2015-CRIM-LAW-SUGGESTED-ANSWER-Dean-Festin.doc

Answers to the 2015 Bar Examination Questions in Criminal Law ==================================== SUGGESTED ANSWERS FROM DEAN GEMY LITO L. FESTIN

I. a.) How are felonies committed? Explain each. (3%) SUGGESTED ANSWER: Felonies (delitos) are committed either by means of deceit (dolo) or by means of fault (culpa). There is deceit when the act is performed with deliberate intent. There is fault when the wrongful act results from imprudence, negligence, lack of foresight or lack of skills. In both cases it is necessary that there is voluntariness which is presumed from the elements of freedom of action and intelligence. (p. 32, Notes and Cases of the Revised Penal Code, Boado, 2008 ed.) b. What is aberratio ictus? (2%) SUGGESTED ANSWER: In Aberratio Ictus, or error in the victim of the blow, the offender intends the injury on one person but the harm fell on another. (p. 38, Boado supra) This situation brings about a complex crime where from a single act, two or more grave or less grave felonies resulted, namely the attempt against the intended victim and the consequence on the unintended victim. As such complex crime, the penalty for the more less serious crime shall be imposed and in the maximum period (1999 bar) II. Distinguish between ex post facto law and bill of attainder. (3%) SUGGESTED ANSWER: Ex post facto law is a penal law which is given retroactive application to the prejudice of the accused. It is provided under Article III, Section 22 of the Constitution. On the other hand, a bill of attainder as defined in the case of People vs. Ferrer (48 SCRA 382, 395) is a legislative act which inflicts punishment without trial. Its essence is the substitution of a legislative act for a judicial determination of guilt. This is embodied under Article III, Section 14[I] of our Constitution. These two constitute as constitutional limitations on the power of the lawmaking body to enact penal legislation.

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Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

III. The Regional Trial Court {RTC) found Tiburcio guilty of frustrated homicide and sentenced him to an indeterminate penalty of four years and one day of prision correccional as minimum, to eight years of prision mayor as maximum, and ordered him to pay actual damages in the amount of 1125,000.00. Tiburcio appealed to the Court of Appeals which sustained his conviction as well as the penalty imposed by the court a quo. After sixty days, the Court of Appeals issued an Entry of Judgment and remanded the records of the case to the RTC. Three days thereafter, Tiburcio died of heart attack. Atty. Abdul, Tiburcio's counsel, filed before the RTC a Manifestation with Motion to Dismiss, informing the court that Tiburcio died already, and claiming that his criminal liability had been extinguished by his demise. a.) Should the RTC grant the Motion to Dismiss the case? Explain. (2.5%) SUGGESTED ANSWER: Yes, the RTC should dismiss the case. Death of convict extinguishes criminal liability at any stage of the proceeding but his civil liability shall be extinguished if the death occurs before final judgment. The reason is that the penalty requires personal service of sentence. If death occurs, there will be nobody to serve the penalty for the crime (People vs. Bayotas, September 1994) b.) Assuming that Tiburcio's death occurred before the Court of Appeals rendered its decision, will you give a different answer? Explain. (2.5%) SUGGESTED ANSWER: No. Paragraph 1 of Art. 89 does not qualify the stage for the extinguishment of criminal liability in case of death of the accused unlike that of civil liability. Likewise, in the case of People vs Alison, (44 SCRA 523, 525) the Court ruled that when the accused died while the judgment of conviction against him was pending appeal, his civil and criminal liability was extinguished by his death. IV. Procopio, a call center agent assigned at a graveyard shift, went home earlier than usual. He proceeded immediately to their bedroom to change his clothes. To his surprise, he found his wife Bionci in bed making love to another woman Magna. Enraged, Procopio grabbed a knife nearby and stabbed Bionci, who died. 2|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

a.) What crime did Procopio commit, and what circumstance attended the case? Explain. (3%) SUGGESTED ANSWER: Procopio committed the crime of Parricide. Art. 246 provides that any person who shall kill his xxx spouse, shall be guilty of Parricide. Procopio cannot avail Art. 247 (Death or Physical Injuries Inflicted under Exceptional Circumstances) considering that one of the requisites for its application is the sexual intercourse. Being both women, Bionci and Magna cannot perform sexual intercourse. Passion and Obfuscation because the impulse was caused by the sudden revelation that her wife was untrue to him and his discovery of her in flagrante in the arms of another. b.) Assuming that Procopio and Bionci were common-law spouses, will your answer be the same? Explain. (2%) SUGGESTED ANSWER: No, my answer will not be the same. The relationship between spouses must be valid and legitimate in order to liable for Parricide. In such a case, Procopio will be liable for Homicide with the presence of a mitigating circumstance of Passion and Obfuscation. V. Dion and Talia were spouses. Dion always came home drunk since he lost his job a couple of months ago. Talia had gotten used to the verbal abuse from Dion. One night, in addition to the usual verbal abuse, Dion beat up Talia. The next morning, Dion saw the injury that he had inflicted upon Talia and promised her that he would stop drinking and never beat her again. However, Dion did not make good on his promise. Just after one week, he started drinking again. Talia once more endured the usual verbal abuse. Afraid that he might beat her up again, Talia stabbed Dion with a kitchen knife while he was passed out from imbibing too much alcohol. Talia was charged with the crime of parricide. a.) May Talia invoke the defense of Battered Woman Syndrome to free herself from criminal liability? Explain. (2.5%)

