2017-crim-bar-q-and-a (1)

1. Tonito, an 8-year-old boy, was watching a free concert at the Luneta Park with his father Tony. The child stood on a chair to be able to see the performers on the stage. Juanito, a 10-year-old boy, who was also watching the concert, could not see much of the performance on the stage because Tonito was blocking his line of sight by standing on the chair. Using his elbow, Juanito strongly shoved Tonito to get a good view of the stage. The shove caused Tonito to fall to the ground. Seeing this, Tony struck Juanito on the head with his hand and caused the boy to fall and to hit his head on a chair. Tony also wanted to strangle Juanito but the latter’s aunt prevented him from doing so. Juanito sustained a lacerated wound on the head that required medical attendance for 10 days. Tony was charged with child abuse in violation of Sec. 10(a), in relation to Sec. 3(b)(2), of R.A. 7610 (Child Abuse Law) for allegedly doing an “act by deeds or  words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being.” In his defense, Tony contended that he had no intention to maltreat Juanito, much less to degrade his intrinsic worth and dignity as a human being. (a) Distinguish crimes mala in se from crimes mala prohibita. (3%) Criminal law Reviewer, Volume 1, 2017 Edition Page 2 Mala in se and mala prohibita are distinguished as follows: (1) Mala in se are inherently wrong or immoral, while mala prohibita are not inherently wrong; they are only wrong because they are prohibited by law; (2) In mala in se, good faith o r lack of criminal intent is a defense, while in mala prohibita, good faith is not a defense; (3) Modifying circumstances can be appreciated in mala in se. These circumstances will not be appreciated in mala prohibita, unless the special l aw that punishes them adopts the technical nomenclature of the penalties of the Revised Penal Code; (4) Mala in se are punishable under the Revised Penal Code; o r special laws where the acts ac ts punishable therein are wrong in nature. Mala prohibita are punishable under special laws (b) Was Tony criminally liable for child abuse under R.A. 7 610? Explain your answer. (3%) 2017 Bar Reviewer 68. RA No. 7610 - The Family Code prohibits the infliction of corporal punishment by teacher. A schoolteacher in employing unnecessary violence on her minor student, who even fainted, is liable for child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, October 08, 2014, Bersamin). Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 169533, March 20, 2013, Bersamin). 2017 Last Minute Material 6. Accused saw the victim hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 1 69533, March 20, 2013, Bersamin). This principle is only applicable if the accused acted at the spur of the moment.

2. Sixteen year old Aliswan prodded Ametyst, his girlfriend, to remove her clothing while they were secretly together in her bedroom late one evening. Failing to get a positive response from her, he forcibly undressed her. Apprehensive about rousing the attention of the household who did not know of his presence inside her room, she resisted him with minimal strength, but she was really sobbing in a muffled manner. He then undressed himself while blocking the door. Yet, the image of a hapless and sobbing Amethyst soon brought him to his senses, and impelled him to leave her room naked. He did not notice in his hurry that Amante, the father of Amethyst, who was then sitting alone on a sofa in the sala, saw him leave his daughter’s room naked.

Outside the house, the now- clothed Aliswan spotted Allesso, Amethyst’s former suitor. Knowing how Allesso had aggressively pursued Amethyst, Aliswan f atally stabbed Allesso. Aliswan immediately went into hiding afterwards. Upon learning from Amethyst about what Aliswan had done to her, an enraged Amante wanted to teach Aliswan a lesson he would never forget. Amante set out the next day to look for Aliswan in his school. There, Amante found a young man who looked very much like Aliswan. Amante immediately rushed and knocked the young man unconscious on the pavement, and then draped his body with a prepared tarpaulin reading RAPIST AKO HUWAG TULARAN. Everyone else in the school was shocked upon witnessing what had just transpired , unable to believe tthat the timid and quiet Alisto, Aliswan’s identical twin brother, had committed rape. (a) A criminal complaint for attempted rape with homicide was brought against Aliswan in the Prosecutor’s Office. However, after preliminary investigation, the Investigating Prosecutor recommended the filing of two separate informations – one for attempted rape and the other for homicide. Do you agree with the recommendation? Explain your answer. (3%) 2017 Bar Reviewer h. Criminal touching - Touching of either labia majora or labia mi nora of the pudendum of the victim by an erect penis of the accused capable of penetration consummates the crime (People vs. Campuhan, G.R. No. 129433, March 30, 2000; P eople vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin). Touching the labia by instrument or object (such as tongue or finger) also consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011). In People vs. Nuyok, G.R. No. 195424, June 15, 2015, Bersamin, the commission of rape can be established by circumstantial evidence even if the victim, being the sole witness, was rendered unconscious during its commission. Accused slapped victim and punched her in the stomach. She was rendered unconscious. When she regained consciousness, she found blood in her panties, and felt pain in her vagina. Accused was convicted of rape. In People vs. Belgar, G.R. No. 182794, September 08, 2014, Bersamin, the accused had injected an unknown substance into her belly that had then rendered her unconscious. Upon waking up, she had found herself lying naked on the ground; she had felt pain in her vagina, which held a red and white substance in it; and he had been the only person last seen by her before she had passed out. The lack of direct evidence against him notwithstanding, these circumstances sufficed to prove his guilt beyond reasonable doubt because they formed an unbroken chain that unerringly showed Belgar, and no other, had committed the rape against her.

If the offender touches the body of the victim through force, without touching the labia of her pudendum but with clear intention to have sexual intercourse, the crime committed is attempted rape. Intent to have sexual intercourse is present if is shown that the erectile penis of the accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin) or the accused actually commenced to force his penis into the victim's sexual organ (People vs. Banzuela, G.R. No. 202060, December 11, 2013). For there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed (People vs. Bandril, G.R. No. 212205, July 06, 2015). If the offender touches the body of the victim through force, with lewd design but without clear intention to have sexual intercourse, the c rime committed is acts of lasciviousness. Kissing and undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her vagina by the hand of the accused (People vs. Banzuela, G.R. No. 202060, December 1 1, 2013), touching the breast and thighs of victim and kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); or rubbing his penis on the mons pubis of the pudendum (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts o f lasciviousness because intent to have sexual intercourse is not clearly shown, but lewd design is established. In People vs. Dadulla, G. R. No. 172321, February 9, 2011, Bersamin, the accused's act of opening the zipper and buttons of AAA's shorts, touching her, and trying to pull her from under the bed manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent to lie with AAA motivated the accused was plainly wanting, therefore, rendering him guilty only of acts of lasciviousness In Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin, touching her genitalia with his hands and mashing her breasts are "susceptible of double interpretation." These circumstances may show that the intention of the accused is either to commit rape or simple seduction (or acts of lasciviousness). Since intent to have sexual intercourse is not clear, accused could not be held liable for attempted rape. Hence, he is only liable for acts of lasciviousness. If the offender touches the body of the victim without lewd design or without clear intention to satisfy lust, the crime committed is unjust vexation. In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November 29, 1967, accused kissed and embraced his co-teacher while the latter was conducting her class. The factual setting, i.e., a schoolroom in the presence of complainant's students and within hearing distance of her coteachers, rules out a conclusion that the accused was actuated by a lustful design. The crime committed is merely unjust vexation. In People vs. Sumingwa, G.R. No. 183619, October 13, 2009, embracing, dragging and kissing in front of her friend constitute unjust vexation. 2017 Last Minutes Materials 7. Climbing on top of the naked victim, touching her genitalia and mashing her breasts are susceptible of double interpretation (People v. L amahang). His intention is either to rape or seduce her. Hence, the accused cannot be held liable for attempted rape because intent to have sex is not clear. He is only liable for acts of lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin).

