Crim Preweek UP

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CRIMINAL LAW 1 Q1: The wife was charged as “co-principal by conspiracy” with her husband in the commission of an act in violation of B.P. Blg. 22. As a defense, the wife questions the applicability of the principle of conspiracy for the violation of a spe cial penal law such as B.P. Blg. 22. Does the wife’s contention have merit? A1: No. Article 10 of the RPC provides that it shall be supplementary to special laws, unless the latter should specially provide the contrary. B.P. Blg. 22 does not expressly proscribe the suppletory application of the provisions of the RPC. Thus, in the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. In the recent case of Yu vs. People, the Court applied suppletorily the provisions on subsidiary imprisonment under Article 39 of the RPC to B.P. Blg. 22. Q2: The wife petitioned before the Regional Trial Court for a temporary protection order (TPO) against her husband and her parents-in-law. The wife alleged that her husband and her parents-in-law acted in conspiracy to cause her verbal, psychological, and economic abuse, in violation of provisions under RA 9262 (Anti-Violence Against W omen and Their Children Act). The parents-in-law, however, contended that they are not covered by RA 9262 since Section 3 thereof explicitly provides that the offender should be related to the victim only by marriage, a former marriage, or a dating or sexual relationship. Does the argument of the parents-in-law have merit? A2: No. It must be noted that Section 5 of RA 9262 expressly recognizes that the acts of violence against women and their children may be committed by an offender through another. In addition, the protection order that may be issued for the purpose of preventing further acts of violence against the woman or her child may include individuals other than the offending husband. The express language of RA 9262 reflects the intent of the legislature for liberal construction as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit – the protection and safety of victims of violence against women and children. [Go-Tan v. Tan, G.R. No. 168852, 30 Sept 2008]

Q3: Suppose a person was convicted of a crim e which per se does not involve moral turpitude. May he still be considered as som eone who com m itted m oral turpitude for the act from which his conviction arose? A3: Yes. In Teves v. COMELEC [G.R. No. 180363, 28 April 2009], the Supreme Court observed: “while the crime for which [petitioner] was convicted may per se not involve moral turpitude, still the totality of facts evinces [his] moral turpitude.” In the same case, the SC further held: “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.”

Q4: Are all crim es involving m oral turpitude mala in se? A4: No. It cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. [IRRI v. NLRC, 221 SCRA 760]

Q5: Four m en were charged with m urder. The prosecution witnesses saw the four arm ed accused forcibly take the victim from his house to a lake, beating him up all the way to the boat. W hile sailing, the accused continued ill-treating the victim until the latter died. The body of the victim was never found. The four accused contended that they could not be convicted for murder since the corpus delicti — in this case, the body of the victim — was never recovered. Does this contention have merit?

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A5: No. Corpus delicti has been defined as the body or substance of the crime and, in its primary sense, refers to the fact that a crime has been actually committed. As applied to a particular offense, it means the actual commission by someone of the particular crime charged. The corpus delicti is a compound fact made up of two (2) things, viz: the existence of a certain act or result forming the basis of the criminal charge, and the existence of a criminal agency as the cause of this act or result. In case of murder or homicide, it is not necessary to recover the body of the victim or show where it can be found. It is enough that the death and the criminal agency causing death is proven. The Court recognized that there are cases where the death and intervention of the criminal agency that caused it may be presumed or established by circumstantial evidence. [People v. Sasota, G.R. No. L-3544, 18 April 1952]

Q6: George shot Ellyson on the head twice, thereby m urdering him . W eeks after, he surrendered to the police, expressing interest in m aking a statem ent about the incident in writing and in the presence of a lawyer. Then, George led the police and the city prosecutor to the dump site where Ellyson’s body was dumped. The police discovered a partially burned body, rotting beyond recognition, and empty bullet shells. He was thus charged with and subsequently convicted of murder. On appeal, George said that the prosecution failed to present evidence of corpus delicti , as the prosecution did not present a m edical certificate, autopsy report or the gun shells. Further, George alleged that his extrajudicial confession should not be admissible as evidence. He said that was forced to sign the statement under threat of torture. He also said that he was uneducated and did not fully realize the consequences of his statement. 1. Is George correct in saying that the prosecution failed to present evidence of corpus delicti? 2. Is George’s extrajudicial confession valid? 1. No. corpus delicti need not be proved by an autopsy report of the dead victims body or even by the testimony of the physician who examined such body. While such report or testimony is useful for understanding the nature of the injuries the victim suffered, they are not indispensable proof of such injuries or of the fact of death. Nor is the presentation of the murder weapons also indispensable since the physical existence of such weapons is not an element of the crime of murder. Here, the police authorities found the remains of Ellyson at the place pointed to by accused George. That physical confirmation, coming after his testimony of the gruesome murder, sufficiently establishes the corpus delicti of the crime. Of course, that statement must be admissible in evidence. [People v. Tuniaco, G.R. No. 19 January 2010] 2. Yes. Confession to be admissible must be a) voluntary; b) made with the assistance of a competent and independent counsel; c) express; and d) in writing. These requirements were met here. The claim that George was under threat of torture is baseless. It is a settled rule that where the defendant did not present evidence of compulsion, where he did not institute any criminal or administrative action against his supposed intimidators, where no physical evidence of violence was presented, all these will be considered as indicating voluntariness. Further, George asserts that he was lacking in education and so he did not fully realize the consequences of a confession. However, no law or jurisprudence requires the police officer to ascertain the educational attainment of the accused. All that is needed is an effective communication between the interrogator and the suspect to the end that the latter is able to understand his rights. [People v. Tuniaco, G.R. No. 19 January 2010] Q7: Sophia and Vicky worked as sales ladies of a grocery store. One night, they decided to steal several boxes of Koko Krunch from the said store. They were about to haul the boxes in a car when a security guard accosted them. This caught the attention of other guards, and Sophia and Vicky were apprehended. Sophia and Vicky were subsequently charged and convicted of consummated theft. Upon appeal, they argued that they should only be convicted of frustrated theft. This reasoning stems from the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. Is this contention meritorious?

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A7: No. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code 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. Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. [Valenzuela v. People, 525 SCRA 306]

Q8: Arm and went to the town plaza during the night to join the celebration of the fiesta of St. John the Baptist. There he got tipsy, and afterwards saw his old friend Jimbo, a retardate, near the Ferris wheel, and Sancho, who was walking towards them. Trying to m ake fun of Jim bo, Arm and grabbed a container of gasoline and poured the gasoline on him . Arm and’s friend Sancho – who was also tipsy – saw Jimbo doused with gasoline. Sancho, thinking it would be humorous, set Jimbo on fire with a lighter. The burning of Jimbo caused a commotion and people scrambled to pour water on him. He was rushed to the hospital, and died days later because of serious burns. Both Armand and Sancho were charged and convicted of homicide. The trial court ratiocinated that criminal liability shall be incurred by any person committing a felony though the wrongful act done be different from that intended. 1. W as the conviction of Armand proper? 2. W as the conviction of Sancho proper? 1. No. It should be reckless imprudence resulting in homicide. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companion who at the time were making fun of the deceased. [People v. Pugay, G.R. No. L-74324, November 17, 1988] 2. Yes. There can be no doubt that the accused Sancho knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. [People v. Pugay, G.R. No. L-74324, November 17, 1988]

Q9: Brothers Juan and Pedro were walking towards a neighbor’s house when they crossed paths with Santiago. “Saan kayo?” the latter asked. “Iinom kami,” Pedro said. Santiago laughed and said that neither of the brothers could stay sober after one bottle of beer. Insulted, Juan hit Santiago with a bolo, causing a fatal wound in the neck. Pedro also hit the victim with a bolo, causing a fatal wound in the stomach. Santiago eventually died even if he was brought to the hospital for treatment. The brothers were charged with homicide. In their defense, Juan and Pedro said that they should be acquitted. The brothers argued that no man can die twice, and hence, only one of the wounds was mortal enough to be the proxim ate cause of Santiago’s death. They then said: “W here several wounds were inflicted upon a person by different persons, and it is uncertain

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which was the mortal wound, or whether all were mortal, a person who inflicted one of them should not be convicted of murder for inflicting it.” 1. Is their defense tenable? 2. Is the mitigating circumstance of passion and obfuscation availing for the brothers? 1. No. Santiago was living when wounded by Juan, and Santiago was living when wounded by Pedro. Both wounds operated to cause death. Death, therefore, can traced to the independent act of each defendant. Death is imputable to each defendant. Juan and Pedro, acting independently, are responsible for their individual acts only. The burden rests upon each defendant, charge with an act which might cause death, to show that death resulted from a cause different from the act imputed to him. Neither Juan nor Pedro has met this burden of proof. [People v. Abiog, G.R. No. L-12747, November 13, 1917] 2. No. Passion and obfuscation should not be taken into consideration as a mitigating circumstance unless it appears that the offense was provoked by prior unjust and improper acts. In the case at bar, the offense was merely provoked by a chance remark. [People v. Abiog, supra]

