Boado Notes on Criminal Law

NOTES AND JURISPRUDENCE Atty. LEONOR D. BOADO

Presumptions, prima facie evidence and malversation Wa-acon vs. People, G.R. No. 164575, December 6, 2006 A “presumption of law” is sanctioned by a statute prescribing that “a certain inference must be made whenever facts appear which furnish the basis of the inference.” A “presumption of fact” is a “[conclusion] drawn from particular circumstances, the connection between them and the sought-for fact having received such a sanction in experience as to have become recognized as justifying the assumption.” When there is a presumption of law, the onus probandi shifts to the one against whom the interference is made to adduce satisfactory evidence to rebut the presumption and demolish the prima facie case. Example: Art. 217 no longer requires proof that the accused actually misappropriated public funds or property. Rather, it installed a disputable presumption that upon demand by an authorized officer, the failure of a public officer to have duly forthcoming any public funds or property— with which said officer is accountable—is prima facie evidence that he put such missing funds or properties to personal use. When these circumstances are present, a presumption of law arises that there was malversation. Prima facie evidence is evidence good and sufficient on its face; as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. If unexplained or uncontradicted it is sufficient to sustain a judgment in favor of the issue it supports, but which may be contradicted by other evidence. The establishment of a prima facie case does not take away the presumption of innocence which may be such as to rebut and control it. Such prima facie evidence, if unexplained or uncontradicted can counterbalance the presumption of innocence to warrant a conviction. Equipoise rule Abarquez vs. People, G.R. No. 150762, January 20, 2006 The equipoise rule: if inculpatory facts and circumstances are capable of two or more explanations, one consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction. This rule complements the rule that all doubts are construed in favor of the accused. If there is ambiguity in the law or in the evidence, acquittal is in order as conviction must be beyond reasonable doubt. Malum in se does not absorb malum prohibitum; duplicity of charges; double jeopardy Loney vs. People, G.R. No. 152644, February 10, 2006

Duplicity or multiplicity of charges means a single complaint or information charges more than one offense. The Rules prohibit the filing of such Information to avoid confusing the accused in preparing his defense. Here, petitioner is charged with four offenses, each Information charging only one offense. The only limit to this rule is double jeopardy for “the same offense.” Two or more offenses arising from the same act are not “the same” if one provision of law requires proof of an additional fact or element which the other does not. Where two different laws or articles of the same code define two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other. PD 1067, PD 984, RA 7942, and Art. 365 of the RPC show that in each of these laws on which petitioners were charged, there is one essential element not required of the others. In PD 1067, the gravamen of the offense is the absence of the proper permit to dump mine tailings. PD 984 punishes the pollution itself. RA 7942 requires willful violation and gross neglect to abide by the terms and conditions of the Environmental Compliance Certificate. Art. 365 penalizes the lack of necessary or adequate precaution, negligence, recklessness and imprudence to prevent damage to property. The charge for violation of Art. 365 does not “absorb” the charges for violation of PD 1067, etc., for mala in se felony (reckless imprudence) cannot absorb mala prohibita crimes (violation of PD 1067, etc). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws. Attempted felonies; Attempted rape vs. acts of lasciviousness People vs. Mingming, G.R. No. 174195, December 10, 2008 CC was charged with and convicted of three counts of statutory rape that, although tried jointly, must be treated and viewed as separate and distinct from each other. Thus, the elements of the offense must be proven for each count of rape, save only for the element of age which runs commonly for the three counts. Statutory rape is committed by sexual intercourse (SI) with a woman below 12 years of age regardless of her consent, or the lack of it. Proof of force, intimidation or consent is unnecessary; they are not elements of statutory rape; the absence of free consent is conclusively presumed when the victim is below 12. At that age, the law presumes that the victim does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, to convict an accused of the crime of statutory rape, the prosecution carries the burden of proving: the age of the complainant; the identity of the accused; and SI between the accused and the complainant. SI is shown by proof of entry or the introduction of the male organ into the female organ; rape is consummated by the mere “touching” or “entry” of the penis into the labia majora or the labia minora of the pudendum of victim’s genitalia. Without proof of penetration, the crime committed may still constitute attempted rape or acts of lasciviousness. Attempted rape, however, requires that the offender commence the commission of rape directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. The prosecution must establish the following elements of an attempted felony:

1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offender’s act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance. Acts of lasciviousness requires proof of the following elements: 1. Offender commits any act of lasciviousness or lewdness. 2. It is done under any of the following circumstances: a.

By using force or intimidation; or

b. When the offended is deprived of reason or otherwise unconscious; or c.

When the offended party is under 12 years of age.

3. That the offended party is another person of either sex.

Frustrated homicide vs. less serious physical injuries; intent to kill Aradillos vs. CA, G.R. No. 135619, January 15, 2004 Intent to kill is the principal element of attempted or frustrated homicide, or murder. Such intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal intent of the aggressor. The testimonies of the doctors who treated GG did not establish with certainty the nature, extent, depth and severity of the wounds sustained by her. Such medical evidence could have shed light as to the relative position of AA and GG at the time the blows were inflicted, whether the wounds sustained by the victim were a result of an intentional infliction or accidental, or whether it was mortal or superficial. Matyaong discussed the importance of ascertaining the degree of injury sustained, viz.: “In considering the extent of injury done, account must be taken of the injury to the function of the various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could be made, would be very desirable; but the unexpected complications and the various extraneous causes which give gravity to the simplest cases, and, on the other hand, the favorable termination of some injuries apparently the most dangerous, render any such classification impracticable. The general classification into slight, severe, dangerous, and mortal wounds may be used, but the possibility of the slight wound terminating with the loss of the person’s life, and the apparently mortal ending with only a slight impairment of some function, must always be kept in mind. . . The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved, the entrance of disease-producing bacteria or other organisms into the wound, the age and

constitution of the person injured, and the opportunities for administering proper surgical treatment. . .” Nonetheless, AA must be answerable for the injuries he inflicted on GG. He cannot hide behind the defense of accident to escape the consequences of his act. Under Art. 12 [4] of the RPC, a person, who while performing a lawful act with due care, causes an injury by accident without fault or intention of causing it, is exempt from criminal liability. It cannot be said that AA was performing a lawful act when he struggled with GG for the ax as the latter’s act of taking hold of the ax was equivocal, and it cannot be deduced therefrom that he was under the threat of an unlawful aggression from her. The defense of accident cannot exempt AA from liability. Although the Information charged Frustrated Murder, a finding of guilt for less serious physical injuries may be made considering that it is necessarily included in the former since the essential ingredients of physical injuries constitute and form part of those constituting the offense of murder. Similarly, an accused may be convicted of slight, less serious or serious physical injuries in a prosecution for homicide or murder, inasmuch as the infliction of physical injuries could lead to any of the latter offenses when carried to its utmost degree despite the fact that an essential requisite of the crime of homicide or murder - intent to kill - is not required in a prosecution for physical injuries. Art 265 penalizes Less Serious Physical Injuries with arresto mayor, a period of 1 month and 1 day to 6 months. The ISLaw is not applicable since the maximum penalty does not exceed 1 year. With the mitigating circumstance of voluntary surrender, penalty should be imposed in its minimum period, or anywhere within 1 month and 1 day to 2 months. The award of P1,664 for medical expenses is in order being supported by evidence. Having suffered actual injuries, she is entitled to moral damages of P5,000 under the circumstances. Acts that should be subject of penal laws; physical injuries, not frustrated murder People vs. Glino, G.R. No. 173793, December 4, 2007 The present law prohibits and punishes only drunk driving. There is no law banning a drunk person from riding a public vehicle, or the latter’s driver from allowing a person who appears to be drunk to board a public conveyance. A drunk passenger or one under the influence of liquor or drug poses a veritable peril to the other passengers. He is prone to react irrationally and violently, due to lack or diminution of self-control. Senseless loss of lives and physical harm can be avoided, and the riding public duly protected, if the potential danger posed by drunk passengers can be addressed properly. It is the duty of the court, whenever it has knowledge of any act which it may deem proper to repress and which is not punishable by law, to report to the Chief Executive, through the DoJ, the reasons which induce the court to believe that said act should be made the subject of legislation. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. Proof that accused acted in concert, each of them doing his part to fulfill the common design to kill the victim will suffice to support a conviction. In conspiracy, it matters not who among the accused actually killed the victim. The act of one is the act of all; hence, it is not necessary that all the participants deliver the fatal blow. Tersely put, each of the accused will be deemed equally guilty of the crime committed.

The essence of treachery is the sudden and unexpected attack by the assailant on an unsuspecting victim, depriving the latter of any real chance to defend himself. It is employed to ensure the commission of the crime without the concomitant risk to the aggressor. The rule is wellsettled in this jurisdiction that treachery may still be appreciated even though the victim was forewarned of danger to his person. What is decisive is that the attack was executed in a manner that the victim was rendered defenseless and unable to retaliate. Concededly, DD was caught unaware that an attack was forthcoming. Although he had a verbal exchange with accused and BB, the assault was sudden, swift and unexpected. All of the passengers, including DD, thought all along that the tension had ceased and that GG and BB were about to alight. DD was overpowered by accused and BB, who took turns in stabbing him. By all indications, DD was without opportunity to evade the knife thrusts, defend himself, or retaliate. An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo. Delim explained the rudiments of proving intent to kill in crimes against persons. It may consist in: (1) the means used by the malefactors; (2) the nature, location and number of wounds sustained by the victim; (3) the conduct of the malefactors before, at the time of, or immediately after the killing of the victim; (4) the circumstances under which the crime was committed; and (5) the motives of accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed. Intent to kill VV is betrayed by the conduct of accused before, at the time of, and immediately after the commission of the crime. VV disclosed that she was shocked and was initially unable to come to DD’s succor as the first blow was struck; that as DD was about to fall down from where he was seated, she embraced him; that she tried to shield him from further attacks; that when the assault ceased, her finger was gushing with blood. If the assailants also intended to kill her, they could have easily stabbed her in any vital part of her body. They did not. The nature and location of her wound militates against the finding of their intent to kill. VV suffered from an incised wound in her right hand. The wound required medical attendance, and rendered VV incapable of labor for 10 to 30 days. Clearly, GG should be held liable for less serious physical injuries only. Although the indictment was for attempted murder, a finding of guilt for the lesser offense of less serious physical injuries is tenable, considering that the latter offense is necessarily included in the former. The essential ingredients of physical injuries constitute and form part of those constituting the felony of murder. An accused may be convicted of slight, less serious or serious physical injuries in a prosecution for homicide or murder, inasmuch as the infliction of physical injuries could lead to any of the latter offenses when carried out to its utmost degree despite the fact that an essential requisite of the crime of homicide or murder – intent to kill – is not required in a prosecution for physical injuries. The ISLaw finds no application when the penalty imposed is death, reclusion perpetua or life imprisonment, or where the maximum term of imprisonment is less than one year.

When death results due to a crime, the heirs of the victim are entitled to the following damages: (1) civil indemnity; (2) actual or compensatory; (3) moral damages; (4) exemplary damages; and (5) temperate damages. Civil indemnity is mandatory and granted to the heirs of the murder victim without need of further proof. Under current jurisprudence, the award of P50,000.00 as civil indemnity ex delicto is in order. Actual damages in the amount of P101,549 is proper as the heirs of the victim were able to prove during the trial, with proper receipts, that they incurred the said expense. In murder, award of moral damages of P50,000 is sufficient. For the less serious physical injuries on VV, moral damages of P10,000 is warranted. The heirs of DD are entitled to additional award of P25,000 of exemplary damages since treachery was proved. Exemplary damages in the amount of P10,000 should also be awarded to VV in the separate conviction for less serious physical injuries. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. Conspiracy and criminal liability for second unplanned crime People vs. Corbes, G.R. No. 113470, March 26, 1997 To establish conspiracy, it must be shown to exist as clearly and convincingly as the commission of the crime itself. No less than proof beyond reasonable doubt is required. No conclusive proof was presented that MV conspired with the other accused to commit robbery. He was approached by DC who was tasked to look for a getaway vehicle and was persuaded to act as driver in fetching the group from the venue of the robbery. Knowledge of criminal design plus his act of driving for the robbers, makes MV guilty as an accomplice – one who knows the criminal design of the principal and cooperates knowingly or intentionally therewith by an act which even if not rendered the crime would be committed just the same. It was not established by the evidence that the other accused had agreed to kill if necessary to carry out successfully the plan to rob. In fact, one of the robbers berated the gunman for having shot the security guard. Therefore, appellants joined with merely the criminal design to rob, which makes them accomplices. Their complicity must accordingly be limited to the robbery, not to the killing of TP. Waiting only at the parked jeep could not have given them the opportunity to prevent the killing, as is required of one seeking relief from liability for assaults committed during the robbery. In Adriano the driver, who was unaware of the killing perpetrated inside the building as he stayed always near his jeep, could not be a co-conspirator in the killing of the guards, as the killing was not part of the original plan but arose only during the exigency of the moment.

Voluntary surrender – 4th element – no pending warrant of arrest People vs. Taraya, October 2000 For voluntary surrender to be mitigating, there must be no pending warrant of arrest against the accused for his arrest then was imminent.

Previous jurisprudence held that the following do not to constitute VS: 1. non resistance to the arrest or non denial of the criminal act 2. offender did not surrender himself; it was his superior who surrendered him

The following were held as VS (all before arrest could be effected): 1.

Even if accused surrendered one week after the crime

2. Surrender to the Provincial Commander after he publicly threatened that he will issue a shoot-to-kill order 3.

Surrender due to fear of reprisal

4.

