Combined Materials Criminal Law 2016

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1. MALUM PROHIBITUM and MALUM IN SE - It is a general principle in law that in malum prohibitum case, good faith or motive is not a defense because the law punishes the prohibited act itself. However, if fraudulent intent is expressly mentioned as an element thereof, good faith or lack of criminal intent is a defense (Saguin vs. People, G.R. No. 210603, November 25, 2015). Criminal law has long divided crimes into acts wrong in themselves called acts mala in se; and acts which would not be wrong but for the fact that positive law forbids them, called acts mala prohibita. This distinction is important with reference to the intent with which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only inquiry is, has the law been violated? When an act is illegal, the intent of the offender is immaterial. When the doing of an act is prohibited by law, it is considered injurious to public welfare, and the doing of the prohibited act is the crime itself (Dungo vs. People, G.R. No. 209464, July 1, 2015). A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC), while all mala prohibita crimes are provided by special penal laws. In reality, however, there may be mala in se crimes under special laws, such as plunder under R.A. No. 7080, as amended. Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation (Dungo vs. People, supra). The better approach to distinguish between mala in se and mala prohibita crimes is the determination of the inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in itself, then it is a crime mala in se; on the contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by reasons of public policy, then it is mala prohibita. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute (Dungo vs. People, supra). 2. PRAETER INTENTIONEM - Accused kicked and punched the victim, who died as a consequence. Circumstance shows lack of intent to kill. However, accused is liable for homicide because intent to kill is conclusively presumed. Even if there is no intent to kill, the penal law holds the aggressor responsible for all the consequences of his unlawful acts. However, they are entitled to the mitigating circumstance of praeter intentionem (Wacoy vs. People, G.R. No. 213792, June 22, 2015). Article 49 applies only to error in personae. This provision is neither applicable to aberratiu ictus (Guillen case) nor to praeter intentionem (Wacoy vs. People, G.R. No. 213792, June 22, 2015). In Wacoy vs. People, G.R. No. 213792, June 22, 2015 Accused kicked and punched the victim, who died as consequence. It appears that their purpose is merely maltreating or inflicting physical harm, and not to end the life of the victim. Even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the

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consequences thereof. However, they are entitled to the mitigating circumstance of praeter intentionem or lack of intention to commit so grave a wrong under Article 13 (3). 3. ABERRATIU ICTUS – In People vs. Adriano, G.R. No. 205228, July 15, 2015 - Accused treacherously shot his intended victim. A bystander, was also hit by reason of mistake of blow. Both victims died. Accused is responsible not only for the death of the intended victim but also for the death of the third person, who was hit by a stray bullet. He is liable for two separate crimes of murder. This is not a compound crime since there is no showing that the victims were killed by single act but several acts. When various victims expire from separate shots, such acts constitute separate and distinct crimes. Treachery will be appreciated even though one was killed because of aberratio ictus. In People vs. Flora and Flora, G.R. No. 125909, June 23, 2000, the accused was convicted of two separate counts of murder: for the killing of two victims, Emerita, the intended victim, and Ireneo, the victim killed by a stray bullet. The Court, due to the presence of the aggravating circumstance of treachery, qualified both killings to murder. 4. UNLAWFUL AGGRESSION – The act of pulling "something" out cannot constitute unlawful aggression (People vs. De Leon, GR No. 197546, March 23, 2015). 5. INSANITY – In order for the accused to be exempted from criminal liability under a plea of insanity, he must categorically demonstrate that: (1) he was completely deprived of intelligence because of his mental condition or illness; and (2) such complete deprivation of intelligence must be manifest at the time or immediately before the commission of the offense (Verdadero vs. People, G.R. No. 216021, March 02, 2016). 6. ACCESSORY - It is not necessary that the principal should be first declared guilty before an accessory can be made liable as such (People vs. Billon, C.A., 48 O.G. 1391). One can be held liable as an accessory even if the principal was not convicted because he is at large (People vs. Inovera, 65 O.G. 3168); or he died or is unidentified, or was acquitted due to technicality (Vino vs. People, G.R. No. 84163, October 19, 1989) The corresponding responsibilities of the principal, accomplice, and accessory are distinct from each other. As long as the commission of the offense can be duly established in evidence, the determination of the liability of the accomplice or accessory can proceed independently of that of the principal (People vs. Bayabos, G.R. No. 171222, February 18, 2015). The English text of Article 19 of RPC, which provides “whenever the author of the crime is guilty of treason x x x.”, is an inaccurate translation of the Spanish text. Settled is the rule that the Spanish text prevail over the English text (People vs. Billon). 7. ACCESSORY AND OBSTRUCTION OF JUSTICE - A truck with illegal lumber was confiscated. After the confiscation, the accused unlawfully took it from the authorities. Accused is not liable as an accessory since he did not conceal the instrument of the crime for the purpose of preventing the discovery of the crime. Illegal possession of lumber had already been discovered at the time the accused took the

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confiscated truck. However, accused is liable for obstruction of justice under P.D. 1829. The truck that carried the undocumented lumber serves as material evidence that is indispensable in the criminal investigation and prosecution for illegal possession of lumber. It is an indispensable link to the persons involved in the illegal possession of the lumber. Accused took the truck or intentionally suppressed the truck as evidence, with the intent to impair its availability and prevent its use as evidence in the criminal investigation or proceeding for illegal possession of lumber. Such suppression is punishable under PD No. 1829 (Padiernos vs. People, G.R. No. 181111, August 17, 2015). 8. PENALTY - The court should prescribe the correct penalties in complex crimes in strict observance of Article 48 of the Revised Penal Code. In estafa through falsification of commercial documents, the court should impose the penalty for the graver offense in the maximum period. Otherwise, the penalty prescribed is invalid, and will not attain finality (De Castro vs. People, G.R. No. 171672, February 2, 2015). 9. RECLUSION PERPETUA - Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua shall not be eligible for parole (Section 3 RA No. 9346). In cases where reclusion perpetua is imposable, there is no need to use the phrase "without eligibility for parole" to qualify the penalty of reclusion perpetua. But it is understood that convicted persons penalized with this penalty are not eligible for parole in accordance with Section 3 of RA No. 9346. In cases where death penalty is imposable, but the same is reduced to reclusion perpetua because of RA No. 9346, the phrase "without eligibility for parole" shall be used to qualifyreclusion perpetua in order to emphasize that the accused should have been sentenced to suffer the death penalty had it not been for RA No. 9346 (A.M. No. 15-08-02-SC, August 04, 2015). Reclusion perpetua, which has duration of 40 years under Article 27 of RPC and 30 years under Article 29 of RPC as amended by RA No. 10592, is a lighter penalty than life imprisonment, which has no duration. Hence, amendatory law, which prescribes reclusion perpetua instead of life imprisonment for a crime punishable under it, is favorable to the accused; and thus, it shall be given a retroactive effect (People vs. Morilla, GR No. 189833, February 05, 2014; People vs. Pang, G.R. No. 176229, October 19, 2011). 10. SUPPLETORY APPLICATION – RPC is not generally applicable to malum prohibitum. However, when a special law (such as RA No. 10591 on illegal possession of loose firearm), which punishes malum prohibitum, adopts the nomenclature of the penalties in RPC, the the provisions under this Code shall apply (People vs. Simon, G.R. No. 93028, July 29, 1994) such as: (1) Article 68 on the privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011; (2) Article 62 on special mitigating circumstance of syndicated or organized crime group (People vs. Musa, G.R. No. 199735, October 24, 2012); (3) Article 64 on application of penalty in its minimum period if there is a confession (Jacaban vs. People, GR No. 184355, March 23, 2015; Malto vs. People, G.R. No. 164733, September 21, 2007); and (4) Article 160 on special aggravating circumstance of quasi-recidivism (People vs. Salazar, G.R. No. 98060, January 27, 1997).

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11. PARDON - Person, who was pardoned for the crime punishable by reclusion perpetua, cannot run in the Senatorial race if the terms of the pardon has not expressly restored his right to hold public office or remitted the accessory penalty of perpetual absolute disqualification. Under Article 36 of the Revised Penal Code, a pardon shall not work the restoration of the right to hold public office unless such right be expressly restored by the terms of the pardon. Under Article 41, the penalty of reclusion perpetua shall carry with it perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon (2015 Bar Exam). President Estrada, who was convicted of plunder and sentenced to suffered reclusion perpetua, was pardoned by President Arroyo. He is eligible to run as Mayor because the terms of the pardon expressly restored his “civil and political rights,”which naturally includes the right to seek public elective office. Pardon at issue which declares that former President Estrada "is hereby restored to his civil and political rights" substantially complies with the requirement of express restoration (Risos-vidal vs. Lim, G.R. No. 206666, January 21, 2015). The pardoning power of the President cannot be limited by legislative action. This power is conferred by the Constitution; hence, only the Constitution can limit the exercise thereof. The only instances in which the President under the Constitution may not extend pardon are as follows: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC (Risos-vidal vs. Lim, G.R. No. 206666, January 21, 2015). 12. PROBATION - Under Section 9 of PD No. 968, the benefits of the probation shall not extend to those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than 1 month and 1 day and/or a fine of not less than P200. But RA No. 10707, which was approved on November 26, 2015, has amended PD No. 968 by increasing the penalty for the offense under previous conviction, which will constitute a bar to probation for the offense under the present conviction. Under PD No. 968 as amended by RA No. 10707, the benefits of the probation shall not extend to those who have previously been convicted by final judgment of an offense punished by imprisonment of more than 6 months and 1 day and/or a fine of more than P1,000.However, even if the penalty for the offense under previous conviction is lesser than that as stated above, one cannot avail of probation for the offense under present conviction if he already availed of the benefit of probation for the previous offense. Under the original version of PD No. 968, alarm and scandal and direct assault were probationable since the penalties prescribed for these crimes are not more than 6 years of imprisonment. However, on October 5, 1985, PD 1990 had amended Section 9 of PD No. 968 by making crimes against public disorder non-probationable. Hence, the benefits of PD No. 968 as amended by PD 1990 could not be extended to those convicted of direct assault (2012 Bar Examination) and alarm and scandal (2013 Bar Examination) because these are crimes against public disorder. However, RA No. 10707, which was approved on November 26, 2015, has amended PD No. 968 by

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deleting crime against public disorder in Section 9 thereof. In sum, under the present law on probation, alarm and scandal and direct assault are now probationable. In Colinares vs. People, G.R. No. 182748, December 13, 2011 - The accused, who was convicted by the lower court of a non-probationable offense of frustrated homicide, but on appeal was found guilty of a probationable offense of attempted homicide, may apply for probation upon remand of the case to the RTC because of the following reasons: (1) The Probation Law never intended to deny an accused his right to probation through no fault of his; (2) If the accused will not be allowed to apply for probation, he will be made to pay for the trial court’s erroneous judgment; (3) While it is true that probation is a mere privilege, the accused has the right to apply for that privilege; (4) Under the law, appealing from judgment of conviction is a waiver right to appeal. In this case, the accused did not appeal from the judgment of a conviction for attempted homicide rendered by the appellate court. In Villareal vs. People, G.R. No. 151258, December 1, 2014, accused was convicted of homicide, a non-probationable crime, by the trial court. However, the SC found them liable for reckless imprudence resulting in homicide, which is a probationable crime, because of lack of dolo. They can still apply for probation. The SC reaffirmed the Colinares principle. RA No. 10707, which was approved on November 26, 2015, has adopted the Colinares doctrine. Under Section 4 of PD 968 as amended by RA No. 10707, when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified decision which already imposes a probationable penalty. Probation is not a mode of extinguishing criminal liability under Article 89 of RPC. Hence, the discharge of the probationer shall not extinguish his criminal liability. The essence of probation is the suspension of the execution of sentence. Thus, the criminal liability remains despite of the discharge of the probationer but the sentence will not be served (Villareal vs. People, G.R. No. 151258, December 01, 2014). However, this rule is not anymore controlling because of the amendments introduced by RA No. 10707. Under Section 16 of PD No. 968 as amended by RA 10707, the final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to totally extinguish his criminal liability as to the offense for which probation was granted. In sum, probation is now a mode of extinguishing criminal liability in addition to those mentioned in Article 89 of RPC. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY 13. Under the Spanish Penal Code, the modes of committing illegal detention are "Secuestrare" and "Encerrare". "Secuestrare" means sequestration or imprisonment. "Encerrare" includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time (People vs. Baldago, G.R. No. 128106-07, January 24, 2003). There is deprivation of liberty if

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the victim was left in a place from which she did not know her way back home (People vs. Jacalney, GR No. 168552, October 03, 2011)even if she had the freedom to roam around the place of detention. For under such a situation, the child’s freedom remains at the mercy and control of the abductor (People vs. Baluya, GR No. 181822, April 13, 2011). 14. THREATS - What is the difference among grave threats, light threats and other light threats? In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition (Calauag vs. People, (G. R. No. 171511, March 4, 2009). 15. BLACKMAIL - Blackmailing may constitute: (1) Light threats under Article 283; (2) Threatening to publish, or offering to prevent the publication of, a libel for compensation under Article 356; and (3) robbery with intimidation against person. Example: X, DENR officer, threatened to confiscate the hot logs from complainant and prosecute it for illegal logging unless the latter will give her P100,000. Complainant gave X the amount demanded. The crime committed is robbery with intimidation (extortion). In robbery with intimidation of persons, the intimidation consists in causing or creating fear in the mind of a person or in bringing in a sense of mental distress in view of a risk or evil that may be impending, real or imagined. Such fear of injury to person or property must continue to operate in the mind of the victim at the time of the delivery of the money. In this case, the P100,000.00 "grease money" was taken by X from complainant through intimidation. By using her position as the DENR officer, X succeeded in coercing the complainants to choose between two alternatives: to part with their money, or suffer the burden and humiliation of prosecution and confiscation of the logs (Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009). CRIMES AGAINST PUBLIC ORDER 16. In evasion of service of sentence, the accused must be a convicted prisoner and not merely a detention prisoner. In delivery of prisoner from jail, the person, who escaped through the help of the accused, is either a detention prisoner or convicted prisoner. In infidelity in the custody of prisoner, the person, who escaped in connivance with or consent of or through negligence of the accused-custodian, is either a detention prisoner or convicted prisoner. Evasion in the service of sentence and delivery of prisoner from jail are committed by means of dolo. Infidelity in the custody or prisoner is committed by means of dolo or culpa; if this crime is committed by means of dolo, it is called conniving with or consenting to evasion; if committed by means of culpa, it is called evasion through negligence. CRIMES AGAINST PUBLIC INTEREST 17. FALSIFICATION OF DOCUMENT – In falsification of private document involving making untruthful statement in a narration of facts, the existence of a specific law imposing obligation to disclose the truth is not indispensable to make one

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liable for this crime. What is important is legal obligation to disclose the truth. In Manansala vs. People, G.R. No. 215424, December 09, 2015, the accused was held liable for falsification of document involving a petty cash replenishment report of a private company because he has a legal obligation to disclose the truth of the facts narrated by him. In Article 315 of the Revised Penal Code, the damage which is an element of estafa must be capable of pecuniary estimation. In Article 172, the element of damage is falsification of private document is not required to be capable of pecuniary estimation. The Spanish text of this provision uses the word “perjuicio” (prejudice). Thus, falsification of private document, which prejudices a third person, is a felony. In Manasala case, the offended party was dismissed from service because of the false report that he made cash advances from the company without liquidating on time. The accused was convicted of falsification of private document since the offended party was prejudice by such falsification. The offender is considered to have taken advantage of his official position, which is an element of falsification of document by a public officer when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies (People vs. Sandiganbayan, G.R. No. 197953, August 05, 2015). In falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed (People vs. Sandiganbayan, G.R. No. 197953, August 05, 2015). Under Article 48 of the RPC, when a single act constitutes two or more crimes, a complex crime is committed for which only one penalty is imposed. Complex crimes under Article 48 refer to either (1) an act which constitutes two or more grave or less grave offenses; or (2) an offense which is a necessary means for committing another.[17] The phrase "necessary means" in Article 48 does not mean indispensable; otherwise, the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. For instance, the crime of simple estafa is ordinarily committed in the manner defined under the RPC; but if the accused resorts to falsification merely to facilitate and insure the commission of estafa, then he is guilty of the complex crime of estafa through falsification (David vs. People, G.R. No. 208320, August 19, 2015). In this case, it was duly proven during the trial that petitioner falsified several BOC Form No. 38-A, a commercial document, in order to facilitate and insure the commission of estafa. BOC Form No. 38-A is a commercial document used by authorized collecting banks, such as Land Bank, as official receipt for the payment of additional or deficiency customs taxes and duties. The falsification of the BOC forms, which are commercial documents, was a necessary means to commit estafa (David vs. People, G.R. No. 208320, August 19, 2015).