SUGGESTED ANSWER: No, Talia cannot invoke the Battered Women Syndrome to free herself from criminal liability. The Supreme Court in the case of People vs Genosa (G.R. No. 135981) ruled that for Battered Woman Syndrome to be successfully 3|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

invoke as a defense, there must be at least two (2) cycles of violence. Each cycle must undergo three (3) phases which consist of (a) tension-building phase; (b) acute battering incident; (c) tranquil loving phase. At tension building phase, this is where the minor battering occurs - verbal or physical abuse or other form of hostile behavior. The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The final phase of the cycle of violence begins when the acute battering incident ends. During this period, the couple experience profound relief. Indeed, the batterer may show tender, nurturing behavior toward his partner. In the case at bar, there is only one (1) complete cycle that is present. There was no showing of another acute battering phase as well as tranquil phase after the first cycle. Merely verbal abuse does not qualify as acute battering phase, thus, Talia cannot invoke the Battered Woman Syndrome. b.) Will your answer be the same, assuming that Talia killed Dion after being beaten up after a second time? Explain. (2.5%) SUGGESTED ANSWER: It depends. Talia may invoke the Battered Woman Syndrome if the third phase of tranquil period is present too. It is a settled principle that for the Battered Woman Syndrome to be successfully invoked, there should at least be two (2) cycles of violence. Applying the said principle in the case at bar, if after she was beaten the second time, Dion again promised not to beat up Talia or had showed a tender, nurturing behavior towards her before he was killed, she will be justified in killing her husband . In this case, the requirement of a tranquilloving phase will now be present and therefore, the second cycle of violence will be complete. Otherwise, the answer will still be the same and she will still be criminally liable. VI. Senator Adamos was convicted of plunder. About one year after beginning to serve his sentence, the President of the Philippines granted him absolute pardon. The signed pardon states: "In view hereof, and in pursuance of the authority vested upon me by the Constitution, I hereby grant absolute pardon unto Adamos, who was convicted of plunder in Criminal Case No. XV32 and upon whom the penalty of reclusion perpetua was imposed." He now comes to you for advice. He wants to know if he could run for senator in the next election. a.) What advice will you give Adamos? Explain. (2.5%) 4|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

SUGGESTED ANSWER: I will advice Adamos that he cannot run for Senate. Pardon looks forward and relieves the offender from consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that,reason it does not work the restoration of the rights to hold public office or the rights to hold public office or the right of suffrage, unless such rights to hold public office or the rights be expressly restored by the terms of the pardon. (Barrioquinto, et al. vs. Fernandez, 82 Phil. 642, 646-647) Considering that there was no express mention of restoring his right to hold public office, Adamos cannot run for Senate. b.) Assuming that what Adamos committed was heading a rebellion for which he was imposed the same penalty of reclusion perpetua, and what he received was amnesty from the government, will your answer be the same? Explain. (2.5%) SUGGESTED ANSWER: No, my answer will not be the same. Amnesty looks backward and abolishes and puts into oblivion the offense itself; it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense. (Barrioquinto, et al. vs. Fernandez, supra) Applying in this case, Adamos may now run for Senate for the amnesty totally obliterates the last vestige of the crime. VII. Taylor was convicted of a violation of the Election Code, and was sentenced to suffer imprisonment of one year as minimum, to three years as maximum. The decision of the trial court was affirmed on appeal and became final and executory. Taylor failed to appear when summoned for execution of judgment, prompting the judge to issue an order for his arrest. Taylor was able to use the backdoor and left for the United States. Fifteen years later, Taylor returned to the Philippines and filed a Motion to Quash the warrant of arrest against him, on the ground that the penalty imposed against him had already prescribed. a.) If you were the judge, would you grant Taylor's Motion to Quash? Explain. (2.5%) SUGGESTED ANSWER:

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Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

No, since the prescription of penalties under Article 93 of the Revised Penal Code applies only to those who are convicted by final judgment and are serving sentence which consists in deprivation of liberty. The period for prescription of penalties begins only when the convict evades sentence by escaping during the term of his sentence (Pangan vs. Hon. Gatbalite, et al., G.R. No. 141718, 2005; Infante vs. Warden, 92 Phil. 310). Applying the rule in the case at bar, since Taylor never suffered deprivation of liberty because he is not yet arrested to serve the sentence, the penalty thus imposed has not yet prescribed. b.) Assuming that instead of the United States, Taylor was able to go to another country with which the Philippines had no extradition treaty, will your answer be the same? Explain. (2.5%) SUGGESTED ANSWER: Yes, my answer will be the same. Even if Taylor went to another country with which the Philippine has no extradition treaty, the ruling is the same considering that the period of prescription of penalties has not yet commenced because there was yet no service of sentence. VIII. A typhoon destroyed the houses of many of the inhabitants of X Municipality. Thereafter, X Municipality operated a shelter assistance program whereby construction materials were provided to the calamity victims, and the beneficiaries provided the labor. The construction was partially done when the beneficiaries stopped helping with the construction for the reason that they needed to earn income to provide food for their families. When informed of the situation, Mayor Maawain approved the withdrawal of ten boxes of food from X Municipality's feeding program, which were given to the families of the beneficiaries of the shelter assistance program. The appropriations for the funds pertaining to the shelter assistance program and those for the feeding program were separate items on X Municipality's annual budget. a.) What crime did Mayor Maawain commit? Explain. (2.5%) SUGGESTED ANSWER: Mayor Maawin commiited the crime of Technical Malversation. Under Article 220 of the Revised Penal Code, Illegal Use of Public Funds of Property or Technical Malversation is committed when any public officer shall apply any public funds or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance. 6|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

In the case at bar, the funds for the shelter assistance program and those of the feeding program are specifically appropriated by law for their respective purposes. Hence, the act of Mayor Maawain in transferring 10 boxes of food from the feeding program to the shelter assistance program where the funds of these programs were separate items is considered as technical malversation. b.) May Mayor Maawain invoke the defense of good faith and that he had no evil intent when he approved the transfer of the boxes of food from the feeding program to the shelter assistance program? Explain. (2.5%) SUGGESTED ANSWER: Mayor Maawan cannot invoke the defense of good faith. Although the crime is punished under the Revised Penal Code, jurisprudence dictates that Technical Malversation under Article 220 of the Revised Penal Code is malum prohibitum. This being so, criminal intent is not an element of the crime. Intent to perpetrate an act will suffice to convict an accused. IX. The Philippine Drug Enforcement Agency (PDEA) had intelligence reports about the drug pushing activities of Rado, but could not arrest him for lack of concrete evidence. SP03 Relio, a PDEA team leader, approached Emilo and requested him to act as poseur-buyer of shabu and transact with Rado. Emilo refused, saying that he had completely been rehabilitated and did not want to have anything to do with drugs anymore. But he was prevailed upon to help when SP03 Relio explained that only he could help capture Rado because he used to be his customer. SP03 Relio then gave Emilo the marked money to be used in buying shabu from Rado. The operation proceeded. After Emilo handed the marked money to Rado in exchange for the sachets of shabu weighing 50 grams, and upon receiving the pre-arranged signal from Ernilo, SP03 Relio and his team members barged in and arrested Rado and Ernilo, who were both charged with violation of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of2002. a.) What defense, if any, may Ernilo invoke to free himself from criminal liability? Explain. (2.5%) SUGGESTED ANSWER: A.

Ernilo may invoke that he was instigated by the PDEA team leader which is an absolutory cause. An absolutory cause is where the act committed is a crime but for reasons of public policy and sentiment, there is no penalty imposed. In instigation, the law enforcer conceives the commission of the crime and suggests to the 7|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

