anymore a good rule. Even if the mental condition of the accused had passed the volition test, the plea of insanity will not prosper unless it also passed the cognition test. The controlling test is cognition (People vs. Opuran, G.R. Nos. 147674-75, March 17, 2004). In recent Supreme Court cases, the plea of insanity of person, who is suffering from schizophrenia, was rejected because of failure to pass the cognition test. In sum, a schizophrenic accused must be deprived completely of intelligence to be exempt from criminal liability (See: People vs. Medina, G.R. No. 113691, February 6, 1998; People vs. Pascual, G.R. No. 95029, March 24, 1993).If a person (such as sex maniac, homicidal maniac or kleptomaniac)had merely passed the volition test but not the cognition test, he will only be given the benefit of mitigating circumstance of illness. Diminution of freedom of the will is enough to mitigate the liability of the offender suffering from illness (See: People vs. Rafanan, Jr. November 21, 1991, G.R. No. 54135, November 21, 1991). ABSOLUTORY CAUSE IN CRIME AGAINST PROPERTY

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No criminal liability is incurred by the stepfather who commits malicious mischief against his stepson; by the stepmother who commits theft against her stepson; by the stepfather who steals something from his stepson; by the grandson who steals from his grandfather; by the accused who swindles his sister-in-law living with him; and by the son who steals a ring from his mother (Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). The absolutory cause applies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification (Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). There are two viewson whether the extinguishment of marriage by death of the spouse dissolves the relationship by affinity for purpose of absolutory cause. The first holds that relationship by affinity terminates with the dissolution of the marriage, while the second maintains that relationship continues even after the death of the deceased spouse. The principle of pro reocalls for the adoption of the continuing affinity view because it is more favorable to the accused (Intestate estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). INSTIGATION AND ENTRAPMENT “Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him." It differs from entrapment which is the employment of ways and means in order to trap or capture a criminal. In instigation, the criminal intent to commit an offense originates from the inducer and not from the accused who had no intention to commit and would not have committed it were it not for the prodding of the inducer. In entrapment, the criminal intent or design originates from the accused and the law enforcers merely facilitate the apprehension of the criminal by using ruses and schemes. Instigation results in the acquittal of the accused, while entrapment may lead to prosecution and conviction. Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him. It differs from entrapment which is the employment of ways and means in order to trap or capture a criminal. In instigation, the criminal intent to commit an offense originates from the inducer and not from the accused who had no intention to commit and would not have committed it were it not for the prodding of the inducer. In entrapment, the criminal intent or design originates from the accused and the law enforcers merely facilitate the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA apprehension of the criminal by using ruses and schemes. Instigation results in the acquittal of the accused, while entrapment may lead to prosecution and conviction (People vs. Espiritu, G.R. No. 180919, January 9, 2013). In People vs. Espiritu et. Al., G.R. No. 180919, January 9, 2013 - Here, the evidence clearly established that the police operatives employed entrapment, not instigation, to capture appellant and her cohorts in the act of selling shabu. It must be recalled that it was only upon receipt of a report of the drug trafficking activities of Espiritu from the confidential informant that a buy-bust team was formed and negotiations for the sale of shabu were made. Also, appellant testified that she agreed to the transaction of her own free will when she saw the same as an opportunity to earn money. Notably too, appellant was able to quickly produce a sample. This confirms that she had a ready supply of the illegal drugs. Clearly, she was never forced, coerced or induced through incessant entreaties to source the prohibited drug for Carla and PO3 Cariño and this she even categorically admitted during her testimony. Moreover, a police officer’s act of soliciting drugs from appellant during the buy-bust operation, or what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-bust operation. in a prosecution for sale of illicit drugs, any of the following will not exculpate the accused: "(1) that facilities for the commission of the crime were intentionally placed in his way; or (2) that the criminal act was done at the solicitation of the decoy or poseur-buyer seeking to expose his criminal act; or (3) that the police authorities feigning complicity in the act were present and apparently assisted in its commission." Hence, even assuming that the PAOCTF operatives repeatedly asked her to sell them shabu, appellant’s defense of instigation will not prosper. This is "especially true in that class of cases where the offense is the kind that is habitually committed, and the solicitation merely furnished evidence of a course of conduct. Mere deception by the police officer will not shield the perpetrator, if the offense was committed by him free from the influence or instigation of the police officer." PARTICIPATION Chief actor - Criminal or chief actor is the person who actually committed the crime. He is the one who committed or omitted the act, which causes the criminal

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result. He directly perpetrated the acts, which constitute the crime. With or without conspiracy, the chief actor is a principal by direct participation. Criminal participator - Criminal participator is the offender who participated in committing a crime by indispensable or dispensable act. He performed an act, which is not constitutive of felony but intended to give moral or material aid to the chief actor. (1) With conspiracy - If there is conspiracy, the criminal participator or cooperator is a principal by direct participation. The act of the chief actor is considered the act of the criminal participator. (2) Without conspiracy - If there is no conspiracy, criminal participator may be held liable as principal by indispensable cooperation, accomplice or accessory depending upon the nature and time of participation. A criminal participator may participate in the commission of the crime by previous, simultaneous and/or subsequent acts. (a) Previous or simultaneous acts – The criminal participator by previous or simultaneous acts is liable either as principal by indispensable cooperation or accomplice. If the cooperation is indispensable, the participator is a principal by indispensable cooperation; if dispensable an accomplice. (b) Subsequent acts – The criminal participator by subsequent acts is liable as an accessory. An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with knowledge of the commission of the crime, he subsequently takes part by any of the three modes under Article 19. The liability of accessory and principal should also be considered as quasi-collective. It is quasi-collective in the sense that the principal and the accessory are liable for the felony committed but the penalty for the latter is two degrees lower than that for the former. ACCOMPLICE AND CONSPIRATOR - In People vs. PO1 Eusebio G.R. No. 182152, February 25, 2013 - It noted that victim had only three gunshot wounds despite the many shots fired at him. Since Bongon shot victim thrice at very close range, causing him to fall, it appears that it

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA was only Bongon who inflicted those wounds. And, considering that the prosecution evidence did not show that the shots three other accused fired from their guns made their marks, there is doubts that the three agreed beforehand with Bongon to kill victim. It cannot rule out the possibility that they fired their guns merely to scare off outside interference. Because witnesses are rarely present when several accused come to an agreement or conspired to commit a crime, such agreement is usually inferred from their "concerted actions" while committing it. On the other hand, accomplices are the persons who, not being principals, cooperate in the execution of the offense by previous or simultaneous acts. The line that separates a conspirator by concerted action from an accomplice by previous or simultaneous acts is indeed slight. Accomplices do not decide whether the crime should be committed; but they assent to the plan and cooperate in its accomplishment. The solution in case of doubt is that such doubt should be resolved in favor of the accused. It was held that when there is doubt as to whether a guilty participant in a homicide performed the role of principal or accomplice, the Court should favor the "milder form of responsibility." He should be given the benefit of the doubt and can be regarded only as an accomplice. Hence, in the case at bar, the other three accused should be granted the benefit of doubt and should considered merely as accomplices. It is immaterial whether accused acted as a principal or an accomplice. What really matters is that the conspiracy was proven and he took part in it. Without the participation of accused, the offense would not have been committed. He was the one who paved the way for victim to board the vehicle and his closeness with the victim led the latter to trust the former, thus, accomplishing their devious plan of kidnapping him. Consequently, the conspirators shall be held equally liable for the crime, because in a conspiracy the act of one is the act of all (People vs. Cruz, Jr., GR No. 168446, September 18, 2009). ACCOMPLICE - In order that a person may be considered an accomplice, namely, (1) that there be community of design; that is knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; (2) that he cooperates in the execution by previous or simultaneous act, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and (3) that there be a

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relation between the acts done by the principal and those attributed to the person charged as accomplice (People vs. Gambao, GR No. 172707, October 01, 2013). Accused entered the room where the victim was detained and conversed with kidnappers regarding stories unrelated to the kidnapping. Accused should be held liable as accomplice. The defenses raised by accused are not sufficient to exonerate her criminal liability. Assuming arguendo that she just came to the resort thinking it was a swimming party, it was inevitable that she acquired knowledge of the criminal design of the principals when she saw victim being guarded in the room. A rational person would have suspected something was wrong and would have reported such incident to the police. Accused, however, chose to keep quiet; and to add to that, she even spent the night at the cottage. It has been held before that being present and giving moral support when a crime is being committed will make a person responsible as an accomplice in the crime committed. It should be noted that the accused-appellant’s presence and company were not indispensable and essential to the perpetration of the kidnapping for ransom; hence, she is only liable as an accomplice. Moreover, in case of doubt, the participation of the offender will be considered as that of an accomplice rather than that of a principal (People vs. Gambao, GR No. 172707, October 01, 2013). X and Y did not participate when the victim was forcibly abducted. However, they owned the safehouse, the basement of their house, where the kidnapped victim was detained. X assisted the kidnappers when the victim the basement stairs of the safehouse. Y brought foods to the safehouse. Are X and Y liable as accomplice or principal by direct participation? They are liable as principals because of conspiracy. Their participations are of minor importance. These acts pertain to those committed by mere accomplices. However, their acts coincide with their ownership of the safehouse. They provided the place where the victim is to be detained, which is logically a primary consideration in a conspiracy to commit the crime of kidnapping for ransom. Ownership of the safehouse and their participations reasonably indicate that they were among those who at the outset planned, and thereafter concurred with and participated in the execution of the criminal design (People vs. Salvador, GR No. 201443, April 10, 2013). RECLUSION PERPETUA AND LIFE IMPRISONMENT

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA If the law was amended to change the penalty from life imprisonment to reclusion perpetua, the amendatory law, being more lenient to the accused than the previous law, should be accorded retroactive application. The penalty of reclusion perpetua is a lighter penalty than life imprisonment. (People vs. Pang, G.R. No. 176229, October 19, 2011). ISLAW RA 9165 provides that illegal possession of less than five (5) grams of shabu is penalized with imprisonment of 12 years and 1 day to 20 years. The court sentenced the accused to suffer a straight penalty of imprisonment of 12 years and 1 day. Is the penalty imposed by the court correct? No. The indeterminate Sentence Law mandates that, in case of a special law, the accused shall be sentenced "to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." (Asiatico vs. People, G.R. No. 195005, September 12, 2011) GRADUATION OF PENALTY GRADUATING FACTORS - Under these provisions, the fixed penalty shall be graduated by one or more degrees on the basis of the following factors: FACTORS NUMBER OF DEGREES Stage of Execution Frustrated stage ---------------------------------------------------- 1 Attempted stage --------------------------------------------------- 2 Except: Frustrated homicide, parricide, murder ------ 1 or 2 Attempted homicide, parricide, murder -----1 or 2 Nature of Participation Accomplice -------------------------------------------------------- 1 Accessory ---------------------------------------------------------- 2 Privileged Mitigating Circumstance Minority -----------------------------------------------------------------1 Incomplete justification or exemption ---------------------------1 or 2 (Except: Accident)

The composition of a graduated penalty will depend on the composition of the penalty fixed by law. General Rule: Single Penalty Graduated penalty is generally a single penalty. Example – If the fixed penalty is death, the penalty next lower in degree is reclusion perpetua; if the fixed penalty is reclusion perpetua, the penalty next lower in degree is reclusion temporal; if the fixed penalty is reclusion perpetua to death, the penalty next lower in degree is also reclusion temporal. The graduated penalty of reclusion temporal is a single penalty. First exception: Fixed penalty in period – If the penalty is composed of single period, the graduated penalty must

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also be composed of single period. If the penalty prescribed by law is arresto mayor in its maximum period, the penalty next lower in degree is arresto mayor in its medium period. If the penalty is composed of two periods, the graduated penalty must also be composed of two periods. If the penalty prescribed by law arresto mayor in its maximum period to prision correctional in its minimum period, the penalty next lower in degree is arresto mayor in its minimum and medium periods. If the penalty is composed of three periods, the graduated penalty must also be composed of three periods. First Exception: Fixed penalty with period and penalty components – If the fixed penalty is composed of period component and penalty component, the graduated penalty must be composed of three period components. Example: The penalty prescribed by law is “reclusion temporal in its maximum period to reclusion perpetua.” This penalty has a period component and a full penalty. Hence, one degree lower than this penalty must composed of three periods, and that is: “Prision mayor in its maximum period to reclusion temporal in its medium period” SPECIAL MITIGATING CIRCUMSTANCE: Under Article 64 (5), the presence of two or more mitigating circumstances will graduate the “divisible penalty prescribed by law” to one degree lower. This is called special mitigating circumstance. However, the appreciation of this circumstance is subject to two conditions: (1) the penalty prescribed by law must be divisible; and (2) there must be no aggravating circumstance. In People vs. Takbobo, G.R. No. No. 102984, June 30, 1993 - Accused was found guilty of parricide punishable by the penalty of reclusion perpetua to death. Applying Article 63, when the penalty is composed of two indivisible penalties, the penalty cannot be lowered by one degree, no matter how many mitigating circumstances are present. The rule on special mitigating circumstance is found in Article 64 (5) which provides the "rules for the application of penalties which contain three periods," meaning, divisible penalties. Article 64 (5) is inapplicable. Thus, the rule applicable in said case is found in Article 63, and not in Article 64. If there are two mitigating circumstances, the penalty prescribed law shall graduated to one degree lower, and the graduated penalty shall be applied in it medium period. If there are three mitigating circumstances taken as special mitigating, the penalty prescribed law shall graduated to one degree lower, and the graduated

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA penalty shall be applied in it minimum period. Reason: The two mitigating circumstances were taken to constitute special mitigating circumstance; while the remaining mitigating circumstance was used to apply the graduated penalty in its minimum period. GRADUATING DEATH PENALTY For purposes of graduating penalty, the penalty of death is still the penalty to be reckoned with. RA No. 9346, which prohibits the imposition of death penalty, does not exclude death penalty in the order of graduation of penalties. In qualified rape, the penalty for accomplice is reclusion perpetua, the penalty next lower in degree than death prescribed for the crime (See: People vs. Jacinto, G.R. No. 182239, March 16, 2011). SUPPLETORY APPLICATION - A special law prescribes the penalty of 10 years of imprisonment for violation thereof while another law prescribes the penalty of arresto mayor. Can the rules on graduation of penalties or application of penalty on its proper imposable period under RPC applicable to violation of these special laws?(a) Where the special law has not adopted the Spanish penalties (10 years of imprisonment) under RPC, rules on graduation of penalties or application of penalty on its proper imposable period is not applicable. Article 10 of RPC on suppletory effects of the Code cannot be invoked where there is a legal or physical impossibility of such supplementary application (People vs. Mantalba, G.R. No. 186227, July 20, 2011). The penalty of 10 years of imprisonment can neither be graduated by decrees nor divided into three periods. (b) Where the special law has adopted the Spanish penalty (arresto mayor) under RPC, rules on graduation of penalties or application of penalty on its proper imposable period are applicable. Where the penalty under a special law is actually taken from the Revised Penal Code in its technical nomenclature, the penal system under the Code is necessarily applicable to this law (See: People vs. Mantalba, supra). This adoption reveals the statutory intent to give the provisions on penalties for felonies under RPC the corresponding application to said special law, in the absence of any express or implicit proscription in these special laws (See: People vs. Simon, G.R. No. 93028, July 29, 1994). SUBSIDIARY PENALTY UNDER RA No. 10159 Article 39 of the Revised Penal Code as amended by RA No. 10159 provides: If the convict has no property with which to

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meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by the trial court, subject to the following rules: 1. If the principal penalty imposed be prision correctional or arresto and fine, he shall remain under confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a fight felony. 3. When the principal penalty imposed is higher than prision correctional, no subsidiary imprisonment shall be imposed upon the culprit. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him from the fine in case his financial circumstances should improve. Special law - In Escalante vs. People, G.R. No. 192727, January 9, 2013 The penalty for election offense is imprisonment of not less than one year but not more than six years. Under ISLAW, if the offense is punished by special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. Applying the ISLAW, the imposable penalty for violation of the election gun ban should have a maximum period, which shall not exceed six (6) years, and a minimum period which shall not be less than one (1) year.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Dangerous drugs law - Section 98 of RA No. 9165 provided that, where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this means that the penalty can now be graduated as it has adopted the technical nomenclature of penalties provided for in the Revised Penal Code. Since the privilege circumstance of minority is present, the proper penalty should be one degree lower than reclusion perpetua, which is reclusion temporal. Necessarily, also applying the Indeterminate Sentence Law (ISLAW), the minimum penalty should be taken from the penalty next lower in degree which is prision mayor and the maximum penalty shall be taken from the medium period of reclusion temporal, there being neither ordinary mitigating circumstance nor aggravating circumstance (People vs. Udtojan GR No. 186227, July 20, 2011, Justice Peralta). X was in possession of marijuana and shabu. Can the accused be convicted of two counts of illegal possession of dangerous drugs? Absent any clear interpretation as to the application of the penalties under RA No. 9165, the same shall construe it in favor of the accused for the subject provision is penal in nature. It is a well-known rule of legal hermeneutics that penal or criminal laws are strictly construed against the state and liberally in favor of the accused. Thus, an accused may only be convicted of a single offense of possession of dangerous drugs if he or she was caught in possession of different kinds of dangerous drugs in a single occasion. If convicted, the higher penalty shall be imposed, which is still lighter if the accused is convicted of two (2) offenses having two (2) separate penalties. This interpretation is more in keeping with the intention of the legislators as well as more favorable to the accused (David vs. People, Gr No. 181861, October 17, 2011, Justice Peralta). X confessed to the crime of illegal possession of dangerous drugs where Section 11 of RA No. 9165 prescribes the penalty of 12 years and 1 day to 20 years. If you were the judge trying the case: (a) can you appreciate the mitigating circumstance of confession? (b) What penalty would you impose on X? (c) Would your answer be the same regarding the appreciation of the modifying circumstance, if X is a minor? (d) What penalty would you impose on X? Answer: (a) Since the penalties under RA No. 9165 are different from those under RPC, the rules for the application of penalties and other relevant provisions such as mitigating circumstance of

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confession and privilege mitigating circumstance of minority cannot be given suppletory effect (People vs. Simon, G.R. No. 93028, July 29, 1994). Moreover, Section 98 of RA No. 9165 provides that the provisions of RPC shall not apply to the provisions of this Act, except in the case of minor offenders. Since there is no showing that X is a minor, the circumstance of confession and minority will not be appreciated in favor of X. (b) Applying the second rule of the ISLAW, the maximum indeterminate penalty must not exceed 20 years and the minimum penalty must not be less than 12 years and 1 day. If I am the judge, I will sentence the accused to suffer 14 years of imprisonment as minimum penalty to 18 years as maximum penalty. (c) Since X is a minor, the provisions of RPC including those on modifying circumstances are applicable to crime punishable under RA No. 9165. Hence, mitigating circumstance of confession and privilege mitigating circumstance of minority should be appreciated in favor of X (People vs. Montalaba, G.R. No. 186227, July 20, 2011, Justice Peralta); (d) The penalty prescribed for the crime committed is 12 years and 1 day to 20 years. This is equivalent to reclusion temporal. Since privilege mitigating circumstance of minority and mitigating circumstance of confession are present, the penalty should be graduated to prision mayor to be applied in its minimum period. The maximum penalty under the ISLAW shall be taken from minimum period of prision mayor, which has a range from 6 years and 1 day to 8 years, while the minimum penalty shall be fixed within the duration of the penalty of prision correccional, the penalty one degree lower than that prescribed by law, which has a ranged from 6 months and 1 day to 6 years. If I am the judge, I will sentence the accused to suffer 4 years of prision correccional as minimum penalty to 7 years of prision mayor as maximum penalty. THREE-FOLD AND 40 YEARS LIMITATION RULE Simultaneous service - When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. Thus, convict could serve simultaneously arresto mayor and fine, prision correccional and perpetual absolute disqualification, or reclusion perpetua and civil interdiction. In sum, while lingering in prison, convict could pay fine, return the property confiscated, be disallowed to cast his vote

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA or to act function as a public officer. In Rodriguez vs. Director of Prisons, G.R. No. L-35386, September 28, 1972, En Banc Penalties which could be served simultaneously with other penalties, are perpetual or temporary absolute disqualification, perpetual or temporary special disqualification, public censure, suspension from public office and other accessory penalties. There are only two modes of serving two or more (multiple) penalties: simultaneously or successively. Successive service – When the culprit has to serve two or more penalties, he shall serve them successively if the nature of the penalties will not permit simultaneous service. Convict must serve multiple penalties successively: (1) where the penalties to be served are destierro and imprisonment; and (2) where the penalties to be served are imprisonment. However, the successive service of sentences is subject to the three-fold rule and 40-year limitation rule. a. Three-fold rule - The maximum period of the imprisonment that convict must suffer in serving multiple penalties must not exceed threefold the length of time corresponding to the most severe of the penalties imposed upon him. “A” was sentenced to suffer penalty of 7 years of prision mayor for serious physical injuries, 6 years of prision correccional for qualified less serious physical injuries, 5 years of prision correccional for robbery and 5 years of prison correccional for theft. The total duration of the penalties imposed on him is 23 years. The most severe penalty imposed on him is 7 years of prision mayor. Thus, threefold the length of time corresponding to the most severe of the penalties is 21 years. “A” will be imprisoned for 21 years because of the three-fold rule. b. Forty-year limitation rule – The maximum period of the imprisonment that convict must suffer in serving multiple penalties must not exceed forty years. “A” was sentenced to suffer three penalties of 15 years of reclusion temporal for three counts of homicide and the penalty of 10 years of prision mayor for serious physical injuries. The total duration of the penalties imposed on him is 55 years. The most severe penalty imposed on him, is 15 years of reclusion temporal. Thus, threefold the length of time corresponding to the most severe of the penalties is 45 years. “A” will be imprisoned for 40 years because of the forty year limitation rule. Article 70 provides that “the maximum duration of the convict’s sentence shall not be more than threefold

