Crim Quamto

Page |1 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010)

QUESTIONS ASKED MORE THAN ONCE IN THE BAR

QuAMTO (1987-2010) Criminal Law

ACADEMICS COMMITTEE ALJON D. DE GUZMAN MARK KEVIN U. DELLOSA SHARMAGNE JOY A. BINAY ANTHONY M. ROBLES CLARABEL ANNE R. LACSINA RAFAEL LORENZ SANTOS JAMES BRYAN V. ESTELEYDES

CHAIRPERSON VICE-CHAIR FOR ACADEMICS VICE-CHAIR FOR ADMINISTRATION AND FINANCE VICE-CHAIR FOR LAYOUT AND DESIGN MEMBER, LAYOUT AND DESIGN TEAM MEMBER, LAYOUT AND DESIGN TEAM VICE-CHAIR FOR RESEARCH

RESEARCH COMMITTEE JAMES BRYAN V. ESTELEYDES MARIA JAMYKA S. FAMA PAULINE BREISSEE GAYLE D. ALCARAZ ROBBIE BAÑAGA MONICA S. CAJUCOM DOMINIC VICTOR C. DE ALBAN ANNABELLA HERNANDEZ MA. CRISTINA MANZO-DAGUDAG WILLIAM RUSSELL MALANG CHARMAINE PANLAQUE OMAR DELOSO

RESEACH COMMITTEE HEAD ASST. RESEARCH COMMITTEE HEAD MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER MEMBER

UST ACADEMICS COMMITTEE

Page |2 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010)

DISCLAIMER THE RISK OF USE, MISUSE OR NONUSE OF THIS BAR REVIEW MATERIAL SHALL BE BORNE BY THE USER/ NON-USER.

UST ACADEMICS COMMITTEE

Page |3 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) GENERAL PRINCIPLES Q: What are the three cardinal features or main characteristics of Philippine Criminal Law? (1998, 1988) A: The three main characteristics of Philippine criminal law are: a. Generality or its being binding to all persons who live or sojourn in Philippine territory subject to certain exceptions b. Territoriality or its having force and effect only within Philippine territory, subject to certain exceptions also c. Irretrospectivity/Prospectivity or its application only to acts and omissions committed/incurred after the effectivity of the law except if it favors the offender unless he is a habitual delinquent or the law otherwise provides Q: Hubert and Eunice were married in the Philippines. Hubert took graduate studies in New York and met his former girlfriend Eula. They renewed their friendship and finally decided to get married. The first wife, Eunice, heard about the marriage and secures a copy of the marriage contract in New York. Eunice filed a case of Bigamy against Hubert in the Philippines. 1. 2.

Will the case prosper? Explain. If Eunice gave her consent to the second marriage, what will your answer be? Explain. (2008)

A: 1.

2.

No, because Philippine courts have no jurisdiction over a crime committed outside of the Philippine territory. Under the principle of territoriality, penal laws, specifically the RPC are enforceable only within the bounds of our territory (Art. 2, RPC). The answer would be the same. The consent of Eunice would not confer jurisdiction on Philippine courts. Bigamy is a public crime and not subject to agreement between the victim and the accused. The legal obstacle to the institution of a case for bigamy in the Philippines is jurisdictional and cannot be excused or waived by the parties affected.

Q: Distinguish between a crime mala prohibita from a crime mala in se (2005, 2003, 2001, 1999, 1997, 1988) A: In crimes mala prohibita, the acts are not by nature wrong, evil or bad. They are punished only because there is a law prohibiting them for public

good, and thus, good faith or lack of criminal intent in doing the prohibited act is not a defense. In crimes mala in se, the acts are by nature wrong, evil or bad, and so generally condemned. The moral trait of the offender is involved; thus, good faith or lack of criminal intent on the part of the offender is a defense, unless the crime is the result of criminal negligence. Correspondingly, modifying circumstances are considered in punishing the offender. Q: When is motive relevant to prove a case? When is it not necessary to be established? (2006, 1999) A: Motive is relevant to prove a case when there is doubt as to the identity of the offender or when the act committed gives rise to variant crimes and there is the need to determine the proper crime to be imputed to the offender. Proof of motive is not required when the offender is positively identified or has admitted the commission of the crime and when the crime committed is a malum prohibitum or where the crime is a product of culpa or criminal negligence. Q: Distinguish intent from motive (2004, 1999, 1996, 1988) A: Intent is the purpose for using a particular means to achieve the desired result, and is an ingredient of dolo or malice and thus an element of deliberate felonies whereas motive is the moving power which impels a person to act for a definite result and is not an element of a crime. Q: The defense raised by an accused in a prosecution for murder is that the corpus delicti is not established since the body of the victim was not recovered, is the contention correct? (2006, 2001, 2000) A: No, the contention is incorrect. Corpus delicti does not refer to the body of the purported victim which had not been found. Corpus delicti literally means the body or substance of the crime or the fact that a crime has been committed. It is a compound fact made up of two things: the existence of certain act or result forming the basis of the criminal charge and the existence of criminal agency as the cause of the act. Even without the body of the victim, the offender can be convicted when the facts and circumstances of a crime is established. Q: After due hearing on a petition for a writ of amparo founded on the acts of enforced disappearance and extralegal killing of the son of the complainant allegedly done by the respondent military officers, the court granted the petition. May the military officers be criminally charged in court with enforced disappearance and extralegal killing? Explain fully. (2008)

UST ACADEMICS COMMITTEE

Page |4 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) A: No. Enforced disappearance and extralegal killing is not per se a criminal offense although it is wrongful. The grant of a writ of amparo only provides for a relief; it does not establish a basis for a crime. Unless the writ was issued because of specific overt acts shown to have been committed by the respondent military officers and such acts are crimes under penal laws, no criminal charge may be routinely filed just because the petition for the writ was granted. Q: Are human rights violations considered as crimes in the Philippines? Explain. (2008) A: Not necessarily, since there are human rights violations which do not amount to a criminal offense. In this country, there can be no crime when there is no law punishing an act or omission as a crime. However, if the acts constitute violations of customary international law, they may be considered violations of Philippine law (Sec. 8, Art. II, Constitution). Also, the acts may constitute elements of offenses penalized under Philippine laws, like kidnapping/illegal detention. Q: Because of the barbarity and hideousness of the acts committed by the suspects/respondents in cutting off their victims’ appendages, stuffing their torsos, legs, body parts into oil drums and bulletriddled vehicles and later on burying these oil drums, vehicles with the use of backhoes and other earth-moving machinery, the Commission on Human Rights (CHR) investigating team recommended to the panel of public prosecutors that all respondents be charged with violation of the “Heinous Crimes Law.” The prosecution panel agreed with the CHR. As the Chief Prosecutor tasked with approving the filing of the Information, how will you pass upon the recommendation? Explain. (2010) A: The CHR is correct in describing the crimes committed as “heinous crimes” as defined in the preamble of the Heinous Crimes Law (R.A. 7659), despite the passage of R.A. 9346 prohibiting the imposition of death penalty. However, the Heinous Crimes Law does not define crimes; it is only an amendatory law increasing the penalty for the crimes specified therein as heinous, to a maximum of death. Thus, the heinous crimes committed shall be prosecuted under the penal law they are respectively defined and penalized, such as the Revised Penal Code as the case may be. The circumstances making the crimes heinous may be alleged as qualifying or generic aggravating, if proper. The crime shall be designated as defined and punished under the penal law violated and the penalty shall be reclusion perpetua without the benefit of parole or life imprisonment without the benefit of parole, as the case may be, in lieu of death penalty.

FELONIES Q: Luis Cruz was deeply hurt when his offer of love wsa rejected by his girlfriend Marivella one afternoon when he visited her. When he left her house, he walked as if he was sleepwalking so much so that a teenage snatcher was able to grab his cellphone and flee without being chased by Luis. At the next LRT station, he boarded one of the coachers bound for Baclaran. While seated, he happened to read a newspaper left on the seat and noticed that the headlines were about the sinking of the Super Ferry while on its way to Cebu. He went over the list of missing passengers who were presumed dead and came across the name of his grandfather who had raised him from childhood after he was orphaned. He was shocked and his mind went black for minutes, after which he ran amuck and, using his balisong, started stabbing at the passengers who then scampered away, with three of them jumping and landing on the road below. All the three passengers died later of their injuries at the hospital. Is Luis liable for the death of the three passengers who jumped out of the moving train? (2001, 1996, 1994, 1987) A: Yes, Luis is liable for their deaths because he was committing a felony when he started stabbing at the passengers and such wrongful act was the proximate cause of said passengers’ jumping out of the train; hence, their deaths. Under Art. 4 of the RPC, any person committing a felony shall incur criminal liability although the wrongful act done be different from that which he intended. In this case, the death of the three passengers was the direct, natural and logical consequence of Luis’ felonious act which created an immediate sense of danger in the minds of said passengers who tried to avoid or escape from it by jumping out of the train. Q: What do you understand by aberratio ictus, error in personae and praeter intentionem? (1999 1994, 1989) A: Aberratio ictus or mistake in the blow occurs when the offender delivered the blow at his intended victim but missed and instead such blow landed on an unintended victim. The situation generally brings about complex crimes where from a single act, two or more grave or less grave felonies may result, namely, the attempt against the intended victim and the consequence on the unintended victim. It is only when the resulting crimes are only light that complex crimes do not result and separate penalties may be imposed. Error in personae or mistake in identity occurs when the offender actually hit the person to whom the blow was directed but turned out to be different from and not the victim intended. The criminal liability of the offender is not affected unless the mistake in identity resulted to a crime different from what the offender intended to commit, in which