Yielding of weapon by the offender at the time of the crime albeit with some persuasion

Infanticide and abortion compared; complex crimes People vs. Paycana, Jr., G.R. No. 179035. April 16, 2008 JP was charged with the complex crime of parricide with unintentional abortion. He pleaded not guilty during the arraignment. Pre-trial ensued, in which he admitted that the victim LP is his legitimate wife. Appellant sought to exculpate himself from the crime by setting up self-defense, that it was his wife who attacked him first. In view of the nature of self-defense, it follows that appellant admits having killed his 7-month pregnant wife, and in the process put to death their unborn child. Self-defense, being essentially a factual matter, is best addressed by the trial court. In the absence of any showing that it failed to appreciate facts or circumstances of weight and substance that would have altered its conclusion, the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies. No compelling reason exists to disturb the finding that he did not act in self-defense. Appellant failed to discharge the burden to prove self-defense. An accused who interposes selfdefense admits the commission of the act complained of. The burden to establish self-defense is on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached. Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether complete or incomplete, that can validly be invoked. Appellant's claim of self-defense was belied by the eyewitness testimony of his own daughter AA, which was corroborated by the testimony of his father-in-law and the medical findings. AA's testimony was very clear on how her father strangled and stabbed her mother just as she was about to greet him upon arriving home. She begged her father to stop, and even tried to grab her father's hand but to no avail.

Dr. RT testified that the injuries suffered by appellant were possibly self-inflicted considering that they were mere superficial wounds. Self-defense on the part of appellant is further negated by the physical evidence in the case. Specifically, the number of wounds, 14 in all, indicates that appellant's act was no longer an act of self-defense but a determined effort to kill his victim. The victim died of multiple organ failure secondary to multiple stab wounds. AA who is 15 years old will not testify against her father were it not for the fact that she personally saw her father to be the aggressor and stab her mother. Telling her grandfather immediately after the incident that accused stabbed her mother is part of the res gestae hence, admissible as evidence. Between the testimony of AA who positively identified accused to have initiated the stabbing and continuously stabbed her mother and on the other hand, the testimony of accused that he killed the victim in self-defense, the testimony of the former prevails. Conviction for the complex crime of parricide with unintentional abortion is proper. The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased would be the marriage certificate. The testimony of the accused of being married to the victim, in itself, may also be taken as an admission against penal interest. As distinguished from infanticide, the elements of unintentional abortion are as follows: (1) that there is a pregnant woman; (2) that violence is used upon such pregnant woman without intending an abortion; (3) that the violence is intentionally exerted; and (4) that as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom. In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence. However, even if the child who was expelled prematurely and deliberately were alive at birth, the offense is abortion due to the fact that a fetus with an intrauterine life of 6 months is not viable. In the present case, the unborn fetus was also killed when the appellant stabbed LP several times. The case is governed by the first clause of Art 48 because by a single act, that of stabbing his wife, appellant committed the grave felony of parricide as well as the less grave felony of unintentional abortion. A complex crime is committed when a single act constitutes two or more grave or less grave felonies. Civil indemnity in the amount of P50,000 is automatically granted to the offended party, or the heirs in case of the former's death, without need of further evidence other than the fact of the commission of the crimes of murder, homicide, parricide and rape. Moral and exemplary damages may be separately granted in addition to indemnity. Moral damages can be awarded only upon sufficient proof that the complainant is entitled thereto in accordance with Art. 2217 of the Civil Code, while exemplary damages can be awarded if the crime is committed with one or more aggravating circumstances duly proved. The amounts thereof shall be at the discretion of the courts. Hence, the civil indemnity of P50,000 awarded to the heirs of LP is in order. They are also entitled to moral damages in the amount of P50,000 and P25,000 as exemplary damages on account of relationship, a qualifying circumstance in the crime of parricide.

Complex crimes when there is conspiracy and two victims People vs. Caraang, G.R. Nos. 148424-27, December 11, 2003

Even if appellant is guilty of two counts of forcible abduction with rape, he cannot be sentenced to death because the crimes happened in 1990, prior to the effectivity of the Death Penalty Law. Nonetheless, the civil liabilities should be equal to those prescribed for crimes committed under circumstances that would have justified the imposition of death, had they been committed thereafter. The Civil Code, which governs civil liabilities, has been in effect since 1950; it is applicable to herein factual environment. In rape, the transmission of a sexually transmissible disease to the victim is not an element of the crime, but an aggravating/qualifying circumstance. When the victim cannot testify on the actual commission of the rape because she had been rendered unconscious before the act was committed, the conviction may be based on circumstantial evidence. Such evidence is admissible, provided that more than one circumstance is duly proven, and that the totality or the unbroken chain of the circumstances proven lead to no other logical conclusion than that of the guilt of the accused. There is no doubt that appellant and his co-accused acted in conspiracy, as seen through their concerted actions in abducting the victims with lewd design and later on raping them. Direct proof is not essential to establish conspiracy which may be inferred from the acts of the assailants before, during and after the commission of the crime. In a conspiracy, it is not necessary to show that all the conspirators actually committed all the elements of the crime charged; what is important is that all of them performed specific acts with such closeness and coordination as to indicate an unmistakably common purpose or design to commit the crime. Thus, the act of one becomes the act of all, and each of them will thereby be deemed equally guilty of all the crimes committed. It must be shown that each co-accused cooperated in the commission of the offense -- either morally through advice, encouragement or agreement; or materially through external acts indicating a manifest intent of supplying aid in the efficacious perpetration of the crime. The common purpose of the accused was manifestly shown by the deliberate and methodical manner in which the crimes were committed. The victims were first tricked into going with appellant. When they arrived at a secluded place, the women were ordered to line up, while their male companions were told to lie on their stomachs. More men were already waiting at the place where the victims were brought which only shows that all the accused indeed knew what was going to happen. Thereafter the women were brought, one at a time, to the place where the rapes were to occur. The manner in which the crimes were committed points to no other conclusion than that all the accused had knowledge of the criminal design. The pattern of the rapes committed and the indispensable role of appellant therein is clear. Any intimation that he had nothing to do with them would be nothing less than unbelievable. The finding of conspiracy is significant, because it changes the criminal liability of all the accused and makes them answerable as co-principals regardless of the degree of their participation in the crime. Their liability becomes collective, with each participant deemed equally responsible for the acts of the others. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to pursue it actually. As in this case, conspiracy is proved by concerted acts or other forms of evidence indicative of actual cooperation -- a common purpose or design, as well as a concurrence of sentiments to commit the felony and to pursue it actually.

The complex crime of forcible abduction with rape occurs when there is carnal knowledge of the abducted woman when force or intimidation is used; when she is deprived of reason or is otherwise unconscious; and when under 12 years of age or is demented. As to the first element of taking against the will, although the victims voluntarily went with appellant, it was indubitably shown that they did so upon being deceived. He told them that his leader wanted to talk to them, and that no harm would be done to them. The employment of deception suffices to constitute forcible abduction. If the victim's consent was obtained through deceit and there was therefore no valid consent, the crime is forcible abduction, as the deceit may be considered as constructive force. The second element, lewd design, was established by the actual rapes. Appellant is guilty of two complex crimes of forcible abduction with rape -- one against FF and the other against SS. Since there were two victims, the trial court erred in convicting him of only one count of the complex crime of forcible abduction with rape. There can be no violation of the constitutional right of appellant against double jeopardy, because the decisive issue here is whether he was convicted of a crime charged in the Information. A reading of the four separate Informations shows that in each one, he was indeed charged with forcible abduction with rape. Having been sufficiently informed of the accusations against him, he can thus be convicted of two counts of the complex crime of forcible abduction with rape. Moreover, when the accused appeals from the sentence of the trial court, they waive their right to the constitutional safeguard against double jeopardy and throw the whole case open to review by the appellate court. The latter court is then called upon to render such judgment as law and justice dictate -- whether favorable or unfavorable to them, and whether the issues it resolves have been assigned as errors or not. Such an appeal confers upon it full jurisdiction over the case and renders it competent to examine the records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law. In the present case, appellant should also be held liable for the other count of rape he and his co-accused committed -- one after the other -- against FF. Clearly, there was conspiracy as shown by their obvious, concerted efforts to perpetrate the crimes. Appellant is responsible not only for the rape he committed, but for that committed by the others as well. However, there can be only one complex crime of forcible abduction with rape against each victim. The forcible abduction was necessary only for the first rape. After the complex crime had already been consummated, the subsequent rape can no longer be considered as a separate instance thereof. That is, it should be detached from, and considered independently of, the forcible abduction. Hence, any subsequent rape of the same victim is simply rape and can no longer be considered as a separate complex crime of forcible abduction with rape. The penalty for the rape - which is the more serious crime - shall be imposed in its maximum period. At the time of the commission of the crime, the applicable penalty for rape committed by two or more persons was reclusion perpetua to death. Since the rape was committed by two or more persons -- a fact duly alleged in the Information and proven in court -- it should have warranted the imposition of the death penalty. However, appellant committed the crime on Nov. 10, 1990 before RA 7659, which took effect on Dec. 31, 1993. Thus, the penalty that could be imposed was reclusion perpetua. Regarding appellant's pecuniary liabilities, we award P75,000 as civil indemnity ex delicto for each of the two counts of the complex crime of forcible abduction with rape considering that the

rape was committed by two or more persons and as the crime was committed under circumstances that would justify the imposition of the death penalty -- even if that penalty had not yet been imposed -- because committed before RA 7659. P50,000 as moral damages for each of the two counts of forcible abduction with rape without need of further proof other than the fact of rape. The law recognizes the victim's injury, which is concomitant with and necessarily results from the odiousness of the crime, thus warranting per se the award of moral damages. As to exemplary damages, Art. 2230, Civil Code provides: "In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party." As to the civil aspect of a case, an aggravating circumstance -- whether ordinary or qualifying -- should entitle the offended party to an award of exemplary damages within the unbridled meaning of Art. 2230.

Treachery; nighttime People vs. dela Pena, Jr., G.R. No. 183567, January 19, 2009 The gunshot wound sustained by the victim was located at the left back portion of the chest and he has no other injuries apart from this wound. Thus, it is evident that the victim was shot from behind, with his back towards the assailant. The essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim. In this case, the victim was unarmed; and was attacked from behind and at close range. The assailant further hid behind the window to mask his presence and identity. Nighttime as aggravating circumstance is absorbed by treachery.

Penalty for concubinage; destierro and arresto menor compared People vs. Eduarte, G.R. No. 88232, February 26, 1990 The penalty imposable on the husband who commits concubinage is prision correccional minimum and medium. Hence, as regards the husband, concubinage is within the exclusive original jurisdiction of the inferior courts. The problem concerns the concubine upon whom the imposable penalty is destierro. A crime punishable with the penalty of destierro is within the jurisdiction of the inferior courts because in the scale of penalties in Art. 71, destierro comes after arresto mayor. Under the Judiciary Act of 1948 [RA 296], crimes punishable with arresto mayor are within the jurisdiction of the inferior courts; it follows that crimes punishable with destierro are also within the jurisdiction of such courts. Destierro is not higher than arresto mayor which is imprisonment or complete deprivation of liberty, whereas destierro means banishment or only a prohibition from residing within a radius of

25 kilometers from the actual residence of the accused for a specified length of time. The respective severities of arresto mayor and destierro must not be judged by the duration of penalties, but by the degree of deprivation of liberty. In the graduated scale of Art. 71 destierro is placed below arresto mayor. Concubinage has two penalties, for the husband and for the concubine. The penalty for the husband, prision correccional minimum and medium is within the jurisdiction of the inferior courts. The offended in concubinage cannot institute criminal prosecution without including both the guilty parties. It is in the interest of the orderly administration of justice that the concubine be tried with the erring husband before the inferior courts. The law could not have intended the absurd situation wherein inferior court has jurisdiction as regards the husband while the RTC has jurisdiction over the same crime with respect to the concubine. Notwithstanding, the preventive detention on the concubine should not exceed 30 days for the penalty on her is destierro. Art. 70, 71, 61; penalties that can be served simultaneously In Re: Petition for Habeas Corpus of Pete C. Lagran, August 2001 Art. 70 allows simultaneous service of two or more penalties if the nature of the penalties so permit. The penalties that can be simultaneously served are: (1) perpetual absolute disqualification, (2) perpetual special disqualification, (3) temporary absolute disqualification, (4) temporary special disqualification, (5) suspension, (6) destierro, (7) public censure, (8) fine and bond to keep the peace, (9) civil interdiction, and (10) confiscation and payment of costs. These penalties, except destierro, can be served simultaneously with imprisonment. The penalties of deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. Two or more terms of imprisonment should be served successively. Petitioner was sentenced to one year imprisonment for every count of the offense committed. The nature of the sentence does not allow petitioner to serve all the prison terms simultaneously. Art. 71 lists destierro next lower than arresto mayor and not arresto menor. In Art. 70, destierro follows arresto menor in the degree of severity. Destierro is not higher penalty than arresto mayor which is imprisonment or complete deprivation of liberty, whereas destierro means banishment or prohibition from residing within a radius of 25 km from the actual residence of the accused for a specified length of time. The respective severities of arresto mayor and destierro must not be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. Penologists have always considered destierro lighter than arresto mayor.. In Art. 71 destierro is below arresto mayor. There is no basis for holding that destierro is higher than arresto mayor and that an offense penalized with destierro falls under the jurisdiction of the RTC. When the penalty prescribed for the crime consists of 1 or 2 penalties to be imposed in their full extent, the penalty next lower degree shall likewise consist of as many penalties which follow the former in the scale in Art. 71. For complex penalty consisting of 3 discrete penalties, prision correccional, prision mayor and reclusion temporal, 1 degree lower is arresto menor, destierro and arresto mayor. There could be no further reduction by 1 or 2 degrees, which must each likewise consist of 3 penalties, since only the penalties of fine and public censure remain in the scale.