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the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the said maximum period. Such maximum period shall in no case exceed forty years.” Applying said rule, despite the four penalties of reclusion perpetua for four counts of qualified theft, accused-appellant shall suffer imprisonment for a period not exceeding 40 years (People vs. Mirto, G.R. No. 193479, October 19, 2011). SPECIAL COMPLEX CRIME Kidnapping with homicide - Old rule: (1) Where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder as the kidnapping of the victim was a necessary means of committing the murder. (2) Where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. Where there is no actual detention (People vs. Masilang, 1986) or intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655, July 22, 2009, En Banc) killing the person is murder. Demand for ransom will not convert the crime into kidnapping. Present rule: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed, nor be treated as separate crimes, but shall be punished as a special complex crime (People vs. Ramos, G.R. No. 118570, October 12, 1998, En Banc, People vs. Larranaga, 138874-75, February 3, 2004, En Banc; People vs. Montanir, GR No. 187534, April 04, 2011, Justice Peralta) If kidnapping is a necessary means to commit frustrated murder, special complex crime of kidnapping and serious illegal detention with frustrated homicide. Homicide as a component of special complex crime must be at the consummated stage. In this situation, the crime committed is complex crime of kidnapping and serious illegal detention with frustrated murder (See: People vs. Roxas, GR No. 172604, August 17, 2010, Justice Peralta) COMPLEX CRIME There are two kinds of complex crimes. The first is known as compound

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA crime, or when a single act constitutes two or more grave or less grave felonies. The second is known as complex crime proper, or when an offense is a necessary means for committing the other (People vs. Rebucan, G.R. No. 182551, July 27, 2011).The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions (People vs. Gaffud, Jr., G.R. No. 168050, September 19, 2008) COMPLEX CRIME AND COMPOSITE CRIME - A composite crime, also known as a special complex crime, is composed of two or more crimes that the law treats as a single indivisible and unique offense for being the product of a single criminal impulse. It is a specific crime with a specific penalty provided by law. The distinctions between a composite crime, on the one hand, and a complex or compound crime under Article 48 are as follows: (1) In a composite crime, the composition of the offenses is fixed by law; In a complex or compound crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the necessary means to commit the other; (2) For a composite crime, the penalty for the specified combination of crimes is specific; for a complex or compound crime, the penalty is that corresponding to the most serious offense, to be imposed in the maximum period; and (3) A light felony that accompanies a composite crime is absorbed; a light felony that accompanies the commission of a complex or compound crime may be the subject of a separate information (People vs. Villaflores, G.R. No. 184926, April 11, 2012). COMPOUND CRIME The single act of pitching or rolling the hand grenade on the floor of the gymnasium which resulted in the death of one victim and injuries to other victims constituted a complex crime under Article 48 of RPC which states that when a single act constitutes two or more grave or less grave felonies, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period (People vs. Mores, GR No. 189846, June 26, 2013). X was charged with complex crime with murder and attempted murder. The

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information alleges that the accused shot the victim, but it does not allege that he did so several times. However, the evidence show that accused shot her and her father several times. Can X be convicted of separate crimes of murder and attempted murder or complex crime? Answer: On the basis of evidence, X committed separate crimes of murder and attempted murder. Several shootings rule out the application of the concept of complex crime. However, evidence does not conform to the Information, which contains no allegation accused shot the victims several times. In the absence of a clear statement of several shootings in the Information, the accused may be convicted only of the complex crime of murder with attempted murder. After all, the concept of complex crimes is intended to favor the accused by imposing a single penalty irrespective of the number of crimes committed. Information merely states that accused shot the victims. This is a compound crime since murder and attempted murder was produced by a single act of shooting. To rule that the accused should be convicted of two separate offenses of murder and attempted murder pursuant to the evidence presented but contrary to the allegations in the Information is to violate the right of the accused to be informed of the nature and cause of the accusation against him (People vs. Bernardo, GR No. 198789, June 03, 2013). DELICTO CONTINUADO In order that continuous crime may exist, there should be: (1) plurality of acts performed separately during a period of time; (2) unity of criminal intent and purpose and (3) unity of penal provision infringed upon or violated (Santiago vs. Garchitorena , GR NO. 109266, December 2, 1993). a. Single occassion - In People vs. Tumlos, G.R. No. 46428, April 13, 1939, En Banc - The theft of the thirteen cows owned by six owners involved thirteen (13) acts of taking. However, the acts of taking took place at the same time and in the same place; consequently, accused performed but one act. The intention was likewise one, namely, to take for the purpose of appropriating or selling the thirteen cows which he found grazing in the same place. The fact that eight of said cows pertained to one owner and five to another does not make him criminally liable for as many crimes as there are owners, for the reason that in such case neither the intention nor the criminal act is susceptible of division.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA “X” as punong barangay was angered when he discovered a tap from the main line of the public water tank. On separate occasions, “X” threatened to kill and crack the skulls of “A”, “B”, and “C”, who suspected to be responsible for the tapping of water line. There is no continued crime since the three crimes of grave threat were not committed under a single criminal impulse. “X’s” intent to threaten “A”, “B”, and “C” with bodily harm arose only when he chanced upon each of his victims. Several threats can only be considered as continued crime if the offender threatened three individuals at the same place and at the same time (Paera vs. People, G.R. No. 181626, May 30, 2011). In People vs. Tumlos, G.R. No. 46428, April 13, 1939, En Banc - The theft of the thirteen cows owned by six owners involved thirteen (13) acts of taking. However, the acts of taking took place at the same time and in the same place; consequently, accused performed but one act. The intention was likewise one, namely, to take for the purpose of appropriating or selling the thirteen cows which he found grazing in the same place. The fact that eight of said cows pertained to one owner and five to another does not make him criminally liable for as many crimes as there are owners, for the reason that in such case neither the intention nor the criminal act is susceptible of division. In People vs. Aaron, G.R. NOS. 136300-02, September 24, 2002 - The accused inserted his penis into the victim’s vagina; he then withdrew it and ordered the latter to lie down on the floor and, for the second time, he inserted again his penis into the victim’s vagina; the accused, thereafter, stood up and commanded the victim to lie near the headboard of the makeshift bed and, for the third time, he inserted again his penis into the victim’s vagina and continued making pumping motions. Accused is convicted of only one count of rape. Accused thrice succeeded in inserting his penis into the private part of victim. However, the three penetrations occurred during one continuing act of rape in which the accused obviously motivated by a single criminal intent. Accused decided to commit those separate and distinct acts of sexual assault merely because of his lustful desire to change positions inside the room where the crime was committed. In People vs. Lucena, GR No. 190632, February 26, 2014 - Accused thrice succeeded in inserting his penis into the private part of victim. The three (3) penetrations occurred one after the other at an interval of five (5) minutes wherein the accused would rest after satiating his

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lust upon his victim and, after he has regained his strength, he would again rape the victim. When the accused decided to commit those separate and distinct acts of sexual assault upon victim, he was not motivated by a single impulse, but rather by several criminal intents. Hence, his conviction for three (3) counts of rape is indubitable. In People vs. Crisostomo, GR No. 196435, January 29, 2014 – Accused on the same occasion inserted a lit cigarette stick into genital orifice of victim (6 years of age) and her anal orifice, and had sexual intercourse with her. He is guilt for two counts of rape by sexual assault and rape through sexual intercourse. b. General plan - In People vs. Dela Cruz, G.R. No. L-1745, May 23, 1950, it was held that ransacking several houses located within the vicinity of a sugar mill while two of the bandits guarded the victims with guns leveled at them is a continued crime of robbery. Several acts of robbery were made pursuant to general plan to despoil all those in the said place, which is an indicative of a single criminal design. Accused intended only to rob one place; and that is the Energex gasoline station. That they did; and in the process, also took away by force the money and valuables of the employees working in said gasoline station. Clearly inferred from these circumstances are the series of acts which were borne from one criminal resolution. A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. The perpetrated acts were not entirely distinct and unconnected from one another. Thus, there is only single offense or crime (People vs. De Leon, GR No. 179943, June 26, 2009, Justice Peralta). c. Foreknowledge doctrine - In Gamboa vs. CA, G.R. No. L-41054, November 28, 1975 - Accused cannot be held to have entertained continuously the same criminal intent in making the first abstraction on October 2, 1972 for the subsequent abstractions on the following days and months until December 30, 1972, for the simple reason that he was not possessed of any fore-knowledge of any deposit by any customer on any day or occasion and which would pass on to his possession and control. At most, his intent to misappropriate may arise only when he comes in possession of the deposits on each business day but not in future, since petitioner company operates only on a day-to-day transaction. As a result, there

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA could be as many acts of misappropriation as there are times the private respondent abstracted and/or diverted the deposits to his own personal use and benefit (People vs. Dichupa, G.R. No. L-16943, October 28, 1961). DOCTRINE OF ABSORPTION Crime is absorbed if it is a mere incident in the commission of another crime. In the case of U.S vs. Sevilla (1 Phil. 143), the accused, who struck the offended parties while simultaneously threatening to kill them if they would not return him the jewelry they have lost, was held liable for slight physical injuries. The threat was considered as part of the assault. In People vs. Yebra (109 Phil. 613), it was held that defamatory statement uttered in the course of committing the crime of threat is not a separate crime. The defamation was just a part of the crime of threat. The letter containing the libelous remarks is more threatening than libelous; the intent to threaten is the principal aim and object of the letter. The libelous remarks are merely preparatory remarks culminating in the final threat. What is the effect of the elimination of the overt acts of violence in Article 135 by RA No. 9668? In People vs. Hernandez, G.R. No. L-6025, July 18, 1956 – The Supreme Court justified the doctrine of absorption in rebellion since murder, robbery, and arson are just a part of the “engaging in war against the forces of the government", "committing serious violence", and “destroying property in Article 135. However, RA No. 6968 eliminated the phrases "engaging in war against the forces of the government", "committing serious violence" and “destroying property” in Article 135. According to Florenz Regalado, the amendment of Article 135 does not affect the accepted concept of rebellion and these “overt acts of violence” are deemed “subsumed” in the provision on rebellion in Article 134. Under this principle of subsumption, engaging in combat against the forces of the Government, destroying property or committing serious violence is an essential ingredient of rebellion. Senator Juan Ponce Enrile was charged for rebellion under the Revised Penal Code and obstruction of justice under PD No. 1829. The obstruction of justice case is based on the allegation that Enrile entertained and accommodated Col. Gregorio “Gringo” Honasan, fugitive from justice, by giving him food and comfort on December 1, 1989 in his house. The rebellion case is based on the alleged fact that fugitive Col. Honasan and some 100rebel soldiers attended the mass and birthday party held at the residence of

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Enrile in the evening of December 1, 1989. It was held that the theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws, which are perpetrated in furtherance of the political offense. Hence, rebellion absorbs obstruction of justice (Enrile vs. Amin, G.R. No. 93335, September 13, 1990). MULTIPLE DEATHS SINGLE ACT RULE - If there is more than one death resulting from different acts there is no compound crime of multiple homicides or murder. Article 48 speaks of a “single act”. In People vs. Toling, G.R. No. L-27097, January 17, 1975 - Twin brothers, who ran amok like “juramentados” in a passenger train, and killed their eight co-passengers, were held liable for eight (8) murders and one attempted murder. The conduct of the twins evinced conspiracy and community of design. The eight killings and the attempted murder were perpetrated by means of different acts. Hence, they cannot be regarded as constituting a complex crime under Article 48 of the Revised Penal Code, which refers to cases where "a single act constitutes two or more grave felonies, of, when an offense is a necessary means for committing the other. In People vs. Punzalan G .R. No. 199892, December 1, 2001 - Appellant was animated by a single purpose, to kill the navy personnel, and committed a single act of stepping on the accelerator, swerving to the right side of the road ramming through the navy personnel, causing the death of two persons and, at the same time, constituting an attempt to kill others. The crime committed is complex crime of multiple murders and attempted murder. SINGLE IMPULSE RULE – Several acts committed by several offenders with one criminal impulse resulting in several deaths constitute one crime: the compound crime of multiple homicides or murders. In People vs. Lawas, L-7618-20, June 30, 1955 - Members of the Home Guard, upon order of their leader, Lawas, simultaneously and successively fired at several victims. After a short time, the firing stopped immediately when Lawas ordered his men to “cease fire”. As a result of the firing, fifty (50) persons died. It was held that the evidence positively shows that the killing was the result of a single impulse, which was induced by the order of the leader to fire, and continued with the intention to comply therewith, as the firing stopped as soon as the leader gave the order to that effect. There was no intent on the part of the accused either to fire at each and every

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA of the victims as separately and from each other. If the act complained of resulted from criminal impulse, it constitutes offense - compound crime of homicides.

distinctly or acts a single a single multiple

COLLECTIVE RESPONSIBILITY RULE - Under the Lawas principle, if accused fired their guns killing several victims pursuant to a single impulse, they shall be held liable for continued crime of murder. The Lawas principle should only be applied in a case where (1) there is no conspiracy (People vs. Hon. Pineda, G.R. No. L-26222, July 21, 1967) and (2) it is impossible to ascertain the number of deaths caused by each accused (People vs. Tabaco, G.R. No. 100382-100385, March 19, 1997). In conspiracy, each conspirator is not only liable for deaths attributable to him but also for deaths caused by others because in conspiracy the act of one is the act of all. Thus, the Lawas doctrine should not be applied if there is conspiracy since the number of victims actually killed by each conspirator is not anymore material if there is conspiracy (People vs. Elarcosa, G.R. No. 186539, June 29, 2010). In People vs. Nelmida, G.R. No. 184500. September 11, 2012 - Significantly, there was no conspiracy in Lawas case. However, the Lawas doctrine is more of an exception than the general rule. With the presence of conspiracy in the case at bench, appellants had assumed joint criminal responsibility ─ the act of one is the act of all. The ascertainment of who among them actually hit, killed and/or caused injury to the victims already becomes immaterial. Collective responsibility replaced individual responsibility. The Lawas doctrine, premised on the impossibility of determining who killed whom, cannot be applied. In Lawas, this Court was merely forced to apply Article 48 of RPC because of the impossibility of ascertaining the number of persons killed by each accused. Since conspiracy was not proven therein, joint criminal responsibility could not be attributed to the accused. Each accused could not be held liable for separate crimes because of lack of clear evidence showing the number of persons actually killed by each of them. In conspiracy, the act of one is the act of all. It is as though each one performed the act of each one of the conspirators. Each one is criminally responsible for each one of the deaths and injuries of the several victims. The severalty of the acts prevents the application of

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Article 48. The applicability of Article 48 depends upon the singularity of the act, thus the definitional phrase "a single act constitutes two or more grave or less grave felonies." To apply the first half of Article 48, there must be singularity of criminal act; singularity of criminal impulse is not written into the law. SINGLE PURPOSE RULE - In People vs. Abella, 93 SCRA 25, the “Lawas principle” was applied despite the presence of conspiracy. In the said case, sixteen prisoners, who are members of the OXO gang, were able to break into the cell of Sigue-Sigue gang and killed fourteen (14) inmates. All accused were convicted for a compound crime. It was held: Where a conspiracy animates several persons with a single purpose, their individual acts done in pursuance of that purpose are looked upon as a single act, the act of execution, giving rise to a complex offense. Various acts committed under one criminal impulse may constitute a single complex offense. Basis The “single purpose rule” was actually adopted in consideration of the plight of the prisoners. Requisites -There are two requisites to apply the Abella principle: (1) there must be a conspiracy, which animates several persons to commit crimes under a single criminal purpose; and (2) the offenders committed crimes in prison against their fellow prisoners (People vs. Pincalin, et al., G.R. No. L-38755, January 22, 1981). In People vs. Nelmida, G.R. No. 184500. September 11, 2012 - The application of the Abella doctrine, has already been clarified in Pincalin, thus: where several killings on the same occasion were perpetrated, but not involving prisoners, a different rule may be applied, that is to say, the killings would be treated as separate offenses. If the killings did not involve prisoners or it was not a case of prisoners killing fellow prisoners, Abella would not apply. MULTIPLE KIDDNAPPINGS In People v Tadah, G.R. No. 186226, February 1, 2012 (5 victims)- Since the prosecution adduced proof beyond reasonable doubt that the accused conspired to kidnap the victims for ransom, and kidnapped and illegally detained them until they were released by the accused after the latter received the P2,000,000.00 ransom xxx Appellant Yusop Tadah is found guilty beyond reasonable doubt of 5 counts of kidnapping. NOVATION

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA The novation theory may perhaps apply prior to the filing of the criminal information in court by the state prosecutors because up to that time the original trust relation may be converted by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in estoppel to insist on the original trust. But after the justice authorities have taken cognizance of the crime and instituted action in court, the offended party may no longer divest the prosecution of its power to exact the criminal liability, as distinguished from the civil. The crime being an offense against the state, only the latter can renounce it (Degaños vs. People, GR No. 162826, October 14, 2013). It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (Degaños vs. People, GR No. 162826, October 14, 2013). Although the novation of a contract of agency to make it one of sale may relieve an offender from an incipient criminal liability, that did not happen here, for the partial payments and the proposal to pay the balance the accused made during the barangay proceedings were not at all incompatible with Degaños’ liability under the agency that had already attached. Rather than converting the agency to sale, therefore, he even thereby confirmed his liability as the sales agent of the complainants. The acceptance of partial payments, without further change in the original relation between the complainant and the accused, cannot produce novation. For the latter to exist, there must be proof of intent to extinguish the original relationship, and such intent cannot be inferred from the mere acceptance of payments on account of what is totally due. Much less can it be said that the acceptance of partial satisfaction can effect the nullification of a criminal liability that is fully matured, and already in the process of enforcement. Thus, this Court has ruled that the offended party’s acceptance of a promissory note for all or part of the amount misapplied does not obliterate the criminal offense (Degaños vs. People, GR No. 162826, October 14, 2013). DEATH OF THE ACCUSED

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Novation can only be used as a defense in a crime where one of its elements is the existence of contractual relationship between the offender and the victim. Defense of novation is applicable to estafa through misappropriation because the contractual trust relationship between the parties can be validly novated or converted by the parties into an ordinary creditordebtor situation, thereby placing the complainant in estoppel to insist on the original trust (People vs. Nery, G.R. No. L19567, February 5, 1964, En Banc). Novation cannot be used as a defense in case of theft or estafa through falsification of document. In theft case, there was no contractual relationship or bilateral agreement which can be modified or altered by the parties (People vs. Tanjutco, G.R. No. L-23924, April 29, 1968, En Banc).In estafa through falsification of public documents, the liability of the offender cannot be extinguished by mere novation (Milla vs. People, G.R. No. 188726, January 25, 2012). In People v. Bayotas, the Court laid down the rules in case the accused dies prior to final judgment: 1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, “the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore.” 2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: law; contracts; quasi-contracts; quasi-delicts; 3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above. 4. Finally, the private offended party need not fear a forfeiture of his right to file

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription (People vs. Amistoso, GR No. 201447, August 28, 2013) PRESCRIPTION The crime of falsification of a public document involving a deed of sale which was registered with the Registry of Deeds, the rule on constructive notice can be applied in the construction of Article 91. Hence, the prescriptive period of the crime shall have to be reckoned from the time the notarized deed of sale was recorded in the Registry of Deeds (People vs. Reyes, G.R. No. 74226, July 27, 1989). Constructive notice rule is not applicable to registration of bigamous marriage in the Office of the Civil Registrar. Furthermore, P.D. 1529, which governed registration of document involving real property, specifically provides the rule on constructive notice. On the other hand, Act No. 3753 or the Family Code, which governed registration of marriage do not provide rule on constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14, 1994); hence the period of prescription commences to run on the date of actual discovery of the bigamous marriage. COMMENCEMENT - As a rule, period of prescription commence to run from the date of discovery of its commission. However, if the crime is not yet actionable at the time of its commission, period of prescription will commence to run from the time it becomes actionable. In false testimony, the crime was committed at the time the accused falsely testified in court. However, the period of prescription for false testimony commences to run from the date of the finality of judgment of a case in which the offender testified falsely. Prior to the date of finality, the crime is not yet actionable (People vs. Maneja, G.R. No. 47684, June 10, 1941). In violation of BP Blg. 22, the crime is consummated upon the dishonor of the check by the drawee bank (Bautista vs. Court of Appeals, G.R. No. 143375, July 6, 2001). However, the period of prescription for such crime commences to run from the date of the expiration of the five-day period from receipt of notice of dishonor by the