accused who adopts the idea and carries it into execution. (People vs. Marcos, G.R. No. 83325, May 8, 1990, 185 SCRA 154, 164). Further, in instigation, a public officer induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. In the case at bar, Ernilo was approached and requested by SPO3 Relio to act as posuer buyer. He even refused but was prevailed upon by the said officer. Unfortunately, when he made the pre-arranged signal, he was arrested. It is settled doctrine that when there is instigation, the accused must be acquitted. b.) May Rado adopt as his own Emilo's defense? Explain. (2.5%) SUGGESTED ANSWER: No, Rado cannot adopt Ernilo’s defense. The surrounding circumstances present in the case of Ernilo are absent in his case. Nowhere from the facts given that he was induced by the police officers to commit a crime. His act of selling prohibited drugs is a clear violation of the Comprehensive Dangrous Drugs Act of 2002. X. Honesto and Wilma were married but had been living separately due to irreconcilable differences. Honesto later met Celia and fell in love with her. Thinking that he could marry Celia if Wilma were to die, Honesto decided to kill Wilma. He secretly followed Wilma for weeks to learn her daily routine. He decided to kill her at night on her way home. On the night he was to kill Wilma, Honesto wore dark clothes so that he would not be easily seen. He waited in the dark alley for Wilma to pass by. He saw someone whom he thought looked like Wilma and shot her with a revolver. The bullet passed through the person's head and grazed another passerby's arm. Some bystanders who heard the shot were able to stop Honesto. It turned out that Wilma did not report for work on that day, and the one who was shot in the head was Melba, who died. The passerby whose arm was grazed by the bullet required medical attendance for two days. a.) What crime(s) did Honesto commit? Explain. (2.5%) SUGGESTED ANSWER: Honesto committed the crime of Homicide for the death of Melba and a separate crime of slight physical injury for the injury sustained by the 8|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

passerby. Honesto is liable for homicide since Art. 4 paragraph 1 provides that criminal liability is incurred by any person by committing a felony although the wrongful act done be different from that which he intended which contemplated the situation of error in personae or mistake in identity. In the case at bar, there was an error in personae or mistake in identity when the victim (Melba) was shot in the head and died, but she was mistaken for another (Wilma) who was not at the scene of the crime. Honesto is also liable for the crime of slight physical injury for the injury sustained by the passerby since the bullet which passed through Melba's head is the proximate cause of the injury applying Art. 4 paragraph 1 of the Revised Penal Code and also the principle that "He who is the cause of the cause is the cause of the evil caused." As a rule, the offender is criminally liable for all the consequences of his felonious act is the proximate of the felony. There is no complex crime because under Article 48 of the Revised Penal Code, the single act committed must constitute a grave or less grave felonies. While homicide may constitute a grave felony, the injury on the arm sustained by the passerby which required two days medical attendance is merely a slight physical injury. b.) Will your answer be the same, assuming that the other passerby was hit in the left eye which caused his/her blindness? Explain. (2.5%) SUGGESTED ANSWER: My answer will not be the same if the other passerby was hit in the left eye which caused his or her blindness. The crime committed against the passerby is no longer slight physical injury but serious physical injury under the 2nd paragraph of Article 263 considering he/she lost her left eye. In this case, Honesto will be liable for the complex crime of Homicide with Serious Physical Injuries because a single act caused a grave and less grave felonies (Art 48, RPC). Homicide is a grave felony while serious physical injuries is a less grave felony. XI. Nel learned that Elgar, the owner of the biggest house in the place, would be out of town for three days with no one left to watch the house. He called his friends Ben, Ardo and Gorio and they planned to take the valuables in the house while Elgar was away. Nel and Ben would go inside the house, Ardo would serve as the lookout, while Gorio would stay in the getaway car. When Elgar left, they carried out their plan to the letter. Nel and Ben went inside the house through the backdoor which was left unlocked. None of the rooms and drawers inside were 9|Page

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

locked. They took the money, jewelry and other valuables therefrom and immediately left using the getaway car. After driving for about one kilometer, Nel realized he left his bag and wallet with IDs in the house and so he instructed Gorio to drive back to the house. Nel just went in thinking that the house was still empty. But to his surprise, Nel found Fermin seated on a bench with Nel’s bag and wallet beside him and appeared to be texting using his smart phone. Nel took a golf club near him and hit Fermin with it. Fermin shouted for help, but Nel kept hitting him until he stopped making noise. The noise alerted the neighbor who called the police. Nel, Ben, Ardo and Gorio were caught. Fermin died. What is the criminal liability of Nel, Ben, Ardo, and Gorio? Explain. (5%) SUGGESTED ANSWER: Nel, Ben, Ardo, and Gorio are all criminally liable for Theft. In addition, Nel is also liable for the crime of Homicide. While it seems that a special complex crime of robbery with homicide may have been committed because death results immediately after the taking of the personal properties, however, a close scrutiny of the facts of the case shows otherwise. Under the provisions of the Revised Penal Code, intent to gain and taking of personal property belonging to another are elements of the crimes of robbery and theft. What makes robbery different from theft are the elements of violence or intimidation upon person; or with force upon things. Without these elements, the crime committed is merely theft. In this case, they took the valuables belonging to Elgar from his house. However, there was no violence or intimidation exerted against a person and neither was there force upon things exerted in effecting entrance to the premises or in taking the valuables. The facts show that Nel and Ben went inside the house through the backdoor left unlocked and none of the rooms and drawers insidewere locked. As there was the absence of force or intimidation, theft is committed. In addition, since none of the qualifying circumstances of murder is present in this case, Nel only committed the crime of homicide in killing Fermin. (because the killing of fermin was not included in the conspiracy with Ben, Ardo and Gorio which was to steal the valuables of Edgar.) XII. Ando, an Indonesian national who just visited the Philippines, purchased a ticket for a passenger vessel bound for Hong Kong. While on board the vessel, he saw his mortal enemy Iason, also an Indonesian national, seated at the back portion of the cabin and who was busy reading a newspaper. Ando stealthily approached 10 | P a g e

