6. Crim Quamto 2016

University of Santo Tomas Faculty of Civil Law

Criminal Law Questions Asked More Than Once (QuAMTO 2016) *QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams. *Bar questions are arranged per topic and were selected based on their occurrence on past bar examinations from 1990 to 2015.

ACADEMICS COMMITTEE KATRINA GRACE C. ONGOCO

MANAGING EDITOR

REUBEN BERNARD M. SORIANO ERINN MARIEL C. PEREZ MA. NINNA ROEM A. BONSOL

EXECUTIVE COMMITTEE

REUBEN BERNARD M. SORIANO JUAN PAOLO MAURINO R. OLLERO JOHN REE E. DOCTOR

LAYOUT AND DESIGN

QUAMTO COMMITTEE MEMBERS CALOS LEANDRO L. ARRIERO ELISE MARIE B. BERTOS GABRIELA LOUISE O.J. CANDELARIA WARREN RODANTE D. GUZMAN MARY GRACE D. LUNA LEAN JEFF M. MAGSOMBOL JUAN PAOLO MAURINO R. OLLERO ANN CAIRA C. SURIO MARY JANE D. VILARAY

ATTY. AL CONRAD B. ESPALDON ADVISER

FOR CRIMINAL LAW (1991-2015)

BOOK 1 (ARTICLES 1-99, RPC; EXCLUDE THE PROVISIONS ON CIVIL LIABILITY) FUNDAMENTAL PRINCIPLES Q: What are the different schools of thought or theories in Criminal Law and describe each briefly. To what theory does our Revised Penal Code belong? (1996) Q: Distinguish “motive” from “intent”. (2004, 1999, 1996) May crime be committed without criminal intent? (1996) A: Motive is the moving power that impels a person to act for a definite result. It is not considered as an element of the crime. It is essential only only when the identity of the offender is in doubt. On the otherhand, intent is the purpose for using a particular means to achieve a desired result. It is an ingredient of dolo or malice, thus it is an element of deliberate felonies. A crime may be committed without criminal intent in the following instances: 1. If such is a culpable felony; 2. In crimes which are mala prohibita in nature. Q: When is motive relevant to prove a case? (When is it not necessary to be established? Explain. (2006, 1999) A: Motive is relevant to a case when: 1. The identity of the offender is in doubt; 2. When the act committed gives rise to variant crimes and there is a need to determine which crime should be properly imputed to the offender; 3. When the evidence is merely circumstantial; 4. When there are no eyewitnesses to the crime and where suspicion is likely to fall upon a number of persons; 5. In ascertaining the truth between two antagonistic theories or versions of the killing; and 6. When the act is alleged to be committed in defense of a stranger because it must not be induced by revenge, resentment or other evil motive. Motive is not necessary to be established in the following instances: 1. When there is a witness positively identifying the accused; 2. In commission of crimes which are mala prohibita in nature; and 3. In crimes committed through reckless imprudence.

the height of their arguments, A left and took a bolo from his house, after which he returned to the party and threatened to stab everybody. B got scared and ran towards the seashore, with A chasing him, B ran up a steep incline along the shore and was cornered on top of a cliff. Out of fear, B jumped from the cliff into the sea, A returned to the scene of their confrontation and seeing that nobody was there, went home to sleep. The next day, B’s wife reported to the police station that her husband had not yet come home. A search was conducted by the residents of the barangay but after almost two days, B or his body could not be located and his disappearance continued for the next few days. Based on the testimony of C and other guests, who had seen A and B on top of the cliff, A was arrested and charged with Murder. In his defense, he claimed that since B's body has not been found, there was no evidence of "corpus delicti' and therefore, he should be acquitted. Is the defense of A tenable or not? State the reason(s) for your answer. (2001) A: The defense of A is not tenable. "Corpus delicti" does not refer to the body of the purported victim which had not been found. Even without the body of the purported victim being found, the offender can be convicted when the facts and circumstances of a crime, the body of the crime or "corpus delicti" is established. In other words, the non-recovery of the body of the victim is not a bar to the prosecution of A for Murder, but the fact of death and identity of the victim must be established beyond reasonable doubt. DEFINITION OF CRIMINAL LAW Mala in Se and Mala Prohibita Q: Distinguish between crimes mala in se and crimes mala prohibita. May an act be malum in se and be, at the same time, malum prohibitum? (2005, 2003, 2001, 1999, 1997) A: BASIS

There must be a criminal intent As to their concepts

Q: Define "corpus delicti" What are the elements of "corpus delicti"? (2000) A: Corpus delicti literally means the body or substance of the crime or the fact that a crime has been committed, but does not include the identity of the person who committed it. The elements of corpus delicti are: 1. The existence of a certain act or result forming the basis of the criminal charge; and 2. The existence of a criminal agency as the cause of the act or result. Q: At a birthday party in Bogo, Cebu, A got intoxicated and started quarrelling with B and C. At UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

MALA IN SE

As to legal implicati on

Wrong from its very nature Criminal intent governs Punished under the RPC Good faith, lack of criminal intent or negligence are valid defenses Criminal liability is incurred even when the crime is attempted or frustrated Penalty is computed on the basis of

MALA PROHIBITA Sufficient that the prohibited act was done Wrong merely because prohibited by statute Criminal intent is not necessary Violations of special laws Good faith or lack of criminal intent are not valid defenses; it is enough that the prohibition was voluntarily violated Criminal liability is generally incurred only when the crime is consummated The penalty of the offender is the same as they are all deemed

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Mitigating and aggravating circumstances are appreciated in imposing the penalties

principals

Such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the RPC

Yes, an act may be malum in se and malum prohibitum at the same time. In People v. Sunico, et al, (CA 50 OG 5880) it was held that the omission or failure of election inspectors and poll clerks to include a voter's name in the registry list of voters is wrong perse because it disenfranchises a voter of his right to vote. In this regard it is considered as malum in se. Since it is punished under a speciallaw (Sec. 101 and 103, Revised Election Code), it is considered malum prohibitum. Q: Mr. Carlos Gabisi, a customs guard, and Mr. Rico Yto, a private individual, went to the office of Mr. Diether Ocuarto, a customs broker, and represented themselves as agents of Moonglow Commercial Trading, an Importer of children's clothes and toys. Mr. Gabisi and Mr. Yto engaged Mr. Ocuarto to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Moonglow’s shipment. Mr. Gabisi and Mr. Yto submitted to Mr. Ocuarto a packing list, a commercial invoice, a bill of lading and a Sworn Import Duty Declaration which declared the shipment as children's toys, the taxes and duties of which were computed at P60,000.00. Mr. Ocuarto filed the aforementioned documents with the Manila International Container Port. However, before the shipment was released, a spot check was conducted by Customs Senior Agent James Bandido, who discovered that the contents of the van (shipment) were not children's toys as declared in the shipping documents but 1,000 units of video cassette recorders with taxes and duties computed at P600,000.00. A hold order and warrant of seizure and detention were then issued by the District Collector of Customs. Further investigation showed that Moonglow is non-existent. Consequently, Mr. Gabisi and Mr. Yto were charged with and convicted for violation of Section 3(e) of R.A. 3019 which makes it unlawful among others, for public officers to cause any undue Injury to any party, including the Government, in the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence. In their motion for reconsideration, the accused alleged that the decision was erroneous because the crime was not consummated but was only at an attempted stage and that in fact the Government did not suffer any undue injury. (2000) a.

Is the contention of both accused correct? Explain.

A: Yes, the contention of the accused that the crime was not consummated is correct. R.A. 3019 is a special law punishing acts mala prohibita. As a rule, attempted violation of a special law is not punished because

criminal liability is incurred only when the crime is consummated. Actual injury is required. b. Assuming that the attempted or frustrated stage of the violation charged is not punishable, may the accused be nevertheless convicted for an offense punished by the Revised Penal Code under the facts of the case? Explain. A: Yes, both are liable for attempted estafa thru falsification of commercial documents, a complex crime. They tried to defraud the Government with the use of false commercial and public documents. Damage is not necessary. Construction of Penal Laws Q: What is the fundamental principle in applying and interpreting criminal laws, including the Indeterminate Sentence Law? (2012) A: The fundamental principle in interpreting and applying penal laws is the principle of pro reo. The phrase “in dubio pro reo” means “when in doubt, for the accused.” (Intestate Estate of Gonzales v. People, G.R. No. 181409, February 11, 2010). In dubio pro reo, is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt (People v. Temporada, G.R. No. 173473, December 17, 2008). Q: What is the Doctrine of Pro Reo? How does it relate to Article 48 of the Revised Penal Code? (2010) A: The Doctrine of Pro Reo provides that whenever a penal law is to be construed or applied and the law admits of two interpretations, one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted. Following this doctrine, crimes under Art. 48 of the RPC are complexed and punished with a single penalty (that prescribed for the most serious crime and to be imposed in its maximum period). The rationale being, that the accused who commits two crimes with a single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions (People v. Comadre, G.R. No. 153559, June 8, 2004). However, Art. 48 shall be applied only when it would bring about the imposition of a penalty lesser than the penalties imposable for all the component crimes if prosecuted separately. SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW Generality Q; 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 Iason and when he 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.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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whether he is a principal offender, or merely an accomplice or accessory

FOR CRIMINAL LAW (1991-2015)

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. (2015) A: Both contentions of Ando lack merit. The argument of Ando that he did not incur criminal liability because both he and the victim were Indonesians is not tenable. Under the generality principle, penal laws shall be obligatory upon all who live or sojourn in the Philippine territory (Article 14 of the Civil Code). The foreign characteristic of an offender and offended party does not exclude him from operation of penal laws (People v. Galacgac, C.A., 54 O.G. 1027). Under the Revised Penal Code, except as provided in treaties and laws of preferential application, penal laws of the Philippines shall have force and effect within its territory. Here, since the killing took place within the Philippine territory, our penal laws applies and Ando may be held criminally responsible despite his being and Indonesian citizen. Likewise, the contention of Ando that he could not be prosecuted in Manila because the vessel is a Malaysianregistered ship is without merit. Under the English Rule, which our jurisdiction recognizes and follows, crimes committed aboard a vessel within the territorial waters of a country are triable in the courts of such country except when crimes merely affect things within the vessel or when they only refer to the internal management thereof. Here, since the crime was committed within the Philippine waters and neither exception applies, Ando may be prosecuted in Manila. ADDITIONAL ANSWER: Under Section 27 of the Convention of the Law of The Sea, the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage except if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea. The vessel is still within the territorial waters of the Philippines when the crime was committed since the killing happened a few moments after the vessel left the port of Manila. Murder committed by Ando disturbs the peace of the Philippines; hence, he could be prosecuted in Manila. Territoriality Q: Pierce is a French diplomat stationed in the Philippines. While on EDSA and driving with an expired license, he hit a pedestrian who was crossing illegally. The pedestrian died. Pierce was charged with reckless imprudence resulting in homicide. In his defense, he claimed diplomatic immunity. Is Pierce correct? (2014) A: Yes, Pierce is correct. Pierce, being a French diplomat stationed in the Philippines, would be exempt from the general application of our criminal laws, as provided for under laws or treaties of preferential application, more particularly under R.A. 75. Q: After drinking one (1) case of San Miguel beer and taking two plates of "pulutan", Binoy, a Filipino UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

seaman, stabbed to death Sio My, a Singaporean seaman, aboard M/V "Princess of the Pacific", an overseas vessel which was sailing in the South China Sea. The vessel, although Panamanian registered, is owned by Lucio Sy, a rich Filipino businessman. When M/V "Princess of the Pacific" reached a Philippine Port at Cebu City, the Captain of the vessel turned over the assailant Binoy to the Philippine authorities. An information for homicide was filed against Binoy in the Regional Trial Court of Cebu City. He moved to quash the information for lack of jurisdiction. If you were the Judge, will you grant the motion? Why? (2000) A: Yes, the Motion to Quash the Information should be granted. The Philippine court has no jurisdiction over the crime committed since it was committed on the high seas or outside of Philippine territory and on board a vessel not registered or licensed in the Philippines (US v. Fowler, 1 Phil 614). It is the registration of the vessel in accordance with the laws of the Philippines, not the citizenship of her owner, which makes it a Philippine ship. The country of registry, not ownership, determines its nationality. The vessel being registered in Panama, the laws of Panama govern while it is in the high seas. Q: Hubert and Eunice were married in the Philippines. Hubert took graduate studies in New York and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The first wife, Eunice, heard about the marriage and secures a copy of the marriage contract in New York. Eunice filed a case of Bigamy against Hubert in the Philippines. (2008, 1994) a.

Will the case prosper?

A: No, because the Philippine courts have no jurisdiction over a crime committed outside of the Philippine territory. Under the principle of territoriality, penal laws, specifically the RPC, are enforceable only within the bounds of our territory (Art. 2, RPC). b. If Eunice gave her consent to the second marriage, what will your answer be? Explain. A: The answer will be the same. The consent of Eunice would not confer jurisdiction on Philippine courts. Moreover, bigamy is a public crime and not subject to agreement between the victim and the accused. CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS Equal protection; Due process; Non-imposition of cruel and unusual punishment or excessive fines; Bill of Attainder; Ex Post Facto Law Q: What are the constitutional provisions limiting the power of Congress to enact penal laws? (2012) A: The constitutional provisions limiting the power of Congress to enact penal laws are the following: 1. The law must not be an ex post facto law or it should not be given a retroactive effect. 2. The law must not be a bill of attainder, meaning it cannot provide punishment without judicial process. 3. The law must not impose cruel, unusual or degrading punishment.

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015) 4.

No person shall be held to answer for a criminal offense without due process of law.

Q: Distinguish between ex post facto law and bill of attainder. (2015) A: Ex post facto law is any law which makes an innocent act a crime after the act was committed. It is a Latin phrase which means “from something done afterwards.” It could also be a law which aggravates a crime, or makes it greater than when it was committed, or which changes the punishment and inflicts a greater penalty than the law governing the crime when committed. A bill of attainder is a law which inflicts punishment on a named individual or a group of individuals without judicial trial. Ex post facto law pertains to the act while a bill of attainder pertains to a named individual or to members of a group. Q: Congress passed a law reviving the AntiSubversion Law, making it a criminal offense again for a person to join the Communist Party of the Philippines. Reporma, a former high-ranking member of the Communist Party, was charged under the new law for his membership in the Communist Party when he was a student in the 80’s. He now challenges the charge against him. What objections may he raise? (2014) A: Reporma may raise the limitations imposed by the 1987 Constitution on the power of Congress to enact retroactive penal laws which are prejudicial to the accused. Under the Bill of Rights of the Constitution such is classified as an ex post facto law. It should be noted that when Congress decriminalized the crime of subversion, under R.A. 7637, it obliterated the felony and its effects upon Reporma. Consequently charging him now under the new law for his previous membership in the Communist Party would be constitutionality impermissible. FELONIES Q: How are felonies committed? Explain each. (2015) A: Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill (Article 3 of Revised Penal Code). Aberratio Ictus; Error in Personae; Praeter Intentionem (Article 4, par. 1) Q: Explain and illustrate aberratio ictus. (2015, 1993) What do you understand by aberration ictus, error in personae, and praeter intentionem? Do they alter the criminal liability of an accused? Explain. (1999, 1994, 1989)

In error in personae, there is a mistake in the identity of the victim. The offender intends the injury on one person but the harm fell on another. The intended victim was not at the scene of the crime. Illustration: A intending to kill B, his enemy, lay in ambush for the latter to pass along a dark alley. Because of the darkness, A fired his gun at a person passing by, thinking him to be B. It turned out that the person shot was C, A's father. In praeter intentionem, the injurious result is greater than that intended by the offender. Here, there is a notable disparity between the means employed or the act of the offender and the felony which resulted. Illustration: A, without intent to kill, struck the victim on the back, causing the victim to fall down and hit his head on the pavement. Yes, the presence of these circumstances will alter the criminal liability of the accused. Thus: 1. In aberratio ictus, two offenses are actually committed by the offender, that which he intended to commit and that which he actually committed. But if these two offenses are both either grave or less grave, since they are produced by one single act, a complex crime will result upon which the penalty for the most serious crime shall be imposed in its maximum period; 2. In the case of error in personae, the offender shall be guilty of the crime actually committed byhim, but the penalty to be imposed shall either be the penalty for the crime actually committed or that for the crime intended to be committed whichever is lower, but the same will be imposed in its maximum period; 3. In praeter intentionem, the offender, will incur criminal liability for the felony actually committed by him, but he will be entitled to the mitigating circumstance of not having intended to commit so grave a wrong as that which he committed under Art. 13 [3] of the Revised Penal Code. Q: Maryjane had two suitors - Felipe and Cesar. She did not openly show her preference but on two occasions, accepted Cesar's invitation to concerts by Regine and Pops. Felipe was a working student and could only ask Mary to see a movie which was declined. Felipe felt insulted and made plans to get even with Cesar by scaring him off somehow. One day, he entered Cesar's room in their boarding house and placed a rubber snake which appeared to be real in Cesar's backpack. Because Cesar had a weak heart, he suffered a heart attack upon opening his backpack and seeing the snake. Cesar died without regaining consciousness. The police investigation resulted in pinpointing Felipe as the culprit and he was charged with Homicide for Cesar's death. In his defense, Felipe claimed that he did not know about Cesar's weak heart and that he only intended to play a practical joke on Cesar. Is Felipe liable for the death of Cesar or will his defense prosper? Why? (2005, 2001)

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A: Aberatio ictus, error in personae and praeter intentionem are the three ways by which a person may commit a felony although the wrongful act done is different from that which he intended.

In aberratio ictus, there is a mistake in blow whereby an offender intending to cause an injury to one person actually inflicts it on another because of lack of precision. Illustration: A, intending to kill B, fires his gun at the latter but because of poor aim or lack of precision, he hits C instead, who suffers serious physical injury.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

FOR CRIMINAL LAW (1991-2015)

A: Yes, Felipe is liable for the death of Cesar but he shall be given the benefit of the mitigating circumstance that he did not intend to commit so grave a wrong as that which was committed (Art. 4[1] in relation to Art. 13[3], RPC). When Felipe intruded into Cesar’s room without the latter's consent and took liberty with the latter's backpack where he placed the rubber snake, Felipe was already committing a felony. And any act done by him while committing a felony is no less wrongful, considering that they were part of "plans to get even with Cesar". Felipe's claim that he intended only "to play a practical joke on Cesar" does not persuade, considering that they are not friends but in fact rivals in courting Maryjane. Q: The conduct of wife A aroused the ire of her husband B. Incensed with anger almost beyond his control, B could not help but inflict physical injuries on A. Moments after B started hitting A with his fists, A suddenly complained of severe chest pains. B, realizing that A was indeed in serious trouble, immediately brought her to the hospital. Despite efforts to alleviate A's pains, she died of heart attack. It turned out that she had been suffering from a lingering heart ailment. What crime, if any, could B be held guilty of? (2003) A: B could be held liable for parricide because his act of hitting his wife with fist blows and therewith inflicting physical injuries on her is felonious. A person committing a felonious act incurs criminal liability although the wrongful consequence is different from what he intended (Art. 4 [1], RPC). Although A died of heart attack, the said attack was generated by B's felonious act of hitting her with his fists. Such felonious act was the immediate cause of the heart attack, having materially contributed to and hastened A's death. Even though B may have acted without intent to kill his wife, lack of such intent is of no moment when the victim dies. However, B may be given the mitigating circumstance of having acted without intention to commit so grave a wrong as that committed (Art. 13[3], RPC). Q: At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio instead, resulting in the death of the latter. Pedrito, invoking the doctrine of aberratio ictus, claims exemption from criminal liability. If you were the judge, how would you decide the case? (1996) A: If I were the Judge, I will convict Pedrito and find him guilty of the complex crime of Homicide with Attempted Homicide. The single act of firing at Paulo resulted in the commission of two felonies, one grave (homicide) and the other less grave (attempted homicide) thus falling squarely under Art. 48, RPC; hence, the penalty would be for the more serious crime (homicide) in its maximum period (17 years 4 months and 1 day to 20 years). Aberratio ictus (mistake in the blow) could not be used as a defense as it is not an exempting circumstance. Pedrito is liable under the principle of Art. 4, RPC, which makes a person criminally liable for all the natural and logical consequences of his felonious act. Proximate Cause Q: On his way home from office, ZZ rode in a jeepney. Subsequently, XX boarded the same jeepney. Upon reaching a secluded spot in QC, XX pulled out a grenade from his bag and announced a hold-up. He told ZZ to surrender his watch, wallet and cellphone. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Fearing for his life, ZZ jumped out of the vehicle. But as he fell, his head hit the pavement, causing his instant death. Is XX liable for ZZ's death? Explain briefly. (2004, 2001, 1996) A: Yes, XX is liable for ZZ's death because his acts of pulling out a grenade and announcing a hold-up, coupled with a demand for the watch, wallet and cellphone of ZZ is felonious, and such felonious act was the proximate cause of ZZ's jumping out of the jeepney, resulting in the latter's death. Stated otherwise, the death of ZZ was the direct, natural and logical consequence of XX's felonious act which created an immediate sense of danger in the mind of ZZ who tried to avoid such danger by jumping out of the jeepney (People v. Arpa, G.R. No. L-26789 April 25, 1969). Q: While the crew of a steamer prepared to raise anchor at the Pasig River, A, evidently impatient with the progress of work, began to use abusive language against the men. B, one of the members of the crew, remonstrated saying that they could work best if they were not insulted. A took B's attitude as a display of insubordination and, rising in a rage, moved towards B wielding a big knife and threatening to stab B. At the instant when A was only a few feet from B, the latter, apparently believing himself to be in great and immediate peril, threw himself into the water, disappeared beneath the surface, and drowned. May A be held criminally liable for the death of B? (1997) A: Yes. A can be held criminally liable for the death of B. Art. 4 of the RPC provide in part that criminal liability shall be incurred by any person committing a felony although the wrongful act did be different from that which he intended. The facts involved in this case are parallel to the case of U.S. v. Valdez, (G.R. No. L-16486, March 22, 1921) whereby the victim who was threatened by the accused with a knife, jumped into the river and drowned. In the foregoing case, the Supreme Court held that if a person against whom a criminal assault is directed who believes himself to be in danger of death or bodily harm and impelled by the instinct of self-preservation, jumps into the water and drowened, his assailant is responsible for homicide in case death results by drowning. Q: Vicente hacked Anacleto with a bolo but the latter was able to parry it with his hand, causing upon him a two-inch wound on his right palm. Vicente was not able to hack Anacleto further because three policemen arrived and threatened to shoot Vicente if he did not drop his bolo. Vicente was accordingly charged by the police at the prosecutor's office for attempted homicide. Twenty-five days later, while the preliminary investigation was in progress, Anacleto was rushed to the hospital because of symptoms of tetanus infection on the two-inch wound inflicted by Vicente. Anacleto died the following day. Can Vicente be eventually charged with homicide for the death of Anacleto? Explain. (1996) A: Yes, Vicente may be charged of homicide for the death of Anacleto, unless the tetanus infection which developed twenty five days later was brought about by an efficient supervening cause. Vicente's felonious act of causing a two-inch wound on Anacleto's right palm may still be regarded as the proximate cause of the latter's death because without such wound, no tetanus infection

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: Bhey eloped with Scott. Whereupon, Bhey's father, Robin, and brother, Rustom, went to Scott’s house. Upon reaching the house, Rustom inquired from Scott about his sister's whereabouts, while Robin shouted and threatened to kill Scott. The latter then went downstairs but Rustom held his (Scott's) waist. Meanwhile Olive, the elder sister of Scott, carrying her two-month old child, approached Rustom and Scott to pacify them. Olive attempted to remove Rustom's hand from Scott's waist but Rustom pulled Olive's hand causing her to fall over her baby. The baby then died moments later. Is Rustom criminally liable for the death of the child? (1994) A: Yes, Rustom is criminally liable for the death of the child because his felonious act was the proximate cause of such death. It was Rustom's act of pulling Olive's hand which caused the latter to fall on her baby. Had it not been for said act of Rustom, which is undoubtedly felonious (at least slight coercion) there was no cause for Olive to fall over her baby. In short, Rustom's felonious act is the cause of the evil caused. Any person performing a felonious act is criminally liable for the direct, natural and logical consequence thereof although different from what he intended. IMPOSSIBLE CRIME Q: What is an impossible crime? (2015, 2000, 1993) Is an impossible crime really a crime? (2000) A: An impossible crime is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Art, 4 (2), RPC). An impossible crime is really not a crime, nevertheless it gives rise to criminal liability. Objectively, no felony is being committed but the accused is punished for his criminal perversity. Q: Can there be an impossible crime of adultery? (2015) A: There is no impossible crime of adultery since this is a crime against chastity, and not against person or property as required by Art. 4(2) of the RPC. Q: Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and fetch her to and from school. Enrique wrote a ransom note demanding P500,000.00 from Carla's parents in exchange for Carla's freedom. Enrique sent the ransom note by mail. However, before the ransom note was received by Carla's parents, Enrique's hideout was discovered by the police. Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla's parents, the investigating prosecutor merely filed a case of "Impossible Crime to Commit Kidnapping" against Enrique. Is the prosecutor correct? If he is not correct, can he instead file a case of grave coercion? (2014, 2000)

A: The crime committed by Enrique is kidnapping for ransom. Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffectual means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Enrique deprived Carla of her liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Art. 267 (People v. Tan, G.R. No. 95322,March 1, 1993). Furthermore, kidnapping is a crime against liberty while in impossible crime it is important that the accused committed an act that would have been a crime against person or property. The prosecutor cannot file a case of grave coercion instead, since as discussed above the crime committed by Enrique is kidnapping for ransom. Q: A, B, C and D, all armed with armalites, proceeded to the house of X. Y, a neighbor of X, who happened to be passing by, pointed to the four culprits the room that X occupied. The four culprits peppered the room with bullets. Unsatisfied, A even threw a hand grenade that totally destroyed X's room. However, unknown to the four culprits, X was not inside the room and nobody was hit or injured during the Incident. Are A, B, C and D liable for any crime? Explain. (2000) A: Yes. A, B, C and D are liable for destructive arson because of the destruction of the room of X with the use of an explosive, the hand grenade. Liability for an impossible crime is to be imposed only if the act committed would not constitute any other crime under the RPC. Although the facts involved are parallel to the case of Intod v. CA, (G.R. No. 103119, October 21, 1992), where it was ruled that the liability of the offender was for an impossible crime, no hand grenade was used in said case, which constitutes a more serious crime though different from what was intended. Q: Puti deserted Pula, his roommate, because Pula was courting Ganda, whom Puti fancied. One day, Puti decided to teach Pula a lesson and went to a veterinarian (Vet) to ask for poison on the pretext that he was going to kill a sick pet, when actually Puti was intending to poison Pula. The Vet instantly gave Puti a non-toxic solution which when mixed with Pula’s food, did not kill Pula. (2014, 2009, 2004, 1998) a.

What crime, if any, did Puti commit?

A: Puti committed an impossible crime of murder. Puti with intent to kill Pula unknowingly employed ineffectual means to accomplish the intended felony, that is, using a non-toxic solution. b. Would your answer be the same if, as a result of the mixture, Pula got an upset stomach and had to be hospitalized for 10 days? A: No. If as a result of the mixture administered by Puti, Pula suffered an upset stomach and had to be hospitatlized for 10 days, Puti shall be liable for less serious physical injuries. The rule is, in impossible

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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could develop from the victim's right palm, and without such tetanus infection the victim would not have died with it.

FOR CRIMINAL LAW (1991-2015)

crime, the act performed should not constitute a violation of another provision of the RPC. Q: JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the assistance of Ella, who is familiar with the place. On April 3, 1992, at about 10:00 in the evening, JP, Aries and Randal, all armed with automatic weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of Elsa. Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she attended a prayer meeting that evening in another barangay in Laurel. JP, et al, were charged and convicted of attempted murder by the Regional Trial Court at Tanauan, Batangas. On appeal to the Court of Appeals, all the accused ascribed to the trial court the sole error of finding them guilty of attempted murder. If you were the ponente, how will you decide the appeal? (1994) A: If I were the ponente, I will set aside the judgment convicting the accused of attempted murder and instead find them guilty of impossible crime under Art. 4 par. 2, RPC, in relation to Art. 59, RPC. Liability for impossible crime arises not only when the impossibility is legal, but likewise when it is factual or physical impossibility, as in the case at bar. Elsa’s absence from the house is a physical impossibility which renders the crime intended inherently incapable of accomplishment. To convict the accused of attempted murder would make Art. 4, par. 2 practically useless as all circumstances which prevented the consummation of the offense will be treated as an incident independent of the actor's will which is an element of attempted or frustrated felony (Intod v. CA, G.R. No. 103119 October 21, 1992). STAGES OF EXECUTION Q: Taking into account the nature and elements of the felonies of coup d’ etat and rape, may one be criminally liable for frustrated coup d’ etat or frustrated rape? Explain. (2005) A: One cannot be criminally liable for frustrated coup d’ etat or frustrated rape. In coup d’ etat, the mere attack directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power would consummate the crime. The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. The crime of rape could only be either attempted or consummated. If the accused who placed himself on top of a woman, raising her skirt and unbuttoning his pants, whereby the endeavour to have sex is very apparent, is guilty of Attempted rape. On the other hand, entry on the labia or lips of the female organ by the penis, even without rupture of the hymen or laceration of the vagina, consummates the crime of rape. Moreso, the Court has long abandoned its “stray” decision in People v. Erina, 50 Phil 998 where the accused was found guilty of frustrated rape. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: In the jewelry section of a big department store, Julia snatched a couple of bracelets and put these in her purse. At the store's exit, however, she was arrested by the guard after being radioed by the store personnel who caught the act in the store's moving camera. Is the crime consummated, frustrated, or attempted? (1998) A: The crime is consummated theft because the taking of the bracelets was complete after Julia succeeded in putting them in her purse. Julia acquired complete control of the bracelets after putting them in her purse; hence, the taking with intent to gain is complete and thus the crime is consummated. CONSPIRACY AND PROPOSAL Q: Define conspiracy. (2012) A: Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 4Q: Distinguish by way of illustration conspiracy as a felony from conspiracy as a manner of incurring liability in relation to the crimes of rebellion and murder. (2012) Conspiracy to commit rebellion – if “A” and “B” conspired to overthrow the government, conspiracy is punishable. Conspiracy to commit rebellion is a felony. Rebellion – if they committed rebellion, they are equally liable for the crime of rebellion. However, they will not be additionally charged with conspiracy to commit rebellion. Since they committed what they conspired, conspiracy will not be considered as an independent felony but as a manner of incurring criminal responsibility. Conspiracy to commit homicide, not punishable – if “A” and “B” conspire to kill “X”, conspiracy is not punishable. The law provides no penalty for conspiracy to be commit homicide. Homicide – if pursuant to conspiracy to commit homicide, “A” embraced “X” and then “B” stabbed and killed “X”, the conspirators are equally liable for homicide. Conspirators are equally liable for homicide. Conspiracy in this case will be considered as a manner of incurring liability. Q: Ricky was reviewing for the bar exam when the commander of a vigilante group came to him and showed him a list of five policemen to be liquidated by them for graft and corruption. He was further asked if any of them is innocent. After going over the list, Ricky pointed to two of the policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable? Explain. (2008) A: No, Ricky is not criminally liable because he has not done any overt act that the law punishes as a crime. He did not conspire with the vigilante group. Although his act of pointing out two policemen as honest men may imply his acquiescence to the vigilante’s conclusion that the others were corrupt and deserve to be killed, mere acquiescence to a crime, absent any criminal participation, does not make one a co-conspirator.

7

QUAMTO

TEAM BAROPS ACADEMICS COMMITTEE 2016

QuAMTO for CRIMINAL LAW (1991-2015)

A: Both A and B are liable for the composite crime of robbery with homicide. There was an expressed conspiracy between them to kill C and take the latter's money. The planned killing and taking of the money appears to be intimately related as component crimes, hence a special complex crime of robbery with homicide. The conspiracy being expressed, not just implied, A and B are bound as co-conspirators after they have planned and agreed on the sequence of their attack even before they committed the crime. Therefore, the principle in law that when there is a conspiracy, the act of one is the act of all, already governs them. In fact, A and B were already in the store to carry out their criminal plan. That B ran out of the store and fled upon hearing the sirens of the police car, is not spontaneous desistance but flight to evade apprehension. It would be different if B then tried to stop A from continuing with the commission of the crime; he did not. So the act of A in pursuing the commission of the crime which both he and B designed, planned, and commenced to commit, would also be the act of B because of their expressed conspiracy. Q: What is the doctrine of implied conspiracy and give its legal effects. (2003, 1998) A: An “implied conspiracy” is one which is inferred or deduced from the mode and manner in which the offense is committed. It can be inferred when the persons who committed the crime acted in concert simultaneously, indicative of meeting of the minds towards common goal or objective. The legal effects of an “implied conspiracy” are the following: 1. Only those who participated by criminal acts in the commission of the crime will be considered as coconspirators; and 2. Mere acquiescence to or approval of the commission of the crime or mere presence at the scene without any act of criminal participation, shall not render one criminally liable as co-conspirator (Bahilidad v. People, G. R. No 185195, 2010) Q: Juan and Arturo devised a plan to murder Joel. In a narrow alley near Joel's house, Juan will hide behind the big lamppost and shoot Joel when the latter passes through on his way to work. Arturo will come from the other end of the alley and simultaneously shoot Joel from behind. On the appointed day, Arturo was apprehended by the authorities before reaching the alley. When Juan shot Joel as planned, he was unaware that Arturo

was arrested earlier. Discuss the criminal liability of Arturo, if any. (1998) A: Arturo, being one of the two who devised the plan to murder Joel, thereby becomes a co-principal by direct conspiracy. What is needed only is an overt act and both will incur criminal liability. Arturo's liability as a conspirator arose from his participation in jointly devising the criminal plan with Juan, to kill Jose and it was pursuant to that conspiracy that Juan killed Joel. The conspiracy here is actual,and express not by inference only. The overt act was done pursuant to that conspiracy whereof Arturo is co-conspirator. There being a conspiracy, the act of one is the act of all. Arturo, therefore, should be liable as a co-conspirator but the penalty on him may be that of an accomplice only because he was not able to actually participate in the shooting of Joel, having been apprehended before reaching the place where the crime was committed. Q: A had a grudge against F. Deciding to kill F, A and his friends, B, C, and D, armed themselves with knives and proceeded to the house of F, taking a taxicab for the purpose. About 20 meters from their destination, the group alighted and after instructing E, the driver, to wait, travelled on foot to the house of F. B positioned himself at a distance as the group's lookout. C and D stood guard outside the house. Before A could enter the house, D left the scene without the knowledge of the others. A stealthily entered the house and stabbed F. F ran to the street but was blocked by C, forcing him to flee towards another direction. Immediately after A had stabbed F, A also stabbed G who was visiting F. Thereafter, A exiled from the house and, together with B and C, returned to the waiting taxicab and motored away. G died. F survived. Who are liable for the death of G and the physical injuries of F? (1997) A: A alone should be held liable for the death of G. The object of the conspiracy of A, B, C, and D was to kill F only. Since B, C, and D did not know of the stabbing of G by A, they cannot be held criminally therefor. E, the driver, cannot be also held liable for the death of G since the former was completely unaware of said killing. For the physical injuries of F, A, B and C should be held liable therefore. Even if it was only A who actually stabbed and caused physical injuries to G, B and C are nonetheless liable for conspiring with A and for contributing positive acts which led to the realization of a common criminal intent. B positioned himself as a lookout, while C blocked F’s escape. D, however, although part of the conspiracy, cannot be held liable because he left the scene before A could enter the house where the stabbing occurred. Although he was earlier part of the conspiracy, he did not personally participate in the execution of the crime by acts which directly tended toward the same end (People v. Tamayo, 44 Phil. 38). In the same breath, E, the driver, cannot be also held liable for the infliction of physical injuries upon F because there is no showing that he had knowledge of the plan to kill F. Q: At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street, Manila. Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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Q: A and B, both store janitors, planned to kill their employer C at midnight and take the money kept in the cash register. A and B together drew the sketch of the store, where they knew C would be sleeping, and planned the sequence of their attack. Shortly before midnight, A and B were ready to carry out the plan. When A was about to lift C's mosquito net to thrust his dagger, a police car with sirens blaring passed by. Scared, B ran out of the store and fled, while A went on to stab C to death, put the money in the bag, and ran outside to look for B. The latter was nowhere in sight. Unknown to him, B had already left the place. What was the participation and corresponding criminal liability of each, if any? Reasons. (2003)

FOR CRIMINAL LAW (1991-2015)

a result, Dino died, Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide. (1994) a.

Is there conspiracy in this case?

A: Yes, there is conspiracy among the offenders, as manifested by their concerted actions against the victims, demonstrating a common felonious purpose of assaulting the victims. The existence of the conspiracy can be inferred or deduced from the manner the offenders acted in commonly attacking Dino and Raffy with rocks, thereby demonstrating a unity of criminal design to inflict harm on their victims. b. Can the court appreciate the aggravating circumstances of nighttime and band? A: No, nighttime cannot be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of nighttime. Besides, judicial notice can be taken of the fact that Padre Faura Street is well-lighted. However, band should be considered as the crime was committed by more than three armed malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons. Q: As a result of a misunderstanding during a meeting, Joe was mauled by Nestor, Jolan, Reden and Arthur. He ran towards his house but the four chased and caught him. Thereafter, they tied Joe’s hands at his back and attacked him. Nestor used a knife; Jolan, a shovel; Arthur, his fists; and Reden, a piece of wood. After killing Joe, Reden ordered the digging of a grave to bury Joe’s lifeless body. Thereafter, the four (4) left together. Convicted for the killing of Joe, Arthur now claims that his conviction is erroneous as it was not he who inflicted the fatal blow. Would you sustain his claim? Why? What was the crime committed by the four assailants? Discuss with reasons. (1993) A: No. Arthur’s claim is without merit. The offenders acted in conspiracy in killing the victim and hence, liable collectively. The act of one is the act of all. The existence of a conspiracy among the offenders can be clearly deduced or inferred from the manner they committed the killing, demonstrating a common criminal purpose and intent. There being a conspiracy, the individual acts of each participant is not considered because their liability is collective. The crime committed is murder, qualified by treachery because the offenders, taking advantage of their superiority in number, rendered the victim defenseless and without any chance to retaliate, by tying his hands at his back before attacking him. Q: As Sergio, Yoyong, Zoilo and Warlilo engaged in a drinking spree at Heartthrob Disco, Special Police Officer 3 (SPO 3) Manolo Yabang suddenly approached them, aimed his revolver at Sergio whom he recognized as a wanted killer and fatally shot the latter. Whereupon, Yoyong, Zoilo and Warlito ganged up on Yabang. Warlito, using his own pistol, shot and wounded Yabang. (1992) c.

What are the criminal liabilities of Yoyong, Zoilo and Warlito for the injury to Yabang? Was there UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

conspiracy and treachery? Explain. A: If they have to be criminally liable at all, each will be responsible for their individual acts as there appears to be no conspiracy because the acts of the three were spontaneous and a reflex response to Yabang’s shooting of Sergio. There was no concerted act that will lead to a common purpose. Treachery cannot likewise be appreciated as there was no conscious adoption of means, methods or form to facilitate the commission of the felony. d. Is Yabang criminally liable for the death of Sergio? (1992) A: Yabang is liable for Homicide for the killing of Sergio as the attack was frontal. The fact that Sergio is a suspected killer does not justify Yabang’s act of killing him (People v. Oanis, G.R. No. L-47722, 1943). ALTERNATIVE ANSWER: Yabang is liable for Murder because of the qualifying circumstance of abuse of superior strength, in terms of the weapon being used. MULTIPLE OFFENDERS Recidivism; Habituality (Reiteracion); Quasi- Recidivism; Habitual Delinquency Q: Who is a habitual delinquent? Distinguish habitual delinquency from recidivism as to the crimes committed, the period of time the crimes are committed, the number of crimes committed and their effects in relation to the penalty to be imposed on a convict. (2012) A: A person shall be deemed to be habitual delinquent, if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto estafa or falsification, he is found guilty of any of said crimes a third time or oftener (Art. 62, RPC). The following are the differences between recidivism and habitual delinquency: RECIDIVISM First crime and the aggravated second crime are embraced in the same Title of the RPC.

Nature of crime

Time element

Accused was convicted of the first crime by final judgment at the time of the trial of the second crime.

HABITUAL DELINQUENCY First, second and third crimes must be a habitual delinquency crime, that is, serious or less serious physical injuries, theft, robbery, estafa or falsification of document. The accused was convicted of first habitual delinquency crime; within ten years after conviction or release, he was found guilty or

TEAM BAROPS ACADEMICS COMMITTEE 2016

9

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Nature of the aggravating circumstance

At least two crimes committed Ordinary aggravating circumstance the presence of any of which will trigger the application of the penalty for the second crime committed in its maximum period unless it is off-set by a mitigating circumstance

This is not subject of the offset rule.

Q: During trial for theft in 2014, the prosecution managed to show that accused AA has also been convicted by final judgment for robbery in 2003, but she eluded capture. A subsequent verification showed that AA had several convictions, to wit: 1. In 1998, she was convicted of estafa; 2. In 2002, she was convicted of theft; 3. In 2004, she was convicted of frustrated homicide; The judge trying the theft case in 2014 is about to convict AA. What circumstances affecting the liability or penalty may the judge appreciate against AA? (2014) A: The judge may appreciate the aggravating circumstance of recidivism. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC. Robbery, theft, estafa are crimes against property embraced in Title Ten of the RPC. The judge may also appreciate the aggravating circumstance of habituality or reiteracion, because there have been two or more crimes committed for which she has been published, regardless of the degree of penalty. Q: Amado, convicted of rape but granted an absolute pardon by the President, and one year thereafter, convicted of homicide, is a recidivist. (2009) A: True, rape is now a crime against persons and like the crime of homicide, is embraced in the same Title of the RPC under which Amado had been previously convicted by final judgment.

Q: Juan de Castro already had three (3) previous convictions by final judgment for theft when he was found guilty of Robbery with Homicide. In the last case, the trial Judge considered against the accused both recidivism and habitual delinquency. The accused appealed and contended that in his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of habitual delinquency. Is the appeal meritorious? Explain. (2001) A: No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly considered in this case because the basis of recidivism is different from that of habitual delinquency. Juan is a recidivist because he had been previously convicted by final judgment for theft and again found guilty for Robbery with Homicide, which are both crimes against property, embraced under the same Title (Title Ten, Book Two) of the Revised Penal Code. The implication is that he is specializing in the commission of crimes against property, hence, aggravating in the conviction for Robbery with Homicide. Habitual delinquency, which brings about an additional penalty when an offender is convicted a third time or more for specified crimes, is correctly considered. Q: Distinguish between recidivism and quasi recidivism. (1998) RECIDIVISM It is enough that a final judgment has been rendered in the first offense

Requires that the offenses be included in the same Title of the Code It increases the penalty to its maximum period Felonies only

under

RPC

A generic aggravating circumstance

QUASI-RECIDIVISM Felony was committed after having been convicted by final judgment of an offense, before beginning to serve sentence or while serving the same First and subsequent conviction may or may not be embraced by the same title of the RPC Shall be punished by the maximum period of the penalty prescribed by law for the new felony First crime for which the offender is serving sentence need not be a crime under the RPC but the second crime must be one under the RPC Special aggravating circumstance which may be offset by special privileged mitigating circumstances not by ordinary mitigating circumstances

CONTINUING CRIMES Q: What is delito continuado? (2009) Differentiate delito continuado from a continuing offense. (2009, 1994)

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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Number of crimes

habitualdelinquency crime for the second time; within 10 years after conviction or release, he was found guilty of habitualdelinquency crime for the third time or oftener. At least three crimes committed Extraordinary or special aggravating circumstance, the presence of which will trigger the imposition of additional penalty for the third or subsequent crime.