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drawer. Prior to that date, the crime is not yet actionable since the offender can still avert criminal prosecution by satisfying the amount of the check or making arrangement for its payment within five day grace period. Moreover, the running of prescription for crime punishable under special law shall be interrupted upon filing of complaint with prosecutor office for preliminary investigation. It would be absurd to consider the prescriptive period for crime under BP Blg. 22 as already running even prior to the expiration of the grace period despite the fact that the complainant could not cause its interruption by filing a complaint for preliminary investigation since it is not yet actionable. In People vs. Pangilinan, G.R. No. 152662, June 13, 2012 - This Court reckons the commencement of the period of prescription for violations of BP Blg. 22 imputed to accused sometime in the latter part of 1995, as it was within this period that the accused was notified by the private complainant of the fact of dishonor of the subject checks and, the five (5) days grace period granted by law had elapsed. The private complainant then had, pursuant to Act 3326, four years there from or until the latter part of 1999 to file her complaint or information against the petitioner before the proper court. INTERRUPTION OF PRESCRIPTION - There is no more distinction between cases under the RPC and those covered by special laws with respect to the interruption of the period of prescription (People vs. Pangilinan, G.R. No. 152662, June 13, 2012). Under Article 91 of the Revised Penal Code, the running of the period of prescription of offense shall be interrupted by the filing of the complaint or information. The text of Article 91 did not distinguish whether the complaint is filed in the court for preliminary. Hence, the filing of the complaint with the Fiscal’s Office also suspends the running of the prescriptive period of a criminal offense (Francisco and Bernardino vs. CA, G.R. No. L-45674, May 30, 1983). Under Act No. 3326, the running of the prescription of offense punishable under special law or ordinance shall be interrupted when “judicial proceedings for investigation and punishment” are instituted against the guilty person. The proceeding is described as “judicial” since when Act No. 3326 was passed on December 4, 1926, preliminary investigation of criminal offenses was conducted by justices of the peace. Considering that preliminary investigation

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA in criminal case for purposes of prosecution has become the exclusive function of the executive branch, the term “proceedings” should now be understood either executive or judicial in character: executive when it involves the investigation phase and judicial when it refers to the trial and judgment stage. Hence, institution of proceeding, whether executive or judicial, interrupts the running of prescriptive period. Investigations conducted by the Securities and Exchange Commission for violations of the Revised Securities Act and the Securities Regulations Code effectively interrupts the prescription period because it is equivalent to the preliminary investigation conducted by the DOJ in criminal cases (SEC vs. Interport Resources Corporation, G.R. No. 135808, October 6, 2008, the Supreme Court En Banc). Commencement of the proceedings for the prosecution of the accused before the Office of the City Prosecutor effectively interrupted the prescriptive period for the offenses they had been charged under BP Blg. 22 (Panaguiton vs. Department of Justice, G.R. No. 167571, November 25, 2008). To rule otherwise would deprive the injured party of the right to obtain vindication on account of delays that are not under his control (People vs. Olarte, G.R. No. L-22465, 28 February 1967). Aggrieved parties, especially those who do not sleep on their rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply because of circumstances beyond their control, like the accused’s delaying tactics or the delay and inefficiency of the investigating agencies (Panaguiton vs. Department of Justice, supra). MARRIAGE IN RAPE Marriage between the offended party and the offender in seduction, abduction, acts of lasciviousness extinguishes the criminal liability of the latter and his coprincipals, accomplice and accessories (Articles 89 and 344 of RPC). But marriage between the offended part and offender in rape will only extinguishes criminal liability of the latter. Article 266-C did not expressly made applicable the extinction of criminal action and penalty in rape case by reason of marriage to co-principals, accomplice and accessories. PROBATION Probation distinguished from parole and pardon – (1) Grant of probation is judicial while that of parole and pardon is executive. (2) Probation and parole are suspension sentence while pardon is remission of penalty. (3) Offender can only

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apply for probation within the period of perfecting an appeal; offender is eligible for pardon after conviction by final judgment; offender is eligible for parole after serving the minimum of the indeterminate penalty. (4) Offender, who was sentenced to suffer a penalty of more than 6 years of imprisonment, is disqualified to apply for probation. Offender, who was sentence to suffer reclusion perpetua or death penalty, is not qualified for parole. However, the President can pardon offender even if the penalty imposed upon him is reclusion perpetua or death penalty. a. Mutual exclusive remedies Probation is not a right but a mere privilege, an act of grace and clemency conferred by the State, and may be granted by the court to a deserving defendant. Accordingly, the grant of probation rests solely upon the discretion of the court. It is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused (Almero vs. People, GR No. 188191, March 12, 2014). Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state of time, effort and expenses to jettison an appeal. The law expressly requires that an accused must not have appealed his conviction before he can avail of probation. This outlaws the element of speculation on the part of the accused — to wager on the result of his appeal — that when his conviction is finally affirmed on appeal… he now applies for probation as an “escape hatch” thus rendering nugatory the appellate court's affirmance of his conviction (Almero vs. People, GR No. 188191, March 12, 2014). Aside from the goals of according expediency and liberality to the accused, the rationale for the treatment of appeal and probation as mutually exclusive remedies is that they rest on diametrically opposed legal positions. An accused applying for probation is deemed to have accepted the judgment. The application for probation is an admission of guilt on the part of an accused for the crime which led to the judgment of conviction. This was the reason why the Probation Law was amended: precisely to put a stop to the practice of appealing from judgments of conviction – even if the sentence is probationable – for the purpose of securing an acquittal and applying for the probation only if the accused fails in his bid (Almero vs. People, GR No. 188191, March 12, 2014).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA While accused did not file an appeal before applying for probation, he assailed the validity of the conviction in the guise of a petition supposedly assailing the denial of probation. In so doing, he attempted to circumvent P.D. No. 968, as amended by P.D. 1990, which seeks to make appeal and probation mutually exclusive remedies (Almero vs. People, GR No. 188191, March 12, 2014). b. Non-probationable offense The accused, who was convicted by the lower court of a non-probationable offense (frustrated homicide), but on appeal was found guilty of a probationable offense (attempted homicide), may apply for probation upon remand of the case to the RTC because of the following reasons: (1) The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the statutory provisions; (2) If the accused will not be allowed to apply for probation, he will be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation; (3) While it is true that probation is a mere privilege, the accused has the right to apply for that privilege; (4) It is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to accused: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court (Colinares vs. People, G.R. No. 182748, December 13, 2011). c. Right of possessor of dangerous drugs to apply for probation The rule under Section 24 of RA No. 9165, which disqualifies drug traffickers and pushers for applying for probations, does not extend to possessor of dangerous drugs. In Padua vs. People, G.R. No. 168546, July 23, 2008, it was held that: “The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers, like Padua, are categorically disqualified from availing the law on probation, youthful drug dependents, users and possessors alike, are given the chance to mend their ways.” d. Right of child to apply for probation despite appeal - Section 4 of PD No. 968 provides: “Application for probation must be filed within the period of

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perfecting an appeal and no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.” However, RA No. 9344 has expressly amended Section 4 of PD No. 968 and provides that a child in conflict with the law can apply for probation at any time. Section 42 of RA No. 9344 provides: “The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lie of service of his/her sentence taking into account the best interest to the child. For this purpose, Section 4 of Presidential Degree No. 968, otherwise known as the “Probation Law of 1976”, is hereby amended accordingly.” The phrase “at any time” mentioned in Section 42 means the child in conflict with the law may file application for probation even beyond the period of perfecting an appeal and even if the child has perfected the appeal from the judgment of conviction. SUSPENDED SENTENCE OF CHILD IN CONFLICT WITH THE LAW Persons who have been convicted and are serving sentence at the time of the effectivity of RA No. 9344 (Juvenile Justice and Welfare Act), and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this law. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable law (Section 68 of RA No. 9344; People vs. Monticalvo, G.R. No. 193507, January 30, 2013). While Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already 18 years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. Hence, the child in conflict with the law, who reached 21 years, cannot avail of privilege of suspension of sentence. However, the child in conflict with the law may, after conviction and upon order of the court, be made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities (People vs. Mantalba, G.R. No. 186227, July 20, 2011, Justice Peralta; People vs. Monticalvo, G.R. No. 193507, January 30, 2013).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Under Section 38 of RA No. 9344, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application even if he is already 18 of age or more at that time. However, under Section 40, the sentence shall be suspended until the child reaches the maximum age of 21 years. Hence, once the child in conflict with the law has reached 21 years of age, or over, the application of Sections 38 and 40 is moot and academic. But he even if already over 21 years old at the time of conviction, may still avail of the benefits of being confined in an agricultural camp and other training facilities instead of a regular penal institution in accordance with Section 51 (People vs. Salcedo, GR No. 186523, June 22, 2011, Justice Peralta). UNLAWFUL ARREST AND ARBITRARY DETENTION In unlawful arrest, the private individual or public officer in its private capacity arrests or detains the victim without reasonable ground or legal authority for purpose of delivering him to the proper judicial authority. In arbitrary detention, the public officer, who has authority to make arrest, detains the victim without legal grounds (People vs. Bringas G.R. No. 189093, April 23, 2010) for the purpose of: (1) Delivering him to judicial authority (U.S. us. Gellada, 15 Phil. 120); (2) Conducting criminal investigation (People vs. Oliva, 95 Phil. 962; U.S. vs. Agravante, G.R. No. 3947, January 28, 1908); or (3) Determining if he committed or is committing a crime [U.S. vs. Hawchaw, G.R. No. L-6909, February 20, 1912]. Arbitrary detention is a crime against fundamental law of the law or the Constitution. A public officer, who is vested with the authority to detain or to order the detention of a person accused of a crime, is acting in behalf of the State in arresting or detaining a person. If such public officer detained a person in violation of his constitutional right against unreasonable seizure (or not in accordance with Section 5, Rule 113 of the Revised Rules of Criminal Procedure), the crime committed is “arbitrary detention.” Unlawful arrest is a crime against personal liberty and security. A public officer, who is not vested with the authority to detain or to order the detention of a person (e.g. stenographer, researcher or municipal treasurer), is not acting in behalf of the State in making a warrantless arrest. Such public officer acting in his private capacity (or a private individual) could not violate the Constitution (People vs Marti, G.R. No. 81561, January 18,1991);

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hence, if he arrests or detains a person not in accordance with Section 5, Rule 113 of the Revised Rules of Criminal Procedure, the crime committed is “unlawful arrest”. The essence of this crime is not violation of fundamental law of the law but deprivation of liberty of the victim. USURPATION OF FUNCTION Usurpation of authority is committed by knowingly and falsely representing himself to be an officer, agent or representative of any department or agency of the government or of any foreign government. Usurpation of function is committed by performing any act under pretense of official position pertaining to any person in authority or public officer of the government or any foreign government, or any agency thereof, without being lawfully entitled to do so (Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013). In Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013 - Accused, a mayor issued permits to transport salvaged forest products. According to prosecution, DENR is the only government instrumentality that can issue the permits to transport salvaged forest products. The prosecution asserted that accused usurped the official functions that properly belong to the DENR. Accused chose to exercise the right to protect the environment and to share in this responsibility by exercising his authority as municipal mayor––an act which was executed with the cooperation of non-governmental organizations, stakeholders, and concerned citizens. His acts may be invalid but it does necessarily mean that such mistakes automatically justify his conviction. There is no showing that accused possessed that “criminal mind” when he in his capacity as mayor issued the subject permits. What is clear from the records is that accused, as municipal mayor, intended to regulate and monitor salvaged forest products in order to avert the occurrence of illegal logging in the area. Good faith is a defense in criminal prosecutions for usurpation of official functions. The requirement of permits to transport was accused’s decision alone; it was a result of the collective decision of the participants during the Multi-Sectoral Consultative Assembly. If, indeed, accused intended to usurp the official functions of the DENR, he would not have asked the presence of a DENR official who has the authority and credibility to publicly object

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA against accused’s allegedly intended usurpation. Thus, the presence of DENR official during the Multi-Sectoral Assembly strengthens accused’s claim of good faith. The DENR is not the sole government agency vested with the authority to issue permits relevant to the transportation of salvaged forest products, considering that, pursuant to the general welfare clause, LGUs may also exercise such authority. KNOWINGLY RENDERING UNJUST JUDGEMENT To commit the offense of knowingly rendering an unjust judgment, the offender must be a judge who is adequately shown to have rendered an unjust judgment, not one who merely committed an error of judgment or taken the unpopular side of a controversial point of law. The term knowingly means “sure knowledge, conscious and deliberate intention to do an injustice.” Thus, the complainant must not only prove beyond reasonable doubt that the judgment is patently contrary to law or not supported by the evidence but that it was also made with deliberate intent to perpetrate an injustice. Good faith and the absence of malice, corrupt motives or improper consideration are sufficient defenses that will shield a judge from the charge of rendering an unjust decision. In other words, the judge was motivated by hatred, revenge, greed or some other similar motive in issuing the judgment. Bad faith is, therefore, the ground for liability. The failure of the judge to correctly interpret the law or to properly appreciate the evidence presented does not necessarily render him administratively liable (Re: Verified Complaint for Disbarment of AMA LAnd Inc. against CA Association Justice Bueser et.al., OCA IPI No. 12-204-CA-J, March 11, 2014). USURPATION OF JUDICIAL AUTHORITY Under Article 241 of the Revised Penal Code, the crime of usurpation of judicial authority involves the following elements: (1) that the offender is an officer of the executive branch of the government; and (2) that he assumes judicial powers, or obstructs the execution of any order or decision rendered by any judge within his jurisdiction. These elements were alleged in the information. Mayor Irisari was an officer of the executive branch (Munez vs. Arino, A.M. No. MTJ-94985, February 21, 1995). In usurpation of judicial function, the accused, who is not a judge, attempts to perform an act the authority for which the law has vested only in a judge (Miñoso v. Pamulag, A.M. No. P-

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05-2067, 31 August 2005; Pace v. Leonardo, A.M. No. P-03-1675, 6 August 2003,). A Provincial Adjudicator, who rendered judgment in DARAB Case in the performance of a quasi-judicial function, closely akin to the function of a judge of a court of law, could not be held liable under Article 241 of RPC, therefore, considering that the acts constitutive of usurpation of judicial function were lacking herein (Reyes vs. People, G.R. Nos. 177105-06, August 12, 2010). A clerk of court, who is not an officer of the executive branch, cannot be held liable for usurpation of judicial function. However, a clerk of court, who usurped judicial prerogative of the judge by issuing the arrest of an accused in a criminal case, is administratively liable for grave misconduct (Albior vs. Auguis, A.M. No. P-01-1472, June 26, 2003). MALVERSATION The essential elements common to all acts of malversation under Article 217 of the Revised Penal Code are: (1) That the offender be a public officer; (2) That he had the custody or control of funds or property by reason of the duties of his office; (3) That he had the custody or control of funds or property by reason of the duties of his office; (4) That those funds or property were public funds or property for which he was accountable; and (5) That he appropriated, took, misappropriated or consented, or through abandonment or negligence, permitted another person to take them (Legrama vs. Sandiganbayan, GR No. 178626, June 13, 2012; Justice Peralta). Accountable officer – An accountable public officer is one who has custody or control of public funds or property by reason of the duties of his office. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a school principal of a public high school may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same (Torres vs. People, GR No. 175074, August 31, 2011, Justice Peralta). The municipal mayor initiated the request for obligation of allotments and certified and approved the disbursement vouchers. The municipal accountant obligated the allotments despite lack of prior certification from the budget officer. Municipal treasurer certified to the availability of funds and released the money even without the requisite budget officer’s

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA certification. The signatures of beneficiaries, who supposed to have received the money, were forged. Can the mayor and accountant be held liable for malversation even though they are not accountable officer? Yes. 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. In this case, combined acts of the mayor and accountant, and treasurer, an accountable officer, conspired to defraud the government (People vs. Pajaro, G.R. Nos. 167860-65, June 17, 2008). Intentional and culpable malversation – Malversation may be committed either through a positive act of misappropriation of public funds or property, or passively through negligence. To sustain a charge of malversation, there must either be criminal intent or criminal negligence, and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both aree qually punishable for malversation (Torres vs. People, GR No. 175074, August 31, 2011, Justice Peralta).. Even when the Information charges intentional malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves the mode of commission of the offense. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper (Torres vs. People, GR No. 175074, August 31, 2011, Justice Peralta). Prima facie evidence of malversation - More importantly, in malversation of public funds, the prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated, misappropriated or consented, or through abandonment or negligence, permitted another person to take public property or public funds under his custody. Absent such evidence, the public officer cannot be held criminally liable for malversation. Mere absence of funds is not sufficient proof of conversion;

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neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion must be proved. However, an accountable officer may be convicted of malversation even in the absence of direct proof of misappropriation so long as there is evidence of shortage in his account which he is unable to explain (Legrama vs. Sandiganbayan, GR No. 178626, June 13, 2012; Justice Peralta). Verily, in the crime of malversation of public funds, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he failed to account for the said funds upon demand without offering sufficient explanation why there was a shortage. In fine, petitioner’s failure to present competent and credible evidence that would exculpate her and rebut the prima facie presumption of malversation clearly warranted a verdict of conviction (Legrama vs. Sandiganbayan, GR No. 178626, June 13, 2012; Justice Peralta). PARRICIDE Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; and (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused (People vs. Gamez, GR No. 202847, October 23, 2013). MURDER Murder, the prosecution must prove that: (1) a person was killed; (2) the accused killed him; (3) the killing was attended by any of the qualifying circumstances mentioned in Article 248; and (4) the killing is neither parricide nor infanticide (People vs. Camat, G.R. No. 188612, July 30, 2012 ATTEMPTED MURDER - Accused opened the door of his vehicle and then drew a gun and shot victim once, hitting him just below the left armpit. Victim immediately ran at the back of the car, while accused sped away. Is the accused liable for attempted murder? No. Accused only shot the victim once and did not hit any vital part of the latter’s body. If he intended to kill him, accused could have shot the victim multiple times or even ran him over with the car. When such intent is lacking but wounds are inflicted upon the victim, the crime is not attempted murder but physical injuries only (Pentecoste, Jr. vs. People, G.R. No. 167766, April 7, 2010). EXCESSIVE CHASTISEMENT

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA “X” tied his son to a coconut tree and, there after hit on his right eye and right leg. As a consequence, his son sustained injuries that would heal in one week upon medication. Is “X” liable for slight physical injuries despite the fact that his intention in beating his son is merely to discipline him? Yes. “X” cannot evade criminal culpability by the circumstance that he merely intended to discipline his son (People vs. Sales, G.R. No. 177218, October 3, 2011). ESTAFA ESTAFA THROUGH MISAPPROPRIATION – The elements of estafa under Article 315, par. 1 (b) of the Revised Penal Code are the following: (a) that money, goods or other personal property is received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) there is demand by the offended party to the offender (Tabaniag vs. People, GR No. 165411, June 18, 2009, Justice Peralta; Magtira vs. People, G.R. No. 170964, March 7, 2012). However, demand is not necessary if there is evidence of misappropriation. Misappropriation as an element of the offense of estafa connotes an act of using, or disposing of, another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. Failure to account upon demand for funds or property held in trust without offering any satisfactory explanation for the inability to account is circumstantial evidence of misappropriation. Demand for the return of the thing delivered in trust and the failure of the accused to account are similarly circumstantial evidence that the courts can appreciate (Magtira vs. People, G.R. No. 170964, March 7, 2012). The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one's own use includes not only conversion to one's personal advantage, but also every attempt to dispose of the property of another without right (Tabaniag

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vs. People, GR No. 165411, June 18, 2009, Justice Peralta). X received from A jewelry with obligation to return the same if unsold or deliver the proceeds of sale. In the acknowledgement receipt, X is prohibited from selling jewelry the jewelry on credits or giving it for safekeeping. X transferred the jewelry to Y, a subagent. Y failed to return the jewelry. Is X liable for estafa through conversion? Answer: No. It must be pointed out that the law on agency in our jurisdiction allows the appointment by an agent of a substitute or sub-agent in the absence of an express agreement to the contrary between the agent and the principal. In the case at bar, the appointment of sub-agent was not expressly prohibited by A. Neither does it appear that X was verbally forbidden by A from passing on the jewelry to another person. Thus, it cannot be said that X's act of entrusting the jewelry to Y is characterized by abuse of confidence because such an act was not proscribed and is, in fact, legally sanctioned. Since properties were given by X to Y to achieve the very same end for which they were delivered to her in the first place, there is no conversion since the same were not devoted to a purpose or use different from that agreed upon. Similarly, it cannot be said that X delivered them to Y "without right." Aside from the fact that no condition or limitation was imposed on the mode or manner by which X was to effect the sale, it is also consistent with usual practice for the seller to necessarily part with the valuables in order to find a buyer and allow inspection of the items for sale (Tabaniag vs. People, GR No. 165411, June 18, 2009, Justice Peralta). Can X be held liable for estafa through negligence? Answer: No. In estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in permitting another to take advantage or benefit from the entrusted chattel cannot constitute estafa (Tabaniag vs. People, GR No. 165411, June 18, 2009, Justice Peralta). Can X be held liable for estafa on the basis of conspiracy? Answer: No. If an agent acted in conspiracy with subagent in carrying out the actual misappropriation, then the former would be answerable for the acts of his co-conspirators. However, the mere fact that X failed to return the pieces of jewelry upon demand is not proof of conspiracy, nor is it proof of misappropriation or conversion (Tabaniag vs. People, GR No. 165411, June 18, 2009,

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Justice

Peralta).