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Making untruthful statement (failure to disclose previous criminal conviction) in a sworn application for the patrolman examination constitutes perjury (People vs. Cruz, 108 Phil. 255). Making untruthful statement (failure to disclose pending criminal case) in unsworn PDS constitutes falsification of document (Sevilla vs. People, G.R. No. 194390, August 13, 2014). If there are several mistakes the PDS including those which are not important, accused cannot be convicted of falsification of document since it appears that failure to disclose pending criminal case is not deliberate. Hence, accused is only liable for reckless imprudence resulting in falsification (Sevilla vs. People, supra). Making it appears that a person participated in an act or proceeding where in fact he did not is not the actus reus in perjury. Hence, a mayor, who made it appear that affiants swore and signed the affidavit before him where in fact they did not, is liable of falsification of document and not perjury (Lonzanida vs. People, G.R. Nos. 160243-52, July 20, 2009). In falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed (Regidor, Jr., vs. People, G. R. Nos. 166086-92 Feb. 13, 2009). 18. MALVERSATION - The crime of malversation of public funds has the following elements, to wit: (a) that the offender is a public officer; (b) that he had the custody or control of funds or property by reason of the duties of his office; (c) that the funds or property were public funds or property for which he was accountable; and (d) that he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them (Mesina vs. People, G.R. No. 162489, June 17, 2015). Accountable officer – For purpose of malversation, national officer shall be considered as an accountable officer if he has custody or control of public property by reason of the duties of his office (Government Auditing Code of the Philippines) such as a principal of a public high school entrusted with public funds. such as a principal of a public high school entrusted with public funds (Torres vs. People, GR No. 175074, August 31, 2011) or a cashier, treasurer, collector, property officer or any other officer or employee who is tasked with the taking of money or property from the public which they are duty-bound to keep temporarily until such money or property are properly deposited in official depository banks or similar entities; or until they shall have endorsed such money or property to other accountable officers or concerned offices (Panganiban vs. People, G.R. No. 211543, December 09, 2015). However, the Local Government Code expanded the concept of accountable local officer. Local officer shall be considered as an accountable officer if he has possession or custody of local government funds because of the nature of their functions or has participated in the use or application of thereof (Zoleta vs. Sandiganbayan, G.R. No. 185224, July 29, 2015).

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A mayor as far as the money in the local treasury is concerned is an accountable officer because the mayor and the treasurer have duty to participate in the release of funds. Their signatures are needed to disburse municipal funds. No payment can be effected without their signatures. They had control and responsibility over the funds; hence, they are accountable officer (Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February 08, 2012). But a mayor as far as cash advance for travel is concerned is not an accountable officer (Panganiban vs. People, G.R. No. 211543, December 09, 2015). However, a non-accountable officer or private individual can be held liable for malversation if he conspires with an accountable officer in committing the crime (People vs. Pajaro, G.R. Nos. 167860-65, June 17, 2008). Moreover, private individuals can be held liable for malversation if he in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual (Article 222 of the Revised Penal Code). The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate such practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against "vales" or chits given in exchange by the borrowers. On the other hand, the the Commission on Audit time and again, through repeated office memoranda and rulings had warned against the acceptance of "vales" or chits by any disbursing officer because such transactions are really forms of loans (Meneses vs. Sandiganbayan, G.R. No. 100625 May 20, 1994). Dolo or culpa – Malversation may be committed either through a positive act of misappropriation of public funds or property, or passively through negligence. To sustain a charge of malversation, there must either be criminal intent or criminal negligence. If the accused is charged of intentional malversation, but evidence shows that the crime is committed through negligence, he can be convicted of culpable malversation because of the variance rule. Dolo or culpa is just a mode of committing malversation. Even if the mode charged differs from mode proved, accused can still be convicted of malversation (Torres vs. People, GR No. 175074, August 31, 2011). 19. In Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013 Accused, a mayor issued permits to transport salvaged forest products. According to prosecution, DENR is the only government instrumentality that can issue the permits to transport salvaged forest products. The prosecution asserted that accused usurped the official functions that properly belong to the DENR. Accused chose to exercise the right to protect the environment and to share in this responsibility by exercising his authority as municipal mayor––an act which was executed with the cooperation of non-governmental organizations, stakeholders, and concerned citizens. His acts may be invalid but it does necessarily mean that such mistakes automatically justify his conviction.

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There is no showing that accused possessed that “criminal mind” when he in his capacity as mayor issued the subject permits. What is clear from the records is that accused, as municipal mayor, intended to regulate and monitor salvaged forest products in order to avert the occurrence of illegal logging in the area. Good faith is a defense in criminal prosecutions for usurpation of official functions. The requirement of permits to transport was accused’s decision alone; it was a result of the collective decision of the participants during the Multi-Sectoral Consultative Assembly. If, indeed, accused intended to usurp the official functions of the DENR, he would not have asked the presence of a DENR official who has the authority and credibility to publicly object against accused’s allegedly intended usurpation. Thus, the presence of DENR official during the Multi-Sectoral Assembly strengthens accused’s claim of good faith. The DENR is not the sole government agency vested with the authority to issue permits relevant to the transportation of salvaged forest products, considering that, pursuant to the general welfare clause, LGUs may also exercise such authority. 20. Failure To Render Accounting - In People vs. Lumauig, G.R. No.166680, July 7, 2014 - Article 218 of RPC consists of the following elements: (1) that the offender is a public officer, whether in the service or separated therefrom; (2) that he must be an accountable officer for public funds or property; (3) that he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor; and (4) that he fails to do so for a period of two months after such accounts should be rendered. Petitioner received cash advance for payment of the insurance coverage of motorcycles purchased by the Municipality in 1994. Under COA Circular, petitioner is required to liquidate the same within 20 days after the end of the year or on or before January 20, 1995. To avoid liability under Article 218, he should have liquidated the cash advance within two months from the time it was due, or on or before March 20, 1995. Petitioner was liable for failure to render account under Article 218 because it took him over six years before settling his accounts. Demand before an accountable officer is held liable for a violation of the crime is not required. Article 218 merely provides that the public officer be required by law and regulation to render account. 21. Technical Malversation - In Dela Cuersta vs. Sandiganbayan, G.R. Nos. 164068-69, November 19, 2013 - The informations alleged that accused as members of the Philippine Coconut Authority, acting in conspiracy with each other and with evident bad faith and manifest partiality, gave financial assistance to COCOFED, a private entity, without an appropriate budget, giving unwarranted benefit to the same and causing undue injury to the Government. The element in the crime of technical malversation that public fund be appropriated for a public use requires an earmarking of the fund or property for a specific project. For instance there is no earmarking if money was part of the municipality’s “general fund,” intended by internal arrangement for use in paving a particular road but applied instead to the payrolls of different barangay workers in the

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municipality. That portion of the general fund was not considered appropriated since it had not been earmarked by law or ordinance for a specific expenditure. Here, there is no allegation in the informations that the P2 million and P6 million grants to COCOFED had been earmarked for some specific expenditures. What is more, the informations do not allege that the subject P2 million and P6 million were applied to a public use other than that for which such sums had been appropriated. Quite the contrary, those informations allege that those sums were unlawfully donated to “a private entity,” not applied to some public use. Clearly, the constitutional right of the accused to be informed of the crimes with which they are charged would be violated if they are tried for technical malversation under criminal informations for violation of Section 3(e) of R.A. 3019 filed against them. 22. Knowingly Rendering Unjust Judgment - To commit the offense of knowingly rendering an unjust judgment, the offender must be a judge who is adequately shown to have rendered an unjust judgment, not one who merely committed an error of judgment or taken the unpopular side of a controversial point of law. The term knowingly means “sure knowledge, conscious and deliberate intention to do an injustice.” Thus, the complainant must not only prove beyond reasonable doubt that the judgment is patently contrary to law or not supported by the evidence but that it was also made with deliberate intent to perpetrate an injustice. Good faith and the absence of malice, corrupt motives or improper consideration are sufficient defenses that will shield a judge from the charge of rendering an unjust decision. In other words, the judge was motivated by hatred, revenge, greed or some other similar motive in issuing the judgment. Bad faith is, therefore, the ground for liability. The failure of the judge to correctly interpret the law or to properly appreciate the evidence presented does not necessarily render him administratively liable(Re: Verified Complaint for Disbarment of AMA LAnd Inc. against CA Association Justice Bueser et.al., OCA IPI No. 12-204-CA-J, March 11, 2014). 23. INFIDELITY IN THE CUSTODY OF DOCUMENTS - The elements of Infidelity in the Custody of Documents under Article 226 of the RPC are: (1) The offender must be a public officer; (2) There must be a document removed, destroyed or concealed; (3) The document destroyed or removed must be entrusted to such public officer by reason of his office; and (4) Damage or prejudice to the public interest or to that of a third person must be caused by the removal, destruction or concealment of such document (Zapanta vs. People, GR No. 192698-99, April 22, 2015). Differences between infidelity in the custody of document and estafa under Article 315 (3) (c) of RPC: (1) In both crimes, the offender removed, concealed or destroyed document; (2) in infidelity of the custody of document, the offender is a public officer entrusted with the document; while in estafa, the offender is a private individual; (3) In estafa, intent to defraud is an element; but this is not element of infidelity in the custody of document. CRIMES AGAINST PERSONS 24. PARRICIDE - Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; and (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused. The key element in Parricide - other than the

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fact of killing - is the relationship of the offender to the victim (People vs. Guting, G.R. No. 205412, September 09, 2015). In parricide, if the victim is his father, mother, or child, the relationship can either be legitimate or illegitimate; if the victim is the spouse, other ascendant such as grandparent or other descendant such as grandchild, the relationship must be legitimate (People vs. Gamez, GR No. 202847, October 23, 2013). 25. Excessive Chastisement - “X” tied his son to a coconut tree and, there after hit on his right eye and right leg. As a consequence, his son sustained injuries that would heal in one week upon medication. Is “X” liable for slight physical injuries despite the fact that his intention in beating his son is merely to discipline him? Yes. “X” cannot evade criminal culpability by the circumstance that he merely intended to discipline his son (People vs. Sales, G.R. No. 177218, October 3, 2011). 26. DEATH IN A TUMULTOUS AFFRAY - The elements of death caused in a tumultuous affray are as follows: (a) that there be several persons; (b) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally (Note: If there is conspiracy, this element is not present; conspirators are liable for homicide or murder; People vs. Corpuz, G.R. No. L-36234 February 10, 1981); (c) that these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained who actually killed the deceased (Not: If the killers are identified, this element is not present; since they are identified, they are liable for homicide or murder; Wacoy vs. People, G.R. No. 213792, June 22, 2015); and (f) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 27. STAGES OF RAPE – Touching of either labia majora or labia minora of the pudendum by an erect penis capable of penetration consummates the crime (People vs. Campuhan, G.R. No. 129433, March 30, 2000; People vs. Butiong, G.R. No. 168932, October 19, 2011). Touching the labia by instrument or object (such as tongue or finger) also consummates the crime of rape through sexual assault (People vs. Bonaagua, GR No. 188897, June 6, 2011). If there is no touching of the labia, the crime is either attempted rape or acts of lasciviousness depending upon the intent the offender. If the intention is to have sexual intercourse, the crime is attempted rape; otherwise, the crime is acts of lasciviousness. Undressing the victim (People vs. Sanico, G.R. No. 208469, August 13, 2014) or touching her vagina by the hand of the accused (People vs. Banzuela, G.R. No. 202060, December 11, 2013) or rubbing his penis on the mons pubis of the pudendum (People vs. Abanilla, G.R. Nos. 148673-75, October 17, 2003) is merely acts of lasciviousness because intent to have sexual intercourse is not clearly shown. To be held liable of attempted rape, it must be shown that the erectile penis is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08, 2014) or the offender actually commenced to force his penis into the victim's sexual organ (People vs. Banzuela, supra). Touching her genitalia with his hands and mashing her breasts are "susceptible of double interpretation." These circumstances may show that

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the intention of the accused is either to commit rape or simple seduction (or acts of lasciviousness). Since intent to have sexual intercourse is not clear, accused could not be held liable for attempted rape. Hence, he is only liable for acts of lasciviousness (Cruz vs. People, supra; People vs. Lamahang). In People vs. Nuyok, G.R. No. 195424, June 15, 2015, the commission of rape can be established by circumstantial evidence even if the victim, being the sole witness, was rendered unconscious during its commission. Accused slapped victim and punched her in the stomach. She was rendered unconscious. When she regained consciousness, she found blood in her panties, and felt pain in her vagina. Accused was convicted of rape. For there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed (People vs. Bandril, G.R. No. 212205, July 06, 2015). 28. SWEETHEART THEORY - In rape, the "sweetheart" defense must be proven by compelling evidence: first, that the accused and the victim were lovers; and, second, that she consented to the alleged sexual relations. The second is as important as the first, because this Court has held often enough that love is not a license for lust (People vs. Victoria, G.R. No. 201110, July 06, 2015). 29. CHILD ABUSE - Under Section 10 (a) of RA No. 7610, child abuse or cruelty is committed by any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of PD No. 603 but not covered by the RPC. Under Section 3 (b), "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes any of the following: (1) Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment; (2) Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being; (3) Unreasonable deprivation of his basic needs for survival, such as food and shelter; or (4) Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development or in his permanent incapacity or death. Section 10 (a) punishes not only those enumerated under Article 59 of PD No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c) child exploitation and (d) being responsible for conditions prejudicial to the child's development. We stress that Section 10 refers to acts of child abuse other than child prostitution and other sexual abuse under Section 5, attempt to commit child prostitution under Section 6, child trafficking under Section 7, attempt to commit child trafficking under Section 8, and obscene publications and indecent shows under Section 9 (People vs. Rayon, G.R. No. 194236, January 30, 2013). In Bongalon vs. People, G.R. No. 169533, March 20, 2013 - Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck

