Criminal Law Jurisprudence - Atty. Modesto Ticman

ARELLANO UNIVERSITY SCHOOL OF LAW PROJECT PHOENIX 2016 CRIMINAL LAW JURISPRUDENCE Prepared by: Atty. Modesto A. Ticman, Jr.

1. Penal or criminal laws are strictly construed against the state and liberally in favor of the accused. If the language of the law were ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial, as a means of effecting substantial justice. The law is tender in favor of the rights of an individual.1 2. The law looks forward, never backward. A new law has a prospective, not retroactive, effect. However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.2 3. Although the general rule is that motive is not essential to a conviction especially where the identity of the assailant is duly established by other competent evidence or is not disputed, the absence of such motive is important in ascertaining the truth as between two antagonistic theories or versions of the killing. Proof as to motive is essential when the evidence on the commission of the crime is purely circumstantial or inconclusive. 3 Motive assumes significance only where there is no showing of who the perpetrator of the crime was. If the accused has been positively identified as the assailant, the lack of motive is no longer of consequence.4 4. Alibi is the weakest of all defenses, for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of the accused by the witnesses.5 For the defense of alibi to prosper, the accused must prove the following: (i) that he was present at another place at the time of the perpetration of the crime; and (ii) that it was physically impossible for him to be at the scene of the crime during its commission. Physical impossibility involves the distance and the facility of access between the crime scene and the location of the accused when the crime was committed.6 5. A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC), while all mala prohibita crimes are provided by special penal laws. In reality, however, there may be mala in se crimes under special laws, such as plunder under R.A. No. 7080, as amended. Similarly, there may be mala prohibita crimes defined in the RPC, such as technical malversation. The better approach to distinguish between mala in se and mala prohibita crimes is the determination of the inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in itself, then it is a crime mala in se,- on the contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by reasons of public policy, then it is mala prohibita.7 1 2 3 4

5 6 7

People vs. Bon, 506 SCRA 168 (2006) Valeroso vs. People, 546 SCRA 450 (2008) Ubales vs. People, 520 SCRA 251 (2008) Velasco vs. People, 483 SCRA 649 (2006) People vs. Aminola, 630 SCRA 384 (2010 People vs. Las Piñas, 730 SCRA 571 (2014) Dungo vs. People, G.R. No. 209464, 01 July 2015)

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6. The crime of hazing under R.A. No. 8049 is malum prohibitum. xxx. The act of hazing itself is not inherently immoral, but the law deems the same to be against public policy and must be prohibited.8 7. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against particular individuals, but against public order.9 When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously.10 8. Criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular public purpose to another public purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience. It is the commission of an act as defined by the law, and not the character or effect thereof, that determines whether or not the provision has been violated. Hence, malice or criminal intent is completely irrelevant.11 9. In the context of criminal law, a "mistake of fact" is a misapprehension of a fact which, if true, would have justified the act or omission which is the subject of the prosecution. Generally, a reasonable mistake of fact is a defense to a charge of crime where it negates the intent component of the crime. It may be a defense even if the offense charged requires proof of only general intent. The inquiry is into the mistaken belief of the defendant, and it does not look at all to the belief or state of mind of any other person. A proper invocation of this defense requires (a) that the mistake be honest and reasonable; (b) that it be a matter of fact; and (c) that it negate the culpability required to commit the crime or the existence of the mental state which the statute prescribes with respect to an element of the offense.12 10. A person committing a felony is criminally liable for all the natural and logical consequences resulting therefrom although the wrongful act done be different from that which he intended. “Natural” refers to an occurrence in the ordinary course of human life or events, while “logical” means that there is a rational connection between the act of the accused and the resulting injury or damage.13

8

Ibid. People vs. Mariacos, 621 SCRA 327 (2010) 10 Fajardo vs. People, 639 SCRA 194 (2011) 11 Ysidoro vs. People, 685 SCRA 637 (2012) 12 Yapyuco, et al. vs. Sandiganbayan, 674 SCRA 420 (2012) 13 Quinto vs. Andres, 453 SCRA 511 (2005) 9

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11. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.14 12. There must be a relation of “cause and effect,” the cause being the felonious act of the offender, the effect being the resultant injuries and/or death of the victim. The “cause and effect” relationship is not altered or changed because of the pre-existing conditions, such as the pathological condition of the victim; the predisposition of the offended party; the physical condition of the offended party; or the concomitant or concurrent conditions, such as the negligence or fault of the doctors; or the conditions supervening the felonious act such as tetanus, pulmonary infection or gangrene. The felony committed is not the proximate cause of the resulting injury when: (a)

(b)

there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or the resulting injury is due to the intentional act of the victim.