Q10: Nicolo and two others were armed and were following Robbie’s car along the national highway. W hen Nicolo’s car reached alongside Robbie’s, the former shot the latter, causing the car to swerve and fall in the canal of the road embankment. Nicolo and others alighted from their car started shooting at Robbie’s direction. A stray bullet hit and killed a bystander. The bystander died on the spot after being felled by a bullet in his head, while Robbie was dead on arrival in the hospital. The bullet that killed the bystander was not the same as the bullet that hit Robbie. Fortunately, Nicolo and the others were apprehended. They were charged with two counts of murder, qualified by treachery, as alleged in the two Informations. The trial court convicted them of the charges. On appeal, the defendants said that the death of the bystander could not be described as murder because treachery could not be appreciated in cases of aberratio ictus. 1. Should treachery qualify the killing of Robbie to murder? 2. Should treachery qualify the death of the bystander to murder? 1. Yes. The present case is a case of murder by ambush. In ambush, the crime is carried out to ensure that the victim is killed and at the same time, to eliminate any risk from any possible defenses or retaliation from the victim — ambush exemplifies the nature of treachery. [People v. Adriano, G.R. No. 205228, July 15, 2015] 2. Yes. Although the death was by no means deliberate, we shall adhere to the prevailing jurisprudence pronounced in People v. Flora, where the Court ruled that treachery may be appreciated in aberratio ictus. In Flora, 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. The material facts in Flora are similar in the case at bar. [People v. Adriano, G.R. No. 205228, July 15, 2015]

Q11: Fidel stabbed Ferdinand several tim es. Thinking that Ferdinand was already dead, Joseph — who was with Fidel in the commission of the crime — brought Ferdinand’s body to a nearby well and dropped Ferdinand there to conceal evidence. Joseph did not in any way participate in the stabbing. His presence during the stabbing incident was not indispensable. Jos eph also did not induce Fidel to stab Ferdinand. Days after, someone discovered the decaying body of Ferdinand. The autopsy revealed that Ferdinand was still alive when he was thrown in the well. May Joseph be held liable as principal to the commission of the crime? Q11: Yes. A person who commits a felony is liable for the direct, natural and logical consequences of his wrongful act even where the resulting crime is more serious than that intended. Hence, an accused who originally intended

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to conceal and to bury what he thought was the lifeless body of the victim can be held liable as a principal, not simply as an accessory, where it is proven that the said victim was actually alive but subsequently died as a direct result of such concealment and burial. [People v. Ortega, G.R. No. 116736, July 24, 1997]

Q12: Yuppy Medina, a client of X-Men Corporation, had always known Gui Rubio as the collector for X-Men Corp. One tim e, Gui instructed Yuppy to issue a check for payment of goods delivered by X-Men Corp. However, instead of remitting the check to X-Men Corp., Gui deposited the check in her personal bank account. Yuppy received a call from X-Men Corp., inquiring him about his paym ent. W hen he replied that he had issued a check to Gui, X-Men Corp. said that Gui resigned from the company two months ago. Gui could not be found until she was apprehended. At the tim e of the apprehension, Gui said that the check issued by Yuppy was dishonored. This was confirm ed by Land Bank. Gui was charged and eventually convicted by the trial court with qualified theft. On appeal, Gui claimed that she has no criminal liability because the check she allegedly stole was worthless (being dishonored by the bank). 1. W as the conviction for qualified theft correct? 2. Does Gui’s contention that she has no criminal liability have merit? 1. Yes. The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property – as shown by the fact Gui, as collector for X-Men Corp., did not remit the customer's check payment to her former employer and, instead, appropriated it for herself; (2) said property belonged to another − the check belonged to Yuppy Medina, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of Gui; (4) it was done without the owner’s consent – Gui hid the fact that she had received the check payment from her employer's customer by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the check was voluntarily handed to Gui by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse of confidence – Gui is admittedly entrusted with the collection of payments from customers. However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, Gui unlawfully took the postdated check belonging to XMen Corp., but the same was apparently without value, as it was subsequently dishonored. [Jacinto v. People, G.R. No. 162540, 13 July 2009] 2. No. The facts of the case come under the purview of an impossible crime. Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. In this case, Gui performed all the acts to consummate the crime of qualified theft, which is a crime against property. Gui's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for X-Men Corp. showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to Gui at the time, that prevented the crime from being produced. [Jacinto v. People, supra] Q13: Darcy Manzanares and Ernest Pichay went out in the evening to buy cigarettes at a nearby store. On their way, Darcy took a “jingle” by the roadside while Ernest waited nearby. From nowhere, John Lustre sneaked behind and struck Darcy twice on the head with a huge stone, 15 inches in diameter. Darcy fell unconscious and Ernest fled. W hen Darcy was brought to the hospital, the doctor told Darcy’s relatives that the wound might be fatal. Nonetheless, Darcy — when he regained consciousness — decided to go home. He did not die. The prosecutor filed an

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Inform ation against John Lustre for frustrated hom icide. If you were the judge, should you convict John as charged? A13: No, John should be convicted of attempted — not frustrated — homicide. The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life. The intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim. Here, John struck Darcy on the head with a huge stone. The blow was so forceful that it knocked Darcy out. Considering the great size of his weapon, the impact it produced, and the location of the wounds that John inflicted on his victim, he must have intended to kill him. However, if the victim’s wounds are not fatal, the crime is only attempted murder or attempted homicide. [Colinares v. People, G.R. 182748, 13 Dec 2011] Q14: Prince Refamonte was jogging in the wee hours of the morning when he was approached by Billy Salazar. Out of the blue, Billy boxed Prince on the head, punched him on the stom ach, and stabbed him several times on the abdomen . Prince fell in a nearby creek, and Billy left him there. W hen Prince was rescued, the rescuers testified that a portion of his intestines was exposed. Billy was charged and arraigned. The prosecution presented medical certificates that specified the location of the wounds, although the doctor who examined Prince did not testify. The trial court thus convicted Billy with frustrated homicide. W as the conviction proper? A14: No. 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. Since the prosecution failed to prove the second element, Billy cannot be held liable for frustrated homicide. Nonetheless, intent to kill was established, as evidenced by the manner in which the crime was committed and the extent of the injuries of the victim. Since the felony was neither consummated nor frustrated, the remaining option is that Billy is liable for attempted homicide. [People v. Serrano, G.R. No. 175023, 5 July 2010] Q15: Bill Bico was driving his tricycle when he was hailed by three drunk men: Angelo dela Cruz, Luigi Serafico, and Eduardo delos Angeles. The three asked Bill if he could fetch them home, to which Bill refused. This angered the three, who picked pieces of wood from the roadside and started throwing these at Bill. Bill ran, after instinctively getting the knife he k ept in his motorcycle. Bill was cornered by the three drunk men when Eduardo hit Bill with a belt buckle. Eduardo’s other com panions continued to throw wood and sticks against Bill. Bill was exhausted and when he felt he was about to lose consciousness, he lunged towards Eduardo and stabbed him several times. Luigi and Angelo ran away. Bill got up and went home, and he sustained from the incident a lacerated wound on his forehead. On the other hand, Eduardo received multiple stab wounds on vital organs that caused him to die while under hospital care. Bill was charged with homicide. He interposed that his action was justified by self-defense. Is the justifying circumstance of self-defense availing to Bill? A15: No. In in invoking self-defense, whether complete or incomplete, the onus probandi is shifted to the accused to prove by clear and convincing evidence all the elements of the justifying circumstance, namely: (a) unlawful aggression on the part of the victim; (b) the reasonable necessity of the means employed to prevent or repel it; and (c) lack of sufficient provocation on the part of the person defending himself. The facts of the case suggest that there is unlawful aggression on the part of the victim, since he was part of the group that accosted Bill, even hitting the latter with a belt buckle. There is lack of sufficient provocation on the part of the person defending himself; Bill never retaliated up until he was hit by the belt buckle. However, the following circumstances negate the presence of a reasonable necessity of the means employed to prevent or repel it: (1) There is intrinsic disproportion between the knife and the belt. (2) Physical evidence showed that Bill only suffered a lacerated forehead. It could not be possible that he received several blows from the belt buckle. (3) The intoxication of Eduardo and others may have reduced the potency of the belt buckle and pieces of

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wood as weapons. (4) That the knife wounded the vital organs of the deceased points to intent to kill, and not simply a defensive stance. Thus, Bill should be convicted with homicide, but he could avail of the mitigating circumstance of incomplete justification. [Rafael Nadyahan v. People, G.R. No. 193134, 2 March 2016] Q16: SPO1 JP Manalansan, had a history of violent aggression and drunkenness. On that fateful night of February 20, 2016, SPO2 Dale Chan, Manalansan, and other police officers were on duty. Shortly before 10:00 in the evening, before the duty was supposed to end, SPO1 Manalansan took the patrol tricycle from the station grounds. W hen SPO2 Chan saw this, he stopped Manalansan from using the tricycle. He told Manalansan that he is needed at the station and, at any rate, he should stay at the station because he was drunk. This was not received well by M analansan. He took a few steps and drew his .45 caliber gun which was tucked in a holster on the right side of his chest. Chan then fired his M -16 armalite upward as a warning shot. Undaunted, Manalansan still drew his gun. Chan then shot the victim on the head, which caused the latter’s instantaneous death. In case Chan be charged for hom icide, m ay he invoke the justifying circum stance of selfdefense? A16: Yes. Ordinarily, there is a difference between the act of drawing ones gun and the act of pointing ones gun at a target. The former cannot be said to be unlawful aggression on the part of the victim. The facts surrounding the instant case must, however, be differentiated from current jurisprudence on unlawful aggression. The victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at petitioner. Chan was, therefore, justified in defending himself from an inebriated and disobedient colleague. The lone gunshot was a reasonable means chosen by petitioner in defending himself in view of the proximity of the armed victim, his drunken state, disobedience of an unlawful order, and failure to stand down despite a warning shot. The last requisite for self-defense to be appreciated is lack of sufficient provocation on the part of the person defending himself or herself. As gleaned from the findings of the trial court, petitioner gave the victim a lawful order and fired a warning shot before shooting the armed and drunk victim. Absent from the shooting incident was any evidence on petitioner sufficiently provoking the victim prior to the shooting. [Nacnac v. People G.R. No. 191913, 21 March 2012] Q17: A robbery was com m itted, but the suspects were apprehended. Nevertheless, the stolen items were yet to be found. One of the suspects, Dale Vibar, volunteered to point the location of the stolen items. Hence, around 8 PM, five fully armed policemen in uniform escorted Vibar to Barangay Sinasahan, Nueva Ecija to recover the missing items. The policemen and Vibar were aboard a police vehicle, an Isuzu pick-up jeep. W hile the jeep was slowly negotiating a bum py and potholed road, Vibar suddenly grabbed one of the police officers’ M16 Arm alite and jum ped out of the jeep. The said police officer shouted “Hoy!” Another police officer, SPO2 Paulo Mercado, acted immediately. W ithout issuing any warning of any sort, and with still one foot on the running board, Mercado fired one shot at Vibar, and after two to three seconds, Mercado fired four m ore successive shots. Mercado did not fire any shot. Mercado alighted approached Vibar’s body to check its p ulse. Finding none, Mercado declared Vibar dead. Vibar sustained three m ortal wounds one at the back of the head, one at the left side of the chest, and one at the left lower back. The wound at the chest suggested that at one point, Vibar was facing the policemen.