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minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries. In Rosaldes vs. People, G.R. No. 173988, October 08, 2014 - Although the accused, as a schoolteacher, could duly discipline her minor student, her infliction of the physical injuries on him was unnecessary, violent and excessive. The boy even fainted from the violence suffered at her hands. She could not justifiably claim that she acted only for the sake of disciplining him. Her physical maltreatment of him was precisely prohibited by no less than the Family Code, which has expressly banned the infliction of corporal punishment by a school administrator, teacher or individual engaged in child care exercising special parental authority. Accused was convicted of child abuse under Section 10 (a) of RA No. 7610. The Family Code has expressly banned the infliction of corporal punishment by a school administrator, teacher or individual engaged in child care exercising special parental authority. A schoolteacher in employing unnecessary violence on her minor student, who even fainted from the violence suffered at her hands, is liable for child abuse under Section 10 of RA No. 7610 (Rosaldes vs. People, G.R. No. 173988, October 08, 2014).Accused saw the victim and his companions hurting his minor daughters. Angered, accused struck minor-victim at the back with his hand and slapped his face. Since the accused committed the act at the spur of the moment, they are perpetrated without intent to debase his "intrinsic worth and dignity" as a human being, or to humiliate or embarrass him. Without such intent, the crime committed is not child abuse under RA 7610 but merely slight physical injuries (Bongalon vs. People, G.R. No. 169533, March 20, 2013). Tenacious resistance - Among the amendments of the law on rape introduced under RA No. 8353 is Section 266-D, which provides “Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution rape” (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators agreed that Article 266-D is intended to soften the jurisprudence on tenacious resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002, En banc). Failure to shout should not be taken against the victim (People vs. Rivera, GR No. 200508, September 04, 2013; see: People vs. Rubio, G.R. No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It is not necessary for the victim to sustain physical injuries. She need not kick, bite, hit or scratch the offender with her fingernails to prove that she had been defensive (People vs. Torres, G.R. No. 134766, January 16, 2004). Incestuous rape- In incestuous rape of a minor, actual force or intimidation need not even be employed where the overpowering moral influence of appellant, who is private complainant’s father, would suffice (People vs. Samandre, G.R. No. 181497, February 22, 2012) In rape committed by a father, his moral ascendancy and influence over the victim substitute for the requisite force, threat, and intimidation, and strengthen the fear which compels the victim to conceal her dishonor (People vs.

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Ortega, G.R. No. 186235, January 25, 2012; People vs. Broca, GR No. 201447, January 09, 2013 People vs. Candellada, G.R. No. 189293, July 10, 2013, ; People vs. Osma, G.R. No. 187734, August 29, 2012). Person Deprived Of Reason – The term statutory rape should only be confined to situations where the victim of rape is a person less than 12 years of age. If the victim of rape is a person with mental abnormality, deficiency, or retardation, the crime committed is simple rape committed against a person "deprived of reason" (People vs. Dalan, G.R. No. 203086, June 11, 2014). In rape, the phrase "deprived of reason" refers to mental abnormality, deficiency or retardation, which includes (a) idiot (equivalent to two-year old child); (b) imbecile (seven-year old child); (c) moron or feebleminded (twelve-year old child) and (d) borderline intelligence. A person is guilty of rape when he had sexual intercourse with a female who was suffering from a "borderline mental deficiency (People vs. Butiong, G.R. No. 168932, October 19, 2011; G.R. No. 140209, December 27, 2002, People vs. Bayrante, G.R. No. 188978, June 13, 2012); Demented Person - The term demented refers to a person who has dementia (schizophrenia) or insanity. On the other hand, the phrase deprived of reason includes those suffering from mental retardation. Accused was charged in the Information with rape of a demented person. Evidence however shows that the victim is not demented but mentally retarded. Mistake in the information will not exonerate the accused he failed to raise this as an objection (People vs. Ventura, Sr. GR. No. 205230, March 12, 2014) or there is an allegation in the information that his mental age is below 7 years old (People vs. Caoile, GR No. 203041, June 05, 2013,). Deafmute - The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman was considered rape. But a deafmute is not necessarily deprived of reason. These circumstances must be proven. Intercourse with a deafmute is not rape of a woman deprived of reason, in the absence of proof that she is an imbecile (People vs. Caoile, GR No. 203041, June 05, 2013). 30. QUALIFYING CIRCUMSTANCES - RPC punishes the rape of a mentally disabled person regardless of the perpetrator’s awareness of his victim’s mental condition. However, the perpetrator’s knowledge of the victim’s mental disability, at the time he committed the rape, qualifies the crime (People vs. Caoile, GR No. 203041, June 05, 2013). Since knowledge is an element of this qualifying circumstance, it must be formally alleged in the information and duly proved by the prosecution (People vs. Obogne, GR No. 199740, March 24, 2014). In People vs. Lascano, G.R. No. 192180, March 21, 2012 –the information in the present case merely stated that the victim was blind; it did not specifically allege that the appellant knew of her blindness at the time of the commission of the rape. Hence, the crime committed is simple rape. In qualifying circumstances of minority and relationship in rape and special aggravating circumstance under Section 31(c) of RA No. 7610 in sexual abuse under Section 5, the guardian must be a person who has legal relationship with his ward. He must be legally appointed was first (People vs. Flores G.R. No. 188315, August 25, 2010).

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31. RAPE THROUGH SEXUAL ASSAULT - Rape through sexual intercourse, which is commonly denominated as “organ rape” or “penile rape”, is committed by a man by having carnal knowledge with a woman. This is not a gender free crime since the offender must be a man while the victim must be a woman. On the other hand, rape by sexual assault is committed by a person by inserting his penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. If the offender used instrument or object in committing a crime, the crime is called “instrument or object rape.” In rape through sexual assault, the gender of the offender and the victim is not material. That is why this crime is called “gender-free rape” (See: People vs. Soria, G.R. No. I 79031, November 14, 2012). 32. UNTENABLE DEFENSE Marital consent – Husband can be held liable for marital rape. Article 266-A of RPC uses the term “man” in defining rape. Rape can be committed without regard to the rapist’s legal relationship with his victim. Under Article 266-C of RPC as amended by RA No. 8353, in case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty. RA No. 8353 has eradicated the archaic notion that marital rape cannot exist because a husband has absolute proprietary rights over his wife’s body and thus her consent to every act of sexual intimacy with him is always obligatory or at least, presumed (People vs. Jumawan, G.R. No. 187495, April 21, 2014), Pardon - For crimes of seduction, abduction, and acts of lasciviousness, pardon and marriage extinguish criminal liability. However, pardon should have been made prior to the institution of the criminal actions (People vs. Dollano, Jr., GR No. 188851, October 19, 2011). Rape is no longer a crime against chastity for it is now classified as a crime against persons. Consequently, rape is no longer considered a private crime or that which cannot be prosecuted, except upon a complaint filed by the aggrieved party. Hence, pardon by the offended party of the offender in the crime of rape will not extinguish the offender's criminal liability (People vs. Bonaagua, GR No. 188897, June 06, 2011). 33. PROSTITUTION - Accompanying a child and offering her sexual services in exchange for money constitutes child prostitution. The accused who offered the victim to the one who raped her is not liable for rape as principal indispensable cooperation since bringing the victim to the rapist is not indispensable to the commission of the crime of rape (People vs. Dulay, GR No. 193854, September 24, 2012). If the accused is regularly offering the sexual service of the child in exchange for money, the crime committed is not anymore child prostitution. Maintaining or hiring the child as purpose of prostitution constitutes qualified trafficking in person because the former took advantage of vulnerability of the latter as a child and as one who need money. Minority is qualifying circumstance (People vs. Casio, G.R. No. 211465, December 03, 2014). Recruiting without license a person, child or adult, to work as a prostitute abroad constitutes the crime of trafficking in person and illegal recruitment. Syndicate is qualifying circumstance in both crimes. Even if the accused is less than three, but the allegation and evidence shows that there are at least three traffickers and recruiters, syndicated can be appreciated as qualifying circumstance (People vs. Lalli,

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G.R. No. 195419, October 12, 2011; People vs. Hashim, G.R. No. 194255, June 13, 2012). 34. FRUSTRATED HOMICIDE - The elements of frustrated homicide are: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the Revised Penal Code, as amended, is present. In ascertaining whether intent to kill exists, the Court considers the presence of the following factors: (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, during, or immediately after the killing of the victim; and (4) the circumstances under which the crime was committed and the motives of the accused (Ibañez vs. People, G.R. No. 190798, January 27, 2016). CRIMES AGAINST PROPERTY 35. ROBBERY - When robbery by means of violence and intimidation is committed in the dwelling, dwelling is aggravating because in this class of robbery, the crime may be committed without the necessity of trespassing the sanctity of the offended party's house (People vs. Evangelio, G.R. No. 181902, August 31, 2011). When robbery by means of violence and intimidation is committed after an unlawful entry or forcible entry, the crime committed is a complex crime. When the elements of both robbery by means of violence and intimidation and robbery by using force upon thing are present, the crime is a complex one under Article 48 of said Code. Hence, the penalty for robbery in inhabited house shall be imposed in its maximum period (People vs. Napolis, G.R. No. L-28865, February 28, 1972; People vs. Disney, G.R. No. L-41336, February 18, 1983, En Banc and Fransdilla vs. People, GR No. 197562, April 20, 2015). When robbery with homicide is committed after unlawful entry or forcible entry, the crime committed is special complex crime of robbery with homicide with the ordinary aggravating circumstance of unlawful entry or forcible entry (People vs. Baello, G.R. No. 101314, July 01, 1993). After entry into the dwelling by means of simulation of authority, homicide is committed by reason or on occasion of robbery, the crime committed is robbery with homicide while simulation of authority is absorbed (People vs. Diu, GR No. 201449, April 03, 2013). 36. COMPLEX CRIME OF ROBBERY - In Sebastian case, the Supreme Court ruled that when the elements of both robbery by means of violence and intimidation and robbery by using force upon thing are present, the accused shall be held liable of the former since the controlling qualification is the violence and intimidation. However, the penalty for robbery in inhabited house if the robber is armed is graver than simple robbery. Hence, by hurting the victim, the offender shall be penalized with a lighter penalty. In People vs. Napolis, G.R. No. L-28865, February 28, 1972, the Supreme Court En Banc expressly abandoned the Sebastian doctrine. It was held that imposing a much lighter penalty if violence upon person is used in addition to forcible entry in committing robbery defies logic and reason. When the elements of both robbery by

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means of violence and intimidation and robbery by using force upon thing are present, the crime is a complex one under Article 48 of said Code. Hence, the penalty for robbery in inhabited house shall be imposed in its maximum period. In People vs. Disney, G.R. No. L-41336, February 18, 1983, En Banc and Fransdilla vs. People, GR No. 197562, April 20, 2015 the Supreme Court reaffirmed the Napolis doctrine. 37. ESTAFA THROUGH ISSUANCE OF BOUNCING CHECK - In order to constitute estafa through issuance of bouncing check, the postdating or issuing a check must be the efficient cause of the defraudation. In sum, the offender must be able to obtain money or property from the offended party by reason of the issuance of the check, whether dated or postdated. In other words, it must be shown that the offended party to whom the check was delivered would not have parted with his money or property were it not for the issuance of the check by the offender (People vs. Reyes, GR No. 157943, September 04, 2013). Issuance of bouncing check to cover preexisting obligation is not estafa. To be guilty of this crime the accused must have used the check in order to defraud the complainant. What the law punishes is the fraud or deceit, not the mere issuance of the worthless check. However, prima facie evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three days from receipt of the notice of dishonor (People vs. Reyes, GR No. 157943, September 04, 2013). But receipt of notice of dishonor is not an element of this crime. 38. OTHER FORMS OF SWINDLING – Other forms of swindling under Article 316 (a) of RPC is committed by any person who, knowing that the real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. The law was taken from Article 455 of the Spanish Penal Code. However, the words "como libre" in the Spanish Penal Code, which means "free from encumbrance" do not appear in the English text of RPC, nonetheless, the same are deemed incorporated in the RPC. The gravamen of the crime is the disposition of legally encumbered real property by the offender under the express representation that there is no encumbrance thereon. Hence, for one to be criminally liable for estafa under the law, the accused must make an express representation in the deed of conveyance that the property sold or disposed of is free from any encumbrance (Naya vs. Abing, G.R. No. 146770, February 27, 2003). In other forms of swindling under Article 316, (1) and (2) of RPC, offender perpetrates false representation involving real property and act of ownership such as selling it, which causes damage to third person. In paragraph 1, the accused represents that he owned the property, while in paragraph 2, he expressly represents in the deed of conveyance that the property is free from encumbrance. In EstrelladoMainar vs. People, G.R. No. 184320, July 29, 2015 - The accused is not liable under paragraph 2 since he did not make an express representation in the deed of conveyance that the property sold or disposed of is free from any encumbrance. Neither is he liable under paragraph 1 since he did not pretend to be the lawful owner

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of property by a title issued in the name of her father. The complainant is aware that the title is still in the name of the father of the accused. 39. OTHER DECEIT - In estafa under Article 315, the false representation is committed by using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. Following the principle of ejusdem generis, other deceit as a means to commit estafa must be similar to pretending to possess power, imaginary transaction etc. If the deceit is not similar to pretending to possess power or imaginary transaction, the crime committed is other deceit under Article 318. In Guinhawa vs. People, G.R. No. 162822 August 25, 2005 - Fraudulent representation of the seller that the van to be sold is brand new constitutes other deceit under Article 318. On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19, 1069, false representation that accused has a palay by reason of which the victim parted his money in consideration of the palay constitutes estafa under Article 315. Unlike in the Guinhawa case, the transaction in Rubaton case is imaginary. The false pretense made by accused that Primelink was authorized to sell membership shares is estafa. False pretense of qualification to sell securities is within the contemplation of the provision on estafa (Lopez vs. People, GR No. 199294, July 31, 2013) 40. THEFT - The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of "asportation," which is defined as "carrying away." Jurisprudence is settled that to "take" under the theft provision of the penal code does not require asportation or carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015); A tenant is entitled to the products of the land he or she cultivates. The landowner's share in the produce depends on the agreement between the parties. Hence, the harvesting done by the tenant is with the landowner's consent. Petitioner harvested the abaca, believing that he was entitled to the produce as a legitimate tenant cultivating the land owned by private complainant. Personal property may have been taken, but it is with the consent of the owner (Ligtas vs. People, G.R. No. 200751, August 17, 2015). The subsequent recovery of the stolen motorcycle will not preclude the presence of the third element. Actual gain is irrelevant as the important consideration is the intent to gain or animus lucrandi. Intent to gain is an internal act presumed from the unlawful taking of the motor vehicle which the appellant failed to overcome with evidence to the contrary. Verily, the mere use of the thing unlawfully taken constitutes gain (People vs. Asamuddin, G.R. No. 213913, September 02, 2015). Employee, who failed to return the motorcycle and money of the company, is liable for carnapping and qualified theft (People vs. Asamuddin, supra) 41. THEFT THROUGH MISAPPROPRIATION - Misappropriation of personal property in possession of the accused may constitute estafa or theft depending upon the nature of possession. If his possession of the property is physical or de facto,