R.A. 9344 vis-à-vis PD 603 on suspension of sentence of juvenile Declarador vs. Gubaton, G.R. No. 159208, August 18, 2006 RA 9344 (Juvenile Protection Act) took effect on May 20, 2006. Pursuant to P.D. 603 a minor who (a) has once enjoyed suspension of sentence under its provisions or (b) convicted for an offense punishable by death or life imprisonment or (c) by Military Tribunals cannot avail of suspended sentence. The law was reproduced in A.M. No. 02-1-18-SC. “Punishable” means liable to be punished. It does not mean “must be punished.” . Thus, the term refers to possible, not to actual sentence. It is concerned with the penalty which may be, and not which is imposed. Disqualification is based on nature of crime charged and the imposable penalty therefor, and not on the penalty imposed by the court after trial. It is not the actual penalty imposed but the possible one which determines the disqualification of a juvenile. The law merely amended Art. 192 in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 or more at the time of the pronouncement of his guilt. The other disqualifications in Art. 192 and Sec. 32 of A.M. No. 02-1-18-SC have not been deleted from Sec. 38 of RA 9344. Evidently, Congress intended maintain the other disqualifications in PD 603. Juveniles who have been convicted of a crime punishable with reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from suspension of sentence. Ortega vs. People, G.R. No. 151085

August 20, 2008

With the advent of R.A. 9344 while petitioner's case is pending, a new issue arises, whether the pertinent provisions of RA 9344 apply to him, considering that when he committed the alleged rape, he was 13 years old. However, for one who acts by virtue of any of the exempting circumstances, although he commits a crime, by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arises. Therefore, while there is a crime committed, no criminal liability attaches. Thus, Guevarra v. Almodovar held: The basic reason behind the enactment of exempting circumstances in Article 12 - the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because . . . the infant has no intelligence, the law exempts him from criminal liability. It is for this reason why minors nine years of age and below are not capable of performing a criminal act. Sec. 6 of RA 9344 provides that a child above 15 but below 18 shall be exempt from criminal liability and be subjected to an intervention program, unless he acted with discernment, in which case, he shall be subjected to the appropriate proceedings in accordance with this Act. Likewise, Sec. 64 categorically provides that cases of children 15 years old and below, at the time of the commission of the crime, shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer (LSWDO). What is controlling, therefore, with respect to the exemption from criminal liability of the CICL, is not the CICL's age at the time of the promulgation of judgment but the CICL's age at the time of the commission of the

offense. In short, by virtue of RA 9344, the age of criminal irresponsibility has been raised from 9 to 15 years old. It is imperative that the law be given retroactive application pursuant to the principle in criminal law that penal laws which are favorable to the accused are given retroactive effect. This principle is embodied in Article 22 of the RPC. Jurisprudence abounds that the principle has been given expanded application in certain instances involving special laws. R.A. No. 9344 should be no exception. The Court is bound to enforce the legislative intent, which is the dominant factor in interpreting a statute. Intent is the soul of the law. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 9344's unambiguous language, coupled with clear lawmakers' intent, is most favorable to petitioner. No other interpretation is justified, for the simple language of the new law itself demonstrates the legislative intent to favor the CICL. Petitioner who is now 25 was only 13 at the time of the alleged rape. This was proven by the certificate of live birth, by petitioner's own testimony, and by the testimony of his mother. Furthermore, petitioner's age was never assailed in any of the proceedings before the RTC and the CA. Indubitably, petitioner, at the time of the commission of the crime, was below 15 years of age. Under R.A. 9344, he is exempted from criminal liability. However, while the law exempts petitioner from criminal liability for the two counts of rape committed against AAA, Section 6 thereof expressly provides that there is no concomitant exemption from civil liability. The RTC, however, erred in not separately awarding moral damages, distinct from the civil indemnity awarded to the rape victim. AAA is entitled to moral damages in the amount of P50,000.00 for each count of rape, pursuant to Article 2219 of the Civil Code, without the necessity of additional pleading or proof other than the fact of rape. Moral damages are granted in recognition of the victim's injury resulting from the crime of rape. “A final note. While we regret the delay, we take consolation in the fact that a law intended to protect our children from the harshness of life and to alleviate, if not cure, the ills of the growing number of CICL and children at risk in our country, has been enacted by Congress. However, it has not escaped us that major concerns have been raised on the effects of the law. It is worth mentioning that in the Rationale for the Proposed Rule on Children Charged under R.A. No. 9165, it was found that: “The passage of Republic Act No. 9344 or the Juvenile Justice and Welfare Act of 2006 raising the age of criminal irresponsibility from 9 years old to 15 years old has compounded the problem of employment of children in the drug trade several times over. Law enforcement authorities, Barangay Kagawads and the police, most particularly, complain that drug syndicates have become more aggressive in using children 15 years old or below as couriers or foot soldiers in the drug trade. They claim that Republic Act No. 9344 has rendered them ineffective in the faithful discharge of their duties in that they are proscribed from taking into custody children 15 years old or below who openly flaunt possession, use and delivery or distribution of illicit drugs, simply because their age exempts them from criminal liability under the new law. “The Court is fully cognizant that our decision in the instant case effectively exonerates petitioner of rape, a heinous crime committed against AAA who was only a child at the tender age

of six (6) when she was raped by the petitioner, and one who deserves the law's greater protection. However, this consequence is inevitable because of the language of R.A. No. 9344, the wisdom of which is not subject to review by this Court. 61 Any perception that the result reached herein appears unjust or unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a meaning detached from the manifest intendment and language of the law. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case.”

Improvident plea of guilt; proof of minority; allegation of brother-sister relationship People vs. Ceredon, G.R. No. 167179, January 28, 2008 Where the accused desires to plead guilty to a capital offense, the court is enjoined to observe the following: 1. It must conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and 3. The court must ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. There is no definite and concrete rule on how a trial judge may go about the matter of a proper “searching inquiry.” It is incumbent upon a trial judge to ascertain and be fully convinced that the plea of guilty was voluntarily made and its consequences fully comprehended by the accused. Appellant was duly assisted by his counsel, both in his first arraignment and re-arraignment. In fact, it was his counsel who manifested before the trial court that appellant desired to change his plea from “not guilty” to “guilty” on all ten charges of rape filed against him by his younger sister. Besides being assisted by counsel all throughout the proceedings, when appellant was rearraigned, the charges were read and explained to him in Ilocano, his native tongue. He cannot now claim that he was unaware of the consequences of his change of plea. More than that, appellant admitted raping AAA. When confronted by AAA, their mother, sister DDD , and their uncle RB, appellant readily admitted to violating his sister on at least three occasions. Sensing that AAA was only angered by his fractional admission, and through the prodding of his wife Josephine for him to admit the whole truth, appellant confessed to the ten counts of rape. While convictions based on pleas of guilt to capital offenses have been set aside because of the improvidence of the plea, the same holds true only when such plea is the sole basis of the judgment. There can only be improvident plea of guilt under Sec 3, Rule 116 where there is a possibility of accused being meted out the penalty of death. In the words of said section, “When accused pleads guilty to a capital offense, the court shall conduct a searching inquiry x x x, etc.” The rationale for this is to ascertain that accused truly understands the dire consequences of his plea.

Considering that RA 9346 has prohibited the imposition of the death penalty, the raison d’etre behind said rule is absent in the case at bar. An information is valid as long as it distinctly states the elements of the offense and the constitutive acts or omissions. The exact date of the commission of a crime is not an essential element of it. Thus, in a prosecution for rape, the material fact or circumstance to be considered is the occurrence of the rape, not the time of its commission. The failure to specify the exact date or time when it was committed does not ipso facto make the information defective on its face. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. It is already too late for appellant to question the sufficiency of the information. He had all the time to raise this issue during the course of the trial, particularly during his arraignment. He could have filed for a bill of particulars in order to be properly informed of the dates of the alleged rapes. However, he chose to be silent and never questioned the information. As a result, he is deemed to have waived whatever objections he had; he cannot now be heard to seek affirmative relief. Further, objections as to matters of form in the information cannot be made for the first time on appeal. Nor was there any defect in the Informations when they merely averred that the victim was the youngest sister of appellant. Ferolino, said: “If the offender is merely a relation – not a parent, ascendant, stepparent, or guardian or common law spouse of the mother of the victim – it must be alleged in the information that he is a relative by consanguinity or affinity (as the case may be) within the civil degree. That relationship by consanguinity or affinity was not alleged in the informations in these cases. Even if it was, it was still necessary to further allege that such relationship was within the third civil degree.” The present case is not within the contemplation of said ruling considering that in the Ferolino case, the victim is a niece of the offender while in the present case the victim is a sister. It was necessary in Ferolino to require that it must be specifically alleged in the Information that the offender is a relative within the third civil degree because there are niece-uncle relationships which are beyond the third civil degree. However, a sister-brother relationship is obviously in the second civil degree and no other sister-brother relationship exists in civil law that falls beyond the third civil degree. Consequently, it is not necessary in this case that the Information should specifically state that the appellant is a relative by consanguinity within the third civil degree of the victim. This is an exception to the requirement enunciated in the Ferolino case. Further, what is required by the Rules is that “the acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.” On the issue of age of the victim, it is enough that the victim testified on her age vis-a-vis the time she was raped. Pruna set out guidelines as to the appreciation of age, either as an element of

the crime or as a qualifying circumstance. Although the best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party, its presentation into evidence is not a sine qua non requirement to prove her age for the appreciation of minority, either as an element of the crime or as a qualifying circumstance. In the absence of (a) certificate of live birth, (b) authentic document, or (c) testimony of the victim’s mother or relatives concerning the victim’s age, complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. Not only did the defense fail to object to complainant’s claim to minority when it was consistently bared during the trial; the accused, through his plea of guilt, admitted to the victim’s age as alleged in the informations against him. Furthermore, appellant cannot claim ignorance of the age of the victim as she is his own sister. Anent the Pruna requirement that the court make a categorical finding as to age, AAA was not able to tell the exact month and date of the first nine incidents but this is not fatal to her credibility. She is only about 10 years old in 1995 and about 11 in 1996, she being born on Feb. 18, 1985 and therefore it is but natural for her not to remember the dates more so when it has a very negative, horrifying and traumatic effect and impact on her life. In order that the rape be qualified, there need only be one qualifying circumstance present. Here, there are two – relationship and age. Even assuming that the circumstance of age had not been duly proven, it makes no difference as to the final outcome of this case as the circumstance of relationship of appellant to the victim cannot be denied. RA 9346 took effect on June 24, 2006; appellant’s sentence should be downgraded to reclusion perpetua. Notwithstanding the reduction of the penalty, he is not eligible for parole following Section 3 of the law. R.A. 9344 vis-à-vis Probation Law and Dangerous Drugs Law Padua vs. People, G.R. No. 168546, July 23, 2008 PP was charged and convicted for violation of Sec. 5, Art. II of RA 9165 for selling dangerous drugs. It is clear under Sec. 24 that any person convicted of drug trafficking cannot avail of the privilege of probation. The law is clear and leaves no room for interpretation. Any person convicted for drug trafficking or pushing, regardless of the penalty imposed cannot avail of the privilege granted by PD 968. When the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation [plain-meaning rule or verba legis.] Speech is the index of intention. The intention in Sec. 24 is to provide stiffer and harsher punishment for those persons convicted of drug trafficking or pushing while extending a sympathetic and magnanimous hand in Sec. 70 to drug dependents who are found guilty of violation of Sec. 11 and 15. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers, like PP, are categorically disqualified from availing the law on probation, youthful drug dependents, users and possessors alike, are given the chance to mend their ways. Had it been the intention of to exempt from the application of Sec. 24 the drug

traffickers and pushers who are minors and first time offenders, the law could have easily declared so. The law indeed appears strict and harsh against drug traffickers and drug pushers while protective of drug users. To illustrate, a person arrested for using illegal or dangerous drugs is meted only 6 months rehabilitation in a government center, as minimum, for the first offense under Sec. 15, while one charged and convicted of selling dangerous drugs shall suffer life imprisonment to death and a fine ranging from P500,000 to P10 Million. PP cannot argue that his right under RA 9344 was violated or that Sec. 32 of A.M. No. 02-1-18SC, "Rule on Juveniles in Conflict with the Law" applies herein. Sec. 68 of RA 9344 and Sec. 32 of A.M. 02-1-18-SC both pertain to suspension of sentence and not probation. Suspension of sentence under Sec 38 could no longer be retroactively applied for petitioner's benefit because once a child under 18 is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence. Sec. 40 however, provides that once the child reaches 18, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21. Petitioner already reached 21 or over and could no longer be considered a child. Thus, the application of Sec 38 and 40 appears moot and academic.

Entrapment; limited application of the RPC on RA 9165 People vs. Santos, G.R. No. 176735, June 26, 2008 The claim of appellants that their warrantless arrests were illegal lacks merit. Nowhere in the records is there any objection by appellants to the irregularity of their arrests prior to their arraignment. The illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error; such arrest does not negate the validity of the conviction of the accused. It is much too late in the day to complain about the warrantless arrest after valid information has been filed, the accused arraigned, trial commenced and completed, and judgment of conviction rendered against him. Nevertheless, People v. Cabugatan has settled that an arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113[5](a) of the Rules of Court. As for the contention that the trial court erred in finding the existence of a conspiracy, the same should also fail. Contrary to appellants' assertions, the findings of the trial court that they conspired with each other is limited only to the crime of illegal sale of dangerous drugs in Criminal Case No. 12193-D, and does not pertain to the crime of illegal possession of dangerous drugs in Criminal Case No. 12194-D. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. The same degree of proof necessary to prove the crime is required to support a finding of criminal conspiracy. Direct proof, however, is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. Proof of concerted action before, during and after the crime, which demonstrates their unity of design and objective is sufficient. The act of

SS in receiving the marked money from PO3 LL and handing the same to CC, who in turn gave a sachet containing shabu to SS to give the policeman, unmistakably revealed a common purpose and a community of interest indicative of a conspiracy between the appellants. Under the law, the illegal sale of shabu carries with it life imprisonment to death and a fine ranging from P500,000 to P10million regardless of the quantity and purity of the substance involved or shall act as a broker in any such transaction. On the other hand, the illegal possession of less than 5 gr. of said dangerous drug is penalized with imprisonment of 12 years and 1 day to 20 years and a fine ranging from P300,000 to P400,000. In accordance with Sec. 98, Article XIII of RA 9165, the provisions of RPC find limited applicability. Thus, in determining the imposable penalty, Art. 63 (2) of the RPC shall not be applied. Under this article, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied when there are neither mitigating nor aggravating circumstances. Since Sec 98 contains the word "shall", the non-applicability of the RPC is mandatory, subject to exception only in case the offender is a minor. In the imposition of the proper penalty, the courts, taking into account the circumstances attendant in the commission of the offense, are given the discretion to impose either life imprisonment or death, and the fine as provided for by law. In light, however, of the effectivity of RA 9346 the imposition of the supreme penalty of death has been prohibited. Consequently, the penalty to appellant shall only be life imprisonment and fine.