ESTFA THROUGH ISSUANCE OF BOUNCING CHECK - The essential elements of estafa through bouncing check: (1) the accused shall defraud another by issuing or postdating check in payment of an obligation contracted at the time the check is issued; (2) lack or insufficiency of funds to cover the check; (3) check was issued or postdated prior to or simultaneously with the parting of money or property by the payee; and (4) damage to the payee thereof. It is the criminal fraud or deceit in the issuance of a check that is punishable, not the non-payment of a debt. Prima facie evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three days from receipt of the notice of dishonor. To be guilty of estafa the accused must have used the check in order to defraud the complainant. What the law punishes is the fraud or deceit, not the mere issuance of the worthless check. Accused could not be held guilty of estafa simply because he had issued the check used to defraud complainant. The proof of guilt must still clearly show that it had been accused as the drawer who had defrauded complainant by means of the check. Complainant admitted that it was another person who received the rice from him and who delivered the bearer check to him (People vs. Reyes, GR No. 157943, September 04, 2013). In order to constitute estafa under this statutory provision, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of the defraudation. This means that the offender must be able to obtain money or property from the offended party by reason of the issuance of the check, whether dated or postdated. In other words, the Prosecution must show that the person to whom the check was delivered would not have parted with his money or property were it not for the issuance of the check by the offender (People vs. Reyes, GR No. 157943, September 04, 2013). ABUSE OF CONFIDENCE AND DECEIT The offense of estafa, in general, is committed either by (a) abuse of confidence or (b) means of deceit. The acts constituting estafa committed with abuse of confidence are enumerated in item (1) of Article 315 of the Revised Penal Code, as amended; item (2) of Article 315 enumerates estafa committed by means of deceit. Deceit is not an essential requisite of estafa by abuse of confidence; the breach of confidence takes the place of fraud or deceit, which is a usual element in the

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other estafas (Brokmann vs. People, G.R. No. 199150, February 6, 2012). ESTAFA AND OTHER DECEIT What is the difference between estafa through false representation and other deceit? The common elements of these two crimes are: (1) false pretense, fraudulent act or pretense must be made or executed prior to or simultaneously with the commission of the fraud; and (2) as a result, the offended party suffered damage or prejudice. It is essential that such false statement or fraudulent representation constitutes the very cause or the only motive for the private complainant to part with her property. In estafa under Article 315, the false representation is committed by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits. Following the principle of ejusdem generis, other deceit as a means to commit estafa must be similar to pretending to possess power, imaginary transaction etc. If the deceit is not similar to pretending to possess power or imaginary transaction, the crime committed is other deceit under Article 318. In Guinhawa vs. People, G.R. No. 162822 August 25, 2005 () Fraudulent representation of the seller that the van to be sold is brand new constitutes other deceit under Article 318. On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19, 1069, false representation that accused has a palay by reason of which the victim parted his money in consideration of the palay constitutes estafa under Article 315. Unlike in the Guinhawa case, the transaction in Rubaton case is imaginary. Authority to sell - Primelink entered into joint venture agreement with the owner of a certain land to develop a club. Accused represent to complainant on October 10, 1996 Primelink will finished the Club by July 1998. Because of this representation complainant purchased a Club share. However, the Club was not completed because the owner of the property mortgaged it in violation of their agreement. The projected was aborted. Accused is not liable for estafa for such representation. False pretense of power to develop the Club resulting in damage to buyer is estafa. However, the law requires that the false pretense be used “prior to or simultaneous with the execution of the fraud, and that is October 10, 1996. In this case, there is no showing that Primelink possessed no power (capability) to develop the Club and that accused knew that the Club was a bogus project. Primelink is a legitimate developer. In fact, it has already

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA released money for the initial funding of the project. The project was only aborted because of the problem with the owner of the land, which occurred after October 10, 1996. However, the false pretense made by accused that Primelink was authorized to sell membership shares is estafa. False pretense of qualification (to sell securities) is within the contemplation of the provision on estafa (Lopez vs. People, GR NO. 199294, July 31, 2013) SUBSEQUENT FRAUD - Is the fraudulent act committed by the accused subsequent to the time the victim parted his money constitutes estafa? In the prosecution for this kind of estafa, it is indispensable that the false pretense or fraudulent act is committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for prosecution for estafa (Ambito, vs. People, G. R. No. 127327, Feb. 13, 2009). REPRESENTATION OF FUTURE PROFIT - When will a representation of a future profits or income be considered as an actionable fraud or estafa? Where one states that the future profits or income of an enterprise shall be a certain sum, but he actually knows that there will be none, or that they will be substantially less than he represents, the statements constitute an actionable fraud where the hearer believes him and relies on the statement to his injury. In the present case, it is abundantly clear that the profits which Elvira and her co-conspirators promised to Elizabeth would not be realized (Joson vs. People, G. R. No. 178836, July 23, 2008). OTHER DECEIT- Other deceit under Article 316 (a) of RPC is committed by any person who, knowing that the real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. The law was taken from Article 455 of the Spanish Penal Code. However, the words "como libre" in the Spanish Penal Code, which means "free from encumbrance" do not appear in the English text of RPC, nonetheless, the same are deemed incorporated in the RPC. The gravamen of the crime is the disposition of legally encumbered real property by the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must

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make an express representation in deed of conveyance that the property or disposed of is free from encumbrance (Naya vs. Abing, G.R. 146770, February 27, 2003, ).

the sold any No.

FALSIFICATION Commercial document Commercial documents are, in general, documents or instruments which are “used by merchants or businessmen to promote or facilitate trade or credit transactions.” Promissory notes facilitate credit transactions while a check is a means of payment used in business in lieu of money for convenience in business transactions. A cashier’s check necessarily facilitates bank transactions for it allows the person whose name and signature appear thereon to encash the check and withdraw the amount indicated therein (Tanenggee vs. People, GR No. 179448, June 26, 2013). Is intent to cause damage an element of falsification of public or official document? No. In falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed (Regidor, Jr., vs. People, G. R. Nos. 166086-92 Feb. 13, 2009). What is the crime committed if private document is falsified as a necessary means to commit or conceal estafa or malversation? Under the doctrine of common element, an element used to complete one crime cannot be legally re-used to complete the requisites of a subsequent crime (Regalado). The common element of estafa or malversation and falsification is damage to the victim. Thus, falsification of private document and estafa cannot co-exist. The use of damage as an element in falsification precludes the re-use thereof to complete the elements of estafa, and vice versa. Falsification - If the offender committed falsification of private document as a means to commit estafa, he is liable for falsification only. Falsification absorbs estafa. (See: U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917). Estafa or malversation– If a person falsified a private document to conceal malversation or estafa, the crime is malversation or estafa only. Falsification of private document is not committed because: (a) the use of damage as an

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA element in estafa precludes the re-use thereof to complete the elements of falsification; and (b) the damage to third person is not caused by the falsity in the document but by the commission of estafa(See: People vs. Beng, 40 O.G. 1913). Note: If falsification of private document was used as a means to commit estafa, the former was committed ahead of the latter; hence, falsification absorbs the element of damage of estafa. If falsification of private document was used as a means to conceal estafa, the latter was committed ahead of the former; hence, estafa absorbs the element of damage of falsification. What is the crime committed if public, official, or commercial document is falsified as a necessary means to commit or conceal estafa or malversation? Complex crime - Since damage to third person is not an element of falsification of public, official or commercial document, it consummates the very moment the offender falsifies the document. If the offender uses the falsified document to defraud a third person or the government, estafa or malversation is also committed. Estafa or malversation consummates the moment the third person or government suffers damages. Since falsification is committed as a necessary means to commit estafa or malversation, complex crime under Article 48 is committed. (See: Ambito, vs. People, G. R. No. 127327, Feb. 13, 2009; People vs. Barbas, G.R. No. 41265, July 27, 1934). Separate crimes - If falsification of public, official or commercial document is used as a means to conceal estafa or malversation, two distinct crimes of estafa (or malversation) and falsification are committed. There is nocomplex crime since falsification is not a necessary means to commit estafa or malversation since the latter was already consummated when the former was committed (See: People vs. Monteverde, G.R. No. 139610, August 12, 2002). When the offender commits on a public, official or commercial document any of the acts of falsification as a necessary means to commit another crime like estafa, theft or malversation, the two crimes form a complex crime. The falsification of a public, official, or commercial document may be a means of committing estafa, because before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated, damage or intent to cause damage not being an element of the crime of falsification of public, official or commercial document. In other words, the crime of falsification has

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already existed. Actually utilizing that falsified public, official or commercial document to defraud another is estafa. But the damage is caused by the commission of estafa, not by the falsification of the document. Therefore, the falsification of the public, official or commercial document is only a necessary means to commit estafa. Taken in its entirety, the proven facts show that petitioner could not have withdrawn the money without falsifying the questioned documents. The falsification was, therefore, a necessary means to commit estafa, and falsification was already consummated even before the falsified documents were used to defraud the bank. The crime committed is complex crime of estafa through falsification of commercial document (Tanenggee vs. People, GR No. 179448, June 26, 2013). In Patula vs. People, G.R. No. 164457, April 11, 2012 - According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. Obviously, she committed the falsification in order to conceal her misappropriation or conversion. Considering that the falsification was not an offense separate and distinct from the estafa charged against her, the Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her. THEFT QUALIFIED THEFT - The elements of the crime of theft are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft becomes qualified "if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is a motor vehicle, mail matter or large cattle, or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA civil disturbance (People vs. Bayon, GR No. 168627, July 02, 2010, Justice Peralta). ABUSE OF CONFIDENCE - To warrant the conviction and, hence, imposition of the penalty for qualified theft, there must be an allegation in the information and proof that there existed between the offended party and the accused such high degree of confidence]or that the stolen goods have been entrusted to the custody or vigilance of the accused. In other words, where the accused had never been vested physical access to, or material possession of, the stolen goods, it may not be said that he or she exploited such access or material possession thereby committing such grave abuse of confidence in taking the property (Viray vs. People, GR No. 205180, November 11, 2013). In Zapanta vs. People, G.R. No. 170863, March 20, 2013 - Accused betrayed the trust and confidence reposed on him when he, as project manager, repeatedly took construction materials from the project site, without the authority and consent of Engr. Marigondon, the owner of the construction materials. He is liable for qualified theft. Taking committed by accused cannot be qualified by the breaking of the door, as it was not alleged in the Information. Moreover, the same breaking of the door does not constitute the qualifying element of grave abuse of confidence. The very fact that accused “forced open” the main door because he was denied access to complainant’s house negates the presence of such confidence in him by private complainant. Without ready access to the interior of the house where the properties were taken, it cannot be said that complaint had a “firm trust” on accused and that the same trust facilitated taking of the personal properties (Viray vs. People, GR No. 205180, November 11, 2013). If the subject matter of a crime against property was money, identity of the offended party is material and necessary for the proper identification of the offense charged. Since money is generic and has no earmarks that could properly identify it, the only way that it (money) could be described and identified in a complaint is by connecting it to the offended party or the individual who was robbed as its owner or possessor. Thus, the erroneous designation of the offended party would also be material, as the subject matter of the offense could no longer be described with such particularity as to properly identify the offense charged (Senador vs. People, GR No. 201620, March 06, 2013).

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If the subject matter of a crime against property is specific or one described with such particularity as to properly identify the offense charged, then an erroneous designation of the offended party is not material and would not result in the violation of the accused’s constitutional right to be informed of the nature and cause of the accusation against her. Such error would not result in the acquittal of the accused (Senador vs. People, GR No. 201620, March 06, 2013). Accused asserted that the person named as the offended party in the Information is not the same person who made the demand and filed the complaint. According to accused, the private complainant in the Information went by the name “Cynthia Jaime,” whereas, during trial, the private complainant turned out to be “Rita Jaime.” Applying the Uba principle, the case should be dismissed. Is the argument tenable? Answer: No. The principle in People vs. Uba, 106 Phil. 332 is not applicable. In Uba case, the appellant was charged with oral defamation, a crime against honor, wherein the identity of the person against whom the defamatory words were directed is a material element. Thus, an erroneous designation of the person injured is material. On the contrary, in the instant case, accused was charged with estafa, a crime against property that does not absolutely require as indispensable the proper designation of the name of the offended party. Rather, what is absolutely necessary is the correct identification of the criminal act charged in the information. Thus, in case of an error in the designation of the offended party in crimes against property, Rule 110, Sec. 12 of the Rules of Court mandates the correction of the information, not its dismissal. In this case, the subject matter of the offense does not refer to money or any other generic property. Instead, the information specified the subject of the offense as “various kinds of jewelry valued in the total amount of P705,685.00.” Thus, The error in the designation of the offended party in the information is immaterial and did not violate accused’s constitutional right to be informed of the nature and cause of the accusation against her. THEFT THROUGH MISAPPROPRIATION - Misappropriation of personal property in possession of the accused may constitute estafa or theft depending upon the nature of possession. If his possession of the property is physical or de facto, misappropriation thereof is

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA constitutive of theft. If the possession is juridical or legal, misappropriation thereof is estafa through misappropriation. A travelling sales agent, who failed to return to his principal the proceeds of goods he was commissioned or authorized to sell, is liable for estafa because his possession is juridical. Under the Civil Code Article 1914 of the Civil Code, an agent can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Guzman v. Court of Appeals, 99 Phil. 703). On the other hand, branch manager of the company, who misappropriate payments from customers that he collected and accepted, is liable for qualified theft. Because of this employer-employee relationship, he cannot be considered an agent of the company and is not covered by the Civil Code provisions on agency. Money received by an employee in behalf of his employer is considered to be only in the material possession of the employee(People vs. Mirto, G.R. No. 193479, October 19, 2011). The receiving teller of a bank, who misappropriated the money received by him for the bank, is liable for qualified theft. The possession of the teller is the possession of the bank. Payment by third persons to the teller is payment to the bank itself. The teller has no independent right or title to retain or possess the same as against the bank (People v. Locson, G.R. No. L-35681, October 18, 1932). In one case, a corporate officer received the property to be utilized in the fabrication of bending machines in trust from the corporation and he has absolute option on how to use them without the participation of the corporation. Upon demand, the officer failed to account the property. Since the corporate officer received the property in trust with absolute option on how to use them without the participation of the corporation, he acquired not only physical possession but also juridical possession over the equipment. He is liable for estafa through misappropriation (Aigle vs. People, G.R. No. 174181, June 27, 2012). Driver of jeepney under boundary arrangement, who did not return the vehicle to it’s owner, is liable for carnapping.In People v. Isaac G.R. No. L7561, April 30, 1955, the rules prohibits motor vehicle operator from allowing the use and operation of his equipment by another person under a fixed rental basis. In the eye of the law the driver was only an

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employee of the owner rather than a lessee. For being an employee, his possession of the jeepney is physical, and misappropriation thereof is qualified theft. In People vs. Bustinera, G. R. No. 148233, June 8, 2004, the Supreme Court affirmed the principle in Isaac case, but found the accused guilty of carnapping in view of the passage of RA No. 6539(Anti-Carnapping Act). THEFT OF INTANGIBLE PROPERTY - The term "personal property" in the Revised Penal Code should be interpreted in the context of the Civil Code. Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law. Thus, the business of providing telecommunication and the telephone service is a personal property (Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009,). The word "take" in the RPC includes controlling the destination of the property stolen to deprive the owner of the property, such as the use of a meter tampering, use of a device to fraudulently obtain gas, and the use of a jumper to divert electricity. Appropriation of forces of nature which are brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature, wrongfully redirecting such forces of nature from such apparatus, or using any device to fraudulently obtain such forces of nature (Laurel vs. Abrogar). A "phreaker" is one who engages in the act of manipulating phones and illegally markets telephone services. Phreaking includes the act of engaging in International Simple Resale (ISR) or the unauthorized routing and completing of international long distance calls using lines, cables, antennae, and/or air wave frequency and connecting these calls directly to the local or domestic exchange facilities of the country where destined (Laurel vs. Abrogar, G.R. No. 155076, February 27, 2006 and January 13, 2009). Can PLDT validly claim that the “long distance calls” are its properties stolen by the phreaker? No. “International long distance calls” take the form of electrical energy. It cannot be said that such international long distance calls were personal properties belonging to PLDT since the latter could not have acquired ownership over such calls. PLDT merely encodes, augments, enhances, decodes and transmits said calls using its complex

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA communications infrastructure and facilities. PLDT not being the owner of said telephone calls, then it could not validly claim that such telephone calls were taken without its consent (Laurel vs. Abrogar). Telephone calls belong to the persons making the calls. Can phreaker be held criminally liable for engaging in ISR involving the telephone facilities of PLDT? Yes. Phreaker can be held liable for access device fraud under RA No. 8484 and theft under the Revised Penal Code.PLDT’s business of providing telecommunication or telephone service is personal property which can be the object of theft. While telephone calls are not properties belonging to PLDT that can be stolen, it is the use of these communications facilities without the consent of PLDT that constitutes the crime of theft, which is the unlawful taking of the telephone services and business.The act of conducting ISR operations by illegally connecting various equipment or apparatus to PLDT’s telephone system, through which petitioner is able to resell or re-route international long distance calls using respondent PLDT’s facilities constitutes acts of subtraction (taking)penalized under the said article(Laurel vs. Abrogar). THEFT OF BULKY GOODS - Is the ability of the accused to freely dispose of bulky goods stolen from the owner determinative as to the consummation of theft? No. In Valenzuela vs. People, G. R. No. 160188, June 21, 2007, the Supreme Court En Banc expressly abandoned the principle in Diño case. It was held that: The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latter’s consent. While the Diño dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. Thus, theft cannot have a frustrated stage. Theft can only be attempted or consummated (Valenzuela vs.

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People, G. R. No. 160188, June 21, 2007, En Banc). THEFT OF CHECK - In Miranda vs. People, G.R. No. 176298, January 25, 2012 - Petitioner was entrusted with checks payable to complainant by virtue of her position as accountant and bookkeeper. She deposited the said checks to the joint account maintained by complainant, then withdrew a total of P797,187.85 from said joint account using the pre-signed checks, with her as the payee. Petitioner argued that full ownership of the thing stolen needed to be established first before she could be convicted of qualified theft. Held: The subject of the crime of theft is any personal property belonging to another. Hence, as long as the property taken does not belong to the accused, who has a valid claim thereover, it is immaterial whether said offender stole it from the owner, a mere possessor, or even a thief of the property. ROBBERY Robbery with homicide exists when a homicide is committed either by reason, or on occasion, of the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property belongs to another; (3) the taking is animo lucrandi or with intent to gain; and (4) on the occasion or by reason of the robbery, the crime of homicide, as used in the generic sense, was committed. a. Intent to rob - A conviction needs certainty that the robbery is the central purpose and objective of the malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life, but the killing may occur before, during or after the robbery (People vs. Ladiana, GR No. 174660, May 30, 2011, Justice Peralta). Assuming that robbery was indeed committed, the prosecution must establish with certitude that the killing was a mere incident to the robbery, the latter being the perpetrator’s main purpose and objective. It is not enough to suppose that the purpose of the author of the homicide was to rob; a mere presumption of such fact is not sufficient. Stated in a different manner, a conviction requires certitude that the robbery is the main purpose, and objective of the malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the taking of human life but the killing may occur before, during or after the robbery. What is crucial for a conviction for the crime of

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA robbery with homicide is for the prosecution to firmly establish the offender’s intent to take personal property before the killing, regardless of the time when the homicide is actually carried out (People vs. Gatarin, GR NO. 198022, April 07, 2014). b. Intent to kill and rob However, the law does not require that the sole motive of the malefactor is robbery and commits homicide by reason or on the occasion thereof. In one case, it was ruled that even if the malefactor intends to kill and rob another, it does not preclude his conviction for the special complex crime of robbery with homicide. The fact that the intent of the felons was tempered with a desire also to avenge grievances against the victim killed, does not negate the conviction of the accused and punishment for robbery with homicide (People vs. Daniela, G.R. No. 139230, April 24, 2003). c. Robbing, killing and raping - A conviction for robbery with homicide is proper even if the homicide is committed before, during or after the commission of the robbery. The homicide may be committed by the actor at the spur of the moment or by mere accident. Even if two or more persons are killed and a woman is raped and physical injuries are inflicted on another, on the occasion or by reason of robbery, there is only one special complex crime of robbery with homicide. What is primordial is the result obtained without reference or distinction as to the circumstances, cause, modes or persons intervening in the commission of the crime (People vs. Daniela, G.R. No. 139230, April 24, 2003). d. One of the robbers is the victim of homicide - It is immaterial that the death would supervene by mere accident; or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed or that aside from the homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers; the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with homicide. The word “homicide” is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide (People vs. Laog, G.R. No. 178321, October 5, 2011; (People vs. Ebet, GR No. 181635, November 15, 2010,

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Justice Peralta; People vs. De Leon, GR No. 179943, June 26, 2009, Justice Peralta; People vs. Diu, GR No. 201449, April 03, 2013). In People vs. Concepcion, G.R. No. 200922, July 18, 2012 - Accused snatched victim’s shoulder bag which was hanging on her left shoulder. No violence, intimidation or force was used in snatching her shoulder bag. Given the facts, the snatching of shoulder bag constitutes the crime of theft, not robbery. Accused’s coconspirator, who was driving the motorcycle, died because he lost control of the motorcycle and crashed in front of a taxi. Since accused as passenger in the motorcycle, did not perform or execute any act that caused the death of his companion, he cannot be held liable for homicide. e. Homicide through reckless imprudence - In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery must precede the taking of human life. The homicide may take place before, during or after the robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime that has to be taken into consideration. There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery and homicide, must be consummated (People vs. Ebet, GR No. 181635, November 15, 2010, Justice Peralta; People vs. De Leon, GR No. 179943, June 26, 2009, Justice Peralta; People vs. Diu, GR No. 201449, April 03, 2013). f. Failure to present the stolen property - Intent to rob is an internal act but may be inferred from proof of violent unlawful taking of personal property. When the fact of taking has been established beyond reasonable doubt, conviction of the accused is justified even if the property subject of the robbery is not presented in court. After all, the property stolen may have been abandoned or thrown away and destroyed by the robber or recovered by the owner. The prosecution is not burdened to prove the actual value of the property stolen or amount stolen from the victim. Whether the robber knew the actual amount in the possession of the victim is of no moment because the motive for robbery can exist regardless of the exact amount or value involved (People vs. Ebet, GR No. 181635, November 15, 2010, Justice Peralta; People vs. De Leon, GR No. 179943, June