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misappropriation thereof is constitutive of theft. If the possession is juridical or legal, misappropriation thereof is estafa through misappropriation. But if the accused acquired not merely possession but also ownership over the property, his liability in connection with the property is merely civil. If there is a contract of agency, the possession of the agent over the property owned by principal is juridical. Under the Civil Code, an agent can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Guzman v. Court of Appeals, 99 Phil. 703). Thus, failure of the agent to return the money or property to the principal is estafa (Carganillo vs. People, G.R. No. 182424, September 22, 2014; Tria vs. People, G.R. No. 204755, September 17, 2014). In Velayo vs. People, G.R. No. 204025, November 26, 2014 – Accused induced to complainant to entrust to her the funds for the taxes because she knew someone at the BIR who could help her facilitate the remittance, and even reduce the amounts due. She received the money for remit the same to the BIR with full freedom and discretion. Thus, she had juridical possession of money. The crime committed is estafa. Driver of jeepney under boundary arrangement, who did not return the vehicle to the owner-operator, is liable for carnapping. The law prohibits operator of motor vehicle from leasing it. In the eye of the law the driver was only an employee of the owner rather than a lessee. For being an employee, his possession of the jeepney is physical (People v. Isaac G.R. No. L-7561, April 30, 1955), and thus, misappropriation thereof is carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004) In Roque v. People, the Court ruled that qualified theft may be committed even when the personal property is in the lawful possession of the accused prior to the commission of the felony. The concept of unlawful taking in theft, robbery and carnapping being the same, the holding in Roque v. People[44] equally applies to carnapping. Hence, in People v. Bustinera, appellant, who was hired as taxi driver, was found guilty of carnapping under R.A. No. 6539 after he failed to return the Daewoo Racer taxi assigned to him by the cab company where he was employed (People vs. Asamuddin, G.R. No. 213913, September 02, 2015). As a rule, the possession of the employee is only physical possession. Hence, misappropriation of property is considered as theft. If the property is accessible to the employee because of his function as such, the qualifying circumstance of abuse of confidence can be appreciated. The following employees were convicted of qualified theft for misappropriating the property of their employer: (a) bank teller (People v. Locson, G.R. No. L-35681, October 18, 1932), (b) collector (Matrido vs. People, G.R. No. 179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466, February 25, 2015) and (c) cash custodian (Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; Balerta vs. People, G.R. No. 205144, November 26, 2014). However, there are instances where the possession of the employee is considered as juridical. 1. In Aigle vs. People, G.R. No. 174181, June 27, 2012 - A

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corporate officer received the property to be utilized in the fabrication of bending machines in trust from the corporation and he has absolute option on how to use them without the participation of the corporation. Upon demand, the officer failed to account the property. Since the corporate officer received the property in trust with absolute option on how to use them without the participation of the corporation, he acquired not only physical possession but also juridical possession over the equipment. He is liable for estafa through misappropriation. 2. In People vs. Go, G.R. No. 191015, August 6, 2014 – The President of the Bank is holding the bank’s fund in trust or for administration for the bank’s benefit. His possession is juridical. Hence, misappropriating the funds by making fictitious loan is estafa. 3. In Gamboa vs. People, G.R. No. 188052, April 21, 2014 - Accused employed as Liaison Officer of a pawnshop received money in trust to secure or renew licenses and permits. His possession is juridical. Hence, misappropriating the money is estafa. 42. THEFT OF BULKY GOODS - If the bulky goods are taken by the accused inside a compound (such as SM), theft is consummated even if the accused failed to bring out the stolen goods from the compound, which makes him unable to freely dispose it. Unlawful taking is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. Inability to dispose the stolen property is not an element of theft. Unlawful taking is the element which produces the felony in its consummated stage. Without unlawful taking, the offense could only be attempted theft, if at all. Thus, theft cannot have a frustrated stage (Valenzuela vs. People, G. R. No. 160188, June 21, 2007). If the accused is charged with frustrated theft, he could not be convicted of the crime charged because theft has no frustrated stage. Neither could he be convicted of consummated theft since it was not alleged in the information. But he could be convicted of attempted theft because this crime is necessarily included in the charge of frustrated theft (Canceran vs. People, G.R. No. 206442, July 01, 2015). Asportation - The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of "asportation," which is defined as "carrying away." Jurisprudence is settled that to "take" under the theft provision of the penal code does not require asportation or carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015); 43. Theft Of Intangible Property - The term "personal property" in the Revised Penal Code should be interpreted in the context of the Civil Code. Consequently, any personal property, tangible or intangible, corporeal or incorporeal, capable of appropriation can be the object of theft. Business may be appropriated under Bulk Sales Law. Thus, the business of providing telecommunication and the telephone service is a personal property (Laurel vs. Abrogar, G.R. No. 155076, January 13, 2009). The word "take" in the RPC includes controlling the destination of the property stolen to deprive the owner of the property, such as the use of a meter tampering, use of a device to fraudulently obtain gas, and the use of a jumper to divert electricity. Appropriation of forces of nature which are brought under control by science such as electrical energy can be achieved by tampering with any apparatus used for generating or measuring such forces of nature, wrongfully redirecting such forces of nature from

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such apparatus, or using any device to fraudulently obtain such forces of nature (Laurel vs. Abrogar). FINDER OF LOST PROPERTY - Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner, is liable for theft. If the finder surrenders the property found to a policeman, who fails to deliver it the owner, the policeman is liable for theft. He acquired the position occupied by the actual finder. Appropriating the property is of the same character of that made by one who originally found the same (People vs. Avila, G.R. No. L-19786, March 31, 1923). 44. QUALIFIED THEFT - The elements of the crime of theft are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft becomes qualified "if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is a motor vehicle, mail matter or large cattle, or consists of coconuts taken from the premises of a plantation, fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance (People vs. Bayon, GR No. 168627, July 02, 2010). Abuse of confidence - A project manager, who took construction materials from the project site, is liable for qualified theft since the stolen properties are accessible to him (Zapanta vs. People, G.R. No. 170863, March 20, 2013). If the accused as an employee had no physical access to, or material possession of, the stolen goods owned by his employer, the qualifying circumstance of abuse of confidence cannot be appreciated (Viray vs. People, GR No. 205180, November 11, 2013). Breaking the main door because accused was denied access to complainant’s house means the latter has no confidence on the former. Qualified theft with abuse of confidence is not committed (Viray vs. People, GR No. 205180, November 11, 2013). The crime committed is robbery by using force upon thing. Identity of the offended party - In oral defamation, a crime against honor, the identity of the person against whom the defamatory words were directed is a material element. Thus, an erroneous designation of the person injured is material (People vs. Uba, 106 Phil. 332). If the subject matter of a crime against property was money, identity of the offended party in the information is indispensable for the proper identification of the offense charged. Since money is generic, it can only be identified connecting it to the offended party. Thus, the erroneous designation of the offended party is fatal to the prosecution of the crime. If the subject matter of a crime against property is specific, identity of the offended party in the information is not indispensable for the proper identification of the offense charged. Since property is specific, it can be identified even without connecting it to the offended party (Senador vs. People, GR No. 201620, March 06, 2013). Claim of ownership - Properties allegedly stolen are subject to estate proceeding. The fact that these properties were taken under claim of ownership negates the element of intent to gain. One who takes the property openly and avowedly

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under claim of title offered in good faith is not guilty of robbery even though the claim of ownership is untenable. “Actus non facit reum, nisi mens sit rea. (Sy vs. Gutierrez, GR No. 171579, November 14, 2012). 45. UNINHABITED HOUSE - The establishment allegedly robbed was a store not used as a dwelling. Hence, the crime committed is robbery in a private building (Marquez vs. People, G.R. No. 181138, December 3, 2012). 46. CARNAPPING - Under the Anti-Carnapping Act, the penalty of reclusion perpetua to death shall be imposed when the owner or driver of the vehicle is killed in the course of the commission of the carnapping or on the occasion thereof. To prove the special complex crime of carnapping with homicide, there must be proof not only of the essential elements of carnapping, but also that it was the original criminal design of the culprit and the killing was perpetrated "in the course of the commission of the carnapping or on the occasion thereof" (People vs. Nocum et. Al., G.R. No. 179041, April 1, 2013). CRIMES AGAINST CHASTITY 47. ACTS OF LASCIVIOUNESS AND RAPE THROUGH SEXUAL ASSAULT – Prior to RA No. 8353, rape through sexual assault was considered as acts of lasciviousness. However, upon the passage of RA No. 8353, acts, which were as acts of lasciviousness before, are now treated as rape through sexual assault. However, the concept of rape through sexual assault has not acquired some of the characteristic of acts of lasciviousness. If the accused commits rape and acts of lasciviousness, the latter is absorbed by the former (People vs. Dy, G.R. Nos. 115236-37, January 29, 2002). But the doctrine of absorption is not applicable to rape through sexual assault. Inserting lighted cigarette into the genital orifice and anal orifice of the victim and raping her constitutes two counts of rape by sexual assault and rape through sexual intercourse (People vs. Crisostomo, GR No. 196435, January 29, 2014). Inserting the penis into the mouth of the victim and into her genital orifice constitutes rape through sexual assault and organ rape (In People vs. Espera, G.R. No. 202868, October 02, 2013). If the crime charged is rape, but the crime proven is acts of lasciviousness, the accused will be convicted of the latter because of the variance rule. Acts of lasciviousness is necessarily included in the charge of rape. If the crime charged is rape through sexual intercourse, but the crime proven is rape through sexual assault, the accused cannot be convicted of the latter. The variance rule is not applicable since rape through sexual assault is not necessarily included in the charge of rape through sexual intercourse. The elements of these two crimes are materially and substantially different. In such case, the accused will be convicted of acts of lasciviousness, which is necessarily included in the charge of rape through sexual intercourse (People vs. Pareja, GR No. 202122, January 15, 2014; People vs. Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R. No. 183652, February 25, 2015). 48. ACTS OF LASCIVIOUSNESS AND CONSENTED ACTS OF LASCIVIOUSNESS - Acts of Lasciviousness under Article 336 of the Revised Penal

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Code is committed against a person of either sex. On the other hand, consented acts of lasciviousness under Article 339 of the same Code is committed against woman. Acts of lasciviousness is committed under the any of the circumstances of committing the old form of rape, and that is, (1) using force or intimidation; or (2) when the offended party is deprived of reason or otherwise unconscious; or (3) when the offended party is under 12 years of age. While consented acts of lasciviousness under Article 339 of the same Code is committed under the any of the circumstances of committing qualified seduction or simple seduction (e.g. acts of lasciviousness committed if committed against: (1) a woman by ascendant or brother; (2) a virgin over twelve years and under eighteen years of age by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman; or (3) against a woman who is single or a widow of good reputation, over twelve but under eighteen years of age committed by means of deceit (See: Dimakuta vs. People, G.R. No. 206513, October 20, 2015). CRIMES AGAINST CIVIL STATUS 49. BIGAMY - The elements of bigamy are: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; (4) the subsequent marriage would have been valid had it not been for the existence of the first (Marbella-Bobis v. Bobis, G.R. No. 138509, 31 July 2000; Vitangcol vs. People, G.R. No. 207406, January 13, 2016); (5) fraudulent intention (People vs. Manuel, G.R. No. 165842, November 29, 2005). 1. Validity of the first marriage - To avoid criminal liability for bigamy, the first marriage must be declared null and void before contracting the second marriage. This requirement is found in Article 40 of the Family Code, which provides: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. A declaration of the absolute nullity of the first marriage is now explicitly required either as a cause of action or a ground for defense in bigamy (People vs. Teves, G.R. No. 188775, August 24, 2011). Contracting second marriage without previous declaration of nullity of the first marriage consummates the crime of bigamy. Once the crime consummates, criminal liability will attach to the accused and will not be extinguished except through a mode mentioned in Article 89 of the Revised Penal Code such as death, pardon etc. Thus, after the consummation of the crime of bigamy upon celebration of the second bigamous marriage, the criminal liability shall not be extinguished by subsequent declaration of nullity of the first marriage(Mercado vs. Tan, G.R. No. 137110, August 1, 2000) even though obtained before the filing of the complaint for bigamy (People vs. Odtuhan, GR No. 191566, July 17, 2013); or the second marriage (Tenebro vs. The Honorable Court of Appeals, supra); or first marriage and second marriage (Jarillo vs. People, GR No. 164435, September 29, 2009).

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Subsequent declaration of nullity of the first marriage- Contracting second marriage during the subsistence of first marriage consummates the crime of bigamy. Criminal liability will not be extinguished even though after the consummation of the crime or celebration of the second marriage, the first marriage has been declared null and avoid because of psychological incapacity (Mercado vs. Tan, supra) or lack of license and affidavit of cohabitation(Lasanas vs. People,G.R. No. 159031, June 23, 2014). Contracting a second marriage constitutes the crime of bigamy unless a judicial declaration of the nullity of the first marriage has been secured beforehand. Because of Article 40 of the Family Code, a declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense (Lasanas vs. People,supra). Even if the first marriage was contracted prior to the Family Code, this is not a defense. Article 40, which is a rule of procedure, should be applied retroactively. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs. People, GR No. 164435, June 29, 2010). Exception: The principle that “one who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy” is not applicable where the parties merely signed the marriage contract without marriage ceremony performed by a duly authorized solemnizing officer. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Hence, bigamy is not committed (Morigo vs. People, G.R. No. 145226, February 06, 2004). 2. Validity of the second marriage – For the accused to be convicted of bigamy, the second or subsequent marriage must have all the essential requisites for validity (Santiago vs. People, G.R. No. 200233, July 15, 2015). In sum, the second marriage would be valid were it not for the subsistence of the first marriage (People v. Dumpo, 62 Phil. 247). The felony is consummated on the celebration of the second marriage or subsequent marriage. a. Subsequent declaration of nullity of the second marriage - Contracting second marriage during the subsistence of first marriage consummates the crime of bigamy. Criminal liability will not be extinguished even though after the consummation of the crime or celebration of the second marriage, such second marriage has been declared null and avoid because of psychological incapacity. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages (Tenebro vs. The Honorable Court of Appeals, supra; Walter vs. People, GR No. 183805, July 03, 2013). Note: Article 40 of the Family Code is not applicable in this case because this provision contemplates a situation where first marriage, and not the second marriage, is null and void.