People vs. Delmonte, G.R. No. 179940, April 23, 2008 Pringas explained that non-compliance with Sec. 21 will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items as the same would be utilized in the determination of the guilt or innocence of the accused. In the case at bar, appellant never questioned the custody and disposition of the drug that was taken from him. In fact, he stipulated that the subject drug was forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory examination which examination gave positive result for shabu, a dangerous drug. Thus the integrity and the evidentiary value of the drug seized from appellant have not been compromised. Non-compliance with Sec. 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Sec. 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the courts. One example is that provided in Sec. 31 of Rule 132 wherein a party producing a document as genuine which has been altered and appears to be altered after its execution, in a part material to the question in dispute, must account for the alteration. His failure to do so shall make the document inadmissible in evidence. This is clearly provided for in the rules. There is no provision or statement in said law or in any rule that will bring about the nonadmissibility of the confiscated and/or seized drugs due to non-compliance with Sec. 21 RA 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of

weight — evidentiary merit or probative value — to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. The sale of shabu is penalized under Sec. 5, Art. II. Thereunder, the sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000 to P10million. The trial court pegged the fine at P5,000,000 which the CA reduced to P500,000. Both amounts are within the range provided for by law but the amount imposed by the CA, considering the quantity [0.290 gram] of the drugs involved, is more appropriate.

Elements of illegal possession; constructive possession People vs. Lagman, G.R. No. 186695 December 8, 2008 The essential elements of the crime of illegal possession of regulated drugs are the following: 1) the actual possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely or consciously possessed the said drug. Illegal possession of regulated drugs is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another. The finding of illicit drugs and paraphernalia in a building owned or occupied by a particular person raises the presumption of knowledge and possession thereof which, standing alone, is sufficient to convict. Maribel failed to present any convincing evidence to rebut the presumption of knowledge and possession of the regulated substances and paraphernalia found in her residence. As tenant of the house, she had full access to, full control of and dominion over the rooms.

Sec. 21, RA 9165 – procedure in ID of drug seized; In dubio pro reo Mallillin vs. People, G.R. No. 172953, April 30, 2008 Sec. 21 of the IRR of R.A. 9165 outlines the post-seizure procedure in taking custody of seized drugs – the officer acquiring initial custody of drugs under a search warrant must photograph and physical inventory the item at the place where the warrant has been served. EE deviated from this procedure. At the close of the search of petitioner's house, he brought the seized items immediately to the police station for the alleged purpose of making a "true inventory"

thereof, but there appears to be no reason why a true inventory could not be made in petitioner's house when in fact the apprehending team was able to record and mark the seized items and there and then prepare a seizure receipt therefor. The raiding team has had enough opportunity to cause the issuance of the warrant which means that it has had as much time to prepare for its implementation. While the final proviso in Sec. 21 of the rules would appear to excuse noncompliance therewith, the same cannot benefit the prosecution as it failed to offer acceptable justification for EE’s action. Likewise, EE's failure to deliver the seized items to the court demonstrates a departure from the directive in the search warrant that the items seized be immediately delivered to the trial court with a true and verified inventory of the same, required by Rule 126, Sec. 12 of the Rules of Court. This is mandatory to preclude substitution of or tampering with said items by interested parties. Thus, as a reasonable safeguard, the approval by the court which issued the search warrant is necessary before police officers can retain the property seized and without it, they would have no authority to retain possession thereof, more so deliver the same to another agency. Mere tolerance by the trial court of a contrary practice does not make the practice right because it violates the mandatory requirements of the law and it thereby defeats the very purpose for the enactment. Given the foregoing deviations of PO EE from the standard and normal procedure in the implementation of the warrant and in taking post-seizure custody of the evidence, reliance on the presumption of regularity in the conduct of police duty is manifestly misplaced. The presumption of regularity is just that — a mere presumption disputable by contrary proof and which when challenged by the evidence cannot be regarded as binding truth. This presumption cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt. The lack of conclusive identification of illegal drugs allegedly seized, coupled with the irregularity in the manner by which the same were placed under police custody before offered in court, strongly militates a finding of guilt. The burden of proving guilt lies on the prosecution which must rely on the strength of its own evidence and not on the weakness of the defense. The rule is invariable whatever may be the reputation of the accused, for the law presumes his innocence unless and until the contrary is shown. In dubio pro reo. When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right. People vs. Mateo G.R. No. 179478 July 28, 2008 The presumption that the public officers performed their duties regularly during the buy-bust operation was not overturned. Restated, the rule is that the testimonies of police officers involved in a buy-bust operation deserve full faith and credit, given the presumption that they have performed their duties regularly. This presumption can be overturned if clear and convincing evidence is presented to prove either of two things: (1) that they were not properly performing their duty, or (2) that they were inspired by any improper motive. People vs. Concepcion, G.R. No. 178876, June 27, 2008 The prosecution's failure to submit in evidence the required physical inventory of the seized drugs and the photograph pursuant to Sec. 21, Art. II of RA 9165 will not exonerate appellants. Non-compliance with said section is not fatal and will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, the integrity of the drugs seized intact. The chain of custody of the drugs subject matter of the case was shown not to have

been broken. After seizure of the drugs from appellants' possession, PO2 SS and PO2 AA marked them with their initials and turned them over to SPO1 LL who, on the same day, sent these plastic sachets containing white crystalline substance to PNP Provincial Crime Laboratory Office 3, Bulacan Provincial Office, Bulacan, for lab exam to determine the presence of dangerous drugs. After a qualitative examination conducted on the specimens the Forensic Chemical Officer, concluded that the white crystalline substance was positive for shabu. There can be no doubt that the drugs seized from appellants were the same ones examined in the crime laboratory. This statement is bolstered by the defense's admission of the existence, due execution and genuineness of the request for laboratory examination, the Chemistry Report and specimens submitted. Appellants' argument that the buy-bust operation was not coordinated with the PDEA is specious. From the testimonies of the defense witnesses, it is clear that they all know that the buybust operation was conducted by the elements of the PDEA. It is thus nonsensical for the defense to argue that the operation was not coordinated with the PDEA if it was the PDEA itself that conducted the entrapment. Moreover, said argument is belied by the defense's admission that the PDEA coordinated with Bgys Guyong and Poblacion via cellphone regarding the conduct of the buy-bust operation. Appellants' contention that they were not apprised of their constitutional rights upon their arrest cannot lead to their acquittal. The arresting officers' alleged failure to inform them of their Miranda rights or the nature of their arrest should have been raised before arraignment. It is too late in the day for appellants to raise these alleged illegalities after a valid information has been filed, the accused arraigned, trial commenced and completed, and a judgment of conviction rendered. Appellants claim that the PDEA, aside from its supposed non-compliance with RA 9165, failed to prove and execute certain matters that would show that a proper buy-bust operation was conducted. The alleged requirements for a proper buy-bust which the PDEA did not undertake include the following: (1) the prosecution failed to offer proof that appellants were known drug traffickers; (2) no surveillance was done to verify appellants' illicit activities; (3) the serial numbers of the boodle money were not jotted down in the log/blotter book during the planning and execution of the buy-bust operation; and (4) the boodle money prepared was grossly inadequate (P6,000.00) for the price of 2 plastic packs, total 10 grams, as one pack has a price of P6,000.00, which fact was known by the officers. Appellants' assertion that the prosecution should have offered proof showing that they are drug traffickers and are notorious in the drug trade as proof of a proper buy-bust operation, is without basis. There is no law or jurisprudence that requires such evidence before it can be held that there was a legal buy-bust operation. Also, the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. In the instant case, the entrapment or buy-bust operation was conducted without the necessity of any prior surveillance as the confidential informant, who was previously tasked by the buy-bust team leader to order dangerous drugs from appellant, accompanied the team to the person who was peddling the dangerous drugs. The failure of the PDEA operatives to record the boodle money will not render the buy-bust operation illegal. The recording of marked money used in a buy-bust operation is not one of the elements for the prosecution of sale of illegal drugs. The recording or non-recording thereof in an official record will not necessarily lead to an acquittal as long as the sale of the prohibited drug is adequately proven. In the prosecution for the sale of dangerous drugs, the absence of marked

money does not create a hiatus in the evidence for the prosecution as long as the sale is adequately proven and the drug subject of the transaction is presented before the court. Neither law nor jurisprudence requires the presentation of any money used in the buy-bust operation. What is material to a prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation of the corpus delicti as evidence. Appellants' argument that the poseur-buyer was not able to strike a deal or a sale because one of the elements of the crime charged was wanting — payment by the poseur-buyer for the thing sold or receipt of the marked money by the seller of the dangerous drugs — is erroneous. There is no rule of law which requires that in buy-bust operations there must be a simultaneous exchange of the marked money and the prohibited drug between the poseur-buyer and the pusher. Appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs under Sec. 5, Art. II of RA 9165. The charge was not limited to selling. Said section punishes not only the sale but also the mere act of delivery of prohibited drugs after the offer to buy by the entrapping officer has been accepted by the seller. In the distribution of prohibited drugs, the payment of any consideration is immaterial. The mere act of distributing the prohibited drugs to others is in itself a punishable offense. In the case at bar, the shabu was delivered to the poseur-buyer after appellants agreed on the price of the contraband. An examination of the information reveals that appellants were charged with selling, trading, delivering, giving away, dispatching in transit and transporting dangerous drugs consisting of 3 heat-sealed transparent plastic sachets weighing 5.080 grams, 4.446 grams and 4.362 grams, respectively. However, only 2 sachets were sold and delivered to the poseur-buyer. The third sachet was not sold or delivered but was found by PO2 AA in the glove compartment of the Hyundai van. Appellants could have been charged with possession of dangerous drugs on account of the third sachet. This was not done. They cannot be convicted of possession of dangerous drugs, though proved, without being properly charged therefor. The error on the part of the public prosecutor notwithstanding, appellants are still guilty as charged of selling and delivering the two sachets to the poseur-buyer. The sale of any dangerous drug, regardless of its quantity and purity, is punishable by life imprisonment to death and a fine of P500,000 to P10million. The statute, in prescribing the range of penalties imposable, does not concern itself with the amount of dangerous drug sold. But with the effectivity of RA 9346, the imposition of the penalty of death has been proscribed.

Mandatory drug testing under RA 9165; constitutionality of the provision SOCIAL JUSTICE SOCIETY vs. PDEA, G.R. 157870, Nov 3, 2008 The constitutionality of Section 36 of RA 9165 insofar as it requires mandatory drug testing of candidates for public office, students of secondary and tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor’s office with certain offenses, among other personalities, is put in issue. The questions raised are: (1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the Constitution?

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Do these paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation of legislative power? In essence, Pimentel claims that Sec. 36 (g) of RA 9165 and COMELEC Resolution 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of constitutional mandate, alter or enlarge the Constitution. Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) should be declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed. The drug test prescribed under Sec. 36(c), (d), and (f) for secondary and tertiary level students and public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in the process “the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs.” This statutory purpose, per the policy-declaration portion of the law, can be achieved via the pursuit by the state of “an intensive and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs and projects.” The primary legislative intent is not criminal prosecution, as those found positive for illegal drug use as a result of random testing are not necessarily treated as criminals. They may even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 are clear on this point: Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation.—A drug dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x. Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. —A drug dependent under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this Act subject to the following conditions: xxx xxx The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against unreasonable search and seizure under Sec. 2, Art. III of the Constitution. But while the right to privacy has long come into its own, this case appears to be the first time that the validity of a state-decreed search or intrusion through the medium of mandatory

random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably one of first impression. U. S. cases applied to this jurisdiction show teach that (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory. Guided by Vernonia and Board of Education, the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. It is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well-being of the people, particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected. Deterring drug use by schoolchildren is as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs; the necessity for the State to act is magnified by the fact that the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty. Needless to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting individual students. Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 for officers/employees of public/private offices is justifiable. The essence of privacy is the right to be left alone. The right to privacy means to be free from unwarranted exploitation of one’s person or from intrusion into private activities in such a way as to cause humiliation to ordinary sensibilities. The right to privacy yields to certain paramount rights of the public and defers to the state’s exercise of police power. In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy for employees and students under RA 9165 is in the nature of administrative search needing “swift and informal disciplinary procedures,” the probable-cause standard is not required or even practicable. The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.

Sec. 36 and its IRR contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in advance anyone when and who is to be tested. Sec. 36(d) prescribes that the employees concerned shall be subjected to random drug test as contained in the company’s work rules and regulations for purposes of reducing the risk in the work place For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee’s privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the DOH to safeguard against results tampering and to ensure an accurate chain of custody. In addition, the IRR provides that access to the drug results shall be on the “need to know” basis; that the drug test result and the records shall be confidential subject to the usual accepted practices to protect the confidentiality of the test results. Notably, RA 9165 does not oblige the employer to report to the prosecuting agencies any information or evidence relating to violation thereof received as a result of the drug testing. Therefore, the intrusion into the employees’ privacy is accompanied by safeguards, against embarrassing leakages of results, and is minimal. Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.

Bondad vs. People, G.R. No. 173804, December 10, 2008 The failure to comply with the requirements of Sec. 21 in a manner that compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant [violation of Sec 5, par. 2(3), Article II, RA 9165 and Section 11, par. 2(3)] his acquittal is in order.