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA 26, 2009, Justice Peralta; People vs. Diu, GR No. 201449, April 03, 2013). g. Direct connection between robbery and homicide - Essential for conviction of robbery with homicide is proof of a direct relation, an intimate connection between the robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes were committed at the same time (People vs. Buyagan, G.R. No. 187733, February 8, 2012). Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it was committed to (a) facilitate the robbery or the escape of the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate witnesses in the commission of the crime. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery (People vs. Ebet, GR No. 181635, November 15, 2010, Justice Peralta). h. Claim of ownership - The 10th floor unit of a building is owned by a corporation and served as the family residence prior to the death of the parents of X and A. The unit, including the personal properties inside, is the subject of estate proceedings pending in another court and is, therefore, involved in the disputed claims among the siblings. X armed with a Board Resolution authorizing him to break open the door lock system of 10th floor unit of a building and to install a new door lock system went up to the subject unit to implement said resolution. According to A, X brought out from the unit her personal belongings. Is X liable for robbery? Answer: No. X took property openly and avowedly under that claim of ownership. The fact that these properties were taken under claim of ownership negates the element of intent to gain. One who takes the property openly and avowedly under claim of title offered in good faith is not guilty of robbery even though the claim of ownership is untenable. X should not be held liable for the alleged unlawful act absent a felonious intent. “Actus non facit reum, nisi mens sit rea. A crime is not committed if the mind of the person performing the act complained of is innocent” (Sy vs. Gutierrez, GR No. 171579, November 14, 2012, Justice Peralta). i. Robbery with rape - To be convicted of robbery with rape, the following elements must concur: (1) the taking of personal property is committed with violence or intimidation against

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persons; (2) the property taken belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi; and (4) the robbery is accompanied by rape (People vs. Evangelio, GR No. 181902, August 31, 2011, Justice Peralta). The following circumstantial evidence presented by the prosecution, when analyzed and taken together, lead to the inescapable conclusion that the accused raped AAA: first, while two of the robbers were stealing, appellant and one of the robbers brought AAA inside the comfort room; second, inside the comfort room, AAA was stripped off her clothes and her panty; third, when AAA resisted and struggled, appellant and the other robber banged her head against the wall, causing her to lose consciousness; fourth, when she regained consciousness, the culprits were already gone and she saw her shorts and panty strewn at her side; and fifth, she suffered pain in her knees, head, stomach and, most of all, in her vagina which was then bleeding (People vs. Evangelio, GR No. 181902, August 31, 2011, Justice Peralta). UNINHABITED HOUSE In Marquez vs. People, G.R. No. 181138, December 3, 2012 - The records show that the store alleged to have been robbed by petitioners is not an inhabited house, public building or building dedicated to religious worship and their dependencies under Article 299 and as defined under Article 301. From Valderosa’s testimony, it can be deduced that the establishment allegedly robbed was a store not used as a dwelling. In fact, after the robbery took place, there was a need to inform Valderosa of the same as she was obviously not residing in the store. “If the store was not actually occupied at the time of the robbery and was not used as a dwelling, since the owner lived in a separate house, the robbery committed therein is punished under Article 302. Neither was the place where the store is located owned by the government. It was actually just a stall rented by Valderosa from a private person. Hence, the applicable provision in this case is Article 302 and not Article 299 of the RPC. CARNAPPING - Under the AntiCarnapping Act, the penalty of reclusion perpetua to death shall be imposed when the owner or driver of the vehicle is killed in the course of the commission of the carnapping or on the occasion thereof. To prove the special complex crime of carnapping with homicide, there must be proof not only of the essential elements of carnapping, but also that it was the original criminal design of the culprit and the killing was perpetrated "in the course of the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA commission of the carnapping or on the occasion thereof" (People vs. Nocum et. Al., G.R. No. 179041, April 1, 2013). Under RA 9346, persons convicted of offenses punishable with reclusion perpetua or whose sentences will be reduced to reclusion perpetua by reason of this law, shall not be eligible for parole. THREATS What is the difference among grave threats, light threats and other light threats? In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition (Calauag vs. People, (G. R. No. 171511, March 4, 2009). BLACKMAIL Blackmailing may constitute: (1) Light threats under Article 283; (2) Threatening to publish, or offering to prevent the publication of, a libel for compensation under Article 356; and (3) robbery with intimidation against person. Example: X, DENR officer, threatened to confiscate the hot logs from complainant and prosecute it for illegal logging unless the latter will give her P100,000. Complainant gave X the amount demanded. The crime committed is robbery with intimidation (extortion). In robbery with intimidation of persons, the intimidation consists in causing or creating fear in the mind of a person or in bringing in a sense of mental distress in view of a risk or evil that may be impending, real or imagined. Such fear of injury to person or property must continue to operate in the mind of the victim at the time of the delivery of the money. In this case, the P100,000.00 "grease money" was taken by X from complainant through intimidation. By using her position as the DENR officer, X succeeded in coercing the complainants to choose between two alternatives: to part with their money, or suffer the burden and humiliation of prosecution and confiscation of the logs (Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009). ARSON Is it necessary for the prosecution to prove wrongful intent to burn on the part of the accused to establish arson? No. Although intent may be an ingredient of the crime of arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural

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consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent. If there is an eyewitness to the crime of arson, he can give in detail the acts of the accused. When this is done the only substantial issue is the credibility of the witness (People vs. De Leon, G. R. No. 180762, March 4, 2009). What is the crime committed if the offender burned the building and there is person who died? In the classification of crimes committed by fire involving the killing of the victim, attention must be given to the intention of the author. Main objective of the offender determines the kind of crime committed. (a) Intent to burn – If the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson (qualified by dead of the victim), and the resulting homicide is absorbed. (b) Intent to kill – If the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only. When the Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life. Murder qualified by means of fire absorbs the crime of arson since the latter is an inherent means to commit the former (People vs. Baluntong, G.R. No. 182061, March 15, 2010; People vs. Cedenio, G.R. No. 93485, June 27, 1994) (c) Intent to conceal – If the objective is to kill, and in fact the offender has already done so, and arson is resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes of either homicide or murder, and arson. Article 320 of RPC contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. Section 3 of PD No. 1613, on the other hand, currently governs simple arson. P.D. No. 1613 contemplates the malicious burning of public and private structures, regardless of size, not included in Article 320 of the RPC, as amended by Republic Act No. 7659. This law punishes simple arson with a lesser penalty because the acts that constitute it have a lesser degree of perversity and viciousness. Simple arson contemplates crimes with less significant social, economic, political, and national security implications than destructive arson (People vs. Macabando,

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA GR No. 188708, July 31, 2013). Burning of inhabited house or dwelling is simple arson under Section 3 of P.D. No. 1613, and not destructive arson under RPC. Burning personal property is also simple arson under Section 1 of PD No. 1613. The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson (People vs. Macabando, GR No. 188708, July 31, 2013). The Information alleged that the appellant set fire to his own house, and that the fire spread to other inhabited houses. These allegations were established by evidence. The accused testified that his burnt two-story house was used as a residence. That the appellant’s act affected many families will not convert the crime to destructive arson, since the appellant’s act does not appear to be heinous or represents a greater degree of perversity and viciousness when compared to those acts punished under Article 320 of the RPC. The established evidence only showed that the appellant intended to burn his own house, but the conflagration spread to the neighboring houses (People vs. Macabando, GR No. 188708, July 31, 2013). Note: Setting fire to his own property under circumstances which expose to danger the life or property of another is arson under Section 1 of PD No. 1613. KIDNAPPING As for the crime of kidnapping, the following elements, as provided in Article 267 of the Revised Penal Code, must be proven: (a) a person has been deprived of his liberty, (b) the offender is a private individual, and (c) the detention is unlawful. (People vs. Jovel, G.R. No. 189820. October 10, 2012).

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The crime has the following elements: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping is illegal; and (4) in the commission of the offense, any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female or a public official (People vs. Jacalney, GR No. 168552, October 03, 2011, Justice Peralta). The essence of the crime of kidnapping is the actual deprivation of the victim's liberty, coupled with the intent of the accused to effect it. It includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time. It involves a situation where the victim cannot go out of the place of confinement or detention, or is restricted or impeded in his liberty to move (People vs. Jacalney, GR No. 168552, October 03, 2011, Justice Peralta). X dragged A, a minor, to his house after the latter refused to go with him. Upon reaching the house, X tied her hands. When A pleaded that she be allowed to go home, he refused. After more or less one hour, X released A and instructed her on how she could go home. What is the crime committed? Answer: The crime committed is kidnapping and serious illegal detention. When X tied the hands of A, the former's intention to deprive the latter of her liberty has been clearly shown. For there to be kidnapping, it is enough that the victim is restrained from going home. Because of her tender age, and because she did not know her way back home, she was then and there deprived of her liberty. This is irrespective of the length of time that she stayed in such a situation. If the victim is a minor, the duration of his detention is immaterial (People vs. Jacalney, GR No. 168552, October 03, 2011, Justice Peralta). X seized A, 9 years of age, him by twisting his right arm, pointed a knife at him. X brought A to a in a place strange and unfamiliar to him. Because of his tender age, he did not know the way back home. X called victim’s mother to inform her that the child is in his custody and of threatening her that she will no longer see her son if she failed to show his wife to him. In a case for kidnapping and serious illegal detention, X argued s free to go home if he

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA wanted to because he was not confined, detained or deprived of his liberty. Is the argument tenable? Answer: No. For kidnapping to exist, it is not necessary that the offender kept the victim in an enclosure or treated him harshly. Where the victim in a kidnapping case is a minor, it becomes even more irrelevant whether the offender forcibly restrained the victim. Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the place of detention, would still amount to deprivation of liberty. For under such a situation, the child’s freedom remains at the mercy and control of the abductor (People vs. Baluya, GR No. 181822, April 13, 2011, Justice Peralta). In this case, victim, a minor, was not locked up. However, she was seized and taken from her house through force and dragged to the mountain. Since then, she was restrained of her liberty by and kept under the control of accused. She was prevented from going back home for a period of about six days. Accused is guilty of kidnapping and illegally detaining victim even if she was not lock-up. Under the Spanish Penal Code, the modes of committing illegal detention is "Secuestrare" and "Encerrare". "Secuestrare" means sequestration. To sequester is to separate for a special purpose, remove or set apart, withdraw from circulation. It also means to lock-up or imprison. "Encerrare" is a broader concept than secuestrare. Encerrare includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time (People vs. Baldago, G.R. No. 128106-07, January 24, 2003). RAPE It is commonly denominated as “organ rape” or “penile rape” and must be attended by any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1. On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1, commits this kind of rape by inserting his penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. It is also called “instrument or object rape”, also “genderfree rape” (People vs. Soria, G.R. No. I 79031, November 14, 2012). MENTAL RETARDATION - In rape, the phrase "deprived of reason" refers to mental abnormality, deficiency or

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retardation, which includes (a) idiot (equivalent to two-year old child); (b) imbecile (seven-year old child); (c) moron or feebleminded (twelve-year old child) and (d) borderline intelligence. A person is guilty of rape when he had sexual intercourse with a female who was suffering from a "borderline mental deficiency (People vs. Butiong, G.R. No. 168932, October 19, 2011; G.R. No. 140209, December 27, 2002, People vs. Dalandas,) Intimidation - Mental retardation was not alleged in the information. However, the accused can be convicted of with rape though intimidation alleged in the Information. Having sex with a mentally retarded person even with consent constitutes rape through intimidation (People vs. Balatazo, G.R. No. 118027, January 29, 2004). Demented person The term demented refers to a person who has dementia, which is a condition of deteriorated mentality, characterized by marked decline from the individual’s former intellectual level and often by emotional apathy, madness, or insanity. On the other hand, the phrase deprived of reason includes those suffering from mental abnormality, deficiency, or retardation. Thus, a mental retardate can be properly classified as a person who is “deprived of reason,” and not one who is “demented.” Accused was charged in the Information with rape of a demented person with a mental age of 7 years old. Evidence however shows that the victim is not demented but mentally retarded. The mistake will not exonerate accused. His rights to be informed of the nature and cause of the accusation against him were violated. The allegation that the victim is a person with a mental age of 7 years old is sufficient to inform accused of the nature of the charges against him. Carnal knowledge of a woman who is a mental retardate is rape (People vs. Caoile, GR No. 203041, June 05, 2013). Accused was charged in the Information with rape of a demented person with mental capacity below 18 years old. Evidence however shows that the victim is not demented but mentally retarded. Mistake in the information will not exonerate the accused he failed to raise this as an objection, and the particular facts stated in the Information were protestation sufficient to inform him of the nature of the charge against him (People vs. Ventura, Sr. GR. No. 205230, March 12, 2014).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Deafmute - The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman was considered rape. But a deafmute is not necessarily deprived of reason. These circumstances must be proven. Intercourse with a deafmute is not rape of a woman deprived of reason, in the absence of proof that she is an imbecile (People vs. Caoile, GR No. 203041, June 05, 2013). STATUTORY RAPE - In statutory rape, what the law punishes is carnal knowledge of a woman below 12 years of age. Thus, the only subject of inquiry is the age of the woman and whether carnal knowledge took place. The law presumes that the victim does not and cannot have a will of her own on account of her tender years (People vs. Dollano, Jr., GR No. 188851, October 19, 2011, Justice Peralta). Qualifying circumstance of mental disability - The mere fact that the rape victim is a mental retardate does not automatically merit the appreciation of qualifying circumstance. Under Article 266B (10) of RPC, knowledge by the offender of the mental disability, emotional disorder, or physical handicap at the time of the commission of the rape is the qualifying circumstance. As such this circumstance must be formally alleged in the information and duly proved by the prosecution (People vs. Obogne, GR No. 199740, March 24, 2014). RPC punishes the rape of a mentally disabled person regardless of the perpetrator’s awareness of his victim’s mental condition. However, the perpetrator’s knowledge of the victim’s mental disability, at the time he committed the rape, qualifies the crime (People vs. Caoile, GR No. 203041, June 05, 2013). UNTENABLE DEFENSE - In crimes against chastity, the medical examination of the victim is not an indispensable element for the successful prosecution of the crime as her testimony alone, if credible, is sufficient to convict the accused thereof (People vs. Ortega, G.R. No. 186235, January 25, 2012). In Sison vs. People, G.R. No. 187229, February 22, 2012 -While petitioner was portraying AAA as a prostitute, the latter cried. AAA's crying shows how she might have felt after being raped by the petitioner and yet be accused of a woman of loose morals. The victim's moral character in rape is immaterial where

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it is shown that intimidation was used for the victim to have sex with the accused. Time and again, we have taken into consideration how rapists are not deterred by the presence of people nearby, such as the members of their own family inside the same room, with the likelihood of being discovered, since lust respects no time, locale or circumstance (People vs. Colorado, G.R. No. 200792, November 14, 2012) RAPE THROUGH FRAUDELENT MACHINATION - In U.S. vs. Hernandez, 29 Phil. 109, accused Hernandez, who seduced a 15-year-old girl to live with him by procuring the performance of a fictitious marriage ceremony with the help of Bautista, who pretended to be a Protestant minister, was held liable for the complex crime proper of simple seduction (Art. 338) through usurpation of official function (Art. 177). Usurping the function of a priest to solemnize marriage is a necessary means to seduce a minor. Comment: The case of Hernandez was decided prior to the effectivity of the RPC. At that time, a religious official such as a bishop is a person in authority within the purview of the Old Penal Code (Smith, G.R. No. 14057, January 22, 1919). However, Article 152 of RPC does not include religious minister as a person in authority. Hence, performing the function of religious minister in solemnizing marriage is not usurpation of official function. It is submitted that the crime committed by accused is rape through fraudulent machination. HOMICIDE - In the special complex crime of rape with homicide, the term "homicide" is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on occasion of the rape. Hence, even if the circumstances of treachery, abuse of superior strength and evident premeditation are alleged in the information and duly established by the prosecution, the same would not qualify the killing to murder and the crime committed is still rape with homicide. However, these circumstances shall be regarded as ordinary aggravating (People vs. Laog, G.R. No. 178321, October 5, 2011). HOMICIDE ON OCCASION OF RAPE - The phrase “by reason of the rape” obviously conveys the notion that the killing is due to the rape, which is the crime the offender originally designed to commit. The victim of the rape is also the victim of the killing. The indivisibility of the homicide and the rape (attempted or consummated) is clear and admits of no doubt. In contrast, the import of the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA phrase on the occasion of the rape may not be as easy to determine. The phrase “on the occasion of the rape” as shown by Senate deliberations refers to a killing that occurs immediately before or after, or during the commission itself of the attempted or consummated rape, where the victim of the homicide may be a person other than the rape victim herself for as long as the killing is linked to the rape, became evident (People vs. Villaflores, G.R. No. 184926, April 11, 2012). “A” and “B” were walking along the rice paddies when “X” suddenly assaulted them with a lead pipe. “X” killed “A”, and thereafter, raped “B”. “X” is liable for special complex crime of rape with homicide. There is no doubt that “X” killed “A” to prevent her from aiding “B” or calling for help once she is able to run away, and also to silence her completely so she may not witness the rape of “B”, the original intent of “X” (People vs. Laog, G.R. No. 178321, October 5, 2011). In People vs. Isla, G.R. No. 199875, November 21, 2012 - With respect to the stabbings, it appears that Isla committed two acts. The first was while he was ravishing AAA. The Court considers this and the rape as one continuous act, the stabbing being necessary, as far as he was concerned, for the successful perpetration of the crime. When he testified, Isla claimed that he had to use the knife so he could have sexual intercourse with her. The second stabbing took place after consummation of the rape act. According to AAA, after her defilement, she noticed the knife bloodied and she tried to wrest it from him. In their struggle, she was stabbed under her lower left breast but she was able to force Isla to drop the knife. This second stabbing is a separate and distinct offense as it was not a necessary means to commit the rape. It was intended to do away with her life. QUALIFIED RAPE - In People vs. Lascano, G.R. No. 192180, March 21, 2012 – Rape is qualified when the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. However, the information in the present case merely stated that the victim was blind; it did not specifically allege that the appellant knew of her blindness at the time of the commission of the rape. Hence, the crime committed is simple rape. In qualifying circumstances of minority and relationship in rape and special aggravating circumstance under Section 31(c) of RA No. 7610 in sexual abuse under Section 5, the guardian must

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be a person who has legal relationship with his ward. He must be legally appointed was first (People vs. Flores G.R. No. 188315, August 25, 2010). SPONTANEOUS DESISTANCE AND NOT VOLUNTARY DESISTANCE - The term spontaneous is not equivalent to voluntary. Even if the desistance is voluntary, the same could not exempt the offender from liability for attempted felony if there is an external constraint. The term “spontaneous” means proceeding from natural feeling or native tendency without external constraint; it is synonymous with impulsive, automatic and mechanical (People vs. Lizada, G.R. No. 143468-71, January 24, 2003, En Banc). Accused had previously raped the victim several times. During the subject incident, accused was wearing a pair of short pants but naked from waist up. He entered the bedroom of victim, went on top of her, held her hands, removed her panty, mashed her breasts and touched her sex organ. However, accused saw Rossel peeping through the door and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused then left the room of the victim. Held: Accused intended to have carnal knowledge of victim. The overt acts of accused proven by the prosecution were not merely preparatory acts. By the series of his overt acts, accused had commenced the execution of rape, which, if not for his desistance, will ripen into the crime of rape. Although accused desisted from performing all the acts of execution, however, his desistance was not spontaneous as he was impelled to do so only because of the sudden and unexpected arrival of Rossel. Hence, accused is guilty only of attempted rape (People vs. Lizada, G.R. No. 14346871, January 24, 2003, En Banc). ATTEMPTED RAPE - The elements of the crime of acts lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex (People vs. Rellota, GR No. 168103 , August 03, 2010, Justice Peralta). “X” removed the towel wrapped in the body of “A”, laid her on the sofa and kissed and touched her. “A” testified that “X” wanted to rape her. Is “X” liable for attempted rape? No. The acts of “X” does not demonstrate the intent to have carnal knowledge of “A”; thus, dismissing the mere

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA opinion and speculation of “A”, based on her testimony, that “X” wanted to rape her. Even so, the acts should not be left unpunished as the elements of the crime of acts of lasciviousness (People vs. Rellota, G.R. No. 168103. August 3, 2010, Justice Peralta) What is the crime committed if the penis of the accused touched female organ of the non-consenting victim?(a) If the “touching" of the female organ constitutes the sliding of the penis into or the touching of either labia majoraor labia minoraof the pudendum, the crime committed is consummated rape. Anything short of that will only result in either attempted rape or acts of lasciviousness (People vs. Publico, April 13, 2011, G.R. No. 183569). Sexual penetration even without laceration of the hymen or even the briefest of contact consummates rape (People vs. Pangilinan, G.R. No. 183090, November 14, 2011). However, the penis that touches the external genitalia must be capable of consummating the sexual act to constitute consummated rape (People vs. Butiong, G.R. No. 168932, October 19, 2011). (b) If the touching merely constitutes an epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, the crime committed is either attempted rape or acts of lasciviousness (People v. Campuhan, G.R. No. 129433, March 30, 2000). Attempted rape is committed when the “touching” of the vagina by the penis is coupled with the intent to penetrate; otherwise, there can only be acts of lasciviousness. The difference between attempted rape and acts of lasciviousness lies in the intent of the perpetrator as deduced from his external acts. (People vs. Dadulla, G. R. No. 172321, February 9, 2011; People vs. Collado G.R. Nos. 13566770, March 1, 2001). “X” opened the zipper and buttons of the victim’s shorts, touching her, and trying to pull her from under the bed. Is “X” liable for acts of lasciviousness or attempted rape?The acts of “X” manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent to lie with the victim motivated “X” was plainly wanting, therefore, rendering him guilty only of acts of lasciviousness (People vs. Dadulla, G. R. No. 172321, February 9, 2011). Mother of the victim saw “X” was kneeling before victim whose pajamas and panty were already removed, while his short pants were down to his knees. Accused was forcing his penis into victim’s vagina. Horrified, she cursed the accused and