UST ACADEMICS COMMITTEE

Page |5 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) case the lesser penalty between the crime intended and the crime committed shall be imposed but in the maximum period (Art. 49, RPC). In praeter intentionem, the injurious result is greater than that intended by the offender. This is a mitigating circumstance of lack of intent to commit so grave a wrong when the resulting felony could not reasonably be anticipated or foreseen by the offender from the act or means employed by him. Q: What is the doctrine of implied conspiracy? (2003, 1998) A: The doctrine of implied conspiracy holds two or more person participating in the commission of a crime collectively responsible and liable as coconspirators although absent any agreement to that effect, when they act in concert, demonstrating unity of criminal intent and a common purpose or objective. The existence of conspiracy can be inferred or deduced from the manner the participants in the commission of crime carried out its execution and thus the act of one shall be deemed the act of all. Q: Ricky was reviewing for the bar exam when the commander of a vigilante group came to him and showed him a list of five policemen to be liquidated by them for graft and corruption. He was further asked if any of them is innocent. After going over the list, Ricky pointed to two of the policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable? Explain. (2008) A: No, there was no conspiracy between Ricky and the Commander of vigilante. Mere vouching for the honesty of 2 policemen in the list cannot make him a co-conspirator for the killing. Ricky enjoys the presumption of innocence. Q: Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated checks. During the first two months following the investment, the investors received their profits, but thereafter, Angelo vanished. Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime, or delito continuado, hence, he committed only one count of estafa and one count of violation of BP 22. (2009) 1. 2. A:

What is delito continuado? Is Angelo’s contention tenable? Explain.

1.

2.

Delito continuado refers to a crime constituted by several overt acts committed by the offender in one place, at about the same time, and all such overt acts violate one and the same provision of penal law, thus, demonstrating that all such acts are the product of a single indivisible criminal resolution. Hence, all said acts are considered as one crime only. No. His contention is not tenable. He committed as many counts of estafa against the 500 victims and 2000 counts of violation of BP 22, since each swindling is achieved through distinct fraudulent machinations contrived at different times or dates, and in different amounts. Moreover, his drawing separate checks payable to each payee is a separate criminal resolution, as they must be of different amounts and of different dates. He acted with separate fraudulent intent against each swindling victim and had distinct criminal intent in drawing and issuing each check. It cannot be maintained that his acts are the product of one criminal resolution only.

Q: What is delito continuado? Differentiate it from a continuing crime (2005, 1994) A: Delito continuado or continued crime is constituted by a series of overt acts committed by the offender arising from a single criminal resolution which are carried out in the same place and at about the same time andviolating one and the same penal provision. On the other hand, a continuing offense is one whose essential ingredients took place in more than one municipality or city, so much so that the criminal prosecution may be instituted and the place tried in the competent court of any one of such municipality or city. Q: Distinguish between compound and complex crimes (2004, 1999) A: Compound crimes result when the offender committed only a single felonious act from which two or more crimes resulted. The resulting crimes are limited only to grave and/or less grave felonies. Hence, light felonies are excluded even though the resulting from the same single act. Complex crimes result when the offender has to commit an offense as a necessary means for committing another offense. Q: Distinguish an ordinary complex crime from a special complex crime (2005, 2003, 1999) A: An ordinary complex crime is made up of two or more crimes being punished in distinct provisions of the Revised Penal Code but alleged in one information either because they were brought about by a single felonious act or because one offense is a

UST ACADEMICS COMMITTEE

Page |6 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) necessary means for committing the other offense or offenses. They are alleged in one information so that only one penalty shall be imposed. The penalty for the most serious crime shall be imposed and in its maximum period. In special complex crime, also known as composite crime, the component crimes constitute a single indivisible offense and are thus penalized as one crime under one Article of the Revised Penal Code. The component crimes are not regarded as distinct crimes and so it is the penalty specifically provided for the special complex crime that shall be applied.

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY Q: Distinguish between justifying and exempting circumstance (2004, 1998) A: Justifying circumstance affects the act, not the actor; while exempting circumstance affects the actor. In justifying circumstance, no criminal and generally, no civil liability is incurred; while in exempting circumstance, civil liability is generally incurred although there is no criminal liability. Q: Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding no food on the table, Jack started hitting Jill only to apologize the following day. A week later, the same episode occurred – Jack came home drunk and started hitting Jill. Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to give Jack another chance. After several days, however, Jack again came home drunk. The following day, he was found dead. Jill was charged with parricide but raised the defense of “battered woman syndrome.”

3.

Q: Distinguish between entrapment and instigation (2003, 1995) A: In entrapment, the criminal design originates from and is already in the mind of the lawbreaker even before entrapment and that the law enforcers resort to ways and means for the purpose of capturing the lawbreaker in flagrante delicto. This circumstance is then no bar to prosecution and conviction of the lawbreaker. In instigation, the idea and design to bring about the commission of the crime originate and developed in the mind of the law enforcers who induce, lure or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime. This circumstance absolves the accused from criminal liability. Q: Joe was 17 years old when he committed homicide in 2005. The crime is punishable by reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May 2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe moved to avail of the process of intervention or diversion. 1.

2. 1. 2. 3.

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

3.

A: 1.

2.

Battered woman syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse (Sec. 3(d) of R.A. 9262) The three phases of BWS are: a.) tensionbuilding phase, b.) acute battering incident, and c.) tranquil, loving or non violent phase

(People v. Genosa GR No. 135981, Jan. 15, 2004) Yes. Sec. 26 of R.A. 9262 provides that victim survivors who are found by the courts to be suffering from battered woman syndrome does not incur any Criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self defense under the RPC.

What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. Suppose Joe’s motion for intervention or diversion was denied, and he was convicted two (2) years later when Joe was already 21 years old, should the judge apply the suspension of sentence? Explain Suppose Joe was convicted of attempted murder with a special aggravating circumstance and was denied suspension of sentence, would he be eligible for probation under Presidential Decree (PD) 968, considering that the death penalty is imposable for the consummated felony? Explain (2009)

A: 1.

Intervention refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and

UST ACADEMICS COMMITTEE

Page |7 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010)

2.

3.

other activities that will enhance his/her psychological, emotional and psycho-social well-being. This is available to a child 15 years old or less at the time of the commission of the offense or although over 15 but below 18 years old at the time of commission of the crime, the child acted without discernment.

Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense.

Diversion refers to an alternative, child appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. This process governs when the child is over 15 years old but below 18 at the time of the commission of the crime and he acted with discernment. Joe is entitled to diversion. Being only 17 years old at the time he committed the crime of homicide, he is treated as a child in conflict with the law under RA 9344

A:

No. the judge should not suspend the sentence anymore because Joe was already 21 years old. Suspension of sentence is availing under R.A. 9344 only until a child reaches the maximum age of 21 years. Yes. He would be eligible for probation because the penalty imposable on Joe will not exceed 6 years imprisonment. Even if it would be considered that the crime committed was punishable by death, the penalty as far Joe is concerned can only be reclusion perpetua because R.A 9344 forbids the imposition of the capital punishment upon the offenders thereunder. The murder being attempted only, the prescribed penalty is 2 degree lower than reclusion perpetua; hence, prision mayor. Because Joe was 17 years old when he committed the crime, the penalty of prision mayor should be lowered further by one degree because his minority is a privileged mitigating circumstance; hence, prision correccional or imprisonment within the range of 6 months and 1 day to 6 years is the imposable.

Q: While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s quarters. The following day, Romeo was found catatonic inside the maid’s quarters. He was brought to the National Center for Mental

1. 2.

Will Romeo’s defense prosper? Explain. What is the effect of the diagnosis of the NCMH on the case? (The diagnosis will be taken as a defense of insanity) (2010)

1.

No, Romeo’s defense of insanity will not prosper because, even assuming that Romeo was insane when diagnosed after he committed the crime, insanity as a defense to the commission of a crime must have existed and proven to be existing at the time precise moment when the crime was committed. The facts of the case indicate that Romeo committed the crime with discernment The effect of the diagnosis made by NCMH sis possibly a suspension of the proceedings against Romeo and his commitment to appropriate institution for treatment until he could already understand the proceedings

2.

Q: True or False: Voluntary surrender is a mitigating circumstance in all acts and omissions punishable under the Revised Penal Code. (2009) A: False. Voluntary surrender may not be appreciated in cases of criminal negligence under Art. 365 since in such cases, the courts are authorized to impose a penalty without considering Art. 62 regarding mitigating and aggravating circumstances. PERSONS CRIMINALLY LIABLE/DEGREE OF PARTICIPATION Q: Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot 1. What, if any, is the liability of Ruben? Explain. 2. Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (2009) A: 1.