FOR CRIMINAL LAW (1991-2015)

A: Delito continuado refers to a crime constituted by several overt acts committed by the offender in one place, at about the same time, and all such overt acts violate one and the same provision of penal law, thus demonstrating that all such acts are the product of a single indivisible criminal resolution. Hence, all said acts are considered as one crime only. (People vs, Ledesma, G.R. No. L-41522, September 29, 1976). On the other hand, a continuing offense is one whose essential elements took place in more than one municipality or city, so much so that the criminal prosecution may be instituted and the case tried in the competent court of any one of such municipality or city. The term “continued crime" or delito continuado mandates that only one information should be filed against the offender although a series of felonious acts were performed; the term “continuing crime" is more pertinently used with reference to the venue where the criminal action may be instituted. Q: Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22. What is delito continuado? Is Angelo’s contention tenable? Explain. (2009) A: No, his contention is not tenable. He committed as many counts of estafa against the 500 victims and 2000 counts violation of B.P. 22, since each swindling is achieved through distinct fraudulent machinations contrived at different times or dates, and in different amounts. Moreover, his drawing separate checks payable to each payee is a separate criminal resolution, as they must be of different amounts and of different dates. He acted with separate fraudulent intent against each swindling victim and had distinct criminal intent in drawing and issuing each check. It cannot be maintained that his acts are the product of one criminal resolution only. COMPLEX CRIMES AND SPECIAL COMPLEX CRIMES Q: Distinguish clearly but briefly: Between ordinary complex crime, special complex crime, continuous crime as concepts in the Penal Code. What are the penalties thereof. (2005, 2004, 2003, 1999) A: As to concept: An ordinary complex crime is made up of two or more crimes being punished in distinct provisions of the Revised Penal Code but alleged in one Information either because they were brought about by a single felonious act or because one offense is a necessary means for committing the other offense or offenses. They are alleged in one Information so that only one penalty shall be imposed. A special complex crime, on the other hand, is made up of two or more crimes which are considered only as components of a single

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

indivisible offense being punished in one provision of the Revised Penal Code. As to penalties: In ordinary complex crime, the penalty for the most serious crime shall be imposed in its maximum period. In special complex crime, only one penalty is specifically prescribed for all the component crimes which are regarded as one indivisible offense. The component crimes are not regarded as distinct crimes and so the penalty for the most serious crime is not the penalty to be imposed nor in its maximum period. It is the penalty specifically provided for the special complex crime that shall be applied according to the rules on imposition of the penalty. Q: Distinguish clearly but briefly between compound and complex crime as concepts in the Penal Code. (2004) A: Compound crimes result when the offender committed only a single felonious act from which two or more crimes resulted. This is provided for in modified form in the first part of Article 48, Revised Penal Code, limiting the resulting crimes to only grave and/or less grave felonies. Hence, light felonies are excluded even though resulting from the same single act. On the other hand, complex crimes result when the offender has to commit an offense as a necessary means for committing another offense. Only one information shall be filed and if proven, the penalty for the more serious crime shall be imposed Q: Jason Ivler was involved in a vehicular collision resulting to the injuries of Evangeline Ponce and the death of her husband. He was charged of two offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries; and (2) Reckless Imprudence Resulting in Homicide and Damage to Property. Can Ivler be convicted with the two offenses? (2013) A: No. Reckless imprudence is a single crime, its consequences on persons and property are material only to determine the penalty. Reckless imprudence under Art. 365 is a single quasi-offense by itself and not merely a means of committing other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts (Ivler vs. San Pedro, G.R. No. 172716, November 17, 2010). Q: Can there be a complex crime of coup d’ etat with rebellion? Can there be a complex crime of coup d’ etat with sedition? (2003) A: There can be a complex crime of coup d’état with rebellion if there was conspiracy between the offender/offenders committing the rebellion. By conspiracy, the crime of one would be the crime of the other and vice versa. This is possible because the offender in coup d’état may be any person or persons belonging to the military or the national police or a public officer, whereas rebellion does not so require. Moreover, the crime of coup d’état may be committed singly, whereas rebellion requires a public uprising and taking up arms to overthrow the duly constituted government. Since the two crimes are essentially different and punished with distinct penalties, there is no legal impediment to the application of Art. 48 of the RPC.

TEAM BAROPS ACADEMICS COMMITTEE 2016

11

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: A, actuated by malice and with the use of a fully automatic M-14 sub-machine gun, shot a group of persons who were seated in a cockpit with one burst of successive, continuous, automatic fire. Four (4) persons were killed thereby, each having hit by different bullets coming from the sub-machine gun of A. Four (4) cases of murder were filed against A. The trial court ruled that there was only one crime committed by A for the reason that, since A performed only one act, he having pressed the trigger of his gun only once, the crime committed was murder. Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua. Was the decision of the trial judge correct? Explain. (1999) A: The decision of the trial judge is not correct. When the offender made use of an automatic firearm, the acts committed are determined by the number of bullets discharged inasmuch as the firearm being automatic, the offender need only press the trigger once and it would fire continually. For each death caused by a distinct and separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them. CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY JUSTIFYING CIRCUMSTANCES Q: Distinguish clearly but briefly: Between justifying and exempting circumstances in criminal law. (2004, 1998) A: Justifying circumstance affects the act, not the actor; while exempting circumstance affects the actor, not the act. In justifying circumstance, no criminal and, generally, no civil liability is incurred; while in exempting circumstance, civil liability is generally incurred although there is no criminal liability Self-Defense (Defense of Person, Rights, Property and Honor) Q: BB and CC, both armed with knives, attacked FT. The victim's son, ST, upon seeing the attack, drew his gun but was prevented from shooting the attackers by AA, who grappled with him for possession of the gun. FT died from knife wounds. AA, BB and CC were charged with murder. In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury, contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil. Will AA's defense prosper? Reason briefly. (2004)

A: No, AA's defense will not prosper. The act of the victim's son, ST, appears to be a legitimate defense of relatives; hence, justified as a defense of his father against the unlawful aggression by BB and CC. ST’s act to defend his father's life and to stop BB and CC achieve their criminal objective cannot be regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act. What AA did was a lawful defense, not greater evil. Likewise, AA’s defense will not prosper because in this case there was a conspiracy among the three of them, hence, the act of one is the act of all. Q: Pat. Negre saw Filemon, an inmate, escaping from jail and ordered the latter to surrender. Instead of doing so, Filemon attacked Pat. Negre with a bamboo spear. Filemon missed in his first attempt to hit Pat. Negre, and before he could strike again, Pat. Negre shot and killed him. (1993) a.

Can Pat. Negre claim self defense? Explain.

A: Yes, self-defense can be claimed as there is an imminent and great peril on the life of Negre. b. Suppose Pat Negre missed in his shot, and Filemon ran away without parting with his weapon. Pat Negre pursued Filemon but the latter was running so fast that Pat Negre fired warning shots into the air shouting for Filemon to stop. In as much as Filemon continued running Pat. Negre fired at him hitting and killing him. Is the plea of self-defense sustainable? Why would you then hold Pat. Negre criminally liable? Discuss. A: No, self-defense is no longer sustainable as there is no more peril on his life. Q: While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an oncoming tricycle, killing the tricycle driver. (2008) a.

What is the criminal liability of Carlos, if any? Explain.

A: Carlos did not incur criminal liability because his act of firing at the rear wheel of the car to stop the vehicle and prevent Paolo from taking away his (Carlos’) car is neither done with dolo nor culpa. The act does not constitute a crime; it is a reasonable exercise of his right to prevent or repel an actual unlawful physical invasion or usurpation of his property pursuant to Art. 429 of the Civil Code. b. What is the criminal liability of Paolo, if any? Explain. A: Paolo is criminally liable for (1) carnapping under R.A. No. 6539 for driving away the motor vehicle of Carlos against the latter’s will and obviously with intent to gain and (2) for homicide for the death of the tricycle driver which resulted from the criminal act deliberately being committed by Paolo (which is the carnapping). The homicide was the result of praetor intentionem and

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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Coup d'état can be complexed with sedition because the two crimes are essentially different and distinctly punished under the Revised Penal Code. Sedition may not be directed against the government or be nonpolitical in objective, whereas coup d'état is always political in objective as it is directed against the government and led by persons or public officer holding public office belonging to the military or national police. Art. 48 of the Code may apply under the conditions therein provided.

FOR CRIMINAL LAW (1991-2015)

not a component of the crime of carnapping or a result of reckless impurdence or of simple negligence. Q: The accused lived with his family in a neighborhood that often was the scene of frequent robberies. At one time, past midnight, the accused went downstairs with a loaded gun to investigate what he thought were footsteps of an uninvited guest. After seeing what appeared to him an armed stranger looking around and out to rob the house, he fired his gun seriously injuring the man. When the lights were turned on, the unfortunate victim turned out to be a brother-in-law on his way to the kitchen to get some light snacks. The accused was indicted for serious physical injuries. Should the accused, given the circumstances, be convicted or acquitted? Why? (2003, 1996) A: The accused should be convicted because, even assuming the facts to be true in his belief, his act of shooting a burglar when there is no unlawful aggression on his person is not justified. Defense of property or property right does not justify the act of firing a gun at a burglar unless the life and limb of the accused is already in imminent and immediate danger. Although the accused acted out of a misapprehension of the facts, he is not absolved from criminal liability. A: Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said “Salamat Osang" as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? Why? (2000, 1998) A: No, Osang's claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under Art. 11(1) of the RPC, it is required inter alia that there be (1) unlawful aggression, and (2) reasonable necessity of the means employed to prevent or repel it. The unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense. Otherwise, the attack made is a retaliation and not a defense. Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.

consummated; moreover, B already ran away, hence, there was no aggression to defend against and no defense to speak of. Defense of honor as included in selfdefense, must have been done to prevent or repel an unlawful aggression. There is no defense to speak of where the unlawful aggression no longer exists. A may, however, invoke the benefit of the mitigating circumstance of having acted in immediate vindication of a grave offense to a descendant, his daughter, under par. 5, Art. 13 of the RPC. Defense of Stranger Q: A chanced upon three men who were attacking B with fist blows. C, one of the men, was about to stab B with a knife. Not knowing that B was actually the aggressor because he had earlier challenged the three men to a fight, A shot C as the latter was about to stab B. May A invoke the defense of a stranger as a justifying circumstance in his favor? Why? (2002) A: Yes. A may invoke the justifying circumstance of defense of stranger since he was not involved in the fight and he shot C when the latter was about to stab B. There being no indication that A was induced by revenge, resentment or any other evil motive in shooting C, his act is justified under par. 3, Art. 11 of the RPC. Fulfillment of Duty Q: Lucresia, a store owner, was robbed of her bracelet in her home. The following day, at about 5 o’clock in the afternoon, a neighbor, 22-year old JunJun, who had an unsavory reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around the right arm of Jun-Jun. As soon as the latter left, Lucresia went to a nearby police station and sought the help of a policeman on duty, Pat. Willie Reyes. He went with Lucresia to the house of Jun-Jun to confront the latter. Pat. Reyes introduced himself as a policeman and tried to get hold of Jun-Jun who resisted and ran away. Pat. Reyes chased him and fired two warning shots in the air. Jun-Jun continued to run and when he was about 7 meters away, Pat. Reyes shot him in the right leg. Jun-Jun was hit and he fell down but he crawled towards a fence, intending to pass through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot at Jun-Jun hitting him at the right lower hip. Pat. Reyes brought JunJun to the hospital, but because of profuse bleeding, he eventually died. Pat. Reyes was subsequently charged with homicide. During the trial, Pat. Reyes raised the defense, by way of exoneration, that he acted in the fulfilment of a duty. Is the defense tenable? Explain. (2000)

Q: When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took his gun and shot B, killing him. Charged with homicide, A claimed he acted in defense of his daughter's honor. Is A correct? If not, can A claim the benefit of any mitigating circumstance or circumstances? (2002, 2000, 1998)

A: No, the defense of Pat. Reyes is not tenable. The defense of having acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed be the unavoidable or necessary consequence of the due performance of the duty. It is not enough that the accused acted in fulfilment of a duty. After Jun-Jun was shot in the right leg and was already crawling, there was no need for Pat. Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which brought about the cause of death of the victim.

A: No, A cannot validly invoke defense of his daughter's honor in having killed B since the rape was already

Anti-Violence Against Women and Their Children Act of 2004 (R.A. No. 9262); Battered Woman Syndrome

Defense of Relatives

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

TEAM BAROPS ACADEMICS COMMITTEE 2016

13

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

A: “Battered Woman Syndrome” refers to a scientifically define pattern of psychological and behavioural symptoms found in woman living in battering relationships as a result of cumulative abuse (Sec. 3[d], R.A. 9262). The three (3) phases of the BWS are: (1) tensionbuilding phase; (2) acute battering incident; and (3) tranquil, loving, or non-violent phase (People v. Genosa, G.R. No. 135981, January 15, 2004). Yes, the defense will prosper. Sec. 26 of R.A. 9262 provides that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements of justifying circumstances of self-defense under the RPC. Q: 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. (2015) a.

May Talia invoke the defense of Battered Woman Syndrome to free herself from criminal liability? Explain.

A: No, a single act of battery or physical harm committed by Dion against Talia resulting to the physical and psychological or emotional distress on her part is not sufficient to avail of the benefit of the justifying circumstance of “Battered Woman Syndrome”. The defense of Battered Woman Syndrome can be invoked if the woman with marital relationship with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm resulting to the physical and psychological or emotional distress. Cumulative means resulting from successive addition. In sum, there must be “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life (People v. Genosa, G.R. No. 135981, January 15, 2004). b.

Will your answer be the same, assuming that Talia killed Dion after being beaten up after a second time? Explain.

A: Yes, Talia can invoke the defense of Battered Woman Syndrome to free herself from criminal liability for killing her husband since she suffered physical and

emotional distress arising from cumulative abuse or battery. Under Section 26 of RA 9262, victim survivors of Battered Woman Syndrome do not incur any criminal or civil liability despite the absence of the requisites of self-defense. Q: Ms. A had been married to Mr. B for 10 years. Since their marriage, Mr. B had been jobless and a drunkard, preferring to stay with his "barkadas" until the wee hours of the morning. Ms. A was the breadwinner and attended to the needs of their three (3) growing children. Many times, when Mr. B was drunk, he would beat Ms. A and their three (3) children, and shout invectives against them. In fact, in one of the beating incidents, Ms. A suffered a deep stab wound on her tummy that required a prolonged stay in the hospital. Due to the beatings and verbal abuses committed against her, she consulted a psychologist several times, as she was slowly beginning to lose her mind. One night, when Mr. B arrived dead drunk, he suddenly stabbed Ms. A several times while shouting invectives against her. Defending herself from the attack, Ms. A grappled for the possession of a knife and she succeeded. She then stabbed Mr. B several times which caused his instantaneous death. Medico-Legal Report showed that the husband suffered three (3) stab wounds. Can Ms. A validly put up a defense? Explain. (2014, 2010) A: Yes, Ms. A can put up the defense of battered woman syndrome. It appears that she is suffering from physical and psychological or emotional distress resulting from cumulative abuse by her husband. Under Sec. 3 of R.A. 9262, “victim survivors who are found by courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self defense under the RPC.” ALTERNATIVE ANSWER: Ms. A may validly put up the justifying circumstance of self-defense, all requisites thereof being present, namely: 1. Unlawful aggression which is a condition sine qua non. Here, Mr. B arrived that night dead drunk and he suddenly stabbed Ms. A several times while shouting invectives. This is unlawful aggression that is sudden and imminent and places Ms. A’s life in peril. 2. Reasonable necessity of the means employed to prevent or repel it. The sudden and imminent armed attack by Mr. B gave no other option to Ms. A but to attempt to disarm Mr. B of his knife and to use the same to protect and save herself. 3. Lack of sufficient provocation on the part of the person defending himself. The circumstances obtaining is very clear on this regard, Mr. B “arrived one night dead drunk, he suddenly stabbed Ms. A several times while shouting invectives. There is absolutely no circumstances mentioned in the problem to indicate provocation on the part of the person defending herself. EXEMPTING CIRCUMSTANCES Insanity Q: While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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Q: Define "Battered Woman Syndrome." What are the three phases of the "Battered Woman Syndrome"? Would the defense prosper despite the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code? Explain. (2010)

FOR CRIMINAL LAW (1991-2015)

nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s quarters. The following day, Romeo was found catatonic inside the maid’s quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense. (2010) a.

Will Romeo’s defense prosper? Explain.

A: No, Romeo’s defense of insanity will not prosper. Insanity as a defense to the commission of a crime must have existed and proven to have been existing at the precise moment when the crime was being committed. The facts of the case indicate that Romeo committed the crime with discernment and was only diagnosed to be mentally unstable after the crime was committed. b. What is the effect of the diagnosis of the NCMH on the case? A: The effect of the diagnosis made by NCMH is possibly a suspension of the proceeding against Romeo and his commitment to appropriate institution for treatment until he could already understand the proceedings. Minority Q: While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at Pomping with a ball pen. The top of the ball pen hit the right eye of Pomping which bled profusely. Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping's eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye. (2000, 1998) a.

Is Katreena criminally liable? Why?

A: No, Katreena is not criminally liable due to her minority. She is exempted from criminal liability for being a minor less than fifteen (15) years old although over nine (9) years of age. Nonetheless is she civilly liable. b. Discuss the attendant circumstances and effects thereof. A: The attendant circumstances which may be considered are: 1. Minority of the accused as an exempting circumstance under Art. 12(3) of RPC, where she shall be exempt from criminal liability, unless it was proved that she acted with discernment. She is however civilly liable; 2. If found criminally liable, the minority of the accused is a privileged mitigating circumstance. A discretionary penalty lower by at least two (2) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

3.

4.

degrees than that prescribed for the crime committed shall be imposed in accordance with Art. 68(1) of RPC. The sentence however, should automatically be suspended in accordance with Sec. 5(a) of R.A. No. 8369 (Family Courts Act of 1997); Likewise if found criminally liable, the ordinary mitigating circumstance of not intending to commit so grave a wrong as that committed under Art. 13(3) of the RPC may apply; The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act. MITIGATING CIRCUMSTANCES

Q: What is a privileged mitigating circumstance? Distinguish a privileged mitigating circumstance from an ordinary mitigating circumstance as to reduction of penalty and offsetting against aggravating circumstance/s. (2012) A: Privileged mitigating circumstances are those that mitigate the criminal liability of the accused by graduating the imposable penalty for the crime being modified to one or two degrees lower. These circumstances cannot be offset by aggravating circumstance. The circumstance of incomplete justification or exemption (when majority of the conditions are present), and the circumstance of minority (if the child above 15 years of age acted with discernment) are privileged mitigating circumstance. The distinctions between ordinary and privileged mitigating circumstances are as follows: a. Under the rules for application of divisible penalties (RPC, Art. 64), the presence of a mitigating circumstance, if not off-set by aggravating circumstance, has the effect of applying the divisible penalty in its minimum period. Under the rules on graduation of penalty (RPC, Art. 68, 69), the presence of privileged mitigating circumstance has the effect of reducing the penalty one to two degrees lower; b. Ordinary mitigating circumstances can be off-set by aggravating circumstances. Privileged mitigating circumstances are not subject to the off-set rule. Surrender and Confession of Guilt Q: When is surrender by an accused considered voluntary, and constitutive of the mitigating circumstance of voluntary surrender? (1999) A: A surrender by an offender is considered voluntary when it is spontaneous, indicative of an intent to submit unconditionally to the authorities. To be mitigating, the surrender must be: a. spontaneous, i.e., indicative of acknowledgment of guilt and not for convenience nor conditional; b. made before the government incurs expenses, time and effort in tracking down the offender's whereabouts; and c. made to a person in authority or the letter's agents. Q: In order that the plea of guilty may be mitigating, what requisites must be complied with? (1999) A: For plea of guilty to be mitigating, the requisites are: 1. That the accused spontaneously pleaded guilty to the crime charged;

TEAM BAROPS ACADEMICS COMMITTEE 2016

15

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015) That such plea was made before the court competent to try the case and render judgment; and That such plea was made prior to the presentation of evidence for the prosecution.

voluntarily went with the policemen who had gone to his hiding place to investigate, was held to be mitigating circumstance (People v. Dayrit, cited in Reyes' Commentaries, p. 299).

Q: An accused charged with the crime of homicide pleaded "not guilty" during the preliminary investigation before the Municipal Court. Upon the elevation of the case to the Regional Trial Court, the court of competent jurisdiction, he pleaded guilty freely and voluntarily upon arraignment. Can his plea of guilty before the RTC be considered spontaneous and thus entitle him to the mitigating circumstance of spontaneous plea of guilty under Art. 13(7), RPC? (1999)

Q: Upon learning that the police wanted him for the killing of Polistico. Jeprox decided to visit the police station to make inquiries. On his way, he met a policeman who immediately served upon him the warrant for his arrest. During the trial, in the course of the presentation of the prosecution’s evidence, Jeprox withdrew his plea of not guilty and entered a plea of guilty. Can he invoke the mitigating circumstances of voluntary surrender and plea of guilty? Explain. (1992)

A: Yes, his plea of guilty before the Regional Trial Court can be considered spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty. His plea of not guilty before the Municipal Court is immaterial as it was made during preliminary investigation only and before a court not competent to render judgment.

A: Jeprox is not entitled to the mitigating circumstance of voluntary surrender as his going to the police station was only for the purpose of verification of the news that he is wanted by the authorities. In order to be mitigating, surrender must be spontaneous and that he acknowledges his guilt. He can neither invoked plea of guilty as a mitigating circumstance in this case. Art. 13(7) of the Revised Penal Code explicitlty provides that confession of guilt must be done before the prosecution had started to present evidence.

3.

Q: After killing the victim, the accused absconded. He succeeded in eluding the police until he surfaced and surrendered to the authorities about two years later. Charged with murder, he pleaded not guilty but, after the prosecution had presented two witnesses implicating him to the crime, he changed his plea to that of guilty. Should the mitigating circumstances of voluntary surrender and plea of guilty be considered in favor of the accused? (1997) A: Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a time to consider the surrender as spontaneous (People v. Ablao, G.R. No. 69184, March 26, 1990). For sure the government had already incurred considerable efforts and expenses in looking for the accused. Plea of guilty can no longer be appreciated as a mitigating circumstance because the prosecution had already started with the presentation of its evidence (Art. 13[7], RPC). Q: Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and killed the latter. After the stabbing, he brought his son home. The Chief of Police of the town, accompanied by several policemen, went to Hilario's house, Hilario, upon seeing the approaching policemen, went with them to the Police Station to be investigated in connection with the killing. When eventually charged with and convicted of homicide, Hilario, on appeal, faulted the trial court for not appreciating in his favor the mitigating circumstance of voluntary surrender. Is he entitled to such a mitigating circumstance? Explain. (1996) A: Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The crux of the issue is whether the fact that Hilario went home after the incident, but came down and met the police officers and went with them is considered "voluntary surrender." The voluntariness of surrender is tested if the same is spontaneous showing the intent of the accused to submit himself unconditionally to the authorities. This must be either (a) because he acknowledges his guilt, or (b) because he wishes to save them the trouble and expenses necessarily incurred in his search and capture (Reyes' Commentaries, p. 303). Thus, the act of the accused in hiding after commission of the crime, but

AGGRAVATING CIRCUMSTANCES Q: Name the four (4) kinds of aggravating circumstances and state their effect on the penalty of crimes and nature thereof. Distinguish generic aggravating circumstance from qualifying aggravating circumstance. (1999) A: The four (4) kinds of aggravating circumstances are: 1. Generic aggravating or those that can generally apply to all crimes, and can be offset by mitigating circumstances, but if not offset, would affect only the maximum of the penalty prescribed by law; 2. Specific aggravating or those that apply only to particular crimes and cannot be offset by mitigating circumstances; 3. Qualifying circumstances or those that change the nature of the crime to a graver one, or brings about a penalty next higher in degree, and cannot be offset by mitigating circumstances; 4. Inherent aggravating or those that essentially accompany the commission of the crime and do not affect the penalty whatsoever. The distinctions between generic aggravating circumstances and qualifying aggravating circumstances are as follows: Generic aggravating circumstances: a. affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed; b. can be offset by ordinary mitigating circumstances; c. need not be alleged in the Information as long as proven during the trial; d. the same shall be considered in imposing the sentence. Qualifying circumstances: a. affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed; b. cannot be offset by mitigating circumstances; c. must be alleged in the Information and proven during trial.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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2.

FOR CRIMINAL LAW (1991-2015)

Generic Q: Wenceslao and Loretta were staying in the same boarding house, occupying different rooms. One late evening, when everyone in the house was asleep, Wenceslao entered Loretta’s room with the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry. Discuss the applicability of the relevant aggravating circumstances of dwelling, nocturnity and the use of the picklock to enter the room of the victim. (2009) A: 1. Dwelling is an aggravating circumstance because the crimes were committed in Loretta’s room which in law is considered as her dwelling. It is well settled that “dwelling” includes a room in a boarding house being occupied by the offended party where she enjoys privacy, peace of mind and sanctity of an abode. 2. Nocturnity or nighttime is also aggravating because although it was not purposely or especially sought for by Wenceslao, nighttime was obviously taken advantaged of by him in committing the other crimes. Under the objective test, noctunity is aggravating when taken advantage of by the offender during the commission of the crime thus facilitating the same. 3. The use of a picklock to enter the room of the victim is not an aggravating circumstance under Art. 14 of the Code but punished as a crime by itself where the offender has no lawful cause for possessing it. The use of picklocks is equivalent to force upon things in robbery with force upon things. Q: Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the Regional Trial Court in Binan, Laguna. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, with what crime will you convict Pocholo? Explain. (2000) A: Pocholo should be convicted of the crime of homicide only because the aggravating circumstances which should qualify the crime to murder were not alleged in the Information. The circumstances of using poison, in consideration of a promise or reward, and cruelty which attended the killing of Rico could only be appreciated as generic aggravating circumstances since none of them have been alleged in the information to qualify the killing to murder. A qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such. Q: The accused and the victim occupied adjacent apartments, each being a separate dwelling unit of one big house. The accused suspected his wife of having an illicit relation with the victim. One afternoon, he saw the victim and his wife together on board a vehicle. In the evening of that day, the accused went to bed early and tried to sleep, but being so annoyed over the suspected relation between his wife and the victim, he could not sleep. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Later in the night, he resolved to kill victim. He rose from bed and took hold of a knife. He entered the apartment of the victim through an unlocked window. Inside, he saw the victim soundly asleep. He thereupon stabbed the victim, inflicting several wounds, which caused his death within a few hours. Would you say that the killing was attended by the qualifying or aggravating circumstances of evident premeditation, treachery, nighttime and unlawful entry? (1997) A: 1. Evident premeditation cannot be considered against the accused because he resolved to kill the victim "later in the night" and there was no sufficient lapse of time between the determination and execution, to allow his conscience to overcome the resolution of his will. 2. Treachery may be present because the accused stabbed the victim while the latter was sound asleep. Accordingly, he employed means and methods which directly and specially insured the execution of the act without risk himself arising from the defense which the victim might have made. 3. Nighttime cannot be appreciated because there is no showing that the accused deliberately sought or availed of nighttime to insure the success of his act. The Intention to commit the crime was conceived shortly before its commission. Moreover, nighttime is absorbed in treachery. 4. Unlawful Entry may be appreciated as an aggravating circumstance, inasmuch as the accused entered the room of the victim through the window, which is not the proper place for entrance into the house. Q: Jose, Domingo, Manolo, and Fernando, armed with bolos, at about one o'clock in the morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were living. While the four were in the process of ransacking Danilo's house, Fernando, noticing that one of Danilo's daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family. a.

What aggravating circumstances may be appreciated against the four? Explain. (1996)

A: The aggravating circumstances which may be considered in the premises are: 1. Band because all the four offenders are armed; 2. Nocturnity because evidently the offenders took advantage of night time; 3. Dwelling; and 4. Uninhabited Place because the house where the crimes were committed was "at a desolate place" and obviously the offenders took advantage of this circumstance in committing the crime. b. What crime did Jose, Domingo, Manolo and Fernando commit? Explain. A: Jose, Domingo, and Manolo committed Robbery, while Fernando committed complex crime of Robbery with Rape, Conspiracy can be inferred from the manner the offenders committed the robbery but the rape was

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

c.

Suppose, after the robbery, the four took turns in raping the three daughters of Danilo inside the latter's house, but before they left, they killed the whole family to prevent identification, what crime did the four commit? Explain.

A: The crime would be Robbery with Homicide because the killings were by reason (to prevent identification) and on the occasion of the robbery. Q: Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly undressed her and tied her legs to the bed. He also burned her face with a lighted cigarette. Like a madman, he laughed while raping her. What aggravating circumstances are present in this case? (1994) A: The aggaravating circumstances in this case are: 1. Cruelty, for burning the victim's face with a lighted cigarette, thereby deliberately augmenting the victim's suffering by acts clearly unnecessary to the rape, while the offender delighted and enjoyed seeing the victim suffer in pain (People v. Lucas, G.R. No. 80102, January 22, 1990); 2. Relationship, because the offended party is a descendant (daughter) of the offender and considering that the crime is one against chastity. Q: B, who is blind in one eye, conspired with M, a sixteen year old boy, with C, who had been previously convicted of Serious Physical Injuries, and with R, whose sister was raped by X a day before, to kill the latter. B, C and R were armed with .38 caliber revolvers, while M carried no weapon and acted only as a look out. They proceeded to the house of X riding in a motorized tricycle. Thereupon, C, on instruction of B to give X no chance, shot X who was then sleeping. Indicted for Homicide, as the information alleges no qualifying circumstance. Specify the mitigating and aggravating circumstances present, and explain in whose favor, and against whom, must they be considered. (1993) A: 1. Mitigating circumstances: a. B is entitled to the mitigating circumstance under Art. 13(8); b. M is entitled to the privileged mitigating circumstances of minority under Art. 68 of the RPC; c. Vindication of a grave offense in favor of R because his sister was raped by X a day before the shooting, and even if there was an interval of one (1) day between the rape and the killing. 2. Aggravating circumstances: a. The aggravating circumstance of recidivism Art. 14(9) should be considered against C if alleged in the Information (People v. Peter Cadevida, G.R. No. L-94528, March 1. 1993). b. The aggravating circumstance of motor vehicle under Art. 14(20) of the Code, all the accused having used a motorized tricycle; c. Treachery should be aggravating against all of the accused including M who acted as a lookout

because all of them were present when X was shot (Art. 62(4), RPC). X was sleeping when shot to death. Q: In an information for Murder against A. B, and C, the prosecution alleges Treachery as the qualifying circumstance and the following generic aggravating circumstances: (1) nocturnity, (2) abuse of superior strength, and (3) employing means to weaken the defense. At the trial, the prosecution, without objection from the de oficio counsel for the accused, proved evident premeditation. It likewise successfully proved the qualifying and the generic aggravating circumstances alleged in the information. For the purpose of determining the appropriate penalty to be imposed upon the accused, may the court take into account evident premeditation and the other generic aggravating circumstances? (1991) A: Yes, as far as evident premeditation is concerned, but only as a generic aggravating circumstance. Since treachery absorbs nocturnity, abuse of superior strength and employing means to weaken the defense, they can no longer be considered as additional circumstances. Qualifying Q: When would qualifying circumstances be deemed, if at all, elements of a crime? (2003) A: A qualifying circumstance would be deemed an element of a crime when: 1. It changes the nature of the crime, bringing about a more serious crime and a heavier penalty; 2. It is essential to the crime involved, otherwise some other crime is committed; and 3. It is specifically alleged in the Information and proven during the trial. ALTERNATIVE CIRCUMSTANCES Q: A was invited to a drinking spree by friends. After having had a drink too many, A and B had a heated argument, during which A stabbed B. As a result, B suffered serious physical injuries. May the intoxication of A be considered aggravating or mitigating? (2002) A: The intoxication of A may be prima facie considered mitigating since it was merely incidental to the commission of the crime. It may not be considered aggravating as there is no clear indication from the facts of the case that it was habitual or intentional on the part of A. Aggravating circumstances are not to be presumed; they should be proved beyond reasonable doubt. ABSOLUTORY CAUSE Instigation Q: Distinguish Entrapment from Instigation. (2003, 1995) A: As to intent: In Entrapment, the criminal design originates from and is already in the mind of the lawbreaker even before

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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committed by Fernando at a place "distant from the house" where the robbery was committed, not in the presence of the other conspirators. Hence, Fernando alone should answer for the rape, rendering him liable for the special complex crime.

FOR CRIMINAL LAW (1991-2015)

entrapment while in Instigation, the idea and design to bring about the commission of the crime originated and developed in the mind of the law enforcers; As to the means and ways: In Entrapment, the law enforcers resorts to ways and means for the purpose of capturing the lawbreaker in flagrante delicto while in Instigation, the law enforcers induce, lure, or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime; As to criminal liability: Entrapment is no bar to prosecution and conviction of the lawbreaker while Instigation absolves the accused from criminal liability (People v. Dante Marcos, 1990). Q: The Philippine Drug Enforcement Agency (PDEA) had intelligence reports about the drug pushing activities of Rado, but could not arresthim 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. (2015) a.

What defense, if any, may Ernilo invoke to free himself from criminal liability? Explain.

A: Ernilo may invoke Section 33, Art. II of RA 9165 or the “Comprehensive Drugs Act of 2002”. He may have violated Section 11 of RA 9165 for possession of shabu but he is immune from prosecution and punishment because of his role as the poseur-buyer in the entrapment operation. There was virtually instigation. He is exempted from prosecution or punishment because the information obtained from him by the PDEA agents, who had no direct and concrete evidence of Rado’s drug-pushing activities, led to the whereabouts, identity and arrest of Rado. So long as the information and testimony given are pleaded and proven, Ernilo cannot be prosecuted for violation of RA 9165. b. May Rado adopt as his own Emilo's defense? Explain. A: No. First, an entrapment operation is a valid means of arresting violators of RA 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Second, the immunity does not extend to violators of Section 5 of RA 9165 or the sale of shabu (sec. 33, RA 9165). Lastly, he was the offender of the crime and apparently the most guilty of the offense.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: Suspecting that Juan was a drug pusher, SPO2 Mercado, leader of the Narcom team, gave Juan a Pl00-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went inside the shopping mall while the officer waited at the corner of the mall. After fifteen minutes, Juan returned with ten sticks of marijuana cigarettes which he gave to SPO2 Mercado who thereupon placed Juan under arrest and charged him with violation of The Dangerous Drugs Law by selling marijuana cigarettes. Is Juan guilty of any offense punishable under The Dangerous Drugs Act? Discuss fully. (1995) A: Juan cannot be charged of any offense punishable under The Dangerous Drugs Act. Although Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion. By providing the money with which to buy marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan to commit the offense of illegal possession of marijuana. Set against the facts, instigation is a valid defense available to Juan. Article 332: Persons exempt from criminal liability for theft, swindling and malicious mischief Q: The wife of AAA predeceased his mother-in-law. AAA was accused of defrauding his mother-in-law under a criminal information for estafa, but the actual recital of facts of the offense charged therein, if proven, would constitute not only the crime of estafa, but also falsification of public document as a necessary means for committing estafa. AAA invokes the absolutory cause of relationship by affinity. Which statement is most accurate? (2012) A: There are two views on whether the extinguishment of the marriage by death of the spouse dissolves the relationship by affinity for purpose of absolutory clause. The first holds that the relationship by affinity terminates with the dissolution of the marriage, while the second maintains that relationship continues even after the death of the deceased spouse. The principle of pro reo calls for the adoption of the continuing affinity view because it is more favorable to the accused. However, the absolutory cause applies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification (Intestate estate of Gonzales v. People, G.R. No. 181409, February 11, 2010). Q: Dennis leased his apartment to Myla for P10,000 a month. Myla failed to pay the rent for 3 months. Gabriel, the son of Dennis, prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the payment. (2008) a) Did Gabriel commit a crime? Explain. A: Yes, Gabriel committed a crime; it was either the crime of falsification of a private document (if damage or at least intent to cause damage could be proved) or the crime of swindling only. It could not be both falsification and swindling or a complex crime of estafa through falsification since the document falsified was a private document. The two crimes cannot go together. b) Can Gabriel invoke his relationship with Dennis to avoid criminal liability? Explain.

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If he would be made criminally liable for swindling, he can invoke his relationship with Dennis because this crime cannot be complexed with falsification of a private document. The charged could, therefore, stand alone. The exemption in Art. 332 will obtain. Article 20: Accessories exempt from criminal liability by reason of relationship Q: DCB, the daughter of MCB, stole the earrings of XYZ, a stranger. MCB pawned the earrings with TBI Pawnshop as a pledge for P500 loan. During the trial, MCB raised the defense that being the mother of DCB, she cannot be held liable as an accessory. Will MCB's defense prosper? Reason briefly. (2004) A: No, MCB's defense will not prosper because the exemption from criminal liability of an accessory by virtue of relationship with the principal does not cover accessories who themselves profited from or assisted the offender to profit by the effects or proceeds of the crime. This non-exemption of an accessory, though related to the principal of the crime, is expressly provided in Art. 20 of the RPC. PERSONS CRIMINALLY LIABLE/ DEGREE OF PARTICIPATION Principal Q: 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 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. (2015) A: Nel, Ben, Ardo and Gorio are criminally liable as principals for the crime of Theft. They conspired to take Elgar’s personal properties without his knowledge, with

intent to gain, and without violence against or intimidation of persons or force upon things (Art. 308, RPC) Nel and Ben entered the house through an unlocked backdoor and took the valuables from the rooms and drawers that wer likewise left unlocked. Nel and Ben are liable as principals by direct participation while Ardo and Gorio are principals by indispensable cooperation because they have concurred in the criminal resolution and cooperated by performing another act as lookout and driver of a getaway car, respectively, which were indispensable for the commission of the crime (Art. 17, RPC). Nel, however, is also liable for the separate crime of Homicide for the death of Fermin. The killing of Fermin was a separate act and was not a necessary means for committing Theft (Art. 48, RPC) because the latter crime was already consummated. Nel killed Fermin for a different reason perhaps because of his anger that Fermin was in possession of his bag and wallet and appeared to be using his smart phone to contact the police. ALTERNATIVE ANSWER: All the offenders are liable for the crime of Robbery with Homicide. They are in conspiracy mwith each other, and after unlawfully taking the property of Elgar, killing occurred. In People v. Disimban (G.R. No. L-1746, January 31, 1951), the Supreme Court affirmed the conviction for Robbery with Homicide although the robbery victim was different from the homicide victim. In People v. Sandoval, the Supreme court ruled that those who took part as principals in the Robbery will also be held guilty as principals of Robbery with Homicide although they did not actually take part in the Homicide. Q: Mr. Red was drinking with his buddies, Mr. White and Mr. Blue when he saw Mr. Green with his former girlfriend, Ms. Yellow. Already drunk, Mr. Red declared in a loud voice that if he could not have Ms. Yellow, no one can. He then proceeded to the men’s room but told Mr. White and Mr. Blue to take care of Mr. Green. Mr. Blue and Mr. White asked Mr. Red what he meant but Mr. Red simply said, "You already know what I want," and then left. Mr. Blue and Mr. White proceeded to kill Mr. Green and hurt Ms. Yellow. (2014) a.

What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the death of Mr. Green?

A: Mr. Blue and Mr. White are liable for the death of Mr. Green as principals by direct participation. They were the ones who participated in the criminal resolution and who carried out their plan and personally took part in its execution by acts which directly tended to the same end. Mr. Red cannot be held criminally liable as principal by inducement because his statement that Mr. Blue and Mr. White are to take care of Mr. Green was not made directly with the intention of procuring the commission of the crime. There is no showing that the words uttered by him may be considered as so efficacious and powerful so as to amount to physical or moral coercion (People v. Assad, G.R. No. L-33673, February 24, 1931). Neither is there evidence to show that Mr. Red has an ascendancy or influence over Mr. White and Mr. Blue (People v. Abarri, F.R. No. 90815, March 1, 1995).

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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A: If Gabriel would be made criminally liable for falsification of a private document, he cannot invoke his relationship with Dennis, his father, to avoid criminal liability because Art. 332 of the RPC provides exemption from criminal liability in crimes against property only for theft, swindling or malicious mischief but not for falsification of document.

FOR CRIMINAL LAW (1991-2015)

b. What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the injuries of Ms. Yellow? A: Mr. Blue and Mr. White are liable as principals by direct participation for the crime of physical injuries for hurting Ms. Yellow to the extent of the injuries inflicted. Having no participation in the attack upon Ms. Yellow, Mr. Red would have no criminal liability therefor. Q: A asked B to kill C because of a grave injustice done to A by C. A promised B a reward. B was willing to kill C, not so much because of the reward promised to him but because he also had his own long-standing grudge against C, who had wronged him in the past. If C is killed by B, would A be liable as a principal by inducement? (2002, 1994) A: No. A would not be liable as a principal by inducement because the reward he promised B is not the sole impelling reason which made B to kill C. To bring about criminal liability of a co-principal, the inducement made by the inducer must be the sole consideration which caused the person induced to commit the crime and without which the crime would not have been committed. The facts of the case indicate that B, the killer supposedly induced by A, had his own reason to kill C out of a long standing grudge. Q: Despite the massive advertising campaign in media against firecrackers and gun-firing during the New Year's celebrations, Jonas and Jaja bought ten boxes of super lolo and pla-pla in Bocaue, Bulacan. Before midnight of December 31, 1999, Jonas and Jaja started their celebration by having a drinking spree at Jona's place by exploding their highpowered firecrackers in their neighborhood. In the course of their conversation, Jonas confided to Jaja that he has been keeping a long-time grudge against his neighbor Jepoy in view of the latter's refusal to lend him some money. While under the influence of liquor, Jonas started throwing lighted super lolos inside Jepoy's fence to irritate him and the same exploded inside the latter's yard. Upon knowing that the throwing of the super lolo was deliberate, Jepoy became furious and sternly warned Jonas to stop his malicious act or he would get what he wanted. A heated argument between Jonas and Jepoy ensued but Jaja tried to calm down his friend. At midnight, Jonas convinced Jaja to lend him his .45 calibre pistol so that he could use it to knock down Jepoy and to end his arrogance. Jonas thought that after all, explosions were everywhere and nobody would know who shot Jepoy. After Jaja lent his firearm to Jonas, the latter again started started throwing lighted super lolos and pla-plas at Jepoy's yard in order to provoke him so that he would come out of his house. When Jepoy came out, Jonas immediately shot him with Jaja's .45 caliber gun but missed his target. Instead, the bullet hit Jepoy's five year old son who was following behind him, killing the boy instantaneously. If you were the Judge, how would you decide the case? Explain. (2000) A: I would convict Jonas as principal by direct participation and Jaja as co-principal by indispensable cooperation for the complex crime of murder with homicide. Jaja should be held liable as co-principal and not only as an accomplice because he knew of Jonas' criminal design even before he lent his firearm to Jonas UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

and still he concurred in that criminal design by providing the firearm. Q: Tata owns a three-storey building located at No. 3 Herran Street. Paco, Manila. She wanted to construct a new building but had no money to finance the construction. So, she insured the building for P3,000,000.00. She then urged Yoboy and Yongsi, for monetary consideration, to bum her building so she could collect the insurance proceeds. Yoboy and Yongsi burned the said building resulting to its total loss. What is their respective criminal liablity? (1994) A: Tata is a principal by inducement because she directly induced Yoboy and Yongsi for a price or monetary consideration, to commit arson which the latter would not have committed were it not for such reason. Yoboy and Yongsi are principals by direct participation (Art. 17(21),(3), RPC). Accomplice Q: Who is an accomplice? (2012) A: Accomplices are those persons who, not being the principal, cooperate in the execution of the offense by previous or simultaneous acts (Art. 18, RPC). Q: Distinguish an accomplice from a conspirator as to their knowledge of the criminal design of the principal, their participation, the penalty to be imposed in relation to the penalty for the principal, and the requisites/elements to be established by the prosecution in order to hold them criminally responsible for their respective roles in the commission of the crime. (2012, 2007) A: The differences between an accomplice and conspirator are as follows:

Knowledge of the criminal design of the principal

Participation

ACCOMPLICE

CONSPIRATOR

They know and agree with the criminal design. They come to know it after the principals have reached the decision and only then do they agree to cooperate in its execution. Accomplices are mere instruments who perform acts not essential to the commission of the crime. One degree lower than that of the principal.

They know of and join in the criminal design. They know the criminal intention because they themselves have decided upon such course of action.

Penalty

Requisites

(1) community of criminal design;

Conspirators are the authors of the crime.

Same as principal NOTE: Conspiracy alone is not punishable except in cases where the law specifically prescribes a penalty. (1) that two or more persons come

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QuAMTO for CRIMINAL LAW (1991-2015) to an agreement; (2) that the agreement concerned the commission of a crime; and (3) that the execution of the felony was decided upon.