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b. Second marriage is void for lack of marriage license - If the second marriage is void due to lack of marriage license, the accused may or may not use the nullity thereof as a defense. The accused misrepresented that they were exempted from the license requirement based on their fabricated claim that they had already cohabited as husband and wife for at least five years prior their marriage. Accused cannot use the voidness of the second marriage as a defense in bigamy because she fraudulently secured a certificate of marriage, and that is presenting a falsified affidavit of cohabitation instead of marriage license, The State’s penal laws on bigamy should not be rendered nugatory by allowing the accused to deliberately ensure that the second marriage be flawed in some manner, and to thus escape the consequences of contracting multiple marriages (Santiago vs. People, supra). The second marriage was celebrated one day before the issuance of the marriage license. Accused can use the voidness of the second marriage as a defense in bigamy. In this case, accused did not cause the falsification of public documents in order to contract a second marriage. He did not fraudulently secure a Certificate of Marriage, and later used this criminal act as basis for seeking her exculpation. The crime committed is not bigamy under Article 349 (Santiago vs. People, supra; People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079) but marriage contracted against the provisions of the law under Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955). Accomplice in bigamy - The crime of bigamy does not necessary entail the joint liability of two persons who marry each other while the previous marriage of one of them is valid and subsisting. In the crime of bigamy, both the first and second spouses may be the offended parties depending on the circumstances, as when the second spouse married the accused without being aware of his previous marriage. Only if the second spouse had knowledge of the previous undissolved marriage of the accused could she be included in the information as a co-accused (Santiago vs. People, G.R. No. 200233, July 15, 2015). The punishment of the second spouse as a principal to the crime is wrong. The second spouse, if indicted in the crime of bigamy, is liable only as an accomplice. A person, whether man or woman, who knowingly consents or agrees to be married to another already bound in lawful wedlock is guilty as an accomplice in the crime of bigamy (Santiago vs. People, supra). Three marriages - X contracted three marriages. His first wife is already dead when X contracted his third marriage. X is liable for bigamy involving the second marriage on the basis of his first marriage. X is not liable for bigamy involving the third marriage on the basis of the first marriage since the first has already been extinguished by reason of death of the first wife when he contracted the third. He is not liable for bigamy involving the third marriage on the basis of the second marriage since the latter is null and void for being a bigamous marriage. 50. ILLEGAL MARRIAGE - A priest, who performed a marriage ceremony despite knowledge that the couple had no marriage license, is liable for illegal

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marriage. The non-filing of a criminal complaint against the couple does not negate criminal liability of the priest. Article 352 does not make this an element of the crime. The law sets the minimum requirements constituting a marriage ceremony: first, there should be the personal appearance of the contracting parties before a solemnizing officer; and second, their declaration in the presence of not less than two witnesses that they take each other as husband and wife. For purposes of determining if a marriage ceremony has been conducted, a marriage certificate is not included in the requirements (Ronulo vs. People, G.R. No. 182438, July 02, 2014). CRIMES AGAINST HONOR 51. MEANS TO COMMIT DEFAMATION - Under Article 355 of the Revised Penal Code, a libel is committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or “any similar means.” Libel is not a constitutionally protected speech and that the government has an obligation to protect private individuals from defamation. Indeed, cyber libel is actually not a new crime since Article 353, in relation to Article 355 of the Revised Penal Code, already punishes it. Online defamation constitutes “similar means” for committing libel (Disini vs. Secretary of Justice, G.R. No. 20335, February 18. 2014). The place where libelous article was accessed by the offended party in the internet is not equivalent to the place where the libelous article is “printed and first published”. To rule otherwise is to allow the evil sought to be prevented by the amendment to Article 360, and that was the indiscriminate laying of the venue in libel cases in distant, isolated or far-flung areas, to harass an accused. At any rate, Article 360 still allow offended party to file the civil or criminal complaint for internet libel in their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5, 2010). Whether the offense committed is serious or slight oral defamation, depends not only upon the sense and grammatical meaning of the utterances but also upon the special circumstances of the case, like the social standing or the advanced age of the offended party. "The gravity depends upon: (1) the expressions used; (2) the personal relations of the accused and the offended party; and (3) the special circumstances of the case, the antecedents or relationship between the offended party and the offender, which may tend to prove the intention of the offender at the time. In particular, it is a rule that uttering defamatory words in the heat of anger, with some provocation on the part of the offended party constitutes only a light felony (De Leon vs. People, G.R. No. 212623, January 11, 2016). There are cases where the Court considered the circumstances of the concerned parties and held that the defamation was grave serious in nature. In U.S. v. Tolosa, where a woman of violent temper hurled offensive and scurrilous epithets including words imputing unchastity against a respectable married lady and tending to injure the character of her young daughters, the Court ruled that the crime committed was grave slander. In Balite v. People, the accused was found

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guilty of grave oral defamation as the scurrilous words he imputed to the offended party constituted the crime of estafa. In some cases, the Court has declared that the defamatory utterances were not grave on the basis of the peculiar situations obtaining. In the case of People v. Arcand, a priest called the offended party a gangster in the middle of the sermon. The Court affirmed the conviction of the accused for slight slander as there was no imputation of a crime, a vice or immorality. In Pader v. People, the Court ruled that the crime committed was only slight oral defamation as it considered the expression, "putang ina mo," as expression to convey anger or displeasure. Such utterance was found not seriously insulting considering that he was drunk when he uttered those words and his anger was instigated by what the private complainant did when the former's father died. Also in Jamilano v. Court of Appeals, where calling someone "yabang" (boastful or arrogant) was found not defamatory, the complainant's subsequent recourse to the law on oral defamation was not sustained by the Court. Considering the factual backdrop of this case, the Court is convinced that the crime committed by De Leon was only slight oral defamation for the following reasons: First, as to the relationship of the parties, they were obviously acquainted with each other as they were former jogging buddies. Prior to the purported gun-pointing incident, there was no reason for De Leon to harbor ill feelings towards SPO3 Leonardo. Second, as to the timing of the utterance, this was made during the first hearing on the administrative case, shortly after the alleged gun-pointing incident. The gap between the gun-pointing incident and the first hearing was relatively short, a span of time within which the wounded feelings could not have been healed. The utterance made by De Leon was but a mere product of emotional outburst, kept inside his system and unleashed during their encounter. Third, such words taken as a whole were not uttered with evident intent to strike deep into the character of SPO3 Leonardo as the animosity between the parties should have been considered. It was because of the purported gun-pointing incident that De Leon hurled those words. There was no intention to ridicule or humiliate SPO3 Leonardo because De Leon's utterance could simply be construed as his expression of dismay towards his actions as his friend and member of the community (De Leon vs. People, G.R. No. 212623, January 11, 2016). CRIMINAL NEGLIGENCE 52. To make a doctor liable for reckless imprudence resulting to homicide, it must be shown that he did not treat his patient in accordance with the standard of care and skill commonly possessed and exercised by similar specialists under similar circumstances. Failure to present specialist as witness to testify on this standard is fatal to the prosecution of the case (Solidum vs. People, GR No. 192123, March 10, 2014).

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In People vs. Dumayag, G.R. No. 172778, 26 November 2012 - Section 37 of R.A. No. 4136 mandates all motorists to drive and operate vehicles on the right side of the road or highway. When overtaking another, it should be made only if the highway is clearly visible and is free from oncoming vehicle. Overtaking while approaching a curve in the highway, where the driver’s view is obstructed, is not allowed. Corollarily, drivers of automobiles, when overtaking another vehicle, are charged with a high degree of care and diligence to avoid collision. The obligation rests upon him to see to it that vehicles coming from the opposite direction are not taken unaware by his presence on the side of the road upon which they have the right to pass. 53. JUVENILE JUSTICE AND WELFARE SYSTEM – An accused is a child in conflict with the law as along as he is under 18 years of age at the time of the commission of the offense. Reaching the age of majority at any stage of the case will not deprive him of his entitlements under the law as a child in conflict with the law. Thus, the exempting circumstance of minority is still appreciable even if the accused is already an adult at the time of the rendition of judgment. However, there is an exception to this rule. Upon reaching the age of 21 years, he is not anymore entitled to the benefit of a suspended sentence. The rights and privileges of a child in conflict with the law are as follows: 1. Exemption of criminal liability - If the child is 15 years of age or below, minority is an exempting circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively presumed. If the child is above 12 years of age up to 15 years of age, he is exempt from criminal liability but he can be considered as a neglected child and be mandatorily placed in a youth care facility or Bahay Pag-asa in the following instances: (a) If the child commits serious crimes such as parricide, murder, infanticide, rape, kidnapping and serious illegal detention with homicide or rape, robbery with homicide or rape, destructive arson, or carnapping where the driver or occupant is killed or raped or offenses involving dangerous drugs punishable by more than 12 years of imprisonment; and (b) In case of repetition of offenses and the child was previously subjected to a intervention program and his best interest requires involuntarily commitment. In case of commission of serious crime, a petition for involuntarily commitment shall be filed by social worker in court. In case of repetitionof offenses, his parents or guardians shall execute a written authorization for the voluntary commitment. However, if the child has no parents or guardians or if they refuse or fail to execute such authorization, the proper petition for involuntary commitment shall be immediately filed social worker in court; but the child may be subjected to intensive intervention program supervised by the local social officer instead of involuntary commitment (Section 20-A and 20-B of RA 9344 as amended by RA 10630). 2. Privilege mitigating circumstance – If the child is above 15 years of age but below 18 years of age, minority is either exempting or privileged mitigating. If the child acted without discernment, the circumstance of minority is exempting. If the

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child acted with discernment, the circumstance of minority is a privileged mitigating. This privilege mitigating circumstance shall be appreciated even if minority was not proved during the trial and that his birth certificate was belatedly presented on appeal (People vs. Agacer, G.R. No. 177751, January 7, 2013) and even if the penalty is reclusion perpetua to death (People vs. Ancajas, G.R. No. 199270, October 21, 2015). Under Section 98 of RA No. 9165, the provisions in Revised Penal Code are not applicable unless the accused is a minor. In such case, the penalty of life imprisonment shall be considered reclusion perpetua. In sum, if the accused is a minor, Article 68 of Revised Penal Code on the privilege mitigating circumstance of minority shall apply to crime of illegal possession of dangerous drug even though this is malum prohibitum punishable by life imprisonment. Hence, the penalty of life imprisonment for illegal possession of dangerous drug committed by a minor, which is treated as reclusion perpetua, shall be graduated to reclusion temporal because of the privilege mitigating circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011) 5. Suspension of sentence of child in conflict with the law - The suspension of sentence of minor is now found in Section 38 of RA 9344, otherwise known as the Juvenile Justice and Welfare Law. Hence, Article 80 of the Revised Penal Code and relevant provisions in PD 603 (Youth and Welfare Code) on suspension of sentence of minor are deemed repealed. a. Promulgation of judgment - Once the child in conflict with the law is found guilty of the offense charged, the court, instead of pronouncing judgment of conviction, shall place him under suspended sentence, without need of application (1984 Bar Exam). But the court shall determine and ascertain any civil liability which may have resulted from the offense committed (Section 38 of RA 9344). In other words, the suspension of sentence does not extend to civil aspect of the case. If the child in conflict with the law is found innocent or exempt for criminal liability the pronouncement of judgment of acquittal shall not be suspended. In suspension of sentence of minor, what is being suspended is the pronouncement of sentence or promulgation of judgment of conviction. In probation, what is being suspended is the service of sentence. In parole, what is being suspended is the service of the unserved portion of the sentence. The convict is only entitled to apply for parole after the serving the minimum penalty under the indeterminate sentence law. b. Application, not required - Under the old rule, application for suspension of sentence is required. But under Section 38 of RA 9344, the court shall place the child in conflict with the law under a suspended sentence without need of application. c. Reaching the age of majority -Under the old rule, a child in conflict with the law is not entitled to a suspended sentence upon reaching 18 years of age. However, under Section 38 of RA No. 9344, the suspension of sentence shall still be applied even if the child in conflict with the law is already 18 years of age or more at the time of pronouncement People vs. Ancajas, G.R. No. 199270, October 21, 2015).

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While Section 38 of RA 9344 provides suspension of sentence can still be applied even if the child is already 18 years of age or more at the time of the pronouncement, Section 40 limits the suspension of sentence until the child reaches the age of 21. Hence, child in conflict with the law, who reached 21 years of age, cannot avail of suspension of sentence (1973, 1977, 2003, 2009, and 2013 Bar Exams; People vs. Arpon, G.R. No. 183563, December 14, 2011, Padua v. People, G.R. No. 168546, July 23, 2008, People vs. Salcedo, GR No. 186523, June 22, 2011; People vs. Gambao, GR No. 172707, October 01, 2013; People vs. Ancajas, G.R. No. 199270, October 21, 2015). d. No disqualification - Under the old rule, the child in conflict with the law is disqualified from the benefit of suspended sentence if he had been sentenced to death, life imprisonment, reclusion Perpetua (1995 Bar Exam). However, under RA No. 9344, Section 38 makes no distinction as to the nature of offense by the child. Thus, the court should not distinguish between a minor, who is guilty of capital offense or lesser offense. The Senate debate discloses that the suspension is applicable to heinous crime (People vs. Sarcia, G.R. No. 169641, September 10, 2009; People vs. Jacinto, G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015). Even a recidivist minor is entitled a suspended sentence. 6. Probation – If the accused is an adult, application for probation must be filed within the period of perfecting an appeal (Section 4 of PD No. 968 or Probation Law). However, the accused is a child in conflict with the law, application for probation may be filed at any time (Section 42 of RA No. 9344). In sum, it can be filed even beyond the period of perfecting an appeal or even during the pendency of an appeal. Under Section 9 of PD 968, one is sentenced to suffer a penalty (maximum indeterminate penalty) of more than 6 years is not qualified to apply for probation (e.g. one who is sentenced to suffer 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum is not entitled to apply for probation). However, under Section 70 of RA No. 9165 (Dangerous Drugs Law), a first time minor offender can apply for probation for the crime of illegal possession or use of dangerous drug even if the penalty is higher than 6 years of imprisonment (2014 Bar Exam). But Section 70 of RA 9165 is only applicable if the minor is being charged with possession or use of dangerous drugs. If the charge is selling dangerous drugs, the applicable rule is Section 24 of RA No. 9165, which disqualifies drug traffickers and pushers for applying for probations. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators (Padua vs. People, G.R. No. 168546, July 23, 2008). 7. Agricultural camp or other training facilities - The child in conflict with the law may, after conviction and upon order of the court, be made to serve his sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities in accordance with Section 51 of RA No. 9344 (People vs. Mantalba, G.R. No. 186227, July 20, 2011; People vs. Salcedo, GR No. 186523, June 22, 2011; People vs. Arpon, G.R. No. 183563, December 14, 2011; People vs. Ancajas, G.R. No. 199270, October 21, 2015).