(b) Before the trial court, Aliswan moved that the cases should be dismissed because he was entitled to the exempting circumstance of minority. Is his motion correct? Explain your answer. (3%) 2017 Bar Reviewer 15. Child in conflict with the law -The rights and privileges of a child in conflict with the law are as follows: 1. If the accused is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively presumed. If the child is above 15 years of age, minority is an exempting circumstance if he acted without discernment, or privilege mitigating circumstance if he acted with discernment. This privilege mitigating circumstance shall be appreciated even if minority was not proved during the trial and that his birth certificate was belatedly presented on appeal (People vs. Agacer, G.R. No. 177751, January 7, 2013) and even if the penalty is reclusion perpetua to death (People vs. Ancajas, G.R. No. 199270, October 21, 2015). (c) After receiving medical attendance for 10 days, Alisto consulted you about filing the proper criminal complaint against Amante. What crimes, if any, will you charge Amante with? Explain your answer. (3%) 2017 Bar Reviewer 68. RA No. 7610 - The Family Code prohibits the infliction of corporal punishment by teacher. A schoolteacher in employing unnecessary violence on her minor student, who even fainted, is liable for child abuse under RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, October 08, 2014, Bersamin). Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 169533, March 20, 2013, Bersamin). 2017 Last Minutes Materials 6. Accused saw the victim hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 16953 3, March 20, 2013, Bersamin). This principle is only applicable if the accused acted at the spur of the moment. (d) Answering the criminal complaint filed by Alisto, Amante contended that he had incurred no criminal liability for lack of crimi nal intent on his part, his intended victim being Aliswan, not Alisto. What is this defense of Amante, and explain if the same will prosper? (3%) Criminal Law Reviewer Volume 1, 2017 Edition Page 31 2. Error in personae - Error in personae means mistake of identity. In error in personae, a person is criminally responsible for committing an intentional felony although the actual victim is different from the intended victim due to mistake of identity (1949, 1989, and 1999 Bar Exams). Aberratio

ictus or error in personae carries the same gravity as when the accused zeroes in on his intended victim (People vs. Pinto, G.R. No. 39519, November 21, 1991). For example, X waited in ambush for A to kill him. He saw B a few meters away and, believing B to be A, he fired upon and killed B whom he had no intention of hurting. X shall incur criminal liability for killing B because of the error in personae principle (1958 Bar Exam). In mistake of fact, the mistake pertains to the elements of justifying circumstance, exempting circumstance or absolutory cause such as the existence of unlawful aggression, while in error in personae, the mistake merely pertains to the identity of the victim. In mistake of fact, the accused committed the act without dolo; hence, he is not criminally liable, and because of such mistake, the  justifying circumstance, exempting circumstance or absolutory cause shall be considered in his favor. In error in personae, the accused acted with dolo; hence, he shall incur criminal liability for ki lling or injuring a victim although this victim is different from the intended victim (1958 B ar Exam).

3. Overjoyed by the award to his firm of a multi-billion government contract for the development of an economic and tourism hub in the Province of Blank, Mr. Gangnam allotted the amount of ₱100 Million to serve as gifts for certain persons instrumental in his firm’s winning the award. He gave

50% of that amount to Governor Datu, the official who had signed the contract with the proper authorization from the Sangguniang Panlalawigan; 25% to Bokal Diva, the Sangguniang Panlalawigan member who had lobbied for the award of the project in the Sangguniang Panlalawigan; 25% to Mayor Dolor of the Municipality where the project would be implemented. Governor Datu received his share through his wife, Provincial First Lady Dee, who then deposited the amount in her personal bank account. Previously, upon facilitation by the Bokal Diva, Mr. Gangnam concluded an agreement with Mayor Dolor for the construction of the Blank Sports Arena worth ₱800 Million. The project was highly overpriced because it could be undertaken and completed for not more than ₱400 Million. For this project, Mayor Dolor received from Mr. Gangnam a gift of ₱10 Million, while Bokal Diva got ₱25 Million. In both instances, Bokal Diva had her gifts deposited in the name of her secretary, Terry, who personally maintained a bank account for Bokal Diva’s share in government p rojects. (a) May each of the above-named individuals be held liable for plunder? Explain your answer. (4%) 2017 Bar Reviewer 75. Plunder - The elements of plunder are: First - That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; (Note: Senator Pogi can be held liable for plunder even if the principal o ffender, who masterminded the plunder of pork barrel, is a private individual, the Pork-barrel Queen. What is important is that Senator Pogi in connivance with Pork-barrel Queen acquired ill-gotten wealth). On the other hand, Pork-barrel Queen can be held liable for plunder on the basis of conspiracy. Second - That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: 1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (Example: Misuse of funds in the amount P10 million by awarding contract to a close

relative, who is not the lowest bidder; Misuse of funds or fraud disposition of government asset to P100 million by diverting the construction of road leading to his farm instead of the poblacion). Can the Senator use the defense in malversation that he is not responsible for the misuse of his PDAP since it is the duty of the appropriate implementing agency of the government to c heck that the recipient of the fund is not bogus? No. Assuming that the duty to check that the recipient of the Senator’s PDAP is not bogus belongs to the appropriate agency of the government, the Senator is still liable since malversation can be committed through culpa. 2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the of fice or position of the public officer; (Example: Collecting or receiving commission from the sales of Belle Shares in the amount of P189,700,000.00 whic h was deposited in the Jose Velarde account and receiving bi- monthly collections from “jueteng”, a for m of illegal gamblingin the aggregate amount of P545,291,000.00 of which was deposited in the Erap Muslim Youth Foundation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007). 3. By the illegal or fraudulent conveyance or disposition of assets belonging to government (Example: Ordering the GSIS and the SSS by President Estrada to purchase shares of stock of Belle Corporation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007); 4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; 5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6. By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; Note: The word “combination” means at least two different predicate crimes; while the term “series” means at least two predicate c rimes of the same kind (Ejercito vs. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006). Thus, a single predicate crime amounting to 50 million pesos is not plunder. The intention of the lawmakers is that if there is only one predicate crime, the offender has to be prosecuted under the particular crime, which is already covered by existing laws. What is punishable under the law is "acts of plunder", which means that there should be at least, two or more, predicate crimes (See deliberation of the Bicameral Committee on Justice, May 7, 1991).

Third - That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00 (Joseph Ejercito Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001). The damages suffered by the government in diverting the road from the poblacion to the farm of the accused shall not be considered in determining if plunder is committed. What is important is the amount of ill-gotten wealth acquired by the public officer and not the amount of damage suffered by the government. In People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007 -One of the predicate crimes alleged in the information is misappropriation of the excise tax share of Ilocos Sur. This was not proven beyond reasonable doubt. However, the following predicate crimes were alleged and proven by evidence (1) series of acts of receiving collections from "jueteng" in the aggregate amount