Q: Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot. (2009) a.

What, if any, is the liability of Ruben? Explain.

A: Ruben’s liability is that of an accomplice only because he merely cooperated in Pociano’s determination to kill Freddie. Such cooperation is not indispensable to the killing, as in fact the killing was carried out without the use of Ruben’s gun. Neither may Ruben be regarded as a co-conspirator since he was not a participant in the decision-making of Ponciano to kill Freddie; he merely cooperated in carrying out the criminal plan which was already in place (Art. 18, RPC). b. Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. A: No. The answer would not be the same because Ruben lent his gun purposely for the killing of Freddie only, not for any other killing. Ponciano’s using Ruben’s gun in killing a person other than Freddie is beyond Ruben’s criminal intent and willing involvement. Only Ponciano will answer for the crime against Manuel. Accessories Q: Modesto and Abelardo are brothers. Sometime in August 1998 while Abelardo was in his office, Modesto, together with two other men in police uniform, came with two heavy bags. Modesto asked Abelardo to keep the two bags in his vault until he comes back to get them. When Abelardo later examined the two bags, he saw bundles of money that, in his rough count, could not be less than P5 Million. He kept the money inside the vault and soon he heard the news that a gang that included Modesto had been engaged in bank robberies. Abelardo, unsure of what to do under the circumstances, kept quiet about the two bags in his vault. Soon after, the police captured, and secured a confession from, Modesto who admitted that their loot had been deposited with Abelardo. What is Abelardo's liability? (2013) A: Abelardo is not criminally liable. To be criminally liable as an accessory under Art. 19, such person must have knowledge of the commission of the crime. The

term “knowledge “under the law is not synonymous with suspicion. Mere suspicion that the crime has been committed is not sufficient. Even if he can be considered as an accessory under Art. 19(2) of RPC, Abelardo is not liable, being the brother of Modesto under Art. 20, RPC. Q: Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide in the maid’s quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunt’s house. A week later, Jake was apprehended by the police. Can Jake’s mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (2010, 1998) A: Obviously, Jake’s mother was aware of her son’s having committed a felony, such that her act of harbouring and concealing him renders her liable as an accessory. But being an ascendant of Jake, she is exempt from criminal liability by express provision of Art. 20 of the RPC. On the other hand, the criminal liability of Jake’s aunt depends on her knowledge of his commission of the felony, her act of harbouring and concealing Jake would render her criminally liable as accessory to the crime of murder; otherwise, without knowledge of Jake’s commission of the felony, she would not be liable. Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders (P.D. 1829) Q: Manolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to Domeng his desire to borrow his revolver. Domeng lent it. Manolo shot Cece in Manila with Domeng's revolver. As his gun was used in the killing, Domeng asked Mayor Tan to help him escape. The mayor gave Domeng P5,000.00 and told him to proceed to Mindanao to hide. Domeng went to Mindanao. The mayor was later charged as an accessory to Cece's murder. (2008) a.

Can he be held liable for the charge? Explain.

A: Giving Domeng the benefit of a milder criminal responsibility of an accomplice, not of a co-principal by indispensable cooperation of Manolo, Mayor Tan could not be liable as an accessory to Cece’s murder. To incur criminal liability of an accessory for helping or assisting in the escape of an offender, he must be a principal of the crime committed. Unless Domeng would be considered as a co-principal by indispensable cooperation in the commission of the murder, the Mayor, by assisting him to escape, would be an accessory to the felony. b. Can he be held liable for any other offense? Explain fully. A: Although the Mayor may not be held liable as an accessory to the killing of Cece, he may be held liable for obstruction of justice under P.D. No. 1829 for assisting Domeng, who was involved in the commission of a crime, to escape from Manila to Mindanao. Unlike in Art. 19 of the RPC, P.D. No. 1829 made no qualification as to the offender whether he be principal, accomplice or accessory in the crime in whose favour the obstructing acts were committed.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; (2) the performance of the previous or simultaneous acts that are not indispensible to the commission of the crime

FOR CRIMINAL LAW (1991-2015)

PENALTIES GENERAL PRINCIPLES Q: Imagine that you are a Judge trying a case, and based on the evidence presented and the applicable law, you have decided on the guilt of two (2) accused. Indicate the five (5) steps you would follow to determine the exact penalty to be imposed. Stated differently, what are the factors you must consider to arrive at the correct penalty? (1991) A: 1. 2. 3. 4. 5.

Determine the crime committed; Stage of execution and degree of participation; Determine the penalty; Consider the modifying circumstances; Determine whether Indeterminate Sentence Law is applicable or not.

Q: What are the penalties that may be served simultaneously? (2007) A: The penalties that may be served simultaneously are imprisonment/ destierro and: 1. Perpetual absolute disqualification; 2. Perpetual special disqualification; 3. Temporary absolute disqualification; 4. Temporary special disqualification; 5. Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling; 6. Fine; and any principal penalty with its accessory penalties. Q: After trial, Judge Juan Laya of the Manila RTC found Benjamin Garcia guilty of Murder, the victim having sustained several bullet wounds in his body so that he died despite medical assistance given in the Ospital ng Manila. Because the weapon used by Benjamin was unlicensed and the qualifying circumstance of treachery was found to be present. Judge Laya rendered his decision convicting Benjamin and sentencing him to "reclusion perpetua or life imprisonment". Are "reclusion perpetua" and life imprisonment the same and can be imposed interchangeably as in the foregoing sentence? Or are they totally different? State your reasons. (2005, 2001, 1994) A: The penalty of reclusion perpetua and the penalty of life imprisonment are totally different from each other and therefore, should not be used interchangeably. Reclusion perpetua is a penalty prescribed by the RPC, with a fixed duration of imprisonment from 20 years and 1 day to 40 years, and carries it with accessory penalties. Life imprisonment, on the other hand, is a penalty prescribed by special laws, with no fixed duration of imprisonment and without any accessory penalty. Q: Under Article 27 of the Revised Penal Code, as amended by Republic Act (RA) No. 7959, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does this mean that reclusion perpetua is now a divisible penalty? Explain. (2005) A: No, because the Supreme Court has repeatedly called the attention of the Bench and the Bar to the fact that the penalties of reclusion perpetua and life imprisonment UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

are not synonymous and should be applied correctly and as may be specified by the applicable law. Reclusion perpetua has a specific duration of 20 years and 1 day to 40 years (Art. 27) and accessory penalties (Art. 41), while life imprisonment has no definite term or accessory penalties. Also, life imprisonment is imposable on crimes punished by special laws, and not on felonies in the Code. Q: When is there preventive imprisonment? When is the accused credited with the full time of his preventive imprisonment, and when is he credited with 4/5 thereof? (1994) Act Prohibiting the Imposition of Death Penalty in the Philippines (R. A. 9364) Q: The death penalty cannot be inflicted under which of the following circumstances: 1. When the guilty person is at least 18 years of age at the time of the commission of the crime. 2. When the guilty person is more than 70 years of age. 3. When, upon appeal to or automatic review by the Supreme Court, the required majority for the imposition of the death penalty is not obtained. 4. When the person is convicted of a capital crime but before execution becomes insane. 5. When the accused is a woman while she is pregnant or within one year after delivery. Explain your answer or choice briefly. (2004) A: Understanding the word "inflicted" to mean the imposition of the death penalty, not its execution, the circumstance in which the death penalty cannot be inflicted is no. 2: "when the guilty person is more than 70 years of age" (Art. 47, RPC). Instead, the penalty shall be commuted to reclusion perpetua, with the accessory penalties provided in Art. 40, RPC. In circumstance no. 1 when the guilty person is at least 18 years of age at the time of the commission of the crime, the death penalty can be imposed since the offender is already of legal age when he committed the crime. Circumstance no. 3 no longer operates, considering the decision of the Supreme Court in People v. Efren Mateo, G.R. 147678-87, July 7, 2004, providing an intermediate review for such cases where the penalty imposed is death, reclusion perpetua or life imprisonment before they are elevated to the Supreme Court. In circumstances nos. 4 & 5, the death penalty can be imposed if prescribed by the law violated although its execution shall be suspended when the convict becomes insane before it could be executed and while he is insane. Likewise, the death penalty can be imposed upon a woman but its execution shall be suspended during her pregnancy and for one year after her delivery. Q: Under Article 47 of RA. 7659, the death penalty shall be imposed in all cases in which it must be imposed under existing laws. What are the exceptions to the imposition of the death penalty? (1998) A: The death penalty shall not be imposed although prescribed under existing laws: 1. When the accused is less than 18 years of age at the time of the commission of the offense; 2. When the accused is more than 70 years of age already;

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015) When upon appeal or automatic review of the case by the Supreme Court, the required majority vote for the imposition of the death penalty is not obtained.

Q: When was the constitutional proscription against the imposition of the death penalty lifted? When is the execution of the death penalty suspended under the Revised Penal Code? When is the death penalty commuted under the same Code? (1995) A: a. The constitutional proscription against the imposition of the death penalty was lifted with the enactment of R.A. 7659, otherwise known as the Heinous Crimes Law, which took effect fifteen (15) days after publication on December 16,1993, that is on December 31, 1993 (People v. Martin Simon, G.R. No. 93028 July 29, 1994). b. Death penalty shall not be executed (a) upon a woman within three years after date of the sentence, (b) while she is pregnant, (c) upon a person over 70 years old (Art. 83, RPC), or (4) upon a convict who becomes insane after final sentence (Art. 79, RPC). c. When the convict reaches the age of 70 years the death sentence is commuted to reclusion perpetua (Art. 83, RPC). APPLICATION Indeterminate Sentence Law (R. A. 4103, as amended) Q: What is the fundamental principle in applying and interpreting criminal laws, including the Indeterminate Sentence Law? How is the Indeterminate Sentence Law applied in imposing a sentence? (2012) A: The fundamental principle in interpreting and applying penal laws is the principle of pro reo. The phrase “in dubio pro reo” means “when in doubt, for the accused.” (Intestate Estate of Gonzales v. People, G.R. No. 181409, February 11, 2010). In dubio pro reo, is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt (People v. Temporada, G.R. No. 173473, December 17, 2008). If crime is punishable under the RPC, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstance, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. If the offense is punishable under a special law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law, and the minimum shall not be less than the minimum term prescribed in the same (R.A. 4103, Sec. 1). When penalty is imposed by RPC Q: How are the maximum and the minimum terms of the indeterminate sentence for offenses punishable under the Revised Penal Code determined? Under the law, what is the purpose for fixing the maximum

and the minimum terms of the indeterminate sentence? (2002) A: For crimes punished under the Revised Penal Code, the maximum term of the indeterminate sentence shall be the penalty properly imposable under the same Code after considering the attending mitigating and/or aggravating circumstances according to Art. 64 of said Code. The minimum term of the same sentence shall be fixed within the range of the penalty next lower in degree to that prescribed for the crime under the said Code. The maximum and the minimum terms of the indeterminate sentence must be fixed because they are the basis for the following: 1. Whenever a prisoner has served the minimum penalty imposed upon him, he is fit for release on parole upon terms and conditions prescribed by the Board; 2. When the paroled prisoner violates any of the conditions of his parole during the period of surveillance, he may be rearrested to serve the remaining unexpired portion of the maximum sentence; 3. Even if a prisoner has already served the minimum but he is not fitted for release on the parole, he shall continue to serve until the end of the maximum term. Q: Bruno was charged with homicide for killing the 75-year old owner of his rooming house. The prosecution proved that Bruno stabbed the owner causing his death; and that the killing happened at 10 in the evening in the house where the victim and Bruno lived. Bruno, on the other hand, successfully proved that he voluntarily surrendered to the authorities; that he pleaded guilty to the crime charged; that it was the victim who first attacked and did so without any provocation on his (Bruno's) part, but he prevailed because he managed to draw his knife with which he stabbed the victim. The penalty for homicide is reclusion temporal. Assuming a judgment of conviction and after considering the attendant circumstances, what penalty should the judge impose? (2013) A: Bruno should be sentenced to an indeterminate sentence penalty of arresto mayor in any of its period to prision correccional in its medium period as maximum. Bruno was entitled to two privileged mitigating circumstances of incomplete self-defense and the presence of at least two ordinary mitigating circumstances (voluntary surrender and plea of guilt) without any aggravating circumstance under Art. 69 and 64(5) of the RPC respectively, which lowers the prescribed penalty for homicide which is reclusion temporal to prision correccional. Q: X was convicted of a complex crime of direct assault with homicide aggravated by the commission of the crime in a place where public authorities are engaged in the discharge of their duties. The penalty for direct assault is prision correccional in its medium and maximum period. What is the correct indeterminate penalty? (2012) A: 10 years of prision mayor as minimum to 17 years & 4 months of reclusion temporal as maximum.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

24

3.

FOR CRIMINAL LAW (1991-2015)

Q: An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only. Who of the three is on the right track? Explain. (2010) A: None of the contentions is correct because the Indeterminate Sentence Law (R.A. 4103) has not been followed. The imposition of penalty for the crime of homicide, which is penalized by imprisonment exceeding one (1) year and is divisible, is covered by the Indeterminate Sentence Law. The said law requires that the sentence in this case should reflect a minimum term for purposes of parole, and a maximum term fixing the limit of the imprisonment. Imposing a straight penalty is incorrect. Q: In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. a.

Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. Explain. (2009)

A: Under the Indeterminate Sentence Law, the minimum of the sentence shall be anywhere within the range of 6 years and 1 day to 12 years imprisonment while the maximum of the sentence shall be anywhere within the range of Reclusion Temporal minimum i.e., not lower than 12 years and 1 day to not more than 14 yrs. and 8 months. b. Will your answer be the same if it is a conviction for illegal possession of drugs under R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? A: No. My answer will not be the same because violations of R.A. 9165 are mala prohibita in which mitigating and aggravating circumstances are not appreciated. Although in People v. Simon (G.R. No. 93028, July 29, 1994), it was held that Art. 64 can be applied if the special law adopted the nomenclature of penalties provided under the RPC, such pronouncement cannot be applied in the instant case because the penalties for illegal possession of drugs under R.A. 9165 do not follow the technical nomenclature of penalties in the RPC and thus, cannot be divided into periods. Hence, the existence of mitigating and aggravating circumstances cannot be appreciated. Q: Macky, a security guard, arrived home late one night after rendering overtime. He was shocked to see Joy, his wife, and Ken, his best friend in the act of having sexual intercourse. Macky pulled out his UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

service gun and shot and killed Ken. The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Macky to pay indemnity to the heirs of the victim in the amount of P50,000. While serving his sentence, Macky entered the prohibited area and had a pot session with Ivy (Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of the use of prohibited substances? Explain your answer. (2007) A: No, Macky is not entitled to the benefit of the Indeterminate Sentence Law (R.A. 4103, as amended) for having evaded the sentence which banished or placed him on destierrro. Sec. 2 of the said law expressly provides that the law shall not apply to those who shall have "evaded sentence". ALTERNATIVE ANSWER: No, because the penalty for use of any dangerous drug by a first offender is not imprisonment but rehabilitation in a government center for a minimum period of six (6) months (Sec. 15, R.A. 9165). The Indeterminate Sentence Law does not apply when the penalty is imprisonment not exceeding one year. Q: Homer was convicted of homicide. The trial court appreciated the following modifying circumstances: the aggravating circumstance of nocturnity, and the mitigating circumstances of passion and obfuscation, no intent to commit so grave a wrong, illiteracy and voluntary surrender. The imposable penalty for homicide is reclusion temporal the range of which is twelve (12) years and one (1) day to twenty (20) years. Taking into account the attendant aggravating and mitigating circumstances, and applying the Indeterminate Sentence Law, determine the proper penalty to be imposed on the accused. (1997) A: It appears that there is one aggravating circumstance (nocturnity), and four mitigating circumstances (passion and obfuscation, no intent to commit so grave a wrong as that committed and voluntary surrender). Par. 4, Art. 64 should be applied. Hence there will be off-setting of modifying circumstances, which will now result in the excess of three mitigating circumstances. This will therefore justify in reducing the penalty to the minimum period. The existence of an aggravating circumstance, albeit there are four aggravating, will not justify the lowering of the penalty to the next lower degree under par. 5 of said Article, as this is applicable only if there is no aggravating circumstance present. Since the crime committed is Homicide and the penalty therefor is reclusion temporal, the MAXIMUM sentence under the Indeterminate Sentence Law should be the minimum of the penalty, which is 12 years and 1 day to 14 years and 8 months. The MINIMUM penalty will thus be the penalty next lower in degree, which is prision mayor in its full extent (6 years and 1 day to 12 years). Ergo, the proper penalty would be 6 years and 1 day, as minimum, to 12 years and 1 day, as maximum. I believe that because of the remaining mitigating circumstances after the off-setting it would be very logical to impose the minimum of the MINIMUM sentence under the ISL and the minimum of the MAXIMUM sentence.

25

QUAMTO

TEAM BAROPS ACADEMICS COMMITTEE 2016

QuAMTO for CRIMINAL LAW (1991-2015) Q: Assume in the preceding problem that there were two mitigating circumstances and no aggravating circumstance. Impose the proper prison penalty.

A: No, because the Indeterminate Sentence Law will apply when the minimum of the penalty exceeds one year.

A: There being two (2) mitigating circumstances without any aggravating circumstance, the proper prison penalty is arresto mayor (in any of its periods, ie. ranging from one (1) month and one (1) day to six (6) months) as MINIMUM to prision correccional in its maximum period four (4) years, two (2) months, and one (1) day to six (6) years as MAXIMUM. Under Art. 64, par. 5 of the Revised Penal Code, when a penalty contains three periods, each one of which forms a period in accordance with Art. 76 and 77 of the same Code, and there are two or more mitigating circumstances and no aggravating circumstances, the penalty next lower in degree should be imposed. For purposes of the ISL, the penalty next lower in degree should be determined without regard as to whether the basic penalty provided by the RPC should be applied in its maximum or minimum period as circumstances modifying liability may require. The penalty next lower in degree to prision correccional. Therefore, as previously stated, the minimum should be within the range of arresto mayor and the maximum is within the range of prision correctional in its maximum period.

Q: A was convicted of illegal possession of grease guns and two Thompson sub-machine guns punishable under the old law (R.A. No. 4) with imprisonment of from five (5) to ten (10) years. The trial court sentenced the accused to suffer imprisonment of five (5) years and one (1) day. Is the penalty thus imposed correct? Explain. (1999)

A: The proper penalty is reclusion perpetua. Even if there are two or more mitigating circumstances, a court cannot lower the penalty by one degree (Art. 63[3], RPC; People v. Formigones, G.R. No. L-3246, November 29, 1950). In U.S. v. Relador 60 Phil. 593, where the crime committed was parricide with the two (2) mitigating circumstances of illiteracy and lack of intention to commit so grave a wrong, and with no aggravating circumstance, the Supreme Court held that the proper, penalty to be imposed is reclusion perpetua. When penalty is imposed by Special Penal Law Q: Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months, as minimum, to 3 years, as maximum. State with reasons whether the court may correctly impose the following penalties: (2005) a.

a straight penalty of 10 months;

A: Yes, because the penalty is less than one year, a straight penalty may be imposed (People v. Arellano, G.R. No. 46501, October 5, 1939). b. 6 months, as minimum, to 11 months, as maximum; A: No, because Indeterminate Sentence Law does not apply when the penalty imposed is less than one year (R.A. 4103, Sec. 2). c.

a straight penalty of 2 years.

Q: Itos was convicted of an offense penalized by a special law. The penalty prescribed is not less than six years but not more than twelve years. No modifying circumstance attended the commission of the crime. If you were the judge, will you apply the Indeterminate Sentence Law? If so, how will you apply it? (1999, 1994) A: If I were the judge, I will apply the provisions of the Indeterminate Sentence Law, as the last sentence of Section 1 Act 4103, specifically provides the application thereof for violations of special laws. Under the same provision, the minimum must not be less than the minimum provided therein (six years and one day) and the maximum shall not be more than the maximum provided therein, i.e. twelve years. Three- fold Rule Q: Roman and Wendy are neighbors. On Valentine's Day, without prior notice, Roman visited Wendy at her condo to invite her to dinner, but Wendy turned him down and abruptly left, leaving her condo door unlocked. Roman attempted to follow, but appeared to have second thoughts; he simply went back to Wendy's condo, let himself in, and waited for her return. On Wendy's arrival later that evening, Roman grabbed her from behind and, with a knife in hand, forced her to undress. Wendy had no choice but to comply. Roman then tied Wendy's hands to her bed and sexually assaulted her five (5) times that night. Roman was charged with, and was convicted of, five (5) counts of rape, but the judge did not impose the penalty of reclusion perpetua for each count. Instead, the judge sentenced Roman to 40 years of imprisonment on the basis of the threefold rule. Was the judge correct? (2013) A: No, the three-fold rule is applicable only in connection with the service of the sentence not in the imposition of the proper penalties. The court must impose all penalties for all the crimes for which the accused have been found guilty. Thus, the court should not make a computation in it decision and sentence the accused to not more than the three-fold of the most severe of the penalties imposable. The computation under the three-fold rule is for the prison authorities to make.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

26

Q: A and B pleaded guilty to the crime of parricide. The court found three mitigating circumstances, namely, plea of guilty, lack of instruction and lack of intent to commit so grave a wrong as that committed. The prescribed penalty for parricide is reclusion perpetua to death. Impose the proper principal penalty. (1997)

A: The penalty imposed, being only a straight penalty, is not correct because it does not comply with the Indeterminate Sentence Law which applies to this case. Said law requires that if the offense is punished by any law other than the RPC, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum penalty fixed by the law and the minimum shall not be less than the minimum penalty prescribed by the same.

FOR CRIMINAL LAW (1991-2015)

Subsidiary Imprisonment Q: E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency. Is the penalty proper? Explain. (2005) A: The penalty is not proper. The two accused must separately pay the fine, which is their penalty. Solidary liability applies only to civil liabilities. Q: May the judge impose an alternative penalty of fine or imprisonment? Explain. A: No. A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term. There is no rule for transmutation of the amount of a fine into a term of imprisonment (People v. Dacuycuy, G.R. No. L-45127, May 5, 1989). EXECUTION AND SERVICE Probation Law (P.D. 968, as amended by R.A. 10707) Q: Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petitions for probation? Explain. (2010) A: The brother’s petition for probation should both be denied. Matt’s petition for probation shall be denied because he was convicted for drug-trafficking. Section 24 of RA 9165 (Comprehensive Dangerous Drug Act of 2002) expressly provides, “Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.” On the other hand, Jeff’s application for probation cannot also be entertained or granted because he has already appealed his conviction by the trial court (P.D. 968, as amended, Sec. 4). Q: Maganda was charged with violation of the Bouncing Checks Law (B.P. 22) punishable by imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000.00, or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000.00 with subsidiary imprisonment in case of insolvency, and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she should not change her residence without the court’s prior approval. (2005) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

a.

What is the proper period of probation?

A: The period of probation shall not be less than the total number of days of subsidiary imprisonment or more than twice the said number of days as computed at the rate established under the Revised Penal Code, which is one (1) day imprisonment for every P8.00 fine but not to exceed six (6) months. (P.D. 968, Sec. 14[b] (establishing a Probation System) in correlation with Art. 39, RPC) b. Supposing before the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? Explain. A: Yes. The Court may revoke her probation. Probation is not coterminous with its period. There must first be issued by the court an order of final discharge based on the report and recommendation of the probation officer. Only then can the case of the probationer be terminated. Q: PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation? Explain briefly. (2004) A: Yes, PX may apply for probation. His previous conviction for another crime with a penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him from applying for probation; the penalty for his present conviction does not disqualify him either from applying for probation, since the imprisonment does not exceed six (6) years (P.D. 968, Sec. 9). Q: Juan was convicted of the Regional Trial Court of a crime and sentenced to suffer the penalty of imprisonment for a minimum of eight years. He appealed both his conviction and the penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan's conviction but reduced his sentence to a maximum of four years and eight months imprisonment. Could Juan forthwith file an application for probation? Explain. (2003, 2002, 2001, 1995, 1992) A: No, Juan can no longer avail of the probation because he appealed from the judgment of conviction of the trial court. Sec. 4 of the Probation Law mandates that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction. Q: A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one (1) day in prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum. Prior to his conviction, he had been found guilty of vagrancy and imprisoned for ten (10) days of arresto manor and fined fifty pesos (P50.00). Is he eligible for probation? Why? (2002)

27

QUAMTO

TEAM BAROPS ACADEMICS COMMITTEE 2016

QuAMTO for CRIMINAL LAW (1991-2015)

REPEATED DOCTRINE Q: May a probationer appeal from the decision revoking the grant of probation or modifying the terms and conditions thereof? (2002) A: No. Under Section 4 of the Probation Law, as amended, an order granting or denying probation is not appealable. Q: The accused was found guilty of grave oral defamation in sixteen (16) information which were tried jointly and was sentenced in one decision to suffer in each case a prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional. Within the period to appeal, he filed an application for probation under the Probation Law of 1976, as amended. Could he possibly qualify for probation? (1997) A: Yes. In Francisco v. CA, (G.R. No. 108747, April 6, 1995) the Supreme Court held that in case of one decision imposing multiple prison terms, the totality of the prison terms should not be taken into account for the purposes of determining the eligibility of the accused for the probation. The law uses the word "maximum term", and not total term. It is enough that each of the prison terms does not exceed six years. The number of offenses is immaterial for as long as the penalties imposed, when taken individually and separately, are within the probationable period. Q: On February 3, 1986, Roberto was convicted of arson through reckless imprudence and sentenced to pay a fine of P15,000.00, with subsidiary imprisonment in case of insolvency by the Regional Trial Court of Quezon City. On February 10, 1986, he appealed to the Court of Appeals. Several months later, he filed a motion to withdraw the appeal on the ground that he is applying for probation. On May 7, 1987, the Court of Appeals granted the motion and considered the appeal withdrawn. On June 10, 1987, the records of the case were remanded to the trial court. Roberto filed a "Motion for Probation" praying that execution of his sentence be suspended, and that a probation officer be ordered to conduct an Investigation and to submit a report on his probation. The judge denied the motion on the ground that pursuant to Presidential Decree No. 1990, which took effect on July 16, 1986, no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Is the denial of Roberto's motion correct? (1994) A: Yes. Eventhough Roberto was qualified for probation at the time of his conviction, he is, nevertheless not qualified at the time he filed the application, thus he is no longer entitled to probation. The qualification for probation must be determined as of the time the application is filed in Court.

Juvenile Justice and Welfare Act of 2006 (R.A. No. 9344); also refer to Child and Youth Welfare Code (P.D. 603, as amended) Q: Michael was 17 years old when he was charged for violation of Sec. 5 of R.A. 9165 (illegal sale of prohibited drug). By the time he was convicted and sentenced, he was already 21 years old. The court sentenced him to suffer an indeterminate penalty of imprisonment of six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, and a fine of P500,000. Michael applied for probation but his application was denied because the probation law does not apply to drug offenders under R.A. 9165. Michael then sought the suspension of his sentence under R.A. 9344 or the Juvenile Justice and Youth Welfare Code. Can Michael avail of the suspension of his sentence provided under this law? (2013) A: The benefits of a suspended sentence can no longer apply to Michael. The suspension of sentence lasts only until the law reaches the maximum age and thus, could no longer be considered a child for purposes of applying R.A. 9344. However, he shall be entitled to the right of restoration, rehabilitation and reintegration in accordance with the law to give him the chance to live a normal life and become a productive member of the community. Accordingly, Michael may be confined in an agricultural camp and other training facility in accordance with Sec. 51 of R.A. 9344 (People v. Jacinto, G.R. No. 182239, March 16, 2011). Q: Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion. (2009, 2003) a.

What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain.

A: “Intervention” refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counselling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. This is available to a child 15 years old or less at the time of the commission of the crime or although over 15 but below 18 years old at the time of commission of the crime, the child acted without discernment. “Diversion” refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. This process governs when the child is over 15 years old but below 18 at the time of the commission of the crime and he acted with discernment. Yes. Joe is entitled to diversion. Being only 17 years old at the time he committed the crime of homicide, he is treated as a child in conflict with the law under R.A. 9344.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

28

A: No, he is not entitled to the benefits of the Probation Law (P.D. 968, as amended) does not extend to those sentenced to serve a maximum term of imprisonment of more than six years (Sec. 9[a]). It is of no moment that in his previous conviction A was given a penalty of only ten (10) days of arresto mayor and a fine of P50.00.

FOR CRIMINAL LAW (1991-2015)

b. Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain. A: No. The Judge should not suspend sentence anymore because Joe was already 21 years old and no longer a minor at the time of promulgation of the sentence. For purposes of suspension of sentence, the offender's age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. Suspension of sentence is availing under R.A. 9344 only until a child reaches the maximum age of twenty-one (21) years. c.

Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain.

A: Yes. He would be eligible for probation because the penalty imposable on Joe will not exceed 6 years imprisonment. Even if it would be considered that the crime committed was punishable by death, the penalty as far as Joe is concerned can only be reclusion perpetua because R.A. 9344 forbids the imposition of the capital punishment upon offenders thereunder. The murder being attempted only, the prescribed penalty is two degrees lower than reclusion perpetua; hence, prision mayor. Because Joe was 17 years old when he committed the crime, the penalty of prision mayor should be lowered further by one degree because his minority is a privileged mitigating circumstance; hence, prision correctional or imprisonment within the range of six months and 1 day to 6 years is imposable. Q: There are at least 7 instances or situations in criminal cases wherein the accused, either as an adult or as a minor, can apply for and/or be granted a suspended sentence. Enumerate at least 5 of them. (2006) A: Instances when sentence may be suspended are: 1. where the accused became insane before sentence could be promulgated (Art. 79, RPC); 2. where the offender, upon conviction by the trial court, filed an application for probation which has been granted (Baclayon v. Mutia, G.R. No. L-59298 April 30, 1984); 3. where the offender needs to be confined in a rehabilitation center because of drug-dependency although convicted of the crime charged; 4. where the offender is a youthful offender under Art. 192, PD 603, otherwise referred to as the Child and Youth Welfare Code; and where the, crime was committed when the offender is under 18 years of age and he is found guilty thereof in accordance with Rep. Act 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006", but the trial court subjects him to appropriate disposition measures prescribed by the Supreme Court in the Rule on Juveniles in Conflict with the Law; 5. the death sentence shall be suspended upon a woman while she is pregnant or within one year after delivery. (Art. 83, Revised Penal Code);

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

6. 7.

Suspension of Sentence of a first-time minor offender under Section 66 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002); When the sentence is death, its execution may be suspended or postponed by the Supreme Court, through the issuance of a RO upon the ground of supervening events (Echegaray v. Secretary of Justice, G.R. No. 132601, January 19, 1999).

REPEATED DOCTRINE Q: A was 2 months below 18 years of age when he committed the crime. He was charged with the crime 3 months later. He was 23 when he was finally convicted and sentenced. Instead of preparing to serve a jail term, he sought a suspension of the sentence on the ground that he was a juvenile offender. Should he be entitled to a suspension of sentence? Reasons. (2003) A: No, A is not entitled to a suspension of the sentence because he is no longer a minor at the time of promulgation of the sentence. For purposes of suspension of sentence, the offender's age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. So although A was below 18 years old when he committed the crime, but he was already 23 years old when sentenced, he is no longer eligible for suspension of the sentence. Q: Can juvenile offenders, who are recidivists, validly ask for suspension of sentence? Explain. (2003) A: Yes, so long as the offender is still a minor at the time of the promulgation of the sentence. The law establishing Family Courts, Rep. Act 8369, provides to this effect: that if the minor is found guilty, the court should promulgate the sentence and ascertain any civil liability which the accused may have incurred. However, the sentence shall be suspended without the need of application pursuant to PD 603, otherwise known as the “Child and Youth Welfare Code” (RA 8369, Sec. 5a). It is under PD 603 that an application for suspension of the sentence is required and thereunder it is one of the conditions for suspension of sentence that the offender be a first time convict: this has been displaced by RA 8369. MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY Extinction by Death Q: 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 ofprision 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. (2015)

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QuAMTO for CRIMINAL LAW (1991-2015) Should the RTC grant the Motion to Dismiss the case? Explain.

A: The RTC may not grant the motion to dismiss because the Court of Appeals, having issued an Entry of Judgment, the decision has become final and executory. However, the pecuniary penalty, such as the civil liability arising from the crime consisting of actual damages of P25,000 survives the death of Tiburcio. b. Assuming that Tiburcio's death occurred before the Court of Appeals rendered its decision, will you give a different answer? A: Yes. The RTC decision must be set aside and the case against Tiburcio must consequently be dismissed. The demise of Tiburcio which occurred before the Court of Appeals rendered its decision causes his criminal liability, as well as his civil liability ex delicto, to be totally extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action is instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on criminal case. PRESCRIPTION OF CRIME Q: A killed his wife and buried her in their backyard. He immediately went into hiding in the mountains. Three years later, the bones of A’s wife were discovered by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of hiding, A left the country but returned three years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide but raised the defense of prescription. (2010, 2009, 2004, 2000). a.

Under the Revised Penal Code, when does the period of prescription of a crime commence to run?

A: Generally, the period of prescription of a crime commences to run for the date it was committed; but if the crime was committed clandestinely, the period of prescription of the crimes under the RPC commence to run from the day on which the crime was discovered (the discovery rule) by the offended party, the authorities or their agents (Art. 91, RPC). b. When is it interrupted? A: The running of the prescriptive period of the crime is interrupted when “any kind of investigative proceedings is instituted against the guilty person which may ultimately lead to his prosecution” (Panaguiton, Jr. v. DOJ, G.R. No. 167571, November 25, 2008). c.

Is A’s defense tenable? Explain.

A: No, the defense of prescription of the crime is not tenable. The crime committed is parricide which prescribes in twenty (20) years (Art. 90, RPC). It was only when the caretaker, Z, found the victim’s bones and reported the matter to the police that the crime is deemed legally discovered by the authorities or their agents and thus the prescriptive period of the crime

commenced to run. When A left the country and returned only after three (3) years, the running of the prescriptive period of the crime is interrupted and suspended because prescription shall not run when the offender is absent from the Philippine Archipelago (Art. 91, RPC). Since A had been in hiding for 15 years after the commission of the crime and the prescriptive period starting running only after 5 years from such commission when the crime was discovered, only 10 years lapsed and 3 years thereof should be deducted when the prescriptive period was interrupted and suspended. Hence, the 3 years when A was out of the Philippines should be deducted from the 10 years after the prescription starts running. Adding the 7 years of prescription and the 6 years that lapsed before the case was filed, only a total of thirteen (13) years of the prescriptive period had lapsed. Hence, the crime has not yet prescribed. Q: On June 1, 1988, a complaint for concubinage committed in February 1987 was filed against Roberto in the Municipal Trial Court of Tanza, Cavite for purposes of preliminary investigation. For various reasons, it was only on July 3, 1998 when the Judge of said court decided the case by dismissing it for lack of jurisdiction since the crime was committed in Manila. The case was subsequently filed with the City Fiscal of Manila but it was dismissed on the ground that the crime had already prescribed. The law provides that the crime of concubinage prescribes in ten (10) years. Was the dismissal by the fiscal correct? Explain. (2001) A: No, the Fiscal's dismissal of the case on alleged prescription is not correct. The filing of the complaint with the Municipal Trial Court, although only for preliminary investigation, interrupted and suspended the period of prescription in as much as the jurisdiction of a court in a criminal case is determined by the allegations in the complaint or information, not by the result of proof (People v. Galano, G.R. No. L-42925, January 31, 1977). Q: A was charged in an Information with the crime of grave oral defamation but after trial, the court found him guilty only of the offense of simple slander. He filed a motion for reconsideration contending that, under the law, the crime of simple slander would have prescribed in two months from commission, and since the information against him was filed more than four months after the alleged commission of the crime, the same had already prescribed. The Solicitor General opposed the motion on two grounds: first, in determining the prescriptive period, the nature of the offense charged in the Information should be considered, not the crime proved; second, assuming that the offense had already prescribed, the defense was waived by the failure of A to raise it in a motion to quash. Resolve the motion for reconsideration. (1997) A: The motion for reconsideration should be granted. a. The accused cannot be convicted of the offense of simple slander although it is necessarily included in the offense of grave slander charged in the information, because, the lesser offense had already prescribed at the time the information was filed; otherwise prosecutors can easily circumvent the rule of prescription in light offenses by the

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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a.

b.

FOR CRIMINAL LAW (1991-2015)

simple expediment of filing a graver offense which includes such light offense. b. While the general rule is the failure of an accused to file a motion to quash before he pleads to the complaint or information, shall be deemed a waiver of the grounds of a motion to quash, the exceptions to this are: (1) no offense was charged in the complaint or information; (2) lack of Jurisdiction; (3) extinction of the offense or penalty; and (4) double jeopardy. Since the ground invoked by the accused in his motion for reconsideration is extinction of the offense, then it can be raised even after plea. In fact, it may even be invoked on appeal (People v. Balagtas, G.R. No. 46413, October 6, 1939)

Q: Joe and Marcy were married in Batanes in 1955. After two years, Joe left Marcy and settled in Mindanao where he later met and married Linda on 12 June 1960. The second marriage was registered in the civil registry of Davao City three days after its celebration. On 10 October 1975 Marcy who remained in Batanes discovered the marriage of Joe to Linda. On 1 March 1976 Marcy filed a complaint for bigamy against Joe. The crime of bigamy prescribed in fifteen years computed from the day the crime is discovered by the offended party, the authorities or their agents. Joe raised the defense of prescription of the crime, more than fifteen years having elapsed from the celebration of the bigamous marriage up to the filing of Marcy's complaint. He contended that the registration of his second marriage in the civil registry of Davao City was constructive notice to the whole world of the celebration thereof thus binding upon Marcy. Has the crime of bigamy charged against Joe already prescribed? Discuss fully. (1995) A: No. The prescriptive period for the crime of bigamy is computed from the time the crime was discovered by the offended party, the authorities or their agents. The principle of constructive notice which ordinarily applies to land or property disputes should not be applied to the crime of bigamy, as marriage is not property. Thus, when Marcy filed a complaint for bigamy on 7 March 1976, it was well within the reglamentary period as it was barely a few months from the time of discovery on 10 October 1975 (Sermonia v. CA, G.R. No. 109454, June 14, 1994). Q: B imitated the signature of A, registered owner of a lot, in special power of attorney naming him (B) as the attorney- in-fact of A. On February 13, 1964, B mortgaged the lot to a bank using the special power of attorney to obtain a loan of P8,500.00. On the same day, both the special power of attorney and the mortgage contract were duly registered in the Registry of Deeds. Because of B’s failure to pay, the bank foreclosed the mortgage and the lot was sold to X in whose name a new title was issued. In March 1974, A discovered that the property was already registered in the name of X because of an ejectment case filed against him by X. (1993) a.

If you were the lawyer of A, with what crime or crimes would you charge B? Explain.

A: The crime committed is estafa thru falsification of public document. b. If you were the counsel of B. what would be your UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

defense? Discuss. A: My defense will be prescription because the crime was committed in 1964 and almost twenty nine years had already elapsed since then. Even if we take Falsification and Estafa individually, they have already prescribed. It is to be noted that when it comes to discovery, the fact that the crime was discovered in 1964 will be of no moment because the offended party is considered to have constructive notice on the forgery after the Deed of Sale where his signature had been falsified was registered in the office of the Register of Deeds (Cabral v. Puno, G.R. No. L-41692, April 30, 1976). PRESCRIPTION OF PENALTIES Q: 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. (2015) a.

If you were the judge, would you grant Taylor's Motion to Quash? Explain.

A: If I were the judge, I will deny the motion to quash. Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence. Taylor never served a single minute of his sentence, and thus, prescription never started to run in his favor. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom ( Del Castillo v. Torrecampo, G.R. No. 139033, December 18, 2002). 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. A: Even if Taylor was able to go to another country which the Philippines had no extradition treaty, I will deny the motion to quash. Going to a foreign country with which this Government has no extradition treaty to interrupt the running of prescription is not applicable nor even material because the period of prescription is not applicable nor even material because the period of prescription had not commenced to run in the first place; hence, there is nothing to interrupt. PARDON BY THE CHIEF EXECUTIVE Q: 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

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QUAMTO

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b. What advice will you give Adamos? Explain. If I were the counsel of Senator Adamos, I will give him the advice that he cannot run in the Senatorial race since the terms of the pardon has not expressly restored his right to hold public office or remitted the accessory penalty of perpetual absolute disqualification. Under Article 36 of the Revised Penal Code, a pardon shall not work the restoration of the right to hold public office unless such right be expressly restored by terms of the pardon. Under Article 41, the penalty of reclusion perpetua shall carry with it perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon (Risos-Vidal v. Lim, G.R. No. 206666, January 21, 2015). d. 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. If Senator Adamos was convicted of rebellion and he received amnesty, I will give him the advice that he can run in the Senatorial race. Under Article 89 of the Revised Penal Code, criminal liability is totally extinguished by amnesty, which completely extinguishes the penalty and all its effects. Thus, the amnesty extinguishes not only the principal penalty of reclusion perpetua but also its effects such as the accessory penalty of perpetual absolute disqualification. Amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged, so that the person released by amnesty stands before the law precisely as though he had committed no offense (Barrioquinto v. Fernandez, G.R. No. L-1278, January 21, 1949). Q: TRY was sentenced to death by final judgment. But subsequently he was granted pardon by the President. The pardon was silent on the perpetual disqualification of TRY to hold any public office. After his pardon, TRY ran for office as Mayor of APP, his hometown. His opponent sought to disqualify him. TRY contended he is not disqualified because he was already pardoned by the President unconditionally. Is TRY'S contention correct? Reason briefly. (2004) A: No, TRY's contention is not correct. Art. 40 of the RPC expressly provides that when the death penalty is not executed by reason of commutation or pardon, the accessory penalties of perpetual absolute disqualification and civil interdiction during thirty (30) years from the date of the sentence shall remain as effects thereof, unless such accessory penalties have been expressly remitted in the pardon. This is because pardon only excuses the convict from serving the sentence but does not relieve him of the effects of the conviction unless expressly remitted in the pardon.

Q: Linda was convicted by the Sandiganbayan of estafa, through falsification of public document. She was sentenced accordingly and ordered to pay, among others, P5,000.00 representing the balance of the amount defrauded. The case reached the Supreme Court which affirmed the judgment of conviction. During the pendency of Linda's motion for reconsideration in the said Court, the President extended to her an absolute pardon which she accepted. By reason of such pardon, she wrote the Department of Finance requesting that she be restored to her former post as assistant treasurer, which is still vacant. The Department ruled that Linda may be reinstated to her former position without the necessity of a new appointment and directed the City Treasurer to see to it that the sum of P5,000.00 be satisfied. Claiming that she should not be made to pay P5,000.00, Linda appealed to the Office of the President. The Office of the President dismissed the appeal and held that acquittal, not absolute pardon. Is the only ground for reinstatement to one's former position and that the absolute pardon does not exempt the culprit from payment of civil liability. Is Linda entitled to reinstatement? (1994) A: No, Linda is not entitled to reinstatement to her former position inasmuch as her right thereto had been relinquished or forfeited by reason of her conviction. The absolute pardon merely extinguished her criminal liability, removed her disqualification, and restored her eligibility for appointment to that office. She has to reapply for such position and under the usual procedure required for a new appointment. Moreover, the pardon does not extinguish the civil liability arising from the crime (Monsanto v. Factoran, Jr., February 9, 1989 (G.R. No. 78239); see Art. 36, RPC). AMNESTY Q: Enumerate the differences between pardon and amnesty. (2006) A: The following are the differences between pardon and amnesty: In pardon: The convict is excused from serving the sentence but the effects of conviction remain unless expressly remitted by the pardon; hence, for pardon to be valid there must be a sentence already final and executory at the time the same is granted. Moreover, the grant is in favor of individual convicted offenders, not to a class of convicted offenders; and the crimes subject of the grant may be common crimes or political crimes. Finally, the grant is a private act of the Chief Executive which does not require the concurrence of any other public officer or office. In amnesty: The criminal complexion of the act constituting the crime is erased, as though such act was innocent when committed; hence, the effects of the conviction are obliterated. Amnesty is granted is in favor of a class of convicted offenders, not to individual convicted offenders; and the crimes involved are generally political offenses, not common crimes. Amnesty is a

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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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. (2015)

FOR CRIMINAL LAW (1991-2015)

public act that requires the conformity or concurrence of the Philippine Senate.