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boxed him several times. Is “X” liable for acts of lasciviousness or attempted rape? “X” should be held liable for attempted rape since it was not shown that his penis was able to penetrate vagina of victim however slight (People vs. Campuhan, G.R. No. 129433, March 30, 2000, En Banc). Intent to have sexual intercourse was clearly established in this case. In the following circumstances, the accused were convicted of attempted rape: (1) kissing AAA’s nape and neck; undressing her; removing his clothes and briefs; lying on top of her; holding her hands and parting her legs; and trying to insert his penis into her vagina; (2) The victim declared that the accused placed his penis on her vagina; and claimed that it touched her private parts. The victim’s testimony is too ambiguous to prove the vital element of penile penetration; (3) The victim testified that the accused placed his penis on top of her vagina, and that she felt pain. There was no showing that the accused’s penis entered the victim’s vagina. The pain that the victim felt might have been caused by the accused’s failed attempts to insert his organ into her vagina; (4) The victim did not declare that there was the slightest penetration, which was necessary to consummate rape. (5) The victim testified that the accused “poked” her vagina. The Court could not discern from the victim's testimony that the accused attained some degree of penile penetration, which was necessary to consummate rape. (5) The victim’s statements that the accused was “trying to force his sex organ into mine” and “binundol-undol ang kanyang ari” did not prove that the accused’s penis reached the labia of the pudendum of the victim’s vagina (People vs. Pareja, G.R. No. 188979, September 5, 2012). Consummated rape through sexual assault - A, a child, testified that X touched her private part and licked it but he did not insert his finger inside her vagina. What is the crime committed? Answer: If the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act should also be considered as already consummating the crime of rape through sexual assault, not the crime of acts of lasciviousness. This testimony of the victim, however, is open to various interpretation, since it cannot be identified what specific part of the vagina was defiled by X. Thus, X cannot be convicted of rape through sexual assault. Thus, X is liable for acts of lasciviousness (People vs. Bonaagua, GR No. 188897, June 06, 2011, Justice Peralta).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Conspiracy - Accused are liable for two (2) counts of rape on account of a clear conspiracy between them, shown by their obvious concerted efforts to perpetrate, one after the other, the rapes. Each of them is responsible not only for the rape committed personally by him but also for the rape committed by the other as well (People vs. Lascano, G.R. No. 192180, March 21, 2012).

or elastic. The strength and dilability of the hymen varies from one woman to another such that it may be so elastic as to stretch without laceration during intercourse, or on the other hand, may be so resistant that its surgical removal is necessary before intercourse can ensue. In some cases even, the hymen is still intact even after the woman has given birth (People vs. Deligero, GR No. 189280, April 17, 2013).

Variance rule - Information charged the accused with rape through carnal knowledge. Thus, accused cannot be found guilty of rape by sexual assault even though it was proven during trial. This is due to the material differences and substantial distinctions between the two modes of rape; thus, the first mode is not necessarily included in the second, and viceversa. Consequently, to convict accused of rape by sexual assault when what he was charged with was rape through carnal knowledge, would be to violate his constitutional right to be informed of the nature and cause of the accusation against him. Nevertheless, accused may be convicted of the lesser crime of acts of lasciviousness under the variance doctrine even though the crime charged against accused was for rape through carnal knowledge, he can be convicted of the crime of acts of lasciviousness without violating any of his constitutional rights because said crime is included in the crime of rape (People vs. Pareja, GR No. 202122, January 15, 2014).

The absence of fresh lacerations in victim’s hymen does not prove that appellant did not rape her. A freshly broken hymen is not an essential element of rape and healed lacerations do not negate rape. In addition, a medical examination and a medical certificate are merely corroborative and are not indispensable to the prosecution of a rape case. The credible disclosure of a minor that the accused raped her is the most important proof of the sexual abuse (People vs. Broca, GR No. 201447, January 09, 2013).

Pardon - For crimes of seduction, abduction, and acts of lasciviousness, pardon and marriage extinguish criminal liability. However, pardon should have been made prior to the institution of the criminal actions (People vs. Dollano, Jr., GR No. 188851, October 19, 2011, Justice Peralta). Rape is no longer a crime against chastity for it is now classified as a crime against persons. Consequently, rape is no longer considered a private crime or that which cannot be prosecuted, except upon a complaint filed by the aggrieved party. Hence, pardon by the offended party of the offender in the crime of rape will not extinguish the offender's criminal liability (People vs. Bonaagua, GR No. 188897, June 06, 2011, Justice Peralta). Hymen rapture, not required - It is possible for the victim’s hymen to remain intact despite repeated sexual intercourse. Likewise, whether the accused’s penis fully or only partially penetrated the victim’s genitalia, it is still possible that her hymen would remain intact because it was thick and distensible

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Sweetheart theory The sweetheart theory, as a defense, necessarily admits carnal knowledge, the first element of rape. This admission makes the sweetheart theory more difficult to defend, for it is not only an affirmative defense that needs convincing proof; after the prosecution has successfully established a prima facie case, the burden of evidence is shifted to the accused, who has to adduce evidence that the intercourse was consensual (People vs. Deligero, GR No. 189280, April 17, 2013). Sweetheart defense will not exculpate accused from liability for rape against mentally retarded person. In the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape (People vs. Caoile, GR No. 203041, June 05, 2013). A child was not capable of fully understanding or knowing the import of her actions and in consequence, remained vulnerable to the cajolery and deception of adults. Unlike rape, therefore, consent is immaterial in cases involving sexual absue under Section 5 of RA 7610. For purposes of sexual abuse, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA intercourse with another person (Caballo vs. People, GR No. 198732, June 10, 2013). ABDUCTION AND MULTIPLE RAPES What is/are the crime/s committed if the accused forcibly took the victim and raped her on four occasions?When the objective of abduction is to deprive the victim of his liberty, and thereafter, she was raped several times, the crime committed is special complex crime of kidnapping with rape. No matter how many rapes had been committed in the special complex crime of kidnapping with rape, the resultant crime is only one kidnapping with rape. This is because these composite acts are regarded as a single indivisible offense as in fact R.A. No. 7659 punishes these acts with only one single penalty. In a way, R.A. 7659 depreciated the seriousness of rape because no matter how many times the victim was raped, like in the present case, there is only one crime committed – the special complex crime of kidnapping with rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). When the abduction is made with lewd design, the crime committed is complex crime of forcible abduction with rape. For the crime of kidnapping with rape, the offender should not have taken the victim with lewd designs; otherwise, it would be complex crime of forcible abduction with rape. If the taking was by forcible abduction and the woman was raped several times, the crimes committed is one complex crime of forcible abduction with rape, in as much as the forcible abduction was only necessary for the first rape; and each of the other counts of rape constitutes distinct and separate count of rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Hence, the accused should be held liable for three counts of rape and forcible abduction with rape. When the objective of the abduction was to commit the rape, the offender cannot be held guilty of the complex crime of forcible abduction with rape. Under the circumstances, the rape absorbed the forcible abduction (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). Hence, the accused should be held liable for four counts of rape. In forcible abduction with rape unlike in rape involving abduction, the victim must be detained for appreciable length of time. INTIMIDATION - It is a wellentrenched law that intimidation in rape includes the moral kind of intimidation or coercion. Intimidation is a relative term, depending on the age, size and strength of the parties, and their relationship with each other. It can be addressed to the mind as well. For rape to exist it is not necessary

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that the force or intimidation employed be so great or of such character as could not be resisted. It is only necessary that the force or intimidation be sufficient to consummate the purpose which the accused had in mind. Intimidation must be viewed in the light of the victim's perception and judgment at the time of the rape and not by any hard and fast rule. It is therefore enough that it produces fear -fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter, as when she is threatened with death if she reports the incident. Intimidation would also explain why there are no traces of struggle which would indicate that the victim fought off her attacker (People vs. Leonardo G.R. No. 181036. July 6, 2010). TENACIOUS RESISTANCE - Is it necessary in rape through intimidation to show that the victim offered a “tenacious resistance” against the accused?No. Victim’ failure to offer tenacious and sufficient resistance does not imply her submission to the bestial demands of the accused. It is not required that she resists his sexual advances. All that is necessary is that force and intimidation were employed by the accused against her, which enabled him to commit the crime. Neither is it necessary for the victim to sustain physical injuries. She need not kick, bite, hit or scratch the appellant with her fingernails to prove that she had been defensive. It is sufficient that she yielded because of a real application of bodily harm (People vs. Torres, G.R. No. 134766, January 16, 2004). Among the amendments of the law on rape introduced under Republic Act No. 8353 (The Anti-Rape Act of 1997) is Section 266-D, which adverts to the degree of resistance that the victim may put up against the rapist, viz: Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). At the Bicameral Conference Committee Meeting on the disagreeing provisions of S.B. No. 950 and H.B. No. 6265, the forerunners of R.A. No. 8353, the legislators agreed that Article 266-D is intended to "soften the jurisprudence of the 1970's" when resistance to rape was required to be tenacious. The lawmakers took note of the fact that rape victims cannot mount a physical struggle in cases

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA where they were gripped by overpowering fear or subjugated by moral authority. Article 266-D tempered the case law requirement of physical struggle by the victim with the victim's fear of the rapist or incapacity to give valid consent. Thus, the law now provides that resistance may be proved by any physical overt act in any degree from the offended party (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002, En banc) In People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003, En Banc - At around 10:00 o’clock in the evening he laid beside her daughter, Lorena, who was sleeping. Lorena was then 17 years old for [she was] born on October 3, 1982. He touched her private parts, removed her shorts and pant[y], undressed himself and laid on top of her. He inserted his penis into her vagina causing her pain. He then made the up and down movement and ejected something hot from his penis. He told Lorena not to make any noise since her siblings were sleeping in the same room. He warned her not to tell anyone about the incident because, if she did, he would kill her. The rule is that resistance may be proved by any physical overt act in any degree from the offended party. Tenacious resistance, however, is not required. Neither is a determined and persistent physical struggle on the part of the victim necessary. It is true that complainant’s testimony does not indicate that she put up any resistance against the sexual advances of appellant. This notwithstanding, proof of resistance is not necessary in light of appellant’s moral ascendancy over the complainant. Being the father, appellant’s force or threat was sufficient to create fear in the mind of the complainant compelling her to submit to his sexual abuse. Physical resistance need not be established in rape when threats and intimidation are employed, and the victim submits herself to her attackers because of fear. The use of a weapon, by itself, is strongly suggestive of force or at least intimidation, and threatening the victim with a gun is sufficient to bring her into submission. Thus, the law does not impose upon the private complainant the burden of proving resistance (People vs. Tubat, G.R. No. 183093, February 1, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). Where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of rape. This happens when the offender committed rape

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with grave abuse of authority, which is now a new mode to commit the crime of rape. In incestuous rape of a minor, actual force or intimidation need not even be employed where the overpowering moral influence of appellant, who is private complainant’s father, would suffice (People vs. Samandre, G.R. No. 181497, February 22, 2012) In rape committed by a father, his moral ascendancy and influence over the victim substitute for the requisite force, threat, and intimidation, and strengthen the fear which compels the victim to conceal her dishonor (People vs. Ortega, G.R. No. 186235, January 25, 2012; People vs. Broca, GR No. 201447, January 09, 2013). The absence of violence or offer of resistance would not affect the outcome of the case because the overpowering and overbearing moral influence of the father over his daughter takes the place of violence and offer of resistance required in rape cases committed by an accused who did not have blood relationship with the victim (People vs. Osma, G.R. No. 187734, August 29, 2012). AAA’s failure to shout or to tenaciously resist appellant should not be taken against her since such negative assertion would not ipso facto make voluntary her submission to appellant’s criminal act. In rape, the force and intimidation must be viewed in the light of the victim’s perception and judgment at the time of the commission of the crime. As already settled in our jurisprudence, not all victims react the same way. Some people may cry out, some may faint, some may be shocked into insensibility, while others may appear to yield to the intrusion. Some may offer strong resistance while others may be too intimidated to offer any resistance at all. Moreover,resistance is not an element of rape. A rape victim has no burden to prove that she did all within her power to resist the force or intimidation employed upon her. As long as the force or intimidation is present, whether it was more or less irresistible is beside the point (People vs. Rivera, GR No. 200508, September 04, 2013; see: People vs. Rubio, G.R. No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). ACTS OF LASCIVIOUNESS The elements of acts of lasciviousness, punishable under Article 336 of the RPC, are: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex (People vs. Garcia, G.R. No. 200529, September 19, 2012; (People vs. Rellota, GR No. 168103 , August 03, 2010, Justice Peralta). The modes of committing acts of lasciviousness are the same as those of committing rape under the old version. CHILD PROSTITUTION The elements of paragraph (a) are: 1. the accused engages in, promotes, facilitates or induces child prostitution; 2. the act is done through, but not limited to, the following means: a. acting as a procurer of a child prostitute; b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. taking advantage of influence or relationship to procure a child as a prostitute; d. threatening or using violence towards a child to engage him as a prostitute; or e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution; 3. the child is exploited or intended to be exploited in prostitution and 4. the child, whether male or female, is below 18 years of age (People vs. Dulay, G.R. No. 193854. September 24, 2012). In People vs. Dulay, G.R. No. 193854. September 24, 2012 - To be a principal by indispensable cooperation, one must participate in the criminal resolution, a conspiracy or unity in criminal purpose and cooperation in the commission of the offense by performing another act without which it would not have been accomplished. Nothing in the evidence presented by the prosecution does it show that the acts committed by appellant are indispensable in the commission of the crime of rape. From the time appellant convinced AAA to go with her until appellant received money from the man who allegedly raped AAA, are not indispensable in the crime of rape. Anyone could have accompanied AAA and offered the latter's services in exchange for money and AAA could still have been raped. Even AAA could have offered her own services in exchange for monetary consideration and still end up being raped. Thus, this disproves the indispensable aspect of the appellant in the crime of rape. It must be remembered that in the Information, as well as in the testimony of AAA, she was delivered and offered for a fee by appellant, thereafter, she was raped by “Speed.” However, the appellant is liable for child prostitution.

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CHILD PROSTITUION AND SEXUAL ABUSE Sexual abuse under Section 5(b) of R.A. No. 7610 has three elements: (1) the accused commits an act of sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child is below 18 years old. Sexual abuse and lascivious conduct "Sexual abuse" includes the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children; "Lascivious conduct" means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person (Section 2(g) and (h) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases) Child exploited in prostitution or subject to other sexual abuse - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse (Section 5 of RA No 7610). The averments in the information against the accused clearly make out a charge for sexual abuse under Section 5(b) of RA No. 7610 although the caption charged him with child abuse under Section 10 (a). However, the character of the crime is not determined by the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated (People vs. Rayon, G.R. No. 194236, January 30, 2013) Sexual intercourse or lascivious conduct under the coercion or influence of any adult exists when there is some form of compulsion equivalent to intimidation which subdues the free exercise of the

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA offended party’s free will (Caballo vs. People, GR No. 198732, June 10, 2013). Accused (23 years of age) repeatedly assured the victim (17 years) of his love for her, and even, promised to marry her. In addition, he also guaranteed that she would not get pregnant since he would be using the "withdrawal method" for safety. These were meant to influence her to set aside her reservations and eventually give into having sex with accused, with which he succeeded. The age disparity between an adult and a minor placed accused in a stronger position over the victim so as to enable him to force his will upon the latter. An important factor is that the victim refused accused's incipient advances and in fact, asked him to leave. However, the victim eventually yielded. Thus, it stands to reason that she was put in a situation deprived of the benefit of clear thought and choice. The actuations of the accused may be classified as "coercion" and "influence" within the purview of Section 5 of RA 7610. Hence, accused is guilty of sexual abuse (Caballo vs. People, GR No. 198732, June 10, 2013). The Information alleged that accused committed acts of lasciviousness upon the person of victim, a minor subjected to sexual abuse. Can the accused be convicted for sexual abuse under Section 5 (b) of RA No. 7610? Answer: No. Under the law, committing lascivious conduct upon a child under coercion or influence of an adult or group is sexual abuse. There is no allegation of coercion or influence, which is an indispensable ingredient of this crime. It does not contain the essential facts constituting the offense, but a statement of a conclusion of law. Thus, accused cannot be convicted of sexual abuse under such Information. The information is void for being violative of the accused’s constitutionally-guaranteed right to be informed of the nature and cause of the accusation against him (People vs. Pangilinan, GR No. 183090, November 14, 2011, Justice Peralta). Child 12 years of age or above – X taking advantage of his ascendancy committed sexual intercourse with his daughter (15 years of age). What crime can X be prosecuted for? The child is under the influence of an adult. This is sexual abuse under RA No. 7610. The act is committed with psychological intimidation or grave abuse authority. This is rape. Hence, X can be prosecuted for either (1) sexual abuse under violation of Section 5 (b) of RA No. 7610; or (2) rape. X should not be charged for Rape in relation to sexual abuse. Existing jurisprudence, however, proscribes charging an accused for both crimes, rather, he may be charged only for either

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(Alberto vs. Hon. Court of Appeals, GR No. 182130, June 19, 2013). X cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of RPC, a felony cannot be complexed with an offense penalized by a special law (People v. Abay, G.R. No. 177752, February 24, 2009; People vs. Pangilinan, G.R. No. 183090, Nov. 14, 2011, Justice Peralta, People v. Dahilig, G.R. No. 187083, June 13, 2011, People v. Matias, G.R. No. 186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 20130. Child under 12 years Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted for rape and for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period (Section 5). X taking advantage of his ascendancy committed sexual intercourse with his daughter (9 years of age). What crime can X be prosecuted for? The child, who is under the influence of an adult, is under 12 years of age. Hence, X should be prosecuted for statutory rape. Section 5 (b) of RA No. 7610 provides that when the victim (child subjected to sexual abuse) is under 12 years of age, the perpetrators shall be prosecuted for rape (People vs. Jalosjos, G.R. Nos. 132875-76, November 16, 2001). Accused was convicted of rape through sexual assault committed against a 4 year old child. There is no allegation in the Information that the child is indulged in lascivious conduct for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group. Accused was punished under RPC. In sum, the penalty under RA 7160 was not imposed since the information failed to allege that the victim is exploited in prostitution or subjected to sexual abuse (Pielago vs. People, GR No. 202020, March 13, 2013) Rape through sexual assault and sexual abuse - X forced A, a minor, in an isolated place and inserted his finger into her vagina. (a) For what crimes can X be prosecuted if A is 17 years of age at the time? Answer: X committed rape through

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA sexual assault, or object or instrument rape under RPC since he inserted object, his finger, into the vaginal orifice of A by using force. The crime of sexual abuse under Section 5 of RA No. 7160 is also committed since A is indulged in lascivious conduct under coercion of an adult. However, X can only be prosecuted either for rape or sexual abuse. (b) Would your answer be the same if the age A is 10 years old? Answer: Since A, who is a child indulged in lascivious conduct under coercion of an adult, is under 12 years of age, X should be prosecuted for rape through sexual assault under RPC. Under Section 5 of RA No. 7610, when the child subjected to sexual abuse is under twelve (12) years of age, the perpetrators shall be prosecuted for rape under RPC (People vs. Pangilinan, GR No. 183090, November 14, 2011, Justice Peralta). (c) The penalty for rape through sexual assault under RPC as amended by RA No. 8353 is prision mayor while the penalty under RA No. 7610 for acts of lasciviousness committed against a child subjected to sexual abuse, under 12 years of age, is reclusion temporal in its medium period. If the age of A is 10 years old, would you impose the penalty under RA No. 8353 or under RA No. 7610? Answer: One who commits acts of lasciviousness in relation to RA No. 7610 suffers the more severe penalty of reclusion temporal in its medium period than the one who commits rape through sexual assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of RA No. 8353, to have disallowed the applicability of RA No. 7610 to sexual abuses committed to children. Despite the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children (People vs. Chingh, G.R. No. 178323, March 16, 2011, Justice Peralta). The penalty under RA No. 7160 should be imposed. (d) The penalty for qualified rape through sexual assault is reclusion temporal under RPC as amended by RA No. 8353. If A is the 10 year-old daughter of X, would you impose penalty penalty under RA No. 8353 or under RA No. 7610? Answer: Since the crime committed is rape through sexual assault with qualifying circumstance of minority and relationship, the rationale of unfairness to the child victim that Chingh case wanted to correct is absent because RPC as amended by RA No. 8353 already prescribes the penalty of reclusion temporal for this crime. Hence, there is no more need to apply the penalty

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prescribed by RA No. 7610 for sexual abuse (People vs. Bonaagua, G.R. No. 188897, June 6, 2011, Justice Peralta). The penalty under RPC should be imposed. CONSENT OF THE VICTIM - Is consent of the victim a defense in rape, or child prostitution or sexual abuse? A child exploited in prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However, a child who is "a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition" is incapable of giving rational consent to any lascivious act or sexual intercourse (People vs. Dulay, GR No. 193854, September 24, 2012, Justice Peralta; People vs. Delantar, G.R. No. 169143, February 2, 2007). Submissiveness of child under influence or psychological coercion of adult is not likewise a defense in sexual abuse (People vs. Larin, G.R. No. 128777, October, 7 1998). But if the sexual abuse is committed as alleged in the information against a child, who indulges in sexual intercourse under coercion, the prosecution must show lack of consent on the part of the victim. Showing that the child consented to the sexual intercourse will negate “coercion” as an element of the crime (see: People vs. Abello,G.R. No. 151952, March 25, 2009). CHILD PROSTITUTION The elements of child prostitution are: (1) The accused engages in, promotes, facilitates or induces child prostitution; (2) The act is done through, but not limited to, the following means: (a) Acting as a procurer of a child prostitute; (b) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (c) Taking advantage of influence or relationship to procure a child as a prostitute; (d) Threatening or using violence towards a child to engage him as a prostitute; or (e) giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution; (3) The child is exploited or intended to be exploited in prostitution and

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA (4) The child, whether male or female, is below 18 years of age (People vs. Dulay, GR No. 193854, September 24, 2012, Justice Peralta). X convinced A to accompany her. When they reached Kubuhan, X suddenly pulled A inside a room where Y. Y gives money to X and tells her to look for a younger girl. Thereafter, Y wielded a knife and tied A’s hands to the papag and raped her. A asked for X's help when she saw the latter peeping into the room while she was being raped, but X did not do so. After the rape, X and Y told A not to tell anyone what had happened or else they would get back at her. What is the crime committed by X? Answer: X is not liable as principal by indispensable cooperation. From the time X convinced A to go with her until X received money from Y are not indispensable in the crime of rape. Anyone could have accompanied A and offered the latter's services in exchange for money and A could still have been raped. Note: Conspiracy was not alleged in the information. X is liable for child prostitution under Section 5 of RA No. 7610. X facilitated or induced child prostitution. The act of X in convincing A, who was 12 years old at that time, to go with her and thereafter, offer her for sex to a man in exchange for money makes her liable for child prostitution (People vs. Dulay, GR No. 193854, September 24, 2012, Justice Peralta). CHILD ABUSE - Under Section 10 (a) of RA No. 7610, child abuse or cruelty is committed by any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of PD No. 603 but not covered by the RPC. Under Section 3 (b), "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death.