No frustrated theft or robbery Valenzuela vs. People, GR No. 160188, June 21, 2007 Under Art. 308, theft can only be attempted or consummated. It does not have a frustrated stage as its element of unlawful taking, apoderamiento, is complete from the moment offender gains possession of the thing, even if he has no opportunity to dispose of it. The difference between a frustrated and consummated crime lies in whether the felony itself was actually produced by the acts of execution because in both stages, all the elements have been completed by the offender. Therefore, the statutory definition of theft under Art. 308 cannot admit

of a frustrated stage as theft is produced upon the completion of the element of unlawful taking. This ruling lays to rest the controversy about frustrated theft created by Diño and Flores. While Diño and Flores considered the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. Offenders should be convicted of consummated theft as they had finished loading the stolen merchandise onto a taxi cab when they were apprehended by security forces but before they could leave the market.

Assertion of falsehood on Perjury excludes assertion of belief Villanueva vs. Sec. of Justice, G.R. 162187, November 18, 2005 Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter. It is an obstruction of justice; its perpetration may affect the earnest concerns of the parties before a tribunal. The felony is consummated when the false statement is made. The seminal modern treatment of the history of perjury concludes that one consideration of policy overshadows all others – the measures taken against the offense must not be so severe as to discourage aggrieved parties from lodging complaints or testifying. The assertion must be deliberate and willful. Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to “knowingly.” Deliberately implies meditated as distinguished from inadvertent acts. It must appear that the accused knows his statement to be false or as consciously ignorant of its truth. Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a statement is an adequate defense. A false statement which is the result of an honest mistake is not perjury. There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; and (2) it must be proven that the defendant did not believe those statements to be true. Knowledge by accused of the falsity of his statement is an internal act. It may be proved by his admissions or by circumstantial evidence. His state of mind may be determined by the things he says and does, from proof of a motive to lie and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know. A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of accused. The prosecution must prove which of the statements is false and must show the statement to be false by other evidence than the contradicting statement. The rationale of this is, Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The statements will neutralize each other; there must be

some corroboration of the contradictory testimony. Such corroboration may be furnished by evidence aliunde to show perjury independently of the declarations of testimony of accused. Material matter refers to the main fact subject of the inquiry, or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony related to the subject of the inquiry, or which legitimately affects the credence of any witness who testified. Here, a matter is material if it has a material effect or tendency to influence the Commission in resolving the motion one way or the other. The effects of the statement are weighed in terms of potentiality rather than probability. It need not be proved that the false testimony actually influenced the Commission.

Art. 287 (unjust vexation vs. attempted rape) Baleros, Jr. vs. People, G.R. No. 138033, February 22, 2006 Petitioner forcefully covered the face of MM with cloth soaked in chemical. While this act does not constitute attempted rape, they constitute unjust vexation which is light coercion under Art. 287. There is no need to allege malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. The paramount question is whether the offender’s act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. MM after the incident cried while relating to her classmates what she perceived to be a sexual attack and she filed a case for attempted rape. These proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.

Death penalty, the Constitution vs. RA 9346; attempted rape vs. acts of lasciviousness People vs. Bon, G.R. No. 166401, October 30, 2006 It is carnal knowledge, not pain that consummates rape. Accused cannot be convicted of rape by presuming carnal knowledge out of pain. Complete penetration is not necessary to convict for consummated rape since the slightest penetration of one into the other will suffice. “Slightest penetration” means that there must be sufficient and convincing proof of the penis indeed touching at the very least the labia of the female organ. Mere epidermal contact between the penis and the external layer of the vagina (the stroking and the grazing of the male organ upon the female organ or the mons pubis) categorizes the crime as attempted rape or acts of lasciviousness. There must be positive proof of even the slightest penetration, more accurately, the touching of the labia by the penis, before rape could be deemed consummated. When accused was trying to penetrate the child’s organ, the act proved painful making him stop from further executing the act. Such fact shows that it failed to reach the labia of the pudendum. There is no basis then to apply the rule that the introduction of the penis into the aperture of the female organ (thereby touching the labia of the pudendum) consummates the rape.

In rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed. RA 7659 classified the crimes listed therein as “heinous” with accompanying legal effects such as the increase in imposable fines attached to certain heinous crimes; recognition that some crimes are more odious than others and consequently affected the proper pecuniary indemnities awarded to the victims of these crimes. RA 9346 did not correspondingly declassify those crimes catalogued as heinous. The amendatory effects of RA 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. Such crimes, by their abhorrent nature, constitute a special category by themselves. “Death,” as used in Art. 71 shall no longer form part of the equation in the graduation of penalties. In Art. 61(2) when the penalty prescribed is 2 indivisible penalties the next lower in degree is that immediately following the lesser of penalties in the respective graduated scale. Two degrees lower than reclusion perpetua to death is prision mayor. RA 9346 expressly repealed RA 7659 because it specifically repeals all laws, executive orders and decrees insofar as they impose the death penalty, not merely such enactments which are inconsistent therewith. The Constitution prohibits the imposition of the death penalty subject to its subsequent readoption at the choice of Congress. The highest penalty imposed under the RPC was “reclusion perpetua to death,” a penalty composed of 2 indivisible penalties. As a result, the SC had no occasion, after the passage of the 1987 Constitution, to consider the effect of the charter on penalties downgraded from a single indivisible penalty. It was RA 7659 which penalized crimes such as qualified rape and kidnapping for ransom with the single indivisible penalty of death. Unlike the Constitution, RA 9346 expressly stipulates the amendment of all laws insofar as they called for the imposition of the penalty of death. Following Muñoz, the 1987 Constitution have not abolished the death penalty but placed it under a suspensive condition. The death penalty between the 1987 Constitution and R.A. 7659 was “in a state of hibernation.” No longer because R. A. 9346 banned the death penalty. As R.A. 9346 downgraded the penalties, Art. 22 has to apply, except as to those persons defined as habitual criminal. It expressly recognized that its enactment would have retroactive beneficial effects to persons whose sentences were reduced to reclusion perpetua thereby. There may be convicts presently serving their original sentences whose actual served terms exceed their reduced sentences. The release of such convicts is not automatic, especially as there may be other reasons that exist for their continued detention. There are remedies under law that could be employed to obtain the release of such prisoners, if warranted.

When RA 8294 took effect; in case of parricide prior to effectivity People vs. Macoy G.R. 126253, August 16, 2000 MM was charged in two separate informations for parricide and illegal possession of firearm and ammunition committed on October 9, 1995. The cases were subsequently consolidated and tried jointly.

MM was convicted only for parricide because of RA 8294 which took effect on July 6, 1997 and is beneficial to the accused insofar as the charge for illegal possession is concerned. However, the use of unlicensed firearm as aggravating circumstance cannot be given retroactive effect as it will increase the penalty on him on the basis of Section 1 of the law. [Why parricide when the law says that unlicensed firearm is aggravating only for murder or homicide? The term is not generic to include all kinds of killing.]

Robbery with rape vis-à-vis rape and theft People vs. Naag, G.R. No. 136394, February 15, 2001 To be liable for the complex crime of robbery with rape the intent to take personal property of another must precede the rape. If the intention of the accused was to rob, but rape was committed even before the asportation, the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed the robbery when the opportunity presented itself, the offense should be viewed as separate and distinct. Art. 294 used “accompanied” by rape. It does not distinguish rape committed before, during or after the robbery. The tricycle driver mauled DD. She was strangled, boxed and kicked then repeatedly stabbed on her face, head, and different parts of her body. Her head was banged against the sidecar. She was brought to an abandoned place and after raping her, the driver took her valuables. It is obvious from the degree and character of the violence and intimidation employed (and the time he employed it) that his intent was to rape DD. He applied such force as to render her resistance inutile. The kind of force used was unnecessary if he only planned to rob DD. He also transported her to an abandoned place. All the time that DD was helpless after her mauling, appellant did not concern himself with robbing DD even if he could have done so with ease. At no time did he ask for her belongings. Neither did he search her for valuables, except for the wallet in her pants. What is apparent is that he only: (1) took her watch and bracelet, both easily seen and noticeable, and (2) fled with her bag which was already in the tricycle. These overt acts indicate that the taking was an afterthought and when the opportunity presented itself. The crime is theft for when he took personal properties, violence and intimidation was no longer present. The force upon her person was in pursuance of the rape, not of the taking. When the asportation happened, DD was near lifeless, incapable of putting any form of opposition.

Estafa; when deceit should occur; who should suffer the damage Gonzaludo vs. People, G.R. No. 150910, February 6, 2006 Mendezona, (1903) held that accused may be convicted for estafa only when the deceit or false pretenses, committed simultaneously with the fraud, were the efficient cause or primary consideration which induced the offended party to part with his money or property. Lilius, (1933] acquitted the accused of estafa because the deceit did not precede the defraudation, which means that the deceit was not the cause which could have induced the damage or prejudice to or loss of property suffered by the injured party.

Quesada (1934) and Fortuno(1941) applied the same principle in determining criminal liability for estafa – that the deceit must have been committed prior to or simultaneous with the fraudulent act because this was the only way that said deceit could become the efficient cause or primary consideration which could have induced the offended party to part with his money or property. The doctrine remains 100 years after. It must be complainant who should suffer the damages. While there may be fraud or deceit when Rosemarie used the surname “Villaflor” to give her semblance of authority to sell the subject house, such fraud or deceit was employed upon Canlas spouses who were the ones who parted with their money when they bought the house. The information charging Rosemarie of estafa alleged damage or injury not upon Canlas but upon Anita. Since the deceit or fraud was not the efficient cause and did not induce Anita to part with her property, Rosemarie cannot be liable for estafa.

Bigamy re: marriage ceremony Tenebro vs. CA, G.R. 150758, February 18, 2004 The subsequent judicial declaration of nullity of marriage does not retroact to the date of celebration of marriage insofar as penal laws are concerned. One who contracts a subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent judicial declaration that the second marriage is void ab initio. To hold otherwise would render nugatory penal laws on bigamy as it would allow individuals to deliberately ensure that marital contract be flawed and thus escape the consequences of contracting multiple marriages. Art. 349 penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a previous valid marriage. As soon as the second marriage is celebrated the crime of bigamy is consummated. Morigo vs. People, G.R. 145226 February 6, 2004 If a marriage ceremony was not held before a solemnizing officer the parties thereto merely signed a marriage contract, such signing does not operate to give validity to the marriage and therefore the first element of bigamy, that the accused must have been legally married, is not attendant. The mere private act of signing a marriage contract bears no semblance to a valid or ostensibly valid marriage and thus needs no declaration of nullity. What Article 40 of the Family Code contemplates as the void marriage which must first be declared a nullity before a party can remarry is one which must exist although it is void. For, even if it is void, it is a legal impediment to marry such that if there is no prior declaration of its nullity, one cannot contract a subsequent marriage. Two kinds of rape; how victim should testify; minority of victim People vs. Abulon, G.R. No. 174473, August 17, 2007 RA 8353 revolutionized the concept of rape in that it should include sexual violence on the woman’s sex-related orifices other than her organ, and expanded to cover gender-free rape. The transformation consisted of reclassification of rape as a crime against persons and the introduction of rape by “sexual assault” as differentiated from the traditional “rape through carnal knowledge” or “rape through sexual intercourse.”

Par. 1, Sec. 2, RA 8353, (Art. 266-A, RPC) covers rape through sexual intercourse or “organ rape” or “penile rape” while par. 2 refers to rape by sexual assault otherwise called “instrument or object rape,” also “gender-free rape,” or the narrower “homosexual rape.” The differences between the two modes of committing rape are: (1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman; (2) In the first, the offended party is always a woman, while in the second, the offended may be a man or a woman; (3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) The penalty for rape under the first is higher than the second. In view of the material differences between the two, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault without violating his right to be informed of the nature and cause of the accusation against him. Following the variance doctrine in Sec. 4, in relation to Sec. 5, Rule 120, Rules of Court, appellant can be convicted of the lesser offense of acts of lasciviousness or abusos dishonestos necessarily included in rape. The reluctance of victims to pursue the case is one of the motivations of Congress to reclassify rape as a crime against person. This is necessary for under the existing law, only the victim can file a complaint, or her parents, or grandparents in that order, which is very restrictive. Now, any citizen can file a complaint. Thus, despite disinterest in pursuing the case, the choice of whether the cases would prosper was no longer hers alone. Each and every charge of rape is a separate and distinct crime thus each of the other rape charges should be proven beyond reasonable doubt. AA’s testimony about the subsequent incidents of rape follows: Q.

What about the second rape, what did he do to you?

A.

The same. Q.

A.

What about the third rape, how did he do it to you?

The same procedure, ma’am.

Such responses are inadequate to sustain conviction for they utterly lack in material details that would warrant a finding of guilt beyond reasonable doubt. Marahay found insufficient the answer that her father “used her” with no other detail to show the elements that constitute rape. In establishing the minority of the victim, the rules are:

1. The best evidence to prove the age of the offended is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a family member by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of offended shall be sufficient 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 certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

Use of finger whether rape or acts of lasciviousness People vs. Cabellos G.R. No. 169642 September 12, 2008 R.A. 8353 was in effect when the criminal act was committed by inserting a finger into another’s genital which is penalized as rape by sexual assault under par. 2, Art. 266-A. But the Information charged appellant with rape under Art. 335. Thus, he cannot be convicted of rape by means of sexual assault for that would violate his right to be informed of the nature of the charge against him. Since acts of lasciviousness is necessarily included in rape he could be convicted of the latter. Relationship, under Art 15 is aggravating in acts of lasciviousness; award of exemplary damages is justified under Article 2230, Civil Code.