Ruben’s liability is that of an accomplice because he merely cooperated in Ponciano’s determination to kill Freddie. Such cooperation is not indispensable to the killing, as in fact the killing was carried out without the use of Ruben’s gun. Neither

UST ACADEMICS COMMITTEE

Page |8 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010)

2.

may Ruben be regarded as a co-conspirator since he was not a participant in the decision-making of Ponciano to kill Freddie; he merely cooperated in carrying out the criminal plan which was already in place. No. The answer would not be the same because Ruben lent his gun purposely for the killing of Freddie only, not only for any other killing. Ponciano’s using Ruben’s gun in killing a person other than Freddie is beyond Ruben’s criminal intent and willing involvement. Only Ponciano will answer for the crime against Manuel. It has been ruled that when the owner of the gun knew that it would be used to kill a particular person, the owner of the gun is not an accomplice as to the killing of another person. While there was community of design between Ponciano and Ruben, there was none with respect to the killing.

Q: Manolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to Domeng his desire to borrow his revolver. Domeng lent it. Manolo shot Cece in Manila with Domeng's revolver. As his gun was used in the killing,Domeng asked Mayor Tan to help him escape. The mayor gave Domeng P5,000.00 and told him to proceed to Mindanao to hide. Domeng went to Mindanao. The mayor was later charged as an accessory to Cece's murder. 1. 2.

Can he be held liable for the charge? Explain. Can he be held liable for any other offense? Explain fully. (2008)

A: 1.

2.

Domeng, being an accomplice and not a principal to the crime of murder, the Mayor may not be held liable as an accessory since he merely assisted in the escape of an accomplice. Art. 19 of the RPC speak of harboring or assisting in the escape of a principal. The mayor can however be held liable as principal in the crime of maliciously refraining from instituting or prosecuting an offender under Art. 208 of the RPC. Yes. For obstruction of justice or violation of P.D. 1829 for assisting Domeng, who was involved in the commission of a crime to escape from Manila to Mindanao. PENALTIES

Q: What is the difference between reclusion perpetua and life imprisonment? (2001, 1994) A: Reclusion perpetua is a penalty prescribed by the RPC with a fixed duration of imprisonment from 20 years and 1 day to 40 years and carries it with accessory penalties. Life imprisonment on the other

hand is a penalty prescribed by special laws, with no fixed duration of imprisonment and without any accessory penalty. Q: True or False: Life imprisonment is a penalty more favorable to the convict than reclusion perpetua. (2009) A: False. Life imprisonment is unfavorable to a convict because the penalty is without a fixed duration, unlike reclusion perpetua which has a fixed duration of 40 years and the convict may be eligible for pardon after 30 years of imprisonment (People v Penillos, 205 SCRA 546) Rules on Indeterminate Sentence Law (2007, 2005, 2003, 2002, 1999, 1990, 1989, 1988) Q: How are the maximum and the minimum terms of the indeterminate sentence determined? (2002, 1989, 1988) A: For crimes punished under the Revised Penal Code, the maximum term of the Indeterminate Sentence shall be the penalty properly imposable under the same Code after the penalty properly imposable under the same Code after considering the attending mitigating and/or aggravating circumstances. The minimum term of the same sentence shall be fixed within the range of the penalty next lower in degree to that prescribed for the crime under the said Code. For crimes punished under special laws, the indeterminate sentence shall consist of a maximum term which shall not exceed the maximum fixed by the special law and a minimum term which shall not be less than the minimum term prescribed by the same. Q: What is the purpose for fixing the maximum and the minimum terms of the indeterminate sentence? (2002) A: The purpose of the law in fixing the minimum term of the sentence is to set the grace period at which the convict may be released on parole from imprisonment, unless by his conduct he is not deserving of parole and thus he shall continue serving his prison term in jail but in no case to go beyond the maximum term fixed in the sentence. Q: In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to be imposed. (2009)

UST ACADEMICS COMMITTEE

Page |9 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) A: Under the Indeterminate Sentence Law, the minimum of the sentence shall be anywhere within the range of 6 years and 1 day to 12 years imprisonment while the maximum of the sentence shall be anywhere within the range of Reclusion Temporal minimum i.e. not lower than 12 years and 1 day to not more than 14 years and 8 months. Q: When would the Indeterminate Sentence Law be inapplicable? (2003, 1999, 1988) A: a. persons convicted of offenses punished with death penalty or life-imprisonment; b. to those convicted of treason, conspiracy or proposal to commit treason; c. to those convicted of misprision of treason, rebellion, sedition or espionage; d. to those convicted of piracy; e. to those who are habitual delinquents; f. to those who have escaped from confinement or evaded sentence; g. to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; h. to those whose maximum term of imprisonment does not exceed one year, i. to those already sentenced by final judgment at the time of approval of this Act, j. those whose sentence imposes penalties which do not involve imprisonment like destierro Q: Carlos was charged and convicted of murder. He was sentenced to life imprisonment and to indemnify the offended party in the amount of P30,000. He sought a reconsideration of the penalty on the ground that he should be entitled to the benefits of the Indeterminate Sentence Law. Decide (1990) A: Carlos is not entitled to avail of the Indeterminate Sentence because Sec 2 of said law specifically disqualifies and disallows application thereof to persons sentenced to life imprisonment. Q: While serving sentence for destierro, Macky entered the prohibited area and had pot session with Ivy. Is Macky entitled to an indeterminate sentence in case he is found guilty of use of prohibited substances? (2007) A: No, Macky is not entitled to the benefit of the Indeterminate sentence law for having evaded the sentence which placed him on destierro. Sec. 2 of the said law expressly provides that the law shall not apply to those who have evade sentence. Moreover, the penalty for use of any dangerous drug by a first offender is rehabilitation for a minimum period of 6 months. The Indeterminate sentence law does not apply when the penalty is imprisonment not exceeding 1 year.

Q: Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months as minimum to 3 years as maximum. Can the court correctly impose the following penalties: a. a straight penalty of 10 months b. 6 months as minimum to 11 months as maximum c. a straight penalty of 2 years (2005, 1999) A: a. The court may validly impose a straight penalty of 10 months imprisonment because the penalty prescribed by law is imprisonment of 6 months to 3 years and the Indeterminate Sentence Law does not apply when the penalty imposed is imprisonment which does not exceed 1 year. b. a prison term of 6 months as minimum to 11 months as maximum may not be imposed by the court because the indeterminate sentence law does not apply when the penalty imposed as maximum of the sentence is imprisonment which does not exceed 1 year. c. the court may not validly impose a straight penalty of 2 years because the Indeterminate sentence law requires the court to set a minimum and a maximum of the sentence where the imprisonment to be imposed already exceeds 1 year, unless the offender is disqualified from the benefits of the said law. Q: An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only. Who of the three is on the right track? Explain. (2010) A: None of the contentions is correct because the Indeterminate Sentence Law has not been followed. The imposition of penalty for the crime of homicide, which is penalized by imprisonment exceeding one (1) year and is divisible, is covered by the Indeterminate Sentence Law. The said law required that the sentence in this case should reflect a minimum term for purposes of parole, and a maximum term fixing the limit of the imprisonment. Imposing a straight penalty is incorrect. RULES ON PROBATION (1988, 1989, 1990, 1992, 1993, 2001, 2002, 2003, 2004, 2005)

UST ACADEMICS COMMITTEE

P a g e | 10 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) Q. Who are the offenders disqualified from availing themselves the benefits of the probation law? (1988) A: The following offenders are disqualified from availing of the benefits of the Probation Law: a. those sentenced to serve a maximum term of imprisonment of more than 6 years b. those convicted of subversion or any crime against national security or public order c. those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/ or a fine of not less than P200 d. those who have been once on probation under the provisions of the decree e. those who are already serving sentence at the time the substantive provisions of this decree applicable pursuant to Sec 33 of PD 968. Q: Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs under Section 12 of Republic Act No. 9165. Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which he also filed a petition for probation. The brothers’ counsel argued that they being first time offenders, their petitions for probation should be granted. How would you resolve the brothers’ petitions for probation? Explain. (2010) A: The brother’s petition for probation should both be denied. Matt’s petition for probation shall be denied because he was convicted for drug trafficking. Sec. 24 of R.A. 9165 expressly provides that Any person convicted for drug trafficking or pushing regardless of the penalty imposed by the court, cannot avail of the privilege granted by the Probation Law. On the other hand, Jeff’s application for probation cannot also be entertained or granted because he has already appealed his conviction by the trial court. Q: PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation? (2004, 2002, 1990) A: Yes, PX may apply for probation since the penalty imposed on him does not exceed 6 years. The previous conviction for another crime does not disqualify him since the penalty for his previous conviction did not exceed 1 month. Q: Juan was convicted by the Regional Trial Court of a crime and sentenced to suffer the penalty of imprisonment for a minimum of eight years. He

appealed both his conviction and the penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan’s conviction but reduced his sentence to a maximum of four years and eight months imprisonment. Could Juan forthwith file and application for probation? (2003, 2001, 1992) A: No, Juan can no longer avail of the probation because he appealed from the judgment of conviction of the trial court, and therefore, cannot apply for probation anymore. Section 4 of the Probation Law, as amended, mandates that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction. Q: A was charged with theft and upon arraignment, pleaded guilty to the charge. He was detained for failure to post bail. After 2 months, a decision was rendered, sentencing A to an indeterminate sentence of 6 months and 1 day as minimum to 1 year and 1 month as maximum and to pay the offended party the amount of P700. On January 16, 1985, the very day the sentence was read to A, the Judge issued a Commitment Order addressed to the Provincial Jail Warden. On January 28, 1985, A applied for probation but his application was denied on the ground that the sentence of conviction became final and executory on January 16, 1985, when A commenced to serve his sentence. Is A eligible for probation? (1989, 1993) A: A is still eligible for probation since he filed his application for probation within 15 days from the promulgation of the judgment. Under the Probation law, the accused may apply for probation within the period for perfecting an appeal which is 15 days from promulgation or notice thereof. The probation law does not speak of filing an application for probation before judgment has become final. It only speaks of filing the application within the period for perfecting an appeal. There is nothing in the probation law which bars an accused who has commenced to serve his sentence from filing an application for probation provided he does so within the period for perfecting an appeal. Q: May a probationer appeal from the decision revoking the grant of probation or modifying the terms and conditions thereof? (2002) A: No. Under Sec. 4 of the Probation Law, as amended, an order granting or denying probation is not appealable. Q: a.) Maganda was charged with violation of BP 22 punishable by imprisonment of not less than 30 days but not more than 1 year or a fine shall not exceed P200,000 or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000 with subsidiary imprisonment in case of