(ARTICLES 114-365, RPC) AND SPECIFICALLY INCLUDED SPECIAL LAWS

Q: Under Presidential Proclamation No. 724, amending Presidential Proclamation No. 347, certain crimes are covered by the grant of amnesty. Name at least 5 of these crimes. (2006)

CRIMES AGAINST NATIONAL SECURITY (Arts. 114-123)

A: (1) Illegal assembly; (2) Alarms and scandal; (3) Illegal association; (4) Disloyalty by public officers/ employees; and (5) Illegal possession of firearms. Q: Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped from jail. Captured, he was charged with, and convicted of Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (2009) A: Yes, I will grant the petition because the sentence that was evaded proceeded from the crime of Rebellion which has been obliterated by the grant of amnesty to the offender (Art. 89[3], RPC). Since the amnesty erased the criminal complexion of the act committed by the offender as a crime of rebellion and rendered such act as though innocent, the sentence lost its legal basis. The purported evasion thereof therefore cannot subsist (People v. Patriarca, G.R. No. 135457, September 29, 2000). Amnesty obliterates, not only the basis of conviction, but also all the legal effects thereof. Q: Can former DSWD Secretary Dinky Soliman apply for amnesty? How about columnist Randy David? (You are supposed to know the crimes or offenses ascribed to them as published in almost all newspapers for the past several months.) (2006) A: Both Dinky Soliman and Randy David may apply for amnesty because the crime respectively imputed to them are crimes against public order which are among the crimes covered by amnesty. ALTERNATIVE ANSWER: Proclamation 1160, which amended Proclamation 724, applies only to offenses committed prior to 1999. Thus, their applications shall be ineffectual and useless. Q: General Lim and General Querubin of the Scout Rangers and Philippine Marines, respectively, were changed with conduct unbecoming an officer and a gentleman under the Articles of War. Can they apply for amnesty? (2006) A: Yes. General Lim and General Querubin of the Scout Rangers and Philippine Marines can apply for amnesty. Violation of conduct unbecoming an officer and a gentleman under Article 96 of the Articles of War is explicitly enumerated in Section 1 of Presidential Proclamation No. 724 as one of the crimes that are covered by the grant of amnesty. BOOK II

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Piracy in General and Mutiny on the High Seas (Art. 122) and Qualified Piracy (Art. 123) Q: The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong advantage of the confusion to settle an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court. (2008) a.

Was the charge of qualified piracy against the three person (Max, Badong and Bogart) who boarded the inter-island vessel correct? Explain.

A: The charge is correct. Qualified Piracy was committed when the offenders seized the vessels by firing on or boarding the same. In the problem, they even went further by divesting the passengers of their money and jewelry. The vessel was anchored in the harbour of Kaoshioung, Taiwan and it is submitted that the crime was committed within the territorial jurisdiction of another country. The Supreme Court has ruled that the high seas contemplated under Art. 122 of the RPC include the three-mile limit of any state (People v. Lol-lo, G.R. No. 17958, February 27, 1922). Moreover, piracy is an offense that can be tried anywhere because it is a crime against the Law of Nations. b. Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. A: No, Dodong was not correctly charged with qualified piracy because committing piracy was never in his mind nor did he have any involvement in the piracy committed. He merely took advantage of the situation in killing the passenger. He should be charged with murder since there was evident premeditation and intent to kill. Q: While the S.S. Nagoya Maru was negotiating the sea route from Hongkong towards Manila, and while still 300 miles from Aparri, Cagayan, its engines malfunctioned. The Captain ordered the ship to stop for emergency repairs lasting for almost 15 hours. Due to exhaustion, the officers and crew fell asleep. While the ship was anchored, a motorboat manned by renegade Ybanags from Claveria, Cagayan, passed by and took advantage of the situation. They cut the ship's engines and took away several heavy crates of electrical equipment and loaded them in their motorboat. Then they left hurriedly towards Aparri. At daybreak, the crew found that a robbery took place. They radioed the Aparri Port Authorities resulting in the apprehension of the culprits. (2006) A: Piracy in the high seas was committed by the renegade Ybanags. The culprits, who are neither members of the complement nor passengers of the ship, seized part of the equipment of the vessel while it was

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QuAMTO for CRIMINAL LAW (1991-2015)

Q: Supposing that while the robbery was taking place, the culprits stabbed a member of the crew while sleeping. What crime was committed? Explain. A: The crime committed is qualified piracy, because it was accompanied by physical injuries/homicide. The culprits stabbed a member of the crew while sleeping (Art. 123, RPC). Anti-Piracy and Anti-Highway Robbery (P.D. 532) Q: A postal van containing mail matters, including checks and treasury warrants, was hijacked along a national highway by ten (10) men, two (2) of whom were armed. They used force, violence and intimidation against three (3) postal employees who were occupants of the van, resulting in the unlawful taking and transportation of the entire van and its contents. (2012) a.

If you were the public prosecutor, would you charge the ten (10) men who hijacked the postal van with violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti -Highway Robbery Law of 1974? Explain your answer.

A: No, I would not charge the 10 men with the crime of highway robbery. The mere fact that the offense charged was committed on a highway would not be the determinant for the application of P.D. 532. If a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, the location of the vehicle at the time of the unlawful taking would not necessarily put the offense within the ambit of P.D. 532. In this case, the crime committed is violation of the AntiCarnapping Act of 1972 (People v. Puno, G.R. No. 97471, February 17, 1993). Moreover, there is no showing that the 10 men were a band of outlaws organized for the purpose of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another. What was shown is one isolated hijacking of a postal van. It was not stated in the facts given that the 10 men previously attempted similar robberies by them to establish “indiscriminate” commission thereof (Filoteo Jr. v. Sandiganbayan, G.R. No. 79543, October 16, 1993). b. If you were the defense counsel, what are the elements of the crime of highway robbery that the prosecution should prove to sustain a conviction? A: Under Section 2 of P.D. 532, highway robbery is defined as “the seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine highway.” Hence, the elements of highway robbery are: 1. intent to gain; 2. unlawful taking of the property of another; 3. violence against or intimidation of any person; 4. committed on a Philippine highway 5. indiscrimate victim;

To obtain a conviction for highway robbery, the prosecution must prove that the accused were organized for the purpose of committing robbery indiscriminately. If the purpose is only particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. (See People v. Mendoza, G.R. No. 104461, February 23, 1996) Q: Police Sgt. Diego Chan, being a member of the Theft and Robbery Division of the Western Police District and assigned to the South Harbor, Manila, was privy to and more or less familiar with the schedules, routes and hours of the movements of container vans, as well as the mobile police patrols, from the pier area to the different export processing zones outside Metro Manila. From time to time, he gave valuable and detailed information on these matters to a group interested in those shipments in said container vans. On several instances, using the said information as their basis, the gang hijacked and pilfered the contents of the vans. Prior to their sale to "fences" in Banawe, Quezon City and Bangkal, Makati City, the gang Informs Sgt, Chan who then inspects the pilfered goods, makes his choice of the valuable items and disposes of them through his own sources or "fences". When the highjackers were traced on one occasion and arrested, upon custodial investigation, they implicated Sgt. Chan and the fiscal charged them all, including Sgt. Chan as co-principals. Sgt. Chan, in his defense, claimed that he should not be charged as a principal but only as an accessory after the fact under P.D. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Act of 1972. Is the contention of Sgt. Chan valid and tenable? Explain. (2001) A: No, the contention of Sgt. Chan is not valid or tenable because by express provision of P.D. 532, Section 4, a person who knowingly and in any manner, aids or protects highway robbers/brigands, such as giving them information about the movement of police officers or acquires or receives property taken by brigands, or who directly or indirectly abets the commission of highway robbery/brigandage, shall be considered as accomplice of the principal offenders and punished in accordance with the rules in the RPC. CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE (Articles 124-133) Arbitrary Detention (Article 124) Q: What are the 3 ways of committing arbitrary detention? Explain each. What are the legal grounds for detention? (2006) A: The three (3) ways of committing arbitrary detention are: a. by detaining or locking up a person without any legal cause or ground therefore purposely to restrain his liberty (RPC, Art. 124); b. by delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant (RPC, Art. 125); and c. by delaying release of a prisoner whose release has been ordered by competent authority (RPC, Art. 126).

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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three hundred miles away from Aparri, Cagayan (Art. 122, RPC).

FOR CRIMINAL LAW (1991-2015)

In all the above-stated ways, the principal offender should be a public officer acting under color of his authority. The legal grounds for detention are; a. commission of a crime; b. violent insanity or other ailment requiring compulsory confinement in an institution established for such purpose. Q: After due hearing on a petition for a writ of amparo founded on the acts of enforced disappearance and extralegal killing of the son of the complainant allegedly done by the respondent military officers, the court granted the petition. May the military officers be criminally charged in court with enforced disappearance and extralegal killing? Explain fully. (2008) A: No. "Enforced disappearance and extralegal killing" is not per se a criminal offense although it is wrongful. The grant of a writ of amparo only provides a relief; it does not establish a basis for a crime. Unless the writ was issued because of specific overt acts shown to have been committed by the respondent military officers and such acts are crimes under penal laws, no criminal charge may be routinely filed just because the petition for the writ was granted. ALTERNATIVE ANSWER: Yes, the respondent military officers may be criminally charged in court since “enforced disappearance” constitutes arbitrary detention under Art. 124 or Unlawful Arrest under Art. 269 of the RPC. Extralegal killing can also be considered murder and/or homicide under Art. 248/249, RPC. Q: Major Menor, while patrolling Bago-Bago community in a police car with SP03 Caloy Itliong blew his whistle to stop a Nissan Sentra car which wrongly entered a one-way street. After demanding from Linda Lo Hua, the driver, her driver’s license, Menor asked her to follow them to the police precinct. Upon arriving there, he gave instructions to Itliong to guard Lo Hua in one of the rooms and not to let her out of sight until he returns; then got the car key from Lo Hua. In the meantime, the latter was not allowed to make any phone calls but was given food and access to a bathroom. When Menor showed up after two days, he brought Lo Hua to a private house and told her that he would only release her and return the car if she made arrangements for the delivery of P500,000.00 in a doctor’s bag at a certain place within the next twenty-four hours. When Menor went to the designated spot to pick up the bag of money, he suddenly found himself surrounded by several armed civilians who introduced themselves as NBI agents. What criminal offense has Menor committed? Explain. (1992) A: Menor is liable under Art. 124, RPC (Arbitrary Detention) he being a public officer who detained, a person without legal grounds. Violation of a traffic ordinance by entering a one-way street is not a valid reason to arrest and detain the driver. Such only merits the issuance of a traffic violation ticket. Hence, when Lo Hua was ordered to follow the police officers to the precinct (confiscating her license to compel her to do so), and confining her in a room for two days and UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

prohibiting her to make phone calls, is a clear case of deprivation of personal liberty. Giving her food and access to the bathroom will not extinguish or mitigate the criminal liability. Menor is further liable for robbery, because money or personal properly was taken, with intent to gain, and with intimidation. The peculiar situation of Lo Hua practically forced her to submit to the monetary demands of the major. CRIMES AGAINST PUBLIC ORDER (Articles 134-160) Rebellion (Article 134) Q: Distinguish clearly but briefly between rebellion and coup d'etat, based on their constitutive elements as criminal offenses. (2004, 1991) A: 1. As to overt acts: In rebellion, there is public uprising and taking up arms against the Government. In coup d'etat public uprising is not necessary. The essence of the crime is a swift attack, accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Government, or any military camp or installation, communication networks, public utilities or facilities needed for the exercise and continued possession of government power; 2.

As to purpose:

In rebellion, the purpose is to remove from the allegiance of the Philippines, the whole or any part or the Philippines or any military or naval camps, deprive the Chief Executive or Congress from performing their functions. In coup d'etat the objective is to seize or diminish state powers. 3.

As to participation:

Rebellion can be carried out by any person. Coup d'etat is committed by any person belonging to the military or police or holding public office, with or without civilian participation. Q: On May 5, 1992, at about 6:00 a.m., while Governor Alegre of Laguna was on board his car traveling along the National Highway of Laguna, Joselito and Vicente shot him on the head resulting in his instant death. At that time, Joselito and Vicente were members of the liquidation squad of the New People's Army and they killed the governor upon orders of their senior officer, Commander Tiago. According to Joselito and Vicente, they were ordered to kill Governor Alegre because of his corrupt practices. If you were the prosecutor, what crime will you charge Joselito and Vicente? (1998) A: If I were the prosecutor, I would charge Joselito and Vicente with the crime of rebellion, considering that the killers were members of the liquidation squad of the New People's Army and the killing was upon orders of their commander; hence, politically-motivated. This was the ruling in People v. Avila, G.R. No. 84612 March 11, 1992) involving identical facts which is a movement

TEAM BAROPS ACADEMICS COMMITTEE 2016

35

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: VC, JG, GG, and JG conspired to overthrow the Philippine Government. VG was recognized as the titular head of the conspiracy. Several meetings were held and the plan was finalized. JJ, bothered by his conscience, confessed to Father Abraham that he, VG, JG and GG have conspired to overthrow the government. Father Abraham did not report this information to the proper authorities. Did Father Abraham commit a crime? If so, what crime was committed? What is his criminal liability? (1994) A: No, Father Abraham did not commit a crime because the conspiracy involved is one to commit rebellion, not a conspiracy to commit treason which makes a person criminally liable under Art 116, RPC. And even assuming that it will fall as misprision of treason, Father Abraham is exempted from criminal liability under Art. 12, par. 7, as his failure to report can be considered as due to "insuperable cause", as this involves the sanctity and inviolability of a confession. Conspiracy to commit rebellion results in criminal liability to the coconspirators, but not to a person who learned of such and did not report to the proper authorities (US v. Vergara, 3 Phil. 432; People vs. Atienza, 56 Phil. 353).

A: Persons in authority are persons directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority (Article 152, RPC). Agents of persons in authority are persons who by direct provision of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority (Art. 152, RPC). In applying the provisions of Articles 148 and 151 of the Rev Penal Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion on such performance, shall be deemed persons in authority. (P.D. No. 299, and Batas Pambansa Big. 873).

Q: If a group of persons belonging to the armed forces makes a swift attack, accompanied by violence, intimidation and threat against a vital military installation for the purpose of seizing power and taking over such installation, what crime or crimes are they guilty of? (2002, 1998)

Q: Dancio, a member of 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 jail, enabling Dancio to escape. What crime(s) did Dancio, Brusco and Edri commit? Explain. (2015)

A: The perpetrators, being persons belonging to the Armed Forces, would be guilty of the crime of coup d'etat, under Art. 134-A of the RPC, as amended, because their attack was against vital military installations which are essential to the continued possession and exercise of governmental powers, and their purpose is to seize power by taking over such installations.

A: Dancio committed the crime of direct assault under Article 148 for disarming the guards with the use of pistol while they are engaged in the performance of their duties. Using a pistol to disarm the guards manifests criminal intention to defy the law and its representative at all hazard. [Note: Illegal possession of firearms may also be considered]

Q: If the attack is quelled but the leader is unknown, who shall be deemed the leader thereof?

Edri committed infidelity in the custody of prisoner or evasion through negligence under Article 224. As the guard in charge, Edri was negligent in relaxing the inspection of the Brusco’s belongings during jail visits allowing him to smuggle a pistol to Dencio, which he subsequently used to escape. By accepting gifts from Brusco, who was part of the syndicate to which Dancio belonged, he is also guilty of indirect bribery under Article 211.

Coup d’etat (Article 134-A)

A: The leader being unknown, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the group shall be deemed the leader of said coup d'etat (Art 135, RPC). Q: Supposing a public school teacher participated in a coup d'etat using an unlicensed firearm. What crime or crimes did he commit? (1998) A: The public school teacher committed only coup d'etat for his participation therein. His use of an unlicensed firearm is absorbed in the coup d'etat under the new firearms law (R.A. 8294).

Direct Assault (Article 148) Q: Who are deemed to be persons in authority and agents of persons in authority? (2000)

Brusco committed delivery of prisoner from jail under Article 156, qualified by his bribery of Edri. Helping a person confined in jail to escape constitutes this crime. “Helping” means furnishing the prisoner with the material means or tools which greatly facilitate his escape; hence, providing a pistol which helped Dencio to escape is delivery of prisoner from jail. Q: Miss Reyes, a lady professor, caught Mariano, one of her students, cheating during an examination. Aside from calling Mariano's attention, she confiscated his examination booklet and sent him out of the room, causing Mariano extreme embarrassment.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

36

taken judicial notice of as engaged in rebellion against the Government.

FOR CRIMINAL LAW (1991-2015)

In class the following day, Mariano approached Miss Reyes and without any warning, slapped her on the face. Mariano would have inflicted grave injuries on Miss Reyes had not Dencio, another student, intervened. Mariano then turned his ire on Dencio and punched him repeatedly, causing him injuries. What crime or crimes, if any, did Mariano commit? (2013, 2002, 1993) A: Mariano is liable for two counts of direct assault. First, when he slapped Miss Reyes, who is a person in authority expressly mentioned in Art. 152 of the RPC, who was in the performance of her duties on the day of the commission of the assault. Second, when he repeatedly punched Dencio, who became an agent of the person in authority when he came to the aid of a person in authority, Miss Reyes (Celig v. People, G.R. No. 173150, July 28, 2010). Q: Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days. (2009) a.

Is Rigoberto guilty of Direct Assault? Why or why not?

A: No, Rigorberto is not guilty of Direct Assault because Judge Lorenzo has ceased to be a judge when he was attacked. He has retired (71 years old) from his position as a person in authority when he was attacked. Hence, the attack on him cannot be regarded as against a person in authority anymore. b. Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. A: Yes. Rigorberto is guilty of Direct Assault because the employment of violence was by reason of an actual performance of a duty by the offended party acting as a practicing lawyer. Lawyers are considered persons in authority by virtue of B.P. 873, which states that lawyers in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. But the crime having been committed 10 years ago, may have already prescribed because it is punishable by a correctional penalty. Q: A, a teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the latter's throwing paper clips at his classmates, twisted his right ear. X went out of the classroom crying and proceeded home located at the back of the school. He reported to his parents Y and Z what A had done to him. Y and Z immediately proceeded to the school building and because they were running and talking in loud voices, they were seen by the barangay chairman, B, who followed them as he suspected that an untoward incident might happen. Upon seeing A inside the classroom, X pointed him out to his father, Y, who administered a fist blow on A, causing him to fall down. When Y was about to kick UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

A, B rushed towards Y and pinned both of the latter's arms. Seeing his father being held by B, X went near and punched B on the face, which caused him to lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband, and also threatened to slap A. Some security guards of the school arrived, intervened and surrounded X, Y and Z so that they could be investigated in the principal's office. Before leaving, Z passed near A and threw a small flower pot at him but it was deflected by B. (2001) a.

What, if any, are the respective criminal liability of X, Y, and Z?

A: X is liable for Direct Assault only, assuming the physical injuries inflicted on B, the Barangay Chairman, to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is a person in authority and in this case, was performing his duty of maintaining peace and order when attacked. Y is liable for the complex crimes of Direct Assault with Less Serious Physical Injuries for the fist blow on A, the teacher, which caused the latter to fall down. For purposes of the crimes in Arts. 148 and 151 of the RPC, a teacher is considered a person in authority, and having been attacked by Y by reason of his performance of official duty, direct assault is committed with the resulting less serious physical injuries completed. Z, the mother of X and wife of Y may only be liable as an accomplice to the complex crimes of direct assault with less serious physical injuries committed by Y. Her participation should not be considered as that of a coprincipal, since her reactions were only incited by her relationship to X and Y. as the mother of X and the wife of Y. b. Would your answer be the same if B were a barangay tanod only? A: If B were a Barangay Tanod only, the act of X of laying hand on him, being an agent of a person in authority only, would constitute the crime of Resistance and Disobedience under Art. 151, since X, a high school pupil, could not be considered as having acted out of contempt for authority but more of helping his father get free from the grip of B. Laying hand on an agent of a person in authority is not ipso facto direct assault, while it would always be direct assault if done to a person in authority in defiance to the latter is exercise of authority. Q: Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech, B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approached B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stabbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? Explain. (2000, 1995)

TEAM BAROPS ACADEMICS COMMITTEE 2016

37

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

REPEATED DOCTRINE Q: Pablo, disobeying a judicial order, was punished by an RTC Judge of Manila for contempt. He waited for the judge to go out into the street. Upon seeing the judge, Pablo hurriedly approached him, and without saying a word struck him with his fist causing a slight contusion on the face of the Judge. Rex came to the rescue of the Judge but because he was taller and bigger than Pablo, the latter used a knife in attacking Rex. Pablo limited his assault to the arms of Rex Inflicting lesions graves which incapacitated Rex from labor for forty five (45) days. If you were the prosecutor called to institute a criminal action against Pablo, with what crime or crimes would you charge him? Explain. (1993)

c. 2.

3.

4.

5.

A: The crime of direct assault upon a person in authority with respect to the slight contusion on the face of the Judge. Direct assault with serious physical injuries with respect to the assault on Rex. Delivery of Prisoner from Jail (Article 156) Q: To secure a release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chita gave her P50,000.00, she consented. She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge's signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of court, Edwin, and the jail warden? Explain your answer. (2009, 2014) A: The crimes committed in this case are as follows: 1. Chito committed the crimes of: a. Delivery of Prisoners from Jail (Art. 156, RPC) for working out the escape of prisoners Willy and Vincent; b. Two counts of Corruption of Public Officials (Art. 212, RPC); and

6.

Falsification of Public Documents, as a principal by inducement (Art. 172[1], RPC); Willy committed the crime of Delivery of Prisoners from Jail (Art. 156, RPC) as a principal by indispensable cooperation if he was aware of the criminal plan of Chito to have them escape from prison and he did escape pursuant to such criminal plan; otherwise he would not be liable for said crime if he escaped pursuant to human instinct only; Vincent, being a prisoner serving sentence by final judgment, committed the crime of Evasion of Service of Sentence (Art. 157, RPC) for escaping during the term of his imprisonment; The Branch Clerk of Court committed the crimes of: a. Direct Bribery (Art. 210, RPC) for accepting the P50,000.00 in consideration of the order she issued to enable the prisoners to get out of jail; b. Falsification of Public Document for forging the judge's signature on said Order (Art. 171, RPC); c. Delivery of Prisoners from Jail (Art. 156, RPC), as a co-principal of Chito by indispensable cooperation for making the false order and forging the judge's signature thereon, to enable the prisoners to get out of jail; d. Evasion of Service of Sentence (Art. 157, RPC); as a co-principal of Vincent by indispensable cooperation for making the false Order that enabled Vincent to evade service of his sentence; Edwin, the jail guard who escorted the prisoners in getting out of jail, committed the crimes of – a. Infidelity in the Custody of Prisoners, specifically conniving with or consenting to Evasion for leaving unguarded the prisoners escorted by him and provide them an opportunity to escape (Art. 223, RPC); b. Direct Bribery for receiving the P50,000.00 as consideration for leaving the prisoners unguarded and allowing them the opportunity to escape (Art. 210, RPC); The jail warden did not commit nor incur a crime there being no showing that he was aware of what his subordinates had done nor of any negligence on his part that would amount to infidelity in the custody of prisoners.

Q: A, a detention prisoner, was taken to a hospital for emergency medical treatment. His followers, all of whom were armed, went to the hospital to take him away or help him escape. The prison guards, seeing that they were outnumbered and that resistance would endanger the lives of other patients, deckled to allow the prisoner to be taken by his followers. What crime, if any, was committed by A's followers? Why? (2002) A: A's followers shall be liable as principals in the crime of delivery of prisoner from jail. The felony is committed not only by removing from any jail or penal establishment any person confined therein but also by helping in the escape of such person outside of said establishments by means of violence, intimidation, bribery, or any other means. Evasion of Service of Sentence (Article 157) Q: Manny killed his wife under exceptional circumstances and was sentenced by the Regional Trial Court of Dagupan City to suffer the penalty of

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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A: The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to neither defend him nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B.

FOR CRIMINAL LAW (1991-2015)

destierro during which he was not to enter the city. While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila. (1998) a.

Did Manny commit any crime?

A: Yes. Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro. A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty (People v. Abilong, G.R. No. L-1960, November 26, 1948). b.

If so, where should he be prosecuted?

A: Manny may be prosecuted in Dagupan City or in Manila where he was arrested. This is so because evasion of service of sentence is a continuing offense, as the convict is a fugitive from justice in such case (Parulan v. Dir. of Prisons, G.R. No. L-28519, February 17, 1968). Decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives (P.D. 1866, as amended by R.A. No. 8294), as further amended by the Comprehensive Firearms and Ammunition Regulation Act (R.A. No. 10591) Q: A has long been wanted by the police authorities for various crimes committed by him. Acting on an information by a tipster, the police proceeded to an apartment where A was often seen. The tipster also warned the policemen that A was always armed. At the given address, a lady who introduced herself as the elder sister of A, opened the door and let the policemen in inside, the team found A sleeping on the floor. Immediately beside him was a clutch bag which, when opened, contained a .38 caliber paltik revolver and a hand grenade. After verification, the authorities discovered that A was not a licensed holder of the .38 caliber paltik revolver. As for the hand grenade, it was established that only military personnel are authorized to carry hand grenades. Subsequently, A was charged with the crime of Illegal Possession of Firearms and Ammunition. During trial, A maintained that the bag containing the unlicensed firearm and hand grenade belonged to A, his friend, and that he was not in actual possession thereof at the time he was arrested. Are the allegations meritorious? Explain. (2000) A: A's allegations are not meritorious. Ownership is not an essential element of the crime of illegal possession of firearms and ammunition. What the law requires is merely possession, which includes not only actual physical possession but also constructive possession where the firearm and explosive are subject to one's control and management (People v. De Grecia, 233 SCRA 716; U.S. v. Juan, 23 Phil. 105: People v. Soyang, G.R. Nos. L-13983-85. December 31, 1960). CRIMES AGAINST PUBLIC INTEREST (Article 161-187)

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: How are "forging" and "falsification" committed? (1999) A: Forging or forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; or by erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or signs contained therein. Falsification, on the other hand, is committed by: 1. Counterfeiting or imitating any handwriting, signature or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit (Article 168) Q: Is mere possession of false money bills punishable under Article 168 of the Revised Penal Code? (1999) A: No. Possession of false treasury or bank note alone without an intent to use it, is not punishable. But the circumstances of such possession may indicate intent to utter, sufficient to consummate the crime of illegal possession of false notes. Q: The accused was caught in possession of 100 counterfeit P20 bills. He could not explain how and why he possessed the said bills. Neither could he explain what he intended to do with the fake bills. Can he be held criminally liable for such possession? Decide. (1999) A: Yes. Knowledge that the note is counterfeit and intent to use it may be shown by the conduct of the accused. So, possession of 100 false bills reveal: (a) knowledge that the bills are fake; and (b) intent to utter the same. Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister (Article 171) Q: 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

TEAM BAROPS ACADEMICS COMMITTEE 2016

39

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

A: Mayor Abral is liable for falsification of public document by a public officer under Article 171. Making an untruthful statement by stating in a marriage contract, a public document, that the marriage was solemnized by him, is an act of falsification. The crime of illegal marriage is not committed because element that “the offender has performed an illegal marriage ceremony” is lacking (Ronulo v. People, G.R. No. 182438, July 2, 2014). Donato committed the crime of usurpation of function under Article 177 of the Revised Penal Code because he performed the act of solemnizing marriage, which pertained to the mayor, a person in authority, without being lawfully entitled to do so. The crime of illegal marriage is not committed, because the element that “the offender is authorized to solemnize marriage” is lacking (Ronulo v. People, G.R. No. 182438, July 2, 2014). Falsification by Private Individual and Use of Falsified Documents (Article 172)

he being a private individual, he is culpable thereunder. Q: In a civil case for recovery of a sum of money filed against him by A. B interposed the defense of payment. In support thereof, he identified and offered in evidence a receipt which appears to be signed by A On rebuttal. A denied having been paid by B and having signed the receipt. He presented a handwriting expert who testified that the alleged signature of A on the receipt is a forgery and that a comparison thereof with the specimen signatures of B clearly shows that B himself forged the signature of A. Is B liable for the crime of using a falsified document in a judicial proceeding (last paragraph of Article 172 of the Revised Penal Code)? (1991) A: No, B should not be liable for the crime of using a falsified document, under the last paragraph of Art. 172, RPC. He would be liable for forgery of a private document under the second mode of falsification under Art. 172, RPC. Being the possessor and user of the falsified document he is presumed to be the forger or falsifier and the offense of introducing falsified document is already absorbed in the main offense of forgery or falsification. False Testimony (Article 180-183)

Q: A falsified official or public document was found in the possession of the accused. No evidence was introduced to show that the accused was the author of the falsification. As a matter of fact, the trial court convicted the accused of falsification of official or public document mainly on the proposition that "the only person who could have made the erasures and the superimposition mentioned is the one who will be benefited by the alterations thus made" and that "he alone could have the motive for making such alterations". Was the conviction of the accused proper although the conviction was premised merely on the aforesaid ratiocination? Explain your answer. (1999)

Q: Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization. What crime or crimes, if any, did Al Chua commit? Explain. (2005)

A: Yes, the conviction is proper because there is a presumption in law that the possessor and user of a falsified document is the one who falsified the same.

A: Al Chua committed perjury. His declaration under oath for naturalization that he is of good moral character and residing at Sampaloc, Manila are false. This information is material to his petition for naturalization. He committed perjury for this wilful and deliberate assertion of falsehood which is contained in a verified petition made for a legal purpose.

Q: Jose Dee Kiam, a Chinese citizen born in Macao, having applied with a recruitment agency to work in Kuwait, went to Quezon City Hall to procure a Community Tax Certificate, formerly called Residence Certificate. He stated therein that his name is Leo Tiampuy, a Filipino citizen born in Binan, Laguna. As he paid for the Community Tax Certificate, Cecille Delicious, an employee in the office recognized him and reported to her boss that the information written in the Community Tax Certificate were all lies. Shortly thereafter, an information was filed against Dee Kiam alias Tiampuy. What crime, if any, may he be indicted for? Why? (1992) A: Dee Kiam can be indicted for the felony of Falsification of a Public Document committed by a private individual under Art. 172 of the RPC in relation to Art. 171 thereof. A residence certificate is a public or official document within the context of said provisions and jurisprudence. Since Dee Kiam made an untruthful statement in a narration of facts (Art. 171(4), RPC), and

Q: A, a government employee, was administratively charged with immorality for having an affair with B, a co-employee in the same office who believed him to be single. To exculpate himself, A testified that he was single and was willing to marry B, He induced C to testify and C did testify that B was single. The truth, however, was that A had earlier married D, now a neighbor of C. Is a guilty of perjury? Are A and C guilty of subordination of perjury? (1997) A: No. A is not guilty of perjury because the willful falsehood asserted by him is not material to the charge of immorality. Whether A is single or married, the charge of immorality against him as a government employee could proceed or prosper. In other words, A's civil status is not a defense to the charge of immorality, hence, not a material matter that could influence the charge. There is no crime of subornation

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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arrived. Donato thereafter solemnized the marriage and later turned over the documents to Mayor Abral for his signature. In the marriage contract, it was stated that the marriage was solemnized by Mayor Abral. What crime(s) did Mayor Abral and Donato commit? Explain. (2015)

FOR CRIMINAL LAW (1991-2015)

of perjury. The crime is now treated as plain perjury with the one inducing another as the principal inducement, and the latter, as principal by direct participation (People v. Podol, 66 Phil. 365). Since in this case A cannot be held liable for perjury, the matter that he testified to being immaterial, he cannot therefore be held responsible as a principal by inducement when he induced C to testify on his status. Consequently, C is not liable as principal by direct participation in perjury, having testified on matters not material to an administrative case. Q: Sisenando purchased the share of the stockholders of Estrella Corporation in two installments, making him the majority stockholder thereof and eventually, its president. Because the stockholders who sold their stocks failed to comply with their warranties attendant to the sale, Sisenando withheld payment of the second installment due on the shares and deposited the money in escrow instead, subject to release once said stockholders comply with their warranties. The stockholders concerned, in turn, rescinded the sale in question and removed Sisenando from the Presidency of the Estrella Corp., Sisenando then filed a verified complaint for damages against said stockholders in his capacity as president and principal stockholder of Estrella Corp. In retaliation, the stockholders concerned, after petitioning the Securities and Exchange Commission to declare the rescission valid, further filed a criminal case for perjury against Sisenando, claiming that the latter perjured himself when he stated under oath in the verification of his complaint for damages that he is the President of the Estrella Corporation when in fact he had already been removed as such. Under the facts of the case, could Sisenando be held liable for perjury? Explain. (1996) A: No, Sisenando may not be held liable for perjury because it cannot be reasonably maintained that he wilfully and deliberately made an assertion of a falsehood when he alleged in the complaint that he is the President of the Corporation, obviously, he made the allegation on the premise that his removal from the presidency is not valid and that is precisely the issue brought about by his complaint to the SEC. It is a fact that Sisenando has been the President of the corporation and it is from that position that the stockholders concerned purportedly removed him, whereupon he filed the complaint questioning his removal. There is no wilful and deliberate assertion of a falsehood which is a requisite of perjury. Q: Paolo was charged with homicide before the Regional Trial Court of Manila. Andrew, a prosecution witness, testified that he saw Paolo shoot Abby during their heated argument. While the case is still pending, the City Hall of Manila burned down and the entire records of the case were destroyed. Later, the records were reconstituted. Andrew was again called to the witness stand. This time he testified that his first testimony was false and the truth was he was abroad when the crime took place. The judge immediately ordered the prosecution of Andrew for giving a false testimony favorable to the defendant in a criminal case. (1994) a.

Will the case against Andrew prosper?

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

A: Yes. For one to be criminally liable under Art. 181, RPC, it is not necessary that the criminal case where Andrew testified is terminated first. It is not even required of the prosecution to prove which of the two statements of the witness is false and to prove the statement to be false by evidence other than the contradictory statements. b. Paolo was acquitted. The decision became final on January 10, 1987. On June 18, 1994 a case of giving false testimony was filed against Andrew. As his lawyer, what legal step will you take? A: As lawyer of Andrew, I will file a motion to quash the Information on the ground of prescription. The crime of false testimony under Art. 180 has prescribed because Paolo, the accused in the principal case, was acquitted on January 10, 1987 and therefore the penalty prescribed for such crime is arresto mayor under Art. 180[4] of RPC. Crimes punishable by arresto mayor prescribe in five (5) years (Art. 90[3], RPC). But the case against Andrew was filed only on June 18, 1994, whereas the principal criminal case was decided with finality on January 10, 1987 and, thence the prescriptive period of the crime commenced to run. From January 10, 1987 to June 18, 1994 is more than five (5) years. Q: Explain and illustrate “subornation of perjury”. (1993) A: Subordination of perjury refers to the act of a person procuring a false witness to testify and thereby commit perjury. The procurer is a coprincipal by inducement. Q: A, who was the client of B (a lawyer), signed a retainer agreement for the payment of attorney’s fees. After B rendered satisfactory service, A refused to pay the attorney’s fees. B sued. In her verified answer, A alleged that she did not owe money to plaintiff B nor did she engage his legal services. These statements under oath were false. B filed a criminal complaint for perjury against A, and an information was filed in court. If you are the lawyer for accused A, what is your defense, if any? (1991) A: I will move for the dismissal of the complaint for perjury. The falsity of sworn statement must be required or authorized by law (Flordeliz v. Himalalaon, G.R. No. L48088, July 31, 1978). Anti-Money Laundering Act (R.A. No. 9194) Q: Define Money Laundering. What are the three (3) stages in money laundering? (2010) A: Money Laundering is the process by which a person conceals the existence of unlawfully obtained money and makes it appear to have originated from lawful sources. The intention behind such a transaction is to hide the beneficial owner of said funds and allows criminal organizations or criminals to enjoy proceeds of such criminal activities. The three (3) stages in money laundering are: a. Placement/ infusion or the physical disposal of criminal proceeds b. Layering or the separation of the criminal proceeds from their source by creating layers of financial

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (R.A.) No. 9160 as amended (Anti-Money Laundering Act), an application for an order to allow inquiry into his deposit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the court’s order. Explain. (2010) A: The freeze order issued by the Regional Trial Court is not correct because jurisdiction to issue said freeze order is now vested with the Court of Appeals under RA 9194, amending the Anti-Money Laundering Act (R.A. 9160). The Regional Trial Court is without jurisdiction to issue a freeze order of the money involved. Q: [True or False] For a person who transacts an instrument representing the proceeds of a covered unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must be shown that he has knowledge of the identities of the culprits involved in the commission of the predicate crimes. (2009) A: False, there is nothing in the law which requires that the accused must know the identities of the culprits involved in the commission of the predicate crimes. To establish liability under R.A. 9160, it is sufficient that proceeds of an unlawful activity are transacted, making them appear to have originated from legitimate sources. Q: Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayor’s name and regularly deposited various amounts ranging from P500,000.00 to P1 Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito was actually a jueteng operator and the amounts he deposited were proceeds from his jueteng operations. What crime/s were committed? Who are criminally liable? Explain. (2005) A: Don Gabito violated the Anti-Money Laundering Act (Sec. 4, R.A. 9160) for knowingly transacting money or property which involves or relates to the proceeds of an unlawful activity such as jueteng. In addition, he may be prosecuted for liability as a jueteng operator (R.A. 9287). The mayor who allowed the opening of an account in his name is likewise guilty for violation of the AMLA. He, knowing that the money instrument or property involves the proceeds of an unlawful activity, performs or fails to perform any act which results in the facilitation of money laundering. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS The Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) Punishable Acts

Q: Tiburcio asked Anastacio to join their group for a “session”. Thinking that it was for a mah-jong session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio discovered that it was actually a shabu session. At that precise time, the place was already raided by the police, and Anastacio was among those arrested. What crime can Anastacio be charged with, if any? Explain your answer. (2007) A: Anastacio may not be charged of any crime. Sec. 7 of R.A. 9165 on the Comprehensive Dangerous Drugs of 2002 punishes employees and visitors of a den, dive or resort where dangerous drugs are used in any form. But for a visitor of such place to commit the crime, it is a requisite that he "is aware of the nature of the place as such and shall knowingly visit the same." These requisites are absent in the facts given. Q: After receiving reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR 181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his attache case. Upon inspection inside the Immigration holding area, the attache case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attache case and boarded him in an unmarked car driven by PO3 Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner EDSA, Chief Inspector Gamboa ordered PO3 Lorbes to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents had been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and PO3 Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later charged. What are their respective criminal liabilities? (2006) A: Chief Inspector Gamboa and PO3 Pepito Lorbes who conspired in taking the attache case are liable for the following crimes defined under R.A. 9165: a. Sec. 27 for misappropriation or failure to account for the confiscated or seized dangerous drugs. b. Sec. 4 in relation to Sec. 3(e) for their acts as protector/coddler of Dante Ong who imported drugs. c. In addition, by allowing Ong to escape prosecution for illegal importation or illegal transportation of dangerous drugs, where the penalty is life imprisonment to death, they are also liable for qualified bribery under Art. 211-A of the RPC. With respect to Dante Ong, he is guilty of illegal importation of dangerous drugs under Sec. 4, R.A. 9165, if PR 181 is an international flight. If PR 181 is a domestic flight, he is liable for violation of Sec. 5 of R.A. 9165 for illegal transportation of dangerous drugs. Q: Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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c.

transactions to disguise such proceeds as legitimate and avoid audit trail; and Integration or the provision of apparent legitimacy to the criminal proceeds.

FOR CRIMINAL LAW (1991-2015)

the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of “shabu” and violation of Section 15, Article II of RA 9165 for the use of marijuana. (2005, 2004, 1998) a.

Are the charges proper? Explain.

A: The charge of possession of shabu is proper as the mere possession of such drug is punishable, but the charge of use of marijuana is not proper as Section 15 of Rep. Act 9165 (Comprehensive Dangerous Drugs Act of 2002) expressly excludes penalties for “use” of dangerous drugs when the person tested is also found to have in possession such quantity of any dangerous drug" provided for in Section 11 of such Act. ( R.A. No. 9165, Sec. 11 and 16). b. So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why? A: No. Obie Juan cannot plead guilty to a lower offense as it is prohibited under the law (R.A. 9165, Sec. 23). Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. Q: A and his fiancee B were walking in the plaza when they met a group of policemen who had earlier been tipped off that A was in possession of prohibited drugs. Upon seeing the policemen and sensing that they were after him, A handed a sachet containing shabu to his fiancee B, telling her to hide it in her handbag. The policemen saw B placing the sachet inside her handbag. If B was unaware that A was a drug user or pusher or that what was inside the sachet given to her was shabu, is she nonetheless liable under the Dangerous Drugs Act? (2002) A: No, B will not be criminally liable because she is unaware that A was a drug user or pusher or of the content of the sachet handed to her by A, and therefore the criminal intent to possess the drug in violation of the Dangerous Drugs Act is absent. There would be no basis to impute criminal liability to her in the absence of animus possidendi. Q: Pat. Buensuceso, posing as a buyer, approached Ronnie, a suspected drug pusher, and offered to buy P300 worth of shabu. Ronnie then left, came back five minutes later and handed Pat. Buensuceso an aluminum foil containing the shabu. However, before Pat. Buensuceso was able to deliver the marked money to Ronnie, the latter spotted a policeman at a distance, whom Ronnie knew to be connected with the Narcotics Command of the Police. Upon seeing the latter, Ronnie ran away but was arrested thirty minutes later by other policemen who pursued him. Under the circumstances, would you consider the crime of sale of a prohibited drug already consummated? Explain. (2000, 1996) A: Yes, the sale of prohibited drug is already consummated although the marked money was not yet delivered. When Ronnie handed the aluminum foil containing the shabu to Pat. Buensuceso pursuant to their agreed sale, the crime was consummated. Payment UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

of the consideration is not an element of requisite of the crime. If ever, the marked money is only evidentiary to strengthen the case of the prosecution. Q: Superintendent Al Santiago, Chief of the Narcotics Division, Western Police District, received information that a certain Lee Lay of No. 8 Tindalo Street, Tondo, Manila is a member of the 14K Gang selling shabu and marijuana. SPOl Lorenzo and SPO3 Peralta were instructed to conduct surveillance and buy-bust operations against Lay. Their informant contacted Lay and a meeting was arranged at T. Pinpin Restaurant at 2:00 in the afternoon on February 14, 1993. SPO1 Lorenzo and SPO3 Peralta, acting as poseur-buyers, purchased from Lay 10 sticks of marijuana and paid P500. Later, Lay agreed to sell to them one kilo of dried marijuana fruiting tops which he gave them at his residence. The policemen arrested Lay and a search was conducted. Found were 356 grams of marijuana seeds, 932 grams of marijuana fruiting tops and 50 sticks of marijuana cigarettes. What offense or offenses did Lay commit? (1998) A: Lay committed the offenses of illegal selling of dangerous drugs and illegal possession of dangerous drugs which should be made subject of separate information. The crime of illegal selling of dangerous drugs is committed as regards the 10 sticks of marijuana and as regards the one (1) kilo of dried marijuana fruiting tops, which should be subject of two (2) separate information because the acts were committed at different times and in different places. The crime of illegal possession of dangerous drugs is committed as regards the marijuana seeds, marijuana fruiting tops and marijuana cigarettes which are not the subject of the sale. Another information shall be filed for this. Custody and Disposition of Confiscated Drugs Q: Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him. What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (2009) A: “Chain of custody” requirement in drug offenses refers to the duly recorded, authorized movement and custody of seized dangerous drugs, controlled chemicals, plant sources of dangerous drugs, and laboratory equipment of dangerous drugs from the time of confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic laboratory for examination, to its safekeeping and eventual violation, and for destruction (Dangerous Drugs Board Regulation No. 1 Series of 2001.) Its rationale is to preserve the authenticity of the corpus delicti or body of the crime by rendering it improbable that the original item seized/ confiscated in the violation has been exchanged or substituted with another or tampered with or contaminated. It is a method of authenticating the evidence as would support a finding beyond reasonable doubt that the matter is what the prosecution claims to

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

CRIMES AGAINST PUBLIC MORALS (Art. 200-202) Q: Pia, a bold actress living on top floor of a plush condominium in Makati City sunbathed naked at its penthouse every Sunday morning. She was unaware that the business executives holding office at the adjoining tall buildings reported to office every Sunday morning and, with the use of powerful binoculars, kept on gazing at her while she sunbathed. Eventually, her sunbathing became the talk of the town. (1996) a.