of P545,291,000.00; and (2) series consisting of two acts of ordering the GSIS and the SSS to purchase shares of stock of Belle Corporation and collecting or receiving commission from the sales of Belle Shares in the amount of P189,700,000.00. This pattern of criminal acts indicates an overall unlawful scheme or conspiracy to amass ill-gotten wealth in the amount of more than P50 million. Estrada was convicted of plunder. (b) Define wheel conspiracy and chain conspiracy. Is either or both kinds existent herein? Explain your answer. (4%) 2017 Bar Reviewer There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conpiracy. Under the wheel or circle conspiracy, there is a single person or group (the "hub") dealing individually with two or more other persons or groups (the "spokes"). Under the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 20 07). An illustration of wheel conspiracy wherein there is only o ne conspiracy involved was the conspiracy alleged in the information for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin). In case of several individuals are charged with plunder, the law requires that there must be a main plunderer and her co-conspirators, who may be members of her family, relatives by affinity or consanguinity, business associates, subordinates or other persons (GMA vs. P eople, G.R. No. 220598, July 19, 2016, Bersamin). In the Enrile vs. People, G.R. No. 213455 , August 11, 2015, if the allegation is true, the main plunder is Senator Enrile. In People vs. Estrada, the main plunderer is the hub or President Estrada. If the main plunderer is unidentified, the total amount allegedly acquired by several accused shall be divided for purposes of determining if the P50 million threshold had been reached. In GMA vs. People, G.R. No. 220598, July 19, 2016, ten persons, where charged of amassing, accumulating and acquiring ill-gotten wealth aggregating to P365,997,915.00 without identifying the main plunderer. As such, each of the 10 accused would account for the aliquot amount of only P36,599,791.50, or exactly 1/10 of the alleged aggregate ill-gotten wealth, which is far below the threshold value of illgotten wealth required for plunder. In this situation, plunder is not committed. If the main plunderer is identified, the total amount acquired by him and his co-conspirators shall be considered in determining if the P50 million threshold had been reached. For example, if GMA was identified as a main plunder, her acts and that of the other conspirators in amassing, accumulating and acquiring ill-gotten wealth aggregating to P365,997,915.00 shall be considered for purposes of determining if the P50 million threshold had been reached. In this situation, plunder is committed. In Enrile vs. People, G.R. No. 213455, August 11, 2015, it was stated that in the crime of plunder, the amount of ill-gotten wealth acquired by Senator, his assistant, and a private individuals in a conspiracy is immaterial for as long as the total amount amassed, acquired or accumulated by them is at least P50 million. 2017 Last Minutes Materials 4. If there is wheel conspiracy concerning the series of acts of misappropriation of P360 million, and Pedro was identified as the principal plunder or the hub and the nine (9) other accused was

identified as the spokes, the entire amount of P360 million shall be considered to determine if the P50-million threshold in plunder has been reached. Hence, Pedro is liable for plunder. The 9 spokes are also liable for plunder since under the law persons who participated with the said public officer in the commission of an offense shall likewise be punished for such offense. If there is wheel conspiracy concerning the series of acts of misappropriation of P360 million, but none of the 10 accused was identified as the hub or principal plunder, each of t hem is only liable for 10% of the P360 million. Since each of them is only liable for P36 million, plunder is no committed since the P50-million threshold had not been reached (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin). (c) What provisions of RA no. 3019 (Anti-Graft & Corrupt Practices Act), if any, were violated by any of the above-named individuals, specifying the persons liable therefore? Explain your answer. (4%) 2017 Criminal law Reviewer Page 73-74 e. Multiple conspiracies - There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conspiracy. Under the wheel or circle conspiracy, there is a single person or group (the "hub") dealing individually with two or more other persons or groups (the "spokes"). An illustration of wheel conspiracy wherein there is only o ne conspiracy involved was the conspiracy alleged in the information for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth (GMA vs. People, G.R. No. 220598, July 19, 2016). Under the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 2007; 2016 Bar Exam). 2017 Last Minute Materials 11. After the EDSA revolution II, Pedro, Secretary of Justice, demanded money from Mark with a threat to file criminal case against him in connection with crimes committed by him in conspiracy with the ousted President. Pedro is not liable for violation of Section 3 (b) of RA No. 3019, which punishes requesting or receiving money in connection with government contract or transaction where the public officer has the right to intervene under the law. Section 3 (b) of RA No. 3019 is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Preliminary investigation is not a contract or transaction within the contemplated of Section 3 (b). Hence, requesting or receiving money in connection with a preliminary investigation is not a violation of this provision. However, Pedro is liable for robbery since threat to prosecute is an intimidation within the contemplation of Article 294 0f RPC (Justice Secretary Perez, G.R. No. 188165, December 11, 2013, Bersamin). But if Mark gave money to Pedro not because of a threat to criminally prosecute him but by reason a voluntary agreement for the dismissal of the case, the crime committed by the latter is direct bribery while the former is liable for corruption of pubic officer. (d) What crimes under the Revised Penal Code, if any, were committed, specifying the persons liable therefor? Explain your answer. (4%)

4. Maita was the object of Solito’s avid sexual desires. Solito had attempted ma ny times to entice Maita to a date in bed with him but Maita had consistently refused. Fed up with all her rejections, Solito abducted Maita into a Toyota Innova and drove off with her to a green-painted house situated in a desolated part of the town. There, Solito succeeded in having carnal knowledge of Maita against her will. Meanwhile, the police authorities were tipped off that at 11:30 p.m. on that same night Solito would be selling marijuana outside the green-painted house. Acting on the tip, the PNP station of the town formed a buy-bust team with PO2 Masahol being designated the poseur buyer. During the buy-bust operation Solito opened the trunk of the Toyota Innova to retrieved the bag of marijuana to be sold to PO2 Masahol. To cut the laces that he had tied the bag with, Solito took out a swiss knife, but his doing so prompted PO2 Masahol to effect his immediate arrest out of fear that he would attack him with the knife. PO2 Masahol then confiscated the bag of marijuana as well as the Toyota Innova. (a) Two informations were filed against Solito in the RTC  – one for forcible abduction with rape, raffled to Branch 8 of the RTC; the other for illegal sale of drugs, assigned to Branch 29 of the RTC. Was Solito charged with the proper offenses based on the circumstances? Explain your answer. (5%) Criminal Law Reviewer, Volume One 2017 Edition e. Abduction with multiple rapes  – If the victim was abducted and raped several times, the following rules shall be observed: i. Principal objective is to rape - If the main objective of the accused is to rape the victim, the crime committed is rape. Forcible abduction (People vs. Mejoraday, G.R. No. 102705, July 30, 1993; People vs. Almanzor, G.R. No. 124916, July 11, 2002) or illegal detention (People vs. Nuguid, G.R. No. 148991, January 21, 2004), which is incidental to the commission of rape, is absorbed. The doctrine of absorption rather than Article 48 of Revised Penal Code is applicable since forcible abduction or illegal detention is an indispensable means to commit rape. ii. Abduction with lewd design - If forcible abduction is a necessary means to commit rape, this is a complex crime proper under Article 48 of the Revised Penal Code. However, if multiple rapes were committed, forcible abduction will be considered as a necessary means to commit the first rape but not the subsequent rapes. Hence, with respect to the first rape, the crime committed is rape though forcible abduction, while the subsequent rapes will be treated as separate crimes (People vs. Jose, G.R. No. L-28232, February 6, 1971; People vs. Garcia, G.R. No. 141125, February 28, 2002, En Banc; People vs. Amaro, G.R. No. 199100, July 18, 2014; 2000 Bar Exam). As a rule, forcible abduction is an indispensable means to commit rape; hence, the latter absorbs the former. However, if the victim was brought in a house or motel or in a place with considerable distance from the place where she was abducted, forcible abduction will be considered as a necessary means to commit rape; hence, the crime committed is complex crime proper. iii Intent to deprive liberty - If the accused abducted the victim without clear manifestation of lewd design, the crime committed is kidnapping and serious illegal detention since it will appear that the intention of the accused is to deprive the victim of her liberty. If as a consequence of illegal detention, the victim was raped, the crime committed is a special complex crime of kidnapping with rape. This is the crime committed regardless of the number of rapes. Multiple rapes will be considered as a component of this special complex crime (People vs. Anticamaray, G.R. No. 178771,