If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy and death follows as a consequence of their felonious act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the factual result. The offender is criminally liable for the death of the victim if his delictual act caused, accelerated or contributed to the death of the victim. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard.15 13. When death resulted, even if there was no intent to kill, the crime is homicide, not just physical injuries, since with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. Accordingly, Article 4 of the Revised Penal Code provides: Art. 4. Criminal liability – Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.16 14. The requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual.17 15. A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and 14

Dumayag vs. People, 686 SCRA 347 (2012) Quinto vs. Andres, supra note 13 16 Ng vs. People, 619 SCRA 219 (2010) 17 Jacinto vs. People, 592 SCRA 426 (2009) 15

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compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of crime and the moment when all the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.18 16. The rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only attempted murder, since the accused did not perform all the acts of execution that would have brought about death.19 17. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed.20 18. In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance.21 19. The principal and essential element of attempted or frustrated homicide, or murder, is the intent on the part of the assailant to take the life of the person attacked. 22 And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim. 23 When such intent is lacking but wounds were inflicted, the crime is not frustrated murder but physical injuries only.24 20. The intent to kill determines whether the crime committed is physical injuries or homicide and such intent is made manifest by the acts of the accused which are undoubtedly intended to kill the victim.25 21. Rape is either attempted or consummated. There can be no frustrated rape. The Supreme Court said in Orita: “Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases, we have set the 18

People vs. Tolentino, 546 SCRA 671 (2008) Olalia vs. People, 562 SCRA 723 (2008) 20 Perez vs. Court of Appeals, 382 SCRA 182 (2002) 21 People vs. Caballero, 400 SCRA 424 (2003) 22 Pentecostes vs. People, 617 SCRA 504 (2010) 23 People vs. Abella, 706 SCRA 781 (2013) 24 People vs. Pagador, 357 SCRA 299 (2001) 25 People vs. Gonzalez, 359 SCRA 220 (2001) 19

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uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ because not all acts of execution were performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements, and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.”26 22. Theft is either attempted or consummated. Theft is already “produced” upon the “taking of personal property of another without the latter’s consent.” There was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.27 23. Generally, conspiracy is not a crime except when the law specifically provides a penalty therefor as in treason, rebellion and sedition.28 24. Direct proof is not essential to prove conspiracy; it may be established by acts of the accused before, during and after the commission of the crime charged, from which it may be logically inferred the existence of a common purpose to commit the same. The prosecution must prove conspiracy by the same quantum of evidence as the felony charged itself. Indeed, proof of previous agreement among the malefactors to commit the crime is not essential to prove conspiracy. It is not necessary to show that all the conspirators actually hit and killed the victim; what is primordial is that all the participants performed specific acts with such closeness and coordination as to indicate a common purpose or design to bring out the victim’s death. Once conspiracy is established, it is unnecessary to prove who among the conspirators inflicted the fatal injury. If conspiracy is proved, all the conspirators are criminally liable for the crime charged and proved. The act of one is the act of all.29 25. Conspiracy is deemed implied when the malefactors have a common purpose and were united in its execution. Spontaneous agreement or active cooperation by all perpetrators at the moment of the commission of the crime is sufficient to create joint criminal responsibility. 30 Complicity of the accused in the criminal design may be determined by their concerted action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the wound.31 26. Mere suspicion, speculation, relationship, association, and companionship do not prove 32 conspiracy. Mere knowledge, acquiescence, or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime, with a view to the furtherance of the common design and purpose. Conspiracy transcends companionship. 33 26

People vs. Aca-ac, 357 SCRA 373 (2001) Valenzuela vs. People, 525 SCRA 306 (2007) 28 People vs. Go, 719 SCRA 704 (2014) 29 People vs. Bulan, 459 SCRA 550 (2005) 30 Sim vs. Court of Appeals, 428 SCRA 459 (2004) 31 Cabildo vs. People, 628 SCRA 602 (2010) 32 People vs. Manijas, 391 SCRA 731 (2002) 33 People vs. Compo, 358 SCRA 266 (2001) 27