What crime, if any, did Pia commit? Explain.

A: Pia did not commit a crime, the felony closest to making Pia criminally liable is Grave Scandal, but then such act is not to be considered as highly scandalous and offensive against decency and good customs. In the first place, it was not done in a public place and within public knowledge or view. As a matter of fact it was discovered by the executives accidentally and they have to use binoculars to have public and full view of Pia sunbathing in the nude. b. What crime, if any, did the business executives commit? Explain.

public functions in the Government of the Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class (Art. 203, RPC) Bribery (Article 210 – 212) Direct Bribery Q: During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500,000.00 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes: (2005) a.

Direct Bribery;

A: Patrick committed the crimes of Direct Bribery and Infidelity in the Custody of Documents. When a public officer is called upon to perform or refrain from performing an official act in exchange for a gift, present or consideration given to him (Art. 210, RPC), the crime committed is direct bribery. Secondly, he destroyed the shabu which is an evidence in his official custody, thus, constituting infidelity in the custody of documents under Art. 226 of the RPC. b.

Indirect bribery;

A: The business executives did not commit any crime. Their acts could not be acts of lasciviousness (as there was no overt lustful act), or slander, as the eventual talk of the town, resulting from her sunbathing, is not directly imputed to the business executives, and besides such topic is not intended to defame or put Pia to ridicule.

A: Indirect bribery was not committed because he did not receive the bribe because of his office but in consideration of a crime in connection with his official duty.

Q: Juan and Petra are officemates. Later, intimacy developed between them. One day, Juan sent to Petra a booklet contained in a pay envelope which was securely sealed. The booklet is unquestionably indecent and highly offensive to morals. Juan was thereafter charged under par. 3 of Art. 201 of the Revised Penal Code, as amended by P.D. 969, which provides that the penalty of prision mayor or a fine from P6.000to P12,000, or both such imprisonment and fine shall be imposed upon those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. Is Juan guilty of the crime charged? Reasons. (1993)

A: Sec. 3(e), R.A. No. 8019 was not committed because there was no actual injury to the government. When there is no specific quantified injury, violation is not committed (Garcia-Rueda v. Amor, G.R. No. 116938, September 20, 2001).

A: No. Juan is not guilty of the crime charged because the law (Art. 201, RPC) covers only the protection of public moral and not only the moral of an individual. CRIMES COMMITTED BY PUBLIC OFFICERS (Art. 203-245) Q: Who are public officers? (1999) A: Public Officers are persons who, by direct provision of the law, popular election or appointment by competent authority, takes part in the performance of

c.

Section 3(e) of R.A. 3019 (Anti-Graft and Corrupt Practices Act);

d. Obstruction of Justice under PD 1829; A: Patrick committed the crime of obstruction of justice although the feigner penalty imposable on direct bribery or infidelity in the custody of documents shall be imposed. Sec. 1 of P.D. No. 1829 refers merely to the imposition of the higher penalty and does not preclude prosecution for obstruction of justice, even if the same not constitute another offense. Q: Deputy Sheriff Ben Rivas received from the RTC Clerk of Court a Writ of Execution in the case of Ejectment filed by Mrs. Maria Estrada vs. Luis Ablan. The judgment being in favor of Estrada, Rivas went to her lawyer's office where he was given the necessary amounts constituting the sheriffs fees and expenses for execution in the total amount of P550.00, aside from P2,000.00 in consideration of prompt enforcement of the writ from Estrada and her lawyer. The writ was successfully enforced. (2001)

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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be. Failure to observe the “chain of custody” requirement renders the evidence questionable, not trustworthy and insufficient to prove the corpus delicti beyond reasonable doubt. Hence, Tommy would be acquitted on reasonable doubt.

a.

FOR CRIMINAL LAW (1991-2015)

What crime, if any, did the sheriff commit?

A: The sheriff committed the crime of Direct Bribery under Art. 210(2) of the RPC, since the P2, 000 was received by him "in consideration" of the prompt enforcement of the writ of execution which is an official duty of the sheriff to do. b. Was there any crime committed by Estrada and her lawyer and if so, what crime? A: On the part of the plaintiff and her lawyer as giver of the bribe-money, the crime is Corruption of Public Officials under Art. 212 of the RPC. Indirect Bribery Q: Commissioner Marian Torres of the Bureau of internal Revenue (BIR) wrote solicitation letters addressed to the Filipino-Chinese Chamber of Commerce and Industry and to certain CEOs of various multinational corporations requesting donations of gifts for her office Christmas party. She used the Bureau's official stationery. The response was prompt and overwhelming so much so that Commissioner Torres' office was overcrowded with rice cookers, radio sets, freezers, electric stoves and toasters. Her staff also received several envelopes containing cash money for the employees' Christmas luncheon. Has Commissioner Torres committed any impropriety or irregularity? What laws or decrees did she violate? (2006) A: Yes, Commissioner Torres violated the following: 1. Indirect Bribery (Art. 211, RPC) for receiving gifts offered by reason of office. 2. R.A. 6713 or Code of Conduct and Ethical Standards for Public Officials and Employees when he solicited and accept gifts (Sec. 7[d]). 3. P.D. 46, making it punishable for public officials and employees to receive, and for private persons to give, gifts on any occasion, including Christmas. Q: A, who is the private complainant in a murder case pending before a Regional Trial Court judge, gave a judge a Christmas gift, consisting of big basket of assorted canned goods and bottles of expensive wines, easily worth P10.000.00. The judge accepted the gift knowing it came from A. What crime or crimes, if any, were committed? (1997, 1993) A: The judge committed the crime of indirect bribery under Art. 211 of the RPC. The gift was offered to the judge by reason of his office. In addition, the judge will be liable for the violation of P.D. 46 which punishes the receiving of gifts by public officials and employees on occasions like Christmas. REPEATED DOCTRINE: Q: Arevalo, a judge who heard a civil case, received gifts from Maricel, the plaintiff therein, but rendered judgment in favor of Julie, the defendant therein. Who are criminally liable, and for what crime or crimes? Explain. (1993) A: Arevalo, the judge, is liable for indirect bribery (Art. 210, RPC) and for violation of the Code of Conduct and Ethical Standard (Sec. 7(d) R.A. 6713 and P.D. 46). Maricel is liable for corruption of public officer (Art. 212, UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

RPC and P.D. 46). Qualified Bribery Q: What is the crime of qualified bribery? May a judge be charged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (2010) A: Qualified bribery is a crime committed by a public officer who is entrusted with law enforcement and who, in consideration of any offer, promise, gift of offer, refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/ or death (art. 211-A, RPC) No, a judge may not be charged of this felony because his official duty as a public officer is not law enforcement but the determination of cases already filed in court. On the other hand, a public prosecutor may be prosecuted for this crime in respect of the bribery committed, aside from dereliction of duty committed in violation of Art. 208 of the Revised Penal Code, should be refrain from prosecuting an offender who has committed a crime punishable by reclusion perpetua and / or death in consideration of any offer, promise, gift or present. Meanwhile, a police officer who refrains from arresting such offender for the same consideration above stated, may be prosecuted for this felony since he is a public officer entrusted with law enforcement. Malversation of Public Funds or Property (Article 217-222) Q: What constitutes the crime of malversation of public funds or property? How is malversation distinguished from estafa? (1999) A: Malversation of public funds or property is committed by any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property. (Art. 217, RPC) Malversation differs from estafa in that malversation is committed by an accountable public officer involving public funds or property under his custody and accountability; while estafa is committed by nonaccountable public officer or private individual involving funds or property for which he is not accountable to the government. Q: 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

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

a.

What crime did Mayor Maawain commit? Explain.

A: Mayor Maawain committed the crime of Illegal use of public funds or property punishable under Article 220 of the RPC. This offense is also known as Technical Malversation. The crime has 3 elements: a.) that the offender is an accountable public officer; b) that he applies public funds or property under his administration to some public use; and c) that the public use for which such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance. The funds for the feeding program are not specifically appropriated for the beneficiaries of the shelter assistance program in X Municipality’s annual budget. Mayor Maawain ought to use the boxes of food earmarked particularly for the feeding program, which would cater only to the malnourished among his constituents who needed the resources for proper nourishment. 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. A: No. Mayor Maawain cannot invoke good faith when he approved the transfer of the boxes of food from the feeding program to the Shelter Assistance program. “Criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order and convenience. It is the commission of an act as defined by the law, and not the character or effect thereof that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant”. (Ysidoro v. People, G.R. No. 192330, 14 November 2012). Q: Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused the disbursement of public funds allocated for their local development programs for 2008. Records show that the amount of P2-million was purportedly used as financial assistance for a rice production livelihood project. Upon investigation, however, it was found that Roger and Jessie falsified the disbursement vouchers and supporting documents in order to make it appear that qualified recipients who, in fact, are non-existent individuals, received the money. Roger and Jessie are charged with malversation through falsification and violation of Section 3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges filed against Roger and Jessie. Explain. (2009) A: The charge of malversation through falsification is not correct because the falsifications of several documents

were not necessary means to obtain the money that were malversed. The falsifications were committed to cover up or hide the malversation and therefore, should be separately treated from malversation. The given facts stated that Roger and Jessie falsified disbursement vouchers and supporting documents “in order to make it appear” that qualified recipients received the money. Art. 48, RPC on complex crimes is not applicable. They should be charged of violation of Section 3(e) of R.A. 3019 for the breach of public trust and undue injury caused to the Government. The violation is a crime malum prohibitum. Q: Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy the judgment against him in favor of ABC Corporation, a government-owned or controlled corporation with an original charter. However, the representative of the corporation failed to attend the auction sale. Gonzalo, the winning bidder, purchased property for P100,000 which he paid to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo lent the amount to Myrna, his officemate, who promised to repay the amount within two months, with interest thereon. However, Myrna reneged on her promise. Despite demands of ABC Corporation, Eliseo failed to remit the said amount. (2008) a.

State with reasons, the crime or crimes, if any, committed by Eliseo.

A: The crime committed by Eliseo is malversation since he is a public officer who received the amount in his official capacity; thus he is accountable for it. b. Would your answer to the first question be the same if ABC Corp. were a private corporation? Explain. A: The crime would still be malversation even if ABC Corporation, in whose favor the judgment was rendered, were a private corporation. This is because the P100,000.00 came from the sale of property levied upon or seized upon execution ordered by the court. The property was in custodia legis. Although not strictly public property when Eliseo, in his official capacity, conducted the execution sale and received it proceeds. As long as Eliseo has not accounted for and turned over the proceeds officially, he is not relieved of his official accountability. Q: In 1982, the Philippine National Bank (PNB), then a government banking institution, hired Henry dela Renta, a CPA, as Regional Bank Auditor. In 1992, he resigned and was employed by the Philippine Deposit Insurance Corporation (PDIC), another government-owned and controlled corporation. In 1995, after the PNB management unearthed many irregularities and violations of the bank's rules and regulations, dela Renta was found to have manipulated certain accounts involving trust funds and time deposits of depositors. After investigation, he was charged with malversation of public funds before the Sandiganbayan. He filed a motion to dismiss contending he was no longer an employee of the PNB but of the PDIC. (2006) a.

Is dela Renta's contention tenable?

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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funds pertaining to the shelter assistance program and those for the feeding program were separate items on X Municipality's annual budget. (2015)

FOR CRIMINAL LAW (1991-2015)

A: No, dela Renta's contention is not tenable for these reasons: 1. His contention that he is no longer an employee of PNB but of PDIC has no merit since both PNB and PDIC are government institutions and the funds thereof belong to the same Government who suffers from the malversation; (Sec. 4, PD 1606, as amended). 2. Resignation or separation from office is not a ground for extinguishing criminal liability under Art. 89 of the Revised Penal Code, for any crime committed while the offender was connected with the office; and 3. The crime of malversation was discovered only in 1995 and so, the prescriptive period of the crime only commenced to run from then. Obviously, the amount misappropriated exceeds P200.00 and so the prescribed penalty is within the range of prision mayor already. Crimes punishable by prision mayor prescribes in 15 years. From 1995 to the present (2006) is only around 11 years. Hence the crime can still be prosecuted. A: The contention of Henry dela Renta is not tenable. Dela Renta may be prosecuted for malversation even if he had ceased to be an employee of the PNB. At the time of the commission of the offense, PNB was a government owned and controlled corporation and therefore, any crime committed by the Regional Bank Auditor, who is a public officer, is subject to the jurisdiction of the Sandiganbayan (See R.A. 7975, as amended by RA. 8249). b. After his arraignment, the prosecution filed a motion for his suspension pendente lite, to which he filed an opposition claiming that he can no longer be suspended as he is no longer an employee of the PNB but that of the PDIC. Explain whether he may or may not be suspended. A: Dela Renta may still be suspended pendente lite despite holding a different public office, the PDIC, when he was charged. The term "office" in Sec. 13 of R.A. 3019 applies to any office which the officer might currently be holding and not necessarily the office or position in relation to which he is charged. Q: Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a day-long official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for P20,000.00, although the car was worth P800,000.00. a.

What are the respective crimes, if any, committed by Allan, Danny and Jules? Explain. (2005)

A: Allan, the municipal treasurer is liable for malversation committed through negligence or culpa. The government car which was assigned to him is public property under his accountability by reason of his duties. By his act of negligence, he permitted the taking of the car by another person, resulting in malversation, consistent with the language of Art. 217 of RPC. Danny violated the Anti-Fencing Law. He is in possession of an UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

item which is the subject of thievery. P.D. 1612 (AntiFencing Law) under Sec. 5 provides that mere possession of any good, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Jules is guilty of carnapping. He took the motor vehicle belonging to another without the latter's consent (R.A. No. 6539). b.

What, if any, are their respective civil liabilities? Explain.

A: Allan is under obligation to restitute the vehicle or make reparation if not possible. Jules must pay the amount he gained from the sale of the car which is P20,000.00. Danny must make reparation corresponding to the value of the car which is P800,000.00. Q: Accused Juan Santos, a deputy sheriff in a Regional Trial Court, levied on the personal properties of a defendant in a civil case before said court, pursuant to a writ of execution duly issued by the court. Among the properties levied upon and deposited inside the "evidence room" of the Clerk of Court for Multiple RTC Salas were a refrigerator, a stock of cassette tapes, a dining table set of chairs and several lampshades. Upon the defendant’s paying off the judgment creditor, he tried to claim his properties but found out that several items were missing, such as the cassette tapes, chairs and lampshades. After due and diligent sleuthing by the police detectives assigned to the case, these missing items were found in the house of accused Santos, who reasoned out that he only borrowed them temporarily. If you were the fiscal/prosecutor, what would be the nature of the information to be filed against the accused? Why? (2001) A: If I were the fiscal/prosecutor, I would file an information for Malversation against Juan Santos for the cassette tapes, chain and lampshades which he, as deputy sheriff, levied upon and thus under his accountability as a public officer. Said properties being under levy, are in custodia legis and thus impressed with the character of public property, misappropriation of which constitutes the crime of malversation although said properties belonged to a private individual (Art. 222, RPC). Juan Santos misappropriated such properties when, in breach of trust, he applied them to his own private use and benefit. His allegation that he only borrowed such properties is a lame excuse, devoid of merit as there is no one from whom he borrowed the same. The fact that it was only "after due and diligent sleuthing by the police detectives assigned to the case", that the missing items were found in the house of Santos, negates his pretension. Q: Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In 1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging that they constitute "Ill-gotten wealth" of the Marcos family. Upon their application, Reyes and Santos were appointed as fiscal agents of the sequestered firm and they were given custody and possession of the sequestered building and its contents, including various vehicles used in the firm's operations. After a few months, an inventory

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

A: The proper offense committed was Malversation of Public Property, not estafa, considering that Reyes and Santos, upon their application, were constituted as "fiscal agents" of the sequestered firm and were "given custody and possession" of the sequestered properties, including the delivery vans which later they could not account for. They were thus made the depositary and administrator of properties deposited by public authority and hence, by the duties of their office/position, they are accountable for such properties. Such properties, having been sequestered by the Government through the PCGG, are in custodia legis and therefore impressed with the character of public property, even though the properties belong to a private individual (Art. 222, RPC).The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is prima facie evidence that they had put the same to their personal use. Q: A Municipal Treasurer, accountable for public funds or property, encashed with public funds private checks drawn in favor of his wife. The checks bounced, the drawer not having enough cash in the drawee bank. The Municipal Treasurer, in encashing private checks from public funds, violated regulations of his office. Notwithstanding restitution of the amount of the checks, can the Municipal Treasurer nevertheless be criminally liable? What crime did he commit? Explain. (1999) A: Yes, notwithstanding the restitution of the amount of the check, the Municipal Treasurer will be criminally liable as restitution does not negate criminal liability although it may be considered as a mitigating circumstance similar or analogous to voluntary surrender. (People v. Velasquez, GR No. L-47741, April 28, 1941). He will be criminally liable for malversation. However, if the restitution was made immediately, under vehement protest against an imputation of malversation and without leaving the office, he may not be criminally liable. Q: Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer, from the Department of Public Works and Highways, the amount of P100, 000.00 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the Pl00,000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was

acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain. (1996) A: Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous is legally tenable because she was charged for malversation of public funds under Art. 217 of the RPC but was convicted for Illegal use of public funds which is defined and punished under Art. 220. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information (Parungao v. Sandiganbayan, G.R. No. 96025, May 15, 1991). From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that the absence of such law or ordinance was, in fact, established." So, procedurally and substantially, the Sandiganbayan's decision suffers from serious infirmity. Q: Randy, an NBI agent, was issued by the NBI an armalite rifle (Ml6) and a Smith and Wesson Revolver. Cal. 38. After a year, the NBI Director made an inspection of all the firearms issued. Randy, who reported for work that morning, did not show up during the inspection. He went on absence without leave (AWOL). After two years, he surrendered to the NBI the two firearms issued to him. He was charged with malversation of government property before the Sandiganbayan. Randy put up the defense that he did not appropriate the armalite rifle and the revolver for his own use, that the delay in accounting for them does not constitute conversion and that actually the firearms were stolen by his friend, Chiting. Decide the case. (1994) A: Randy is guilty as charged under Art. 217, RPC. He is accountable for the firearms they issued to him in his official capacity. The failure of Randy to submit the firearms upon demand created the presumption that he converted them for his own use. Even if there is no direct evidence of misappropriation, his failure to account for the government property is enough factual basis for a finding of malversation. Indeed, even his explanation that the guns were stolen is incredible for if the firearms were actually stolen, he should have reported the matter immediately to the authorities.

Infidelity in the Custody of Prisoners (Article 223-230) Q: During a town fiesta, A, the chief of police, permitted B, a detention prisoner and his compadre, to leave the municipal jail and entertain visitors in his house from 10:00 a.m. to 8:00 p.m. B

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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was conducted and it was discovered that two (2) delivery vans were missing. After demand was made upon them, Reyes and Santos failed to give any satisfactory explanation why the vans were missing or to turn them over to the PCGG; hence, they were charged with Malversation of Public Property. During the trial, the two accused claimed that they are not public accountable officers and, if any crime was committed, it should only be Estafa under Art. 315, par. l(b) of the Revised Penal Code. What is the proper offense committed? State the reason(s) for your answer. (2001)

FOR CRIMINAL LAW (1991-2015)

returned to the municipal jail at 8:30 p.m. Was there any crime committed by A? (1997) A: Yes, A committed the crime of infidelity in the custody of a prisoner since B is a detention prisoner. As Chief of Police, A has custody over B. Even if B returned to the municipal jail at 8:30 p.m. A, as custodian of the prisoner, has maliciously failed to perform the duties of his office, and when he permits said prisoner to obtain a relaxation of his imprisonment, he consents to the prisoner escaping the punishment of being deprived of his liberty which can be considered real and actual evasion of service under Art. 223 of RPC (US v. Bandino, G.R. No. 9964. February 11, 1915). Q: A chief of police of a municipality, believing in good faith that a prisoner serving a ten-day sentence in the municipal jail, would not escape, allowed said prisoner to sleep at the latter's house because the municipal jail was so congested and there was no bed space available. Accordingly, the prisoner went home to sleep every night but returned to jail early each morning, until the ten-day sentence had been fully served. Did the Chief of Police commit any crime? Explain. (1996) A: The Chief of Police is guilty of violation of Art. 223 of RPC, consenting or conniving to evasion, the elements of which are (a) he is a public officer, (b) he is in charge or custody of a prisoner, detention or prisoner by final judgment, (c) that the prisoner escaped, and (d) there must be connivance. Relaxation of a prisoner is considered infidelity, thus making the penalty ineffectual, although the convict may not have (US v. Bandino, G.R. No. 9964. February 11, 1915). It is still violative of the provision. It also includes a case when the guard allowed the prisoner, who is serving a six-day sentence in the municipal jail, to sleep in his house and eat there (People v. Revilla). Maltreatment of Prisoners (Article 235) Q: AA was arrested for committing a bailable offense and detained in solitary confinement. He was able to post bail after two (2) weeks of defection. During the period of detention, he was not given any food. Such deprivation caused him physically discomfort. What crime, if any, was committed in connection with the solitary confinement and food deprivation of AA? Explain your answer. (2012) A: The crime of torture and maltreatment of prisoner is committed. Food deprivation and confinement in solitary cell are considered as physical and psychological torture under Sec. 4(2) of the Anti-Torture Act of 2009 or R.A. 9745. “Torture” refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act which he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of acquiescence of a person in authority or agent of a person in authority (R.A. 9745, Sec. 3). Anti-Graft and Corrupt Practices Act (R.A. No. 3019, as amended) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: Malo, a clerk of court of a trial court, promised the accused in a drug case pending before the court, that he would convince the judge to acquit him for a consideration of P5 million. The accused agreed and delivered the money, through his lawyer, to the clerk of court. The judge, not knowing of the deal, proceeded to rule on the evidence and convicted the accused. (2014) a.

Malo was charged with violation of Section 3(b), Republic Act (R.A.) No. 3019, which prohibits a public officer from directly or indirectly requesting or receiving any gift, present, share percentage or benefit wherein the public officer, in his official capacity, has to intervene under the law. He was later charged also with indirect bribery under the Revised Penal Code. Malo claims he can no longer be charged under the Revised Penal Code for the same act under R.A. 3019. Is he correct?

A: No. One may be charged with violation of R.A. 3019 in addition to a felony under the RPC for the same delictual act, either concurrently or subsequent to being charged with a felony under the RPC. This is very clear from Sec. 3 of R.A. 3019. Also, R.A. 3019 is a special law, the elements of the crime is not the same as those punished under the RPC. b. Malo was charged with estafa under Article 315 because he misrepresented that he had influence, when he actually had none. Is the charge correct? A: Yes, estafa is committed by any person who shall ask for money from another for the alleged purpose of bribing a government employee when in truth the offender intended to convert the money to his own personal use and benefit (Art. 315(2)(c), RPC). Q: May a public officer charged under Section 3(b) of Republic Act No. 3019 “directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law" also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (2010) A: Yes, a public officer charged under Sec. 3 (b) of R.A. 3019 (Anti-Graft and Corrupt Practices Act) may also be charged simultaneously or successively for the crime of direct bribery under Art. 210 of the RPC, because the two crimes are essentially different and are penalized under distinct legal philosophies. Whereas violation of Sec. 3(b) of R.A. 3019 is a malum prohibitum, the crime under Art. 20 of the Code is a malum in se. Q: Proserfina, an assistant public high school principal, acted to facilitate the release of salary differentials and election duty per diem of classroom teachers with the agreement that they would reimburse her for her expenses. Did Proserfina commit a crime? Explain. (2010) A: Yes, Proserfina committed violation of Sec. 3 (b) of R.A. 3019 which considers as a corrupt practice, the act

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00. Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law. While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019. Is Charina correct? Explain. (2009) A: No, Charina is not correct. Although the charge for violation of R.A. No. 3019 and the charge for Indirect Bribery (Art. 211, RPC) arose from the same act, the elements of the violation charged under R.A. No. 3019 are not the same as the felony charged for Indirect Bribery under the RPC (Mejia v. Pamaran, G.R. No. L56741-42 April 15, 1988). Hence, the crime charged is separate and distinct from each other, with different penalties. The two charges do not constitute a ground for a motion to dismiss or motion to quash as there is no jeopardy against the accused.

Regulatory Board, who was charged with violation of Section 3 (h) of Republic Act 3019 (Anti-Graft and Corrupt Practices Act) before the Sandiganbayan, the Office of the Special Prosecutor filed a Motion to Suspend Accused Pendente Lite pursuant to Section 13 of the Anti-Graft Law. The Court granted the motion and suspended accused Brad Kit for a period of 90 days. Accused assailed the constitutional validity of the suspension order on the ground that it partakes of a penalty before Judgment of conviction is reached and is thus violative of his constitutional right to be presumed innocent. He also claimed that this provision of the law on suspension pendente lite applies only to elective officials and not to appointed ones like him. Rule with reasons. (2000) A: The suspension order does not partake of a penalty and is thus not violative of Brad Kit's constitutional right to be presumed innocent. Under the law, the accused public officers shall be suspended from office while the criminal prosecution is pending in court (R.A. 3019, Sec. 13). Such preventive suspension is mandatory to prevent the accused from hampering the normal course of the investigation (Rios v. Sandiganbayan, [G.R. No. 129913, September 26, 1997; Bunye v. Escareal, G.R. No. 110216, September 10, 1993). Neither is there merit in Brad Kit’s claim that the provision on suspension pendente lite applies only to elective officials and not to appointed ones like him. It applies to all public officials indicted upon a valid information under R.A. No. 3019, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service Q: A public officer was accused before the Sandiganbayan of a violation of Section 3 (e) of R.A. No. 3019, the Anti-Graft and Corrupt Practices Act. Just after arraignment and even before evidence was presented, the Sandiganbayan issued an order for his suspension pendente lite. The accused questioned the said Order contending that it is violative of the constitutional provision against an ex post facto law. (1999)

Q: The Central Bank (Bangko Sentral ng Pilipinas), by a resolution of the monetary board, hires Theof Sto. Tomas, a retired manager of a leading bank as a consultant. Theof later receives a valuable gift from a bank under investigation by the Central Bank. May Thereof be prosecuted under Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) for accepting such a gift? Explain. (2003)

a.

A: No, Theof may not be prosecuted under Rep. Act 3019, but may be prosecuted for violation of P.D. 46, under which such act of receiving a valuable gift is punished. Although Theof is a "public officer" within the application of the Anti-Graft and Corrupt Practices Act (R.A. 3019), yet his act of receiving such gift does not appear to be included among the punishable acts under R.A. 3019 since he is not to intervene in his official capacity in the investigation of the bank which gave the gift. Penal laws must be strictly construed against the State. In any case, Thereof is administratively liable.

b. What pre-conditions are necessary to be met or satisfied before preventive suspension may be ordered?

Q: A month after the arraignment of Brad Kit Commissioner of the Housing and Land Use

Will you sustain the objection of the accused? Why?

A: No, I will not sustain the objection of the accused. Suspension of the accused pendente lite is not violative of the constitutional provision against ex-post facto law. Ex-post facto law means making an innocent act a crime before it is made punishable.

A: The pre-conditions necessary to be met or satisfied before a suspension may be ordered are: (1) there must be proper notice requiring the accused to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to R.A. 3019, as amended; and (2) there must be a determination of a valid information against the accused that warrants his suspension.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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of “(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law.” Being the assistant public high school principal, it is her duty to intervene in the release of salary differentials and per diem of classroom teachers under her. Her act of doing so, made with a request for a share of benefit therefor constitutes graft or corrupt practice under Sec. 3 (b) of Rep. Act No. 3019. Considering that the acts prohibited or punished under this law are mala prohibita, and thus punishable thereunder, whether done with criminal intent or not.

FOR CRIMINAL LAW (1991-2015)

Q: A is charged with the crime defined in Section 3(e) of the Anti-Graft and Corrupt Practices Act in an Information that reads: That from 01 to 30 January 1995, in the City of Pasig and within the jurisdiction of this Honorable Court, the accused, being then employed in the Office of the District Engineer, Department of Public Works and Highways and in the discharge of his official administrative functions, did then and there willfully and unlawfully work for and facilitate the approval of B's claim for the payment of the price of his land which the government had expropriated, and after the claim was approved, the accused gave B onlyP1,000.00 of the approved claim of P5,000 and willfully and unlawfully appropriated for himself the balance of P4,000, thus causing undue injury to B and the Government." A has filed a motion to quash the information, contending that it does not charge an offense. Is he correct? (1997) A: Yes, the contention of A is correct. The information failed to allege that the undue injury to B and the government was caused by the accused's manifest partiality, evident bad faith, or gross inexcusable negligence, which are necessary elements of the offense charged, i.e. violation of Sect. 3(e) of the Anti-Graft and Corrupt Practices Act. The accused is employed in the Office of the District Engineer of the DPWH which has nothing to do with the determination and fixing of the price of the land expropriated, and for which expropriated land the Government is legally obligated to pay. There is no allegation in the information that the land was overpriced or that the payment of the amount was disadvantageous to the Government. It appears that the charge was solely based on the accused having followed up the payment for B's land which the Government has already appropriated, and that the accused eventually withheld for himself from the price of the said land, the amount of P4,000 for his services. No violation of Sec. 3(e) of the Anti-Graft and Corrupt Act appears. At most, the accused should be merely charged administratively. Anti-Plunder Act (R.A. No. 7080, as amended) Q: City Engr. A, is the city engineer and the Chairman of the Bids and Awards Committee (BAC) of the City of Kawawa. In 2009, the City of Kawawa, through an ordinance, allotted the amount of P100 million for the construction of a road leading to the poblacion. City Engr. A instead, diverted the construction of the road leading to his farm. Investigation further showed that he accepted money in the amount of P10 million each from three (3) contending bidders, who eventually lost in the bidding. Audit report likewise showed that service vehicles valued at P2 million could not be accounted for although reports showed that these were lent to City Engr. A’s authorized drivers but the same were never returned. Further, there were funds under City Engr. A’s custody amounting to P10 million which were found to be missing and could not be accounted for. In another project, he was instrumentalin awarding a contract for the construction of a city school building costing P10 million to a close relative, although the lowest bid was P8 million. Investigation also revealed that City Engr. A has a net worth of more than P50 million,

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

which was way beyond his legitimate income. (2014) a.

If you are the Ombudsman, what charge or charges will you file against City Engr. A?

A: If I am the Ombudsman, I would file a case of Plunder under R.A. 7080 agasint City Engr. A. It is very clear from the facts given that all the elements of plunder are present, namely: 1. The offender is a public officer holding a public office in the Government of the Republic of the Phlippines; 2. The offender amassed, accumulated, or acquired illgotten wealth through a combination of overt or criminal acts of misuse, misaapropriation, conversion or malversation of public funds, receiving kickbacks from persons in connection with a government contract or project by reason of his office or position and illegally or fraudulently conveying or disposing of assets belonging to the national government or any of its subdivisions; and 3. The aggregate amount or total value of the ill gotten wealth amassed, accumulated, or acquired is at least P50M. b. Suppose the discovered net worth of City Engr. A is less than P50 million, will your answer still be the same? A: Yes, the answer will be the same since in plunder the basis is the combination of criminal acts or series of acts, which constitutes the accumulation of more than P50M. The predicate crimes are already absorbed in the crime of plunder. City Engr. A’s net worth being less than P50M is not determinative of his liability, as long as the wealth amassed/ accumulated is more than P50M. Q: Through kickbacks, percentages or commissions and other fraudulent schemes/conveyances and taking advantage of his position, Andy, a former mayor of a suburban town, acquired assets amounting to P10 billion which is grossly disproportionate to his lawful income. Due to his influence and connections and despite knowledge by the authorities of his Ill-gotten wealth, he was charged with the crime of plunder only after twenty (20) years from his defeat in the last elections he participated in. (1993) a.

May Andy still be held criminally liable? Why?

A: Andy will not be criminally liable because Section 6 of RA 7080 provides that the crime punishable under this Act shall prescribe in twenty years and the problem asked whether Andy can still be charged with the crime of plunder after 20 years. b. Can the State still recover the properties and assets that he illegally acquired, the bulk of which is in the name of his wife and children? Reason out. A: Yes, because Section 6 provides that recovery of properties unlawfully acquired by public officers from them or their nominees or transferees shall not be barred by prescription, laches or estoppel. CRIMES AGAINST PERSON (Article 246– 266)

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Q: Who may be guilty of the crime of parricide? (1999) A: Any person who kills his father, mother, or child, whether legitimate or illegitimate, or his ascendants or descendants, or spouse, shall be guilty of parricide. (Art. 246, RPC) Q: 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. (2015) a.

What crime(s) did Higino commit? Explain.

A: With respect to the killing of the wife, parricide under Article 246 of the Revised Penal Code is committed because of the qualifying circumstance of relationship. With respect to the killing of the child, Higino is liable for infanticide under Article 255 of the Revised Penal Code because his child was born alive and was already viable or capable of independent existence and the child’s age is less than three (3) days for the latter died after thirty-six hours from expulsion. Higino shall incur criminal liability for parricide and infanticide although these crimes committed are different from his criminal intention of maltreating his wife (Article 4, RPC). Inasmuch as the single act of Higino produced two grave felonies, it falls under Art. 48, RPC, ie. a complex crime. b. Assuming that when the incident occurred, Aika was only six months pregnant, and when she died, the fetus inside her womb also died, will your answer be different? Explain. A: If the child died inside the womb of Aika, who was only six months, the crime committed is complex crime of parricide with unintentional abortion. Killing the unborn child as a result of the violence employed against the mother without intent to abort is unintentional abortion. Since the child died inside the womb of the mother, unintentional abortion is committed regardless of viability of the victim. Because the same violence that killed the mother also caused unintentional abortion, the crime committed is a complex crime (People v. Pacayna, Jr. G.R. No. 179035, April 16, 2008; People v. Robinos, G.R. No. 138453, May 29, 2002; People v. Villanueva, G.R. No. 95851, March 01, 1995; People v. Salufrania, G.R. No. L50884, March 30, 1988). Q: In 1975, Pedro, then a resident of Manila, abandoned his wife and their son, Ricky, who was then only three years old. Twenty years later, an affray took place in a bar in Olongapo City between Pedro and his companions, on one hand, and Ricky and his friends, upon the other, without the father and son knowing each other. Ricky stabbed and killed Pedro in the fight, only to find out, a week later, when his mother arrived from Manila to visit him in jail, that the man whom he killed was his own father. (1996) a.

What crime did Ricky commit? Explain.

A: Ricky committed parricide because the person killed was his own father, and the law punishing the crime (Art. 246, RPC) does not require that the crime be "knowingly" committed. Should Ricky be prosecuted and found guilty of parricide, the penalty to be imposed is Art. 49 of the RPC for Homicide (the crime he intended to commit) but in its maximum period. b. Suppose Ricky knew before the killing that Pedro is his father, but he nevertheless killed him out of bitterness for having abandoned him and his mother, what crime did Ricky commit? Explain. A: The crime committed should be parricide if Ricky knew before the killing that Pedro is his father, because the moral basis for punishing the crime already exists. His having acted out of bitterness for having been abandoned by his father may be considered mitigating. Q: A, a young housewife, and B, her paramour, conspired to kill C, her husband, to whom she was lawfully married, A and B bought pancit and mixed it with poison. A gave the food with poison to C, but before C could eat it. D, her illegitimate father, and E, her legitimate son, arrived. C, D, and E shared the food in the presence of A who merely watched them eating. C, D, and E died because of having partaken of the poisoned food. What crime or crimes did A and B commit? (1997) A: A committed the crime of multiple parricide for the killing of C, her lawful husband, D, her illegitimate father, and E, her legitimate son. All these killings constitute parricide under Art. 246 of the RPC because of her relationship with the victims. B committed the crime of murder as a co-conspirator of A in the killing of C because the killing was carried out by means of poison (Art. 248[3], RPC). But for feloniously causing the death of D and E, B committed two counts of homicide. The plan was only to kill C. Q: Aldrich was dismissed from his Job by his employer. Upon reaching home, his pregnant wife, Carmi, nagged him about money for her medicines. Depressed by his dismissal and angered by the nagging of his wife, Aldrich struck Carmi with his fist. She fell to the ground. As a result, she and her unborn baby died. What crime was committed by Aldrich? (1994) A: Aldrich committed the crime of parricide with unintentional abortion. When Aldrich struck his wife, Carmi, with his fist, he committed the crime of maltreatment under Art. 266(3) of RPC. Since Carmi died because of the felonious act of Aldrich, he is criminally liable of parricide under Art. 246, RPC in relation to Art. 4(1) of the same Code. Since the unborn baby of Carmi died in the process, but Aldrich had no intention to cause the abortion of his wife, Aldrich committed unintentional abortion as defined in Art. 257, RPC. Inasmuch as the single act of Aldrich produced two grave or less grave felonies, he falls under Art. 48, RPC, ie. a complex crime. Death or Physical Injuries Inflicted Under Exceptional Circumstances (Article 247) Q: Procopio, a call center agent assigned at a graveyard shift, went home earlier than usual. He

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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. (2015) a.

What crime did Procopio commit, and what circumstance attended the case? Explain.

A: The crime committed by Procopio is parricide qualified by the circumstance of relationship. Killing a spouse after having been surprised in the act of committing sexual intercourse with another woman is death under exceptional circumstance under Article 247 of the Revised Penal Code. However, in this case this is not death under exceptional circumstance because Bionci was having homosexual intercourse with another woman and not sexual intercourse with a man. “Homosexual intercourse “is not within the contemplation of the term “sexual intercourse” in Article 247. However, the crime of parricide is attended by the circumstance of passion arising from a lawful sentiment as a result of having caught his wife in the act of infidelity with another woman (People v. Belarmino, G.R. No. L-4429, April 18, 1952, En Banc). b. Assuming that Procopio and Bionci were common-law spouses,will your answer be the same? Explain. A: No, the answer is not the same. The crime committed is Homicide if Procopio and Bionci were common law spouses. Parricide contemplates killing by spouse who are legally married. Q: A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11:00 p.m. to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door very carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window, A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical Injuries of B. (2005, 2001) a.

Is A liable for C's death? Why?

A: Yes, A is liable for C's death but under the exceptional circumstances in Art. 247 of the RPC, where only destierro is prescribed. Art. 247 governs since A surprised his wife B in the act of having sexual intercourse with C, and the killing of C was "immediately thereafter" as the discovery, escape, pursuit and killing of C form one continuous act. A person who commits acts penalized under Art. 247 is still criminally liable. However, this is merely an exempting circumstance UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

when the victim suffers any other kind of physical injury. A will suffer the penalty of destierro. b. Is A liable for B's injuries? Why? A: Likewise, A is liable for the serious physical injuries he inflicted on his wife B but under the same exceptional circumstances in Art. 247 of the RPC, for the same reasons. Q: At 10:00 o’clock in the evening of 10 November 1990, upon his arrival from Cebu City, Marco surprised his wife, Rosette, and her former boyfriend, Raul, both naked and in the act of illicit copulation. Raul got his revolver and, upon seeing the revolver, Marco ran toward the street, took a pedicab and proceeded to the house of his brother, a policeman, from whom he borrowed a revolver. With the weapon, he returned to his residence. Unable to find Raul and Rosette, Marco proceeded to a disco jointly owned and operated by Raul. It was already 11:00 o’clock that evening when he arrived at the joint. Upon seeing Raul with two (2) male companions, A and B, drinking beer at one of the tables, Marco fired two (2) shots at Raul, who was hit on his forehead with one of the bullets; the other bullet hit A, injuring him on his stomach. As a consequence of the gunshot wound, Raul died instantaneously. Due to the timely medical attention given to him, A survived; he was, however, hospitalized for 45 days. Marco was prosecuted for Murder for the death of Raul and for frustrated murder in the case of A. The informations in both cases allege the qualifying circumstances of evident premeditation and treachery and the generic aggravating circumstance of nighttime. You are Marco’s lawyer. What would be your defense(s)? A: The defense with respect to the death of Raul is death under exceptional circumstances (Art. 247, RPC, People v. Abarca, G.R. No. 74433 September 14, 1987). Although the killing happened one hour after having surprised the spouse, that would still be within the context of “immediately thereafter”. With respect to the wounding of the stranger, the defense of lawful exercise of a right is a justifying circumstance under Art. 11(5) could be invoked. At the time accused shot Raul, he was not committing a felonious act and therefore could not have been criminality liable under Art. 4, RPC. Murder (Article 248) Q: Define murder. What are the elements of the crime? (1999) A: Murder is the unlawful killing of a person which otherwise would constitute only homicide, had it not been attended by any of the following circumstances: 1. With treachery or taking advantage of superior strength, or with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means or on the occasion of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin;

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5. 6.

On occasion of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity; With evident premeditation; With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

The elements of murder are: (1) that a person was unlawfully killed; (2) that such a killing was attended by any of the above-mentioned circumstances; (3) that the killing is not parricide nor infanticide; and (4) that the accused killed the victim. Q: 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. (2015) a. What crime(s) did Honesto commit? Explain. A: Honesto is liable for murder qualified by the circumstance of treachery for killing Melba due to error in personae or mistake of identity and slight physical injuries for the wound sustained by the passerby due to aberratio ictus or mistake of blow. Although his intention to commit parricide, he is liable for murder and slight physical injuries since they are the direct, natural and logical consequence of act committed with intent to kill his wife. b. Will your answer be the same, assuming that the other passerby was hit in the left eye which caused his/her blindness? Explain. A: If the passerby was hit in the left eye causing blindness, the crime committed by Honesto is serious physical injuries. Unlike slight physical injuries, serious physical injuries can be made a component of a complex crime under Article 48 of the Revised Penal Code. Since a single act of shooting the victim constitutes murder and serious physical injuries, they can be merged together to form a complex crime. Thus, my answer would be different since the crime would be Murder with Serious physical injuries. Q: 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 at 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. Lito then hid the gun in one of the empty containers. At the time of the

shooting, Lito was fifteen years and one month old. What is Lito's criminal liability? Explain. (2015) A: Lito is criminally liable for murder qualified by the circumstance of treachery, or evident premeditation, as well as illegal possession of firearms. Minority is not an exempting under Section 7 of RA No. 9644 since his age is above fifteen years but below eighteen years and he acted with discernment. Circumstance will show that he discerned the consequences of his criminal acts as shown from the fact he employed means to make a surprise attack and he even hid the murder weapon in an empty container. It was also clear that he planned the killing. However, minority will be considered as a privileged mitigating circumstance, which will require the graduation of the penalty prescribed by law to one degree lower (Article 68). Q: Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10,000 a month as "protection money". With the monthly payment, Roger assured, the syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his establishment destroyed. Antonio refused to pay the protection money. Days later, at round 3:00 in the morning, Mauro, a member of the criminal syndicate, arrived at Antonio's home and hurled a grenade into an open window of the bedroom where Antonio, his wife and their three year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded. State, with reason, the crime or crimes that had been committed as well as the aggravating circumstances, if any, attendant thereto. (2008) A: By demanding “protection money” under threat and intimidation, the crime of grave threats is committed by Roger, the leader of the crime syndicate. For killing the businessman, his wife and three year old daughter, the complex crime of multiple murder was committed by Mauro. The killing is qualified by the use of an explosive (hand grenade). The treachery attending the killing shall be separately appreciated as another aggravating circumstance aside from the use of explosive as the qualifying circumstance. Other aggravating circumstances which may be appreciated are: 1. Dwelling, because the killings were committed in the home of the victims who had not given any provocation; 2. Nocturnity, considering that the offenders carried out the killing at around 3:00 a.m., indicative of a deliberate choice of nighttime for the commission of the crime; 3. Treachery under Art. 14(16) of the RPC considering that victims were all asleep when killed; and The offense was committed by a person who belongs to an organized/ syndicated crime group under the Heinous Crimes Law (Sec. 23, R.A. 7659), amending for this purpose Art. 62(1) of the RPC. Q: Mang Jose, a septuagenarian, was walking with his ten-year old grandson along Paseo de Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding CRV

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4.