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Mercado was charged before and convicted by the Sandiganbayan of hom icide. If Mercado appeals and you are a Justice of the appellate court, should you uphold the conviction? A17: No. Fulfillment of duty is the justifying circumstance that is applicable to this case. By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Vibar certainly did not intend merely to escape and run away as far and fast as possible from the policemen. Vibar did not have to grab the M16 Armalite if his sole intention was only to flee from the policemen. If he had no intention to engage the policemen in a firefight, Vibar could simply have jumped from the jeep without grabbing the M16 Armalite. Vibar’s chances of escaping unhurt would have been far better had he not grabbed the M16 Armalite which only provoked the policemen to recapture him and recover the M16 Armalite with greater vigor. Vibar’s act of grabbing the M16 Armalite clearly showed a hostile intention and even constituted unlawful aggression. At one point, Vibar faced the policemen, which meant that he could have fired at any one of them. Facing imminent danger, the policemen had to act swiftly. Time was of the essence. Vibar was committing an offense in the presence of the policemen when Vibar grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The policemen would have been justified in shooting Vibar if the use of force was absolutely necessary to prevent his escape. But Vibar was not only an escaping detainee. Vibar had also stolen the M16 Armalite of a policeman. The policemen had the duty not only to recapture Vibar but also to recover the loose firearm. By grabbing Mercado’s M16 Armalite, which is a formidable firearm, Vibar had placed the lives of the policemen in grave danger. [Cabanlig v. Sandiganbayan, G.R. No. 148431, 28 July 2005] Q18: Freddie Krueger raped the 7-year old Annabelle. After the rape, Freddie threatened Annabelle that he would kill her if she reported the incident to her mother. Nevertheless, a tearful Annabelle told her m other about the incident. Freddie was thus charged with statutory rape. 1. If you are part of the prosecution, what are the guidelines that you would apply in determining the age of Annabelle at the time of the commission of the felony? 2. If Freddie was 13 years old at the commission of the offense, and 18 years old by the time his guilty was pronounced, will he be criminally liable? W hat will be the effect to his sentence? 3. If Freddie was 16 years old at the commission of the offense, and 18 years old by the tim e his guilty was pronounced, will he be criminally liable? W hat will be the effect to his sentence? 4. If Freddie was 16 years old at the commission of the offense, and 22 years old by the time his guilty was pronounced, will he be crim inally liable? W hat will be the effect to his sentence? 5. Suppose that when Freddie took the stand, he asserted that he was 14 years old when the alleged rape transpired. This was the only evidence presented by the defense as regards Freddie’s age. The prosecution never objected to the testimony. Should the court appreciate the claim that Freddie was 14 years old? Re #1: Following People v. Pruna, the Supreme Court hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

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a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused.[78] 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. The trial court should always make a categorical finding as to the age of the victim. [People v. Arpon, G.R. No. 183563, 14 Dec 2011] Re #2: There is no criminal liability, for Freddie’s age is within the age required (e.g., 15 years old or under) for exemption from criminal liability. This exemption applies even if the child in conflict with the law achieves majority by the time his guilt is pronounced. However, the child in conflict with the law shall be subjected to an intervention program. [Ortega v. People, G.R. No. 151085] Re #3: Yes, Freddie will be criminally liable. An accused will be exempted from criminal liable if his age falls above 15 but below 18 years of age AND if he acted without discernment. Here, the threats Freddie made to his victim showed that he had discernment at the time of the commission of the crime. As such, there is criminal liability. For the computation of his imprisonment sentence, the privileged mitigating circumstance of minority applies. However, the court shall place Freddie under suspended sentence and will undergo intervention program. [People v. Arpon, supra] Re #4: Yes, Freddie will be criminally liable. An accused will be exempted from criminal liable if his age falls above 15 but below 18 years of age AND if he acted without discernment. Here, the threats Freddie made to his victim showed that he had discernment at the time of the commission of the crime. As such, there is criminal liability. For the computation of his imprisonment sentence, the privileged mitigating circumstance of minority applies. However, since he was already 22 when his guilty was pronounced, he could no longer avail of the benefit of suspended sentence. He could still avail, on the other hand, of the benefits of Sec. 51 of REP. ACT NO. 9344. [People v. Arpon, supra] Re #5: Freddie’s testimony, without objection from the prosecution, is enough to appreciate his claim of minority at the time of the commission of the crime. The Supreme Court deemed sufficient the testimonial evidence regarding the minority and age of the accused provided the following conditions concur, namely: (1) the absence of any other satisfactory evidence such as the birth certificate, baptismal certificate, or similar documents that would prove the date of birth of the accused; (2) the presence of testimony from accused and/or a relative on the age and minority of the accused at the time of the complained incident without any objection on the part of the prosecution; and (3) lack of any contrary evidence showing that the accused's and/or his relatives' testimonies are untrue. [People v. Arpon, supra] Q19: Kimmy Godonghae hired Dingdong and Aljur as personal bodyguards. She would often curse at them when they reported late for work. She would sometimes physically harm them. Finally, the two guards had had enough, and they decided to rob and kill their em ployer. One night, they stabbed Kimmy with an ice-pick and stole PHP20,000 from the cash vault in her bedroom. The perpetrators were nevertheless apprehended and charged with robbery with homicide. Consequently, they were convicted as charged. On appeal, they claimed that the mitigating circumstance of sufficient provocation or threat should have been appreciated in their favor. Their argument is premised on the maltreatment that Kimmy made them experience. Is their contention meritorious?

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A19: No. The maltreatment that Dingdong and Aljur claim the victim to have committed against them occurred much earlier than the date of the commission of the crime. Provocation, in order to be a mitigating circumstance, must be sufficient and immediately preceding the act. [People v. Pagal, 79 SCRA 570] Q20: Federico caught his son watching porn. The father, wanting to discipline his son, whacked him several times on the head and on the body with a thick piece of wood. This was done as his son was tied to a coconut tree. W hen the beating stopped, the son fell unconscious. Federico’s wife brought their son to the hospital, but it was already too late. Federico voluntarily surrendered to the authorities. He was charged and convicted of parricide. The trial court appreciated in his favor voluntary surrender and no intention to commit so grave a wrong. Was the court correct in appreciating the latter as mitigating circumstance? Discuss. A20: No. Federico adopted means to ensure the success of the savage battering of his son. He tied his son to a coconut tree to prevent escape while the son was battered with a stick to inflict as much pain as possible. The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim. [People v. Sales, G.R. No. 177218] Q21: JV was apprehended, charged, and convicted by the trial court of murder, with treachery as qualifying circumstance. On appeal, he said that the mitigating circumstance of plea of guilt should have been appreciated in his favor since, during ar raignment, he offered to enter a plea of guilt for hom icide (the prosecution rejected this offer). Does JV’s contention have m erit? A21: No. While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. An offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of the Revised Penal Code, because to be voluntary, the plea of guilty must be to the offense charged. Furthermore, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and the prosecutor before an accused may be allowed to plead guilty to a lesser offense necessarily included in the offense charged. The SC notes that the prosecution rejected the offer of the accused. [People v. Dawaton, G.R. No. 146247, September 17, 2002] Q22: Police officer Che Guevarra was given a mission order to investigate alleged drug suspects in Brgy. San Antonio, Pasig City, and he was issued a firearm in relation to the mission order. Guevarra was in San Antonio one night when he saw Boy Tigas, whom the former suspected was a drug pusher, absentmindedly walking towards Guevarra’s direction. Gueverra hid in a dark corner and waited for Boy Tigas to walk pass him. W hen Boy Tigas was several meters away from Guevarra, the latter shot Boy Tigas several times. Boy Tigas died. If you were the prosecutor, what are the qualifying and aggravating circum stances that you would include in your Information? A22:Treachery. Treachery attended the commission of the crime. The two conditions to constitute treachery were present in the case at bench, to wit: (a) the employment of means of execution that gives the person who is attacked no opportunity to defend himself or to retaliate; and (b) the means of execution were deliberately or consciously adopted. Guevarra deliberately executed the act in such a way that his victim was unaware and helpless. [There may be abuse of superior strength, but treachery absorbs this.] Evident premeditation. Evident premeditation was indubitably proven by the evidence showing that the execution of the criminal case was preceded by cool thought and reflection. Guevarra’s resolution to carry out the criminal intent during the space of time sufficient to arrive at a clear judgment was shown. Abuse of public authority. Guevarra, a police officer, committed the crime with a firearm which was issued to him when he received the mission order. [People v. Gapasin, 231 SCRA 728]