UST ACADEMICS COMMITTEE

P a g e | 11 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) insolvency and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she should not change her residence without the court’s prior approval. What is the proper period of probation? (2005) A: The period of probation shall not be less than the total number of days of subsidiary imprisonment or more than twice said number of days as computed at the rate established under the RPC. b.) Supposing before the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? A: Yes, the court may revoke the Order of Probation and order the convicted accused to serve the subsidiary imprisonment, because she violated the condition of her probation before the Order of Discharge was issued by the court. The conditions of probation are not co-terminous with the period of probation; such conditions continue even after the probation had ended and thus requires faithful compliance or fulfillment, for as long as the court which placed the convict on probation has not issued the Order of Discharge that would release her from probation (Bala v. Martinez, 181 SCRA 459) MODIFICATION AND EXTINCTION OF CRIMINAL LIABILITY Q: OW is a private person engaged in cattle ranching. One night, he saw AM stab CV treacherously, then throw the dead man’s body into ravine. For 25 years, CV’s body was never seen nor found; and OW told no one what he had witnessed. Yesterday after consulting the parish priest, OW decided to tell the authorities what he had witnessed, and revealed that AM had killed CV 25 years ago. Can AM be prosecuted for murder despite the lapse of 25 years? (2004, 2000) A: Yes, AM can be prosecuted for murder despite the lapse of 25 years, because the crime has not yet prescribed and legally, its prescriptive period has not even commenced to run. The period of a crime shall commence to run only from the day on which the crime shall commence to run only from the day on which the crime has been discovered by the offended party, the authorities or their agents (Art. 91, RPC). OW, a private citizen who saw the killing but never disclosed it is not the offended party nor has the crime been discovered by the authorities or their agents. Q: Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he escaped

from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence. Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation. Antero then filed a petition for habeas corpus, praying for his immediate release from confinement. He claims that the amnesty extends to the offense of Evasion of Service of Sentence. As judge, will you grant the petition? Discuss fully. (2009) A: Yes, I will grant the petition because the sentence that was evaded proceeded from the crime of Rebellion which has been obliterated by the grant of amnesty to the offender. Since the amnesty erased the criminal complexion of the act committed by the offender as a crime of rebellion and rendered such act as though innocent, the sentence lost its legal basis. The purported evasion thereof cannot therefore subsist (People v. Patriarca, 341 SCRA 464). Amnesty obliterates, not only the basis of conviction but also all the legal effects thereof. CRIMES AGAINST NATIONAL SECURITY Q: Because peace negotiations on the Spratlys situation had failed, the People’s Republic of China declared war against the Philippines. Myra, a Filipina who lives with her Italian expatriate boyfriend, discovered e-mail correspondence between him and a certain General Tung Kat Su of China. On March 12, 2010, Myra discovered that on even date her boyfriend had sent an e-mail to General Tung Kat Su, in which he agreed to provide vital information on the military defense of the Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime? Explain. (2010) A: Yes, Myra committed the crime of Misprision of treason under Art. 116 of RPC for failing to report or make known as soon as possible to the governor or provincial fiscal or to the mayor or fiscal of the city where she resides, the conspiracy between her Italian boyfriend and the Chinese General to commit treason against the Philippine Government in time of war. She decided to report the matter to the proper authorities only after two weeks. Q: The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong took advantage of the confusion to settle an old grudge with another passenger, and killed him.

UST ACADEMICS COMMITTEE

P a g e | 12 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) After their apprehension, all four were charged with qualified piracy before a Philippine court. 1. Was the charge of qualified piracy against the three person ( Max, Badong and Bogart ) who boarded the inter-island vessel correct? Explain. 2. Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. (2008)

duty by the offended party acting as a practicing lawyer. Lawyers are considered persons in authority by virtue of BP 873, which states that lawyers in the actual performance of their professional duties or on the occasion of such performance shall be deemed persons in authority. But the crime having been committed 10 years ago, may have already prescribed because it is punishable by a correctional penalty.

A: 1.

2.

Yes, they boarded and fired upon the ship, and divested the passengers of their money and jewelry. As long as murder or homicide is committed as a result or on occasion of piracy, the special complex crime of qualified piracy is committed. Dodong was correctly charged before Philippine court, though it should be for murder or homicide because he did not act in conspiracy or in concert with the pirates, Under the territorial principle of jurisdiction in International Law, the Philippine court will have jurisdiction over the offense of murder or homicide because it was committed by Dodong on a vessel of Philippine registry, and the crime is also cognizable by the courts of Kaoshing Taiwan. CRIMES AGAINST PUBLIC ORDER

Q: Rigoberto gate-crashed the 71st birthday party of Judge Lorenzo. Armed with a piece of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing the latter’s hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a grudge against Judge Lorenzo who, two years earlier, had cited Rigoberto in contempt and ordered his imprisonment for three (3) days. 1. 2.

Is Rigoberto guilty of Direct Assault? Why or Why not? Would your answer be the same if the reason for the attack was that when Judge Lorenzo was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him to jail for one year? Explain your answer. (2009)

A: 1.

2.

No. Regoberto is not guilty of direct assault because Judge Lorenzo has ceased to be a judge when he was attacked. He has retired from his position as a person in authority when he was attacked. Hence, the attack on him cannot be regarded as against a person in authority anymore. Yes. Rigoberto is guilty of Direct Assault because the employment of violence was by reason of an actual performance of a

Q: A teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the latter's throwing paper clips at his classmates, twisted his right ear. X went out of the classroom crying and proceeded home located at the back of the school. He reported to his parents Y and z what A had done to him. Y and Z immediately proceeded to the school building and because they were running and talking in loud voices, they were seen by the barangay chairman, B, who followed them as he suspected that an untoward incident might happen. Upon seeing A inside the classroom, X pointed him out to his father, Y, who administered a fist blow on A, causing him to fall down. When Y was about to kick A, B rushed towards Y and pinned both of the latter's arms. Seeing his father being held by B, X went near and punched B on the face, which cause him to lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband, and also threatened to slap A. Some security guards arrived, intervened and sorrounded X, Y, and Z so that they could be investigated in the principal's office. Before leaving, Z passed near A and threw a small flower pot at him but it was deflected by B. What if any, are the respective criminal liability of X. Y. and Z? Would your answer be the same if B were a barangay tanod only? (2001,2002, 1993) A: X is liable for Direct Assault only, assuming the physical injuries inflicted on B, the Brangay Chairman to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is a person in authority and in this case was performing his duty to maintaining peace and order when attacked. Y is liable for the complex crime of Direct Assault with Less serious Physical Injuries for the fist blow on A, the teacher, which caused the latter to fall down. For purposes of the crimes in Art. 148 and 151 of the RPC, a teacher is considered a person in authority and having been attacked by Y by reason of his performance of official duty, direct assault is committed with the resulting less serious physical injuries complexed. Z, the mother of X may only be liable as an accomplice to the complex crimes of direct assault with less serious physical injuries committed by Y. Her participation should not be considered as that of a co-principal, since her reactions wre only incited by

UST ACADEMICS COMMITTEE

P a g e | 13 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) her relationship to X and Y as the mother of X and the wife of Y. If B were a Branagay Tanod only, the act of X of laying a hand on him, being an agent of a person in authority only would constitute the crime of Resistance and Disobedience since X, a high school pupil, could not be considered as having acted out of contempt for authority but more of helping his father get free from the grip of B. Laying hand on anagent of a person in authority is not ipso facto direct assault, while it would always be direct assault if done to a person in authority in defiance to the latter's exercise of authority. Q: To secure the release of his brother Willy, a detention prisoner, and his cousin Vincent, who is serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chito gave her P50,000.00, she consented. She then prepared an Order requiring the appearance in court of Willy and Vincent, ostensibly as witnesses in a pending case. She forged the judge’s signature, and delivered the Order to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to escape. What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk of Court, Edwin, and the jail warden? Explain your answer. (2009) A: Chito committed the crimes of Delivery of Prisoners from Jail for working out the escape of prisoners Willy and Vincent. He is also liable for two counts of Corruption of Public Officials and Falsification of Public Documents as a principal by inducement. Willy committed the crime of Delivery of Prisoners from Jail as a principal by indispensable cooperation of he was aware of the criminal plan of Chito to have them escape pursuant to such criminal plan; otherwise he would not be liable for said crime of he escaped pursuant to human instinct only. Vincent, being a prisoner serving sentence by final judgment, committed the crime of Evasion of Service of Sentence for escaping during the term of his imprisonment. The Branch Clerk of Court committed the crimes of a.) Direct Bribery for accepting the P50,000 in consideration of the Order she issued to enable the prisoners to get out of jail, b.) Falsification of Public Document for forging the judge’s signature of said order, c.) Delivery of Prisoners from Jail as a coprincipal of Chito by indispensable cooperation for