June 8, 2011; People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011; 2013 Bar Exam). If as a consequence of illegal detention, the victim was raped and then killed, the crime committed is a special complex crime of kidnapping with homicide. Rape will be considered as component of this special complex crime (People vs. Larranaga, 138874-75, February 3, 2004). Victim rejected her suitor being in love with another man. Angered, the suitor with his friend abducted her and her sister. They bro ught them in an abandoned warehouse where they forced them to dance naked. Thereafter, they brought them to a hill where they took turns raping them. After satisfying their lust, one of the victims was pushed down to a ravine, resulting in her death, while other was never seen again. The crime committed is a special complex crime of kidnapping with homicide. Rape will be treated as a component of this special complex crime. There is no clear showing of lewd design at the precise moment that the accused abducted the victims. The accused appears to be motivated by revenge rather than lewd design (People vs. Larranaga, supra; 2006 Bar Exam). The difference between rape through forcible abduction and kidnapping with rape lies on the criminal intention of the accused at the precise moment of abduction. If the abduction is committed with lewd design, the crime committed is complex crime of rape through forcible abduction. Subsequent rapes will be considered as separate crimes. On the other hand, if the abduction is committed without lewd design, the crime committed is special complex crime of kidnapping with rape. Subsequent rapes will be considered as components of this special complex crime (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 20 11). Even though the victim was detained for one week and in the course thereof, she was raped, the crime committed is complex crime of rape through forcible abduction if the abduction is committed with lewd design (People vs. Amaro, G.R. No. 199100, July 18, 2014; 2000 Bar Exam). If the accused was molesting the victim immediately after abduction, this circumstance is a proof that abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by the accused, the victim became dizzy and thereafter, she passed out. When she regained consciousness, she notices that she and the accused are naked inside a room. She was raped and detained for 6 days. The crime committed is complex crime of rape through forcible abduction (People vs. Amaro, supra). 2017 Bar Reviewer a. Abduction and rape - If the main objective of the accused is to rape the victim, the crime committed is rape. Forcible abduction (People vs. Mejoraday, G.R. No. 102705, July 30, 1993; People vs. Almanzor, G.R. No. 124916, July 11, 2002) or illegal detention (People vs. Nuguid, G.R. No. 148991, January 21, 2004), which is incidental to the commission of rape, is absorbed. The doctrine of absorption rather than Article 48 of RPC is applicable since forcible abduction or illegal detention is an indispensable means to commit rape. If forcible abduction is a necessary means to commit rape, this is a complex crime proper under Article 48 of RPC. However, if multiple rapes were committed, forcible abduction will be considered as a necessary means to commit the first rape but not the subsequent rape. Hence, with respect to the first rape, the crime committed is complex crime of rape though forcible abduction while the subsequent rapes will be treated as separate crimes (People vs. Jose, G.R. No. L-28232, February 6, 1971; People vs. Buhos, G.R. No. L-40995, June 25, 1980; People vs. Tami, G.R. Nos. 101801-03, May 02, 1995; People vs. Garcia, G.R. No. 141125, February 28, 2002, En Banc; People vs. Amaro, G.R. No. 199100, July 18, 2014). As a rule, forcible abduction is an indispensable means to commit rape; hence, the latter absorbs the former. However, if the victim was brought in a house or motel or in a place with considerable

distance from the place where she was abducted, forcible abduction will be co nsidered as a necessary means to commit rape; hence, the c rime committed is complex crime proper. If the accused abducted the victim without clear showing of lewd design, the crime committed is kidnapping since it will appear that the intention of the accused is to deprive victim of his liberty. If as a consequence of illegal detention, the victim was rape, the crime committed is a special complex crime of kidnapping with rape. This is the crime committed regardless of the number of rapes. Multiple rapes will be considered as a component of this special complex crime (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011; People vs. Anticamaray, G.R. No. 178771, June 8, 2011). If as a consequence of illegal detention, the victim was rape and then killed, the crime committed is a special complex crime of kidnapping with homicide. Rape will be considered as a component of this special complex crime (People vs. Larranaga, 138874-75, February 3, 2004, En Banc). The difference between rape through forcible abduction and kidnapping with rape lies on the criminal intention of the accused at the precise moment of abduction. If the abduction is committed with lewd design, the crime committed is rape through forcible abduction. On the other hand, if the abduction is committed without lewd design, the crime committed is kidnapping with rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011 ). Even if the victim was detained for one week and in the course thereof, she was rape, the crime committed is rape through forcible abduction if the abduction is committed with lewd design (People vs. Amaro, G.R. No. 199100, July 18, 2 014). If the accused was molesting the victim immediately upon abduction, that is proof that abduction is committed with lewd design (People vs. Jose, supra). After eating the food given by accused, the victim became dizzy and thereafter, she passed out. When she regained consciousness, she notices that she and accused are naked inside a room. She was raped and detained for 6 days. The crime committed is rape through forcible abduction (People vs. Amaro, G.R. No. 199100, July 18, 2014). 2017 Supplemental Bar Reviewer 31. In People vs. Figueroa, G.R. No. 186141, April 11, 2012, the poseur-buyer showed shabu for sale to poseur buyer. The sale was aborted when the police officers immediately placed accused under arrest. The crime committed is attempted sale. In People vs. Tumulak, G.R. No. 206054, July 25, 2016, accused intended to sell ecstasy and commenced by overt acts the commission of the intended crime by showing the substance to a police officer. Showing a sample is an overt act of selling dangerous drugs since it reveals the intention of the offender to sell it to the poseur-buyer. More importantly, the only reason why the sale was aborted is because the police officers identified themselves as such and placed accused under arrest - a cause that is other than her own spontaneous desistance. Accused was convicted of attempted sale of dangerous drugs. (b) While the Prosecution was presenting its evidence in Branch 29, Branch 8 convicted Solito. Immediately after the judgment of conviction was promulgated, Solito filed in both Branches a motion for the release of the Toyota Innova. He argued and proved that he had only borrowed the vehicle from his brother, the registered owner. Branch 8 granted the motion but Branch 29 denied it. Were the two courts correct in their rulings? Explain your answer. (5%) Comprehensive Dangerous Drugs Act of No.2002 By Judge Campanilla 2017 Edition

1. Forfeiture – Forfeiture, if warranted pursuant to Section 20 of R.A. No. 9165 would be a part of the penalty to be prescribed. The determination of whether or not the car (or any other article confiscated in relation to the unlawful act) would be subject of forfeiture could be made only when the judgment was to be rendered in the proceedings (PDEA vs. Brodett, G.R. No. 196390, September 28, 2011). Properties, which are not of lawful commerce such as marijuana, shall be ordered destroyed without delay pursuant to the provisions of Section 21 Assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income are deemed properties derived from the unlawful trafficking. Hence, they will likewise be conf iscated and forfeited. Proceeds and properties derived from drug trafficking (e.g. money and other assets obtained thereby), and the instruments or tools with which the particular unlawful act was committed shall be confiscated and forfeited in favor of the government. Under Article 45 of the Revised Penal Code, every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. Article 45 of the Revised Penal Code and Section 20 of RA No. 9165 bars the confiscation and forfeiture of an instrument or tool used in the commission of the crime if such "be the property of a third person not liable for the offense". In such case, the instruments or tools (e.g. car) used in committing drug related crime (sale of dangerous drugs) shall be returned to a third person not liable for the unlawful act. To bar the return of this tools and instruments belonging to a third person, there must be an indictment charging such third person either as a principal, accessory, or accomplice. Less than that will not suffice to prevent the return of the tools and instruments to the third person, for a mere suspicion of that person’s participation is not sufficient ground for the court to order the forfeiture of the goods seized (PDEA vs. Brodett, supra). However, the criminal instrument or tools shall only be returned to the owner, who is not an accused in the criminal case, after the rendition of the judgment. Ordering the release of the criminal instrument before the rendition of the judgment is premature, considering that Section 20 expressly forbids the disposition, alienation, or transfer of property confiscated from t he accused during the pendency of the proceedings in the Regional Trial Court. Section 20 further expressly requires that such property should remain in custodia legis in all that time to preserve it as evidence and to ensure its availability as such. Photographs of such instrument or tool might not fill in fully the evidentiary need of the Prosecution (PDEA vs. Brodett, supra). 5. To aid in the rebuilding and revival of Tacloban City and the surrounding areas that had been devastated by the strongest typhoon to hit the country in decades, the Government and other sectors , including NGOs, banded together in the effort. Among the NGOs was Bangon Waray, Inc. (BaWI), headed by Mr. Jose Ma. Gulang, its President and CEO. BaWI operated mainly as a social amelioration and charitable institution. For its activities in the typhoon-stricken parts of Leyte Province, BaWI received funds from all sources, local and foreign, including substantial amounts from legislators, local government officials and the EU. After several months, complaints were heard about the very slow distribution of relief goods and needed social services by BaWI.