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Q23: Police officer Fidel Castro believes that there is a drug den in Brgy. San Antonio, Pasig City. He went there to investigate one night. Castro saw Nelson Bernal, whom the former suspected was a drug pusher, absentmindedly walking towards Castro’s direction. Castro hid in a dark corner and waited for Nelson Bernal to walk pass him. When Nelson Bernal was several meters away from Castro, the latter shot Nelson Bernal several times with Castro’s 0.38 revolver. Nelson Bernal died. 1. W hat crime did Castro commit? 2. Should abuse of public authority be appreciated as aggravating circumstance? 1. There is murder. The killing is qualified by treachery. Treachery is evident when the accused-appellant suddenly positioned himself at the back of the unsuspecting victim, pointed his gun at him and, without any warning, promptly delivered the fatal shots. [People v. Padilla, G.R. Nos. 138472-73, 9 August 2001] 2. No. There was no showing that Castro took advantage of his being a policeman to shoot Nelson Bernal or that he used his influence, prestige or ascendancy in killing the victim. Castro could have shot Velez even without being a policeman. In other words, if the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position. [People v. Villamor, G.R. Nos. 140407-08. January 15, 2002] Q24: Melencio Barabas raped XXX “dog-style” while in her boarding house on 21 January 2017. The following day, Barabas raped YYY on “m issionary position” while on the ground floor of the latter’s two-storey house (where the ground floor doubles as a computer shop). A. Must dwelling be appreciated as aggravating circum stance: [1] in the rape of XXX? [2] in the rape of YYY? B. Must ignominy be appreciated as aggravating circumstance: [1] in the rape of XXX? [2] in the rape of YYY? A.1. Yes. It is not necessary that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is his home the sanctity of which the law seeks to protect and uphold. [People v. Daniel, 86 SCRA 511] A.2. No. Being a commercial shop that caters to the public, the computer shop was open to the public. As such, it is not attributed the sanctity of privacy that jurisprudence accords to residential abodes. Hence, dwelling cannot be appreciated as an aggravating circumstance in the crime of rape. [People v. Tano, G.R. No. 133872. May 5, 2000] B.1. Yes. It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof. [People v. Siao, 327 SCRA 231] B.2. No. See People v. Siao. Q25: “Dwelling is considered inherent in crimes that can only be committed in the abode of the victim, so dwelling cannot be appreciated as aggravating circumstance in crimes such as robbery with homicide. ” Do you agree? W hy or why not? A25: Disagree. “Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed.” [People v. Arizobal, G.R. Nos. 135051-52. December 14, 2000] Q26: Monica and Aladdin were first cousins. The form er hired the latter as house-help and caretaker of Monica’s father Ronald, who was incapacitated because of a stroke. As such,

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Ronald and Aladdin slept in the same room, while Monica — who never locked her room’s door at night — slept in the adjacent bedroom. However, the doors to enter the house are always locked at night; the windows have grills. Aladdin, who was lazy and clum sy, would always get a shouting from Monica; Ronald would tell her to be patient with her relative. One m orning, Ronald was roused from sleep by Aladdin. The latter said to the form er that Monica com m itted suicide. Aladdin said he was afraid that he would be accused of m urder. W hen Ronald entered Monica’s bedroom, he saw his daughter’s body swimmin g in blood. She looked as if she was still sleeping. On her hand was a kitchen knife. The body of the deceased was autopsied, and the results showed that Monica suffered from 15 stab wounds. According to the doctor who exam ined the body, half of the wounds were fatal. W hen Ronald inspected Monica’s bedroom, he found out that all of Monica’s possessions are intact and undisturbed. 1. May Aladdin be held as criminally liable? For what crime? 2. May the following circumstances be appreciated as aggravating: (a) dwelling; (b) abuse of confidence; (c) evident premeditation? 1. Yes, Aladdin may be held criminally liable. Totality of circumstantial evidences points to him as perpetrator of the crime. He has a motive to commit the crime. No one can enter the house since the doors to enter are locked and the windows have grills. The weapon for the killing is readily accessible to any occupant of the house. It is impossible that one commits suicide by stabbing herself with such force 15 times. Aladdin should be held guilty of murder. The killing was qualified by treachery. To appreciate treachery, two conditions must be present: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate and (2) the means of execution is deliberately or consciously adopted. For the first condition, the victim was not in the position to fight since she was likely sleeping. For the second condition, the number and severity of wounds proves that the means of execution was consciously adopted. [People v. Arojado, G.R. No. 130492. January 31, 2001] 2.a. Dwelling may not be appreciated since the offender and the victim lived in the same house. 2.b. Yes, there is abuse of confidence. This is shown by the fact that the victim and the offender are related to one another; that she allowed the offender to sleep in the same room with her father; and that she never closed the door of her bedroom at night despite knowing the fact that the offender may enter her sleeping quarters at any time. [People v. Arojado, supra] 2.c. Evident premeditation may not be appreciated. There was no proof of evident premeditation since the requisites therefor, to wit, (a) the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused had clung to his determination; and (c) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequence of his act, have not been established in this case. [People v. Arojado, supra]

Q27: Arm and Maguad and John Lustre, uncle and nephew, went to the street where the spouses Jose and Maria Salgado lived. Lights were always turned on in the Salgado residence; it was a clean and well-lighted place. Armand and John arrived there at 10 PM. They waited until 2 AM, to make sure that Jose and Maria were asleep. However, Jose was roused from his sleep by Armand who, together with John, had stealthily entered the couple’s room after they gained entry into the house by cutting a hole in the kitchen door. Armand pointed a revolver at Jose’s face, hit Jose on the head with the gun and asked him for his keys. Jose called out for help and tried to grab the revolver. The two men then struggled for possession of the gun. As Jose almost succeeded in wresting possession of the gun from him,

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Arm and shouted to John to stab Jose. Using the knife he was carrying, John stabbed Jose three times with ferocity. Jose threw a stool at the glass window to break it and cried for help. Maria who had been awakened, began shouting for help as she saw her husband in m ortal danger. John stabbed her, and although Maria tried to defend herself with an electric cord, John continued stabbing her. Awakened by the com m otion, Magdalena (the Salgados’ niece) descended the stairs and saw John whom she recognized as a former employee of the butcher shop of the spouses Salgado. Pleading with John not to harm her, Magdalena ran back upstairs into Dindin’s (the daughter of the Salgados) room, and the two called to their neighbors for help. The offenders then fled the Salgado residence. Maria eventually died in the hospital on the same day of the commission of the crime. Jose was hospitalized for a total of six days. Shortly after their arrest, John and Armand were interviewed by reporters to whom they admitted responsibility for stabbing Jose and Maria. They also made similar admission to the police. In response to questions from the reporters, Arm and explained that he suspected his wife was carrying on an affair with Jose. Arm and and John were each charged with murder and attempted murder, qualified by evident premeditation. The Information alleged that the two conspired. Treachery, abuse of superior strength, dwelling, abuse of confidence, unlawful entry, and nighttime were appreciated as aggravating circumstances in the Information as well. On the other hand, Arm and said that passion and obfuscation, immediate vindication of a grave offense, and voluntary confession of guilt should be appreciated as mitigating circumstances in favor of him. 1. Is attempted murder the proper charge with respect to the attack against Jose? 2. Should Armand be charged with murder for the death of Maria even if it was John who attacked and mortally wounded her? 3. Could the enumerated generic aggravating circumstances be applied? 4. Are passion and obfuscation, immediate vindication of a grave offense, and voluntary confession of guilty availing to Armand as mitigating circumstances? 1. The matter of attack against Jose manifests intent to kill. However, despite their efforts, they failed to inflict a mortal wound against Jose. Hence, the stage of the execution of the crime is attempted. [People v. Ventura, G. R. Nos. 148145-46, 5 July 2004] Is it attempted homicide or attempted murder? It is attempted murder. Here, evident premeditation is proven. The facts of the case evince not only their resolve to kill Jose, but the calm and methodical manner by which they sought to carry out his murder. Generally, appellants act of arming themselves with a gun and a knife constitutes direct evidence of a careful and deliberate plan to carry out a killing. [People v. Samolde] 2. Yes. There is conspiracy. There is a conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Where conspiracy has been adequately proven, as in these cases, all the conspirators are liable as co-principals regardless of the extent and character of their participation because, in contemplation of law, the act of one is the act of all. [People v. Ventura, supra] 3. Treachery could not be appreciated. The facts show that the victims were able to struggle and defend themselves. The essence of treachery lay in the attack that came without warning, and was swift, deliberate and unexpected, affording the hapless, unarmed and unsuspecting victims no chance to resist, or retaliate, or escape, thereby ensuring the accomplishment of the deadly design without risk to the aggressor, and without the slightest provocation on the part of the victims. [People v. Oandasan, Jr., G.R. No. 194605, June 14, 2016] There is abuse of superior strength with respect to the attack against Maria. The Supreme Court in a very long line of cases has consistently held that an attack made by a man with a deadly weapon upon an unarmed and