making the false order and forging the judge’s signature thereon, to enable the prisoners to get out of jail, d.) Evasion of service of sentence as a coprincipal of Vincent by indispensable cooperation for making the false order that enabled Vincent to evade service of his sentence. Edwin committed the crimes of Infidelity in the Custody of Prisoners specifically conniving with or consenting to Evasion for leaving unguarded the prisoners escorted by him and provide them an opportunity to escape, and Direct Bribery for receiving the P50,000 as consideration for leaving the prisoners unguarded and allowing then the opportunity to escape. The jail warden did not commit a crime there being no showing that he was aware of what his subordinates had done not of any negligence on his part that would amount to infidelity in the custody of prisoners. CRIMES AGAINST PUBLIC INTEREST Q: Define Money Laundering. What are the three (3) stages in money laundering? (2010) A: Money laundering is the process by which a person conceals the existence of unlawfully obtained money and makes it appear to have originated from lawful sources. The intention behind such a transaction is to hide the beneficial owner of said funds and allows criminal organizations or criminals to enjoy the proceeds of such criminal activities. The three stages in money laundering are: a. placement/infusion or the physical disposal of the criminal proceeds b. layering or the separation of the criminal proceeds from their source by creating layers of financial transactions to disguise such proceeds as legitimate and to avoid the audit of trail c. integration or the provision of apparent legitimacy to the criminal proceeds Q: There being probable cause to believe that certain deposits and investments in a bank are related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No. 9160, as amended (Anti-Money Laundering Act) an application for an order to inquiry into his deposit was filed with the Regional Trial Court. After hearing the application, the court granted the application and issued a freeze order. Pass upon the correctness of the court’s order. Explain. (2010) A: The freeze order issued by the RTC is not correct because jurisdiction to issue said freeze order is now vested with the Court of Appeals. The Regional Trial Court is without jurisdiction to issue a freeze order of the money involved.

UST ACADEMICS COMMITTEE

P a g e | 14 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) Q: Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization. Is he liable for perjury? (2005, 1997, 1996, 1991, 1987) A: Yes. The crime of perjury is committed by Al Chua when he stated under oath that he was living with Leni Chua in Sampaloc when in fact he was living with his mistress, and Leni Chua was already living in Cebu at the time of the filing of the petition. It is a false allegation under oath, on a material matter required by law in naturalization cases. CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS Q: Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buybust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him. What is the "chain of custody" requirement in drug offenses? What is its rationale? What is the effect of failure to observe the requirement? (2009) A: Chain of custody requirement in drug offenses refers to the duly recorded, authorized movement and custody of seized dangerous drugs, controlled chemicals, plant sources of dangerous drugs, and laboratory equipment for dangerous drugs from the time of confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic laboratory for examination, to its safekeeping and eventual presentation/ offer in court as evidence of the criminal violation, and for destruction. Its rationale is to preserve the authenticity of the corpus delicti or body of the crime by rendering it improbable that the original item seized/confiscated in the violation has been exchanged or substituted with another or tampered with or contaminated. It is a method of authenticating the evidence as would support a finding beyond reasonable doubt that the matter is what the prosecution claims it to be. Failure to observe the chain of custody requirement renders the evidence questionable, not trustworthy and insufficient to prove the corpus delicti beyond

reasonable doubt. Hence, Tommy acquitted on reasonable doubt.

would

be

CRIMES COMMITTED BY PUBLIC OFFICERS Q: Malversation (2006, 2005, 2001, 1999, 1990, 1987) 1. A Municipal Treasurer, accountable for public funds or property, encashed with public funds private checks drawn in favor of his wife. The checks bounced, the drawer not having enough cash in the drawee bank. The municipal treasurer, in encashing private checks from public funds violated regulations of his office. Notwithstanding restitution of the amount of the checks, can the municipal treasurer nevertheless be criminally liable? What crime did he commit? A: He is liable for malversation. Malversation is committed by a public officer who, by reason of his duties of his office, is accountable of public funds or property, shall take, misappropriate, or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property. Notwithstanding the restitution of the amount of the check, the municipal treasurer will be criminally liable as restitution does not negate criminal liability although it may be considered as a mitigating circumstance analogous to voluntary surrender. However, if the restitution was made immediately, under vehement protest against an imputation of malversation, and without leaving the office, he may not be criminally liable. 2. Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In 1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging that they constitute ill gotten wealth of the Marcos family. Upon their application, Reyes and Santos were appointed as fiscal agents of the sequestered building and its contents, including various vehicles used in the firm’s operations. After a few months, an inventory was conducted and it was discovered that 2 delivery vans were missing. After demand was made upon them, Reyes and Santos failed ot give any satisfactory explanation why the cans were missing or to turn them over to the PCGG; hence, they were charged with malversation of public property. During the trial, the two acused claimed that they are not public accountable officers and if any crime was committed, it should be estafa. What is the proper offense committed? A: The proper offense if malversation of public property not estafa considering that Reyes and Santos, upon their application, were constituted as fiscal agents of the sequestered firm and were given custody and possession of the sequestered properties including the delivery cans which later

UST ACADEMICS COMMITTEE

P a g e | 15 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) they could not account for. They were thus made the depositary and administrator of properties deposited by public authority and hence, by the duties of their office/ position, they are accountable for such properties. Such properties, having been sequestered by the government through the PCGG, are in custodial egis and therefore impressed with the character of public property, even though the properties belong to a private individual. The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is prima facie evidence that they had put the same to their personal use. Q: Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy the judgment against him in favor of ABC Corporation, a government-owned or controlled corporation with an original charter. However, the representative of the corporation failed to attend the auction sale. Gonzalo , the winning bidder, purchased property for P100,000 which he paid to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo lent the amount to Myrna, his officemate, who promised to repay the amount within two months, with interest thereon. However, Myrna reneged on her promise. Despite demands of ABC Corporation, Eliseo failed to remit the said amount. 1. 2.

State with reasons, the crime or crimes, if any, committed by Eliseo. Would your answer to the first question be the same if ABC Corporattion were a private corporation? Explain. (2008)

transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law”] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (2010) A: Yes, a public officer charged under Sec. 3 (b) of R.A. 3019 may also be charged simultaneously or successively for the crime of direct bribery under Art. 210 of RPC because the two crimes are essentially different and are penalized under distinct philosophies. Whereas violation of Sec. 3(b) of R.A. 3019 is a malum prohibitum, the crime under Art. 210 of RPC is a malum in se. In Merencillo vs. People G.R. Nos. 142369-70, the Court ruled that the violation of Section 3(b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3(b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3(b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do.

A: 1.

2.

Eliseo committed Malversation for allowing Myrna to misappropriate the money for which he, as sheriff, is accountable. In this case, the act of Eliseo of lending the amount to his officemate is tantamount to permitting any other person to take the public funds, considering that the P100,000 involved is a public funds, it should be turned over to the Office of the Clerk of Court. The answer would be the same since even if ABC is a private corporation, Eliseo is still accountable for it, and the same should be delivered to the Court. The property was in custodia legis, and although not strictly public property, it has become impressed with the character of public property when Eliseo, in his official capacity, conducted the execution sale and received its proceeds.

Q: May a public officer charged under Section 3(b) of Republic Act No. 3019 [“directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself or for any other person, in connection with any contract or

Q: Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before the court that she would convince the Presiding Judge to decide the case in plaintiff’s favor. In consideration therefor, the plaintiff gave Charina P20,000.00. Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any public officer from directly or indirectly requesting or receiving any gift, present, percentage, or benefit in connection with any contract or transaction x x x wherein the public officer, in his official capacity, has to intervene under the law. While the case was being tried, the Ombudsman filed another information against Charina for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information, claiming that she can no longer be charged under the Revised Penal Code having been charged for the same act under R.A. 3019. Is Charina correct? Explain. (2009) A: No. Charina is not correct. Although the charge for violation of R.A. 3019 and the charge for Indirect

UST ACADEMICS COMMITTEE

P a g e | 16 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) Bribery arose from the same act, the elements of the violation charged under R.A. 3019 are not the same as the felony charged for indirect bribery under the RPC (Mejia v. Pamaran, 160 SCRA 457). Hence, the crimes charged are separate and distinct from each other, with different penalties. The two charges do not constitute a ground for a motion to dismiss or motion to quash, as there is no jeopardy against the accused. CRIMES AGAINST PERSONS Q: Murder (2007, 2005, 2004, 2001, 1999, 1996, 1987) 1. Define murder. What are the elements of the crime? A: Murder is the unlawful killing of a person which otherwise would constitute only homicide, had it not been attended attended by any of the following circumstances: a.) with treachery, or taking advantage of superior strength, or with the aid of armed men, or employing means to weaken the defense or of means of persons to insure or afford impunity b.) in consideration of a price, reward or promise c.) by means or on the occasion of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the aid of any other means involving great waste and ruin d.) on occasion of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity e.) with evident premeditation f.) with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse The elements of murder are: 1.) That a person was unlawfully killed; 2.) That such killing was attended by any of the above mentioned circumstances; 3.) That the killing is not parricide nor infanticide; 4.) That the accused killed the victim. 2. Juan had a land dispute with Pedro for a number of years. As Juan was coming down to his house, he saw his brother, Rodolfo attack Pedro with a bolo from behind. Rodolfo was about to hit Pedro a second time while the latter was prostrate on the ground, when Carling, Pedro’s son, shouted, “I’ll kill you” This distracted Rodolfo, who turned to Carling. Rodolfo and Carling fought with their bolos. Carling suffered a number of wounds and died on the spot. Pedro who was in serious condition was rushed to the hospital. He died five days later for loss of blood because the blood purchased from