The COA reported the results of its audit to the effect that at least ₱10 Million worth of funds coming from public sources channeled to BaWI were not yet properly accounted for. The COA demanded reimbursement but BaWI did not r espond. Hence, Mr. Gulang was criminally charged in the Office of the Ombudsman with malversation officer to render accounts as respectively defined and punished by Art. 217 and Art. 218 of the Revised Penal Code. He was also charged with violation of Sec. 3 (e) of R.A. 3019 for causing undue injury to the Government. In his defense, Mr. Gulang mainly contended that he could not be held liable under the various charges because he was not a public officer. (a) Who is a public officer? (2%) (b) Discuss whether the crimes charged against Mr. Gulang are proper. Explain your answer. (3%) Unpublished Criminal Law Reviewer, Volume Two 2018 Edition (sorry hindi umabot) However, a non-accountable officer or private individual can be held liable for malversation if he conspires with an accountable officer in committing the crime (People vs. Pajaro, G.R. Nos. 16786065, June 17, 2008). Moreover, a private individuals can be held liable for malversation if he in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual (Article 222 of the R evised Penal Code; 1975 Bar Exam). Criminal Law Reviewer, Volume One, 2017 Edition Page 69 Only public officer can be held criminally liable for violation of RA No. 3019. However, if there is conspiracy, the act of the public officer in violating RA No. 3019 is imputable to the private individual although they are not similarly situated in relation to the object of the crime. Moreover, Section 9 provides penalty for public officer or private person for crime under Section 3. Hence, a private individual can be prosecuted for violation of RA No. 301 9 (Henry Go vs. The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007). Note: In the problem, there is no showing that he conspired with a pubic officer in committing a crime under RA No. 3019 6. Answer with brief explanations the following queries: (a) If the slightest penetration of the female genitalia consummates rape by carnal knowledge, how does the accused commit attempted rape by carnal knowledge? (2%) 2017 Bar Reviewer h. Criminal touching - Touching of either labia majora or labia mi nora of the pudendum of the victim by an erect penis of the accused capable of penetration consummates the crime (People vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin). Touching the labia by instrument or object (such as tongue or finger) also

consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011). In People vs. Nuyok, G.R. No. 195424, June 15, 2015, Bersamin, the commission of rape can be established by circumstantial evidence even if the victim, being the sole witness, was rendered unconscious during its commission. Accused slapped victim and punched her in the stomach. She was rendered unconscious. When she regained consciousness, she found blood in her panties, and felt pain in her vagina. Accused was convicted of rape. In People vs. Belgar, G.R. No. 182794, September 08, 2014, Bersamin, the accused had injected an unknown substance into her belly that had then rendered her unconscious. Upon waking up, she had found herself lying naked on the ground; she had felt pain in her vagina, which held a red and white substance in it; and he had been the only person last seen by her before she had passed out. The lack of direct evidence against him notwithstanding, these circumstances sufficed to prove his guilt beyond reasonable doubt because they formed an unbroken chain that unerringly showed Belgar, and no other, had committed the rape against her. If the offender touches the body of the victim through force, without touching the labia of her pudendum but with clear intention to have sexual intercourse, the crime committed is attempted rape. Intent to have sexual intercourse is present if is shown that the erectile penis of the accused is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin) or the accused actually commenced to force his penis into the victim's sexual organ (People vs. Banzuela, G.R. No. 202060, December 11, 2013). For there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed (People vs. Bandril, G.R. No. 212205, July 06, 2015). If the offender touches the body of the victim through force, with lewd design but without clear intention to have sexual intercourse, the c rime committed is acts of lasciviousness. Kissing and undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her vagina by the hand of the accused (People vs. Banzuela, G.R. No. 202060, December 11, 2013 ), touching the breast and thighs of victim and kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); or rubbing his penis on the mons pubis of the pudendum (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts of lasciviousness because intent to have sexual intercourse is not clearly shown, but lewd design is established. In People vs. Dadulla, G. R. No. 172321, February 9, 2011, Bersamin, the accused's act of opening the zipper and buttons of AAA's shorts, touching her, and trying to pull her from under the bed manifested lewd designs, not intent to lie with her. The evidence to prove that a definite intent to lie with AAA motivated the accused was plainly wanting, therefore, rendering him guilty only of acts of lasciviousness In Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin, touching her genitalia with his hands and mashing her breasts are "susceptible of double interpretation." These circumstances may show that the intention of the accused is either to commit rape or simple seduction (or acts of lasciviousness). Since intent to have sexual intercourse is not clear, accused could not be held liable for attempted rape. Hence, he is only liable for acts of lasciviousness. 2017 Last Minutes Materials 7. Climbing on top of the naked victim, touching her genitalia and mashing her breasts are susceptible of double interpretation (People v. Lamahang). His intention is either to rape or seduce

her. Hence, the accused cannot be held liable for attempted rape because intent to have sex is not clear. He is only liable for acts of lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin). (b) What crime is committed by a capataz who enrols two fictitious names in the payroll a nd collects their supposed daily wages every payday? (2%) Criminal Law Reviewer, Volume I, 2017 Edition ii. Falsification, malversation, estafa and theft - If falsification o f document is a means to commit or to conceal malversation, estafa or theft, the following rules shall be observed: aa. Falsification of public, official or commercial document as a means to commit malversation, estafa or theft - When the offender commits falsification of public, official or commercial document as a necessary means to commit malversation, estafa or theft, the crime committed is complex crime proper under Article 48 of the Revised Penal Code (Tanenggee vs. People, G.R. No. 179448, June 26, 2013; Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009; David vs. People, G.R. No. 208320, August 19, 2015; 1950, 1961, 1986 and 1993 Bar Exams). A public officer who used falsified document to misappropriate government fund is liable for malversation through falsification of document or estafa through falsification of document depending upon the nature of his position. If the public officer is an accountable officer, misappropriation of public funds is malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934). If the public officer is not an acc ountable officer, misappropriation of funds is estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23, 1995). Using a falsified check to defraud the bank is estafa through falsification of commercial document (Tanenggee vs. People, supra). Using a stolen and falsified check to defraud the bank is theft through falsification of commercial document (People vs. Salonga, G.R. No. 131131, June 21, 2001). bb. Falsification of public, official or commercial document as a means to conceal malversation, estafa or theft - When the offender commits falsification of public, official or commercial document as a means to conceal malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31, 1933, En Banc; 1958, 1964 and 1988 Bar Exams); estafa (People vs. Monteverde, G.R. No. 139610, August 12, 2002; People vs. Benito, G.R. No. 36979, November 23, 1932; 1955 Bar Exam); or theft, the crimes are separate. This is not complex crime proper since one is not a necessary means to commit another. Other view: If falsification is committed for purposes of enabling the accused to commit malversation (Zafra vs. People, G.R. No. 176317, July 23, 2014) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140) with less risk of being detected, the accused is liable for complex crime proper (People vs. Silvanna, G.R. No. L-43120, July 27, 1935; 1980 Bar Exam). cc. Falsification of private document as a means to commit malversation, estafa or theft - Under the doctrine of common element, an element used to complete one crime cannot be legally r e-used to complete the requisites of a subsequent crime (Regalado). The common element of estafa or malversation and falsification of private document is damage to the complainant. Thus, falsification of private document and estafa or malversation cannot co-exist. The use of damage as an element of falsification of private document precludes the re-use thereof to complete the elements of estafa or malversation, and vice versa. There is no complex crime of estafa through falsification of private document since a complex crime presupposes the existence of two or more crimes as components thereof, while under common