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8. Full credit of preventive imprisonment –A convict is entitled to a full or 4/5 credit of his preventive imprisonment (Article 29 of the Revised Penal Code). However, if the convict is a child in conflict with the law, he shall be credited in the services of his sentence the full time spent in actual commitment and detention (Section 41, RA 9344; Atizado vs. People, G.R. No. 173822, October 13, 2010). 54. CHILD ABUSE - Twelve years old and above - If the child is 12 years old and above, and the acts of the accused constitute sexual abuse (or child prostitution) under RA No. 7610 and rape or acts of lasciviousness, the latter shall be prosecuted as follows: If the acts committed against a child, who is 12 years old and above, constitute sexual abuse and rape or acts of lasciviousness, the perpetrator cannot be charged with both crimes for the same act because his right against double jeopardy will be prejudiced. Both crimes are of the same nature since the essence of both is having sex without consent. Consent of the child is not recognized by law. Likewise, rape cannot be complexed with sexual abuse. Under Section 48 of RPC, a felony cannot be complexed with an offense penalized by a special law. In such case, he shall be prosecuted either for sexual abuse or rape through sexual intercourse (People v. Abay, G.R. No. 177752, February 24, 2009; People vs. Pangilinan, G.R. No. 183090, Nov. 14, 2011, People v. Dahilig, G.R. No. 187083, June 13, 2011, People v. Matias, G.R. No. 186469, June 13, 2012 and Alberto vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013) depending upon which of the laws prescribes a higher penalty. If the acts committed against a child, who is 12 years old and above, constitute sexual abuse and rape through sexual intercourse or rape through sexual assault with homicide, the perpetrator shall be prosecuted for rape because the Revised Penal Code prescribes a higher penalty. If the acts committed against a child, who is 12 years old and above, constitute sexual abuse and rape through sexual assault or acts of lasciviousness, the perpetrator shall be prosecuted for sexual abuse because RA No. 7610 prescribes a higher penalty. In Dimakuta vs. People, G.R. No. 206513, October 20, 2015 – If the victim of the lascivious acts or conduct is over 12 years of age and under eighteen (18) years of age, the accused shall be liable for consented acts of lasciviousness under Article 339 of the Revised Penal Code or acts of lasciviousness under Article 336. However, in case the acts of lasciviousness is covered by lascivious conduct under Section 5 (b) RA No. 7610 and it is done through coercion or influence, which establishes absence or lack of consent, then Art. 336 of the Code is no longer applicable. Accused shall be held liable for sexual abuse. In instances where the lascivious conduct is covered by Section 5 (b) of RA No. 7610 (on sexual abuse), where the penalty is reclusion temporal medium, and the act is likewise covered by (rape through) sexual assault under Article 266-A, paragraph 2 of the RPC, which is punishable by prision mayor, the offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610, where the law provides for the higher penalty of reclusion temporal medium, if the offended party is a child victim

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Under twelve years old – If the child is under 12 years old, and the acts of the accused constitute sexual abuse (or child prostitution) under RA No. 7610 and rape or acts of lasciviousness, the latter shall be prosecuted penalized as follows: a. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and rape through sexual intercourse, the perpetrator shall not be prosecuted for sexual abuse under RA No. 7610. He shall be prosecuted and penalized for statutory rape under Revised Penal Code (People vs. Pangilinan, GR No. 183090, November 14, 2011). Under Section 5 of RA No. 7610, when the child exploited in prostitution or subject to sexual abuse is under twelve years of age, the perpetrators shall be prosecuted for rape under the Revised Penal Code. b. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and acts of lasciviousness, the perpetrator shall be prosecuted for acts of lasciviousness under the Revised Penal Code but penalized under RA No. 7610, which has prescribed the penalty of reclusion temporal in its medium period. Under Section 5 of RA No. 7610, when the child exploited in prostitution or subject to sexual abuse is under twelve years of age, the perpetrators shall be prosecuted under the Revised Penal Code on lascivious conduct: Provided, That the penalty for it shall be reclusion temporal in its medium period Before the perpetrator can be convicted of acts of lasciviousness with the penalty under RA No. 7610, the requisites for acts of lasciviousness must be met in addition to the requisites for sexual abuse (Navarrete vs. People, G.R. No. 147913, January 31, 2007; Amployo v. People, G.R. No. 157718, 26 April 2005). c. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and simple rape through sexual assault, the letters of Section 5 of RA No. 7610 require that the perpetrator shall be prosecuted and penalized under Revised Penal Code. However, this rule is unfair. If the victim is under 12 year old, the penalty for acts of lasciviousness in relation to RA No. 7610 is reclusion temporal in its medium period; while that for rape through sexual assault is only prision mayor. In sum, the penalty for acts of lasciviousness is higher than that for rape by sexual assault although the criminal degree of the former is lesser than that of the latter. To prevent unfairness, the Supreme Court in People vs. Chingh, G.R. No. 178323, March 16, 2011 imposed the penalty of reclusion temporal in its medium period under RA No. 7610 for simple rape through sexual assault committed against a 10 year old child. The Court stated: “To be sure, it was not the intention of the framers of RA No. 8353 (on rape through sexual assault), to have disallowed the applicability of RA No. 7610 to sexual abuses committed to children. Despite the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children.” d. If the acts committed against a child, who is under 12 years old, constitute sexual abuse and qualified rape by sexual assault, the letters of Section 5 of RA No. 7610 require that the perpetrator shall be prosecuted and penalized under Revised Penal Code. This rule is not unfair since the Revised Penal Code has prescribed grave penalty for it, and that is, reclusion temporal. Hence, the letter of the law shall be applied to its full extent. In People vs. Bonaagua, G.R. No. 188897, June 6, 2011, since the crime committed (against an 8-year-old child) is rape through sexual assault

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with qualifying circumstance of minority and relationship, the rationale of unfairness to the child victim that Chingh case wanted to correct is absent because RPC as amended by RA No. 8353 already prescribes the penalty of reclusion temporal for this crime. Hence, there is no more need to apply the penalty prescribed by RA No. 7610 for sexual abuse. The penalty under RPC should be imposed. 55. ESTAFA AND ILLEGAL RECRUITMENT – It is settled that a person may be charged and convicted separately of illegal recruitment under RA 8042, in relation to the Labor Code, and estafa (People vs. Arnaiz, G.R. No. 205153, September 09, 2015). The accused for deceitfully recruiting without license 6 complainants to work abroad is liable for one count of large scale illegal recruitment and 6 counts of estafa through false pretense (People vs. Solina, G.R. No. 196784, January 13, 2016). 56. ESTAFA THROUGH MISAPPROPRIATION - The essence of estafa under Article 315, par. 1(b) is the appropriation or conversion of money or property received to the prejudice of the owner. The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one's own use includes not only conversion to one's personal advantage, but also every attempt to dispose of the property of another without right (Tabaniag vs. People, GR No. 165411, June 18, 2009). Refusal to remit rentals for properties owned by corporation to corporate officers, who are not validly elected, does not constitutes estafa through misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015). Demand not necessary – However, demand to return or to make accounting is not specified in Article 315 of the Revised Penal Code as an element of estafa. The importance of demand in estafa has something to do with evidence. Failure to account upon demand for funds or property held in trust without offering any satisfactory explanation for the inability to account is circumstantial evidence of misappropriation (Magtira vs. People, G.R. No. 170964, March 7, 2012).In a prosecution for estafa through misappropriation, demand is not necessary where there is evidence of misappropriation or conversion(People vs. Arambulo,G.R. No. 186597, June 17, 2015). 57. BP BLG. 22 and ESTAFA - There is no estafa if the check was issued to cover pre-existing obligation or replace a previously issued check. In People vs. Chua, G.R. No. 130632, September 28, 1999 - Ineluctably, the replacement checks were issued in payment of an obligation long contracted and incurred. It cannot therefore be said that accused committed fraudulent acts in the issuance and the indorsement of the replacement checks. In short, the replacement checks were by no means the device used by accused to induce complainant to lend her money without which the transaction would not have been consummated. However, accused is liable under Batas Pambansa Blg. 22 for issuing four replacement checks. The law makes the mere act of issuing a worthless check punishable as a special offense. The gravamen of the offense under this law is the act of issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bum check a malum

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prohibitum, an act proscribed by legislature for being deemed pernicious and inimical to public welfare. It is undisputed that the four replacement checks in question were issued by accused and that these were all dishonored due to insufficiency of funds. 58. BP BLG. 22 - If there is no proof as to when the written notice of dishonor was received by the drawer, then the presumption or prima facie evidence as provided in Section 2 of B.P. Blg. 22 cannot arise, since there would simply be no way of reckoning the crucial 5-day period (Danao v. Court of Appeals). In Chua vs. People, G.R. No. 196853, July 13, 2015, the notice of dishonor, while bearing the signature of accused, does not indicate any date as to his receipt thereof. Hence, there is no way to ascertain when the five-day period under the law would start and end. It cannot simply presume that the date of the demand letter was likewise the date of receipt thereof. There is simply no such presumption provided in our rules on evidence. Accused was acquitted. It is well settled that violations of BP 22 cases are categorized as transitory or continuing crimes, meaning that some acts material and essential thereto and requisite in their consummation occur in one municipality or territory, while some occur in another. The check was issued in Pampanga, deposited in Makati bank and dishonored by drawee bank in Pampanga. The court of the place where the check was deposited or presented for encashment can be vested with jurisdiction to try cases involving violations of BP 22. The Metc of Makati has jurisdiction of the case (Morillo vs. People, G.R. No. 198270, December 09, 2015). The complainant may also file the case in Pampanga, the place of issuance. Demand letter was given with the security guard with the instruction to hand it to accused. But there is no showing that the letter ever reached accused. Counsel sent a demand letter to accused by registered mail which was returned with the notation "N/S Party Out 12/12/05" and that accused did not claim it despite three notices to her. Since there is insufficient proof that accused actually received the notice of dishonor, the presumption that she knew of the insufficiency of her funds cannot arise. Accused was acquitted. However, he is still civilly liable (San Mateo vs. People, G.R. No. 200090, March 6, 2013). An acquittal based on lack of proof beyond reasonable doubt by reason of failure to establish receipt of notice of dishonor does not preclude the award of civil damages (San Mateo vs. People, G.R. No. 200090, March 6, 2013). Exerting effort - Exerting efforts to reach an amicable settlement with her creditor after the checks which she issued were dishonored by the drawee bank is a circumstantial evidence of receipt of notice of dishonor. Accused would not have entered into the alleged arrangements if she had not received a notice of dishonor from her creditor, and had no knowledge of the insufficiency of her funds with the bank and the dishonor of her checks (Campos vs. People. G.R. No. 187401, September 17, 2014). No right to expect - Under Section 114(d) of the Negotiable Instruments Law, notice of dishonor is not required to be given to the drawer in either of the following cases where the drawer has no right to expect or require that the drawee or acceptor

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will honor the check. Since petitioner's bank account was already closed even before the issuance of the subject check, he had no right to expect or require the drawee bank to honor his check. By virtue of the aforequoted provision of law, petitioner is not entitled to be given a notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26, 2008, ).The crime involved in Lopez vs. People is estafa through issuance of bouncing check. However, it is submitted the Lopez principle can be applied to violation of BP 22. Payment - Payment of check before the filing of information is a defense. The spirit of B.P. Big 22, which is the protection of the credibility and stability of the banking system, would not be served by penalizing people who have evidently corrected their mistakes and restituted damages even before charges have been filed against them. In sum, by making payment of the check before the filing of the information, the purpose of the law has already been attained. 1. Payment after receiving subpoena from the office of city prosecutor (Lim vs. People, G.R. No. 190834, November 26, 2014) 2. Payment through notarial foreclosure two years before the filling of cases (Griffith vs. Hon. CA, G.R. No. 129764, March 12, 2002)3. Payment six (6) months before the filing of case (Cruz vs. Cruz, G.R. No. 154128, February 8, 2007) Payment of check after the filing of information is not a defense. Since there is no showing of intention to mitigate or totally alleviate the ill effects of his issuance of the unfunded check, then there is no equitable and compelling reason to preclude the prosecution of accused. In such a case, the letter of the law should be applied to its full extent (Lim vs. People, supra). In estafa, damage and deceit are the essential elements of the offense, and the check is merely the accused's tool in committing fraud. In such a case, paying the value of the dishonored check will not free the accused from criminal liability. It will merely satisfy the civil liability of the crime but not the criminal liability (Lim vs. People, supra). Note: The essence of estafa is to punish fraud and not to protect the integrity of the check. Suspension of payment - Suspension of payment order issued by SEC before the check was presented for payment is a defense in violation of BP Blg. 22. Considering that there was a lawful Order from the SEC, the contract is deemed suspended. When a contract is suspended, it temporarily ceases to be operative; and it again becomes operative when a condition occurs - or a situation arises - warranting the termination of the suspension of the contract. When a contract is subject to a suspensive condition, its birth takes place or its effectivity commences only if and when the event that constitutes the condition happens or is fulfilled. Thus, at the time complainant presented the check for encashment, it had no right to do so, as there was yet no obligation due from accused. Thus, accused is not liable for violation of BP Blg. 22 (Gidwani vs. People, GR No. 195064, January 15, 2014). Suspension of payment order issued by SEC after three months from receipt of notice of dishonor is not a defense in violation of BP Blg. 22. Since there is no suspension of payment when the notice of dishonor was received, the drawer was not precluded from making good the check during that three-month gap when he received

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the letter and when the SEC issued the order (Tiong Rosario vs. Co, G.R. No. 133608, August 26, 2008). 59. RA NO. 3019 – In Giangan vs. People, G.R. No. 169385, August 26, 2015 Giangan as the barangay chairman acted upon the honest and sincere belief that he was then summarily abating the nuisance that a regular user of the obstructed road had just reported to him. A further indication of the good faith of Giangan was the turning over of the wooden posts to the police station, manifesting that the accused were acting within the scope of their authority. Good faith means honest, lawful intent; the condition of acting without knowledge of fraud, and without intent to assist in a fraudulent or otherwise unlawful scheme. Also, the act complained of was rendered inconsistent with the manifest partiality and bad faith that the law punished. He was acquitted of violation of Section 3 (e) of RA No. 3019 because the element of evident bad faith is not present. Private individual - Only public officer can be held criminally liable for violation of RA No. 3019. However, if there is conspiracy, the act of the public officer in violating RA No. 3019 is imputable to the private individual although there are not similarly situated in relation to the object of the crime. Moreover, Section 9 provides penalty for public officer or private person for crime under Section 3. Hence, a private individual can be prosecuted for violation of RA No. 3019 (Go vs. The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13, 2007). Even if the public officer with whom the private individual allegedly conspired, the latter can still be prosecuted for violation of RA No. 3019. Death extinguishes the criminal liability but not the crime. Hence, if there is proof of the crime and conspiracy of dead public officer with private individual, the latter can still be convicted of violation of RA No. 3019 (People vs. Go, GR NO. 168539, March 25, 2014).However, the public officer with whom the private individual allegedly conspired is acquitted, the latter should also be acquitted (Marcos vs. Sandiganbayan, G.R. No. 126995, October 6, 1998). Conspiracy of silence or inaction As a rule, the principle of conspiracy as a mode of committing a crime or for purpose of applying the collective responsibility rule is only applicable to intentional felony. The concept of conspiracy, the elements of which are agreement and decision to commit a crime, are not consistent with culpable felony. Persons cannot definitely agree and decide to commit a culpable crime. However, there is an exception, and that, the doctrine of conspiracy of silence or in action. In Jaca vs. People, G.R. No. 166967, January 28, 2013 - A paymaster obtained cash advances despite the fact that she has previous unliquidated cash advances. The City Treasurer certified that the cash advances are necessary and lawful. The City Accountant certified that the expenditures are supported by documents and previous cash advances are liquidated and accounted for. The City Administrator approved the voucher and countersigned the check. The paymaster is liable for violation of Section 3 (e) of RA No. 3019 committed through gross inexcusable negligence. The City Treasurer, City Accountant and City administrator are liable because of conspiracy of silence or inaction. Public officers’ omissions to question irregularities indicate a common understanding and concurrence of sentiments respecting the commission of the offense.