Manila which could have saved him did not arrive on time. What crime/s was committed by Rodolfo? A: Rodolfo committed murder regarding the killing of Pedro since Pedro was attacked from behind. The killing was attended by the qualifying circumstance of treachery. The mode of attack deprived Pedro of any chance to defend himself or to retaliate. Rodolfo is also liable for homicide regarding the killing of Carling, Pedro’s son, as that is the result of a fight, both of them being armed with bolos. 3. Fidel and Fred harbored a long standing grudge against Jorge who refused to marry their sister Lorna, after the latter got pregnant by Jorge. After weeks of surveillance, they finally cornered Jorge in Ermita, Manila when the latter was walking home late at night. Fidel and Fred forcibly brought Jorge to Zambales where they kept him hogtied in a small nipa house located in the middle of a rice field. Two days later, they killed Jorge and dumped his body into the river. What crime/s did Fidel and Fred commit? A: Fidel and Fred committed the crime of murder, the killing being qualified by evident premeditation. This is due to the long standing grudge entertained by the two accused occasioned by the victim’s refusal to marry their sister after impregnating her. In People v. Alfeche, 219 SCRA 85, the intention of the accused is determinative of the crime committed. Where the intention is to kill the victim and the latter is forcibly taken to another place and later killed, it is murder. There is no indication that the offenders intended to deprive the victim of his liberty. Whereas, if the victim is kidnapped, and taken to another situs and killed as an afterthought, it is kidnapping with homicide. 4. Mang Jose, a septuagenarian, was walking with is ten year old grandson along Paseo de Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding CRV Hondavan and were sent sprawling on the pavement, a meter apart. The driver, a Chinese mestizo, stopped his car after hitting the two victims but then reversed his gears and ran over Mang Jose’s prostrate body anew and third time by advancing his car forward. Mang Jose suffered multiple fractures and broken ribs, causing his instant death. The driver was arrested and charged with murder for the death of Mang Jose. Is the charge correct? A: Yes, the charge is correct. For deliberately running over Mang Jose’s prostrate body after having bumped him and his grandson, the driver indeed committed murder qualified by treachery. Said driver’s deliberate intent to kill Mang Jose was demonstrated by his running over the latter’s body twice, by backing up the van and driving it forward,

UST ACADEMICS COMMITTEE

P a g e | 17 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) whereas the victim was helpless and not in a position to defend himself or to retaliate. Q: Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10,000 a month as "protection money". With the monthly payment, Roger assured, the syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his establishment destroyed. Antonio refused to pay the protection money. Days later, at round 3:00 in the morning, Mauro, a member of the criminal syndicate, arrived at Antonio's home and hurled a grenade inti an open window of the bedroom where Antonio, his wife and their three year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded. State, with reason, the crime or crimes that had been committed as well as the aggravating circumstances, if any, attendant thereto. (2008) A: By demanding protection money under threat and intimidation that the businessman would be killed or his establishment destroyed if he would refuse to pay the protection money, the crime of grave threats is committed by Roger, the leader of the crime syndicate. Roger and Mauro conspired to commit the crime of murder qualified by treachery, with the use of means involving great waste and ruin. In this case, Mauro is liable as a principal by direct participation by using a grenade and hurled into an open window of the victim’s bedroom. Killing the victims while they were sleeping and in no position to defend themselves is a treacherous act (People v. Aguilar, 88 Phil 693) The aggravating circumstances includes Sec. 3 of R.A. 8294 which provides that when a person commits any of the crime under RPC or special laws with the use of explosive and like incendiary devices which resulted in the death of any person. Likewise is Art.23 of R.A. 7659 as organized/syndicated crime group. It also includes dwelling because the killings were committed in the home of the victims who had not given any provocation, nocturnity, considering that the offenders carried out the killing at around 3:00AM, indicative of a deliberate choice of nighttime for the commission of the crime, and treachery considering that the victims were asleep when killed. Q: A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11:00 p.m.to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom

was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window. A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical injuries of B. Is A liable for the death of C? Why? Is A liable for B’s injuries? (2007, 2005, 2001, 1991) A: Yes, A is liable for C’s death but under the exceptional circumstances in Art. 247 of the RPC where only destierro is prescribed. Art. 247 governs since A surprised his wife B in the act of having sexual intercourse with C, and the killing of C was “immediately thereafter” as the discovery, escape, pursuit and killing of C form one continuous act. Likewise, A is liable for serious physical injuries he inflicted on his wife B but under the same exceptional circumstances in Art. 247 of RPC. Q: The conduct of wife A aroused the ire of her husband B. Incensed with anger almost beyond his control, B could not help but inflict physical injuries on A. Moments after B started hitting A with his fists, A suddenly complained of severe chest pains. B, realizing that A was indeed in serious trouble, immediately brought her to the hospital. Despite efforts to alleviate A's pains, she died of heart attack. It turned out that she had been suffering from a lingering heart ailment. What crime, if any, could B be held guilty of? (2003, 1999, 1996, 1994) A: B could be held liable for parricide because his act of hitting his wife with fist blows and therewith inflicting physical injuries on her, is felonious. A person committing a felonious act incurs criminal liability although the wrongful consequence is different from what he intended. Although A died of heart attack, the said attack was generated by B's felonious act of hitting her with is fists. Even though B may have acted without intent to kill his wife, lack of such intent is of no moment when the victim dies. However, B may be given the mitigating circumstance if having acted without intention to commit so grave a wrong as that committed. Note: When the husband strikes his pregnant wife, he commits the crime of maltreatment. Consequently, if the pregnant wife together with the unborn baby dies, the husband is liable for parricide with unintentional abortion there being no intention to cause the abortion of his wife.

UST ACADEMICS COMMITTEE

P a g e | 18 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) Inasmuch as the single act of striking the pregnant wife produced 2 grave or less grave felonies, it falls under Art. 48 of RPC (complex crime) On the other hand, if it is a child which was killed, he/she must be at least 3 years old to be liable for parricide. If he/she is less than 3 years old, parricide is not committed, instead, it is infanticide.

Q: Francis and Joan were sweethearts, but their parents had objected to their relationship because they were first cousins. They forged a pact in writing to commit suicide. The agreement was shoot each other in the head which they did. Joan died. Due to medical assistance, Francis survived. Is Francis criminally liable for the death of Joan? Explain (2008) A: Yes. Francis’ act of shooting Joan, although done pursuant to a solemn pact is nevertheless felonious and is the proximate cause of Joan’s death. Moreover, Francis is criminally liable for assisting in the suicide of Joan under Art. 253 of RPC, as evidenced by their written pact. Q: Dang was a beauty queen in a university. Job, a rich classmate, was so enamored with her that he persistently wooed and pursued her. Dang, being in love with another man, rejected him. This angered Job. Sometime in September 2003, while Dang and her sister Lyn were on their way home, Job and his minor friend Nonoy grabbed them and pushed them inside a white van. They brought them in an abandoned warehouse where they forced them to dance naked. Thereafter, they brought them to a hill in a nearby barangay where they took turns raping them. After satisfying their lust, Job ordered Nonoy to push Dang down a ravine, resulting in her death. Lyn ran away but Job and Nonoy chased her and pushed her inside the van. Then the duo drove away. Lyn was never seen again. What crime or crimes were committed by Job and Nonoy? (2006, 1998) A: Job and Nonoy each committed 2 counts of the special complex crime of rape with homicide under Art. 266-B for the rapes respectively committed on Dang and Lyn. Their felonious acts grabbing and pushing the victims inside their van and later forcing them to dance naked may only be appreciated as part of the violence and lewd desires attending the rape, and are therefore absorbed by the rape. Although there is no indication that the same culprits killed Lyn who was never seen again, it is reasonable to assume from what the culprits did to Dang, and from the acts of violence they employed on Lyn, that they are answerable also for the presumed death of Lyn whom the culprits took with them by force and was never seen again. Hence, the rape committed against her is attended by homicide giving rise to the special complex crime of rape with homicide. It would be different if Lyn was not subjected to physical violence.