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Section 10 (a) punishes not only those enumerated under Article 59 of PD No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child's development. We stress that Section 10 refers to acts of child abuse other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution under Section 6, child trafficking under Section 7, attempt to commit child trafficking under Section 8, and obscene publications and indecent shows under Section 9 (People vs. Rayon, G.R. No. 194236, January 30, 2013). In Bongalon vs. People, G.R. No. 169533, March 20, 2013 - Accused struck minor-victim at the back with his hand and slapped his face. His acts however are not constituted child abuse within the purview of the Section 10 (a) of RA No. 7610. The records did not establish beyond reasonable doubt that his laying of hands on victim had been intended to debase his "intrinsic worth and dignity" as a human being, or that he had thereby intended to humiliate or embarrass him. The records showed the laying of hands on victim to have been done at the spur of the moment and in anger, indicative of his being then overwhelmed by his fatherly concern for the personal safety of his own minor daughters who had just suffered harm at the hands of victim and his companion. With the loss of his selfcontrol, he lacked that specific intent to debase, degrade or demean the intrinsic worth and dignity of a child as a human being that was so essential in the crime of child abuse. It is not trite to remind that under the well-recognized doctrine of pro reo every doubt is resolved in favor of the accused. Thus, the Court should consider all possible circumstances in his favor. The accused was convicted of slight physical injuries. BIGAMY X married A, but during the subsistence of such marriage X married B. A filed a complaint for bigamy against X. X filed a petition for the annulment of his first marriage with A on the ground of psychological incapacity which was granted. X moved for the quashal of the information and dismissal of the criminal complaint alleging that his first marriage had already been declared void ab initio. (a) Is the argument tenable? No. Article 40 of the Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA action or a ground for defense. It has been held in a number of cases that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. Otherwise, a person who commits bigamy can simply evade prosecution by immediately filing a petition for the declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him (People vs. Odtuhan, GR No. 191566, July 17, 2013, Justice Peralta). (b) Would your answer be the same if the declaration of nullity of the first marriage was obtained before the filing of the complaint for bigamy against X? Yes. Settled is the rule that criminal culpability attaches to the offender upon the commission of the offense and from that instant, liability appends to him until extinguished as provided by law and that the time of filing of the criminal complaint or information is material only for determining prescription (People vs. Odtuhan, GR No. 191566, July 17, 2013, Justice Peralta). (c) Would your answer be the same if the first marriage was contracted prior to the Family Code? Yes. Article 40, which is a rule of procedure, should be applied retroactively because Article 256 of the Family Code itself provides that said "Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights." The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general

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rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs. People, GR No. 164435, June 29, 2010, Justice Peralta). (d) Would your answer be the same if the second marriage was the one declared null and void? Yes. It is a settled rule that the criminal culpability attaches to the offender upon the commission of the offense, and from that instant, liability appends to him until extinguished as provided by law. It is clear then that the crime of bigamy was committed by X from the time he contracted the second marriage with B. Thus, the finality of the judicial declaration of nullity of X’s second marriage does not impede the filing of a criminal charge for bigamy against him (Walter vs. People, GR No. 183805, July 03, 2013, Justice Peralta). (e) Would your answer be the same if both the first marriage and the second marriage are declared null and void? Yes. The subsequent judicial declaration of nullity of X’s two marriages cannot be considered a valid defense in the crime of bigamy. The moment X contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, first marriage, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of second marriage make any difference. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. What the law penalizes is the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage" (Jarillo vs. People, GR No. 164435, September 29, 2009, Justice Peralta) DEFAMATION Is truthful defamatory imputation against private individual and government employee a defense in libel? Proof of truth of defamatory imputation against private individual is a defense if it is published with good motives and for justifiable ends. Proof of the truth of defamatory imputation against government employees is a defense: (1) if it is published with good motives and for justifiable ends; or (2) if the act or omission imputed constitutes a crime; or (3) if the imputation not constituting a crime is

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA related to the discharge of his duties. Truthfulness of imputation of a crime or a function-related defamatory act against a public officer is a defense even though he does not prove that the imputation was published with good motives and for justifiable ends (Vasquez vs. CA, G.R. No. 118971, September 15, 1999). MALICE - What are the different rules on presumption involving malice as an element of libel or oral defamation? 1. Disputable presumption of malice - Every defamatory imputation is presumed to be malicious. Presumed malice is also known as “malice in law.” However, the following circumstances negate the presumption of malice in a defamatory statement: (1) if there is a good intention and justifiable motive for making it is shown; (2) if the defamatory statements is a qualified privilege communication such (a) A private communication made by any person to another in the performance of any legal, moral or social duty; and (b) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions (Article 354 of RPC). The enumeration under Article 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged (Borjal vs. CA, G.R. No. 126466 January 14, 1999). 2. Conclusive presumption of lack of malice – If the defamatory statements are an absolute privilege communication, lack of malice is conclusively presumed. Thus, the person making defamatory imputation is not answerable for libel. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith such as speech or debate in the Congress or in any Committee thereof (Philippine Journalists, Inc vs. Thoenen, G.R. No. 143372, December 13, 2005) or words uttered or published in the course of judicial proceedings, provided the statements are pertinent or relevant to the case (Malit vs. People, G.R. No. L-58681, May 31, 1982). FAIR COMMENT DOCTRINE What is the doctrine of fair comment? Under this doctrine, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every defamatory and public imputation is deemed false, and every false imputation is deemed malicious, nevertheless, when the

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defamatory imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such defamatory imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts (Borjal vs. CA, G.R. No. 126466, January 14, 1999). What is the difference between fair and true report, and fair comment as a privilege communications? (1) In fair and true report, the accused makes a report on the function-related acts performed by public officers without any comments or remarks. On the other hand, in fair comment, the accused is making a comment on the function-related acts performed by public officers. (2) In fair and true report, the prosecution must prove actual malice i.e., such as the report was made in bad faith. In fair comment, the prosecution must actual malice i.e., comment was made with knowledge that comment was false or with reckless disregard of whether it was false or not (Sulivan vs. Newyork Times doctrine; Guingguing vs. the Honorable Court of Appeals, G.R. No. 128959, September 30, 2005) Only false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions (Flor vs. People, G.R. No. 139987, March 31, 2005). (3) In fair and true report, the report involving defamatory statement must be true. In fair comment, the defamatory imputation in the commentary is not true but the accused has no knowledge that it is false and has not recklessly disregarded to know whether it is false or not. Is error or misstatement in commentaries on function related acts of public officer actionable in a news articles for being libelous? Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy (Borjal vs. CA, G.R. No. 126466, January 14, 1999).

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Brillante implicated Jejomar Binay, then the OIC Mayor of Makati, and Dr. Nemesio Prudente, then President of the Polytechnic University of the Philippines in a planned assassination of Syjuco as well as election-related terrorism. Is the doctrine of fair comment applicable in this libel case? The New York Times principle is not applicable since the utterances are unrelated to a public officer’s performance of his duties (Brillante vs. CA, G.R. Nos. 118757 & 121571, October 19, 2004). Obviously, commission of murder and terrorism is not related to the performance of their duties as public officers. Cristy Fermin imputed to Annabelle Rama Gutierrez an actress the crime of malversation and of vices or defects for being fugitives from the law and of being a wastrel. Is the doctrine of fair comment applicable in this libel case? No. It is unrelated to public figure’s work (Fermin vs. People, G.R. No. 157643, March 28, 2008). The defamatory imputation has nothing to do to with works of Annabelle as a as an actress. In his series of articles of Erwin Tulfo, he targeted one Atty. "Ding" So of the Bureau of Customs as being involved in criminal activities, and was using his public position for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying "ikawnayataangpinakagago at magnanakawsamiyembronito." He accused Atty. So of stealing from the government with his alleged corrupt activities. And when Atty. So filed a libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, "Nagalititongtarantadongsi Atty. So dahilbinabantayankosiya at inexpose angkagaguhanniyasa [Bureau of Customs]." In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject articles. He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at the Bureau of Customs. Is Tulfo liable for Libel? Yes. Journalists bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. The report made by Tulfo cannot be considered as "fair" and "true" since he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not "fair and true reports," but merely wild accusations. He had written and published the subject articles with reckless disregard of whether the same were false or

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not (Erwin Tulfo vs. People, G.R. No. 161032, September 16, 2008). The article in Bander newspaper details the sexual activities of a certain “Miss S” and one “Philip Henson” who had a romantic liaison. The words used in the article convey that “Miss S” is a sexual libertine with unusually wanton proclivities in the bedroom. Is the article defamatory and malicious? Is the writer liable for libel? Yes. In a society such as ours, where modesty is still highly prized among young ladies, the behavior attributed to “Miss S” by the article in question had besmirched both her character and reputation. Since on its face the article is defamatory, there is a presumption that the offender acted with malice. However, the writer cannot be held liable for libel. The libelous article, while referring to "Miss S," does not give a sufficient description or other indications which identify "Miss S." In short, the article fails to show that "Miss S" and complainant are one and the same person. Although the article is libelous, complainant could not have been the person defamed therein (Diaz v. People, G.R. No. 159787, May 25, 2007). INTERNET LIBEL - Under Article 355, a libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means. Is the internet used to post a malicious defamatory imputation through facebook within the contemplation of the phrase “any similar means” in Article 355? Yes. Writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition has a common characteristic, and that is, their permanent nature as a means of publication, and this explains the graver penalty for libel than that prescribed for oral defamation (People vs. Santiago, G.R. No. L-17663, May 30, 1962). Hence, the phrase “any similar means” should be understood in the lights of the said common characteristic of the means to commit libel. Since nature of internet as a means of publication is likewise permanent, it should be considered as a means to commit libel. What is the venue for internet libel committed? As a general rule, the venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published (Article 360 of RPC).However, the place where libelous article was accessed by the offended party in the internet is not equivalent to the place

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA where the libelous article is “printed and first published”. To rule otherwise is to allow the evil sought to be prevented by the amendment to Article 360, and that was the indiscriminate laying of the venue in libel cases in distant, isolated or far-flung areas, to harass an accused. At any rate, Article 360 still allow offended party to file the civil or criminal complaint for internet libel in their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5, 2010). Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335, February 18. 2014). VENUE - The rules on venue for libel in Article 360 of RPC are as follows: (1) Whether the offended party is a public official or a private person, the criminal action may be filed in the Regional Trial Court of the province or city where the libelous article is printed and first published; (2) If the offended party is a private individual, the criminal action may also be filed in the Regional Trial Court of the province where he actually resided at the time of the commission of the offense. (3) If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the action may be filed in the Regional Trial Court of Manila. (4) If the offended party is a public officer holding office outside of Manila, the action may be filed in the Regional Trial Court of the province or city where he held office at the time of the commission of the offense (Foz, Jr., vs. People, GR No. 167764, October 09, 2009, Justice Peralta). Information alleged that the libelous writings were published in Panay News, a daily publication with a considerable circulation in the City of Iloilo and that complainant (private individual) is a physician in Iloilo. Is the Information quashable for improper venue? Answer: Yes. The allegations in the Information that "Panay News, a daily publication with a considerable circulation in the City of Iloilo" only showed that Iloilo was the place where Panay News was in considerable circulation but did not establish that the said publication was printed and first published in Iloilo City.

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The Information failed to allege the residence of complainant. While the Information alleges that complainant is a physician in Iloilo City, such allegation did not clearly and positively indicate that he was actually residing in Iloilo City at the time of the commission of the offense. It is possible that complainant was actually residing in another place (Foz, Jr., vs. People, GR No. 167764, October 09, 2009, Justice Peralta). RECKLESS IMPRUDENCE Following a vehicular collision in August 2004, Jason Ivler was charged with reckless imprudence resulting in slight physical injuries for injuries sustained by Maria and reckless imprudence resulting in homicide and damage to property for the death of Nestor and damage to their vehicle. Court convicted Jason for the first charged. Should the information for the second charge be quashed on the basis of the rule on double jeopardy? Reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes; hence conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various consequences. The essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty. It does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense criminal negligence remains one and the same, and cannot be split into different crimes and prosecutions (Ivler vs. Modesto-San Pedro, G.R. No. 172716, November 17, 2010). Note: The principle in Ivler case has abandoned the principle (Ortega view) that culpa is just a modality by which a felony may be committed. In People vs. Dumayag, G.R. No. 172778, 26 November 2012 - The evidence indubitably shows that before the collision, the passenger bus was cruising along its rightful lane when the tricycle coming from the opposite direction suddenly swerved and encroached on its lane. The accident would not have happened had Genayas, the tricycle driver, stayed on his lane and did not recklessly try to overtake another vehicle while approaching a blind curve. Section 37 of R.A. No. 4136 mandates all motorists to drive and operate vehicles on the right side of the road or highway. When

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA overtaking another, it should be made only if the highway is clearly visible and is free from oncoming vehicle. Overtaking while approaching a curve in the highway, where the driver’s view is obstructed, is not allowed. Corollarily, drivers of automobiles, when overtaking another vehicle, are charged with a high degree of care and diligence to avoid collision. The obligation rests upon him to see to it that vehicles coming from the opposite direction are not taken unaware by his presence on the side of the road upon which they have the right to pass. In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of the general practitioner. The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be measured, and it does not depend, therefore, on any individual physician’s own knowledge either. In attempting to fix a standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts. Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether the first three elements of a negligence and malpractice action were attendant (Solidum vs. People, GR No. 192123, March 10, 2014).

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VIOLENCE AGAINST WOMAN Are the acts of attaching the face of his ex-girlfriend on a nude body of a woman in a picture, sending the picture to her through cell phone text message and threatening to post it in the internet for all to see that caused substantial emotional and psychological distress to her constitutive of psychological violence against woman under Section 5 (h) of RA No. 9262? Yes. Under Section 5 (h) of RA No. 9262 the following conduct that caused substantial emotional and psychological distress to the woman with whom the offender has a marital, sexual or dating relationship is punishable: (1) Stalking (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling against her will; (4) Destroying property and inflicting harm to animals; and (5) Engaging in any form of harassment or violence; The acts described above are considered harassment within the contemplation of the phrase “any form of harassment” in Section 5 (h) (5) (Ang vs. The Honorable CA, G.R. No. 182835, April 20, 2010). Is habituality an element of violence against women and their children under Section 5 (h)? No. Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment contemplated in Section 5 (h), which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones (Ang vs. The Honorable CA, G.R. No. 182835, April 20, 2010). HAZING The night before the commencement of the rites, the neophytes of “AngGaling” fraternity were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, that that they could quit anytime. “A”, a neophyte, consented to the initiation ritual, having asked his parents for permission to join the fraternity. Even after going through the fraternity’s grueling tradition rituals— mainly being beaten by a paddle on the arms and legs—during the first day, “A” continued and completed the second day of initiation. As consequence of the hazing, “A” died. What is the crime committed by members of the fraternity, who directly participated in the infliction of harm against “A”? The crime committed is hazing. The principle in Villareal vs. People, G.R.

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA No. 151258, February 1, 2012 finding the accused liable for reckless imprudence resulting in homicide is not anymore controlling in the light of RA No. 8049 (Antihazing Law) Under Section 4 of RA 8049, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm upon recruit, neophyte or applicant on occasion of hazing shall be liable as principals for the crime of hazing. Hazing is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization (such as AFP, PNP, ROTC) or a requirement for employment in a corporation by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations. What are the differences between hazing and homicide or murder? The differences of homicide or murder and hazing are as follows: (a) In homicide or murder, what is criminal is the killing of person. Hence, intent to kill is an indispensable element. Death of the victim consummates the crime. In hazing, what is prohibited is the infliction of physical harm. Hence, intent to kill is not material. Death of the neophyte is only important to determine the proper imposable penalty. (b) Homicide or murder is malum in se. Consent of the victim to the infliction of harm may negate dolo or criminal intent, which would make the killing punishable as reckless imprudence (Villareal vs. People, G.R. No. 151258, February 1, 2012). Hazing is malum prohibitum. Consent of the neophyte is not a defense. (c) In homicide or murder, praeter intentionem is appreciable as a mitigating circumstance. In hazing, the law expressly disallows the appreciation of this circumstance. In homicide or murder, the basis of criminal liability is the actual and conspiratorial participation of the offender in killing the victim. In hazing, criminal responsibility is based on (1) actual participation in inflicting physical harm, (2) presumed participation (of those who are present during the hazing), (3) the presence of adviser, (4) participation in the planning (by officers, former officers and alumni of the fraternity); (5) knowledge (of the parent of frat member in the home of whom hazing occurred, owner of the place commission, and school authorities). (d) In hazing, taking action to prevent the occurrence of hazing is a defense by any offender except (1) those who actually inflicted physical harm and (2) those (officers, former officers and alumni of the fraternity), who planned the hazing. LOOSE FIREARM

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Section provides:

29

of

RA

No.