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Undue delay - There was really no sufficient justification tendered by the State for the long delay of more than five years in bringing the charges against the respondents before the proper court. On the charge of robbery, the preliminary investigation would not require more than five years to ascertain the relevant factual and legal matters. Because of the inordinate delay in resolving the criminal complaint by the Ombudsman against respondent, the cases against respondent were dismissed (People vs. Hon. Sandiganbayan, and Perez, G.R. No. 188165, December 11, 2013). Under Section 3 (a), a public officer, who persuades, induces or influences another public officer to perform an act constituting a violation of rules and regulations or an offense in connection with the official duties of the latter, shall be punished for corruption. However, the deliberation in the Senate regarding the bill on anti-graft shows that the mode of committing the crime under Section 3 (a) is persuading, inducing or influencing a public officer by another public officer to commit an offense or to violate rules and regulations by means of consideration, reward, payment or remuneration (See: Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006). Hence, Grace Poe is not committing this crime since she is not inducing Secretary De Lima to commit an offense or violate rules in connection with the criminal complaint against INC officers by means of consideration, reward, payment or remuneration. Section 3 (b) is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Preliminary investigation is not a contract or transaction is not a contract or transaction within the contemplated of Section 3 (b). Hence, requesting or receiving money in connection with a preliminary investigation is not a violation of this provision (Soriano, Jr. vs. Sandiganbayan, G.R. No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice Secretary Perez, G.R. No. 188165, December 11, 2013). In Consigna vs. People, G.R. no. 175750, April 2, 2014 – Petitioner, a municipal treasurer, is considered a public officer discharging official functions when she misused such position to be able to take out a loan from complainant, who was misled into the belief that former, as municipal treasurer, was acting on behalf of the municipality. The petitioner misrepresented that the loan is to be used to pay for the salaries of the employees of the municipality and to construct the municipal gymnasium. The victim could have been the Municipality of General Luna since the checks signed by the mayor was issued to the complainant. It was just fortunate that the mayor instructed the bank to stop payment of the checks issued by petitioner. Thus, the municipal treasurer can be held liable for violation of Section 3 (e) of RA No. 3019 for causing damage to complainant. Section 3 (3) of RA No. 3019 is not applicable exclusively to public officers charged with the duty of granting licenses or permits or other concessions. It may apply to other public officers (Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987; Stilgrove vs. Sabas, A.M. No. P-06-2257, March 28, 2008; Consigna vs. People, G.R. No. 175750, April 2, 2014). Second element - The accused must have acted with manifest partiality, evident bad faith or gross inexcusable negligence Section 3(e) of RA 3019 may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality,

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or by culpa, as when the accused committed gross inexcusable negligence (Plameras vs. People, GR No. 187268, September 04, 2013). Arias principle - The property bought by the City is overpriced. Accused was charged with violation of Section 3 (e) of RA No. 3019 for causing damage to the government through manifest partiality and evident bad faiths. The only evidence presented by the prosecution is his on the voucher. He was acquitted. Accused cannot be convicted on grounds than the mere signature or approval appearing on a voucher. Heads of offices can rely to a reasonable extent on their subordinates on preparation of bids, purchase of supplies, or negotiations (Arias v. Sandiganbayan, G.R. Nos. 81563 & 82512, 19 December 1989). However, the principle in the Arias case where is not applicable where circumstances other than signature of the voucher shows evident bad faith, manifest partiality or gross inexcusable negligence such as: (1) Where the accused has foreknowledge of existing anomaly - e.g. mayor signed the inspection report and the disbursement voucher despite the fact that he had foreknowledge that the materials delivered by Guadines have already been confiscated by the DENR (Escara vs. People, G.R. No. 164921, July 8, 2005); (2) Where there is deviation from ordinary procedure – e.g. mayor issued and encashed municipal checks despite the facts that the disbursement vouchers were in the name of Kelly Lumber but the checks were payable to the accused and not to Kelly Lumber (Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005); and (3) Where accused approved the voucher without indication of the retention money required by law, and he even inspected the construction site of PAL Boat, in which he should have noticed the financial weakness of the contractor and the defective works (Rivera vs. People, G.R. No. 156577, December 03, 2014). Arias principle is not applicable if the public officer acting in his capacity as head of office has not relied on his subordinates but on officers of equal rank such as heads of the Office of the City Treasurer and, the Office of the City Accountant (Jaca vs. People, G.R. No. 166967, January 28, 2013). An erroneous interpretation of a provision of law regarding the entitlement of a government employee who was wrongfylly removed to RATA, absent any showing of some dishonest or wrongful purpose, does not constitute and does not necessarily amount to bad faith (Ysidoro vs. Hon. Leonardo-De Castro, G.R. No. 171513, February 06, 2012). Third element - His action caused undue injury to any party, including the government or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. There are two (2) ways by which a public official violates Section 3(e) of R.A. No. 3019 in the performance of his functions, namely: (1) by causing undue injury to any party, including the Government; or (2) by giving any private party any unwarranted benefit, advantage or preference. The accused may be charged under either mode or under both. The disjunctive term “or” connotes that either act qualifies as a violation of Section 3(e) of R.A. No. 3019. ] In other words, the presence of one would suffice for conviction. "To be found guilty under the second mode, it suffices that the accused has given unjustified favor or benefit to another, in

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the exercise of his official, administrative and judicial functions." The element of damage is not required for violation of Section 3 (e) under the second mode (Braza vs. the Hon. Sandiganbayan, G.R. No. 195032, February 20, 2013; Rivera vs. People, G.R. No. 156577, December 03, 2014). First mode - The concept of "undue injury," in the context of Section 3(e) RA No. 3019 is the same as the civil law concept of "actual damage." It is required that undue injury must be specified, quantified and proven to the point of moral certainty. Speculative or incidental injury is not sufficient. The damages suffered cannot be based on flimsy and non-substantial evidence or upon speculation, conjecture or guesswork but must depend on competent proof and on the best evidence obtainable regarding specific facts which could afford some basis for measuring compensatory or actual damage (M.A. Jimenez Inc. vs. The Hon. Ombudsman, G.R. No. 155307, June 06, 2011). Second mode - In the first mode of committing the crime, the undue injury is caused to any party including the government. In the second mode, the unwarranted benefits, advantage or preference is given to private party. Giving unwarranted benefits, advantage or preference to the government or public official is not constitutive of the crime under Section 3 (e). The term "private party" may be used to refer to persons other than those holding public office (Bautista vs. Sandiganbayan, G.R. No. 136082, May 12, 2000) or public officer acting in a private capacity to protect his personal interest (Ambil vs. Sandiganbayan, G.R. No. 175457, July 06, 2011). Giving unwarranted benefit to the mayor transferring him from the provincial jail and detained him at a residence is a violation of Section 3 (e). Such privilege was accorded to the mayor not in his official capacity, but as a detainee charged with murder. Thus, for purposes of applying the provisions of Section 3(e), the mayor was a private party (Ambil vs. Sandiganbayan, supra). In Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11, 2013 – The elements of the offense under Section 4 (a) of R.A. No. 3019 are: (1) That the offender has family or close personal relation with a public official; (2) That he capitalizes or exploits or takes advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, material or pecuniary advantage from any person having some business, transaction, application, request, or contract with the government; (3) That the public official with whom the offender has family or close personal relation has to intervene in the business transaction, application, request, or contract with the government. The allegations in the information charging the violation of Section 4(a) of R.A. No. 3019, if hypothetically admitted, would establish the elements of the offense, considering that: (1) Disini, being the husband of Paciencia Escolin-Disini, the first cousin of First Lady Imelda Romualdez-Marcos, and at the same time the family physician of the Marcoses, had close personal relations and intimacy with and free access to President Marcos, a public official; (2) Disini, taking advantage of such family and close personal relations, requested and received $1,000,000.00 from Burns & Roe and $17,000,000.00 from Westinghouse, the entities then having business, transaction, and application with the Government in connection with the PNPPP; (3) President Marcos, the public officer with whom Disini had family or close personal

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relations, intervened to secure and obtain for Burns & Roe the engineering and architectural contract, and for Westinghouse the construction of the PNPPP. The rule directing full disclosure of wealth in the SALN is a means of preventing said evil and is aimed particularly at minimizing if not altogether curtailing the opportunities for official corruption and maintaining a standard of honesty in the public service. By the SALN, the public is able to monitor movement in the fortune of a public official; it serves as a valid check and balance mechanism to verify undisclosed properties and wealth (Gupilan-Aguilar vs. Office of the Umbudsman, G.R. No. 197307, February 26, 2014). Failure to file SALN as required by law is a violation of Section 8 of RA No. 6713 and Section 7 of RA No. 3019 (Concerned Taxpayer vs. Doblada, A.M. No. P-99-1342, June 8, 2005). Since both laws provide a penalty for failure to file SALN, the offender should only be prosecuted and punished either under one or the other. 60. MONEY LAUNDERING - Money laundering is committed by any person who, knowing that any monetary instrument or property represents, involves, or relates to the proceeds of any unlawful activity:(a) transacts said monetary instrument or property;(b) converts, transfers, disposes of, moves, acquires, possesses or uses said monetary instrument or property;(c) conceals or disguises the true nature, source, location, disposition, movement or ownership of or rights with respect to said monetary instrument or property;(d) attempts or conspires to commit money laundering offenses referred to in paragraphs (a), (b) or (c);(e) aids, abets, assists in or counsels the commission of the money laundering offenses referred to in paragraphs (a), (b) or (c) above; and(f) performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c) above. Money laundering is also committed by any covered person who, knowing that a covered or suspicious transaction is required under this Act to be reported to the Anti-Money Laundering Council (AMLC), fails to do so (Section 4 of RA No. 9160 as amended by RA No. 10365). Unlawful activity refers to any act or omission or series or combination thereof involving or having direct relation to the following: (1) piracy, murder, distructive arson, kidnapping for ransom, crimes involving dangerous drugs; (2) hijacking, carnapping, fencing, robbery, qualified theft, and estafa; (3) bribery and corruption of public officers, frauds and Illegal exactions, malversation, graft and corruption, and plunder; (4) forgeries and counterfeiting; and (5) child pornography, photo-video voyeurism, child abuse, crimes involving explosives and unlicensed firearm, trafficking in person, illegal recruitment, terrorism and conspiracy to commit terrorism, and financing of terrorism and; smuggling, and illegal gambling. Unlawful activity also includes violation of the Electronic Commerce Law, the Revised Forestry Code, Fisheries Code, Wildlife Resources Conservation and Protection Act, the National Caves and Cave Resources Management Protection Act, the Intellectual Property Code; the Securities Regulation Code; and felonies or offenses of a similar nature that are punishable under the penal laws of other countries (Section 3 of RA No. 9160 as amended by RA No. 10365).

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Any person may be charged with and convicted of both the offense of money laundering and the above-enumerated unlawful activity. The prosecution of money laundering shall proceed independently of any proceeding relating to the unlawful activity (Section 6 of RA No. 9160 as amended by RA No. 10365). 61. LOOSE FIREARM - When loose firearm is used in committing a crime with a graver penalty, the accused shall be prosecuted for the graver crime, but the court shall apply the penalty in its maximum period (Section 29, RA No. 10591). Use of loose firearm is a special aggravating circumstance (People vs. Salibad, G.R. No. 210616, November 25, 2015) similar to quasi-recidivism because its presence will require the application of the penalty in its maximum period regardless of the presence of mitigating circumstance (People vs. Salahuddin, G.R. No. 206291, January 18, 2016). For example, if a loose firearm was used in committing homicide, the accused shall be held liable for homicide and the court shall apply reclusion temporal prescribed for it in its maximum period. This special aggravating circumstance can be appreciated even though the loose firearm was not presented as evidence (People vs. Salibad, supra) as long as there is proof that accused used firearm in committing a crime (slugs were recovered from the dead body of the victim) and he has no license to possess a firearm (People vs. Salahuddin, supra). 62. DANGEROUS DRUGS Use of dangerous drugs - Where the presence of dangerous drugs as basis for possession is only in the form of residue and there is a positive confirmatory test result, the accused should be charged with use of dangerous drugs rather than possession of dangerous drugs. This would be in keeping with the intent of the law to file charges of use of dangerous drugs in order to rehabilitate first time offenders of drug use and provide them with an opportunity to recover for a second chance at life (People vs. Matinez, G.R. No. 191366, December 13, 2010). Possession of different kinds of dangerous drugs in a single occasion constitutes a single offense of possession of dangerous drugs (David vs. People, G.R. No. 181861, October 17, 2011). For illegal possession of dangerous drugs, the prosecution must establish that the accused freely and consciously possessed the dangerous drug without authority. However, mere possession of dangerous drug constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation (Asiatico vs. People, G.R. No. 195005, September 12, 2011). Attempted Sale - “A”, poseur buyer, asked “X” if he has available “shabu” for sale. “X” answered in the affirmative and showed to “A” a plastic sachet containing shabu. “A” immediately identified himself as a policeman, and then, apprehended “X” and confiscated the “shabu” from his pocket. What is the crime committed by “X”? “X” is liable for attempted sale of shabu punishable under Section 26 of RA 9165. Attempt to sell shabu was shown by the overt act of appellant therein of showing the substance to the poseur-buyer. The sale was aborted when the police

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officers identified themselves and placed appellant under arrest (People vs. Figueroa, G.R. No. 186141, April 11, 2012). Delivery - Is the absence of marked money as evidence fatal to prosecution of sale and delivery of dangerous drugs? No. The law defines deliver as “a person’s act of knowingly passing a dangerous drug to another with or without consideration.” Considering that the appellant was charged with the sale and the delivery of prohibited drugs, the consummation of the crime of delivery of marijuana may be sufficiently established even in the absence of the marked money (People vs. Domingcil, G.R. No. 140679, January 14, 2004). Lack Of Coordination With Pdea - Silence of the law as to the consequences of the failure on the part of the law enforcers to seek the prior authority of the PDEA cannot be interpreted as a legislative intent to make an arrest without such PDEA participation illegal or evidence obtained pursuant to such an arrest inadmissible (People vs. Clarite, G.R. No. 187157, February 15, 2012). Lack of coordination with the PDEA will not invalidate a buy-bust operation. Such coordination is not an indispensable requirement in buy-bust operations. Neither Section 86 of Republic Act No. 9165 nor its Implementing Rules and Regulations make PDEA’s participation a condition sine qua non for the conduct of a buy-bust operation (People vs. Mendosa, G.R. No. 189327, February 29, 2012) Confirmatory Test - In Ambre vs. People, G.R. No. 191532. August 15, 2012 In no instance did accused challenge, at the RTC, the supposed absence of confirmatory drug test conducted on her. Accused only questioned the alleged omission when she appealed her conviction before the CA. It was too late in the day for her to do so. Well entrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice. Photography And Inventory –Under Section 21 of RA No. 9165, the apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; However, the Implementing rules of RA No. 9165 provides that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. Under Section 21 of RA No. 9165, the apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused, his representative or counsel, media and DOJ, and any elected public official. Non-compliance with the requirements of Section 21 of R.A. No. 9165 will not necessarily render the items seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not required if there is a clear showing that the integrity and the evidentiary value of the seized items have been preserved (David vs. People, Gr No.