Answers to the 2015 Bar Examination Questions in Criminal Law ====================================

Iason and when was near him, Ando stabbed and killed Iason. The vessel is registered in Malaysia. The killing happened just a few moments after the vessel left the port of Manila. Operatives from the PNP Maritime Command arrested Ando. Presented for the killing of Iason, Ando contended that he did not incur criminal liability because both he and the victim were Indonesians. He likewise argued that he could not be prosecuted in Manila because the vessel is a Malaysian-registered ship. Discuss the merits of Ando’s contentions. (4%). SUGGESTED ANSWER: Ando’s contentions are not tenable. In the case of US vs. Bull, 15 Phil. 7 (as cited in Reyes, 2008), it was held that since the Philippine territory extends to three miles from the headlands, when a foreign merchant vessel enters this three-mile limit, the ship’s officers and crew become subject to the jurisdiction of our courts. The space within three miles of a line drawn from the headlands which embrace the entrance to Manila Bay is within territorial waters. In the case under consideration, the killing of Iason happened just a few moments after the vessel left the port of Manila. Hence, it is deducible that the crime was committed within the Philippine territory. The fact that the vessel is a Malaysian-registered ship is irrelevant as it matters only when the crime was committed on the high seas. Moreover, the English rule which is observed in Philippine jurisdiction provides that crimes committed aboard merchant vessels while in the territorial waters of another country are triable in that country, unless they merely affect things within the vessel or they refer to the internal management thereof (Reyes, 2008). Killing a person does not only affect the internal management of the vessel as public interest is involved. Thus, Philippine courts can take cognizance of this case. XIII. Dora gave Elen several pieces of jewelry for sale on commission basis. They agreed that Elen would remit the proceeds of the sale and return the unsold items to Dora within 60 days. The period expired without Elen remitting the proceeds of the sale or returning the pieces of jewelry. Dora demanded by phone that Elen turn over the proceeds of the sale and return the pieces of jewelry. Elen promised to do so the following day. Elen still failed to make good on her promise but instead issued post-dated checks. Thereafter, Dora made several more demands, the last of which was in writing, but they were all unheeded. When the checks were deposited in Dora’s bank account, the checks were returned unpaid for insufficient funds. Elen was charged with estafa and violation of Batas Pambansa Blg. 22. Will the charges against Elen prosper. Explain (4%). 11 | P a g e

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SUGGESTED ANSWER: Yes, the charges against Elen will prosper. Assemblyman Estelito Mendoza, who authored BP 22, expressed the view that “if he issues a check in payment of or contemporaneously with incurring an obligation, then he will be liable not only for estafa but also for violation of this Act.” His reason is that, “the Supreme Court in several cases has decided that where there is a variance between the elements of an offense in one law and another law, there will be no double jeopardy.” He cited the element of damage in estafa, which is not required in BP 22. In view of the purpose of the enactment of BP 22, the crime defined and penalized there is against public interest, while the crime of estafa is against property. Deceit is an element of estafa. This is not required in BP 22. (Reyes, RPC, 2008). Another jurisprudence: While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by the petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to double jeopardy. (People vs. Reyes, G.R. Nos. 101127-31 November 18, 1993 citing People vs. Miraflores) In the case at bar, the following elements of BP 22 were established: (1.) Elen drew checks to apply to account or for value; (2.) She knew at the time of the issuance that she did not have sufficient funds in the drawee bank for the payment of the checks in full upon its presentment; and (3.) The checks were subsequently dishonored by the drawee bank for insufficiency of funds. (Festin, Special Penal Laws, Vol. I, 2013) Also, the following elements of estafa under par. 2(d) of Article 315 of the RPC were established: (1.) Elen issued post-dated checks in payment of an obligation contracted at the time the check was issued; (2.) lack of sufficiency of funds to cover the checks; and (3.) damage to the payee. (Cajigas vs. People, 580 SCRA 54, February 23, 2009 as cited in Festin, Special Penal Laws, Vol. I, 2013) (estafa was committed upon failure to turn over the proceeds of the sale or returning the pieces of jewelry in violation of Art. 315, part 4, 1(b), RPC by which act Elen abused Dora’s confidence on her. There is prima facie evidence of misappropriation of the thing she received in trust. 12 | P a g e