Child Prostitution/other sexual abuse –offense designation; sweetheart theory; offense and felony cannot be complexed Malto vs. People G.R. No. 164733 September 21, 2007

A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense and the place where the offense was committed. The complaint or information shall state (a) the designation of the offense by the statute, (b) the acts or omissions constituting the offense and (c) its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute. The acts or omissions and the qualifying/ aggravating circumstances must be stated in ordinary and concise language, not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know the offense being charged and its qualifying/aggravating circumstances and for the court to pronounce judgment. The elements of Section 5(a), Art III on Child Prostitution and Other Sexual Abuse are: 1. The accused engages in, promotes, facilitates or induces child prostitution; 2. The act is done through, but not limited to, the following means: a.

acting as a procurer of a child prostitute;

b. inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c.

taking advantage of influence or relationship to procure a child as a prostitute;

d. threatening or using violence towards a child to engage him as a prostitute or e. giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution.

3. The child is exploited or intended to be exploited in prostitution and 4. The child, whether male or female, is below 18 years of age.

On the other hand, the elements of paragraph (b) thereof are: 1. Accused commits the act of sexual intercourse or lascivious conduct; 2. The act is performed with a child exploited in prostitution or subjected to other sexual abuse and 3. The child, whether male or female, is below 18 years of age. The first element pertains to the act or acts committed by the accused. The second refers to the state or condition of the offended party. The third to the minority or age of the offended party.

Paragraph (a) essentially punishes acts pertaining to or connected with child prostitution. It contemplates sexual abuse of a child exploited in prostitution. In other words, the child is abused primarily for profit. Par. (b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. It covers not only a situation where a child is abused for profit but also one in which a child, through coercion, intimidation or influence, engages in sexual intercourse or lascivious conduct. The information against petitioner was that he had carnal knowledge or committed sexual intercourse and lascivious conduct with AA; she was induced and/or seduced by petitioner who was her professor to indulge in sexual intercourse and lascivious conduct and AA was a minor. These allegations support a charge for violation of par (b). The designation in the information of the specific statute violated is imperative to avoid surprise and to afford accused the opportunity to prepare his defense accordingly. However, the failure to designate the offense by statute or to mention the specific provision penalizing the act, or an erroneous specification of the law violated does not vitiate the information if the facts alleged clearly recite the facts constituting the crime charged. What controls is not the title of the information or the designation of the offense but the actual facts recited in the information. In other words, it is the recital of facts, not the nomenclature of offense that determines the crime charged in the information. Due to the influence of petitioner, AA indulged in lascivious acts with or allowed him to commit lascivious acts on her. This was repeated and she also indulged in sexual intercourse with petitioner as a result of his influence and moral ascendancy. Thus, she was a “child subjected to other sexual abuse” defined thusly: A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Violation of Sec. 5(b), Art. III is an offense under a special law while rape is a felony under the RPC. They have different elements; are separate and distinct crimes. Thus, petitioner can be held liable for violation of RA 7610 despite a finding that he did not commit rape. The sweetheart theory applies in acts of lasciviousness and rape, felonies committed against or without the consent of the victim. It operates on the theory that the act was consensual. It requires proof that accused and the victim were lovers and that she consented to the sexual relations. For purposes of sexual intercourse and lascivious conduct under RA 7610, the sweetheart defense is unacceptable. A child exploited in prostitution or subjected to other sexual abuse cannot validly give consent to sexual intercourse with another person. The law is clear: it punishes those who commit sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse. Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5, Article III of RA 7610. The mere act of having sexual intercourse or committing lascivious conduct with a child exploited in prostitution or subjected to sexual abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed. A child cannot give consent to a contract under civil laws. This is because she can easily be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her

actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who, because of their minority, are as yet unable to take care of themselves fully. Those of tender years deserve its protection. The harm which results from a child’s bad decision in a sexual encounter may be infinitely more damaging to her than a bad business deal. Thus, the law should protect her from the harmful consequences of her attempts at adult sexual behavior. For this reason, a child should not be deemed to have validly consented to adult sexual activity and to surrender herself in the act of ultimate physical intimacy under a law which seeks to afford her special protection against abuse, exploitation and discrimination. (Otherwise, sexual predators will be justified, or even unwittingly tempted by the law, to view her as fair game and vulnerable prey.) In other words, a child is presumed by law to be incapable of giving rational consent to any lascivious act or sexual intercourse. The State policy is to promote the physical, moral, spiritual, intellectual and social wellbeing of the youth consistent with the declared policy. This is in harmony with the foremost consideration of the child’s best interests in all actions concerning him or her. Consistent with the objective to afford children special protection against abuse, exploitation and discrimination and with the principle that every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same, civil indemnity to the child is proper in a case involving violation of said provision. Every person criminally liable is civilly liable. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. Thus, P50,000 civil indemnity ex delicto is awarded. It is error to grant a single amount as “moral and exemplary damages.” In every case, courts must specify the award of each item of damages and make a finding thereon in the body of the decision. Moral and exemplary damages should be separate items of award. AA was emotionally devastated as a result of what petitioner did. She is entitled to moral damages of P50,000. However, in the absence of an aggravating circumstance, exemplary damages is unwarranted.

People vs. Montinola, G.R. No. 178061, January 31, 2008 MM was convicted for acts of lasciviousness under Sec. 10(a), RA 7610. The Court sustains MM’s conviction but held him liable under Sec 5(b). Sec 5(b) covers acts of lasciviousness while Sec 10(a) covers other acts of abuse. Sec. 5(b) provides: SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, x x x who for money, profit, or any other consideration or due to the coercion or influence of any adult, xxx indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. xxxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse xxx

Navarrete held that sexual abuse under Sec 5(b) has three elements: (1) accused commits an act of sexual intercourse or lascivious conduct; (2) said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child is below 18 years old. In Sec. 32 of the IRR of RA 7610, lascivious conduct includes the intentional touching, either directly or through clothing, of the genitalia and inner thigh, with intent to arouse or gratify the sexual desire of any person. Navarrete held that a child is deemed subjected to other sexual abuse when the child indulges in lascivious conduct under the coercion or influence of any adult. Amployo said intimidation need not necessarily be irresistible. It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. This is especially true in the case of young, innocent and immature girls who are not expected to act with equanimity of disposition and with nerves of steel. Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat. Navarrete punished the accused under Sec. 5(b) for touching complainant’s vagina. Candaza punished accused under Sec. 5(b) for kissing the lips and mashing the breasts of the complainant. Amployo punished accused under Section 5(b) for touching the breasts of the complainant. In keeping with jurisprudence, MM is liable under Sec 5(b) for caressing the thigh and touching the vagina of AAA. The alternative circumstance of relationship under Article 15, RPC should be considered against Montinola. In crimes against chastity, like acts of lasciviousness, relationship is aggravating.

People vs. Court of Appeals, G.R. No. 171863, August 20, 2008 Section 10(a) of R.A. 7610 provides: SEC 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the Child's Development. – (a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of PD 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum period. Section 5(b), upon the other hand, provides: SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: x x x x (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious

conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x

Section 10 refers to acts of child abuse prejudicial to the child's development other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution, child trafficking, attempt to commit child trafficking, and obscene publications and indecent shows. Sexual abuse, as defined under Section 5 is a completely distinct and separate offense from child abuse as defined under Sec 10. Consensual sexual intercourse or even acts of lasciviousness with a minor who is 12 years old or older could constitute a violation of Section 5(b) of R.A. 7610. For Section 5(b) punishes sexual intercourse or lascivious conduct not only with a child exploited in prostitution but also with a child subjected to other sexual abuse. Sec. 2(g) of the Rules and Regulations on the Reporting and Investigation of Child Abuse Cases, to implement R.A. 7610, defines "sexual abuse" as including "the employment, use, persuasion, inducement, enticement or coercion of a child to engage in, or assist another person to engage in, sexual intercourse or lascivious conduct or the molestation, prostitution, or incest with children." For consensual sexual intercourse or lascivious conduct with a minor, who is not exploited in prostitution, to fall within the purview of Sec. 5(b), "persuasion, inducement, enticement or coercion" of the child must be present. Larin, convicted accused for the information alleged that he took advantage of his authority, influence, and moral ascendancy as trainor/ swimming instructor of the minor victim which constituted "psychological coercion." In convicting the accused for lascivious acts, it held that the law covers not only a situation in which a child is abused for profit, but also one in which a child, through coercion or intimidation, engages in any lascivious conduct. Malto convicted accused for violation of Sec 5(b) as the information alleged that accused who was the minor's professor obtained her consent by taking advantage of his relationship and moral ascendancy to exert influence on her. In the case at bar, even if respondent were charged under Sec. 5(b), instead of Sec. 10(a), respondent would be acquitted as there was no allegation that an element of the offense - coercion or influence or intimidation - attended its commission. [N.B. In effect the pronouncement in Malto that minors cannot give valid consent to a sexual act was qualified herein. She cannot give consent to a contract but she can consent to the sexual act which Malto said is contrary to the State policy of protecting the welfare of the minor.]

People vs. Abay, G.R. No. 177752, February 24, 2009 Under Sec. 5(b), Art. III of RA 7610 in relation to RA 8353, if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under the RPC and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse (sexual intercourse with a child subjected to abuse) under Sec. 5(b) of RA 7610 or rape under Art. 266-A (except paragraph 1[d]),

RPC. However, offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with violation of Sec. 5(b). Under Sec. 48 of the RPC, a felony thereunder (such as rape) cannot be complexed with an offense penalized by a special law. (People v. Araneta, 48 Phil. 650). In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 old at the time. Therefore, appellant may be prosecuted either for violation of Sec. 5(b) of RA 7610 or rape under the RPC. People vs. Abello G.R. No. 151952

March 25, 2009

Par. (h), Sec. 2 of the IRR of R.A. 7610 defines lascivious conduct (LC)as a crime committed through the intentional touching, directly or through the clothing of the genitalia, anus, groin, breast, inner thigh or buttocks with intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, among others. LC should be committed on a child who is either exploited in prostitution or subjected to other sexual abuse which means that: (a) the victim was either exploited in prostitution or subjected to sexual abuse and (b) she is a child as defined under RA 7610. Olivarez v. CA explained that "other sexual abuse" covers not only a child abused for profit, but also one who engages in lascivious conduct through the coercion or intimidation by an adult. In the latter case, there must be some form of compulsion equivalent to intimidation which subdues the free exercise of the offended party’s will. In the present case, the prosecution failed to present any evidence showing that force or coercion attended Abello’s sexual abuse on AAA; the evidence reveals that she was asleep at the time these crimes happened and only awoke when she felt her breasts being fondled. Hence, she could have not resisted Abello’s advances as she was unconscious at the time it happened. In the same manner, there was also no evidence showing that Abello compelled her, or cowed her into silence to bear his sexual assault, after being roused from sleep. Neither is there evidence that she had the time to manifest conscious lack of consent or resistance to Abello’s assault. More importantly, AAA cannot be considered a child under Sec. 3(a): (a) "Children" refers to person below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition; The IRR elaborated when it defined a "child" as one who is below 18 years of age or over said age who, upon evaluation of a qualified physician, psychologist or psychiatrist, is found to be incapable of taking care of herself fully because of a physical or mental disability or condition or of protecting herself from abuse. While AAA’s polio is a physical disability that rendered her incapable of normal function, no evidence was presented showing compliance with the rules. Specifically, the prosecution did not present any evidence of any medical evaluation or medical finding from a qualified physician, psychologist or psychiatrist attesting that AAA’s physical condition rendered her incapable of fully taking care of herself or of protecting herself against sexual abuse. Under the circumstances, AAA is not a child under R.A. 7610.

Since R.A. 7610 is a special law referring to a particular class in society, the prosecution must show that the victim truly belongs to this particular class to warrant the application of the statute’s provisions. Any doubt in this regard must be resolved in favor of the accused. From another perspective, no evidence has been adduced showing that AAA’s physical disability prevented her from resisting Abello’s attacks; the evidence only reveals that Abello took advantage of the opportunity to commit the sexual abusesas shown by the fact that he stopped his sexual assault when AAA started to awaken. It can also be deduced from these circumstances that Abello sought to commit sexual abuses with impunity -- without AAA’s knowledge and without any interference on her part. In light of these conclusions, Abello is not liable under R.A. 7610 but he is liable for acts of lasciviousness under Article 336 of the RPC, as amended. Olivarez emphasized that the character of the crime is not determined by the caption or preamble of the information or from the specification of the provision of law alleged to have been violated; the crime committed is determined by the recital of the ultimate facts and circumstances in the complaint or information. In the present case, although the two Informations wrongly designated RA7610 as the law violated; the allegations therein sufficiently constitute acts punishable under Art 336 RPC: 1. That the offender commits any act of lasciviousness; 2. That the offended party is another person of either sex; and 3. That it is done under any of the following circumstances: a. By using force or intimidation; or b. Offended is deprived of reason or otherwise unconscious; or c. When offended party is under 12 years of age or is demented. The third element was proven by her testimony that, on two occasions, Abello mashed her breasts while she was sleeping.

Moot and academic principle not automatic; instances Constantino vs. Sandiganbayan, G.R. No. 140656, Sept. 13, 2007 The "moot and academic" principle does not automatically dissuade the courts in resolving a case if: (1) there is a grave violation of the Constitution; (2) the exceptional character of the situation and the paramount public interest is involved; (3) when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and

(4) the case is capable of repetition yet evading review. There are two modes of committing the offense under Sec. 3(e), RA 3019: (1) the public officer caused any undue injury to any party, including the government; or (2) the public officer gave any private party unwarranted benefits, advantage or preference in the discharge of his functions.