FOR CRIMINAL LAW (1991-2015)

Honda van and were sent sprawling on the pavement a meter apart. The driver, a Chinese mestizo, stopped his car after hitting the two victims but then reversed his gears and ran over Mang Jose's prostrate body anew and third time by advancing his car forward. The grandson suffered broken legs only and survived but Mang Jose suffered multiple fractures and broken ribs, causing his instant death. The driver was arrested and charged with Murder for the death of Mang Jose and Serious Physical Injuries through Reckless Imprudence with respect to the grandson. Are the charges correct? Explain. (2001) A: Yes, the charges are correct. For deliberately running over Mang Jose's prostrate body after having bumped him and his grandson, the driver indeed committed Murder, qualified by treachery. Said driver's deliberate intent to kill Mang Jose was demonstrated by his running over the latter's body twice, by backing up the van and driving it forward, whereas the victim was helpless and not in a position to defend himself or to retaliate. As to the serious physical injuries sustained by Mang Jose's 10-year old grandson, as a result of having been hit by the speeding vehicle of said driver, the same were the result of reckless imprudence which is punishable as a quasi-offense in Art. 365 of the RPC. The charge of Reckless Imprudence Resulting to Serious Physical Injuries is correct. The penalty next higher in degree to what ordinarily should be imposed is called for since the driver did not lend help on the spot, which help he could have given to the victims. Q: Fidel and Fred harbored a long standing grudge against Jorge who refused to marry their sister Lorna, after the latter got pregnant by Jorge. After weeks of surveillance, they finally cornered Jorge in Ermita, Manila, when the latter was walking home late at night. Fidel and Fred forcibly brought Jorge to Zambales where they kept him hog-tied in a small nipa house located in the middle of a rice field. Two days later, they killed Jorge and dumped his body into the river. What crime or crimes did Fidel and Fred commit? Explain. (1996) A: Fidel and Fred committed the crime of Murder under Art. 248, RPC, the killing being qualified by evident premeditation. This is due to the long standing grudge entertained by the two accused occasioned by the victim's refusal to marry their sister after impregnating her. The intention of the accused is determinative of the crime committed. Where the intention is to kill the victim and the latter is forcibly taken to another place and later killed, it is murder. There is no indication that the offenders intended to deprive the victim of his liberty. Whereas, if the victim is kidnapped, and taken to another situs and killed as an afterthought, it is kidnapping with homicide under Art. 267, RPC. Q: On his way to buy a lotto ticket, a policeman suddenly found himself surrounded by four men. One of them wrestled the police officer to the ground and disarmed him while the other three companions who were armed with a hunting knife, an ice pick, and a balisong, repeatedly stabbed him. The policeman died as a result of the multiple stab wounds inflicted by his assailants. What crime or crimes were committed? Discuss fully. (1995) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

A: All the assailants are liable for the crime of murder, qualified by treachery, (which absorbed abuse of superior strength) as the attack was sudden and unexpected and the victim was totally defenseless. Conspiracy is obvious from the concerted acts of the assailants. Direct assault would not complex the crime, as there is no showing that the assailants knew that the victim was a policeman; even if there was knowledge, the fact is that he was not in the performance of his official duties, and therefore there is no direct assault. Q: Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings. Knowing him to be "loaded", his friends Jason, Manuel and Dave invited him to poker session at a rented beach cottage. When he was losing almost all his money which to him was his savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal he decided to take revenge on the three cheats. Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did, until they all fell asleep. When Harry saw his companions already sound asleep he hacked all of them to death. Then he remembered his losses. He rifled through the pockets of his victims and got back all the money he lost. He then ran away but not before burning the cottage to hide his misdeed. The following day police investigators found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort. After preliminary investigation, the Provincial Prosecutor charged Harry with the complex crime of arson with quadruple homicide and robbery. Was Harry properly charged? Discuss fully. (1995) A: No, Harry was not properly charged. Harry should have been charged with three (3) separate crimes, namely: murder, theft and arson. Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse of time before he decided to commit the crime and the actual commission of the crime. In addition, Harry employed means which weakened the defense of Jason, Manuel and Dave. Harry gave them the liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to carry out his plan of murder with impunity. The taking of the money from the victims was a mere afterthought of the killings. Hence, Harry committed the separate crime of theft and not the complex crime of robbery with homicide. Although theft was committed against dead persons, it is still legally possible as the offended party are the estates of the victims. In burning the cottage to hide his misdeed, Harry became liable for another separate crime, arson. This act of burning was not necessary for the consummation of the two (2) previous offenses he committed. The fact that the caretaker died from the blaze did not qualify Harry's crime into a complex crime of arson with homicide for there is no such crime. Q: Two (2) Philippine National Police (PNP) officers, X and Y, on board on motorboat with Z, a civilian as motorman, arrested A and B who were in a banca, for dynamite fishing. The latter’s banca was towed towards the municipality. On the way, the PNP motorboat was intercepted by a third banca whose occupants, C, D. and E, tried to negotiate for the

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A: C. D and E are liable for the complex crime of Murder, qualified by explosion, with direct assault for the death of X. A and B are liable for the complex crime of Murder Qualified by explosion as to death of Y, and simple Murder qualified by explosion for the death of Z. No crime of direct assault can be filed insofar as the death of Z is concerned, he being a civilian. This, of course, assumes that there is no conspiracy among A, B, C, D and E, otherwise all would have the same criminal liability as the act of one becomes the act of all. Homicide (Article 249) Q: Explain and illustrate the stages of execution of the crime of homicide, taking into account the nature of the offense, the essential element of each of the stages of execution and the manner of committing such intentional felony as distinguished from felony committed through reckless imprudence. (2012) A: Elements of the crime – Homicide as an intentional felony has three stages, attempted, frustrated and consummated. In whatever stages homicide is committed, intent to kill must be established for being an indispensible element thereof. However, if the victim died as a consequence of wounds caused by an act committed with malice, intent to kill is conclusively presumed and the crime committed is consummated homicide. Because of this conclusive presumption, lack of intent to kill is not a defense in consummated homicide. (NOTE: In consummated homicide, the accused may prove lack of intent to kill for purpose of appreciating the mitigating circumstance of praeter intentionem). But if the victim did not die as a consequence of wounds caused by an act committed with malice, intent to kill must be established beyond reasonable doubt. If intent to kill is proven, the crime committed is frustrated or attempted homicide. If intent to kill is not proven, the crime committed is physical injuries. Thus, lack of intent to kill is a defense in attempted or frustrated homicide. Nature of the crime – If the offender with intent to kill attempted to inflict or inflicted non-mortal wounds upon the victim, he already directly commenced an overt act to commit homicide. Hence, the crime committed is attempted homicide if he failed to inflict moral wounds upon the victim by reason of some cause or accident other than his own spontaneous desistance. If the offender with intent to kill inflicted mortal wounds upon the victim, he already performed all acts of execution which would produce the homicide as a consequence. If death is not produced despite the mortal character of the wounds due to causes independent of the will of the offender, the crime committed is frustrated homicide. If death is produced, the crime committed is consummated homicide. In this situation, all the elements necessary for execution and accomplishment of homicide are present if the victim dies due to the wounds inflicted by the offender with the intent to kill.

Intentional felony and culpable felony – Homicide regardless of stages must be committed with malice (general intent) and intent to kill (specific intent). Even if there is no intent to kill and evil intent, the offender is liable for culpable felony if the victim dies or was injured as a result of the recklessness of the former. If there is no intent to kill, evil intent and recklessness on the part of the accused, he is not liable for his intentional act, which caused the death of or injury upon the victim because of the exempting circumstance of accident. Q: In a free-for-all brawl that ensued after some customers inside a night club became unruly, guns were fired by a group, among them A and B, that finally put the customers back to their senses. Unfortunately, one customer died. Subsequent investigation revealed that A's gunshot had inflicted on the victim a slight wound that did not cause the deceased's death nor materially contribute to it. It was B's gunshot that inflicted a fatal wound on the deceased. A contended that his liability should, if at all, be limited to slight physical injury. Would you agree? Why? (2003) A: No, I beg to disagree with A's contention that his liability should be limited to slight physical injury only. He should be held liable for attempted homicide because he inflicted said injury with the use of a firearm which is a lethal weapon. Intent to kill is inherent in the use of a firearm (Araneta, Jr. v. CA, G.R. No. L-43527, July 3, 1990). ALTERNATIVE ANSWER: Yes, I would agree to A’s contention that his criminal liability should be for slight physical injury only, because he fired his gun only to pacify the unruly customers of the night club and therefore, without intent to kill. B’s gunshot that inflicted a fatal wound on the deceased may not be imputed to A because conspiracy cannot exist when there is a free-for-all brawl or tumultuous affray. A and B are liable only for their respective act. Q: The accused, not intending to kill the victim, treacherously shot the victim while the victim was turning his back to him. He aimed at and hit the victim only on the leg. The victim, however, died because of loss of blood. Can the accused be liable for homicide or murder, considering that treachery was clearly involved but there was no attempt to kill? Explain your answer. (1999) A: The accused is liable for the death of the victim even though he merely aimed and fired at the latter's leg, "not intending to kill the victim", considering that the gunshot was felonious and was the proximate cause of death. An offender is liable for all the direct, natural, and logical consequences of his felonious act although different from what he intended. However, since specific intent to kill is absent, the crime for said death is only homicide and not murder (People v. Pugay and Samson, G.R. No. L-74324, November 17, 1988). Q: A killed: (1) a woman with whom he lived without benefit of clergy, (2) their child who was only two days old, (3) their daughter, and (4) their adopted son. What crime or crimes did A commit? (1999) A: A committed the following crimes:

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release of A and B and their banca. The PNP officers refused and instead shouted at C, D, and E that they are all under arrest. Thereupon, C, D, and E simultaneously threw dynamite sticks at the PNP motorboats. The first explosion killed X. A and B also reacted by throwing dynamite at the PNP motorboat, its explosion killed Y and Z. What crime or crimes did A, B, C, D and E commit? (1991)

1. 2.

3. 4.

FOR CRIMINAL LAW (1991-2015)

HOMICIDE or MURDER as the case may be, for the killing of his common-law wife who is not legally considered a "spouse". INFANTICIDE for the killing of the child as said child is less than three (3) days old (Art. 255, RPC). However, the penalty corresponding to parricide shall be imposed since A is related to the child within the degree defined in the crime of parricide. PARRICIDE for the killing of their daughter, whether legitimate or illegitimate, as long as she is not less than three (3) days old at the time of the killing. MURDER for the killing of their adopted son as the relationship between A and the said son must be by blood in order for parricide to arise.

Q: Tommy saw Lino and Okito engaged in a street fight. Lino then suddenly drew his balisong and lunged at Okito. In an effort to break up the fight, Tommy tried to snatch the balisong from Lino but not before the latter had inflicted a wound on Okito. As Lino withdrew the weapon and attempted to stab Okito a second time. Tommy tried to grab the weapon again. In so doing, his left forearm was slashed. As he succeeded in snatching away the balisong with his right arm, it flew with such force, that it hit Nereo, a passerby who was seriously injured. Explain your answers fully. What is the criminal liability of Lino with respect to Okito, Tommy and Nereo? (1992) A: As far as Okito is concerned, Lino is liable for frustrated homicide, assuming that the wound suffered by Okito is such that for reasons or causes independent of the will of Lino (such as timely medical attention) Okito would have died. If the injury is not serious enough, the liability is only attempted homicide. Intent to kill is manifest because of the use of a deadly weapon. For the injury on the arm of Tommy, Uno is liable only for physical injuries (serious, less serious or slight, depending on the nature of the injury). Apparently there is no intent to kill. For Nereo, Lino should be liable for serious physical injuries as the wounding of Nereo was the natural and logical consequence of Lino’s felonious act. Death Caused in a Tumultuous Affray (Article 251) Q: A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z, members of a rival fraternity. A rumble ensued in which the above named members of the two fraternities assaulted each other in a confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities who took part in the rumble were charged for death caused in a tumultuous affray. Will the charge prosper? Explain. (2010) A: No, the charge of death caused in the tumultuous affray will not prosper. In death caused by tumultuous affray under Art. 251 of the RPC, it is essential that the person involved did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. In this case, there is no tumultuous affray since the participants in the rumble belong to organized fraternities. The killer of A, a member of the SFC Fraternity could not be any other but member of the rival fraternity. Conspiracy is therefore present among the attackers from the rival fraternity and thus rules out UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

the idea of an affray. The liability of the attackers should be collective for the crime of homicide or murder as the case may be. Q: During a town fiesta, a free-for-all fight erupted in the public plaza. As a result of the tumultuous affray, A sustained one fatal and three superficial stab wounds. He died a day after. B, C, D and E were proven to be participants in the "rumble", each using a knife against A, but it could not be ascertained who among them inflicted the mortal injury. Who shall be held criminally liable for the death of A and for what? (1997) A: B, C, D, and E being participants in the tumultuous affray and having been proven to have inflicted serious physical injuries, or at least, employed violence upon A, are criminally liable for the latter's death. And because it cannot be ascertained who among them inflicted the mortal injury on A, there being a free-for-all fight or tumultuous affray. B, C, D, and E are all liable for the crime of death caused in a tumultuous affray under Art. 251 of the RPC. Giving Assistance to Suicide (Article 253) Q: Francis and Joan were sweethearts, but their parents had objected to their relationship because they were first cousins. They forged a pact in writing to commit suicide. The agreement was shoot each other in the head which they did. Joan died. Due to medical assistance, Francis survived. Is Francis criminally liable for the death of Joan? Explain. (2008) A: Yes, Francis is criminally liable for Joan’s death. His act of shooting her, although done pursuant to a solemn pact, is nevertheless felonious and is the proximate cause of Joan’s death (Art. 4[1], RPC). Moreover, the mere act of giving assistance to a suicide is a crime (Art. 253, RPC). Infanticide (Article 255) Q: Ana has been a bar girl/GRO at a beer house for more than 2 years. She fell in love with Oniok, the bartender, who impregnated her. But Ana did not inform him about her condition and instead, went home to Cebu to conceal her shame. However, her parents drove her away. So she returned to Manila and stayed with Oniok in his boarding house. Upon learning of her pregnancy, already in an advanced state, Oniok tried to persuade her to undergo an abortion, but she refused. Because of their constant and bitter quarrels, she suffered birth pangs and gave birth prematurely to a live baby girl while Oniok was at his place of work. Upon coming home and learning what happened, he prevailed upon Ana to conceal her dishonor. Hence, they placed the infant in a shoe box and threw it into a nearby creek. However, an inquisitive neighbor saw them and with the help of others, retrieved the infant who was already dead from drowning. The incident was reported to the police who arrested Ana and Oniok. The 2 were charged with parricide under Article 246 of the Revised Penal Code. After trial, they were convicted of the crime charged. Was the conviction correct? (2006)

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Rape (Article 266–A) Q: What other acts are considered rape under the Anti-Rape Law of 1997, amending the Revised Penal Code? (2002) A: The other acts considered rape under the Anti-Rape Law of 1997 are: 1. having carnal knowledge of a woman by a man by means of fraudulent machination or grave abuse of authority; 2. having carnal knowledge of a demented woman by a man even if none of the circumstances required in rape be present; and 3. committing an act of sexual assault by inserting a person’s penis into the victim’s mouth or anal orifice, or by inserting any instrument or object, into the genital or anal orifice of another person. Q: 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? (2015) A: The CA ruling is correct. The crime committed by Charlie is simple rape. To be held liable for qualified rape, a qualifying circumstance should be alleged in the information and proven by evidence beyond reasonable doubt. Although minority and step-relationship as a qualifying circumstance are alleged in the information, what is proven by the evidence is the qualifying circumstance of minority and common-law relationship with the mother of the victim. The concept of steprelationship is different from that of common-law relationship because in the former the mother of the victim and the offender are legally married while in the latter they are not. To appreciate this qualifying circumstance of minority and common-law relationship will offend the constitutional right of the accused to be informed of the nature of the crime charged against him. Q: The Anti-Rape Law of 1997 reclassified rape from a crime against honor, a private offense, to that of a crime against persons. Will the subsequent marriage of the offender and the offended party extinguish the criminal action or the penalty imposed? Explain. (2002) A: Yes. By express provision of Article 266-C of the RPC, as amended, the subsequent valid marriage between the offender and offended party shall extinguish the criminal action or the penalty imposed,

although rape has been reclassified from a crime against chastity, to that of a crime against persons. Q: GV was convicted of raping TC, his niece, and he was sentenced to death. It was alleged in the information that the victim was a minor below seven years old, and her mother testified that she was only six years and ten months old, which her aunt corroborated on the witness stand. The information also alleged that the accused was the victim's uncle, a fact proved by the prosecution. On automatic review before the Supreme Court, accused-appellant contends that capital punishment could not be imposed on him because of the inadequacy of the charges and the insufficiency of the evidence to prove all the elements of the heinous crime of rape beyond reasonable doubt. Is appellant's contention correct? Reason briefly. (2004) A: Yes, appellant's contention is correct insofar as the age of the victim is concerned. The age of the victim raped has not been proved beyond reasonable doubt to constitute the crime as qualified rape and deserving of the death penalty. The guidelines in appreciating age as a qualifying circumstance in rape cases have not been met, to wit: 1. The primary evidence of the age of the victim is her birth certificate; 2. In the absence of the birth certificate, age of the victim maybe proven by authentic document, such as baptismal certificate and school records; 3. If the aforesaid documents are shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible of the victim's mother or any member of the family, by consanguinity or affinity, who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient but only under the following circumstances: (a) If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; (b) If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; (c) If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age under the circumstances above-stated, complainant's sole testimony can suffice, provided that it is expressly and clearly admitted by the accused (People v. Pruna, G.R. No. 138471, October 10, 2002). Q: A, a male, takes B, another male, to a motel and there, through threat and intimidation, succeeds in inserting his penis into the anus of B. What, if any, is A’s criminal liability? Why? (2002) A: A shall be criminally liable for rape by committing an act of sexual assault against B, by inserting his penis into the anus of the latter. Even a man may be a victim of rape by sexual assault under par. 2 of Article 266-A of the RPC, as amended, "when the offender's penis is inserted into his mouth or anal orifice." Q: Flordeluna boarded a taxi on her way home to Quezon City which was driven by Roger, Flordeluna

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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A: The conviction of Ana and Oniok is not correct. They are liable for infanticide because they killed a child less than three days of age. (Art. 255, RPC) In this case, Ana gave birth to a live baby girl, thus the victim is already viable and breathing on its own upon separation from womb. Infanticide involves a killing where the victim is already a person.

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noticed that Roger was always placing his car freshener in front of the car aircon ventilation but did not bother asking Roger why. Suddenly, Flordeluna felt dizzy and became unconscious. Instead of bringing her to Quezon City, Roger brought Flordeluna to his house in Cavite where she was detained for two (2) weeks. She was raped for the entire duration of her detention. May Roger be charged and convicted of the crime of rape with serious illegal detention? Explain. (2000) A: No, Roger may not be charged and convicted of the crime of rape with serious illegal detention. Roger may be charged and convicted of multiple rapes. Each rape is a distinct offense and should be punished separately. Evidently, his principal intention was to abuse Flordeluna; the detention was only incidental to the rape. Q: King went to the house of Laura who was alone. Laura offered him a drink and after consuming three bottles of beer, King made advances to her and with force and violence ravished her. Then King killed Laura and took her jewelry. Doming, King’s adopted brother, learned about the incident. He went to Laura's house, hid her body, cleaned everything and washed the bloodstains inside the room. Later, King gave Jose, his legitimate brother, one piece of jewelry belonging to Laura. Jose knew that the jewelry was taken from Laura but nonetheless he sold it for P2,000. What crime or crimes did King, Doming and Jose commit? Discuss their criminal liabilities. (1998) A: King committed the composite crime of Rape with homicide as a single indivisible offense, not a complex crime. His act of taking Laura's jewelry when she is already dead likewise constitute theft. Doming’s acts, having been done with knowledge of the commission of the crime and done to conceal the body to prevent its discovery, makes him an accessory to the crime of rape with homicide (Art. 19[2], RPC) but he is exempt from criminal liability (Art. 20, RPC) being an adopted brother of the principal. Jose incurs criminal liability either as an accessory to the crime of theft or a fence. Although he is a legitimate brother of King, the exemption under Art. 20 does not include the participation he did because he profited from the effect of such theft. Q: The complainant, an eighteen-year old mental retardate with an intellectual capacity between the ages of nine and twelve years, when asked during the trial how she felt when she was raped by the accused, replied "Masarap, it gave me much pleasure." With the claim of the accused that the complainant consented for a fee to the sexual intercourse, and with the foregoing answer of the complainant, would you convict the accused of rape if you were the judge trying the case? Explain. (1996) A: Yes, I would convict the accused of rape. Since the victim is a mental retardate with an intellectual capacity of a child less than 12 years old, she is legally incapable of giving a valid consent to the sexual intercourse. The sexual intercourse is tantamount to a statutory rape because the level of intelligence is that of a child less than twelve years of age. Where the victim of rape is a mental retardate, violence or intimidation is not essential to constitute rape. As a matter of fact, R.A. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

7659, the Heinous Crimes Law, amended Art. 335, RPC, by adding the phrase "or is demented." Q: Gavino boxed his wife Alma for refusing to sleep with him. He then violently threw her on the floor and forced her to have sexual intercourse with him. As a result Alma suffered serious physical injuries. Can Gavino be charged with rape? Explain. (1995) A: Yes. A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent sexual intercourse, albeit within the realm of marriage, if not consensual, is rape. (People vs. Jumawan, G.R. No. 187495, April 21, 2014). NOTE: Prior to R.A. 8353 (Anti-Rape Law), a husband cannot be guilty of rape committed upon his wife because of the matrimonial consent which she gave when she assumed the marriage relation. However, under Art. 266-C of R.A. 8353, a husband may be guilty of rape of his wife if it is the legal husband who is the offender. DOCTRINE NO LONGER CONTROLLING: A: No. A husband cannot be charged with the rape of his wife because of the matrimonial consent which she gave when she assumed the marriage relation, and the law will not permit her to retract in order to charge her husband with the offense (Sate v. Haines, 11 La. Ann. 731 So. 372; 441 RA 837). Q: Three policemen conducting routine surveillance of a cogonal area in Antipole chanced upon Ruben, a 15-year old tricycle driver, on top of Rowena who was known to be a child prostitute. Both were naked from the waist down and appeared to be enjoying the sexual activity. Ruben was arrested by the policemen despite his protestations that Rowena enticed him to have sex with her in advance celebration of her twelfth birthday. The town physician found no semen nor any bleeding on Rowena's hymen but for a healed scar. Her hymenal opening easily admitted two fingers showing that no external force had been employed on her. Is Ruben liable for any offense? Discuss fully. (1995) A: Ruben is liable for rape, even if force or intimidation is not present. The gravamen of the offense is the carnal knowledge of a woman below twelve years of age (People v. Dela Cruz, G.R. No. L-30912 April 30, 1980) since the law doesn't consider the consent voluntary and presumes that a girl below twelve years old does not and cannot have a will of her own. In People v. Perez, CA 37 OG 1762, it was held that sexual intercourse with a prostitute below twelve years old is rape. Similarly, the absence of spermatozoa does not disprove the consummation as the important consideration is not the emission but the penetration of the female body by the male organ. Q: Ariel intimidated Rachel, a mental retardate, with a bolo into having sexual intercourse with him. Rachel's mother immediately filed a complaint, supported by her sworn statement, before the City Prosecutor's Office. After the necessary preliminary

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a.

Citing Art. 344 of the RPC, Ariel moves for the dismissal of the case. Resolve with reason. (1993)

A: The case should not be dismissed. This is allowed by law. It is enough that a complaint was filed by the offended party or the parents in the Fiscal's Office. b. After the prosecution had rested its case, Ariel presented a sworn affidavit of desistance executed by Rachel and her mother stating that they are no longer interested in prosecuting the case and that they have pardoned Ariel. What effect would this affidavit of desistance have on the criminal and civil aspects of the case? Explain fully. (1993, 1991) A: The case should not be dismissed. While the affidavit of desistance executed by the victim amounts to a pardon, the same does not extinguish criminal liability. In the crime of rape, pardon by the offended party only bars prosecution if given before the institution of the criminal action. After the criminal action had been instituted, such pardon only waives the civil liability but not the criminal liability of the offender.

Anti-Hazing Law (R.A. No. 8049) Q: What is hazing as defined by law? (2002) A: Hazing, as defined by law, is an initiation rite or practice as a prerequisite for admission into membership In a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. Q: What does the law require before initiation rites may be performed? (2002) A: Section 2 of Rep. Act No. 8049 (Anti-Hazing Law) requires that before hazing or initiation rites may be performed, notice to the school authorities or head of organizations shall be given seven (7) days before the conduct of such rites. The written notice shall indicate (a) the period of the initiation activities, not exceeding three (3) days; (b) the names of those to be subjected to such activities, and (c) an undertaking that no physical violence shall be employed by anybody during such initiation rites.

Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act (R.A. No. 7610, as amended) Q: Eduardo Quintos, a widower for the past 10 years, felt that his retirement at the age of 70 gave him the opportunity to engage in his favorite pastime —voyeurism. If not using his high-powered binoculars to peep at his neighbor's homes and domestic activities, his second choice was to follow sweet young girls. One day, he trailed a teenage girl up to the LRT station at EDSA-Buendia. While ascending the stairs, he stayed one step behind her

and in a moment of bravado, placed his hand on her left hip and gently massaged it. She screamed and shouted for help. Eduardo was arrested and charged with acts of lasciviousness. Is the designation of the crime correct? (2006) A: No. The crime should be Other Acts of Child Abuse under Section 10(b) of R.A. 7610 of Section 3 that refers to child abuse committed by any act, deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. In relation thereto, Section 10 provides criminal liability for other acts of child abuse, cruelty or exploitation, or for other conditions prejudicial to the child's development. The reaction of the victim, screaming for help upon the occurrence of the touching indicates that she perceived her dignity was being debased or violated. Q: Mrs. MNA was charged of child abuse. It appears from the evidence that she failed to give immediately the required medical attention to her adopted child, BPO, when he was accidentally bumped by her car, resulting in his head injuries and impaired vision that could lead to night blindness. The accused, according to the social worker on the case, used to whip him when he failed to come home on time from school. Also, to punish him for carelessness in washing dishes, she sometimes sent him to bed without supper. She moved to quash the charge on the ground that there is no evidence she maltreated her adopted child habitually. She added that the accident was caused by her driver’s negligence. She did punish her ward for naughtiness or carelessness, but only mildly. Is her motion meritorious? Reason briefly. (2004) A: No, the motion to quash is not meritorious. It is not necessary that movant’s maltreatment of a child be "habitual" to constitute child abuse. The wrongful acts penalized as "Child Abuse" under R.A. 7610 refers to the maltreatment of the child, "whether habitual or not": this is expressly stated in Sec. 2(b) of the said law. Mrs. MNA should be liable for child abuse. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY (Articles 267-292)

Kidnapping and Serious Illegal Detention (Article 267) Q: Sexy boarded a taxi on her way home from a party. Because she was already tipsy, she fell asleep. Pogi, the taxi driver, decided to take advantage of the situation and drove Sexy to a deserted place where he raped her for a period of two (2) weeks. What crime did Pogi commit? (2014) A: The crime committed by Pogi is kidnapping and Serious Illegal Detention with rape. Since Sexy was raped for two weeks, there was a clear deprivation of liberty, which constitutes the crime of kidnapping with serious illegal detention. The crime is committed when one kidnaps or detains another, or in any other manner deprives her of his liberty and the kidnapping or detention has lasted more than three days or the victim is a female. Since as a consequence of the detention, the victim is raped, the crime committed is special complex crime of kidnapping with rape, the resultant crime is only one kidnapping with rape. This is because the composite acts are regarded as a single indivisible

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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investigation, an information was signed by the prosecutor but did not contain the signature of Rachel nor of her mother.

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offense as in fact R.A. 7659 punishes these acts with only a single penalty (People v. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Q: Pretty was a campus beauty queen who, because of her looks and charms, attracted many suitors. Having decided that she would become a nun, Pretty turned down all her suitors. Guapo, one of her most persistent suitors, could not handle rejection and one night, decided to accost Pretty as she walked home. Together with Pogi, Guapo forced Pretty into his car and drove her to an abandoned warehouse where he and Pogi forced Pretty to dance for them. Later, the two took turns in raping her.After satisfying their lusts, Guapo and Pogi dropped her off at her house. (2014, 2006) a.

What crime or crimes did Guapo and Pogi commit?

A: The crimes committed by Guapo and Pogi are forcible abduction with rape. There is no doubt at all that the forcible abduction of Pretty as she walked home was a necessary if not indispensible means which enabled them to commit the successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that the second rape cannot legally be considered as still connected with the abduction – in other words, the second rape would be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter (People v. Jose, G.R. No. L-28232, February 6, 1971; People v. Garcia, G.R. No. 141125, February 28, 2002). Since there is conspiracy, Guapo and Pogi are responsible not only for the rape each personally committed but also for the rape committed by his coconspirator (People v. Villa, G.R. No. L-59, June 30, 1948) b. Pretty, after the ordeal, decided to take her own life by hanging herself one hour after the rape. Would Guapo and Pogi be liable for Pretty’s death? Explain. A: Guapo and Pogi cannot be held liable for the death of Pretty due to suicide committed by reason of the rapes. Suicide is an intervening cause that breaks the connection between the rapes and death. The death resulting from suicide cannot be considered as the direct, natural and logical consequence of the rapes committed by Guapo and Pogi. In People v. Napudo (G.R. No. 168448, October 8, 2008), the victim committed suicide due to rape. However, the accused was only charged with and convicted of rape. Q: While walking alone on her way home from a party, Mildred was seized at gun point by Felipe and taken on board a tricycle to a house some distance away. Felipe was with Julio, Roldan, and Lucio, who drove the tricycle. At the house, Felipe, Julio, and Roldan succeeded in having sexual intercourse with Mildred against her will and under the threat of Felipe's gun. Lucio was not around when the sexual assaults took place as he left after bringing his colleagues and Mildred to their destination, but he returned everyday to bring food and the news in town about Mildred's disappearance. For five days, Felipe, Julio and Roldan kept Mildred in the house and took turns in sexually assaulting her. On the 6th UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

day, Mildred managed to escape; she proceeded immediately to the nearest police station and narrated her ordeal. What crime/s did Felipe, Julio, Roldan, and Lucio commit and what was their degree of participation? (2013) A: Felipe, Julio, Roldan and Lucio are all liable of the special complex crime of kidnapping and serious illegal detention with rape. It was sufficiently proved that the four kidnapped Madrid and held her in detention for five days and carnally abused her. Notably, however, no matter how many rapes have been committed in the special complex crime of kinapping with rape, the resultant crime is only one kidnapping with rape. The composite acts are regarded as a single indivisible offense with only one penalty. The offense is not forcible abduction with rape since it was obvious that the intent is to detain the victim. As to the degree of their participation, all of them are principally liable because of implied conspiracy as they acted toward a single criminal design or purpose (People v. Miranda, Jr., G.R. No. 186417, July 27, 2011). Albeit, Lucio was not around when the sexual assault took place, his complicity is evident as he was the one who drove the tricycle and returned every day to bring food and news to his cohorts. Q: Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!" Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6year-old child, son of a multi-millionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse. What crime or crimes, if any, did Virgilio commit? Explain. (2009) A: The crime committed against Jeremias, the 6 year-old child, is Kidnapping and Serious Illegal Detention under Art 267(4), RPC. The evident criminal intent of the offender, Virgilio, is to lock up the child to demand ransom. Whether or not the ransom was eventually obtained will not affect the crime committed because the demand for ransom is not an element of the crime; it only qualifies the penalty to death but the imposition of this penalty is now prohibited by R.A. No. 9346. As to Daday, the nanny of the child who was told to remain in the van and take care of the child until the ransom is paid, the crime committed is Serious Illegal Detention because the offended party deprived of liberty is a female (Art. 267[4], RPC). As to Juanito, the driver of the van who was seriously intimidated with a gun pointed at him and directed to stop the van and allow the gun-man to board the same, and thereafter to drive to a deserted place, the crime committed by Virgilio is Grave Coercion (Art. 286, RPC) and Slight Illegal Detention (Art. 268, RPC) for holding the driver before he was allowed to go.

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QuAMTO for CRIMINAL LAW (1991-2015) Q: Jaime, Andy and Jimmy, laborers in the noodles factory of Luke Tan, agreed to kill him due to his arrogance and miserliness. One afternoon, they seized him and loaded him in a taxi driven by Mario. They told Mario they will only teach Luke a lesson in Christian humility. Mario drove them to a fishpond in Navotas where Luke was entrusted to Emil and Louie, the fishpond caretakers, asking them to hide Luke in their shack because he was running from the NBI. The trio then left in Mario's car for Manila where they called up Luke's family and threatened them to kill Luke unless they give a ransom within 24 hours. Unknown to them, because of a leak, the kidnapping was announced over the radio and TV. Emil and Louie heard the broadcast and panicked, especially when the announcer stated that there is a shoot-to-kill order for the kidnappers. Emil and Louie took Luke to the seashore of Dagat-dagatan where they smashed his head with a shovel and buried him in the sand. However, they were seen by a barangay kagawad who arrested them and brought them to the police station. Upon interrogation, they confessed and pointed to Jaime, Andy, Jimmy and Mario as those responsible for the kidnapping. Later, the 4 were arrested and charged. What crime or crimes did the 6 suspects commit? (2006)

with homicide and shall be penalized with the maximum penalty. In this case, notwithstanding the fact that the one-week-old child was merely kept in the attic of his house, gagged with stockings and placed in a box sealed with tape, the deprivation of liberty and the intention to kill becomes apparent. Though it may appear that the means employed by Paz was attended by treachery (killing of an infant), nevertheless, a separate charge of murder will not be proper in view of the amendment. Here, the term "homicide" is used in its generic sense and covers all forms of killing whether in the nature of murder or otherwise. It is of no moment that the evidence shows the death of the child took place three minutes after the box was sealed and the demand for the ransom took place in the afternoon. The intention is controlling here, that is, ransom was demanded.

A: Jaime, Andy and Jimmy committed kidnapping with homicide. The original intention was to demand ransom from the family with the threat of killing. As a consequence of the kidnapping, however, Luke was killed. Thus, the victim was deprived of his freedom and the subsequent killing, though committed by another person, was a consequence of the detention. Hence, this properly qualified the crime as the special complex crime of kidnapping for ransom with homicide. Emil and Louie who smashed the head of the victim and buried the latter in the sand committed murder qualified by treachery or abuse of superior strength. They are not liable for kidnapping because they did not conspire, nor are they aware of the intention to detain Luke whom they were informed was hiding from the NBI. Mario has no liability since he was not aware of the criminal intent and design of Jaime, Andy and Jimmy. His act of bringing Luke to Navotas for "a lesson in Christian humility" does not constitute a crime.

A: No. DAN's defense will not prosper. Voluntary release by the offender of the offended party in kidnapping is not absolutory. Besides, such release is irrelevant and immaterial in this case because the victim being a minor, the crime committed is kidnapping and serious illegal detention under Art. 267 to which such circumstance does not apply. The circumstance may be appreciated only in the crime of Slight Illegal Detention in Art. 268.

A: Paz committed the composite crime of kidnapping with homicide under Art. 267, RPC as amended by R.A. No. 7659. Under the law, any person who shall detain another or in any manner deprive him of liberty and the victim dies as a consequence is liable for kidnapping

Q: A and B conspiring with each other, kidnapped C and detained him. The duo then called up C's wife informing her that they had her husband and would release him only if she paid a ransom in the amount of P10,000,000 and that, if she were to fail, they would kill him. The next day, C, who had just recovered from an illness had a relapse. Fearing he might die if not treated at once by a doctor, A and B released C during the early morning of the third day of detention. Charged with kidnapping and serious illegal detention provided in Article 267, RPC, A and B filed a petition for bail. They contended that since they had voluntarily released C within three days from commencement of the detention, without having been paid any amount of the ransom demanded and before the institution of criminal proceedings against them, the crime committed was only slight illegal detention prescribed in Article 268, RPC. After hearing, the trial court found the evidence of guilt to be strong and therefore denied the petition for bail. On appeal, the only issue was: Was the crime committed kidnapping and serious detention or slight illegal detention? Decide. (1997) A: The crime committed by A and B is kidnapping and serious illegal detention because they made a demand for ransom and threatened to kill C if the latter's wife did not pay the same. Without the demand for ransom, the crime could have been slight illegal detention only. The contention of A and B that they had voluntary released C within three days from the commencement of the detention is immaterial as they are charged with a crime where the penalty prescribed is death (Asistio v. San

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Q: Paz Masipag worked as a housemaid and yaya of the one week old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked Martin for a cash advance of P1,000.00 but Martin refused. One morning, Paz gagged the mouth of Martin’s son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000.00 as ransom for the release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? Explain. (2005)

Q: DAN, a private individual, kidnapped CHU, a minor. On the second day, DAN released CHU even before any criminal information was filed against him. At the trial of his case, DAN raised the defense that he did not incur any criminal liability since he released the child before the lapse of the 3-day period and before criminal proceedings for kidnapping were instituted. Will DAN's defense prosper? Reason briefly. (2004)

FOR CRIMINAL LAW (1991-2015)

Diego, G.R. No. L-21991 March 31, 1964). They were properly denied bail because the trial court found that the evidence of guilt in the information for kidnapping and serious Illegal detention is strong. Q: Edgardo induced his friend Vicente, in consideration of money, to kidnap a girl he is courting so that he may succeed to raping her and eventually making her accede to marry him. Vicente asked for more money which Edgardo failed to put up. Angered because Edgardo did not put up the money he required, he reported Edgardo to the police. May Edgardo be charged with attempted kidnapping? Explain. (1996) A: No, Edgardo may not be charged with attempted kidnapping inasmuch as no overt act to kidnap or restrain the liberty of the girl had been commenced. At most, what Edgardo has done in the premises was a proposal to Vicente to kidnap the girl, which is only a preparatory act and not an overt act. The attempt to commit a felony commences with the commission of overt act, not preparatory act. Proposal to commit kidnapping is not a crime. REPEATED DOCTRINE Q: A charged B with the crime of rape. While the case was pending in court, B, together with his mother and brother, overpowered A while riding a tricycle, dragged her inside a carinderia owned by them and detained her for two (2) days. They demanded that she sign an affidavit of desistance and reimburse B the sum of P5,000.00 which he paid to his lawyer in the case. She was released only after she signed the affidavit asking for the dismissal of the case and delivered to B P1,000.00. She promised to deliver the balance of P4.000.00 thirty (30) days later. What crime or crimes was/were committed by B, his mother, and brother? (1991) A: This is kidnapping with Ransom which is kidnapping or illegal detention committed by a private person for the purpose of extorting ransom. Since the victim is a woman, it is serious. Kidnapping of Minors (Article 270 – 271) Q: A and B were legally separated. Their child C, a minor, was placed in the custody of A the mother, subject to monthly visitations by B, his father. On one occasion, when B had C in his company, B decided not to return C to his mother. Instead, B took C with him to the United States where he intended for them to reside permanently. What crime, if any, did B commit? Why? (2002) A: B committed the crime of kidnapping and failure to return a minor under Art. 271, in relation to Art. 270, of the RPC, as amended. Art. 271 expressly penalizes any parent who shall take from and deliberately fail to restore his or her minor child to the parent or guardian to whom custody of the minor has been placed. Since the custody of C, the minor, has been given to the mother and B has only the right of monthly visitation, the latter's act of taking C to the United States, to reside there permanently, constitutes a violation of said provisions of law. Slavery and Servitude (Article 272 – 274) UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: The creditor who resorts to forced labor of a child under the pretext of reimbursing himself for the debt incurred by the child’s father commits the crime of slavery. (2009) A: False, the proper offense is exploitation of child labor (Art. 273, RPC). Exploitation of child labor is committed by a person, who under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall against the minor‟s will, retain him in his services. Q: Aling Maria received an urgent telephone call from Junior, her eldest son, asking for P2,000.00 to complete his semestral tuition fees preparatory to his final exams in Commerce. Distressed and disturbed, she borrowed money from her compadre Mang Juan with the assurance to pay him within 2 months. Two months lapsed but Aling Maria failed to settle her obligation. Mang Juan told Aling Maria that she does not have to pay the loan if she will allow her youngest 10-year old daughter Annie to work as a housemaid in his house for 2 months at Pl,000.00 a month. Despite Aling Maria's objection, Mang Juan insisted and brought Annie to his house to work as a maid. a.

Was a crime committed by Mang Juan when he brought Annie to his house as maid for the purpose of repaying her mother's loan? (2006)

A: Yes. Mang Juan committed the crime of exploitation of child labor which is committed by any persons who under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service (Art. 273, RPC). He can also be liable as an employer for the employment of a minor below 15 yrs. old, under Sec. 12, Art. 8 of R.A.7610. b. If Aling Maria herself was made to work as a house-maid in Mang Juan's household to pay her loan, did he commit a crime? A: Yes. Mang Juan committed the crime of involuntary servitude for rendering services under compulsion and payment of debts. This is committed by any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm labourer (Art. 274, RPC). Trespass to Dwelling (Article 280-281) Q: What is the difference between violation of domicile and trespass to dwelling? (2002) A: The differences between violation of domicile and trespass to dwelling are: a. The offender in violation of domicile is a public officer acting under color of authority; in trespass to dwelling, the offender is a private person or public officer acting in a private capacity. b. Violation of domicile is committed in 3 different ways: (1) by entering the dwelling of another against the will of the latter, (2) searching papers and other effects inside the dwelling without the previous consent of the owner or (3) refusing to leave the premises which he entered surreptitiously, after being required to leave the premises. Trespass

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Q: Under what situations may a private person enter any dwelling, residence, or other establishments without being liable for trespass to dwelling? (2006) A: A private person may enter a dwelling, residence, or other establishment without being liable for trespass to dwelling in the following situations: a. where a person so enters to avoid some serious harm to himself; or b. he did so to save or help an occupant thereof or some other person from serious harm; c. where a person so enters to render service to humanity or to the cause of justice; and d. where a person enters establishments which cater to public service while still open for such patronage (RPC, Art. 280 last par.) e. if a public officer or person authorized is conducting a valid arrest or valid search and seizure (Rules on Criminal Procedure, Rule 113). Q: At about 11:00 in the evening, Dante forced his way inside the house of Mamerto. Jay, Mamerto's son, saw Dante and accosted him, Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered Injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained Injuries that incapacitated him for 25 days. What crime or crimes did Dante commit? (1994) A: Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified trespass to dwelling should not be complexed with frustrated homicide because when the trespass is committed as a means to commit a more serious offense, trespass to dwelling is absorbed by the greater crime, and the former constitutes an aggravating circumstance of dwelling (People v. Abedosa, G.R. No. L28600, March 21, 1928). Threats and Coercion (Article 282 – 289) Q: Distinguish coercion from illegal detention. (1999) A: Coercion may be distinguished from illegal detention as follows: In coercion, the basis of criminal liability is the employment of violence or serious intimidation approximating violence, without authority of law, to prevent a person from doing something not prohibited by law or to compel him to do something against his will, whether it be right or wrong. In illegal detention, the basis of liability is the actual restraint or locking up of a person, thereby depriving him of his liberty without authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of illegal detention is not committed. Grave Coercion Q: Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the

law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw from him a confession which was their intention to obtain through the employment of such means. What crime was committed by the agents of the law? Explain your answer. (1999) A: In this case the suspect was forcibly brought to the police headquarters to make him admit the crime and was tortured or maltreated to make him confess to such crime, but later released because the agents failed to draw such confession, thus the crime of grave coercion is committed because of the violence employed to compel such confession without the offended party being confined in jail (US v. Cusi, G.R. No. L-3699, March 18, 1908). It is noted that the offended party was merely "brought" to the police headquarters and is thus not a detention prisoner. Had he been validly arrested, the crime committed would be maltreatment of prisoners. ALTERNATIVE ANSWER: Evidently, the person tortured and maltreated by the agents of the law is a suspect and may have been detained by them. If so and he had already been booked and put in jail, the crime is maltreatment of prisoner and the fact that the suspect was subjected to torture to extort a confession would bring about a higher penalty in addition to the offender's liability for the physical injuries inflicted. Q: Isagani lost his gold necklace bearing his initials. He saw Roy wearing the said necklace. Isagani asked Roy to return to him the necklace as it belongs to him, but Roy refused. Isagani then drew his gun and told Roy, "If you will not give back the necklace to me, I will kill you!" Out of fear for his life and against his will, Roy gave the necklace to Isagani, What offense did Isagani commit? (1998) A: Isagani committed the crime of grave coercion (Art. 286, RPC) for compelling Roy, by means of serious threats or intimidation, to do something against the latter's will, whether it be right or wrong. Serious threats or intimidation approximating violence constitute grave coercion, not grave threats. Such is the nature of the threat in this case because it was committed with a gun, is a deadly weapon. The crime is not robbery because intent to gain, which is an essential element of robbery, is absent since the necklace belongs to Isagani. Light Coercion Q: A widower of ten years, septuagenarian Canuto felt that he had license to engage in voyeurism. If not peeping into his neighbors’ rooms through his powerful single-cylinder telescope, he would trail young, shapely damsels along the hallways of shopping malls. While going up the escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was apprehended and brought up on inquest. What charge/s, if any, may he be held responsible for? Explain. (2010) A: Canuto may be held liable only for the milder crime of “unjust vexation” which is a form of light coercion under Art. 287 of the RPC, instead of the crime of acts of lasciviousness although the offender is known for his voyeurism. Our RPC inclines towards milder criminal

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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to dwelling is committed only in one way; that is, by entering the dwelling of another against the express or implied will of the latter.