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The filing of Violation of BP 22 against Elen is tenable, separate from that of Estafa. There existed the presumption of her knowledge of insufficiency of funds upon her issuance of the post-dated check by virtue of her failure to cover, make arrangements, for the amount of the check within 5 days from notice of non-payment when the check was presented after 90 days from its date.) XIV. Dela convinced Nita to work in Taiwan, promising Nita that she would take care of the processing of the necessary documents. Dela collected P 120,000 from Nita purportedly for the processing of her papers. Upon receipt of the money, Nita was made to accomplish certain forms and was told that she would be deployed to Taiwan within one month. After one month, Nita followed up on her application. Dela made some excuses and told Nita that the deployment would be delayed. Another month passed and Dela made other excuses which made Nita suspicious. Nita later discovered that Dela was not licensed to recruit. Nita later confronted Dela and demanded the return of her money. Dela promised to return the same in week’s time. a.) A week later, Dela was nowhere to be found. What crime(s) did Dela commit? Explain (2.5%)

SUGGESTED ANSWER: Dela committed the crimes of estafa and illegal recruitment. It is well established in jurisprudence that a person may be charged and convicted for both illegal recruitment and estafa. The reason threfor 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 in snot necessary for conviction. In the second, such intent is imperative. Estafa under Article 315 par. 2(a) of the RPC is committed by any person who defrauds another by using fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed prior to or simultaneously with the commission of fraud. (People vs. Chua, G.R. No. 187052, September 13, 2012). In this case, it was established that Dela defrauded Nita by leading her to believe that she has the capacity to send her to Taiwan for work even though she has no license or authority for the purpose. Such misrepresentation came before Nita delivered P120,000 for the processing of papers. Hence, it is clear that Nita would not have parted with her money were it not for the enticement of Dela. Thus, Nita suffered damages as the promised employment abroad never materialized and the money paid were 13 | P a g e

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never recovered. These circumstances rendered Dela liable for illegal recruitment under R.A. No. 8042 as amended in relation to the Labor Code and estafa under Article 315 par. 2(a) of the RPC. b.) Will your answer still be the same, assuming that the promise to deploy for employment abroad was made by Dela to Celia, Digna, and Emma, in addition to Nita, and from whom Dela also collected the same amount of processing fee? Explain (2.5%) SUGGESTED ANSWER: No, my answer will be different. Illegal recruitment is committed in large scale if it is committed against three (3) or more persons individually or as a group and it is considered as an offense involving economic sabotage. (People vs. Gallo et al., G.R. No. 187730, June 29, 2010) Consequently, if the promise to deploy for employment abroad was made by Dela to Celia, Digna, Emma, Nita with the corresponding collection of processing fee, she is liable for illegal recruitment in large scale. Furthermore, for the same reasons given in sub-question (a), Dela is also liable for estafa under Article 315 par. 2(a) of the RPC. XV. Dancio, a member if a drug syndicate, was a detention prisoner in the provincial jail of X province. Brusco, another member of the syndicate, regularly visited Dancio. Edri, the guard in charge who had been receiving gifts from Brusco everytime he visited Dancio, became friendly with him and became relaxed in the inspection of his belongings during his jail visits. In one of Brusco’s visits, he was able to smuggle in a pistol which Dancio used to disarm the guards and destroy the padlock of the main gate of the jai, enabling dancio to escape. What crime(s) did Dancio, Brusco and Edri commit? Explain. SUGGESTED ANSWER: Dancio did not commit any crime for he is a mere detention prisoner at the time he escaped. Article 157 of the Revised Penal Code on Evasion of Sentence provides that, the felony shall be imposed upon a convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of a final judgment. There being no final judgment yet, no crime has been committed. Brusco, on the contrary, may be held liable for Obstruction of Justice under PD 1829 for facilitating the escape of Dancio whom he knows to have committed an offense under an existing penal law to prevent his prosecution and conviction. 14 | P a g e