element doctrine there is only one crime, either estafa or falsification of private document (1955 and 1984 Bar Exams). If the falsification of a private document (demand letter) is committed as a means to commit estafa, the proper crime to be charged is falsification (Batulanon vs. People, G.R. No. 139857, September 15, 2006). The use of damage as an element of falsification o f private document precludes the re-use thereof to complete the elements of estafa (See: U.S. vs. Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516, November 10, 1931; 1957 and 2008 Bar Exams). However, Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015, the Supreme Court did not apply the doctrine of common element and convicted the accused of complex crime of malversation through falsification of private document. In this case, the Governor caused the falsification of request for financial assistance, a private document, which is a necessary means to commit malversation since this falsified request was used to cause the release of public money to a fictitious beneficiary. dd. Falsification of private document as a means to conceal malversation, estafa or theft  – Where falsification of private document is only committed as a means to conceal estafa, the crime is estafa only. Falsification of private document is not committed because: (a) the use of damage as an element in estafa precludes the re-use thereof to complete the elements of falsification of private document; (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; and (c) the estafa can be committed without the necessity of falsifying a private document (Batulanon vs. People, supra; 1972 Bar Exam). If falsification of private document was used as a means to commit estafa, the former was committed ahead of the latter; hence, falsification of private document 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 of private document. 2017 Bar Reviewer When the offender commits falsification of public, official or commercial document as a necessary means to commit malversation (People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs. Salonga, G.R. No. 131131, June 21, 2001), the crime committed is complex crime proper under Article 48 of RPC. In De Castro vs. People, G.R. No. 171672, February 02, 2015, Bersamin, as a bank teller, she took advantage of the bank depositors who had trusted in her enough to leave their passbooks with her upon her instruction. Without their knowledge, however, she filled out withdrawal slips that she signed, and misrepresented to her fellow bank employees that the signatures had been verified in due course. Her misrepresentation to her co -employees enabled her to receive the amounts stated in the withdrawal slips. She thereby committed two crimes, namely: estafa, by defrauding the bank, her employer, in the various sums withdrawn from the bank accounts of depositors; and falsification of a commercial document, by forging the signatures of depositor in the withdrawal slips to make it appear that the depositor concerned had signed the respective slips in order to enable her to withdraw the amounts. Such offenses were c omplex crimes, because the estafa would not have been consummated without the falsification of the withdrawal slips. When the offender commits falsification of public, official or commercial document as a means to conceal malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31, 1933, En Banc), estafa (People vs. Monteverde, G.R. No.

139610, August 12, 2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft, the crimes are separate. This is not complex crime proper since one is not a necessary means to commit another. Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex cr ime of estafa through falsification of documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. If the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company. Hence, the accused is liable for separate crimes of estafa and falsification of document (Patula vs. People, G.R. No. 164457, April 11, 2012, Bersamin). Other view: If falsification is committed for purpose of enabling the accused to commit malversation (People vs. Silvanna, G.R. No. L-43120, July 27, 1935; Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin) or estafa (People vs. Go, G.R. No. 191015, August 06, 20140) with less risk of being detected, the accused is liable for complex crime proper. In Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin, there is a big disparity between the amount covered by receipts issued to the taxpayer, and the amount for the same receipts in the tax collection reports indicating the falsification resorted to by the accused in the official reports he filed, thereby remitting less than what was collected from taxpayers concerned, resulting to the loss of revenue for the government as unearthed by the auditors. Thus, the accused is liable for complex crime of malversation through falsification of documents. If the falsification of a private document (demand letter, letter of guarantee) is committed as a means to commit estafa, the crime committed is falsification only. Under the common element doctrine, the use of damage as an element in falsification of private document precludes the re-use thereof to complete the elements of estafa. Hence, estafa is not committed because the element of damage is not present(Batulanon vs. People, G.R. No. 139857, September 15, 2006); U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516, November 10, 1931). There is no complex crime of estafa through falsification of private document. If a person commits falsification of private document to conceal malversation or estafa, the crime is estafa only. Under the common element doctrine, the use of damage as an element in estafa precludes the re-use thereof to complete the elements of falsification. Hence, estafa is not committed because the element of damage is not present (See: People vs. Beng, 40 O.G. 1913). (c) What is now the age of doli incapax in the Philippines? (2%) 2017 Bar Reviewer 15. Child in conflict with the law -The rights and privileges of a child in conflict with the law a re as follows: 1. If the accused is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively presumed. (d) Why is there no crime of frustrated serious physical injuries? (2%) Criminal Law Reviewer, Volume One, 2007 Edition

1. Physical injuries - According to Justice Regalado, the crime of physical injuries is a formal crime since a single act consummates it as matter of law; hence it has no attempted or frustrated stage. Accused deliberately throws acid to the face of another with intent to blind him. In other words, his intention is to commit serious physical injuries. However, injuries caused in the eyes of victim were completely healed in 25 days. Accused is not liable for consummated serious physical injuries because it did not cause blindness to the victim. Neither is he liable for frustrated serious physical injuries since it is a formal crime. The crime committed is less serious physical injuries since the same require medical attendance for ten days or more (1969 Bar Exam). 7. Bernardo was enraged by his conviction for robbery by Judge Samsonite despite insufficient evidence. Pending his appeal, Bernardo escaped in order to get even with Judge Samsonite. Bernardo learned that the Judge regularly slept in his mistress’ house every weekend. Thus, he

waited for the Judge to arrive on Saturday evening at the house of his mistress. It was about 8:00 p.m. when Bernardo entered the house of the mistress. He found the Judge and his mistress having coffee in the kitchen and engaging in small talk. Without warning, Bernardo stabbed the judge at least 10 times. The judge instantly died. Prosecuted and tried, Bernardo was convicted of direct assault with murder. Rule with reasons whether or not the conviction for direct assault with murder was justified, and whether or not the trial court should appreciate the following aggravating circumstances against Bernardo, to wit: (1) disregard of rank and age of the victim, who was 68 years old; (2) dwelling; (3) nighttime; (4) c ruelty; and (5) quasi-recidivism. (10%) Criminal Law Reviewer, Volume 1, 2017 Edition Page 165-166 ii. Direct assault - If the accused killed a person in authority while engaged in the performance of duty or by reason of past performance of duty, the crime committed is direct assault with murder or homicide (People vs. Hecto, G.R. No. L-52787, February 28, 1985, Peo ple vs. Moreno, G.R. N L37801-05, October 23, 1978; U.S. vs. vs. Garcia, G.R. No. 6820, October 16, 1911). If accused killed a person in authority, but he was not engaged in the performance of duty at that time, and there is no showing that the crime was committed by reason of past performance of duty, the crime committed is not direct assault with homicide or murder. Accused is liable for homicide or murder and the aggravating circumstance of disregard of rank may be appreciated (People vs. Ablao, G.R. No. 69184, March 26, 1990). 2017 Bar Reviewer The phrase "on occasion of such performance" used in Article 148 of RPC means "by reasonof the past performance of official duty because the purpose of the law is to allow them to discharge their duties without fear of being assaulted by reason thereof (People vs. Renegado, G.R. No. L-27031, May 31, 1974). Attacking a judge on the street by reason of past performance of duty (such as citing the accused in contempt) constitutes qualified direct assault (U.S. vs. vs. Garcia, G.R. No. 6820, October 16, 1911). But attacking a retired judge by reason of past performance of duty is not direct assault since he is not anymore a person in authority at the time of the assault. Note: The mandatory retirement age of a judge is 70 year. Criminal Law Reviewer, Volume 1, 2017 Edition Page 165-166