FOR CRIMINAL LAW (1991-2015)

responsibility, consistent with the presumption of innocence under our fundamental law and the rule of pro reo permeating our system of applying penal laws. Holding the hip of a person is not per se lascivious but undoubtedly annoys, irritates, and vexed the young offended party. The attitude to prosecute the offender for the milder crime of unjust vexation may be proper considering his age and civil status. Q: Pinky was a lessee of a market stall owned by Giovanni. When Pinky refused to pay her rental, Giovanni nailed some wooden barricades on one of the sides of the market stall and posted this warning: “We have closed this portion of the door. Do not open it or else something may happen to you.” What crime/s did Giovanni commit, if any? Explain your answer. (2007) A: The crime committed by Giovanni is light coercion under Art. 287 of the RPC, commonly referred to as unjust vexation. Although what was done by Giovanni could reasonably be assumed as retaliation to the lessee’s refusal to pay rent, absent any clear violence in the premises, such would not bring about a case of grave coercion. The situation should be interpreted liberally in favor of the offender. The rule of pro reo precludes any finding for grave coercion, because it would be against the offender. The written warning which states “or else something may happen to you” is so equivocal that it may not be interpreted as felonious. A crime is never presumed; it is the contrary that is presumed. ALTERNATIVE ANSWER: The crime committed by Giovanni is grave coercion because barricading one of the sides of the market stall was an act of violence deliberately done. It is not only an act of unjust vexation or light coercion but of grave coercion. Q: When is embracing, kissing and touching a girl's breast considered only unjust vexation instead of acts of lasciviousness? (1994) A: The acts of embracing and kissing of a woman arising either out of passion or other motive and the touching of her breast as a mere incident of the embrace without lewd design constitutes merely unjust vexation. However, where the kissing, embracing and the touching of the breast of a woman are done with lewd design, the same constitute acts of lasciviousness. CRIMES AGAINTS PROPERTY (Articles 293-332) Robbery (Article 293-305) Q: A, B, and C agreed to rob the house of Mr. D at 10 o’clock in the evening, with C as the driver of the tricycle which they would use in going to and leaving the house of Mr. D, and A and B as the ones who would enter the house to get the valuables of Mr. D. As planned, C parked the tricycle in a dark place, while A and B entered the house thru an open door. Once inside, A entered the master’s bedroom and started getting all the valuables he could see, while B entered another room. While inside the room, B saw a male person and immediately B brought out his gun but he accidentally pulled its trigger. The bullet went through the window, hitting a neighbor that killed him. Neighbors were then awakened by the gunfire and policemen were alerted. Not long after, UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

policemen arrived. A and B panicked and got hold of a young boy and shouted to the policemen who were already outside of the house that they would harm the boy if the policemen did not disperse. A and B demanded that they should be allowed to use a vehicle to bring them to a certain place and that would be the time that they would release the young boy. The policemen acceded. In the meantime, C was arrested by the policemen while he was about to flee, while A and B, after releasing the young boy, were arrested. What crime/s did A, B, and Ccommit, and what modifying circumstances attended the commission of the crime/s? (2014) A: A, B and C committed the crime of robbery with homicide under Art. 294(1) of the RPC. It is immaterial that the death of the person occurred by mere accident, as long as homicide is produced by reason or on occasion of the robbery, the crime is robbery with homicide as it is only the result, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration they are not liable for the detention of the boy as illegal detention is absorbed by the crime of robbery. The modifying circumstance of dwelling attended the commission of the crime. The settled rule is that dwelling is aggravating in robbery with homicide. Q: Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from rival fraternities, they all carry guns wherever they go. One night, after attending a party, they boarded a taxicab, held the driver at gunpoint and took the latter’s earnings. (2010) a.

What crime, if any, did the four commit?

A: The crime committed is robbery by a band since there were four (4) offenders acting in concert in committing the robbery and all the four were armed. b. Would your answer be the same if they killed the driver? Explain. A: No, the crime becomes robbery with homicide and all the fraternity brothers are liable. The existence of a band shall be appreciated only as generic aggravating circumstance. Also, if the firearms used were unlicensed, the same would only be taken as generic aggravating circumstance as provided by R.A. 8294. Q: While Alfredo, Braulio, Ciriaco, and Domingo were robbing a bank, policemen arrived. A firefight ensued between the bank robbers and the responding policemen, and one of the policemen was killed. (2009) a.

What crime or crimes, if any, had been committed? Explain.

A: The crimes committed are Robbery with Homicide (Art 294[1] RPC), a single indivisible offense, and Direct Assault with Multiple Attempted Homicide, a complex crime. Robbery with Homicide was committed because one of the responding policemen was killed by reason or on occasion of the robbery being committed. The complex crime of Direct Assault with Multiple Attempted Homicide was committed in respect of the offender’s firing guns at the responding policemen who

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b. Suppose it was Alfredo who was killed by the responding policemen, what charges can be filed against Braulio, Ciriaco and Domingo? Explain. A: The crime of which Braulio, Ciriaco and Domingo can be charged is Robbery with Homicide (Art. 294[1], RPC) because the killing resulted by reason or on the occasion of the robbery. It is of no moment that the person killed is one of the robbers. A killing by reason or on the occasion of the robbery, whether deliberate or accidental, will be a component of the crime of Robbery with Homicide, a single indivisible offense, as long as it is intimately connected to the robbery. c.

Suppose in the course of the robbery, before the policemen arrived, Braulio shot and killed Alfredo following a heated disagreement on who should carry the money bags, what would be the criminal liability of Braulio, Ciriaco and Domingo? Explain.

A: Braulio shall be liable for Robbery with Homicide (Art. 294[1], RPC) for killing Alfredo, since the killing was by reason of the robbery. Ciriaco and Domingo having conspired only in the commission of the robbery, should incur liability only for the crime conspired upon—the robbery, unless they were with Braulio during the killing and could have prevented the same but they did not, in which case they shall also be liable for Robbery with Homicide. It is of no moment that the person killed is one of the robbers and he was killed during the robbery. Q: Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon went inside the bank, but were unable to get any money from the vault because the same was protected by a timedelay mechanism. They contended themselves with the customer’s cellphones and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan pulled the car out of the curb, hitting a pedestrian which resulted in the latter’s death. What crime or crimes did Jervis, Marlon and Jonathan commit? Explain your answer. (2007) A: Jervis, Marlon and Jonathan committed robbery with homicide, because there was conspiracy among them to commit the robbery and the death of the pedestrian was caused on the occasion of the robbery. Even though the death was accidental, it is enough that such death was caused by any of the robber’s felonious act and on the occasion of the commission of the robbery (People v. Guiapar, G.R. No. L-35465, May 31, 1984). Q: Jose employed Mario as gardener and Henry as cook. They learned that Jose won P500,000.00 in the lotto, and decided to rob him. Mario positioned himself about 30 meters away from Jose’s house and acted as lookout. For his part, Henry surreptitiously gained entry into the house and killed Jose who was then having his dinner. Henry found the P500,000.00 and took it. Henry then took a can of gasoline from the garage and burned the house to conceal the acts. Mario and Henry fled, but were arrested around 200 meters away from the house by alert barangay tanods. The tanods recovered the P500,000.00. Mario and Henry were charged with

and convicted of robbery with homicide, with the aggravating circumstances of arson, dwelling, and nighttime. Mario moved to reconsider the decision maintaining that he was not at the scene of the crime and was not aware that Henry killed the victim; hence, he was guilty only of robbery, as an accomplice. Mario also claimed that he conspired with Henry to commit robbery but not to kill Jose. Henry, likewise, moved to reconsider the decision, asserting that he is liable only for attempted robbery with homicide with no aggravating circumstance, considering that he and Mario did not benefit from the P500,000.00. He further alleged that arson is a felony and not an aggravating circumstance; dwelling is not aggravating in attempted robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at the time he was killed. Resolve with reasons the respective motions of Mario and Henry. (2005) A: Mario is not correct. Mario conspired and acted in concert with Henry to commit robbery. Hence, the act of one is the act of all and the extent of the specific participation of each individual conspirator becomes secondary, each being held liable for the criminal deed(s) executed by another or others. As a conspirator, Mario casts his lot with his fellow conspirators and becomes liable to any third person who may get killed in the course of implementing the criminal design. Henry is incorrect, since he acquired possession of the money. The crime of robbery with force and intimidation is consummated when the robber acquires possession of the property, even if for a short time. It is no defense that they had no opportunity to dispose of or benefit from the money taken. Since the crime in robbery with force and intimidation against persons (robbery with homicide), dwelling is aggravating. Arson, which accompanied the crime of robbery with homicide is absorbed (Art. 294, RPC as amended by R.A. 7659) and is not aggravating because the RPC does not provide that such crime is an aggravating circumstance (People v. Regala, G.R. No. 130508, April 5, 2000). Nighttime, likewise, is not aggravating. There is no showing that the same was purposely sought by the offenders to facilitate the commission of the crime or impunity. Q: Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of the windows in her house. After taking her personal properties and as they were about to leave, XA decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her bedroom and did nothing to prevent XA from raping OD. What crime or crimes did XA, YB and ZC commit, and what is the criminal liability of each? Explain briefly. (2004, 1998) A: The crime committed by XA, YB and ZC is the composite crime of Robbery with Rape, a single, indivisible offense under Art. 294(1) of the RPC. Although the conspiracy among the offenders was only to commit robbery and only XA raped CD, the other robbers, YB and ZC, were present and aware of the rape being committed by their co-conspirator. Having done nothing to stop XA from committing the rape, YB and ZC thereby concurred in the commission of the rape by their co-conspirator XA. The criminal liability of all, XA, YZ and ZC, shall be the same, as principals in the special complex crime of robbery with rape which is a

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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are agents of person in authority performing their duty when fired at to frustrate such performance (People v. Ladjaalam, G.R. Nos. 136149-51, September 19, 2000).

FOR CRIMINAL LAW (1991-2015)

single, indivisible offense where the rape accompanying the robbery is just a component.

What charge or charges should be filed against A? Explain. (2001)

Q: A learned two days ago that B had received dollar bills amounting to $10,000 from his daughter working in the United States. With the intention of robbing B of those dollars, A entered B's house at midnight, armed with a knife which he used to gain entry, and began quietly searching the drawers, shelves, and other likely receptacles of the cash. While doing that, B awoke, rushed out from the bedroom, and grappled with A for the possession of the knife which A was then holding. After stabbing B to death, A turned over B's pillow and found the latter's wallet underneath the pillow, which was bulging with the dollar bills he was looking for. A took the bills and left the house. What crime or crimes were committed? (2003)

A: The charge for Robbery under Art. 298 of the RPC should be filed against A. Said Article provides that any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute and deliver any public instrument or document shall be held guilty of robbery. The paltik caliber .45 firearm carried by A was obviously intended to intimidate B and thus, used in the commission of the robbery. If it could be established that A had no license or permit to possess and carry such firearm, it should be taken only as special aggravating circumstance to the crime of robbery, not subject of a separate prosecution.

A: The crime committed is robbery with homicide, a composite crime. This is so because A's primordial criminal intent is to commit a robbery and in the course of the robbery, the killing of B took place. Both the robbery and the killing were consummated, thus giving rise to the special complex crime of robbery with homicide. The primary criminal intent being to commit a robbery, any killing on the "occasion" of the robbery, though not by reason thereof, is considered a component of the crime of robbery with homicide as a single indivisible offense. Q: A entered the house of another without employing force or violence upon things. He was seen by a maid who wanted to scream but was prevented from doing so because A threatened her with a gun. A then took money and other valuables and left. Is A guilty of theft or of robbery? Explain. (2002) A: A is liable for robbery because of the intimidation he employed on the maid before the taking of the money and other valuables. It is the intimidation of person relative to the taking that qualifies the crime as robbery, instead of simply theft. The non-employment of force upon things is of no moment because robbery is committed not only by employing force upon things but also by employing violence against or intimidation of persons. Q: A and B are neighbors in Barangay Nuevo I, Silang, Cavite. A is a barangay Kagawad and known to be a bully, while B is reputed to be gay but noted for his industry and economic savvy which allowed him to amass wealth in leaps and bounds, including registered and unregistered lands in several barangays. Resenting B's riches and relying on his political influence, A decided to harass and intimidate B into sharing with him some of his lands, considering that the latter was single and living alone. One night, A broke into B's house, forced him to bring out some titles and after picking out a title covering 200 square meters in their barangay, compelled B to type out a Deed of Sale conveying the said lot to him for P1.00 and other valuable considerations. All the while, A carried a paltik caliber .45 in full view of B, who signed the deed out of fear. When A later on tried to register the deed, B summoned enough courage and had A arrested and charged in court after preliminary investigation.

UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Q: A, B, C, D and B were in a beerhouse along MacArthur Highway having a drinking spree. At about 1 o'clock in the morning, they decided to leave and so asked for the bill. They pooled their money together but they were still short of P2,000.00. E then orchestrated a plan whereby A, B, C and D would go out, flag a taxicab and rob the taxi driver of all his money while E would wait for them in the beer house. A. B, C and D agreed. All armed with balisongs, A, B, C and D hailed the first taxicab they encountered. After robbing X, the driver, of his earnings, which amounted to P1,000.00 only, they needed P1 ,000.00 more to meet their bill. So, they decided to hail another taxicab and they again robbed driver T of his hard-earned money amounting to P1,000. On their way back to the beerhouse, they were apprehended by a police team upon the complaint of X, the driver of the first cab. They pointed to E as the mastermind. What crime or crimes, if any, did A, B, C, D and B commit? Explain fully. (2000) A: A. B, C, D and E are liable for two (2) counts of robbery under Art. 294 not for highway Robbery under P.D. 532. The offenders are not brigands but only committed the robbery to raise money to pay their bill because it happened that they were short of money to pay the same. Q: Distinguish Highway Robbery under Presidential Decree No. 532 from Robbery committed on a highway. (2000) A: Highway Robbery under Pres. Decree 532 differs from ordinary Robbery committed on a highway in these respects: 1. In Highway Robbery under PD 532, the robbery is committed indiscriminately against persons who commute in such highways, regardless of the potentiality they offer; while in ordinary Robbery committed on a highway, the robbery is committed only against predetermined victims; 2. It is Highway Robbery under PD 532, when the offender is a brigand or one who roams in public highways and carries out his robbery in public highways as venue, whenever the opportunity to do so arises. It is ordinary Robbery under the Revised Penal Code when the commission thereof in a public highway is only incidental and the offender is not a brigand; and 3. In Highway Robbery under PD 532, there is frequency in the commission of the robbery in public highways and against persons travelling thereat; whereas ordinary Robbery In public

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is being used by B as a bank for coins from inside their locked cabinet using their common key. Forthwith, A broke the coconut shell outside of their home in the presence of his friends. (2000) a.

What is the criminal liability of A, if any? Explain.

A: A is criminally liable for Robbery with force upon things, because the coconut shell with the coins inside, was taken with intent to gain and broken outside of their home (Art. 299[b][2], RPC). b. Is A exempted from criminal liability under Article 332 of the Revised Penal Code for being a brother of B? Explain. A: No, A is not exempt from criminal liability under Art. 332 because said Article applies only to theft, swindling or malicious mischief. Here, the crime committed is robbery. Q: Two young men, A and B, conspired to rob a residential house of things of value. They succeeded in the commission of their original plan to simply rob. A, however, was sexually aroused when he saw the lady owner of the house and so, raped her. The lady victim testified that B did not in any way participate in the rape but B watched the happening from a window and did nothing to stop the rape. Is B as criminally liable as A for robbery with rape? Explain. (1999, 1996) A: Yes, B is as criminally liable as A for the composite crime of robbery with rape under Art. 294(1). Although the conspiracy of A and B was only to rob, B was present when the rape was being committed which gave rise to a composite crime, a single indivisible offense of robbery with rape. B would not have been liable had he endeavored to prevent the commission of the rape. But since he did not when he could have done so, he in effect acquiesced with the rape as a component of the robbery and so he is also liable for robbery with rape. REPEATED DOCTRINE Q: A, B, C and D all armed, robbed a bank, and when they were about to get out of the bank, policemen came and ordered them to surrender but they fired on the police officers who fired back and shot it out with them. a.

Suppose a bank employee was killed and the bullet which killed him came from the firearm of the police officers, with what crime shall you charge A, B. C and D?

A: A, B, C and D should be charged with the crime of robbery with homicide because the death of the bank employee was brought about by the acts of said offenders on the occasion of the robbery. They shot it out with the policeman, thereby causing such death by reason or on the occasion of a robbery; hence, the composite crime of robbery with homicide.

b. Suppose it was robber D who was killed by the policemen and the prosecutor charged A, B and C with Robbery and Homicide. They demurred arguing that they (A, B and C) were not the ones who killed robber D, hence, the charge should only be Robbery. How would you resolve their argument? (1998) A: The argument is valid, considering that a separate charge for Homicide was filed. It would be different if the charge filed was for the composite crime of robbery with homicide which is a single, indivisible offense. Q: After raping the complainant in her house, the accused struck a match to smoke a cigarette before departing from the scene. The brief light from the match allowed him to notice a watch in her wrist. He demanded that she hand over the watch. When she refused, he forcibly grabbed it from her. The accused was charged with and convicted of the special complex crime of robbery with rape. Was the court correct? (1997) A: No, the court erred in convicting the accused of the special complex crime of robbery with rape. The accused should instead be held liable for two (2) separate crimes of Robbery and Rape, since the primary intent or objective of the accused was only to rape the complainant, and his commission of the robbery was merely an afterthought. The robbery must precede the rape. In order to give rise to the special complex crime for which the court convicted the accused. REPEATED QUESTION: Q: Jose, Domingo, Manolo, and Fernando, armed with bolos, at about one o'clock in the morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were living. While the four were in the process of ransacking Danilo's house, Fernando, noticing that one of Danilo's daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family. a.

What crime did Jose, Domingo, Manolo and Fernando commit? Explain.

A: Jose, Domingo, and Manolo committed Robbery, while Fernando committed complex crime of Robbery with Rape, Conspiracy can be inferred from the manner the offenders committed the robbery but the rape was committed by Fernando at a place "distant from the house" where the robbery was committed, not in the presence of the other conspirators. Hence, Fernando alone should answer for the rape, rendering him liable for the special complex crime. b. Suppose, after the robbery, the four took turns in raping the three daughters of Danilo inside the latter's house, but before they left, they killed the whole family to prevent identification, what crime did the four commit? Explain. (1996) A: The crime would be Robbery with Homicide because the killings were by reason (to prevent identification) and on the occasion of the robbery.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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highways is only occasional against a predetermined victim, without frequency in public highways.

FOR CRIMINAL LAW (1991-2015)

Q: Five robbers robbed, one after the other five houses occupied by different families located inside a compound enclosed by a six-feet high hollow block fence. How many robberies did the five commit? Explain. (1996)

BRIGANDAGE

A: The offenders committed only one robbery in the eyes of the law because when they entered the compound, they were impelled only by a single indivisible criminal resolution to commit a robbery as they were not aware that there were five families inside said compound, considering that the same was enclosed by a six-feet high hollow-block fence. The series of robbery committed in the same compound at about the same time constitutes one continued crime, motivated by one criminal impulse. REPEATED DOCTRINE Q: Victor, Ricky, Rod and Ronnie went to the store of Mang Pandoy. Victor and Ricky entered the store while Rod and Ronnie posted themselves at the door. After ordering beer Ricky complained that he was shortchanged although Mang Pandoy vehemently denied it. Suddenly Ricky whipped out a knife as he announced "Hold-up ito!" and stabbed Mang Pandoy to death. Rod boxed the store’s salesgirl Lucy to prevent her from helping Mang Pandoy. When Lucy ran out of the store to seek help from people next door she was chased by Ronnie. As soon as Ricky had stabbed Mang Pandoy, Victor scooped up the money from the cash box. Then Victor and Ricky dashed to the street and shouted, "Tumakbo na kayo!" Rod was 14 and Ronnie was 17. The money and other articles looted from the store of Mang Pandoy were later found in the houses of Victor and Ricky. Discuss fully the criminal liability of Victor, Ricky, Rod and Ronnie. (1995) A: All are liable for the special complex crime of robbery with homicide. The acts of Ricky in stabbing Mang Pandoy to death, of Rod in boxing the salesgirl to prevent her from helping Mang Pandoy, of Ronnie in chasing the salesgirl to prevent her in seeking help, of Victor in scooping up money from the cash box, and of Ricky and Victor in dashing to the street and announcing the escape, are all indicative of conspiracy. The rule is settled that when homicide takes place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide, unless the accused tried to prevent the killing. Further, the aggravating circumstance of craft could be assessed against the accused for pretending to be customers of Mang Pandoy. Brigandage (Article 306-307) Q: Who are brigands? Distinguish brigandage from robbery in band as to elements, purpose of the offender and agreement among the offenders. (2012) A: When more than three armed persons form a band of robbers for the purpose of committing robbery in the highway, or kidnapping persons for the purpose of extortion or to obtain ransom, for any other purpose to be attained by means of force and violence, they shall be deemed highway robbers or brigands (Art. 306, RPC). The following distinctions between brigandage and robbery by band: UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Elements

Purpose

Agreement

1. There are at least four persons; 2. They form a band of robbers; 3. The purpose is any of the following: (see below) 1. To commit robbery in high way; 2. Kidnap or extort or get ransom; 3. Any other purpose to be achieved by means of force or violence The agreement among more than three armed men is to commit robbery in the highway.

ROBBERY IN A BAND More than three armed malefactors take part in the commission of a robbery Commit robbery, but not necessarily in a highway.

The agreement is to commit only a particular robbery.

Theft (Article 308 – 311) Q: 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 Pl 0,000.00 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. (2015) a.

What crime, if any, did Bruno commit? Explain.

A: Bruno committed the crime of theft. The owner is known to Bruno because there are IDs found in the wallet. Failure to deliver to the local authorities or to its owner the lost property which he found constitutes theft under Article 308 of the Revised Penal Code. 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? A: The chief of police is liable for theft. Although he is not the one who found the property, he is considered as finder in fact since the property was surrendered to him by the actual finder. He acquired the position occupied by the actual finder and assumed by voluntary substitution the obligation to surrender the property to the lawful owner. Appropriating the property is of the same character of that made by one who originally found the same (People v. Avila, G.R. No. L-19786, March 31, 1923). The liability of the finder in fact is the same liability of the finder in law. Thus, what the Chief of Police committed is Theft.

TEAM BAROPS ACADEMICS COMMITTEE 2016

69

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

A: Her defense is untenable. Theft was already consummated from the taking of personal property of another with intent to gain without the consent of the latter. The presence of injury or damage is not an element of theft. Her leaving behind her own purse will not alter the fact that she took a purse from the high-end shop without the consent of the owner. Q: Madam X, a bank teller, received from depositor Madam Y a check payable to cash in the amount of P1 million, to be deposited to the account of Madam Y. Because the check was not a crossed check, Madam X credited the amount to the account of her good friend, Madam W, by accomplishing a deposit slip. Seven (7) days after, Madam X contacted her good friend, Madam W and told her that the amount of P1 million was wrongfully credited to Madam W, thus, Madam X urged Madam W to withdraw the amount of P1 million from her accountand to turn over the same to Madam X. As a dutiful friend, Madam W readily acceded. She was gifted by Madam X with an expensive Hermes bag after the withdrawal of the amount. What crime/s, if any, did Madam X and Madam W commit? Explain. (2014) A: Madam X shall be liable as principal in the crime of qualified theft committed with grave abuse of confidence defined and punishable under Art. 310 of the RPC. Being a bank teller, she had only the physical possession not juridical possession of the money received by her. Consequently, her subsequent misappropriation of the same shall constitute the crime of theft, qualified with grave absue of confidence. Madam W is not criminally liable. She had no knowledge of the crime and withdrew the money from her account and turned over the same to Madam X because of the misrepresentaition of the latter that the P1M was wrongfully deposited to her account. Her participation is not based on conspiracy or community of design, without which she cannot be held liable as principal by direct particiapation, principal by indispensable cooperation or accomplice. Receiving an expensive Hermes bag from Madam X will not make Madam W liable as an accessory since the latter has no actual knowledge of the commission of the crime of theft by the former and the bag cannot be considered as the effects of the crime since there is no showing that the money withdrawn was used in buying it. Q: Is the crime of theft susceptible of commission in the frustrated stage? Explain your answer in relation to what produces the crime of theft in its consummated stage and by way of illustration of the subjective and objective phases of the felony. (2012) A: No. Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Unlawful

taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. Thus, the theft cannot have a frustrated stage. Theft can only be attempted or consummated (Valenzuela v. People, G.R. No. 160188, June 21, 2007). Q: On her way home, Eva Marie saw an injured chow chow puppy behind a bush. Since the puppy did not have a collar, she brought it home so she could have it as a pet. Her son in fact begged Eva Marie to keep the puppy. The following day, Eva Marie bought a collar for the puppy and brought it to a veterinarian for treatment. (2010) a.

Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain.

A: Yes, Eva Marie incurred criminal liability for the crime of simple theft. The puppy is personal property which is susceptible of taking and has pecuniary value. Obviously, she took it with intent to own it; hence, with intent to gain. b. Did she incur civil liability? Explain. A: Eva Marie may incur civil liability of the owner of the puppy would incur a loss due to non-restitution or return thereof to the owner. Finding any property of value, legally regarded as lost property, would constitute theft if the finder failed to deliver the same to the local authorities or to its owner (Art. 308[1], RPC). Once Eva Marie is found guilty of theft, she will incur civil liability which consists of restitution or reparation for damage caused and indemnification for consequential damages (Art. 100, RPC). The general rule is that a person who is criminally liable is also civilly liable. Q: Paul lives with his long-time girlfriend Joan in a condominium in Makati. For more than a year, he has been secretly saving money in an envelope under their bed to buy her an engagement ring. One day, while Joan was cleaning their room, she found the envelope, took the money, and left Paul. As prosecutor, what crime, if any, would you charge Joan? Explain. (2010) A: Joan may be charged for qualified theft because she took away personal property belonging to Paul without the latter’s consent, so obviously with intent to gain, and with grave abuse of confidence. But Joan may invoke as a defense Art. 332 of the RPC, under which no criminal liability but only civil liability shall result from the crime of theft, swindling or malicious mischief committed by “spouses”, among others. The reference to “theft” under the Article embraces both simple theft and qualified theft, and the reference to “spouses” includes commonlaw or “live-in” relationships (People v. Constantino, 60 O.G. 3603, September 6, 1963). Q: Lucas had been the stay-in houseboy of spouses Nestor and Julia for five years. One night, while Nestor and Julia were out having dinner, Lucas and his friend Pedro gained entry into the masters' bedroom with the use of a false key. They found Julia's jewelry box in one of the cabinets which was unlocked. Lucas believed that Julia's jewelry inside the box. Unknown to Lucas and Pedro, the box was

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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Q: Clepto went alone to a high-end busy shop and decided to take one of the smaller purses without paying for it. Overcame by conscience, she decided to leave her own purse in place of the one she took. Her act was discovered and Clepto was charged with theft. She claimed that there was no theft, as the store suffered no injury or prejudice because she had left a purse in place of the one she took. Comment on her defense. (2014)

FOR CRIMINAL LAW (1991-2015)

empty. Pedro took the box and left the bedroom with Lucas. They were shock when they saw Nestor in the sala, pointing a gun at them. Nestor ordered them to stop and hand over the box. Pedro complied. It turned out that Nestor had just arrived in time to see Lucas and Pedro leaving the master's bedroom with the box. State with reasons, the crime or crimes, if any, Lucas and Pedro committed. (2008) A: Lucas committed qualified theft. Pedro committed simple theft only. There was taking of personal property, the jewelry box, belonging to another (Julia), with intent to gain and without the consent of the owner but without violence, intimidation of persons or force upon things. The use of a false key is legally considered as a force upon things, if used to gain entry to the house or building but not when used to enter a locked room inside such house or building. Thus, the taking only constitutes theft. The crime is qualified theft as to Lucas only, although there is evident conspiracy between him and Pedro; because the circumstance qualifying the theft is personal only to Lucas but not to Pedro. The theft is already consummated because the offenders had already taken out of the cabinet Julia’s jewelry box, which she intended to remain in the cabinet. The asportation was completed when they succeeded in taking out Julia’s jewelry box from the cabinet. Q: Eman, a vagrant, found a bag containing identification cards and a diamond ring along Roxas Blvd. Knowing that it was not his, he went to a nearest police station to seek help in finding the owner of the bag. At the precint PO1 Melvin attended to him. In the investigation Eman proposed to PO1 Melvin, "in case you don't find the owner let's just pawn straight to the pawnshop and pawned the ring for P50,000.00 Eman never saw PO1 Melvin again. (2008, 2001, 1998) a.

What is the criminal liability of Eman, If any? Explain.

A: Eman has no criminal liability, unless he received part of the proceeds of the pawned ring. The facts do not state that Eman received any part of the P50,000.00 proceeds of the ring pledged. The facts state that after turning over the bag to PO1 Melvin, Eman never saw PO1 Melvin against. The proposal Eman made to PO1 Melvin is not a crime as to bring about criminal liability. b. What is the criminal liability of PO1 Melvin, is any? Explain A: PO1 Melvin is criminally liable for theft for having pawned the ring, which he does not own, and appropriating the proceeds thereof without the consent of the owner thus demonstrating intent to gain. PO1 Melvin is simply substituted to the possession Eman had when the latter found the bag containing the ring. He was under a legal obligation to deliver it to its owner and his failure to do so amounts to a “taking” which would constitute theft when shown to be motivated by intent to gain (Art. 308[1] , RPC); People v. Avila, G.R. No. L-19786 March 31, 1923). Q: Forest Ranger Jay Velasco was patrolling the Balara Watershed and Reservoir when he noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and after a few minutes, UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

he saw Rene and Dante coming out of the gate with some more newly-cut logs. He apprehended and charged them with the proper offense. a.

What is the offense? Explain. (2006)

A: The offense is Qualified Theft under Sec. 68 of P.D. 705, amending P.D. No. 330, which penalizes any person who directly or indirectly cuts, gathers, removes, or smuggles timber, or other forest products from any of the public forest. The Balara Watershed is protected by the cited laws. b. During the preliminary investigation and up to the trial proper, Rene and Dante contended that if they were to be held liable, their liability should be limited only to the newly-cut logs found in their possession but not to those found outside the gate. If you were the judge, what will be your ruling? A: The contention is untenable, the presence of the newly cut logs outside the gate is circumstantial evidence, which, if unrebutted, establishes that they are the offenders who gathered the same. Q: DD was engaged in the warehouse business. Sometime in November 2004, he was in dire need of money. He, thus, sold merchandise deposited in his warehouse to VR for P500,000.00. DD was charged with theft, as principal, while VR as accessory. The court convicted DD of theft but acquitted VR on the ground that he purchased the merchandise in good faith. However, the court ordered VR to return the merchandise to the owner thereof and ordered DD to refund the P500,000.00 to VR. DD moved for the reconsideration of the decision insisting that he should be acquitted of theft because being the depositary, he had juridical possession of the merchandise. VR also moved for the reconsideration of the decision insisting that since he was acquitted of the crime charged, and that he purchased the merchandise in good faith, he is not obligated to return the merchandise to its owner. Rule on the motions with reasons. (2005) A: The motion for reconsideration of DD should be granted. By depositing the merchandise in his warehouse, he transferred not merely physical but also juridical possession. The element of taking in the crime of theft is wanting. At the most, he could be held liable for estafa for misappropriation of the merchandise deposited. On the other hand, the motion of VR must also be denied. His acquittal is of no moment because the thing, subject matter of the offense, shall be restored to the owner even though it is found in the possession of a third person who acquired it by lawful means (Art. 105, RPC). ALTERNATIVE ANSWER: The motion for reconsideration of DD should be denied. In this case, there being no proof that title to the goods was transferred to DD, only physical possession is presumed transferred to and obtained by DD. (U.S. v. De Vera, G.R. No. L-16961, September 19, 1921). The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused received the property and converts it to his own use or benefit. However, there maybe theft even if the accused has possession of the property, if he was entrusted only

TEAM BAROPS ACADEMICS COMMITTEE 2016

71

QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

Q: A vehicular accident occurred on the national highway in Bulacan. Among the first to arrive at the scene of the accident was A, who found one of the victims already dead and the others unconscious. Before rescuers could come, A, taking advantage of the helpless condition of the victims, took their wallets and jewelry. However, the police, who responded to the report of the accident, caught A. What crime or crimes did A commit? Why? (2002) A: A committed the crime of qualified theft because he took the wallets and jewelry of the victims with evident intent to gain and on the occasion of a vehicular accident wherein he took advantage of the helpless condition of the victims. But only one crime of qualified theft was committed although there were more than one victim divested of their valuables, because all the taking of the valuables were made on one and the same occasion, thus constituting a continued crime. Q: A fire broke out in a department store, A, taking advantage of the confusion, entered the store and carried away goods which he later sold. What crime, if any, did he commit? Why? (2002) A: A committed the crime of qualified theft because he took the goods on the occasion of and taking advantage of the fire which broke out in the department store. The occasion of a calamity such as fire, when the theft was committed, qualifies the crime under Art. 310 of the RPC, as amended. Q: Sunshine, a beauteous "colegiala" but a shoplifter, went to the Ever Department Store and proceeded to the women's wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft of the swimsuit consummated, frustrated, or attempted? Explain. (2000, 1998) A: The theft was consummated because the taking or transportation was complete. The transportation is complete when the offender acquired exclusive control of the personal property being taken; in this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store. With evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property. REPEATED DOCTRINE Q: In the jewelry section of a big department store, Julia snatched a couple of bracelets and put these in her purse. At the store's exit, however, she was

arrested by the guard after being radioed by the store personnel who caught the act in the store's moving camera. Is the crime consummated, frustrated, or attempted? (1998) A: The crime is consummated theft because the taking of the bracelets was complete after Julia succeeded in putting them in her purse. Julia acquired complete control of the bracelets after putting them in her purse; hence, the taking with intent to gain is complete and thus the crime is consummated. Q: At the height of the eruption of Mt. Pinatubo at around midnight, Aniceto joined some neighbors in evacuating his family, a few possessions and two horses to higher ground. Miguel, taking advantage of the darkness and the confusion, got one of the horses and asked his friend Doro to accompany him to Angeles City where he sold the same to an acquaintance Peping. Searching for his horse, Aniceto found it, with identifying brand intact, in the possession of Peping who refused to surrender the same saying that he had paid good money for it. Whereupon, Aniceto reported the matter to the police who promised to accompany him to the Prosecutor’s office. May Miguel and Doro be charged criminally for any offense? If you were the counsel for both, what defense could you possibly set up for them? (1992) A: Miguel should be charged of Qualified Theft of Large Cattle, a horse being classified as such under Art. 310, RPC. Doro, on the other hand, should be charged as accessory if he is aware that the horse was stolen as he assisted ' the principal, Miguel, in profiting from the crime. If I were the defense counsel, I will put up the defense of consent of the owner; hence, there is only civil liability. Usurpation (Article 312) Q: Teresita is the owner of a two-hectare land in Bulacan which she planted rice and corn. Upon her arrival from a three-month vacation in the United States, she was surprised to discover that her land had been taken over by Manuel and Teofilo who forcibly evicted her tenant-caretaker Juliana, after threatening to kill the latter if she would resist their taking of the land. Thereafter, Manuel and Teofilo plowed, cultivated and appropriated the harvest for themselves to the exclusion of Teresita. (1996) a) What crime or crimes did Manuel and Teofilo commit? Explain. A: Manuel and Teofilo committed the crime of usurpation of real rights under Art. 312, RPC, for employing violence against or intimidation of persons. The threats to kill employed by them in forcibly entering the land is the means of committing the crime and therefore absorbed in the felony, unless the intimidation resulted in a more serious felony. b) Suppose Manuel and Teofilo killed Juliana when the latter refused to surrender possession of the land, what crime or crimes did the two commit? Explain. A: The crime would still be usurpation of real rights under Art. 312, RPC, even if the said offenders killed the

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa (Santos v. People, G.R. No. 77429, January 29, 1990).

FOR CRIMINAL LAW (1991-2015)

caretaker because the killing is a violence against persons which is the means for committing the crime and as such, determinative only. However, this gives way to the proviso that the penalty provided for therein is "in addition to the penalty incurred in the acts of violence (murder or homicide) executed by them. The crime is similar to a robbery where a killing is committed by reason thereof, giving rise only to one indivisible offense, plus the fine mentioned therein. Anti-Fencing Law (P.D. 1612) and its Implementing Rules and Regulations Q: What are the elements of fencing? (2010, 1995) A: The elements of fencing are: 1. a crime of robbery or theft has been committed; 2. accused, who is not a principal or accomplice in the crime, buys, receives, possesses, keeps, acquires, conceals, or disposes, or buys and sells, or in any manner deals in any article, item , object or anything of value, which has been derived from the proceeds of said crime; 3. the accused knows or should have known that said article, item, object or anything of value has been derived from the from the proceeds of the crime of robbery or theft; and 4. there is, on the part of the accused, intent to gain for himself or for another. Q: Manolo, an avid art collector, was invited to Tonio’s house. There, Manolo noticed a nice painting that exactly looked like the painting which he reported was stolen from him some years back. Manolo confronted Tonio about the painting, but Tonio denied any knowledge, claiming that he bought the painting legitimately from a friend. Manolo later proved to Tonio that the painting was indeed the stolen painting. (2014) a) What crime/s, if any, may Tonio be charged with? A: Tonio may be charged with the crime of fencing. Under Sec. 5 of P.D. 1612, mere possession of a stolen article or object or anything of value which has been the subject of robbery or thievery is prima facie evidence of fencing. Since Tonio is in possession of a stolen property, it is presumed that he committed the crime of fencing. b) Manolo decided to take matters into his own hands and, one night, broke into Tonio’s house by destroying the wall and taking the painting. What, if any, would be the liability of Manolo? A: Manalo is liable for the crime of trespass to dwelling qualified by use of force since he entered the house of Tonio against the latter’s will. There is no robbery because the owner of the property taken cannot commit robbery. Q: Roberto bought a Toyota Fortuner from Iñigo for P500,000. While driving his newly-bought car, Roberto met a minor accident that made the examination of his vehicle's Registration Certificate necessary. When the policeman checked the plate, chassis and motor numbers of the vehicle against those reflected in the Registration Certificate, he found the chassis and motor numbers to be different from what the Registration Certificate stated. The UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Deed of Sale covering the sale of the Fortuner, signed by Iñigo, also bore the same chassis and motor numbers as Roberto's Registration Certificate. The chassis and motor numbers on the Fortuner were found, upon verification with the Land Transportation Office, to correspond to a vehicle previously reported as carnapped. Roberto claimed that he was in good faith; Iñigo sold him a carnapped vehicle and he did not know that he was buying a carnapped vehicle. If you were the prosecutor, would you or would you not charge Roberto with a crime? (2013) A: I will charge Roberto with violation of Anti-Fencing Law. In this case, someone carnapped the vehicle, sold it to Roberto who did not take part in the crime. Roberto should have known also that the car was stolen because it was not properly documented as the deed of sale and registration certificate did not reflect the correct numbers of the vehicle’s engine and chassis. Apparently, he made no effort to check the papers covering his purchase. Lastly, Roberto’s defense of good faith is flawed because P.D. 1612 is a special law and, therefore, its violation is regarded as malum prohibitum, requiring no proof of criminal intent (Dimat v. People, G.R. No. 181184, January 25, 2012). Q: Arlene is engaged in the buy and sell of used garments, more popularly known as "ukayukay." Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers. Arlene was charged with "fencing." Will the charge prosper? Why or why not? (2010) A: No, a charge of “fencing” will not prosper. “Fencing” is committed when a person, with intent to gain for himself or for another, deals in any manner with an article of value which he knows or should be known to him to have been derived from proceeds of theft or robbery (Sec. 2, P.D. 1612). Thus, for a charge of fencing to prosper, it must first be established that a theft or robbery of the article subject of the alleged “fencing” has been committed—a fact which is wanting in this case. It should be noted that the suspect is engaged in the buy and sell of used garments, which are in the nature of personal property. In civil law, possession of personal or movable property carries with it a prima facie presumption of ownership. The presumption of “fencing” arises only when the article or item involved is the subject of a robbery or thievery (Sec. 5, P.D. 1612). Q: Flora, who was engaged in the purchase and sale of jewelry, was prosecuted for the violation of P.D. 1612, otherwise known as the Anti-Fencing Law, for having been found to be in possession of recently stolen jewelry valued at P100,000.00 at her jewelry shop at Zapote Road, Las Pinas, Metro Manila. She testified during the trial that she merely bought the same from one named Cecilino and even produced a receipt covering the sale. Cecilino, in the past, used to deliver to her jewelries for sale but is presently nowhere to be found. Convicted by the trial court for violation of the Anti-Fencing Law, she argued (or her acquittal on appeal, contending that the prosecution failed to prove that she knew or should have known that the jewelries recovered from her was the proceeds of the crime of robbery or theft. (1996) A: No, Flora's defense is not well-taken because mere possession of any article of value which has been the

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QuAMTO for CRIMINAL LAW (1991-2015) subject of theft or robbery shall be prima facie evidence of fencing (P.D. 1612). The burden is upon the accused to prove that she acquired the jewelry legitimately. Her defense of having bought the jewelry from someone whose whereabouts is unknown, does not overcome the presumption of fencing against her (Pamintuan v. People, G.R. No. 111426, July 11, 1994). Buying personal property puts the buyer on caveat because of the phrases that he should have known or ought to know that it is the proceed from robbery or theft. Besides, she should have followed the administrative procedure under the decree that of getting a clearance from the authorities in case the dealer is unlicensed in order to escape liability.

times until he was dead. Raul fled from the scene taking the motorcycle with him. What crime or crimes did Raul commit? (1998)

Q: What is the difference between a fence and an accessory to theft or robbery? Explain. Is there any similarity between them? (1995)

Swindling (Estafa) and Other Deceits (Article 315-318)

Yes, there is a similarity in the sense that all the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as fencing. In fact, the accessory in the crimes of robbery or theft could be prosecuted as such under the Revised Penal Code or as a fence under P.D. No. 1612. (Dizon-Pamintuan vs. People, GR 111426, July 11, 1994) Anti-Carnapping Act of 1972 (R.A. No. 6539), as amended by R.A. No. 7659 REPEATED QUESTION Q: While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire which caused the car to veer out of control and collide with an oncoming tricycle, killing the tricycle driver. What is the criminal liability of Paolo, if any? Explain. (2008) A: Paolo is criminally liable for (1) carnapping under R.A. No. 6539 for driving away the motor vehicle of Carlos against the latter’s will and obviously with intent to gain and (2) for homicide for the death of the tricycle driver which resulted from the criminal act deliberately being committed by Paolo (which is the carnapping). The homicide was the result of praetor intentionem and not a component of the crime of carnapping or a result of reckless impurdence or of simple negligence. Q: Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One evening, Raul rode on the sidecar, poked a knife at Samuel and instructed him to go near the bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel several

Q: 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 sixty 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 unsold pieces of jewelry. Elen promised to do so the following day. El en 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 Big. 22. Will the charges against Elen prosper? Explain. (2015) A: Art. 315 par.1(b) of the RPC punishes Estafa through Misappropriation. To prove the foregoing crime, the prosecution must establish the following elements: (1) the offender’s receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return the same; (2) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property; (3) the misappropriation, conversion or denial is to the prejudice of another; and (4) demand by the offended party that the offender return the money or property received. In the case at hand, the pieces of jewelry were received by Elen from Dora, an act which transferred the juridical possession of the former. To have juridical possession means possession which gives the transferee a right over the thing which the transferee may set up against the owner. Generally, demand for the return of the thing delivered in trust is necessary before an accused is convicted of Estafa. However, if there is an agreed period for the return of the thing received in trust and the accused failed to return it within the agreed period, demand is unnecessary. Failure to return the thing within the agreed period consummates the crime of Estafa, i.e., the misappropriation of the thing received in trust. In this case, Dora and Elen agreed on a period, within 60 days, for the delivery of the proceeds of the sale and return of the unsold items to Dora. Elen’s failure to return within 60 days is a presumption of misappropriation of the

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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A: A fence is punished as a principal under P.D. No. 1612 and the penalty is higher, whereas an accessory to robbery or theft under the Revised Penal Code is punished two degrees lower than the principal, unless he bought or profited from the proceeds of theft or robbery arising from robbery in Philippine highways under P.D. No. 532 where he is punished as an accomplice, hence the penalty is one degree lower. In addition thereto fencing is a malum prohibitum and therefore there is no need to prove criminal intent of the accused; this is not so in violations of Revised Penal Code.