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Whereas, Edri, a public officer, may be held liable for Infidelity in the Custody of Prisoners under Article 244 of the Revised Penal Code. Brusco was able to smuggle the pistol because of Edri’s negligence which resulted to the escape of Dancio. Where it not for his act the detained prisoner would not have escaped. XVI. Erwin and Bea approached Mayor Abral and requested him to solemnize their marriage. Mayor Abral agreed. Erwin and Bea went to Mayor Abral’s office on the day of the ceremony, but Mayor Abral was not there. When Erwin and Bea inquired where Mayor Abral was, his chief of staff Donato informed them that the Mayor was campaigning for the coming elections. Donato told them that the Mayor authorized him to solemnize the marriage and that Mayor Abral would just sign the documents when he arrived. Donato thereafter solemnized the marriage and later turned over the documents to Mayor Abral for his signature. In the marriage contact, it was stated that the marriage was solemnized by Mayor Abral. What crime(s) did Mayor Abral and Donato commit? Explain. SUGGESTED ANSWER: Mayor Abral committed Falsification by making it appear he had participated in an act or proceeding when he did not, in fact, so participate. In this case, he made it appear in the marriage contract that he solemnized the marriage between Erwin and Bea when, in actually, he did not. Donato, on the other hand, committed Usurpation of Authority or Official Functions under Article 177 of the Revised Penal Code. When Donato solemnized the marriage, he performed an act pertaining to Mayor Abral under the pretense of his official function without being lawfully entitled to do so. XVII. After a heated argument over his philandering, Higino punched on the head his wife, Aika, who was six and a half months pregnant. Because of the impact, Aika lost her balance, fell on the floor with her head hitting a hard object. Aika died and the child was expelled prematurely. After thirty six-hours, the child died. a.) What crime(s) did Higino committed? Explain. SUGGESTED ANSWER: Higino committed the complex crime of Parricide with Infanticide. The offender committed the crime of Parricide for killing his spouse as provided under Article 246 of the Revised Penal Code in relation to Article 4(1). His act of punching Aika’s head was the proximate cause of the death when the victim fell on the floor and hit a hard object. Likewise, he may also be held liable for Infanticide under Article 255. The child was deemed born when he had an intra-uterine life of six and a half 15 | P a g e

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(6 ½) months and after having survived thirty-six (36) hours from being expelled from the mother’s womb. Considering that these two crimes were committed by a single act that constitutes two grave felonies, a complex crime of Parricide with Infanticide is, therefore, committed. b.) Assuming that when the incident occurred, Aika was only six months pregnant, and she she died, the fetus inside her womb also died, will your answer be different. Explain. SUGGESTED ANSWER: The answer will be different. Higino will then be liable for complex crime of Parricide with Unintentional Abortion. When Higino killed his wife he committed Parricide under Article 246 of the Revised Penal Code. Since the unborn baby of Aika died in the process of violence, but Higino had no intention to cause abortion, the latter committed unintentional abortion under Article 257. In as much as the single act of Higino produced two grave or less grave felonies, the act falls under Article 48 as complex crime.

XVIII. Lito, a minor, was bullied by Brutus, his classmate. Having had enough, Lito got the key to the safe where his father kept his licensed pistol and took the weapon. Knowing that Brutus usually hung out a nearby abandoned building after class, Lito went ahead and hid while waiting for Brutus. When Lito was convinced that Brutus was alone, he shot Brutus, who died on the spot. At the time of the shooting, Lito was fifteen years and one month old. What is Lito’s criminal liability? Explain. SUGGESTED ANSWER: Lito committed the crime of murder under Article 248 of the Revised Penal Code even if he is a minor. . Republic Act 9344 provides that a child over fifteen (15) and under eighteen (18) years of age will be criminally liable if he acted with discernment at the time of the commission of the offense. If he acted without discernment, the minor will not be liable It is submitted that Lito acted with discernment. Discernment is defined as the mental capacity of a minor to fully appreciate the consequences of his unlawful act. It may be shown by the manner the crime was committed. In this case, Lito premeditated the killing of Brutus. He got the key to the safe, took the weapon and knowing the victim usually hung out a nearby abandoned building, he went ahead and hid while waiting for him. When Lito was convinced that victim was alone, he shot him,