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defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. [People v. Ventura; People v. Molas] Dwelling should be applied as an aggravating circumstance. The crimes were committed in the place of abode of the victims who had not given immediate provocation. Dwelling is considered aggravating because of the sanctity of privacy that the law accords to human abode. Nighttime should be appreciated. In determining nocturnity, two tests are employed in the alternative: (1) the objective test, under which nighttime is aggravating because the darkness facilitated the commission of the offense; and (2) the subjective test, under which nighttime is aggravating because the darkness was purposely sought by the offender. Unlawful entry could not be applied. There is an unlawful entry when an entrance is effected by way not intended for the purpose. The Information should have stated “breaking of the door.” [18 Reyes 474] While the bedroom where the crimes occurred was well-lit, the evidence shows that, in furtherance of their murderous intent, Armand and John deliberately took advantage of nighttime, as well as the fact that the household members were asleep, in order to gain entry into the Salgado residence. While they were already outside the Salgado house at around 10:00 p.m., they purposely waited until 2:00 a.m. before breaking into the residence so as not to call the attention of the Salgados and/or their neighbors. It is thus clear that appellants deliberately took advantage of the darkness of the night, not to mention the fact that the Salgados were fast asleep, to conceal their actions and to facilitate and insure that their entry into the victims home would be undetected. [People v. Ventura, supra] 4. Passion and obfuscation do not lie. While jealousy may give rise to passion or obfuscation, for the appreciation of this mitigating circumstance it is necessary that the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. [People v. Ventura, supra] With respect to immediate vindication of a grave offense, while immediate vindication should be construed as proximate vindication in accordance with the controlling Spanish text of the Revised Penal Code, still this mitigating circumstance cannot be considered where sufficient time elapsed for the accused to regain his composure. [People v. Ventura, supra] Voluntary of guilt does not avail because the provision in the Revised Penal Code intended that it should be done before an open court. Extrajudicial confession is not included. [18 Reyes 327]. The facts of the case never mentioned whether such confession or plea of guilt was made during arraignment or before the presentation of evidence by the prosecution. Q28: George Yassin was known in the entire town as “siraulo” or “may tililing.” He would walk aimlessly around the community, talking to him self, singing, or dancing. One afternoon, Nene was walking alone towards her home when George surprised her and forced her to have sex with him . Rape charges were filed against George. He was arraigned before the court and trial commenced. W hen it was time for the defense to present evidence, the lawyer for George invited a psychiatrist to take the stand. The said psychiatrist said that George suffers from “organic mental disorder with psychosis.” The defense thereafter submitted several medical records proving the mental illness. Subsequently, the defense said that George should be exempted from criminal liability because of insanity. May insanity be raised as exem ption from crim inal liability in this case? A28: No. In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act, that is, the accused is deprived of reason, he acts without the least discernment because there is complete absence of the power to discern, or there is total deprivation of the freedom of the will. Mere abnormality of the mental faculties will not exclude imputability. The onus probandi rests upon whoever invokes insanity as an exempting circumstance and must prove it by clear and positive evidence. There is no evidence presented that the defendant suffered from the mental disorder immediately before or during the commission of the act. Even if there is such evidence, there is no evidence presented that this disorder completely deprives the defendant of the ability

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to distinguish right from wrong. [People v. Aquino, G.R. No. 87084, June 27, 1990] In any case, the illness may be used to appreciate the mitigating circumstance of “illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts.” Q29: Snow W hite was accosted by seven men: Doc, Dopey, Bashful, Grumpy, Sneezy, Sleepy, and Happy. She was pushed to the ground. Doc had carnal knowledge of her while her body was held to the ground by the others. After Doc, Dopey entered her. Then Bashful raped her, followed by Grumpy. At this point Snow W hite lost consciousness. W hen she regained wakefulness, Happy was on top of Snow W hite and she felt that her vagina was in pain. In all these instances, the rest of the group was holding the arms and legs of Snow W hite as she got raped by one of them. 1. Is there a complex crime of rape? 2. How many counts of rape is each of the seven liable for? 1. No. Each act of carnal knowledge consummates the crime. It follows that each count of rape is separate and distinct from the other incidences of rape. 2. Each person is liable for five counts of rape. It is clear that the seven conspired to commit the rape of Snow White. Conspiracy can be presumed from and proven by the acts of the accused themselves when the said acts point to a joint purpose and design, concerted action, and community of interests. [People v. Buntag, G.R. No. 123070, 14 April 2004] The act of holding her on the ground while one of them raped her joint purpose and design. Thus, the act of one is the act of all. They are all principals to the crime. However, there is no conclusive proof that Sneezy and Sleepy had carnal knowledge of Snow White. Thus, each person is liable for only five counts of rape, contrary to the decision of the trial court that each of the accused is guilty of seven counts of rape. [People v. Nunag, G.R. No. L-54445, May 12, 1989] Q30: JP and Isaac met Robbie in the latter’s home. The moment JP and Isaac sat comfortably at the couch in Robbie’s sala, Robbie wasted no time explaining his strategy to kidnap Ellyson Tan for ransom. The following week, JP and Isaac successfully kidnapped Ellyson. After half an hour of travel, Isaac said that he wanted to pee, so JP parked the car near a bushy area. As Isaac alighted from the car, Ellyson tried to run and escape. Isaac then pointed his gun at Ellyson and shot him in the head, instantly killing him. 1. Robbie argues that he should not be held as principal by inducement, since conspiracy was not sufficiently proven. Does this have merit? 2. JP and Robbie also contend that that should they should not be charged with the complex crime of kidnapping with murder for the killing of Ellyson was not part of the alleged plan. Does this have merit? 1. This contention is without merit. The requisites necessary in order that a person may be convicted as a principal by inducement are: a. That the inducement be made directly with the intention of procuring the commission of the crime; and b. That such inducement be the determining cause of the commission of the crime by the material executor. The foregoing requisites are indubitably present in this case. When JP and Isaac were brought face to face with Robbie, he lost no time in laying down the strategy for the kidnapping of Ellyson for ransom. Clearly, he had the positive resolution to procure the commission of the crime. He, too, presented the strongest kind of temptation, a pecuniary gain in the form of ransom, which was the determining factor of the commission of the crime by his coaccused. Without him the crime would not have been conceived, much less committed. Clearly, he was a principal

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by induction, with collective criminal responsibility with the material executors, his co-accused. [People v. Dela Cruz, G.R. No. L-30912, April 30, 1980] 2. This contention is without merit. The crime is a special complex crime. In People v. Montanir, the Supreme Court held: It bears reiterating that in People vs. Ramos, and People vs. Mercado, interpreting Article 267, we ruled that "where the person killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Article 267." Q31: Jesus Sta. Maria and Carlos Dela Torre devised a plan to bomb a bus. Jesus taught Carlos how to make the bomb. Carlos then hid the bomb he made inside a bag. One hour later, the bomb exploded, killing the driver, the conductor, and the 20 other passengers. The explosion caught the attention of mass media. News reports indicated that the explosion was caused by a bag left in the bus. Carlos’s “seatmate” in the bus ride, troubled by his conscience, shared what he knew about the incident to the police. The authorities apprehended Carlos, who confessed guilt. Jesus was later on apprehended as well. 1. Is Jesus a principal by inducement? 2. Is a conviction of 22 counts of murder each for Carlos and Jesus proper? 1. No. The advice that Jesus give on the creation of the bomb was of such nature that without it, the crime would not have materialized. Jesus should thus be considered as principal by inducement. [People v. Baharan, 639 SCRA 157] 2. No. This is an instance of complex crime of multiple murder. We have a single act (the bombing) that constitutes or more grave felonies (the 22 murders). Q32: Three arm ed members of the NPA, along with the farmer Andres Bukid, went to the house of Mariano Palad, another farm er. The NPA com batants asked Mariano to lead them to the house of an alleged governm ent spy nam ed Dakila Bulag in their small agricultural barangay. Mariano led them to Dakila’s house. As he was alone in his house, Dakila was forced by the NPA m em bers to go with them to the mountains. The armed men then instructed Mariano to tie Dakila, to which Mariano complied. Once the group reached the forested area of the mountain, Dakila was shot to death by the NPA insurgents. Upon the order of the NPA men, Andres and Mariano took turns in digging a hole, wherein they buried the remains of Dakila. Mariano was subsequently arrested. He, with several John Does as conspirators, was charged with murder and trial ensued. Mariano was subsequently convicted of murder, qualified by abuse of superior strength. The decision concluded that Mariano was a principal by indispensable cooperation. 1. W as abuse of superior strength attendant to the killing, to qualify it as murder? 2. W as Mariano a principal by indispensable cooperation? 3. Could Mariano claim that he should be exempted from criminal liability for he acted with uncontrollable fear? 1. Yes, abuse of superior strength was properly appreciated. It had been repeatedly held that the number of assailants, if armed, may be considered as a qualifying circumstance of abuse of superior strength. It is indubitable that assailants deliberately used superior force of such nature as to be clearly out of proportion to the means or defense available to the victims. [People v. Fronda, G.R. Nos. 102361-62, May 14, 1993] 2. No. The acts performed by Mariano are not, by themselves, indispensable to the killing of the Dakila. As aforesaid to be considered as a principal by indispensable cooperation, there must be direct participation in the criminal design by another act without which the crime could not have been committed. We note that the