10591

“SEC. 29. Use of Loose Firearm in the Commission of a Crime. – The use of a loose firearm, when inherent in the commission of a crime punishable under the Revised Penal Code or other special laws, shall be considered as an aggravating circumstance: Provided, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is lower than that prescribed in the preceding section for illegal possession of firearm, the penalty for illegal possession of firearm shall be imposed in lieu of the penalty for the crime charged:Provided, further, That if the crime committed with the use of a loose firearm is penalized by the law with a maximum penalty which is equal to that imposed under the preceding section for illegal possession of firearms, the penalty of prision mayor in its minimum period shall be imposed in addition to the penalty for the crime punishable under the Revised Penal Code or other special laws of which he/she is found guilty. If the violation of this Act is furtherance of, or incident to, or connection with the crime of rebellion insurrection, or attempted coup etat,such violation shall be absorbed as element of the crime of rebellion insurrection, or attempted coup d’ etat.

in in of d’ an or

If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense.” USE OF LOOSE FIREARM AS AGGRVATING CIRCUMSTANCE - As a rule, when use of a loose firearm in committing is inherent in the commission of other crime, such circumstance shall be considered as an aggravating circumstance. For example, if a loose firearm was used in committing homicide, the penalty of reclusion temporal prescribed for shall be applied in its maximum period. However, if the penalty for illegal possession of loose firearm is graver than that prescribed for other crime committed, the penalty for the latter shall be applied. For example, the penalty for simple robbery is prision correccional in its maximum period to prision mayor in its medium period while the penalty for illegal possession of small arm under Section 28 of RA No. 10591 is prision mayor in its medium period. If a loose firearm classified as small arm is used in committing simple robbery, the penalty of prision mayor in its

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA medium period prescribed under RA 10591 shall be imposed. Furthermore, if the maximum penalty prescribed for the other crime is equal to that for illegal possession of loose firearm, prision mayor in its minimum period shall be imposed in addition to the penalty for the other crime. For example, the penalty of reclusion perpetua is prescribed for homicide and illegal possession of a Class B light weapon. If a loose firearm involving a Class B light weapon is used to commit homicide, the penalty of prision mayor in its minimum period in addition to reclusion perpetua shall be imposed. Lastly, if a loose firearm is used in the commission of rebellion, sedition or coup ‘d etat, the latter shall be absorbed in the former. DISTINCT AND SEPARATE CRIME - If the crime is committed by the person without using the loose firearm, the violation of this Act shall be considered as a distinct and separate offense (RA No. 10591). Conversely, if the crime is committed by the person with the use of loose firearm, illegal possession of loose firearm is not a separate offense. In such a case, the illegal possession of loose firearm shall be considered as an aggravating circumstance or a special circumstance that justifies that imposition of graver penalty or additional penalty, or as a mere element of rebellion, sedition or coup d’ etat. QUASABLE INFORMATION - Prior to RA 8294, the rules obtaining, if the offender killed a person with the use of unlicensed firearm, were as follows: (1) use of unlicensed firearm was not an aggravating circumstance in murder or homicide under PD 1866; (2) offender is liable independently for homicide or murder and illegal possession of firearm. Under PD 1866 as amended by RA 8294, the rules, if the offender killed a person with the use of unlicensed firearm, are as follows: (1) offender is liable for homicide or murder with aggravating circumstance of use of unlicensed firearm; and (2) the crimes of murder or homicide and illegal use or possession of firearm are integrated into a single offense. In People vs. Bergante, G.R. No. 120369-70, February 27, 1998 - The violation of PD No. 1866 should have been punished separately conformably with our ruling in the case of Quijada G.R. No. 115008-09, July 24, 1996, En Banc. Nevertheless, fortunately for appellant, PD

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No. 1866 was recently amended by RA No. 8294, which provides that “if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.” In short, only one offense should be punished, viz., either homicide or murder, and the use of the unlicensed firearm should only be considered as an aggravating circumstance. In Celino vs. CA, G.R. No. 170562, June 29, 2007, the Supreme Court ruled that: “When the other crime involved is one of those enumerated under RA 8294 (e.g. homicide, murder, rebellion, sedition or coup d’ etat) any information for illegal possession of firearm should be quashed because the illegal possession of firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide,, or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat. When the other crime involved is not one of those enumerated under RA 8294, any information for illegal possession of firearm should not be quashed. The separate case for illegal possession of firearm should continue to be prosecuted. Settled is the rule that an accused cannot be convicted for illegal possession of firearm if another crime was committed at the same time. Since accusation is not synonymous with guilt, it cannot establish outright that “other crime” was committed. However, the accused must be exonerated of illegal possession of firearms if he is convicted of some other crime.” Considering that under RA No. 10591 use of loose firearm is not only an aggravating circumstance in murder or homicide but also in other crime such as robbery or grave threat, the illegal possession of firearm should not be considered a separate and distinct crime if other crime is committed and the use of loose firearm in inherent therein. Following the same line of reasoning in the case of Celino, any information for illegal possession of firearm should be quashed because the illegal possession of loose firearm would have to be tried together with such other offense, either considered as an aggravating circumstance in murder or homicide,, robbery, grave threat, alarm and scandal, physical injuries or absorbed as an element of rebellion, insurrection, sedition or attempted coup detat. DANGEROUS DRUGS

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA POSSESSION OF DRUGS – For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such possession is not authorized by law; and (c) the accused was freely and consciously aware of being in possession of the drug (David vs. People, Gr No. 181861, October 17, 2011, Justice Peralta). This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another (Del Castillo vs. People, GR No. 185128, January 30, 2012, Justice Peralta). Mere possession of a dangerous drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession - the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi (Miclat, Jr. vs. People, GR No. 176077, August 31, 2011, Justice Peralta). KNOWLEDGE - Is knowledge an element of dangerous drugs despite this crime is malum prohibitum? Yes. For illegal possession of dangerous drugs, the prosecution must establish that the accused freely and consciously possessed the dangerous drug without authority. However, mere possession of dangerous drug constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation (Asiatico vs. People, G.R. No. 195005, September 12, 2011). ATTEMPTED SALE - “A”, poseur buyer, asked “X” if he has available “shabu” for sale. “X” answered in the affirmative and showed to “A” a plastic sachet containing shabu. “A” immediately identified himself as

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a policeman, and then, apprehended “X” and confiscated the “shabu” from his pocket. What is the crime committed by “X”? “X” is liable for attempted sale of shabu punishable under Section 26 of RA 9165. Attempt to sell shabu was shown by the overt act of appellant therein of showing the substance to the poseur-buyer. The sale was aborted when the police officers identified themselves and placed appellant under arrest (People vs. Figueroa, G.R. No. 186141, April 11, 2012). DELIVERY - Is the absence of marked money as evidence fatal to prosecution of sale and delivery of dangerous drugs? No. The law defines deliver as “a person’s act of knowingly passing a dangerous drug to another with or without consideration.” Considering that the appellant was charged with the sale and the delivery of prohibited drugs, the consummation of the crime of delivery of marijuana may be sufficiently established even in the absence of the marked money (People vs. Domingcil, G.R. No. 140679, January 14, 2004). LACK OF COORDINATION WITH PDEA - Silence of the law as to the consequences of the failure on the part of the law enforcers to seek the prior authority of the PDEA cannot be interpreted as a legislative intent to make an arrest without such PDEA participation illegal or evidence obtained pursuant to such an arrest inadmissible (People vs. Clarite, G.R. No. 187157, February 15, 2012). Lack of coordination with the PDEA will not invalidate a buy-bust operation. Such coordination is not an indispensable requirement in buy-bust operations. Neither Section 86 of Republic Act No. 9165 nor its Implementing Rules and Regulations make PDEA’s participation a condition sine qua non for the conduct of a buy-bust operation (People vs. Mendosa, G.R. No. 189327, February 29, 2012) CONFIRMATORY TEST - In Ambre vs. People, G.R. No. 191532. August 15, 2012 - In no instance did accused challenge, at the RTC, the supposed absence of confirmatory drug test conducted on her. Accused only questioned the alleged omission when she appealed her conviction before the CA. It was too late in the day for her to do so. Well entrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice. PHOTOGRAPHY AND INVENTORY – Under Section 21 of RA No. 9165, the apprehending team having initial custody

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; However, the Implementing rules of RA No. 9165 provides that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. Non-compliance with the requirements of Section 21 of R.A. No. 9165 will not necessarily render the items seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not required if there is a clear showing that the integrity and the evidentiary value of the seized items have been preserved, i.e., the items being offered in court as exhibits are, without a specter of doubt, the very same ones recovered in the buy-bust operation. Hence, once the possibility of substitution has been negated by evidence of an unbroken and cohesive chain of custody over the contraband, such contraband may be admitted and stand as proof of the corpus delicti notwithstanding the fact that it was never made the subject of an inventory or was photographed pursuant to Section 21 (1) of Republic Act No. 9165 (David vs. People, Gr No. 181861, October 17, 2011, Justice Peralta; Marquez vs. People, G.R. No. 197207, March 13, 2013; People vs. Morate, GR No. 201156, January 29, 2014; People vs. Ladip, GR No. 196146, March 12, 2014; People vs. Bis, GR No. 191360, March 10, 2014). In People vs. Gonzales, G.R. No. 182417, April 3, 2013 - By way of exception, Republic Act No. 9165 and its IRR both state that the non-compliance with the procedures thereby delineated and set would not necessarily invalidate the seizure and custody of the dangerous drugs provided there were justifiable grounds for the non-compliance, and provided that the integrity of the evidence of the corpus delicti was preserved. But the noncompliance with the procedures, to be excusable, must have to be justified by the State’s agents themselves. Considering that PO1 Dimla tendered no justification in court for the non-compliance with the procedures, the exception did not apply

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herein. The absolution of accused should then follow, for we cannot deny that the observance of the chain of custody as defined by the law was the only assurance to him that his incrimination for the very serious crime had been legitimate and insulated from either invention or malice. In this connection, the Court states that the unexplained non-compliance with the procedures for preserving the chain of custody of the dangerous drugs has frequently caused the Court to absolve those found guilty by the lower courts. CHAIN OF CUSTODY – As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same (People vs. Constantino, Jr. GR No. 199689, March 12, 2014). Thus, the following links must be established in the chain of custody in a buy-bust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turn over of the illegal drug seized by the apprehending officer to the investigating officer; third, the turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turn over and submission of the marked illegal drugs seized from the forensic chemist to the court (People vs. Constantino, Jr. GR No. 199689, March 12, 2014) MARKING - Crucial in proving the chain of custody is the marking of the seized dangerous drugs or other related items immediately after they are seized from the accused, for the marking upon seizure is the starting point in the custodial link that succeeding handlers of the evidence will use as reference point. Moreover, the value of marking of the evidence is to separate the marked evidence from the corpus of all other similar or

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA related evidence from the time of seizure from the accused until disposition at the end of criminal proceedings, obviating switching, “planting” or contamination of evidence. A failure to mark at the time of taking of initial custody imperils the integrity of the chain of custody that the law requires (People vs. Constantino, Jr. GR No. 199689, March 12, 2014) The rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence. There are occasions when the chain of custody rule is relaxed such as when the marking of the seized items immediately after seizure and confiscation is allowed to be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of an accused in illegal drugs cases. However, even a less-than-stringent application of the requirement would not suffice to sustain the conviction in this case. There was no categorical statement from any of the prosecution witnesses that markings were made, much less immediately upon confiscation of the seized items. There was also no showing that markings were made in the presence of the accused in this case (Lopez vs. People, GR No. 188653, January 29, 2014). Drug peddling in schools is prevalent; the scenario attending this case is likely to be repeated many times. To impose on school personnel the observance of the same procedure required of law enforces (like marking) – processes that are unfamiliar to them – is to set a dangerous precedent that may eventually lead to the acquittal of many drug peddlers. To our mind, the evidentiary value of the seized specimen remains intact as long as the school personnel who had initial contact with the drug/s was able to establish that the evidence had not been tampered with when he handed it to the police (Marquez vs. People, G.R. No. 197207, March 13, 2013) PARAPHERNALIA WITH TRACES OF SHABU – In People vs. Matinez, G.R. No. 191366, December 13, 2010 - This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result

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as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15. PLANTING OF EVIDENCE - As a general rule, planting of evidence to incriminate an innocent person constitutes the crime of incriminating an innocent person under Article 363 of RPC. However, if the incriminatory evidence planted is dangerous drugs or unauthorized explosives, loose firearm, the crime committed is planting of evidence under RA 9165 for the dangerous drug, PD 1866 as amended by RA 9516 for the explosive and RA No. 10591. PLEA BARGAINING - Section 23 of RA No. 9165, any person charged under any crime involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. TRAFFICKING IN PERSON Can accused be convicted of illegal recruitment and trafficking in person for the same of act of recruiting a person for prostitution without violating the rule on double jeopardy? Yes. When an act or acts violate two or more different laws and constitute two different offenses, a prosecution under one will not bar a prosecution under the other. The constitutional right against double jeopardy only applies to risk of punishment twice for the same offense, or for an act punished by a law and an ordinance. The prohibition on double jeopardy does not apply to an act or

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA series of acts constituting different offenses (People vs. Lalli, G.R. No. 195419, October 12, 2011). Is trafficking in persons limited to transportation of victims? No. Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not only limited to transportation of victims, but also includes the act of recruitment of victims for trafficking (People vs. Lalli, G.R. No. 195419, October 12, 2011). Is recruitment of the victim for prostitution with her consent or knowledge constitutive of the crime of trafficking in person? Yes. The crime of Trafficking in Persons can exist even with the victim’s consent or knowledge (People vs. Lalli, G.R. No. 195419, October 12, 2011). ILLEGAL RECRUITMENT It is well-established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa. The reason therefor is not hard to discern: illegal recruitment is malum prohibitum, while estafa is mala in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such intent is imperative (People vs. Chua, G. R. No. 187052, September 13, 2012). BP BLG. 22 What Batas Pambansa Blg. 22 punished was the mere act of issuing a worthless check. The law did not look either at the actual ownership of the check or of the account against which it was made, drawn, or issued, or at the intention of the drawee, maker or issuer. Also, that the check was not intended to be deposited was really of no consequence to her incurring criminal liability under Batas Pambansa Blg. 22 (Resterio vs. People, G.R. No. 177438. September 24, 2012). The giving of the written notice of dishonor does not only supply the proof for the second element arising from the presumption of knowledge the law puts up but also affords the offender due process. The law thereby allows the offender to avoid prosecution if she pays the holder of the check the amount due thereon, or makes arrangements for the payment in full of the check by the drawee within five banking days from receipt of the written notice that the check had not been paid. The Court cannot permit a deprivation of the offender of this statutory right by not giving the proper notice of dishonor (Resterio vs. People, G.R. No. 177438. September 24, 2012).

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Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act." This provision recognizes the reality that a corporation can only act through its officers. Hence, its wording is unequivocal and mandatory – that the person who actually signed the corporate check shall be held liable for a violation of BP 22. This provision does not contain any condition, qualification or limitation (Mitra Vs. People and Tarcelo, G.R. No. 191404. July 5, 2010) NOTICE OF DISHONOR IN ESTAFA CASE - The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof. It is criminal fraud or deceit in the issuance of a check which is made punishable under the RPC, and not the non-payment of a debt. The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act. However deceit is presumed if the drawer of the check fails to deposit the amount needed to cover his check within three days from receipt of notice of dishonor. a. No notice of dishonor - If there is no notice of dishonor, the prosecution can still prove the existence of deceit such as in a case where the accused knows that his checking account is closed. The receipt by the drawer of the notice of dishonor is not an element of the estafa through bouncing check. b. With notice of dishonor - If there is notice of dishonor, the presumption of deceit can still be rebutted by: (1) proof that the check is issued in payment of a pre-existing obligation or (1) evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtor’s offer to arrange a payment scheme with his creditor or making full payment of the entire amount of the dishonored checks. However, simply empty promise to pay complainant the value of the bum checks issued in order to induce her to part with her property in favor of accused is not an evidence of good faith that will rebut the presumption of deceit. (See: People vs. Ojeda, G.R. Nos. 104238-58, June 3, 2004, Corona; Lopez vs. People, G.R. No. 166810, June 26, 2008, De Castro;

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA Recuerdo vs. People, G.R. No. 168217, June 27, 2006, )

sum became due and demandable until fully paid, stands.

NOTICE OF DISHONOR IN BP BLG. 22 - Notice of dishonor of a check to the maker in BP Blg. 22 must be in writing. A mere oral notice to the drawer or maker of the dishonor of his check is not enough. If the maker or drawer pays, or makes arrangements with the drawee bank for the payment of the amount due within the five-day period from notice of the dishonor given to the drawer, it is a complete defense; the accused may no longer be indicted for violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the payment of the amount due as a complete defense. Assuming that the accused had knowledge that he had insufficient funds in the drawee bank when he issued the questioned checks, he could still have paid the checks or made arrangements with the drawee bank for the payment of the said checks if he had been duly notified of their dishonor. In not sending a notice or letter of dishonor to the petitioner as required by law, the complaint deprived the accused of his right to avoid prosecution for violation of B.P. Blg. 22 (Sia vs. G.R. No. 149695, April 28, 2004).

FULL PAYMENT OF AMOUNT OF DISHONORED CHECKS - The full payment of the amount appearing in the check within five banking days from notice of dishonor is a “complete defense” (Lina Lim Lao v. CA, 274 SCRA 572) regardless of the strength of the evidence offered by the prosecution (Meriz vs. People, G.R. No. 134498, November 13, 2001). The accused has the burden to establish by convincing, satisfactory and credible evidence that payment was made within the grace period (Arceo vs. People, G.R. No. 142641, July 17, 2006). Exceptions: In Griffith vs. Hon. Court of Appeals, G.R. No. 129764, March 12, 2002 and in Cruz vs. Cruz, G.R. No. 154128, February 8, 2007 considered full payment of the check after the expiration of grace period of five days from receipt of notice of dishonor. The SC in these cases applied the “utilitarian doctrine” instead of the mala prohibita principle. (1) In Griffith, since the creditor have collected already more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, holding the debtor’s president to answer for a criminal offense under B.P. 22 two years after said collection, is no longer tenable nor justified by law or equitable considerations. (2) In Cruz vs. Cruz, petitioner made full payment of the dishonored check after eleven (11) days from receipt of notice of dishonor. Respondent filed the complaint almost six (6) months after the said payment.

In San Mateo vs. People, G.R. No. 200090, March 6, 2013 - Complainant tried to serve the notice of dishonor to the accused two times. On the first occasion, complainant’s counsel sent a demand letter to accused’s residence at Greenhills, San Juan which the security guard refused to accept. Thus, the liaison officer left the letter with the security guard with the instruction to hand it to accused. But the prosecution failed to show that the letter ever reached accused. On the second occasion, counsel sent a demand letter to accused by registered mail which was returned with the notation "N/S Party Out 12/12/05" and that accused did not claim it despite three notices to her. Since there is insufficient proof that accused actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. For this reason, the Court cannot convict her with moral certainty of violation of B.P. 22. Nevertheless, accused’s acquittal does not entail the extinguishment of her civil liability for the dishonored checks. An acquittal based on lack of proof beyond reasonable doubt does not preclude the award of civil damages. For this reason, the trial court’s directive for San Mateo to pay the civil liability in the amount representing the total value of the checks plus 12% interest per annum from the time the said

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SUSPENSION OF PAYMENT - X in his capacity as officer of Z corporation issued a corporate check in favor of A. The check bounced due to DAIF. Notice of dishonor was received by X. After three months, SEC issued order creating the Management Committee and ordering the suspension of all pending actions for claims against Z corporation. (a) Is X liable for violation of BP Blg. 22? Answer: Yes. X was formally notified of the dishonor of the checks. Yet, it was only more than three months after, that the SEC issued order for the suspension of all pending actions for claims against Z corporation. Thus, X was not precluded from making good the checks during that three-month gap when he received the letter and when the SEC issued the order (Tiong Rosario vs. Co, G.R. No.

133608, August 26, 2008)

(b) Would your answer be the same if the order of suspension was issued before

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA the presentment for payment of the check when the drawee bank and the sending of notice of dishonor? Answer: No. X is not liable for violation of BP Blg. 22. Considering that there was a lawful Order from the SEC, the contract is deemed suspended. When a contract is suspended, it temporarily ceases to be operative; and it again becomes operative when a condition occurs - or a situation arises warranting the termination of the suspension of the contract. When a contract is subject to a suspensive condition, its birth takes place or its effectivity commences only if and when the event that constitutes the condition happens or is fulfilled. Thus, at the time A presented the check for encashment, it had no right to do so, as there was yet no obligation due from X (Gidwani vs. People, GR No. 195064, January 15, 2014). ANTI-GRAFT AND CORRUPT PRACTICES LAW Section 3(e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is “manifest partiality” when there is clear, notorious, or plain inclination or predilection to favor one side or person rather than another. “Evident bad faith” connotes not only bad judgment but also palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. “Evident bad faith” contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes. “Gross inexcusable negligence” refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected (Plameras vs. People, GR No. 187268, September 04, 2013). The rules, regulations and policies of the COA and those mandated under the Local Government Code were knowingly sidestepped and ignored by the petitioner which enabled CKL to successfully get full payment for the school desks and armchairs, despite non-delivery – an act or omission evidencing bad faith and manifest partiality. It must be borne to mind that any procurement or “acquisition of supplies or property by local government units shall be through competitive public bidding”. The

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petitioner admitted in his testimony that he is aware of such requirement, however, he proceeded just the same due to the alleged advice of the unnamed DECS representative that there was already a negotiated contract – a representation or misrepresentation he willfully believed in, without any verification. As a Governor, he must know that negotiated contract can only be resorted to in case of failure of a public bidding. As it is, there is no public bidding to speak of that has been conducted. Intentionally or not, it is his duty to act in a circumspect manner to protect government funds. To do otherwise is gross inexcusable negligence, at the very least, especially so, that petitioner acted on his own initiative and without authorization from the Provincial School Board (Plameras vs. People, GR No. 187268, September 04, 2013). Failure of petitioner as City Engineer to validate the ownership of the land on which the canal was to be built because of his unfounded belief that it was public land constitutes gross inexcusable negligence. In his own testimony, petitioner impliedly admitted that it fell squarely under his duties to check the ownership of the land with the Register of Deeds. Yet he concluded that it was public land based solely on his evaluation of its appearance, i.e. that it looked swampy. Moreover, the undue injury to private complainant was established. The cutting down of her palm trees and the construction of the canal were all done without her approval and consent (Sanchez vs. People, GR No. 187340, August 14, 2013). This crime has the following essential elements: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or gross inexcusable negligence; and 3. His action caused any undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions (People vs. Atienza, GR No. 171671, June 18, 2012, Justice Peralta). Crime of corruption under Section 3 (e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. There is “manifest partiality” when there is a clear, notorious, or plain inclination or predilection to favor one side or person rather than another. “Evident bad faith” connotes not only bad judgment but also

2014 BAR REVIEWER ON CRIMINAL LAW UNIVERSITY OF THE PHILIPPINES LAW CENTER JUDGE MARLO B. CAMPANILLA palpably and patently fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill will. “Evident bad faith” contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes. “Gross inexcusable negligence” refers to negligence characterized by the want of even the slightest care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intentionally, with conscious indifference to consequences insofar as other persons may be affected (People vs. Atienza, GR No. 171671, June 18, 2012, Justice Peralta).. The act of destroying the subject fences without giving any notice to the private complainant does not amount to manifest partiality and/or evident bad faith as indicated in the information. The same could not be considered evident bad faith as the prosecution evidence failed to show that the destruction was for a dishonest purpose, ill will or self interest. The fence was destroyed because it is a tourist spot and it is also a port for the fishermen (People vs. Atienza, GR No. 171671, June 18, 2012, Justice Peralta).

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