Q: AJ, a medical student, was in a border in the house of Mr. and Mrs. M who had a good-looking 25 year old retarded daughter with the mental age of an 11 year old girl. One day, when the couple were out, Perlita, the retarded daughter, entered AJ's room, came near him and started kissing him. He tried to avoid her, but she persisted. They had sexual intercourse. This was repeated everytime Perlita's parents were out until Perlita got pregnant. Mr. and Mrs. M filed a complaint of rape against Aj who claimed that it was Perlita who seduced him; that Perlita was intelligent, clearly understood what she was doing; and that since Perlita was already 25 years old did not herself file the complaint, her parents had no personality to file the complaint for rape. How would you resolve the case? (1987, 1996) A: The contention of Aj cannot be sustained. Sexual intercourse with Perlita, who is a mental retardate, although 25 years old but with a mental age of 11 year old girl is rape. She is the same class as a woman deprived of reason or otherwise unconscious. Since she is suffering from an incapacity, being incompetent on account of her mental age, the parents have the right to file the complaint for rape. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Q: Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the gun at the driver and shouted: "Tigil! Kidnap ito!" Terrified, the driver, Juanito, stopped the van and allowed Virgilio to board. Inside the van were Jeremias, a 6-year-old child, son of a multimillionaire, and Daday, the child’s nanny. Virgilio told Juanito to drive to a deserted place, and there, ordered the driver to alight. Before Juanito was allowed to go, Virgilio instructed him to tell Jeremias’ parents that unless they give a ransom of P10-million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse. What crime or crimes, if any, did Virgilio commit? Explain. (2009) A: The crime committed against Jeremias is Kidnapping and Serious Illegal Detention. The evident criminal intent of the offender, Virgilio, is to lock up the child to demand ransom. Whether or not the ransom was eventually obtained will not affect the crime committed because the demand for ransom is not an element of the crime; it only qualifies the penalty for the crime. As to Daday, the nanny of the child who was told to remain in the van and take care of the child until the ransom is paid, the crime committed is Serious Illegal Detention because the offender party deprived of liberty is a female. As to Juanito, the driver of the van who was

UST ACADEMICS COMMITTEE

P a g e | 19 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) seriously intimidated with a gun pointed at him and directed to stop the van and allow the gun-man to board the same, and thereafter to drive to a deserted place, the crime committed by Virgilio is Grave Coercion and Slight Illegal Detention for holding the driver before he was allowed to go. Q: A and B, conspiring with each other, kidnapped C and detained him. The duo then called up C’s wife informing her that they had her husband and would release him only if she paid a ransom in the amount of P10,000, and that if she were to fail, they would kill him. The next day, C, who had just recovered from an illness had a relapse. Fearing he might die if not treated at once by a doctor, A and B released C during the early morning of the third day of detention. Was the crime committed kidnapping and serious detention or slight illegal detention? (1997, 1991) A: The crime committed by A and B is kidnapping and serious illegal detention because they made a demand for ransom and threatened to kill C if the latter’s wife did not pay the same. Without the demand for ransom, the crime could have been slight illegal detention only. Note: Had it been the wife who was kidnapped, even in the absence of ransom, it will still constitute serious illegal detention because the victim is a woman.

Q: A, B, C, D, and E were members of a gang operating in Mindanao with Gorio as over-all leader. Gorio assigned A, B and C to get money from Pedro, a businessman from Agusan. As instructed, A, B, and C, armed with guns, went to see Pedro and demanded P100,000. When Pedro refused, A pointed his gun at him while B hit him with the butt of his gun. Pedro gave the amount demanded. After the 3 left, Pedro went to the PC Command to tell them what happened. On the way, he met Orlando, also a businessman, who told him that D and E, a week earlier, wrote him a letter asking P50,000 and threatening to kill his son and wife should he fail to give the amount. Afraid that the two wuold make good their threat, he gave the money when D called him that day. Orlando was also on his way to the PC to report what happened. What crime did D and E commit? (1987, 1988) A: D and E committed grave threats. The reason is that intimidation employed refers to the killings of the wife and son of Orlando should he fail to give the amount of P50,000 demanded in the letter which D and E sent to him. The distinction between robbery and grave threats when the purpose is the same, that is, to extort money, is that in robbery, the intimidation is actual and immediate whereas on grave threats, the intimidation is future and conditional.

CRIMES AGAINST PROPERTY Q: A entered the house of another without employing force or violence upon things. He was seen by a maid who wanted to scream but was prevented from doing so because A threatened her with a gun. A then took money and other valuables and left. Is A guilty of theft or of robbery? (2002, 1992) A: A is liable for robbery because of the intimidation he employed on the maid before the taking of the money and other valuables. It is the intimidation of person relative to the taking that qualifies the crime as robbery, instead of simply theft. The nonemployment of force upon things is of no moment because robbery is committed not only by employing force upon things but also by employing violence against or intimidation of persons. Q: A learned two days ago that B had received dollar bills amounting to $10,000 from his daughter working in the United States. With the intention of robbing B of those dollars, A entered B’s house at midnight, armed with a knife which he used to gain entry, and began quietly searching the drawers, shelves, and other likely receptacle of the cash. While doing that, B awoke, rushed out from the bedroom, and grappled with A for the possession of the knife which A was then holding. After stabbing B to death, A turned over B’s pillow and found the latter’s wallet underneath the pillow, which was bulging with the dollar bills he was looking for. A took the bills and left the house. What crime was committed? (2007, 2005, 2003, 1998, 1996, 1995) A: The crime committed is robbery with homicide, a composite crime. This is because A’s primordial intent is to commit a robbery and in the course of the robbery, the killing of B took place. Both the robbery and the killing were consummated, thus giving rise to the special complex crime of robbery with homicide. The primary intent being to commit robbery, any killing on the occasion of robbery, though not by reason thereof, is considered a component of the crime of robbery with homicide as a single indivisible offense. Q: Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of the windows in her house. After taking her personal properties and as they were abut to leave, XA decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her bedroom and did nothing to prevent XA from raping OD. What crime did XA, YB, and ZC commit? (2004, 1999, 1997, 1996) A: The crime committed by XA, YB, and ZC is the composite crime of robbery with rape, a single, indivisible offense under Art. 294 of RPC. Although the conspiracy among the offenders was only to

UST ACADEMICS COMMITTEE

P a g e | 20 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) commit robbery and only XA raped OD, the other robbers, YB and ZC were present and aware of the rape being committed by their co-conspirator. Having done nothing to stop XA from committing the rape, YB and ZC thereby concurred in the commission of the rape by their co-conspirator XA.

is free from any lien or encumbrance. There is thus a deceit or fraud in causing damage to the buyer of the lot.

Q: Oscar owns and operates a gift and jewelry shop. Pilar sold to him for P1,000 a 5 carat diamond ring which he stole. May Oscar be liable under the Anti Fencing Law? How can Oscar acquire immunity from criminal prosecution for purchasing the diamond and thus enable him to sell the same to the general public for a profit? (1990, 1987)

A: There is no such crime as estafa through negligence. In estafa, the profit or gain must be obtained by the accused personally, through his own acts, and his mere negligence in allowing another to take advantage of/or benefit from the entrusted property cannot constitute estafa.

A: Oscar is liable for fencing. The price is unconscionable. This shows that he would have known of the fact that the ring was stolen. Fencing is the act of any person who, with intent to gain for himself or another, shall buy, receive, sell, or dispose in any other manner deal in any article of value which he knows, or should be known to him to have been derived from the proceeds of the crime of robbery or theft. Oscar can acquire immunity by securing a clearance/permit to sell second hand ring from the proper INP station commander. Note: The law refers to buy and sell of articles of value which are the proceeds of robbery and theft and does not apply to the proceeds of the crime of malversation as when the items to be sold were received from an accountable public officer.

Q: True or False: In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery. (2009) A: False. Fencing is committed if the accused should have known that the goods or articles had been the subject of theft or robbery. Mere possession of the stolen goods gives rise to prima facie presumption of fencing. Q: Estafa (2007, 2005, 1998, 1996, 1995, 1991, 1989) 1. Divina is the owner of a 500 square meter residential lot in Makati City covered by TCT No. 1998. As her son needed money for his trip abroad, Divina mortgaged her lot to her neighbor Dino for P1,000,000. Later, Divina sold the same lot to Angel for P2,000,000. In the Deed of Sale, she expressly stated that the property is free from any lien or encumbrance. What crime, if any, did Divina commit? A: Divina committed estafa or swindling under Art. 316 par. 2 of the RPC because knowing that the real property being sold is encumbered, she still made a misrepresentation in the Deed of Sale that the same

2. Is there such a crime as estafa through negligence?

3. Aurelia introduced Rosa to Victoria, a dealer in jewelry who does business in Timog, Quezon City. Rosa, a resident of Cebu City, agreed to sell a diamond ring and bracelet to Victoria on a commission basis, on condition that, if these items cannot be sold, they may be returned to Victoria forthwith. Unable to sell the ring and bracelet, Rosa delivered both items to Aurelia in Cebu City with the understanding that Aurelia shall in turn, return the items to Victoria. Aurelia dutifully returned the bracelet to Victoria but sold the ring, kept in cash the proceeds thereof herself and issued a check to Victoria which bounced. Victoria sued Rosa for estafa insisting that delivery to a third person of the thing held in trust is not a defense in estafa. Is Rosa criminally liable for estafa? A: No, Rosa cannot be held liable for estafa. Although she received the jewelry from Victoria under an obligation to return the same or deliver the proceeds thereof, she did not misappropriate it. In fact, she gave them to Aurelia specifically to be returned to Victoria. The misappropriation was done by Aurelia and absent the showing of any conspiracy between Aurelia and Rosa, the latter cannot be held criminally liable for Aurelia’s acts. Furthermore, Rosa’s negligence which may have allowed Aurelia to misappropriate the jewelry does not make her criminally liable for estafa. Q: A entrusted her car for repainting at the agreed cost of P7,800,000. When the painting job was finished, A wanted to get the car but B refused to deliver until payment is made. When A came back the next day, the shop was already closed, and B and the car were nowhere to be found. When finally B was located, he told A that he sold the car and applied the amount to the repainting cost and labor. The trial court convicted B of estafa. Is the conviction proper? A: Conviction was correct. Estafa was committed as B had both physical and juridical possession of the car. Having painted the car, he acquired a lien thereto, and therefore could exercise that right against the whole world, including the owner.