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prosecution failed to present any evidence tending to establish Mariano’s conspiracy with the evil designs of the members of the NPA armed group. Neither was it established that Mariano’s acts were of such importance that the crime would not have been committed without him or that he participated in the actual killing. It must be noted that Mariano’s help was not essential in finding out where Dakila lived, because of the presence of Andres. Mariano should instead be treated as an accomplice. Article 18 of the Revised Penal Code provides that an accomplice is one who, not being a principal, "cooperates in the execution of the offense by previous or simultaneous acts". Under this provision, a person is considered as an accomplice if his role in the perpetration of the crime is of a minor character. To be convicted as such, it is necessary that he be aware to the criminal intent of the principal and thereby cooperates knowingly or intentionally by supplying material or moral aid for the efficacious execution of the crime. It is well settled that if there is ample of criminal participation but a doubt exist as to the nature of liability, courts should resolve to favor the milder form of responsibility, that of an accomplice. [People v. Fronda, supra] 3. No, the exempting circumstance of uncontrollable fear does not avail for Mariano. In order that the circumstance of uncontrollable fear may apply, it is necessary that the compulsion be of such a character as to leave no opportunity to escape or self-defense in equal combat. Mariano had the chance to escape when he returned home, but he did not. [People v. Fronda, supra]

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CRIMINAL LAW 2 Q33: Police officers A, B, C, D formed a team to intercept cattle rustlers. They positioned themselves behind a large dike. They were all armed with guns. Later that night, they saw somebody approaching. A fired his gun at the man. Immediately thereafter, B also fired at the man. The man fell to the ground. It turned out that the man was not a cattle rustler. The man sustained a gunshot wound and eventually died. It was established that the bullet which hit the man was from A’s gun. W hat crime, if any, did B commit? A33: B committed the crime of illegal discharge of firearm. B cannot be held responsible for the man’s death because the wound that the man sustained was not caused by the bullet fired from B’s gun. Absent an intent to kill in firing the gun towards the victim, B should be held liable for the crime of illegal discharge of firearm under Article 254 of the Revised Penal Code. The elements of this crime are: (1) that the offender discharges a firearm against or at another person; and (2) that the offender has no intention to kill that person. (Dado v. People, G.R. No. 131421)

Q34: Aram is went on a trip with his friends, Athos and Porthos. They stopped in Laguna in front of a warehouse. Athos and Porthos forced Aram is out of the car. They brought Aram is inside the warehouse where Athos stabbed Aramis several times after which Porthos shot him with a gun. Aram is died. They two went back to the car and drove away. Later in t he day, Aramis’ father received a phone call. The caller demanded P500,000 for Aramis’ release. Aramis’ father reported this to the police who conducted an entrapment operation which resulted in the apprehension of Athos and Porthos. Can Athos and Porthos be convicted of the crime of kidnapping for ransom with m urder? A34: No. The essential element in the crime of kidnapping is that the victim must have been restrained or deprived of his liberty, or that he was transported away against his will. The primary or original intent to effect that restraint is absent in this case. Where the taking of the victim was incidental to the basic purpose to kill, the crime is only murder, and this is true even if, before the killing but for purposes thereof, the victim was taken from one place to another. Athos and Porthos evidently had only murder in their minds when they invited Aramis to go to a trip with them not to confine or detain him for any length of time or for any other purpose. The fact alone that ransom money is demanded would not per se qualify the act of preventing the liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. (People v. Padica, G.R. No. 102645) Q35: Seven m en robbed a bank. In the process, one of them sustained a gunshot wound which eventually resulted in his death. It was established that he was shot by his companions. Did the six others commit robbery with homicide considering that person who died was one of them and not a robbery victim, an innocent by-stander or a stranger? A35: Yes. In order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery. It is immaterial that the death would supervene by mere accident, provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration. (People v. Calixtro, G.R. No. L-32794) Q36: Rowena, a bank teller of Mabuhay Bank, w as able to take money from the said bank by making it appear that one Jose withdrew P10,000 from his account with the bank when in truth and in fact no such withdrawal was m ade. Charged with qualified theft, Rowena argued that she could not be convicted of the said crime since theft presupposes physical taking which according to her was not present in this case since the money was already in her possession as Mabuhay Bank’s teller. Rule on Rowena’s contention. A36: Rowena’s argument is untenable. The money meant to service withdrawals, being held by a teller in the bank’s behalf for a particular purpose, is only in the material possession of the teller. Juridical possession remains with the bank. There was taking, and since the teller occupies a position of confidence, and the bank places money

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in the teller's possession due to the confidence reposed in the teller, the felony of qualified theft was committed. (Roque v. People, G.R. No. 138954) Q37: Joker burned his own house. Can he be charged with arson? A37: Yes. Any person who burns or sets fire to the property of another shall be punished by prision mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. (Sec. 1, P.D. 1613) Q38: Define malice as an elem ent of defamation. A38: Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed. (US v. Canete, G.R. No. L-11612) Q39: Distinguish malice in law from malice in fact. A39: Malice in law is presumed from a defamatory imputation. Proof of malice is not required because it is presumed to exist from the defamatory imputation, unless the communication is privileged, in which case, malice must be proved. (Art. 354 (1)) Malice in fact is that which must be shown by proof of ill-will, hatred or purpose to injure (US v. Montalvo, G.R. No. 10077). Q40: State the elements of the crime of falsification of public document under Art. 171, par. 4. A40: For a conviction of the offense of falsification of public or official documents under Art. 171, par. 4, these requisite elements must be clearly established: (1) That the offender makes in a document untruthful statements in a narration of facts; (2) That he has a legal obligation to disclose the truth of the facts narrated by him; (3) That the facts narrated by the offender are absolutely false; and (4) That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. Q41: Elsa, a public school teacher, locked up Ana, her student, overnight in one of the storage rooms of the school because Ana stole her classmate’s phone. Can Elsa be held liable for arbitrary detention? A41: No. Although the offender must be a public officer in the crime of arbitrary detention, not all public officers can commit it. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. Q42: X, Y and Z grabbed A while she was walking on a road and forced her into their car. They drove to a hotel where they had carnal knowledge with her in turns. A struggled, but the men continuously hit and eventually overpowered her. W hile each man was having his way with her, the other three were outside the room. W hat crime(s) did X, Y and Z commit? A42: X, Y and Z can be held liable for forcible abduction with rape and 3 counts of simple rape. The forcible abduction of A was a necessary if not indispensable means which enabled the perpetrators to commit various and successive acts of rape upon her person. But it bears noting that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the 3 succeeding crimes of the same nature cannot legally be considered as still connected with the abduction. Thus, 3 separate crimes of simple rape were committed by using force or intimidation.

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X, Y and Z conspired together to commit the crimes imputed to them. Once conspiracy is established, the act of one is attributable to all. (People v. Jose, G.R. No. L-28232) Q43: P, a customer of Mapayapa Oil Corp., purchased oil products from the latter and issued 9 checks in payment thereof. However, upon presentation of the checks, they were dishonored since his account was already closed. Despite repeated demands, P failed to pay. Nine cases for estafa under Art. 315 par. 2 (d) and nine cases for violation of B.P. 22 were filed against him . He filed a motion to quash the 9 estafa cases on the ground of double jeopardy since these offenses were already included in the 9 pending cases for violation of B.P. 22. Resolve. A43: P’s motion should be denied. P was charged with two (2) distinct and separate offenses with different elements. Deceit and damage are essential elements of estafa but are not required in a prosecution under B.P. 22. Other differences between the two also include the following: (1) a drawer of a dishonored check may be convicted under B.P. 22 even if he had issued the same for a pre-existing obligation, while, for estafa, such circumstance negates criminal liability; (2) specific and different penalties are imposed in each of the two offenses; (3) estafa is essentially a crime against property, while violation of BP 22 is principally a crime against public interest as it does injury to the entire banking system; (4) estafa is mala in se, while violations of B.P. 22 are mala prohibita. Furthermore, Section 5 of B.P. 22 provides that prosecution under it shall be without prejudice to any liability for violation of any provision of the RPC. (Nierras v. Dacuycuy, G.R. Nos. 59568-76) Q44: Q was charged with violation of B.P. 22. He argued that he could not be convicted because he issued the check in question merely to guaranty the payment of purchases of coconuts he made from Koko Supply Inc. Rule on Q’s contention. A44: Q’s contention is untenable because B.P. 22 applies even in cases where dishonored checks are issued merely in the form of a deposit or a guaranty. The law does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation. What are important are the facts that the accused had deliberately issued the checks in question to cover accounts and that the checks were dishonored upon presentment regardless of whether or not the accused merely issued the checks as a guaranty. It was the intention of the framers of B.P. 22 to make the mere act of issuing a worthless check malum prohibitum and thus punishable under such law. (Que v. People, G.R. No. 75217-18). Q45: Kokobank and Power Marketing entered into an agreement whereby Power Marketing bound itself to sell 30,000 car batteries owned by Kokobank and to deliver to the latter the proceeds thereof or the goods themselves if they are unsold after 180 days. This agreement was embodied in a trust receipt issued and delivered by Power Marketing to Kokobank. One hundred eighty days passed but Power Marketing, despite repeated demands made by Kokobank, failed to comply with its obligations. W hat crime can Power Marketing be held liable for? A45: Power Marketing can be prosecuted for estafa. Kokobank, as the entrustor, and Power Marketing, as the entrustee, entered into a trust receipt transaction. Under Sec. 13 of P.D. 115 or the Trust Receipts Law, the failure of an entrustee to turn over the proceeds of the sale of the goods covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Art. 315 par. 1(b) of the RPC. Q46: Petrobank extended several commercial letters of credit (LCs) to Superpax Inc., a firm engaged in the construction business. Superpax used these LCs to pay for the delivery of several construction materials it will use. Petrobank required Superpax to sign 24 trust receipts as security for the construction materials. W hen the 24 trust receipts fell due and despite the receipt of a demand letter, Superpax failed to pay or deliver the goods or proceeds to Petrobank. As its demands fell on deaf ears, Metrobank, filed 24 criminal complaints for estafa under Article 315, par. 1(b) of the RPC, in relation to PD 115 against Superpax. Will the complaints prosper?