In U.S. vs. Cabiling G.R. No. L-3070, February 11, 1907, the accused killed his teacher by reason of the performance of his duty. The accused was convicted of murder aggravated by disregard of rank. However, CA No. 578 has amended Article 152 of the Revised Penal Code in 1940 by making a teacher a person in authority. Hence, if the accused killed his teacher by reason of the performance of his professional duty, the crime committed is direct assault with homicide or murder (Sarcepuedes vs. People, G.R. No. L-3857, October 22, 1951; People vs. Renegado, G.R. No. L-27031, May 31, 1974), which will absorb the circumstance of disregard of rank. Criminal Law Reviewer, Volume 1, 2017 Edition Page 167 e. Disregard of age - To appreciate the aggravating circumstance of disregard of age, t he accused must deliberately intend to offend or insult the age at the offended party (People vs. Onabia, G.R. No. 128288, April 20, 1999). Criminal Law Reviewer, Volume 1, 2017 Edition Page 170 In People vs. Balansi, G.R. No. 77284, July 19, 1990, one does not lose his right of privacy in the dwelling where he is offended in the house of another because as his invited guest, he, the stranger, is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, "home" to him. He is entitled to respect even for that short moment. The Balansi principle will not apply to a visitor who merely attended a birthday celebration. The house where the birthday was celebrated is not his dwelling (People vs. Ramolete, G.R. No. L-28108, March 27, 1974; 2011 Bar Exam). Criminal Law Reviewer, Volume 1, 2017 Edition Page 173-174 ii. Darkness and silent of the night - As a general rule, nighttime is an ordinary aggravating circumstance because the darkness of the night facilitated the commission of the crime or insured impunity (1994 Bar Exam). 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 an aggravating circumstance (People vs. Banhaon, G.R. No. 131117, June 15, 2004). Criminal Law Reviewer, Volume 1, 2017 Edition Page 196 l. Cruelty - The crime is not aggravated by cruelty simply because the victim sustained 10 stab wounds, three of which were fatal. For cruelty to be considered as an aggravating circumstance, it must be proven 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 is not aggravated by cruelty simply because Judge Samsonite sustained 10 stab wounds. For cruelty to be considered as an aggravating circumstance, it must be proven that in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the pain and suff ering 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). 8. Porthos made a sudden turn on a dark street, and his Rolls-Royce SUV bumped the rear of a parked Cadillac Sedan inside which Aramis was then taking a nap. Angered by the violent impact, Aramis alighted and confronted Porthos who had also alighted. Aramis angrily and repeatedly shouted at Porthos: Putang ina mo! Porthos, displaying fearlessness, aggressively shouted back at Aramis: Wag kang magtapang-tapangan dyan, papatayin kita! Without saying anything more, Aramis drew his gun from his waist and shot Porthos in the leg. Porthos’ wound was not life threatening.

(a) What are the kinds of unlawful aggression, and which kind was displayed in this case? Explain your answer. (3%) Criminal Law Reviewer, Volume I, 2017 Edition Page 123 a. 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 (People vs. Del Castillo, G.R. No. 169084, January 18 , 2012; People vs. Roman, G.R. No. 198110, July 31, 2013; People vs. Malicdem, G.R. No. 184601, November 12, 2012). 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 vic tim. 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 the appellant. Ho wever, the facts surrounding the case must be differentiated from current jurisprudence on unlawful aggression. The 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, Marc h 21, 2012).

2017 Bar Reviewer 11. Self-defense - 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 (Rustia vs. People, G.R. No. 208351, October 05, 2016, Bersamin). (b) Standing trial for frustrated murder, Aramis pleaded self- defense. The Prosecution’s cont ention was that the plea of self-defense applied only to consummated killings. Rule, with explanations, on the tenability of Arami’s claim of self -defense, and on the Prosecution’s contention. (3%)

(c) Porthos insisted that the element of treachery was present. To rule out treachery, Aramis asserted that both he and Porthos were then facing and confronting each other when he fired the shot. Rule, with reasons, on the respective contentions. (3%) 9. During the nationwide transport strike to protest the phase out of old public utility vehicles, striking jeepney drivers Percy, Pablo, Pater and Sencio, each armed with guns, hailed several MMDA buses then providing free transport to the stranded public to stop them from plying their routes. They later on commandeered one of the buses without allowing any of the passengers to alight, and told the driver to bring the bus to Tanay, Rizal. Upon reaching a remote area in Tanay, Percy, Pablo, Pater and Sencio Forcibly divested the Passengers of their cash and valuables. They ordered the passengers to leave thereafter. Then, they burned the bus. When a tanod of the barangay of the area came around to intervene, Pater fired at him, instantly killing him. After Percy, Pablo, Pater and Sencio were arrested, the police authorities recommended them to be charged with the following crimes, to wit: (1) carnapping; (2 ) robbery; (3) direct assault with homicide; (4) kidnapping; and (5) arson. State your legal opinion o n the recommendation of the police authorities on the criminal liabilities incurred by Percy, Pablo, Pater and Sencio. (10%) Criminal Law Reviewer, Volume I, 2017 Edition Page 122 2. Carnapping (e.g. robbery with homicide or kidnapping cannot absorb carnapping; People vs. Muit, G.R. No. 181043, October 8, 2008; People vs. Dela Cruz, G.R. 174658, February 24, 2009; People vs. Roxas, GR No. 172604, August 17, 2010; 2009 Bar Exam); and Criminal Law Reviewer, Volume I, 2017 Edition Page 91 iii. Victim of homicide – In robbery with homicide, it is immaterial: (a) That the victim of homicide is a third person (People vs. Jugueta, G.R. No. 202124, April 05, 2016; 1980 Bar Exam) such as a bystander (People vs. Barut, G.R. No. L-42666 March 13, 1979; 2009 Bar Exam) or a policeman (People vs. Pelagio, G.R. No. L-16177, May 24, 1967; 2009 Bar Exam); or 2017 Bar Reviewer c. Homicide component - In robbery with homicide, it is immaterial that the victim of homicide is a bystander (People vs. Barut, G.R. No. L-42666 March 13, 1979), a responding police (People vs. Pelagio, G.R. No. L-16177, May 24, 1967) or one of the robbers (People vs. De Leon, GR No. 179943, June 26, 2009;People vs. Jugueta, G.R. No. 202124, April 0 5, 2016). Criminal Law Reviewer, Volume I, 2017 Edition Page 93 v. Other crimes – In robbery with homicide, it is immaterial that aside from the homicide, other crime such as rape, intentional mutilation, or usurpation of authority, is committed by reason or on the occasion of the crime. In this special complex crime, all the f elonies committed by reason of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with