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181861, October 17, 2011, ; Marquez vs. People, G.R. No. 197207, March 13, 2013; People vs. Morate, GR No. 201156, January 29, 2014; People vs. Ladip, GR No. 196146, March 12, 2014; People vs. Bis, GR No. 191360, March 10, 2014). Chain Of Custody – As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same (People vs. Constantino, Jr. GR No. 199689, March 12, 2014). Thus, the following links must be established in the chain of custody in a buybust situation: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turn over of the illegal drug seized by the apprehending officer to the investigating officer; third, the turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turn over and submission of the marked illegal drugs seized from the forensic chemist to the court (People vs. Constantino, Jr. GR No. 199689, March 12, 2014) Paraphernalia With Traces Of Shabu – In People vs. Matinez, G.R. No. 191366, December 13, 2010 - This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11. Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life. In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

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Importation Of Dangerous Drugs - In People vs. Chan Liu, G.R. No. 189272, January 21, 2015, accused were caught by police authorities on board a speedboat carrying shabu. They were charged with importation of dangerous drugs. However, since it was not proven that the drugs came from China or foreign country they were convicted of possession of dangerous drugs, which is necessarily included in the charge of importation. 63. HAZING - In Villareal vs. People, G.R. No. 151258, February 1, 2012, the accused was liable for reckless imprudence resulting in homicide involving the death of Lenny Villa during hazing rite. This is not anymore controlling. The crime committed if a neophyte died during hazing rite is hazing punishable by RA No. 8049. Prior to RA No. 8049, good faith is a defense in homicide where the victim is killed during hazing. The consent of the victim and lack of intent to kill of the accused will negate dolo, which is an important element of homicide. Hence, the crime committed only reckless imprudence resulting in homicide (Villareal vs. People, supra). Having in mind the principle of mala in se adhered to under the RPC, where good faith is a defense, the Congress did not simply enact an amendment thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita where good faith is not a defense. The deliberation of the Senate shows that what is important is not the intention to kill the neophyte during the hazing but the result of the act of hazing. Recognizing the malum prohibitum characteristic of hazing, the law provides that any person charged with the said crime shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong. Also, the framers of the law intended that the consent of the victim to be sodomized or injured shall not be a defense in hazing. The very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. Sodomy or death of the victim will only aggravate the offense (Dungo vs. People, G.R. No. 209464, July 01, 2015). The elements of the crime of hazing are: (1) That there is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization; (2) That there must be a recruit, neophyte or applicant of the fraternity, sorority or organization; and (3) That the recruit, neophyte or applicant is placed in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury (Dungo vs. People, supra; People vs. Bayabos, G.R. No. 171222, February 18, 2015). Under Section 4 of RA 8049, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm upon recruit, neophyte or applicant on occasion of hazing shall be liable as principals for the crime of hazing. Hazing is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization or a requirement for employment in a corporation by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations. The law, however, did not limit the definition of these groups to those formed within academic colleges and universities. Organization includes – but is not limited to – groups, teams, fraternities, sororities, citizen army training corps, educational

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institutions, clubs, societies, cooperatives, companies, partnerships, corporations, the PNP, and the AFP. The Philippine Merchant Marine Academy is included in the term organization within the meaning of the law (People vs. Bayabos). Even the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment are covered by the law (Dungo vs. People, supra). R.A. No. 8049 qualifies that the physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the AFP and the PNP, as approved by the Secretary of National Defense and the National Police Commission, duly recommended by the Chief of Staff of the AFP and the Director General of the PNP, shall not be considered as hazing (Dungo vs. People, supra). And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides that initiation rites of fraternities, sororities or organizations shall be allowed provided that the following requisites are met: (1) That the fraternity, sorority or organization has a prior written notice to the school authorities or head of organization; (2) The said written notice must be secured at least seven (7) days before the conduct of such initiation; (3) That the written notice shall indicate: (a) The period of the initiation activities, which shall not exceed three (3) days; (b) The names of those to be subjected to such activities; and (c) An undertaking that no physical violence be employed by anybody during such initiation rites (Dungo vs. People, supra). Section 3 of R.A. No. 8049 imposes an obligation to the head of the school or organization or their representatives that they must assign at least two (2) representatives, as the case may be, to be present during these valid initiations. The duty of such representative is to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant (Dungo vs. People, supra). Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or organizations that fail to comply with the notice requirements of Section 2. Also, the school and organization administrators do not have a clear liability for non-compliance with Section 3 (Dungo vs. People, supra). The first class of principals would be the actual participants in the hazing. If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals. Interestingly, the presence of any person during the hazing is prima facie evidence of actual participation, unless he prevented the commission of the acts punishable herein. RA No. 8049 presents a novel provision that introduces a disputable presumption of actual participation; and which modifies the concept of conspiracy. Section 4, paragraph 6 thereof provides that the presence of any person during the hazing is prima facie evidence of participation as principal, unless he prevented the commission of the punishable acts. This provision is unique because a disputable presumption arises from the mere presence of the offender during the hazing, which

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can be rebutted by proving that the accused took steps to prevent the commission of the hazing. Generally, mere presence at the scene of the crime does not in itself amount to conspiracy. Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal conspiracy can be proven by the prima facie evidence due to their presence during the hazing, unless they prevented the commission of the acts therein. This rule on prima facie evidence does not shatter the presumptive innocence the accused enjoys because, before prima facie evidence arises, certain facts have still to be proved; the trial court cannot depend alone on such evidence, because precisely, it is merely prima facie. It must still satisfy that the accused is guilty beyond reasonable doubt of the offense charged. Neither can it rely on the weak defense the latter may adduce." The second class of principals would be the officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing. Although these planners were not present when the acts constituting hazing were committed, they shall still be liable as principals. The provision took in consideration the non-resident members of the organization, such as their former officers or alumni. The third class of principals would be officers or members of an organization group, fraternity or sorority who knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat. These officers or members are penalized, not because of their direct participation in the infliction of harm, but due to their indispensable cooperation in the crime by inducing the victim to attend the hazing. The accused claim that the information avers a criminal charge of hazing by actual participation, but the only offense proved during the trial was hazing by inducement. The information alleged that the accused during a planned initiation rite and being then officers of APO fraternity used personal violence upon a neophyte resulting to his death. The "planned initiation rite" as stated in the information included the act of inducing victim to attend it. Accused not only induced victim to be present at the resort, but they actually brought him there. The hazing would not have been accomplished were it not for the acts of the petitioners that induced the victim to be present (Dungo vs. People, supra). The next class of principals would be the fraternity or sorority's adviser who was present when the acts constituting hazing were committed, and failed to take action to prevent them from occurring. The liability of the adviser arises, not only from his mere presence in the hazing, but also his failure to prevent the same. The last class of principals would be the parents of the officers or members of the fraternity, group, or organization. The hazing must be held in the home of one of the officers or members. The parents must have actual knowledge of the hazing conducted in their homes and failed to take any action to avoid the same from occurring.

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The law also provides for accomplices in the crime of hazing. The school authorities, including faculty members, who consented to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices. Likewise, the owner of the place where the hazing was conducted can also be an accomplice to the crime. The owner of the place shall be liable when he has actual knowledge of the hazing conducted therein and he failed to take any steps to stop the same (Dungo vs. People, supra) Curiously, although hazing has been defined as consisting of those activities involving physical or psychological suffering or injury, the penalties for hazing only covered the infliction of physical harm. At best, the only psychological injury recognized would be causing insanity to the victim. Conversely, even if the victim only sustained physical injuries which did not incapacitate him, there is still a prescribed penalty (Dungo vs. People, supra). 64. PLUNDER - The elements of plunder are: (1) That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; (Note: Senator Pogi can be held liable for plunder even if the principal offender, who masterminded the plunder of pork barrel, is a private individual, the Pork-barrel Queen. What is important is that Senator Pogi in connivance with Pork-barrel Queen acquired ill-gotten wealth). On the other hand, Pork-barrel Queen can be held liable for plunder on the basis of conspiracy. (2) That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (Example: Misuse of funds in the amount P10 million by awarding contract to a close relative, who is not the lowest bidder; Misuse of funds or fraud disposition of government asset to P100 million by diverting the construction of road leading to his farm instead of the poblacion). Can the Senator use the defense in malversation that he is not responsible for the misuse of his PDAP since it is the duty of the appropriate implementing agency of the government to check that the recipient of the fund is not bogus? No. Assuming that the duty to check that the recipient of the Senator’s PDAP is not bogus belongs to the appropriate agency of the government, the Senator is still liable since malversation can be committed through culpa. (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (Example: Collecting or

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receiving commission from the sales of Belle Shares in the amount of P189,700,000.00 which was deposited in the Jose Velarde account and receiving bi-monthly collections from “jueteng”, a form of illegal gamblingin the aggregate amount of P545,291,000.00 of which was deposited in the Erap Muslim Youth Foundation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007). (c) by the illegal or fraudulent conveyance or disposition of assets belonging to government (Example: Ordering the GSIS and the SSS by President Estrada to purchase shares of stock of Belle Corporation (People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007); (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; Note: The word “combination” means at least two different predicate crimes; while the term “series” means at least two predicate crimes of the same kind (Ejercito vs. Sandiganbayan, G.R. Nos. 157294-95, November 30, 2006). Thus, a single predicate crime amounting to 50 million pesos is not plunder. The intention of the lawmakers is that if there is only one predicate crime, the offender has to be prosecuted under the particular crime, which is already covered by existing laws. What is punishable under the law is "acts of plunder", which means that there should be at least, two or more, predicate crimes (See deliberation of the Bicameral Committee on Justice, May 7, 1991). 17. To be held liable for plunder, ill-gotten wealth must be amassed, accumulated or acquired through a combination or series of the overt or criminal acts. There is no plunder if only one act is proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the figure fixed by the law for the offense (now P50,000,000.00). The overt or criminal acts need not be joined or separated in space or time, since the law does not make such a qualification. It is enough that the prosecution proves that a public officer, by himself or in connivance with others, amasses wealth amounting to at least P50 million by committing two or more overt or criminal acts (Jose “Jinggoy” Estrada vs. Sandiganbayan, G.R. No. 148965. February 26, 2002). (3) That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00 (Joseph Ejercito Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001).

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If a Senator, his assistant and private individuals conspires in acquiring illegotten wealth by misappropriating the pork barrel amounting to P172 million of the former, the total amount of ill-gotten wealth acquired by the conspirators including the private individuals shall be considered for purpose of determining if plunder has been committed (Enrile vs. People, G.R. No. 213455, August 11, 2015). The damages suffered by the government in diverting the road from the poblacion to the farm of the accused shall not be considered in determining if plunder is committed. What is important is the amount of ill-gotten wealth acquired by the public officer and not the amount of damage suffered by the government. In People vs. Joseph Estrada, Criminal Case No. 26558, September 12, 2007 One of the predicate crimes alleged in the information is misappropriation of the excise tax share of Ilocos Sur. This was not proven beyond reasonable doubt. However, the following predicate crimes were alleged and proven by evidence (1) series of acts of receiving collections from "jueteng" in the aggregate amount of P545,291,000.00; and (2) series consisting of two acts of ordering the GSIS and the SSS to purchase shares of stock of Belle Corporation and collecting or receiving commission from the sales of Belle Shares in the amount of P189,700,000.00. This pattern of criminal acts indicates an overall unlawful scheme or conspiracy to amass ill-gotten wealth in the amount of more than P50 million. Estrada was convicted of plunder. 65. VIOLENCE AGAINST WOMEN - The elements of psychological violence against woman under Section 5 (i) of RA No. 9262 are: (1) The offended party is a woman and/or her child or children; (2) The woman is either the wife or former wife of the offender, or is a woman with whom the offender has or had a sexual or dating relationship, or is a woman with whom such offender has a common child. As for the woman's child or children, they may be legitimate or illegitimate, or living within or without the family abode; (3) The offender causes on the woman and/or child mental or emotional anguish; and (4) The anguish is caused through acts of public ridicule or humiliation, repeated verbal and emotional abuse, denial of financial support or custody of minor children or access to the children or similar such acts or omissions (Dinamling vs. People, G.R. No. 199522, June 22, 2015). Psychological violence is the means employed by the perpetrator, while mental or emotional anguish is the effect caused to or the damage sustained by the offended party. To establish psychological violence as an element of the crime, it is necessary to show proof of commission of any of the acts enumerated in Section 5(i) or similar such acts. And to establish mental or emotional anguish, it is necessary to present the testimony of the victim as such experiences are personal to this party (Dinamling vs. People, supra). Neither the physical injuries suffered by the victim nor the actual physical violence done by the perpetrator are necessary to prove the essential elements of the crime as defined in Section 5(i) of RA No. 9262. The only exception is, as in the case at bar, when the physical violence done by the accused is alleged to have caused the mental and emotional suffering; in which case, such acts of physical violence must be proven. Accused’s acts of publicly punching, kicking and stripping victim of her pants

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and underwear, although obvious acts of physical violence, are also instances of psychological violence since it was alleged and proven that they resulted in her public ridicule and humiliation and mental or emotional distress (Dinamling vs. People, supra). The fact that the victim is pregnant is an aggravating circumstance under Section 6 of RA No. 9262 (Dinamling vs. People, supra). 66. VAGRANCY - Before Article 202 of RPC punished vagrancy and prostitution. But Article 202 of RPC as amended by RA No. 10158 merely penalizes prostitution. In sum, RA No. 10158 has decriminalized vagrancy by omitting portions of Article 202 involving crime vagrancy. A reading of the Senate deliberation pertaining to the passage of law decriminalizing vagrancy shows that they considered vagrants as victims of poverty and that the law on vagrancy serves to oppress the very people that the government sought to protect. In view of the new policy of the State decriminalizing vagrancy, which is embodied in RA No. 10158, ordinance, which punishes vagrancy, should be declared as contrary to law, and hence, invalid. Settled is the rule that what the national legislature expressly allows by law, a local legislature may not disallow by ordinance or resolution (Lina vs. Pana, G.R. No. 129093, August 30, 2001). The spring cannot rise higher than its source. RA No. 10158 shall be given retroactive effect. Under Section 2 and 3 thereof, all pending cases for vagrancy shall be dismissed and all persons serving sentence for vagrancy shall be immediately released. Since RA No. 10158 expressly provides retroactive application to the law without distinction, case will be dismissed even though the accused is a habitual delinquent. 2. Under Article 351 of RPC, a woman in contracting marriage within 301 days from death of husband, or dissolution or annulment of marriage is liable for the crime of premature marriage. However, RA No. 10655 decriminalizes premature marriage by repealing Article 351. Premature marriage has been decriminalized because Article 351 discriminates women since this provision is not applicable to men. Moreover, Article 351 sought to prevent a possible confusion as to whether the father of the child born within the prohibited period is the first husband or the second. This preventive measure is not anymore necessary since paternity and filiation could now be easily determined through modern technology. 67. WIRE TAPPING LAW MMDA officer is extorting money from a driver of a vehicle, who committed trafficking violation along Edsa. The officer threatened the driver that he will confiscate her driver’s license unless she will give him P500.00. However, MMDA officer is not aware that his act of extorting money is being videorecorder by a passenger. The passenger violated the Anti-Wire Tapping Law. The recording of private conversations without the consent of the parties contravenes the provisions of RA No. 4200(Anti-Wire Tapping Law). The law covers even those recorded by persons privy to the private communications. The law is applicable even if the conversation being recorder pertains to criminal extortion (Mamba vs. Garcia, A.M. No. MTJ-96-1110, June 25, 2001). Passenger is criminally liable for violating law. On the

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other hand, MMDA officer is liable for attempted robbery. However, in proving attempted robbery, the driver cannot use the recording since the same is not admissible in evidence.

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