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A46: No, because the dealing between Supermax and Petrobank was not a trust receipt transaction but one of simple loan. A trust receipt transaction is one where the entrustee has the obligation to deliver to the entruster the price of the sale, or if the merchandise is not sold, to return the merchandise to the entruster. There are, therefore, two obligations in a trust receipt transaction: the first refers to money received under the obligation involving the duty to turn it over (entregarla) to the owner of the merchandise sold, while the second refers to the merchandise received under the obligation to “return” it (devolvera) to the owner. When both parties enter into an agreement knowing fully well that the return of the goods subject of the trust receipt is not possible even without any fault on the part of the entrustee, it is not a trust receipt transaction penalized under Sec. 13 of PD 115 in relation to Art. 315, par. 1(b) of the RPC, as the only obligation actually agreed upon by the parties would be the return of the proceeds of the sale transaction. This transaction becomes a mere loan, where the borrower is obligated to pay the bank the amount spent for the purchase of the goods. (Yang v. People, G.R. No. 195117) Q47: A, B, and C stopped the car being driven by X. They shot X when he refused to ge t out of the car, abandoned him and took possession of his car. X died as a result of the gunshot wound he sustained. W hat crime did A, B and C commit? A47: The crime committed is carnapping with homicide. Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. (Sec. 2, R.A. 6539 or Anti-Carnapping Act of 1992) It becomes qualified or aggravated when in the course of the commission or on occasion of the carnapping, the owner, driver or occupant of the carnapped vehicle is killed. (Sec. 14, R.A. 6539 as amended by Sec. 20 of R.A. 7659.) Q48: M, N, and O stabbed and m auled P after which they took P’s m otorize d tricycle. They were subsequently apprehended and charged with carnapping. M, N and O argued that they could not be prosecuted for carnapping because the tricycle in question was not a "motor vehicle" as the anti-carnapping law defines the term because it is not licensed to operate on the "public highways.” Rule on the contention of the accused. A48: The contention does not persuade. The Anti-Carnapping Law defines a motor vehicle as any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. Going over the enumerations of excepted vehicle, it would readily be noted that any vehicle which is motorized using the streets which are public, not exclusively for private use, comes within the concept of motor vehicle. A tricycle which is not included in the exception, is thus deemed to be that kind of motor vehicle as defined in the law the stealing of which comes within its penal sanction. There is nothing in the law that requires a license to use a public highway to make the vehicle a "motor vehicle" within the definition given the anti-carnapping law. Q49: W hat are the elements of fencing punished under P.D. 612 ? A49: The elements of the crime of fencing are: (1) a crime of robbery/theft has been committed; (2) the accused, who is not a principal/accomplice in the commission of the crime of robbery/theft, buys, receives, possesses, keeps, acquires, conceals, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object, or anything of value, which has been derived from the proceeds of the crime; (3) the accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery/theft; (4) there is on the part of the accused, intent to gain for himself or for another. (Tan v. People, G.R. No. 134298) Q50: R, who was engaged in the business of manufacturing propellers or spare parts for boats, found out that M, one of her form er em ployees, had stolen som e of the welding roads, propellers, and boat spare parts from her. M was arrested and he adm itted that he stole the missing articles. He asked for R’s forgiveness, and claimed that T bought the stolen items. L

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did not filed a criminal complaint against M. Instead, she filed a case again st T for violation of P.D. 1612 or the Anti-Fencing Law. W ill the com plaint against T prosper? A50: No. There was no sufficient proof of the unlawful taking of another's property or theft which is one of the elements of the crime of fencing punished under P.D. 1612. In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. In this case, the theft was not proved because R did not complain to the public authorities of the felonious taking of her property. She sought out her former employee M, who confessed that he stole certain articles from R and sold them to T. Such confession is insufficient to convict, without evidence of corpus delicti. (Tan v. People, G.R. No. 134298) Q51: Brad and Angelina are husband and wife. One day, Brad arrived home earlier than usual and caught Angelina in the act of having sexual intercourse with their female nanny, Jennifer, in their matrimonial bed. Is Angelina liable for adultery for having sexual relations with Jennifer? A51: No. Under Art. 333 of the RPC, adultery is committed by any married woman who shall have sexual intercourse with a man not her husband. The law speaks of sexual intercourse with a man and not with a woman. Q52: Philippine Senator Tonyo Villanes met with US Senator Mark Ruby to discuss the country’s human rights situation regarding extrajudicial killings. Communications Secretary Marvin Andajar alleged that Villanes’ act constituted treason. Rule on this allegation. A52: This is incorrect. Treason is committed by 2 modes: 1.) levying war; or 2.) adherence to the enemy and giving aid or comfort. In both modes, there must be a war in which the Philippines is involved. In this case, the Philippines is not currently involved in any war, so treason could not have been committed in either mode. Q53: Cel was about to give a blow job to Arnel when his wife, Susan, suddenly walked in. Out of anger and disbelief, Susan grabbed a nearby baseball bat and bludgeoned Cel to death. During trial, Susan raised the defense having committed the murder under exceptional circumstances. Is Susan correct? A53: No. The requisites of death or physical injuries under exceptional circumstances under Art. 247 are: 1) A legally married person, or a parent, surprises his spouse or his daughter, the latter under 18 years of age and living with him in the act of sexual intercourse with another person; 2) he or she kills any or both of them, or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter; and 3) he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the other spouse. Here, Susan did not walk in on Cel and Arnel in the act of sexual intercourse. Q54: Lily confronted her son’s teacher for calling her son names. She pushed the teacher down the stairs. W hat crime, if any, did Lily commit? A54: Lily can be held liable for direct assault. The elements of the crime of direct assault are (1) that the offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance, (2) that the person assaulted is a person in authority or his agent, (3) that at the time of the assault the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties, and (4) that the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. A teacher is considered a person in authority (Art. 152 RPC). Lily attacked the teacher because of the latter’s conduct towards Lily’s son as his teacher. Pursuant to B.P. 873, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority. Q55: Barangay Captain Chris Erwin invited his constituents to a drinking spree at his hom e. This started at 7 p.m. Because they felt they could not leave without offending Chris, they stayed until 4 a.m., when he was already passed out. Out of exasperation, they charged him with arbitrary detention for keeping them in his house for 9 hours against their will. Can a

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Barangay Captain be charged with arbitrary detention? If so, is Chris Erwin guilty of such crime? A55: A barangay captain may be charged with arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. (Milo v. Salanga, G.R. No L-37007) However, Chris Erwin is not guilty of arbitrary detention, because it was not shown that he exerted force or instilled fear to prevent his constituents from leaving his house. It was their own choice to remain there for 9 hours. (Astorga v. People, G.R. No. 154130 Q56: Pietro m arried Aly in 1997, but they separated in fact in 1999. In 2000, Pietro contracted another m arriage with Angie, without seeking a nullity or annulment of his first marriage. He subsequently obtained a judicial declaration of nullity in 2002. In 2003, Aly filed a com plaint against him for bigamy. Pietro contended that since he obtained a judicial declaration, he could not be held liable for such. Is he correct? A56: No, the crime of bigamy was consummated when he contracted the second marriage while the first marriage was still subsisting, and the judicial declaration did not wipe out the effects of the crime (Abunado v. People, G.R. No. 159218). 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; and 4) the subsequent marriage would have been valid had it not been for the existence of the first. Q57: Theo and his group called the Kaliwetes were charged with the com plex crim e of rebellion with multiple murder, after they had attempted to overthrow the national government and killed several government officials in the process. They forwarded the defense that they could only be charged with sim ple rebellion, their acts of m urder having been absorbed as a m eans of committing the said offense, and should therefore be entitled to bail. Are they correct? A57: Yes. The crime of rebellion cannot be complexed with the crime of murder or any other crime committed on occasion thereof, as held in People v. Hernandez and affirmed by Enrile v. Salazar. Doing so would be unfavorable to the accused, as they would no longer be entitled to bail. Q58: Distinguish rebellion from sedition. A58: In both crimes, there must be a public uprising. In rebellion, such uprising must be for the purpose of taking up arms against the government. In sedition, is sufficient that the public uprising is tumultuous. In rebellion, the purpose is always political. In sedition, the purpose may be political or social. The distinction between the two crimes is object at which the uprising aims, not the extent of the territory covered by the uprising. (League v. People, 73 Phil. 155) Q59: Section 5, Article III of RA 7610 punishes child prostitution and other sexual abuses. W hat are the elem ents of the offense? A59: The elements of sexual abuse under Section 5, Article III of RA 7610 are the following – (1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) The child, whether male or female, is below 18 years of age. (People v. Sanico, G.R. No. 208649)

Q60: X, a private person, was charged with violating RA 3019 with Y, a public officer. During the proceedings, Y died. X contends that his criminal liability was extinguished because (a) RA 3019 does not punish private persons; and (b) even if RA 3019 punishes private persons, the death of Y extinguishes liability. Are these contentions correct? A60: No, the contentions are both incorrect. Private persons, when acting in conspiracy with public officers, may be held liable for the pertinent offenses under Section 3 of R.A. 3019. The requirement before a private person may