A: Raul committed the composite crime of Carnapping with homicide under Sec. 14 of R.A. 6539, also known as the 'Anti-Carnapping Act of 1972 as amended, considering that the killing "in the course or "on the occasion of a carnapping. A motorcycle is included in the definition of a "motor vehicle" in said Act. There is no apparent motive for the killing of the tricycle driver but for Raul to be able to take the motorcycle. The fact that the tricycle driver was killed brings about the penalty of reclusion perpetua to death.

FOR CRIMINAL LAW (1991-2015)

jewelry. Thus, there would be no more need to present any act of misappropriation. Q: Dela convinced Nita to work in Taiwan, promising Nita that she would take care of the processing of the neccessary documents. Dela collected P120,000.00 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 confronted Dela and demanded the return of her money. Dela promised to return the same in a week's time. (2015) a.

A week later, Dela was nowhere to be found. What crime(s) did Dela commit? Explain.

A: Dela defrauded Nita by leading her to believe that she has the capacity to send her to Taiwan for work, even though she does not have a license or authority for the purpose. Such misrepresentation came before Nita gave Dela P120,000 for the processing of her papers. Clearly, Nita would have not parted with her money were it not for such enticement by Dela. As a consequence of Dela’s false pretenses, Nita suffered damages as the promised employment abroad never materialized and the money she paid was never recovered. Thus, the crime of estafa through falsification of public documents is committed. Since Dela has no license to recruit, the crime of illegal recruitment is also committed. (People v. Chua, G.R. No. 187052, September 13, 2012). b. Will your answer that the promise abroad was made Emma, in addition also collected the fee?

still be the same, assuming to deploy for employment by Dela to Celia, Digna and to Nita, and from whom Dela same amount of processing

A: Yes, Dela shall be liable for both Estafa under Par.2 (a) of Art. 315 of the RPC and Illegal Recruitment, but in large-scale. Illegal recruitment is deemed committed in large scale if committed against three or more persons individually or as a group. Since there are at least 3 victims in this case, Cela, Digna, Emma, and Nita, Dela shall be liable for large scale illegal recruitment under the earlier cited provisions (People v. Tolentino, G.R. No. 208686, July 1, 2015). Q: Mr. Benjie is the owner of a hardware store specializing in the sale of plumbing materials. On February 1, 2014, Mr. Ed, a friend and regular customer of Mr. Benjie, visited the hardware store and purchased several plumbing materials in the total amount of P5 million. Mr. Benjie readily accepted Mr. Ed’s payment of three (3) postdated checks in the amount of P1 million Pesos each in view of the assurance of Mr. Ed that the checks will be honored upon presentment for payment. Mr. Benjie, as a consequence, immediately delivered the materials to the house of Mr. Ed. The following day, Mr. Ed went back to Mr. Benjie to tender another two (2) postdated checks in the amount of P1 million each to complete the payment, with the same assurance that the checks will be honored upon UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

presentment for payment. When the checks were presented for payment, all were dishonored for insufficiency of funds and corresponding notices of dishonor were sent and received by Mr. Ed. One month after receipt of the notices of dishonor, Mr. Ed failed to make good the checks. Thereafter, Mr. Benjie filed before the public prosecutor’s office a complaint against Mr. Ed, although no demand letter was earlier sent to Mr. Ed. During the preliminary investigation, Mr. Benjie accepted several amounts from Mr. Edas partial payments. The wife of Mr. Benjie protested and insisted that the complaint should continue despite the partial payments. On the other hand, Mr. Ed counters that no demand letter was earlier sent to him, that the obligation is merely civil in character and that novation took place when Mr. Benjie accepted the partial payments. Discuss the criminal liability, if any, of Mr. Ed. (2014) A: Mr. Ed is liable for one count of estafa under Art. 315(2)(d) for the issuance of the first three checks because he issued them simultaneous with the transaction in order to defraud another. However, the two other checks are deemed to have been issued in payment of a pre-existing obligation, hence the same act could not have been the efficient cause of defraudation required in estafa under the RPC. He is liable for two counts if violation of B.P. 22 for the issuance of the five checks which were dishonoured for insufficiency of funds. The gravamen of B.P. 22 is the issuance of a worthless or unfunded check. Deceit is not material to B.P. 22. Mr. Ed’s defense of partial payments constituting novation and absence of demand letter will not exculpate dim from the criminal liability incurred. The partial payments made would only affect his civil liability while his claim of absence of demand letter negated by his receipt of notices of dishonour. Q: William is the son-in-law of Mercedes who owns several pieces of real property. In 1994, William's wife, Anita, died. In 1996, William caused the preparation of a Special Power of Attorney (SPA) giving him the authority to sell two (2) parcels of land registered in the name of Mercedes. The signature of Mercedes in the SPA was forged and, through this forged SPA and without the consent and knowledge of Mercedes, William succeeded in selling the two (2) parcels for Php 2,000,000. He pocketed the proceeds of the sale. Mercedes eventually discovered William's misdeeds and filed a criminal complaint. William was subsequently charged with estafa through falsification of public document. Was the criminal charge proper? (2013) A: The criminal charge of estafa through falsification is correct. William forged the signature of his mother-inlaw in the Special Power of Attorney, which is a public document, as a necessary means to sell her properties to third parties without delivering the proceeds thereof. Although the relationship of affinity created between William and his mother-in-law survived the death of either party to the marriage, the coverage of the absolutory cause under Art. 332 (1) of the RPC cannot be applied to him. It is strictly limited to the simple crimes of theft, estafa and malicious mischief. It does not apply where any of the crimes mentioned is complex

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Q: The president, treasurer, and secretary of ABC Corporation were charged with syndicated estafa under the following Information: That on or about the 1st week of January 2010 or subsequent thereto in Cebu City and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and all of them mutually helping and aiding one another in a syndicated manner, through a corporation registered with the Securities and Exchange Commission (SEC), with intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there wilfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and several other persons by falsely or fraudulently pretending or representing in a transaction or series of transactions, which they made with complainants and the public in general, to the effect that they were in a legitimate business of foreign exchange trading successively or simultaneously operating under the name and style of ABC Corporation and DEF Management Philippines, Incorporated, induced and succeeded in inducing complainants and several other persons to give and deliver to said accused the amount of at least P20,000,000.00 on the strength of said manifestations and representations, the accused knowing fully well that the abovenamed corporations registered with the SEC are not licensed nor authorized to engage in foreign exchange trading and that such manifestations and representations to transact in foreign exchange were false and fraudulent, that these resulted to the damage and prejudice of the complainants and other persons, and that the defraudation pertains to funds solicited from the public in general by such corporations/associations. Will the case for syndicated estafa prosper? Explain. (2010) A: No, a case for syndicated estafa will not prosper because a syndicate for such crime under P.D. 1689 must be comprised of five (5) or more persons committing the estafa or other forms of swindling defined in Arts. 315 and 316 of the RPC whereas the case given involved only three (3) accused who are alleged to have conspired in the commission of the swindling. But because the amount defrauded exceeds P100,000.00, the case is still under the same P.D. 1689 with a lower penalty than syndicated estafa. Q: Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill was earning less than it actually was by writing in the “talaan” or ledger a figure lower than what was collected and paid by their customers. Fe then pocketed the difference. What crime/s did Fe commit, if any? Explain your answer. (2007)

A: If the “talaan” or ledger which Fe made to show a falsehood was a private document, the only crime that Fe committed was estafa thru abuse of confidence or unfaithfulness. Criminal liability for falsification of a private document does not arise without damage or at least proof of intent to cause damage. It cannot co-exist with the crime of estafa which is also essentially requires damage or at least proof of intent to cause damage. Since the “talaan” was falsified to cover-up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage attends the falsification, it will be the same damage or intent to cause damage that will attend the estafa. If such “talaan” or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone if done with intent to pervert the truth would bring about criminal liability for falsification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed; namely, estafa and falsification of the commercial document. The falsification should not be complexed with the estafa since it was not committed as a necessary means to commit the estafa but rather resorted to, to conceal or hide the misappropriation of the amount she pocketed. Q: DD purchased a television set for P50,000.00 with the use of a counterfeit credit card. The owner of the establishment had no inkling that the credit card used by DD was counterfeit. What crime or crimes did DD commit? Explain. (2005) A: DD committed the crime of estafa under Art. 315(2)(a) of the RPC by falsely pretending to possess credit. The elements of estafa under this penal provision are: (1) the accused defrauded another by means of deceit; and (2) damage or prejudice capable of pecuniary estimation is caused to the offended party or third party. The accused also violated R.A. No. 8484, which punishes the use or possession of fake or counterfeit credit card. Q: A sold a washing machine to B on credit with the understanding that B could return the appliance within two weeks if after testing the same, B decided not to buy it. Two weeks lapsed without B returning the appliance. A found out that B had sold the washing machine to a third party. Is B liable for estafa? Why? (2002) A: No, B is not liable for estafa because he is not just an entrustee of the washing machine which he sold; he is the owner thereof by virtue of the sale of the washing machine to him. The sale being on credit, B as buyer is only liable for the unpaid price of the washing machine; his obligation is only a civil obligation. There is no felonious misappropriation that could constitute estafa. REPEATED QUESTION Q: Mr. Carlos Gabisi, a customs guard, and Mr. Rico Yto, a private Individual, went to the office of Mr. Diether Ocuarto, a customs broker, and represented themselves as agents of Moonglow Commercial Trdg., an Importer of children's clothes and toys. Mr.

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.

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with another crime. This is because when estafa is committed through falsification of a public document, the matter acquires a very serious public dimension and goes beyond the respective rights and liabilities of family member among themselves. Effectively, when the offender resorts to an act that breaches the public interest in the integrity of public documents as a mean to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Article 332 (Intestate Estate of Carungcong v. People, G.R. No. 181409, February 11, 2010).

FOR CRIMINAL LAW (1991-2015)

Gabisi and Mr. Yto engaged Mr. Ocuarto to prepare and file with the Bureau of Customs the necessary Import Entry and Internal Revenue Declaration covering Moonglow's shipment. Mr. Gabisi and Mr. Yto submitted to Mr. Ocuarto a packing list, a commercial invoice, a bill of lading and a Sworn Import Duty Declaration which declared the shipment as children's toys, the taxes and duties of which were computed at P60,000.00. Mr. Ocuarto filed the aforementioned documents with the Manila International Container Port. However, before the shipment was released, a spot check was conducted by Customs Senior Agent James Bandido, who discovered that the contents of the van (shipment) were not children's toys as declared in the shipping documents but 1,000 units of video cassette recorders with taxes and duties computed at P600,000.00. A hold order and warrant of seizure and detention were then issued by the District Collector of Customs. Further investigation showed that Moonglow is non-existent. Consequently, Mr, Gabisi and Mr. Yto were charged with and convicted for violation of Section 3(e) of R.A. 3019 which makes it unlawful among others, for public officers to cause any undue Injury to any party, including the Government. In the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence. In their motion for reconsideration, the accused alleged that the decision was erroneous because the crime was not consummated but was only at an attempted stage, and that in fact the Government did not suffer any undue injury.Assuming that the attempted or frustrated stage of the violation charged is not punishable, may the accused be nevertheless convicted for an offense punished by the Revised Penal Code under the facts of the case? Explain. (2000) A: Yes, both are liable for attempted estafa thru falsification of commercial documents, a complex crime. They tried to defraud the Government with the use of false commercial and public documents. Damage is not necessary. Q: Is there such a crime as estafa through negligence? Explain. (1999) A: There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally, through his own acts. In the case of People v. Nepomuceno (CA, 460G 6135), it was held that the mere negligence in allowing another to take advantage of or benefit from the entrusted chattel cannot constitute estafa. Q: Aurelia introduced Rosa to Victoria, a dealer in jewelry who does business in Timog, Quezon City. Rosa, a resident of Cebu City, agreed to sell a diamond ring and bracelet to Victoria on a commission basis, on condition that, if these items cannot be sold, they may be returned to Victoria forthwith. Unable to sell the ring and bracelet, Rosa delivered both items to Aurelia in Cebu City with the understanding that Aurelia shall, in turn, return the items to Victoria in Timog, Quezon City. Aurelia dutifully returned the bracelet to Victoria but sold the ring kept the cash proceeds thereof to her and issued a check to Victoria which bounced. Victoria sued Rosa for estafa under Article 315, R.P.C.. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

Victoria insisting that delivery to a third person of the thing held in trust is not a defense in estafa. Is Rosa criminally liable for estafa under the circumstances? Explain. (1999) A: No, Rosa cannot be held criminally liable for estafa. Although she received the jewelry from Victoria under an obligation to return the same or deliver the proceeds thereof, she did not misappropriate it. In fact, she gave them to Aurelia specifically to be returned to Victoria. The misappropriation was done by Aurelia, and absent the showing of any conspiracy between Aurelia and Rosa, the latter cannot be held criminally liable for Amelia's acts. Furthermore, as explained above, Rosa's negligence which may have allowed Aurelia to misappropriate the jewelry does not make her criminally liable for estafa. Q: Divina, is the owner of a 500-square meter residential lot in Makati City covered by TCT No. 1998. As her son needed money for his trip abroad, Divina mortgaged her lot to her neighbor Dino for P1,000,000. Later Divina sold the same lot to Angel for P2,000,000. In the Deed of Sale, she expressly stated that the property is free from any lien or encumbrance. What crime, if any, did Divina commit? (1998) A: Divina committed estafa or swindling under Art. 316(2) of the RPC because, knowing that the real property being sold is encumbered, she still made a misrepresentation in the Deed of Sale that the same is free from any lien or encumbrance. There is thus a deceit or fraud causing damage to the buyer of the lot. Q: On March 31, 1995, Orpheus Financing Corp. received from Maricar the sum of P500,000 as money market placement for sixty days at fifteen (15) per cent interest, and the President of said Corp. issued a check covering the amount including the interest due thereon, postdated May 30, 1995. On the maturity date, however, Orpheus Financing Corp. failed to deliver back Maricar's money placement with the corresponding interest earned, notwithstanding repeated demands upon said Corporation to comply with its commitment. Did the President of Orpheus Financing Corporation incur any criminal liability for estafa for reason of the non-payment of the money market placement? Explain. (1996) A: No, the President of the financing corporation does not incur criminal liability for estafa because a money market transaction partakes of the nature of a loan, such that non-payment thereof would not give rise to estafa through misappropriation or conversion. In money market placement, there is transfer of ownership of the money to be invested and therefore the liability for its return is civil in nature. Q: Julio obtained a letter of credit from a local bank in order to import auto tires from Japan. To secure payment of his letter of credit, Julio executed a trust receipt in favor of the bank. Upon arrival of the tires, Julio sold them but did not deliver the proceeds to the bank. Julio was charged with estafa under P.D. No. 115 which makes the violation of a trust receipt agreement punishable as estafa under Art. 315, par. (1), subpar. (b), of the Revised Penal Code. Julio contended that P.D. No. 115 was unconstitutional

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QuAMTO for CRIMINAL LAW (1991-2015)

A: Such contention is invalid. A trust receipt arrangement doesn't involve merely a simple loan transaction but includes likewise a security feature where the creditor bank extends financial assistance to the debtor-importer in return for the collateral or security title as to the goods or merchandise being security is the one sought to be protected and not the loan which is a separate and distinct agreement. What is being penalized under P.D. 115 is the misuse or misappropriation of the goods or proceeds realized from the sale of the goods, documents or instruments which are being held in trust for the entrustee-banks. In other words, the law punishes the dishonesty and abuse of confidence in the handling of money or goods to the prejudice of the other, and hence there is no violation of the right against imprisonment for non-payment of debt (People v. Nitafan, G.R. Nos. 81559-60, Apri 6, 1992). Bouncing Checks Law (B.P. Blg. 22), plus Administrative Circular No. 12-2000 Q: Frank borrowed P1,000,000 from his brother Eric. To pay the loan, Frank issued a post-dated check to be presented for payment a month after the transaction. Two days before maturity, Frank called Eric telling him he had insufficient funds and requested that the deposit of the check be deferred. Nevertheless, Eric deposited the check and it was dishonored. When Frank failed to pay despite demand, Eric filed a complaint against him for violation of Batas Pambansa Big. 22 (The Bouncing Checks Law). Was the charge brought against Frank correct? (2013) A: Yes, the charge brought against Frank is correct. Violation of B.P. 22 is malum prohibitum which is committed by mere issuance of a check. Good faith is not a defense. As long as the check was issued on account or for value, the purpose for which the check was issued, the terms and conditions relating to the issuance are irrelevant to the prosecution of the offender. For this reason, the request of Frank to defer the deposit of the check as it has insufficient funds will not militate against his prosecution for B.P. 22. Despite notice, Frank can still be charged. Moreover, if what is charged is Estafa, Frank, being a brother of the offended party, cannot be held criminally liable under Art. 332, RPC. Q: A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a postdated check in the sum of P90,000.00. Both of them knew that the check would not be honored because B’s account had just been closed. The two then approached trader C whom they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the check for payment on due date, it was dishonored because the account had already been closed. What action/s may C commence against A and B to hold them to account for the loss of her P85,000.00? Explain. (2010, 1992) A: A criminal action for violation of B.P. 22 may be filed against B who drew the postdated check against a closed bank account, for value paid by C, and with knowledge at

the time he issued the check that the account thereof is already closed. A cannot be held liable under B.P. 22 because he was a mere endorser of B’s check to C who exchanged the checks with cash. B.P. 22 does not apply to endorser of checks. Hence only a civil action may be filed by C against A to recover to P85,000.00. Although a simultaneous action for estafa is authorized by law for the issuance of a worthless check, under the given facts, the check was discounted and thus issued in a credit transaction for a pre-existing indebtedness. Criminal liability for estafa does not arise when a check has been issued in payment for a pre-existing debt. Q: A and B agreed to meet at the latter's house to discuss B's financial problems. On his way, one of A's car tires blew up. Before A left following the meeting, he asked B to lend him money to buy a new spare tire. B had temporarily exhausted his bank deposits, leaving a zero balance. Anticipating, however, a replenishment of his account soon, B issued A a postdated check with which A negotiated for a new tire. When presented, the check bounced for lack of funds. The tire company filed a criminal case against A and B. What would be the criminal liability, if any, of each of the two accused? Explain. (2003) A: A who negotiated the unfunded check of B in buying a new tire for his car may only be prosecuted for estafa if he was aware at the time of such negotiation that the check has no sufficient funds in the drawee bank; otherwise, he is not criminally liable. B who accommodated A with his check may nevertheless be prosecuted under B.P. 22 for having issued the check, knowing at the time of issuance that it has no funds in the bank and that A will negotiate it to buy a new tire, i.e., for value. B may not be prosecuted for estafa because the facts indicate that he is not actuated by intent to defraud in issuing the check which A negotiated. Obviously, B issued the postdated check only to help A; criminal intent or dolo is absent. Q: A a businessman, borrowed P500,000.00 from B, a friend. To pay the loan, A issued a postdated check to be presented for payment 30 days after the transaction. Two days before the maturity date of the check, A called up B and told him not to deposit the check on the date stated on the face thereof, as A had not deposited in the drawee bank the amount needed to cover the check. Nevertheless, B deposited the check in question and the same was dishonored of insufficiency of funds. A failed to settle the amount with B in spite of the latter's demands. Is A guilty of violating B.P. Blg. 22, otherwise known as the Bouncing Checks Law? Explain. (2002) A: Yes, A Is liable for violation of B.P. 22. Although knowledge by the drawer of insufficiency or lack of funds at the time of the issuance of the check is an essential element of the violation, the law presumes prima facie such knowledge, unless within five (5) banking days of notice of dishonor or non-payment, the drawer pays the holder thereof the amount due thereon or makes arrangements for payment in full by the drawee of such checks. A mere notice by the drawer A to the payee B before the maturity date of the check will not defeat the presumption of knowledge created by the law; otherwise, the purpose and spirit of B.P. 22 will be rendered useless.

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because it violated the Bill of Rights provision against imprisonment for non-payment of debt. Rule on the contention of Julio, Discuss fully. (1995)

FOR CRIMINAL LAW (1991-2015)

Q: The accused was convicted under B.P. Blg. 22 for having issued several checks which were dishonored by the drawee bank on their due date because the accused closed her account after the issuance of checks. On appeal, she argued that she could not be convicted under B.P. Blg. 22 by reason of the closing of her account because said law applies solely to checks dishonored by reason of insufficiency of funds and that at the time she issued the checks concerned, she had adequate funds in the bank. While she admits that she may be held liable for estafa under Article 215 of the Revised Penal Code, she cannot however be found guilty of having violated B.P. Blg. 22. Is her contention correct? Explain. (1996) A: No, the contention of the accused is not correct. As long as the checks issued were issued to apply on account or for value, and was dishonored upon presentation for payment to the drawee bank for lack of insufficient funds on their due date, such act falls within the ambit of B.P. 22. Said law expressly punishes any person who may have insufficient funds in the drawee bank when he issues the check, but fails to keep sufficient funds to cover the full amount of the check when presented to the drawee bank within ninety (90) days from the date appearing thereon. Q: What is a memorandum check? Is the "bouncing" thereof within the purview of BP Blg. 22? (1995, 1994) A: A memorandum check is an ordinary check with the word “Memorandum”,“Memo", or “Mem" written across the face, signifying that the maker or drawer engages to pay its holder absolutely thus partaking the nature of a promissory note. It is drawn on a bank and is a bill of exchange within the purview of Sec. 185 of the Negotiable Instruments Law. Yes, a person who issued a memorandum check without sufficient funds is guilty of violating B.P. Big. 22 as said law covers all checks whether it is an evidence of indebtedness, or in payment of a pre-existing obligation, or as deposit or guarantee. (People vs. Nitafan, G.R. No. 75954,1992) Q: Jane is a money lender. Edmund is a businessman who has been borrowing money from Jane by rediscounting his personal checks to pay his loans. In March 1989, he borrowed P100,000 from Jane and issued to her a check for the same amount. The check was dishonored by the drawee bank for having been drawn against a closed account. When Edmund was notified of the dishonor of his check he promised to raise the amount within five days. He failed. Consequently, Jane sued Edmund for violation of the Bouncing Checks Law (B.P. Blg. 22). The defense of Edmund was that he gave the check to Jane to serve as a memorandum of his indebtedness to her and was not supposed to be encashed. Is the defense of Edmund valid? Discuss fully. (1995) A: The defense of Edmund is not valid. A memorandum check upon presentment is generally accepted by the bank. It does not matter whether the check is in the nature of a memorandum as evidence of indebtedness. What the law punishes is the mere issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating thereto. UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

The mere act of issuing a worthless check is a malum prohibitum. The understanding that the check will not be presented at the bank but will be redeemed by the maker when the loan falls due is a mere private arrangement which may not prevail to exempt it from the penal sanction of B.P. Blg. 22. Arson (Anti-Arson Law or P.D. 1613 and Article 320, RPC as amended by R.A. 7659) Q: 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. (2015) A: Senio is liable for attempted arson. He manifested before his intention to burn the house of Bal to his friends. He then performed the act of pouring gasoline around the walls of the house to execute his criminal design to commit arson. This is not just a preparatory act, because it already ceased to be equivocal and revealed a clear intention to burn the house. In sum, he already commenced the commission of the crime of arson directly by overt acts but he did not perform all acts to execute his criminal design to commit arson by setting the house on fire due to a cause other than his spontaneous desistance, and that is, having been caught by the police. ALTERNATIVE ANSWER: The crime could only be malicious mischief as the problem does not mention that he is carrying a match or a lighter. It was not shown that SEnio was about to light a match or ignite a lighter to set the house on fire. Q: CD is the stepfather of FEL. One day, CD got very mad at FEL for failing in his college courses. In his fury, CD got the leather suitcase of FEL and burned it together with all its contents. What crime was committed by CD? (2004) A: The crime committed by CD is arson under P.D. 1613 (the new Arson Law) which punishes any person who burns or sets fire to the property of another (Sec. 1, P.D. 1613). CD is criminally liable although he is the stepfather of FEL whose property he burnt, because such relationship is not exempting from criminal liability in the crime of arson but only in crimes of theft, swindling or estafa, and malicious mischief (Art. 332, RPC). The provision (Art. 323, RPC) of the Code to the effect that burning property of small value should be punished as malicious mischief has long been repealed by P.D. 1613; hence, there is no more legal basis to consider burning property of small value as malicious mischief. Q: One early evening, there was a fight between Eddie Gutierrez and Mario Cortez. Later that evening, at about 11 o'clock, Eddie passed by the

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015)

A: Eddie is liable for destructive arson in the consummated stage. It is destructive arson because fire was resorted to in destroying the house of Mario which is an inhabited house or dwelling. The arson is consummated because the house was in fact already burned although not totally. In arson, it is not required that the premises be totally burned for the crime to be consummated. It is enough that the premises suffer destruction by burning. Q: Tata owns a three-storey building located at No. 3 Herran Street. Paco, Manila. She wanted to construct a new building but had no money to finance the construction. So, she insured the building for P3,000,000.00. She then urged Yoboy and Yongsi, for monetary consideration, to bum her building so she could collect the insurance proceeds. Yoboy and Yongsi burned the said building resulting to its total loss. What crime did Tata, Yoboy and Yongsi commit? (1994) A: Tata, Yoboy and Yongsi committed the crime of destructive arson because they collectively caused the destruction of property by means of fire under the circumstances which exposed to danger the life or property of others. CRIMES AGAINST CHASTITY (Articles 333-334, 336-346) Adultery and Concubinage (Art. 333-334) Q: 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 ed. 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. (2015) a.

May Hector's charge of adultery against Wendy and Ariel prosper? Explain.

A: Yes, Hector’s charge of Adultery will prosper. Adultery has the following elements: (1) the woman is married; (2) she has sexual intercourse with a man not her husband; (3) as regards the man with whom she has sexual intercourse, he must know her to be married. In the case at hand, the discovery by Hector of the video of Wendy having sexual intercourse with another man,

Ariel, is sufficient to charge his wife with Adultery. The fact that Wendy was later discovered by Hector to be born male who simply underwent sexual re-assignment later in life, is immaterial to the charge of Adultery considering that the marriage between the same sex is considered valid in the USA where they were married. b. What is an impossible crime? Can there be an impossible crime of adultery? A: An impossible crime is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. There is no impossible crime of adultery since this is a crime against chastity, and not against person or property. Q: Suspecting that her husband of twenty years was having an affair, Leilanie hired a private investigator to spy on him. After two weeks, the private investigator showed Leilanie a video of her husband having sexual intercourse with another woman in a room of a five-star hotel. Based on what she saw on the video, Leilanie accused her husband of concubinage. Will the case of concubinage prosper? Explain. (2010) A: No, a case for concubinage will not prosper because said crime may be committed only be a husband in three (3) ways, viz: a. By keeping a mistress in the conjugal dwelling; or b. By having sexual intercourse with a woman not his wife under scandalous circumstances; or c. By cohabiting with a woman not his wife in any other place (Art. 334, RPC) The facts of the case given do not constitute any of the situations above-stated. Q: A, a married woman, had sexual intercourse with a man who was not her husband. The man did not know she was married. What crime, if any, did each of them commit? Why? (2002) A: A, the married woman, committed the crime of adultery under Art. 333 of the RPC, as amended, for having sexual intercourse with a man not her husband while her marriage is still subsisting. But the man who had carnal knowledge of her, not knowing her to be married, shall not be liable for adultery. Q: A is married. He has a paramour with whom he has sexual relations on a more or less regular basis. They meet at least once a week in hotels, motels and other places where they can be alone. Is A guilty of any crime? Why? (2002) A: A is guilty of the crime of concubinage by having sexual intercourse under scandalous circumstances with a woman who is not his wife. Having sexual relations on a more or less regular basis in hotels, motels and other places may be considered a scandalous circumstance that offends public conscience, giving rise to criticism and general protest such acts being imprudent and wanton and setting a bad example. Acts of Lasciviousness (Article 336) Q: At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive dance

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house of Mario carrying a plastic bag containing gasoline, threw the bag at the house of Mario who was inside the house watching television, and then lit it. The front wall of the house started blazing and some neighbors yelled and shouted. Forthwith, Mario poured water on the burning portion of the house. Neighbors also rushed in to help put the fire under control before any great damage could be inflicted and before the flames have extensively spread. Only a portion of the house was burned. Discuss Eddie's liability. (2000)

FOR CRIMINAL LAW (1991-2015)

number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn’s buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her. (2009) a.

What crime or crimes, if any, did Leoncio commit? Explain.

A: Leoncio committed the crime of unjust vexation only because the act was done in the course of dancing. The act of dipping his private parts in Evelyn’s buttocks during a very seductive dance, although offensive to Evelyn, may be viewed as part of a dirty dancing. Lewd intent cannot simply be presumed from the act of dirty dancing. The fact that the act was perpetrated in a public place and with an audience negates lewd designs or lascivious intent, which is essential in the crime of acts of lasciviousness. b. Would your answer be the same if, even after the music had stopped, Leoncio continued to dance dirty, rubbing his private parts on Evelyn’s buttocks? Explain. A: The crime would then be acts of lasciviousness. That the music for dancing had already stopped puts an end to any pretense of dancing by Leoncio. His continued dirty acts absent the dancing as there was no music anymore is patently lewd and lascivious. More so, Evelyn already protested Leoncio’s lewd acts in the course of dancing. So where the dance ended, Leoncio’s continued dirty acts cannot be veiled as still part of dancing. Q: Eduardo Quintos, a widower for the past 10 years, felt that his retirement at the age of 70 gave him the opportunity to engage in his favorite pastime —voyeurism. If not using his high-powered binoculars to peep at his neighbor's homes and domestic activities, his second choice was to follow sweet young girls. One day, he trailed a teenage girl up to the LRT station at EDSA-Buendia. While ascending the stairs, he stayed one step behind her and in a moment of bravado, placed his hand on her left hip and gently massaged it. She screamed and shouted for help. Eduardo was arrested and charged with acts of lasciviousness. Is the designation of the crime correct? (2006) A: The designation of the crime as acts of lasciviousness is not correct. There is no lewd design exhibited by Eduardo when he placed his hand on the left hip of the victim and gently massaging it. The overt act he committed by Eduardo still falls short of the crime of acts of lasciviousness. The nature of the act done does not manifest sexual desire. It is more appropriate to consider such overt act as as unjust for causing annoyance, irritation or disturbance to the victim. The Revised Penal Code favors a milder criminal responsibility. ALTERNATIVE ANSWER: A: The crime should be Other Acts of Child Abuse under Section 10(b) of R.A. 7610 of Section 3 that refers to child abuse committed by any act, deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. In relation thereto, Section 10 provides criminal liability for other acts of child abuse, cruelty or exploitation, or for other conditions prejudicial to the child's development. The UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

reaction of the victim, screaming for help upon the occurrence of the touching indicates that she perceived her dignity was being debased or violated. CRIMES AGAINST CIVIL THE CIVIL STATUS OF PERSONS (Articles 347-352) Illegal Marriages (Articles 349-352) Q: What are the elements of the crime of bigamy? If you were the judge in a bigamy case where the defense was able to prove that the first marriage was null and void or a nullity, would you render a judgment of conviction or acquittal? Explain your answer. (2012, 1996) A: the following are the elements of bigamy: 1. the offender has been legally married; 2. the marriage has not been legally dissolved or, in case of absence, the absent spouse vould not yet be presumed dead according to NCC; 3. he contracts a second or subsequent marriage; and 4. the subsequent marriage has all the essential requisites for validity (Mercado v. Tan, G.R. No. 137110, 2000) If I were the judge, I will render judgment of conviction. Proof that the first marriage is null and void is not a defense in bigamy. As long as the previous marriage was not lawfully dissolved or judicially declared as null and void, contracting a new marriage constitutes bigamy (People v. Manuel, G.R. No. 165842, November 29, 2005). Q: Assuming the existence of the first marriage when accused contracted the second marriage and the subsequent judicial declaration of nullity of the second marriage on the ground of psychological incapacity, would you render a judgment of conviction or acquittal? Explain your answer. (2012) A: I will render a judgment of conviction. A declaration of the nullity of the second marriage on the ground of psychological incapacity is absolutely of no moment insofar as the State’s penal laws are concerned. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Although the judicial declaration of nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of marriage insofar as the vinculum between the spouses is concerned, it is significant to note that the said marriage is not without legal effects. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment (Tenebro v. CA, G.R. No. 150758, February 18, 2004). REPEATED QUESTION: Q: Hubert and Eunice were married in the Philippines. Hubert took graduate studies in New York and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The first wife, Eunice, heard about the marriage and secures a copy of the marriage contract in New York. (2008, 1994)

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015) Eunice filed a case of Bigamy against Hubert in the Philippines. Will the case prosper? Explain.

A: No, a case for bigamy filed in the Philippines will not prosper because the bigamous marriage appears to have been committed in New York, U.S.A., not in the Philippines. The governing rule of procedure as to the place where the criminal action is to be instituted directs that the criminal action should be instituted and tried in the court of the municipality or territory where the offense was committed, or where any of its essential ingredients occurred if it were a continuing crime. In criminal cases, the venue where the action should be instituted is jurisdictional; if this is not complied with, it would render the prosecution invalid or void. b. If Eunice gave her consent to the second marriage, what will your answer be? Explain. A: The answer would be the same even if the wife by the first marriage, which is subsisting, gave her consent to the second marriage. Bigamy is a public crime and not subject to agreement between the victim and the accused. Moreover, the legal obstacle to the institution of a case for bigamy in the Philippines is jurisdictional and cannot be excused or waived by the parties affected. Q: CBP is legally married to OEM. Without obtaining a marriage license, CBP contracted a second marriage to RST. Is CBP liable for bigamy? Reason briefly. (2004) A: Whether CBP could be held liable for bigamy or not depends on whether the second marriage is invalid or valid even without a marriage license. Although as a general rule, marriages solemnized without license are null and void ab initio, there are marriages exempted from license requirement under Chapter 2, Title 1 of the Family Code, such as in Art. 27 which is a marriage in articulo mortis. If the second marriage was valid even without a marriage license, then CBP would be liable for bigamy. Otherwise, CBP is not liable for bigamy but for Illegal Marriage in Art. 350 of the RPC specifically designated as "Marriage contracted against provisions of laws." (DOCTRINE REPEATED IN OTHER QUESTIONS) Q: Joselito married Ramona in July 1995, only to learn later on that Ramona was previously married to David, from whom Ramona had been separated for more than ten years. Believing that his marriage to Ramona was an absolute nullity, Joselito contracted a subsequent marriage with Anabelle. Can Joselito be prosecuted for bigamy? Explain. (1996) A: Yes, Joselito can be prosecuted for bigamy for his subsequent marriage with Anabelle even though his marriage with Ramona was an absolute nullity. Despite the nullity of the first marriage, Joselito should have filed a case of dissolution of such marriage under Art. 40 Family Code, before contracting a second marriage with Anabelle. Q: Issa and Bobby, who were first cousins, were married in 1975. In 1993, Bobby was told that his marriage to Issa was incestous under the law then in force and therefore void ab initio. He married Caring. Charged with bigamy, Bobby raised the

defense that his first marriage is void ab initio and therefore, there is no previous marriage to speak of. Will you sustain Bobby's defense? (1994) A: No. I will not sustain Bobby's defense. Bobby remarried in 1993, or after the Family Code took effect on August 3, 1988, and therefore his capacity to marry in 1993 shall be governed by said Code. In Art. 40 of the Family Code, it is mandated that the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. In short, there is a need of a judicial declaration of such nullity before Bobby may validly remarry. REPEATED QUESTION: Q: Abe, married to Liza, contracted another marriage with Connie in Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as husband and wife in the hometown of Abe in Calamba, Laguna. (1994) a.

Can Abe be prosecuted for bigamy?

A: No, Abe may not be prosecuted for bigamy since the bigamous marriage was contracted or solemnized in Singapore, hence such violation is not one of those where the Revised Penal Code, under Art. 2 thereof, may be appplied extraterritorially. The general rule on territoriality of criminal law governs the situation. b. If not, can he be prosecuted for any other crime? A: Yes, Abe, together with Connie, may be prosecuted for concubinage under Art. 334 of the RPC for having cohabited as husband and wife. But concubinage being a private crime requires the sworn complaint of Liza, the offended spouse in accordance with Rule 110 of the Revised Rules on Criminal Procedure. CRIMES AGAINST HONOR (Articles 353-364) Libel (Articles 353-362) Q: In her weekly gossip column in a tabloid, Gigi wrote an unflattering article about Pablo, a famous singer, and his bitter separation from his wife. The article portrayed Pablo as an abusive husband and caused him to lose lucrative endorsement contracts. Pablo charged Gigi with libel. In her defense, Gigi countered that she did not commit libel because Pablo has attained the status of a public figure so that even his personal life has become a legitimate subject of public interest and comment. Is Gigi correct? (2013) A: No, Gigi is nor correct. Although wider latitude is given to defamatory utterances against public figures in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public figure’s work, the same may give rise to criminal liblity (Fermin v. People, G.R. No. 157643, March 28, 2008). Any attack upon the private character of the public figure on matters which are not related to their works may constitute liber under Art. 355 (Sazon v. CA, G.R. No. 120715, March 29, 1996). Here, Gigi was attacking the personal life of Pablo as a husband and not his public life as a famous singer.

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a.

FOR CRIMINAL LAW (1991-2015)

Q: Angelina maintains a website where visitors can give their comments on the posted pictures of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag shown in Angelina’s website is fake and that Angelina is known to sell counterfeit items. Angelina wants to file a case against Bettina. She seeks your advice. What advice will you give her? (2010) A: I will advise Angelina to file a criminal case of libel against Bettina because the imputations made by Bettina are libellous. Whether the imputation of a defect, status or condition is real or imaginary, if it publicly tends to discredit, dishonor or place in contempt or ridicule a particular person who is identified, the imputation is presumed by law to be malicious and thus penalized as libel under Art. 355 of the RPC. Moreover, if Bettina is engaged in similar line of trade, her statement against the goods sold by Angelina may constitute a violation of the law on Unfair Competition (R.A. 8291). Q: In an interview aired on television, Cindee uttered defamatory statements against Erika, a successful and reputable businesswoman. What crime or crimes did Cindee commit? Explain. (2005) A: Cindee committed libel for uttering defamatory remarks tending to cause dishonor or discredit to Erika. Libel can be committed in television programs or broadcasts, though it was not specifically mentioned in the article since it was not yet in existence then, but it is included as "any similar means." Defamatory statements aired on television is similar to radio, theatrical exhibition or cinematographic exhibition, which are among the modes for the commission of libel (Art. 353, 355, RPC). Q: Distinguish clearly but briefly between oral defamation and criminal conversation. (2004) A: Oral defamation, known as “Slander”, is a malicious imputation of any act, omission, condition or circumstance against a person, done orally in public, tending to cause dishonor, discredit, contempt, embarassment or ridicule to the latter. This is a crime against honor penalized in Art. 358 of the RPC. Criminal conversation is used in making a polite reference to sexual intercourse as in certain crimes, like rape, seduction and adultery. It has no definite concept as a crime. Q: During a seminar workshop attended by government employees from the Bureau of Customs and the Bureau of Internal Revenue, A, the speaker, in the course of his lecture, lamented the fact that a great majority of those serving in said agencies were utterly dishonest and corrupt. The following morning, the whole group of employees in the two bureaus who attended the seminar, as complainants, filed a criminal complaint against A for uttering what the group claimed to be defamatory statements of the lecturer. In court, A filed a motion to quash the information, reciting fully the above facts, on the ground that no crime was committed. If you were the judge, how would you resolve the motion? (2003) A: I would grant the motion to quash on the ground that the facts charged do not constitute an offense, since UNIVERSITY OF SANTO TOMAS FACULTY OF CIVIL LAW

there is no definite person or persons dishonored. The crime of libel or slander is a crime against honor such that the person or persons dishonored must be identifiable even by innuendoes; otherwise the crime against honor is not committed. Moreover, A was not making a malicious imputation, but merely stating an opinion; he was delivering a lecture with no malice at all during a seminar workshop. Malice being inherently absent in the utterance, the statement is not actionable as defamatory. Q: A was nominated Secretary of a Department in the Executive Branch of the government. His nomination was thereafter submitted to the Commission on Appointments for confirmation. While the Commission was considering the nomination, a group of concerned citizens caused to be published in the newspapers a full-page statement objecting to A's appointment They alleged that A was a drug dependent, that he had several mistresses, and that he was corrupt, having accepted bribes or favors from parties transacting business in his previous office, and therefore he was unfit for the position to which he had been nominated. As a result of the publication, the nomination was not confirmed by the Commission on Appointments. The official sued the concerned citizens and the newspapers for libel and damages on account of his non-confirmation. a.

How will you decide the case? (2002)

A: I will acquit the concerned citizens and the newspapers involved, from the crime of libel, because obviously they made the denunciation out of a moral or social duty and thus there is absence of malice. Since A was a candidate for a very important public position of a Department Secretary, his moral, mental and physical fitness for the public trust in such position becomes a public concern as the interest of the public is at stake. It is pursuant to such concern that the denunciation was made; hence, bereft of malice. b. If defamatory imputations are made not by publication in the newspapers but by broadcast over the radio, do they constitute libel? Why? (2002) A: Yes, because libel may be committed by radio broadcast Art. 355 of the RPC punishes libel committed by means, among others, of radio broadcast, inasmuch as the broadcast made by radio is public and may be defamatory. Q: For some time, bad blood had existed between the two families of Maria Razon and Judge Gadioma who were neighbors. First, there was a boundary dispute between them which was still pending in court. Maria's mother also filed an administrative complaint against the judge which was however dismissed. The Razons also felt intimidated by the position and alleged influence of their neighbor. Fanning fire to the situation was the practice of the Gadiomas of throwing garbage and animal excrement into the Razon's premises. In an explosion of anger, Maria called Judge Gadioma "land grabber", "shameless", and "hypocrite." What crime was committed by Maria, if any? Explain briefly. (1998)

TEAM BAROPS ACADEMICS COMMITTEE 2016

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QUAMTO

QuAMTO for CRIMINAL LAW (1991-2015) A: Maria committed the crime of slander or slight defamation only because she was under the influence of anger. When Maria called Judge Gadioma a hypocrite and land grabber she imputed to him the commission of crimes. Q: Because of a pendency of a labor dispute, two (2) belligerent labor unions had a confrontation in a picket line during which the President and the Secretary of one union shouted to the members and officers of the rival union composed of men and women, the following: “Mga supot, mga walang bayag, mga kabit ng Intsik, mga tuta, mga segunda mano." Are the President and the Secretary of said union liable for oral defamation/slander? Explain. (1993)

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A: No. The President and the Secretary of the Union are not liable for oral defamation or slander because there is no identity of the offended party. The individual defamed or slandered was not singled out ( Uy Tioco v. Yang Shu Wen, G. R. Nos. 9986 & 9891, December 22, 1915).

*QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2016 Bar Exams.