Sec 3(e) poses the standard of manifest partiality, evident bad faith or gross inexcusable negligence before liability can be had. Manifest partiality is characterized by a clear, notorious or plain inclination or predilection to favor one side rather than the other. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. Gross inexcusable negligence is characterized by the want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. Mere bad faith or partiality and negligence per se are not enough; bad faith must be evident, partiality manifest, while the negligent deed should both be gross and inexcusable. Manifest partiality could not be imputed to Constantino as there is no proof that he was actuated with malice or fraud sufficient to meet the requirement of proof beyond reasonable doubt. The standard of culpability imposed by Sec. 3 is quite high which was not hurdled by the evidence presented. While Constantino should have exercised more prudence when he transacted with Norlovanian Corporation, he could not be held liable for “gross inexcusable negligence.” In the earlier case of Constantino v. Desierto, there was express finding that Constantino did not violate the mandate of Res. 21 but instead carried out its directive. Although the instant case involves a criminal charge whereas Constantino involved an administrative charge, still the findings in the latter case are binding herein because the same set of facts are the subject of both cases. What is decisive is that the issues already litigated in a final and executory judgment preclude— by the principle of bar by prior judgment, an aspect of the doctrine of res judicata, and even under the doctrine of “law of the case,” —the re-litigation of the same issue in another action. When a right or fact has been judicially tried and determined by a court of competent jurisdiction, so long as it remains unreversed, it should be conclusive upon the parties and those in privity with them. The dictum therein laid down became the law of the case and what was once irrevocably established as the controlling legal rule or decision continues to be binding between the same parties as long as the facts on which the decision was predicated continue to be the facts of the case before the court. Hence, the binding effect and enforceability of that dictum can no longer be resurrected anew since such issue had already been resolved and finally laid to rest, if not by the principle of res judicata, at least by conclusiveness of judgment. The basis of administrative liability differs from criminal liability as the purpose of administrative proceedings is mainly to protect the public service; while the purpose of the criminal prosecution is the punishment of crime. However, the dismissal of the administrative case against Constantino based on the same subject matter and after examining the same crucial evidence operates to dismiss the criminal case because of the precise finding that the act from which liability is anchored does not exist. The same evidence cannot with greater reason satisfy the higher standard in criminal cases which is evidence beyond reasonable doubt.

One of the essential elements for violating Sec. 3(e) is that respondent is discharging administrative, judicial or official functions, or that he is a private individual in conspiracy with such public officer. The acquittal of Constantino removes the critical requisite of a public officer with whom Lindong, the private individual, allegedly conspired to commit the crime. It is illogical to absolve Constantino who entered into the contract on behalf of the government and send the private person to prison. Moreover, Rule 122, Section 11(a) provides that an appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment is favorable and applicable to the latter.

People vs. Romualdez, G.R. No. 166510 July 23, 2008 Sec. 3 (e) of RA 3019 requires that: 1. The accused must be a public officer discharging administrative, judicial or official functions; 2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence in the discharge of his functions; and 3. His action caused undue injury to any party, including the government, or gave private party unwarranted benefits, advantage or preference. Article XII (B), Section 4, 1973 Constitution provides, “Unless otherwise provided by law, no elective official shall be eligible for appointment to any office or position during his tenure except as Member of the Cabinet.” Sec. 44 of PD 807 on the organization of the CSC states that: “Limitation on Appointment. - No elective official shall be eligible for appointment to any office or position during his term of office.” On double compensation, the 1973 Constitution has a specific provision – Art. XV, Sec. 5 - which states: “No elective or appointive public officer or employee shall receive additional or double compensation unless specifically authorized by law, nor accept, without the consent of the Batasang Pambansa, any present, emolument, office or title of any kind from any foreign state.” Neither the Sandiganbayan nor Romualdez has pointed to any law that would exempt Romualdez from the above-cited prohibitions. In the context of ruling on a motion to quash, the allegation that services were not rendered that the Sandiganbayan wished to require, not being a fact material to the elements of the offense, is an extraneous matter that is inappropriate for the Sandiganbayan to consider for inclusion in the Information. That the Sandiganbayan has a fixation on this approach is patent from a reading of the second assailed Resolution when the Sandiganbayan, following the same line of thought, once more insisted that "receiving compensation is an incident of actual services rendered, hence it cannot be construed as injury or damage to the government." Thus, Sandiganbayan grossly erred in the same manner as the first Resolution.

For Sandiganbayan to assume and to conclude that there was no damage and prejudice since there was no illegality in being compensated for actual services rendered, is to pass upon the merits of the case — a task premature for it to undertake at the motion-to-quash stage of the case. In so doing, the Sandiganbayan prematurely ruled on at least two matters. First, the Sandiganbayan either assumed as correct, or admitted for purposes of the motion to quash, the defense allegation that Romualdez rendered services, when this is a disputed evidentiary matter that can only be established at the trial. Second, the legal status of the receipt of compensation for each of two incompatible offices is, at best, legally debatable. The Sandiganbayan repeated this premature ruling on the merits of the case in its subsequent statement in the first Resolution that "the accused may have been inefficient as a public officer by virtue of his holding of two concurrent positions, but such inefficiency is not enough to hold him criminally liable under the Information charged against him, given the elements of the crime and the standards set by the Supreme Court . . . At most, any liability arising from the holding of both positions by the accused may be administrative in nature." Worse was the patent speculation that the Sandiganbayan undertook in considering "inefficiency" and arriving at its conclusion. Still much worse was its misreading of what a violation of Sec. 3 (e), RA 3019 involves. Correctly understood, it is not the holding of two concurrent positions or attendant efficiency in the handling of these positions, but causing undue injury to the government that is at the core of a Sec. 3 (e) violation. The same misreading was evident when Sandiganbayan stated in its second Resolution that "accused cannot be held criminally liable, whether or not he had himself appointed to the position of the ambassador, while concurrently holding the position of provincial governor, because the act of appointment is something that can only be imputed to the appointing authority." The Sandiganbayan fared no better and similarly gravely abused its discretion in the second Resolution when it concluded that that there could be no damage and prejudice to the government "in the absence of any contention that receipt of such was tantamount to giving unwarranted benefits, advantage or preference to any party and to acting with manifest partiality, evident bad faith or gross excusable negligence." That no allegation of "giving unwarranted benefits, advantage or preference to any party" appears in the Information is due obviously to the fact that this allegation is not necessary. "Giving a private party unwarranted benefits, advantage or preference" is not an element that must necessarily be alleged to complete the recital of how Sec. 3 (e) is violated because it is only one of two alternative modes of violating this provision, the other being causing "undue injury to any party, including the government." In short, the Information is complete solely on the basis of the "undue injury" allegation. Even a cursory examination of the Information would show that an allegation of "evident bad faith" was expressly made, complete with a statement of how the bad faith was manifested, that is, "being then the elected Provincial Governor of Leyte and without abandoning such position, and using his influence with his brother-in-law, then President Ferdinand E. Marcos, [Romualdez] had himself appointed and/or assigned as Ambassador to foreign countries . . ." Whether this allegation can be proven by evidence or established through an analysis of the nature of the power of appointment remains to be seen after trial, not at the motion-to-quash stage of the case. At this earlier stage, all that is required is for this allegation to be an ultimate fact directly providing for an element of the offense. Its errors are so patent and gross as to amount to action outside the contemplation of law. Thus, the declaration of the nullity of the assailed Sandiganbayan Resolutions is in order.

Res judicata in prison grey Trinidad vs. Ombudsman, G.R. No. 166038, December 4, 2007 Res judicata is civil law doctrine with no bearing on criminal proceedings. Even if petitioner’s argument were expanded to contemplate “res judicata in prison grey” or the criminal law concept of double jeopardy, this is still inapplicable to bar the reinvestigation by the Office of the Ombudsman. Dismissal of a case during preliminary investigation (PI) does not constitute double jeopardy, PI not being part of the trial. The Ombudsman is not precluded from ordering another review of a complaint, for he may revoke, repeal or abrogate the acts or previous rulings of a predecessor in office. New matters or evidence are not prerequisites for a reinvestigation, which is a chance for the prosecutor to review and re-evaluate its findings and the evidence on record. Reyes does not apply because its pronouncement therein applied only pro hac vice. Petitioner was guilty of laches to bar her from seeking relief. But estoppel does not apply against the People in criminal prosecutions. Social and public interests demand the punishment of the offender in public offenses like violation of the Anti-Graft Law, hence, criminal actions therefor cannot be waived or condoned, or barred by estoppel. Criminal liability cannot be the subject of a compromise, for a criminal case is committed against the People, and the offended party may not waive or extinguish the criminal liability that the law imposes for its commission. And that explains why a compromise is not one of the grounds in the RPC for the extinction of criminal liability. Even a complaint for misconduct, malfeasance or misfeasance against a public officer or employee cannot just be withdrawn at any time by the complainant because of the need to maintain the faith and confidence of the people in the government and its agencies and instrumentalities. Therefore, the order dismissing the civil case does not bar petitioner’s criminal prosecution. Republic dismissed the criminal case based on the compromise by the accused and PCGG which gave accused absolute immunity from criminal and civil prosecutions. The PCGG, unlike AEDC, is a government agency expressly authorized by law to grant civil and criminal immunity.

When Sandiganbayan will have jurisdiction over homicide; over public officer below SG 27 and who is not accountable officer Crisostomo vs. Sandiganbayan, G.R. No. 152398, April 14, 2005 Murder and homicide will never be the main function of any public office. No public office will ever be a constituent element of murder. When then would murder or homicide, committed by a public officer, fall within the exclusive and original jurisdiction of the Sandiganbayan? Montejo answers: a public officer commits an offense in relation to his office if he perpetrates the offense while performing, though in an improper or irregular manner, his official functions and he cannot commit the offense without holding his public office. In such case, there is an intimate connection between the offense and the office of accused. If the information alleges such close connection

between the offense and the office of accused, it falls within the jurisdiction of Sandiganbayan. Montejo is an exception that Sanchez v. Demetriou recognized.

Barriga vs. Sandiganbayan, G.R. 161784-86, April 26, 2005 A public officer who is not in charge of public funds or property by virtue of his official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property. For instance, the public office of the accused Mayor is a constituent element of malversation and illegal use of public funds or property. The mayor’s position is classified as SG 27. Since the Informations alleged that etitioner conspired with her co-accused, the mayor, in committing said felonies, the fact that her position as accountant is classified as SG 24 and as such she is not an accountable officer is of no moment. The Sandiganbayan has exclusive original jurisdiction over the cases against her since one of the accused in the case occupies SG 27. Under Sec. 474, RA 7160, a municipal accountant is not obliged to receive public money or property, nor is she obligated to account for the same. She is not, within the context of Art. 217, RPC an accountable officer defined as one with actual control of public funds or property by reason of the duties of his office. Even then, it cannot be concluded that a municipal accountant cannot be convicted for malversation. The name or relative importance of the office or employment is not the controlling factor. The nature of the duties of the public officer, that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. There are two kinds of public office related crimes: 1. Those in which the public office is a constituent element as defined by statute and the relation between the crime and the offense is such that, in a legal sense, the offense committed cannot exist without the office; and 2. Such offenses or felonies which are intimately connected with the public office and are perpetrated by the public officer or employee while in the performance of his official functions, through improper or irregular conduct. Malversation and technical malversation are compared as follows: 1.

The offenders are accountable officers in both crimes.

2. The offender in illegal use of public funds or property does not derive any personal gain or profit; in malversation, the offender in certain cases profits from the proceeds of the crime. 3. In illegal use, the fund or property is applied to another public use; in malversation, the public fund or property is applied to the personal use and benefit of the offender or of another person.

4. In technical malversation, the act is not illegal per se because it is applied to another public use; in malversation it is illegal per se because the public funds were diverted to personal use. 5. In the former, there must be an appropriation either by law such as a general appropriation law or an ordinance enacted by a local legislative body. In the latter, there is no such requirement. Since the act in technical malversation is not illegal per se, the presumption of criminal intent does not apply. Presumed malice; freedom of the press FLOR vs. PEOPLE March 31, 2005 Every defamatory imputation is presumed malicious except: Per Art. 354: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; 2. A fair and true report made in good faith, without any comments or remarks: (i) of any judicial, legislative or other official proceedings which are not of confidential nature, or (ii) any statement, report, speech delivered in said proceedings, or (iii) any other act performed by public officers in the exercise of their functions, and Pursuant to the Bill of Rights of the Constitution: 3. Fair commentaries on matters of public interest. (Constitution) These exceptions are qualifiedly privileged statements. There two kinds of privileged statements: 1. Absolutely privileged which enjoy immunity regardless of existence of malice in fact. Examples: - Statements in official proceedings of legislature by its members - Statements made in judicial proceedings but only if pertinent or relevant to the case involved. 2. Qualifiedly or conditionally privileged communications -actionable provided malice in fact is established. To be able to demand damages from the press for libel, it must be shown that the statement was made with actual malice – with knowledge that it was false or with reckless disregard of whether it was false or not. (Rule of actual malice; New York Times Test) Reckless conduct is not measured by whether a prudent man would have published or would have investigated before publishing. There must be sufficient evidence that the defendant in fact

entertained serious doubts as to the truth of his publication. False statements alone are not actionable. Maliciousness may be shown only through knowledge of falsity or reckless disregard of truth or falsity. The party who should prove truth of allegations of official misconduct and/ or good motives and justifiable ends is the prosecution, not the accused as it would be contrary to Art. 361 and more importantly infringe freedom of expression. The headline alone of the newspaper cannot be deemed libelous. It must be read and construed with the language that follows. The wording of headline may contain exaggeration but it represents a fair index of the contents of the news story accompanying it. Procurement Law; principles of public bidding; effect of lack of ITC vs. COMELEC G.R. 159139. January 13, 2004 There is grave abuse of discretion when (1) An act is done contrary to the Constitution, law or jurisprudence; or (2) When it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. The Comelec awarded the Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004 elections, it awarded the Contract to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this, the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company which bidded but had not met the eligibility requirements. Comelec awarded the billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It accepted the computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections. Because of violations of law and grave abuse of discretion committed, the subject Contract is void. Comelec flagrantly violated the public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to MPC/MPEI. Further, the Commission further desecrated the law on public bidding by permitting the winning bidder to change and alter the subject of the Contract in effect allowing a substantive amendment without public bidding. This is contrary to the requirement of strict application of pertinent rules, regulations and guidelines for public bidding for the purpose of placing each bidder, actual or potential, on the same footing. The essence of public bidding is opportunity for fair competition, and a fair basis for the precise comparison of bids. Public bidding aims to "level the playing field" - each bidder must bid under the same conditions and be subject to the same guidelines, requirements and limitations, so that the best offer or lowest bid may be determined, all other things being equal.