UST ACADEMICS COMMITTEE

P a g e | 21 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) 5. A sold a washing machine to B in credit, with the understanding that B could return the appliance within two weeks if, after testing the same, B decided not to buy it. Two weeks lapsed without B returning the appliance. A found out that B had sold the washing machine to a third party. Is B liable for estafa? A: No, B is not liable for estafa because he is not just an entrustee of the washing machine which he sold; he is the owner thereof by virtue of the sale of the washing machine to him. The sale being on credit, B as buyer is only liable for the unpaid price of the washing machine; his obligation is only a civil obligation. There is no felonious misappropriation that could constitute estafa. Q: Dennis leased his apartment to Myla for P10,000 a month. Myla failed to pay the rent for 3months. Gabriel , the son of Dennis, prepared a demand letter falsely alleging that his father had authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the payment. 1. 2.

Did Gabriel commit a crime? Explain Can Gabriel invoke his relationship with Dennis to avoid criminal liability? Explain (2008)

A: 1.

2.

Yes, Gabriel committed the crime of Estafa under Art. 315 par. 2(a) of RPC by fraudulent acts executed prior to or simultaneous with the fraud or falsely pretending to possess agency. Myla paid the money because she relied upon the demand letter prepared by Gabriel with the false allegation that he was authorized to collect rentals No. Gabriel cannot invoke Art. 332 of RPC (persons exempt from criminal liability). It is Myla, not the father Dennis, who is the offended party.

Q: Can an accused be charged with BP 22 and estafa? (1990, 1987) A: Yes. Although there can be no complex crime of estafa and violation of BP 22 because complex crimes refer only to felonies punished by the RPC, a person can be liable for the two offenses. BP 22 specifically provides that liability under said act is without prejudice to any liability for estafa under the RPC. Damage is not an element of the offense punished by BP 22 whereas in estafa, damage is an element. Estafa is an act mala in se which requires intent as an element while the offense punished by BP 22 is an act mala prohibita where intent is not an element. However, if the check was postdated and in payment of a pre-existing obligation, the liability is only for violation of BP 22 and not estafa

Q: A, a businessman, borrowed P500,000 from B, a friend. To pay the loan, A issued a postdated check to be presented for payment 30 days after the transaction. Two days before the maturity date of the check, A called up B and told him not to deposit the check on the date stated on the face thereof, as A had not deposited in teh drawee bank the amount needed to cover the check. Nevertheless, B deposietd the check in uestion and the same was dishonored of insufficiency of funds. A failed to settle the amount with B in spite of the latter's demands. Is A guilty of violating BP 22? Explain (2002, 2003, 1996, 1995, 1990) A: Yes, A is liable for violation of BP 22. Although knowledge by the drawer of insufficiency or lack of funds at the time of the issuance of the check is an essential element of the violation, the law presumes prima facie such knowledge, unless within 5 banking days of notice of dishonor or non-payment, the drawer pays the holder thereof the amount due thereon or makes arrangements for payment in full by the drawee of such checks. A mere notice by the drawer A to the payee B before the maturity date of the check will not defeat the presumption of knowledge created by the law; otherwise, the purpose and spirit of BP 22 will be rendered useless. Q: A asked financial support from her showbiz friend B who accommodated her by issuing in her favor a postdated check in the sum of P90,000.00. Both of them knew that the check would not be honored because B’s account had just been closed. The two then approached trader C whom they asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00 with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the check for payment on due date, it was dishonored because the account had already been closed. What action/s may C commence against A and B to hold them to account for the loss of her P85,000.00? Explain. (2010) A: A criminal complaint for violation of B.P. 22 may be filed against B who drew the postdated check against a closed account, for value paid by C, and with knowledge at the time he issued the check that the account thereof is already closed. A cannot be held liable under BP 22 because he was a mere endorser of B’s check to C who exchanged the check with cash. BP 22 does not apply to endorser of checks. Hence, only a civil action may be filed by C against A to recover the P85,000. Although a simultaneous action for estafa is authorized by law for the issuance of a worthless check, under the given facts, the check was discounted and thus issued in a credit transaction for a pre existing indebtedness. Criminal liability for estafa does not arise when a check has been issued in payment for a pre-existing debt.

UST ACADEMICS COMMITTEE

P a g e | 22 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010)

Q: One early evening, there was a fight between Eddie Gutierrez and Mario Cortez. Later that evening, at about 11 o'clock, Eddie passed by the house of Mario carrying a plastic bag containing gasoline, threw the bag at the house of Mario who was inside the house watching television, and then lit it. The front wall of the house started blazing and some neighbors yelled and shouted. Forthwith, Mario poured water on the burning portion of the house. Neighbors also rushed in to help put the fire under control before any great damage could be inflicted and before the flames have extensively spread. Only a portion of the house was burned. Discuss Eddie's liability. (2000, 2004,1994) A: Eddie is liable for destructive arson in the consummated stage. It is destructive arson because fire was resorted to in destroying the house of Mario which is an inhabited house or dwelling. The arson is consummated because the house was in fact already burned although not totally. In arson, it is not required that the premises be totally burned for the crime to be consummated. It is enough that the premises suffer destruction by burning. Note: Burning of property even of small value is arson, not malicious mischief because burning of property with small value as malicious mischief has long been repealed by PD 1613, hence, there is no more legal basis to consider burning property of small value as malicious mischief.

CRIMES AGAINST CHASTITY Q:Sometime in December 1992, retired Lt. Col. Agaton, celebrating the first year of his compulsory retirement from the Armed Forces of the Philippines, had in his company a 14 year old girl whose parents were killed by the Mt. Pinatubo eruption and being totally orphaned has been living or fending for herself in the streets in Manila. They were alone in one room in a beach resort and stayed there for two nights. No sexual intercourse took place between them. Before they parted, retired Lt. Col. Agaton gave the girl P1,000 for her services, she gladly accepted it. What crime may the retired colonel be charged with? What possible defenses can he interposed? (1993, 2004, 2005, 2006) A: The retired colonel may be charged with child abuse in violation of R.A. 7610. One of the acts of child abuse or exploitation penalized under R.A. 7610 is that of keeping company of a minor who is ten years or more younger than the offender in a hotel, motel, or beerhouse, disco joint, pension house, cabaret, sauna, or massage parlor, beach resort and similar places, considering that Lt. Agaton is a retiree pursuant to a compulsory retirement, while the child he kept company within a private room in the beach resort is only 14 years old, there must be a difference of more than 10 years between

them. This fact plus the circumstance that Lt. Col. Agaton stayed with the child, a girl in one room at such beach resort for two nights, and thereafter, he gave her P1,000 for her services constitutes the very evil punished, among other acts in said law. The possible defenses Lt. Col. Agaton may interpose are that the child is related to him by affinity or by consanguinity within the 4th degree, or by a bond recognized in law, or local customs and traditions, or that he was only acting in pursuance of a moral, social, or legal duty. CRIMES AGAINST HONOR Q: During a seminar workshop attended by government employees from the Bureau of Customs and the Bureau of Internal Revenue, A, the speaker, in the course of his lecture, lamented the fact that a great majority of those serving in said agencies were utterly dishonest and corrupt. The following morning, the whole group of employees in the two bureaus who attended the seminar, as complainants, filed a criminal complaint against A for uttering what the group claimed to be defamatory statements of the lecturer. In court, A filed a motion to quash the information, reciting fully the above facts on the ground that no crime was committed. If you were the judge, how would you resolve the motion? (2003, 2002 2005) A: I would grant the motion to quash on the ground that the facts charged do not constitute an offense, since there is no definite person or persons dishonored. The crime of libel or slander is a crime against honor such that the person or persons dishonored must be identifiable even by innuendos; otherwise the crime against honor is not committed. Moreover, A was not making a malicious imputation, but merely stating an opinion; he was delivering a lecture with no malice at all during a seminar workshop. Malice being inherently absent in the utterance, the statement is not actionable as defamatory. Q: True or False: In the crime of libel, truth is an absolute defense. (2009) A: False. Art. 361 of the RPC provides that proof of truth shall be admissible in libel cases only if the same imputes a crime or is made against a public officer with respect to facts related to the discharge of their official duties, and moreover must have been published with good motives and for justifiable ends. Hence, truth as a defense on its own, is not enough. CRIMINAL NEGLIGENCE Q: Olimpio caught a cold and was running a fever. His doctor prescribed paracetamol. Olimpio went to a drug store with the prescription, and the

UST ACADEMICS COMMITTEE

P a g e | 23 QUESTIONS ASKED MORE THAN ONCE IN THE BAR QuAMTO (1987-2010) pharmacist sold him three (3) tablets. Upon arriving home, he took a tablet. One hour later, he had a seizure and died. The autopsy showed that the tablet he had taken was not paracetamol but a pill to which he was allergic. The pharmacist was charged with murder. Is the charge proper? If not, what should it be? Explain. (2008) A: The charge was improper. The pharmacist should be charged with criminal negligence, or reckless imprudence resulting in homicide, because there was no intent to kill Olimpio. The accused inexcusably lacked precaution in failing to dispense the proper medicine to the victim which cause his death.

UST ACADEMICS COMMITTEE