homicide. (People vs. De Leon, supra; People vs. De Jesus, supra; People vs. Ebet, supra; People vs. Diu, supra; People vs. Jugueta, G.R. No. 202124, April 05, 2016). Direct assault with attempted homicide (2009 Bar Exam) or multiple rapes or acts of lasciviousness (2016 Bar Exam) committed by reason or on occasion of robbery shall be considered shall be integrated into the special complex crime of robbery with homicide. 2017 Bar Reviewer b. Doctrine of absorption - In robbery with homicide, all other felonies such as rape, intentional mutilation, usurpation of authority, or direct assault with attempted homicide are integrated into this special complex crime. This special complex crime is committed as long as death results by reason or on occasion or robbery without reference or distinction as to the circumstances, causes or modes or persons intervening in the commission of the crime(People vs. De Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016). 2017 Supplemental Bar Reviewer 12. If the main objective is to commit robbery, and homicide and arson are perpetrated by reason or on occasion thereof, the crime committed is robbery with homicide while ar son shall be integrated into this special complex crime (People vs. Jugueta, G.R. No. 202124, April 05 , 2016). However, by means of fire shall be considered as an ordinary aggravating circumstance (U.S. vs. Bulfa, G.R. No. 8468, August 20, 1913). Criminal Law Reviewer, Volume I, 2017 Edition Page 118 d. Robbery through kidnapping - If the accused committed robbery, but thereafter, they detained the victims to forestall their capture by the police, the crime committed is robbery only. Robbery absorbs kidnapping and serious illegal detention. The detention was only incidental to the m ain crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense (People vs. Astor, G.R. Nos. L-71765-66, 29 April 1987; 2013 Bar Exam). Sammy Peke was convicted of a violation of R.A. No. 123456 for selling fake books. The law prescribes the penalty of prision correccional, a divisible penalty whose minimum period is six months and one day to two years and four months; medium period is two years, four months and one day to four years and two months; and maximum period is four years, two months and one day to six years. At arraignment, Sammy Peke pleads guilty to the crime charged. (a) Explain how the Indeterminate Sentence Law is applied in crimes punished by special laws. (3%) Criminal Law Reviewer, Volume One, 2017 Edition Page 298-299 b. Special law – If the offense is punished by any other 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 (Section 1 of Act No. 4103; 1957 and 2013 Bar Exams).

i. First part of Section 1 - The first part of Section 1 of Act No. 4103 applies to felonies under the Revised Penal Code, while the second part is for offenses under special law. However, if the special law adopts the technical nomenclature of the penalties under the Revised Penal Code, the fi rst part of Section 1 will apply (People vs. Simon, G.R. No. 93028, July 29, 1994; Jacaban vs. People, G.R. No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733, September 21, 2007; People vs. Montalaba, G.R. No. 186227, July 20, 2011; People vs. Musa, G.R. No. 199735, October 24, 2012; People vs. Salazar, G.R. No. 98060, January 27, 1997). If the penalty for possession of dangerous drugs is 12 years and 1 day to 20 years of imprisonment and the accused is a minor, the provisions of the Revised Penal Code shall apply (Section 98 of RA No. 9165). Hence, to apply the penal system under the Revised Penal Code, the penalty prescribed by RA No. 9165 must be converted into a Spanish Penalty. In sum, the penalty of 12 years and 1 day to 20 years of imprisonment must be converted into reclusion temporal. With this conversion, Article 68 on minority, Article 64 on application of divisible penalty and the first rule of the Islaw can now be applied in imposing penalty. ii. Second part of Section 1 - Where the penalty for election offense under special law is not less than 1 year but not more than 6 years of imprisonment, the minimum penalty shall not be less than 1 year, while the maximum shall not exceed 6 years. Hence, the court can sentence the accused to suffer 1 year of imprisonment as minimum penalty to 6 years as maximum (Escalante vs. People, G.R. No. 192727, January 9, 2013). Where the penalty for an offense under special law is not less than 5 years but not more than 10 years of imprisonment, the minimum penalty shall not be less than 5 years, while the maximum penalty shall not exceed 10 years. Thus, the court can sentence the accused to suffer 6 years of imprisonment as minimum to 9 years as maximum (1957, 1989, 1994 and 1999 Bar Exams). If the penalty for possession of dangerous drugs is 12 years and 1 day to 20 years of imprisonment, the court shall sentence the accused to an indeterminate sentence, the minimum of which shall not be less than 12 years and 1 day, while the maximum shall not exceed 20 years. Thus, the court can sentence the accused to an indeterminate penalty of 12 years and 1 day as minimum to 14 years and 8 months as maximum (Asiatico vs. People, G.R. No. 195005, September 12, 2011; 2009 Bar Exam). (b) Supposing the trial judge imposes a straight penalty of imprisonment for one year, is the penalty correct in the context of the indeterminate Sentence Law? Explain your answer. (3%) Criminal Law Reviewer, Volume One, 2017 Edition Page no. 299-300 iii. Straight or indeterminate penalty - Where the penalty for an offense under special law is not less than 6 months but not more than 3 years of imprisonment, the minimum penalty shall not be less than 6 months, while the maximum penalty shall not exceed 3 years. However, if the court sentenced the accused to 1 year of imprisonment or less, the Indeterminate Sentence Law will not apply, and hence, there is no need to fix the maximum penalty. The court will sentence the accused to a straight or determinate penalty. For example: (1) The court can sentence the accused to suffer a straight penalty of 10 months of imprisonment. There is no need to fix the minimum penalty because the Indeterminate Sentence Law will not apply where the penalty does not exceed 1 year. (2) The court cannot sentence the accused to suffer an indeterminate penalty of 6 months of imprisonment, as minimum, to 11 months, as maximum. Because 11 months is not more than 1 year, the Indeterminate Sentence Law will not apply. Hence, the court should have sentenced the

accused to suffer a straight penalty of 11 months of imprisonment. There is no need to fix the minimum penalty. (3) The court cannot sentence the accused to suffer a straight penalty of 2 years. Because this penalty is more than 1 year, the Indeterminate Sentence Law will apply. Hence, there is a need to fix the minimum penalty, which must not be less than 6 months. The court can sentence the accused to suffer an indeterminate penalty of 6 months imprisonment as minimum to 2 years as maximum (2005 Bar Exam).

11. XI. In his homily, Fr. Chris loudly denounced the many extrajudicial killings committed by the men in uniform. Policeman Stone, then attending the mass, was peeved by the denunciations of Fr. Chris. He immediately approached the priest during the homily, openly displayed his firearm tucked in his waist, and menacingly uttered at the priest: Father, may kalalagyan kayo kung hindi kayo tumigil. His brazenness terrified the priest, who cut short his homily then and there. The celebration of the mass was disrupted, and the congregation left the church in disgust over the actuations of Policeman Stone, a co-parishioner. Policeman Stone was subsequently charged. The Office of the Provincial Prosecutor is now about to resolve the case, and is mulling on what to charge Policeman Stone with. May Policeman Stone be properly charged with either or both of the following crimes, or, if not, with what proper crime? (a) Interruption of religious worship as defined and punished under Art. 132 of the Revised Penal Code; and/or (b) Offending the religious feelings as defined and punished under Art. 133 of the Revised Penal Code. Explain fully your answers. (8%) The Police man was guilty of a violation of Artic le 132 only when he made an actual threat on the life of the priest should the latter persist in his homily the mass. As a result, the mass was disturbed.(People vs. Mejica, CA-G.R. No. 12980-R, December 29, 1955). The Elements of the interruption of religious worship are as follows: 1.That the offender is a public officer or employee .2.Thatreligious ceremonies or manifestations of any religion are about to take place or are going on. 3.That the offender prevents or disturbs the same.

Art. 132 of the RPC requires as its element that the act must be notoriously offensive to the feelings of the faithful. In People vs. Baes, such acts must be for the purpose of ridicule as mocking or

scoffing at or attempting to damage an object of religious veneration which is absent in the case at bar.