It is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and those under which proposals are submitted and approved; or, the conditions under which the bid is won and those under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public bidding — after the bidding process had been concluded — is violative of the public policy on public biddings, as well as the spirit and intent of RA 8436. The whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding was totally subverted by the Commission. As a consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto including the still-to-be-produced software, as well as all payments made therefor, have no basis in law. The public funds expended pursuant to the void Contract must be recovered from the payees and/or from the persons who made possible the illegal disbursements, without prejudice to criminal prosecutions against them. Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held accountable for the electoral mess wrought by their grave abuse of discretion in the performance of their functions. The State is not bound by the mistakes and illegalities of its agents and servants. OANI VS. PEOPLE G.R. 139984 March 31 2005 

What are the aims of public bidding?

To protect public interest by giving the public the best possible advantages thru open competition that is legitimate, fair and honest; to avoid or preclude suspicion of favoritism and anomalies in the execution of public contracts. 

To what kind of transactions do these aims pertain?

To government contracts and to disposition of government assets. In government contracts, the award is generally given to the lowest bidder, while in the disposition of government assets, the award is to the highest bidder. 



What are the three principles of public bidding 1.

The offer to the public

2.

An opportunity for competition

3.

and a basis for exact comparison of bids

What is the status of contract granted sans competitive bidding? Void and the party to whom it is awarded cannot benefit from it.

Medical malpractice; res ipsa loquitor Reyes, et al. vs. Sis. of Mercy Hospital , October 2000

In accepting a case, a doctor represents that, having the needed training and skill possessed by physicians and surgeons practicing in his patients, he has a duty to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. Inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. Petitioner’s action is for medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are thus 4 elements involved in medical negligence cases: duty, breach, injury, and proximate causation. Expert testimony may be dispensed with under the doctrine of res ipsa loquitur because the injury itself provides the proof of negligence for the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Where res ipsa loquitor is applicable, the court can find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where from the court’s fund of common knowledge it can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine without medical evidence, which is required to show what occurred, how and why it occurred. When the doctrine is appropriate, all that must be proved is a nexus between the act or omission complained of and the injury sustained while under the custody and management of defendant. Resort to res ipsa loquitur is allowed for there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. The following are examples when the res ipsa loquitur rule was applied: 1. Leaving of a foreign object in the body of patient after an operation; 2. Injuries sustained on a healthy part of the body which was not under, or in the area, of treatment; 3. Removal of wrong part of the body when another part was intended; 4. Knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils; and

5. Loss of an eye while the patient was under the influence of anesthetic, during or following an operation for appendicitis. The requisites for the application of res ipsa loquitur are: 1.

The accident was of kind which does not ordinarily occur unless someone is negligent;

2. The instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and 3. The injury suffered must not have been due to any voluntary action or contribution of the person injured. Res ipsa loquitur is not rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have been followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. The doctrine however has no application in a suit which involves the merits of a diagnosis or scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. People vs. Capwa, G.R. NO. 174058, December 27, 2007 Accused questions the propriety of allowing the amendment of the Information from attempted to consummated rape. He claims that the complainant’s Sinumpaang Salaysay failed to allege facts that justified the conclusion that the act allegedly committed by accused was consummated rape; thus, the trial judge gravely erred in accepting the Amended Information because no probable cause was shown. Plaintiff-appellee, on the other hand, claims that appellant is estopped from objecting to the amendment of the Information. It avers that objections to the amendment cannot be raised for the first time on appeal. Accused-appellant is mistaken. He confused the determination of probable cause to hold a person for trial with the determination of probable cause to issue a warrant of arrest. The duty to determine the existence of probable cause to charge a person for committing a crime rests on the public prosecutor. It is an executive function, the correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled to pass upon. (People vs. CA, G.R. 126005, Jan. 21, 1999) On the other hand, the duty to determine whether probable cause exists to issue a warrant of arrest rests on the judge––a judicial function to decide whether there is necessity for placing the accused under immediate custody in order not to frustrate the ends of justice. (Ho. v. Pp, 345 SCRA 597) Courts can not interfere with the discretion of the public prosecutor in evaluating the offense charged. Thus, it cannot dismiss the information on the ground that the evidence upon which the information is based is inadequate. And unless it is shown that the finding of probable cause was made with manifest error, grave abuse of discretion, and prejudice on the part of the public prosecutor, the trial court should respect such determination.

Moreover, accused could not raise his objections in the Amended Information for the first time on appeal; these should be raised at the time the amendment is made; otherwise, defects not seasonably raised are deemed waived. Accused never questioned the amendment either before or during trial. It is only when he appealed that he raised his objection. Hence, appellant’s objections are already deemed waived. The inaccuracy in AAA’s Sinumpaang Salaysay may be attributed to the inadequacy of the investigator’s language, and not on her alleged lack of honesty. Moreover, her testimony in court clearly proved that accused had sexually abused her. Affidavits taken ex parte are inferior to testimony given in court, the affidavits being invariably incomplete and oftentimes inaccurate due to partial suggestions or want of specific inquiries. Amora vs. People, G.R. No. 154466, January 28, 2008 The applicability of PD 1613 is beyond cavil. The crime was committed where bakeries, barber shops, tailoring shops and other commercial and residential buildings were situated. In fact, other structures were razed by the fire that originated from petitioner’s establishment. It is clear that the place was a residential and commercial building located in an urban and populated area. This qualifying circumstance places the offense within Sec. 2(7), PD 1613, and converts it to destructive arson committed when what is burned is any building, whether used as a dwelling or not, situated in a populated or congested area. It was also established that the building was insured against fire for an amount substantially more than its market value, a fact that has given rise to the unrebutted prima facie evidence of arson, in Section 6 of P.D. 1613. Direct evidence is not the sole means of establishing guilt beyond reasonable doubt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction. Indeed, rules on evidence and principles in jurisprudence have long recognized that the accused may be convicted through circumstantial evidence. Circumstantial evidence is such evidence which goes to prove a fact or series of facts, other than the facts in issue, which, if proved, may tend by inference to establish the fact in issue. Circumstantial evidence may be resorted to when to insist on direct testimony would ultimately lead to setting felons free. But for circumstantial evidence to be sufficient for a conviction, the following requisites must be present: (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been proven; and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. The penalty prescribed for the offense is reclusion temporal in its maximum period to reclusion perpetua. As no mitigating nor aggravating circumstance attended its commission, the proper imposable penalty, and thus the maximum term of the indeterminate penalty, is 18 years, 8 months and 1 day to 20 years. In determining the penalty next lower, Sec 3, Art 61of the RPC applies, when the penalty prescribed is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower is the medium and minimum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. In the instant case, the penalty lower in degree is prision mayor maximum to reclusion temporal medium. PEOPLE VS. SANDIGANBAYAN G.R. 147706 – 07, February 16, 2005



Does Sandiganbayan have jurisdiction over officers of government corporations w/o original charter? Yes. The jurisdiction of the Sandiganbayan is separate and distinct from the Civil Service Commission. On March 30, 1995, RA 7975 was enacted, maintaining the jurisdiction of the Sandiganbayan over officers of GOCCs without any distinction whatsoever. Thereafter, on February 5, 1997, Congress enacted RA 8249 which preserved the jurisdiction subject to the qualification that the officials hold salary grade “27” or higher. It has become even more relevant today due to the rampant cases of graft and corruption. For indeed, a GOCC can conceivably create as many subsidiary corporations under the Corporation Code as it might wish, use public funds, disclaim public accountability and escape the liabilities and responsibilities provided by law.

Section 24, R.A. 6770 vis-à-vis Section 13, R.A. No. 3019 and Section 13 (3) Article XI of the 1987 Constitution Section 13 (3) Article XI of the 1987 Constitution and Section 24 of R.A. No. 6770 and Section 13, R.A. No. 3019, respectively provide: Section 13. The Office of the Ombudsman shall have the following powers, functions and duties: xxx (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, amd recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.” (1987 Constitution) Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charge would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided. (R.A. No. 6770) “Section 13. Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act, or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the

event that such convicted officer, who may have already been separated from the service, has already received such benefits, he shall be liable to restitute the same to the Government.” (R.A. No. 3019) When the Constitution vested on the Ombudsman the power "to recommend the suspension" of a public official or employees (Sec. 13 [3]), it referred to "suspension," as a punitive measure. All the words associated with the word "suspension" in said provision referred to penalties in administrative cases, e.g. removal, demotion, fine, censure. Under the rule of noscitor a sociis, the word "suspension" should be given the same sense as the other words with which it is associated. Where a particular word is equally susceptible of various meanings, its correct construction may be made specific by considering the company of terms in which it is found or with which it is associated. Sec 24 of R.A.6770, which grants the Ombudsman the power to preventively suspend public officials and employees facing administrative charges before him, is a procedural, not a penal statute. The preventive suspension is imposed after compliance with the requisites therein set forth, as an aid in the investigation of the administrative charges. Under the Constitution, the Ombudsman is expressly authorized to recommend to the appropriate official the discipline or prosecution of erring public officials or employees. In order to make an intelligent determination whether to recommend such actions, the Ombudsman has to conduct an investigation. In turn, in order for him to conduct such investigation in an expeditious and efficient manner, he may need to suspend the respondent. The need for the preventive suspension may arise from several causes, among them, the danger of tampering or destruction of evidence in the possession of respondent; the intimidation of witnesses, etc. The Ombudsman should be given the discretion to decide when the persons facing administrative charges should be preventively suspended. Penal statutes are strictly construed while procedural statutes are liberally construed. The test in determining if a statute is penal is whether a penalty is imposed for the punishment of a wrong to the public or for the redress of an injury to an individual. A Code prescribing the procedure in criminal cases is not a penal statute and is to be interpreted liberally. The purpose of R.A. 6770 is to give the Ombudsman such powers as he may need to perform efficiently the task committed to him by the Constitution. Such being the case, said statute, particularly its provisions dealing with procedure, should be given such interpretation that will effectuate the purposes and objectives of the Constitution. Any interpretation that will hamper the work of the Ombudsman should be avoided. A statute granting powers to an agency created by the Constitution should be liberally construed for the advancement of the purposes and objectives for which it was created. Nera v. Garcia, holding that a preventive suspension is not a penalty, said:“Suspension is a preliminary step in an administrative investigation. If after such investigation, the charges are established and the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This is the penalty.” The theory that the Ombudsman can only preventively suspend respondents in administrative cases who are employed in his office, based on the phrase "suspend any officer or employee under his authority" in Section 24 of R.A. No. 6770 is misplaced.

The origin of the phrase can be traced to Sec 694, Revised Administrative Code, which dealt with preventive suspension and which authorized the chief of a bureau or office to suspend any subordinate in his bureau or under his authority pending an investigation . Sec 34 of the Civil Service Act (R.A. 2266), which superseded Sec 694, Revised Administrative Code also authorized the chief of a bureau or office to "suspend any subordinate officer or employees, in his bureau or under his authority." However, when the power to discipline was extended to the CSC by the Civil Service Law of 1975 (P.D. 805), concurrently with the President, the Department Secretaries and the heads of bureaus and offices, the phrase "subordinate officer and employee in his bureau" was deleted, appropriately leaving the phrase "under his authority." Therefore, Sec 41 of said law only mentions that the proper disciplining authority may preventively suspend "any subordinate officer or employee under his authority pending an investigation . . ." The Administrative Code empowered the proper disciplining authority to "preventively suspend any subordinate officer or employee under his authority pending an investigation." The Ombudsman Law deleted the words "subordinate" and "in his bureau," leaving the phrase to read "suspend any officer or employee under his authority pending an investigation . . . ." The conclusion that can be deduced from the deletion of the word "subordinate" before and the words "in his bureau" after "officer or employee" is that the Congress intended to empower the Ombudsman to preventively suspend all officials and employees under investigation by his office, irrespective of whether they are employed "in his office" or in other offices of the government. The moment a criminal or administrative complaint is filed with the Ombudsman, the respondent therein is deemed to be "in his authority" and he can proceed to determine whether said respondent should be placed under preventive suspension. In their petition, petitioners also claim that the Ombudsman committed grave abuse of discretion amounting to lack of jurisdiction when he issued the suspension order without affording petitioners the opportunity to confront the charges against them during the preliminary conference. Being a mere order for preventive suspension, the questioned order of the Ombudsman was validly issued even without a full-blown hearing and the formal presentation of evidence by the parties. In Nera, supra, petitioner therein also claimed that the Secretary of Health could not preventively suspend him before he could file his answer to the administrative complaint. The contention of petitioners herein can be dismissed perfunctorily by holding that the suspension meted out was merely preventive and therefore, as held in Nera, there was nothing improper in suspending an officer pending his investigation and before the charges against him are heard. Under Sec 24 of RA 6770, the Ombudsman cannot order the preventive suspension of a respondent unless the evidence of guilt is strong and (1) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (2) the charge would warrant removal from the service; or (3) the respondent's continued stay in office may prejudice the case filed against him. The import of the Nera decision is that the disciplining authority is given the discretion to decide when the evidence of guilt is strong. This fact is bolstered by Sec 24, which expressly left such determination of guilt to the "judgment" of the Ombudsman on the basis of the administrative complaint. Here, the Ombudsman issued the order of preventive suspension only after: (a) petitioners had filed their answer to the administrative complaint and the "Motion for the Preventive Suspension" of petitioners, which incorporated the charges in the criminal complaint

against them; (b) private respondent had filed a reply to the answer of petitioners, specifying 23 cases of harassment by petitioners of the members of the private respondent; and (c) a preliminary conference wherein the complainant and the respondents in the administrative case agreed to submit their list of witnesses and documentary evidence. Suspension under R.A. 3019 is also non-punitive but this is exercised by the Sandiganbayan after the validity of the information against the accused has been established.