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be indicted for violation of Section 3(g) of R.A. 3019, among others, is that such private person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. If circumstances exist where the public officer may no longer be charged in court, as in the present case where the public officer has already died, the private person may be indicted alone. (People v. Go, G.R. No. 168539) Q61: Enum erate the five (5) classes of principals in hazing. A61: 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. 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 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 fourth 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. (Dungo v. People, G.R. No. 209464) Q62: W hat are the essential elem ents of the crim e punished in Section 5(i) of RA No. 9262? A62: Its elements are the following: (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. Q63: Are physical injuries/violence necessary, in all cases, to prove the the essential elements of the crim e as defined in Section 5(i) of RA No. 9262 (causing m ental or em otional anguish)? A63: Not in all cases. Generally, 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 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. (Dinamling v. People, G.R. No. 199522)

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Q64: What are the circumstances that qualify a killing to murder? A64: Under Art. 248, these circumstances are: (1) With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. (2) In consideration of a price, reward, or promise. (3) By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. (4) On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. (5) With evident premeditation. (6) With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Q65: Polo was arrested in a buy-bust operation. The poseur-buyer PO1 San Pedro handed the marked money to Polo in exchange for one heat-sealed plastic sachet of suspected shabu. The back-up arresting office SPO1 Hernandez then arrested Polo. Upon frisking Polo, PO1 San Pedro recovered three more heat-sealed sachets of suspected shabu. PO1 San Pedro placed the sachet he purchased from Polo in his right pocket and the three other sachets in his left pocket. Polo and the four sachets seized from him were then brought to the City Police Station. PO1 San Pedro taped the sachets. He then marked the sachet from his right pocket with his initials, "WB." He marked the sachets from his left pocket as "WB-1," "WB-2," "WB-3." When the contents of the sachet were tested, they yielded positive results for shabu. Given the facts, what defense strategy can be taken? A65: Sec. 21 of the Comprehensive Dangerous Drugs Act of 2002, as amended by R.A. 10640 provides for the custody and disposition of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia. It requires the apprehending team having initial custody and control of the drugs to, 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. This procedure was not followed in the case above. Q66: Define “chain of custody” under the Comprehensive Dangerous Drugs Act of 2002. A66: This is the duly recorded authorized movements and custody of subject items at each stage, from the time of seizure to presentation to the court for destruction. Such record of movements and custody of seized items shall include the identity and signature of the person who held temporary custody of the seized items, the date and time when such transfer of custody was made in the course of safekeeping and use in court as evidence, and the final disposition. (Sec. 1(b), DDB Resolution No. 1, Series of 2002, implementing RA 9165). Q67: Judge Maureen was charged with malversation, after PHP150,000 of the P1 million she received for her branch’s Gender and Development projects could not be accounted for. Her defense was that the prosecution failed to establish evidence of

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actual misappropriation, as they had merely alleged a lack of funds without showing that it was she who took the same for her own gain. Rule on this contention. A67: Maureen is incorrect. Art. 217 provides that the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. Hence, an accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been able to explain satisfactorily (De Guzman vs. People, 119 SCRA 337). The law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie evidence of conversion. However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at an end and the prima facie case destroyed. (Quizo v. Sandiganbayan, G.R. No. 77120) Q68: Aira found out that her boyfriend Patrick was cheating on her. She went to his house and strangled him to death while he was sleeping. After killing him, she set his house on fire to erase all traces of her act. She was later charged with two separate crimes of murder and arson. Aira interposed the defense that the arson absorbed the murder. Is she correct? A68: No. Murder and arson are two separate crimes when the offender has already committed the murder, but then fire is resorted to as a means of covering up the killing, as was done in this case (People v. Baluntong, G.R. No. 182061). Arson absorbs murder only if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson. Conversely, murder absorbs arson only if the main objective is to kill a particular person who may be in a building or edifice, but fire is resorted to as the means to accomplish such goal. Q69: Luigi and Samantha have been married for ten (10) years and had three (3) children. The first few years of their marriage went along smoothly. However, on the fifth year onwards, they would often quarrel when Luigi comes home drunk. The quarrels became increasingly violent, marked by quiet periods when Samantha would leave the conjugal dwelling. During these times of quiet, Luigi would "court" Samantha with flowers and chocolate and convince her to return home, telling her that he could not live without her; or Luigi would ask Samantha to forgive him, which she did, believing that if she humbled herself, Luigi would change. After a month of marital bliss, Luigi would return to his drinking habit and the quarrel would start again, verbally at first, until it would escalate to physical violence. One night, Luigi came home drunk and went straight to bed. Fearing the onset of another violent fight, Samantha stabbed Luigi while he was asleep. A week later, their neighbors discovered Luigi’s rotting corpse on the marital bed. Samantha and the children were nowhere to be found. Samantha was charged with parricide. She asserted "battered woman's syndrome" as her defense. 1.) Describe the “cycle of violence.” 2.) Is Samantha’s “battered woman’s syndrome” defense meritorious?

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1.) The battered woman syndrome (BWS) is characterized by a “cycle of violence”, which is made up of three phases. For the BWS to be available as a defense, it must be proven that there has been more than one cycle. a. Tension Building Phase – minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior; woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way; proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her b. Acute Battering Incident – characterized by brutality, destructiveness, and sometimes death; battered woman has no control; only the batterer can stop the violence; battered woman realizes that she cannot reason with him and resistance would only worsen her condition c. Tranquil Period – characterized by guilt on the part of the batterer and forgiveness on the part of the woman; batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better 2.) Yes. Sec. 26 of R.A. 9262 provides that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. This is a departure from the People v. Genosa (G.R. 135981) ruling. Q70: A random photo taken during one of the sessions of the Senate showed Justice Secretary Vitorio Agustin holding his cellphone, on which it showed that he was urging one Gina to expedite the filing of complaints against Senator Rina Oliveros. The text was readable from the photo due to the exorbitant font size of his cellphone. After netizens pointed it out to her, Senator Oliveros shared the photo condemn Secretary Agustin. The latter then filed a wire-tapping complaint against the senator. 1.) What acts are punishable under R.A. 4200 or the Anti-Wiretapping Act? 2.) Will Justice Agustin’s complaint prosper? 1.) R.A. 4200 punishes the following: a. Any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described; and b. Any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 thereof, shall not be covered by this prohibition.

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2.) No, it will not prosper. The act of sharing a photo, taking a photo, or even taking a screenshot does not currently fall within the definition of tapping any wire or cable, or using any other device or arrangement, to secretly overhear, intercept or record a communication. Q71: During the hazing rites of Sigma Juris Phi, they accidentally killed Arlo Cimafranca, one of the people going through initiation. All of those who were present were charged under R.A. 8049. One of the members, Brad Garcia, alleged that he should not be held liable, because he was only there to give medical assistance should things go awry. Yet another member, Patrick Santos, interposed that a mitigating circumstance was present, that of lack of intention to commit so grave a wrong. Will either of these defenses prosper? A71: No. First, under R.A. 8049, the mere presence of any person during the hazing is prima facie evidence of participation therein as principal unless he prevented the commission of the acts punishable herein. Brad did not allege that he attempted to prevent the commission of the acts. In fact, he even admitted being there and only standing by in case something goes wrong. Second, any person charged under R.A. 8049 is not entitled to the mitigating circumstance of lack of intention to commit so grave a wrong (Sec. 1). Q72: Suspecting that her husband of twenty-five years was having an affair, Sharon hired a private investigator to spy on him. After two weeks, the private investigator showed Sharon a video of her husband having sexual intercourse with another woman in a room of a five-star hotel. Based on what she saw on the video, Sharon accused her husband of concubinage. Will the case prosper? A72: No, it will not prosper, because concubinage can only be committed in 3 ways: 1.) By keeping a mistress in the conjugal dwelling; 2.) By having sexual intercourse with a woman not his wife under scandalous circumstances; or 3.) By cohabiting with a woman not his wife in any other place (Art. 334, RPC). In this case, the video showed the husband and the other woman having sex in a hotel room, not the conjugal dwelling. This was not shown to have been done under scandalous circumstances. The husband is not alleged to have been with cohabiting with the woman. Q73: Noelle is the manager of a rice mill in Bulacan. In order to support a gambling debt, Noelle made it appear that the rice mill was earning less than it actually was by writing in a "talaan" or ledger a figure lower than what was collected and paid by their customers. Noelle then pocketed the difference. What crime/s did Noelle commit, If any? Explain your answer. A73: If the “talaan” or ledger which Noelle made to show a falsehood was a private document, the only crime that Fe committed was estafa through abuse of confidence or unfaithfulness. Criminal liability for falsification of a private document does not arise without damage or at least proof of intent to cause damage. It cannot co-exist with the crime of estafa, which also requires damage or at least proof of intent to cause damage. Since the “talaan” was falsified to cover-up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage attends the falsification, it will be the same damage or intent to cause damage that will attend the estafa.

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If such “talaan” or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone, if done with intent to pervert the truth, would bring about criminal liability for falsification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed; namely, estafa and falsification of the commercial document. The falsification should not be complexed with the estafa since it was not committed as a necessary means to commit the estafa but rather resorted to in order to conceal or hide the misappropriation of the amount she pocketed. Alternatively, Noelle may be charged with theft and falsification of private document. Her possession of the proceeds of the rice mill was only physical, not juridical possession, and having committed the crimes with grave abuse of confidence, it is qualified theft. The falsification is a separate ,crime from the theft because it was not committed as a necessary means to commit the theft but resorted to only to hide or conceal the unlawful taking.