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The circumstances above show that the killing of Brutus was attended with the qualifying circumstance of treachery. The following are present. 1) Brutus died without an opportunity to defend himself as the attack was sudden and unexpected; 2) The means adopted by Brutus (Lito not Brutus) was consciously and deliberately adopted to ensure its execution. The mode of attack was thought of by him. Therefore, Lito may be held liable for murder. XIX Bruno, a taxi driver, had an indebtedness in the sum of Pl 0,000.00 which would become due in one week. He was starting to worry because he still had not raised the amount to pay for his debt. Every day, he had prayed for divine intervention. One night, while returning the taxi to the garage, he found a wallet on the back seat. Inspecting it, he learned that it contained exactly Pl0,000.00 cash, the amount of his obligation, and IDs. Thinking it was divine intervention, and that his prayers were answered, he took the money and used it to pay his debt. a.) What crime, if any, did Bruno commit? Explain. (2.5o/o) SUGGESTED ANSWER: Bruno committed a crime of theft. Under Article 308 (1) of the Revised Penal Code, theft is likewise committed by any person who having found lost property, shall fail to deliver the same to the local authorities or to its owner. In this case, Bruno, by failing to deliver the wallet belonging to another and having the opportunity to return it to the local authorities or to its owner refrained from doing so committed a crime of theft. b.) Assuming that instead of using the money, Bruno turned over the wallet and its contents to the nearby police station, and it was the chief of police of that station who appropriated the money for his own benefit, what crime was committed by the chief of police? Explain. (2.5%) SUGGESTED ANSWER: The crime committed by the chief of police is Malversation. It is a wellsettled rule that malversation may be committed even when the property misappropriated is a private property if it is deemed in custodial legis. In this case, the wallet and its contents was turned over to the nearby police station. Such being the case, it partakes of the nature of a public property. Clearly, the act of the chief of police in appropriating the lost properties constitutes the crime of malversation. XX. 17 | P a g e

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Senio planned to burn Bal' s house. One evening, during a drinking spree at his house, Senio told his friends what he intended to do and even showed them the gasoline in cans that he would use for the purpose. Carlo, a common friend of Senio and Bal, was present at the drinking spree. He was still sober when Senio told them his plans. Before going home, Carlo warned Bal that Senio would burn his house and had already bought gasoline that would be used for the purpose. Bal reported the matter to the police authorities. Meanwhile, Senio went to Bal' s house and proceeded to pour gasoline around the walls of the house and it was at that point when he was caught by the police. What crime did Senio commit, if any? Explain. (3%) SUGGESTED ANSWER: The crime committed is Attempted Arson. Under Article 6 of the Revised Penal code, there is an attempt when the offender commences the commission of a felony directly or over acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance. Arson in an inhabited house or dwelling is committed when there is intentional burning and what is intentionally burned is an inhabited house or dwelling. Here, although Senio commences the commission of the crime of arson by pouring of gasoline around the walls of the house of Bal, he failed to perform the act of burning when he was caught by the police hence, he is only liable of attempted arson. XXI. Filipino citizens Hector and Wendy were married in New York, and have been living happily in Manila for the last three years. Hector was removing junk from his basement when he came across an unlabeled recordable. He put it in his computer's DVD drive to check its contents. To his surprise, he saw a video of Wendy and another man Ariel, in the act of sexual intercourse in the master's bedroom of his house. Angered by what he saw, he filed a complaint for adultery against Wendy and Ariel. During the course of the trial, and again to the surprise of Hector, it was proved that Wendy was born male and underwent sex reassignment later in life. a. May Hector's charge of adultery against Wendy and Ariel prosper? Explain. (3%) SUGGESTED ANSWER: No, the charge of adultery will not prosper because under Article 333 of the Revised Penal Code, a crime of adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. One of the elements therefore is that the offender must be a married a woman. 18 | P a g e

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In this case, Wendy is born male and not a woman hence, he cannot be charged of adultery. b.) What is an impossible crime? Can there be an impossible crime of adultery? (2%) SUGGESTED ANSWER: Impossible crime under Article 4 of the Revised Penal Code is committed by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means. No, there can be no impossible crime of adultery. Impossible crime under Article 4 of the Revised Penal Code applies to crimes against persons or property. Adultery is classified as a crime against chastity. XXII. Charlie was charged for the qualified rape of AAA. The Information alleged that AAA was 14 years old at the time the crime was committed and that Charlie was AAA's stepfather. The presentation of AAA's birth certificate during the trial duly established the following: ( 1) that AAA was indeed 14 years old at the time of the rape; and (2) that AAA's mother is BBB and her father was the late CCC. BBB and Charlie only became live-in partners after CCC's death. The RTC found Charlie guilty of qualified rape. On appeal, the Court of Appeals convicted Charlie of simple rape. Charlie appealed before the Supreme Court. How will you rule and why? (3 % ) SUGGESTED ANSWER: It is humbly submitted that the ruling of the Court of Appeal must be reversed. Under Article 2660 - B of the Revised Penal Code, a crime of rape is qualified when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. In this case, the information contains that AAA is only 14 years old when the crime of rape is committed and that Charlie, the offender, is a common- law spouse of AAA’s mother. Thus, Charlie must be convicted of qualified rape and not of simple rape.

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