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Mere presence at the scene of the crime at the time of its commission is not, by itself, sufficient to establish conspiracy. To establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required.34 27. Conspiracy, once proven, has the effect of attaching liability to all of the accused, regardless of their degree of participation, thus: Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of the extent and character of their respective active participation in the commission of the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of all.35 28. The rule is that conspiracy must be alleged, not merely inferred, in the information. Absence of a particular statement in the accusatory portion of the charge sheet concerning any definitive act constituting conspiracy renders the indictment insufficient to hold one accused liable for the individual acts of his co-accused. Thus, each of them would be held accountable only for their respective participation in the commission of the offense.36 29. The elements of self-defense are: (1) that the victim has committed unlawful aggression amounting to actual or imminent threat to the life and limb of the person claiming self-defense; (2) that there be reasonable necessity in the means employed to prevent or repel the unlawful aggression; and (3) that there be lack of sufficient provocation on the part of the person claiming self-defense or, at least, that any provocation executed by the person claiming self-defense be not the proximate and immediate cause of the victim’s aggression.37 30. Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical injury upon a person. A mere threatening or intimidating attitude is not considered unlawful aggression, unless the threat is offensive and menacing, manifestly showing the wrongful intent to cause injury. There must be an actual, sudden, unexpected attack or imminent danger thereof, which puts the defendant’s life in real peril.38 31. The condition of unlawful aggression is a sine qua non; otherwise stated, there can be no self-defense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself.39 In other words in self-defense, unlawful aggression is a primordial element. It presupposes an actual, sudden and unexpected attack or imminent danger on the life and limb of a person – not a mere threatening or intimidating attitude – but most importantly, at the time the defensive action was taken against the aggressor.40 Thus, when there is no peril, there is no unlawful aggression.41 32. A mere threatening or intimidating attitude is not sufficient. Likewise, the exchange of insulting words and invectives between the accused and victim, no matter how objectionable, could not be considered as unlawful aggression, except when coupled with physical assault.42 34

People vs. Gonzales, 357 SCRA 460 (2001) People vs. Feliciano, 724 SCRA 148 (2014) 36 People vs. Galvez, 519 SCRA 529 (2007) 37 People vs. Enfectana, 381 SCRA 359 (2002) 38 Manaban vs. CA, 494 SCRA 503 (2006) 39 People vs. Enfectana, infra note 37. 40 Cano vs. People, 413 SCRA 92 (2003) 41 Cabuslay vs. People, 471 SCRA 241 (2005) 42 People vs. Court of Appeals and Tangan, 352 SCRA 599 (2001) 35

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33. An act of aggression, when its author does not persist in his purpose, or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, is not unlawful aggression warranting self-defense.43 When the unlawful aggression which has begun no longer exists, the one making the defense has no more right to kill or even wound the former aggressor. 44 Aggression, if not continuous, does not constitute aggression warranting self-defense.45 34. Retaliation is different from self-defense. In retaliation, the aggression that was begun by the injured party already ceased to exist when the accused attacked him. In self-defense, the aggression was still existing when the aggressor was injured by the accused.46 35. The second element of self-defense demands that the means employed to neutralize the unlawful aggression are reasonable and necessary. It is settled that reasonable necessity of the means employed does not imply material commensurability between the means of attack and defense. 47 What the law requires is a rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct more than reason, that moves or impels the defense; and the proportionateness thereof does not depend upon the harm done, but upon the imminent danger of such injury.48 36. This third requisite of self-defense is present: (1) when no provocation at all was given to the aggressor; (2) when, even if provocation was given, it was not sufficient; (3) when even if the provocation was sufficient, it was not given by the person defending himself; or (4) when even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression.49 37. Under paragraph 4, Article 11 of the Revised Penal Code, infliction of damage or injury to another so that a greater evil or injury may not befall one’s self may be justified only if it is taken as a last resort and with the least possible prejudice to another. If there is another way to avoid the injury without causing damage or injury to another or, if there is no such other way but the damage to another may be minimized while avoiding an evil or injury to one’s self, then such course should be taken.50 38. For the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor.51 39. The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.52 43

People vs. Geneblazo, 361 SCRA 572 (2001) People vs. Caguing, 347 SCRA 374 (2000) 45 Sanchez vs. People, 510 SCRA 365 (2006) 46 People vs. Vicente, 405 SCRA 40 (2003) 47 People vs. Dagani, 499 SCRA 64 (2006) 48 People vs. Rabanal, 387 SCRA 85 (2002) 49 Urbano vs. People, 576 SCRA 826 (2009) 50 People vs. Punzalan, 687 SCRA 687 (2012) 51 Ty vs. People, 439 SCRA 220 (2004) 52 Yapyuco, et al. vs. Sandiganbayan, 674 SCRA 420 (2012) 44

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40. Under paragraph 6, Article 11 of the RPC, any person who acts in obedience to an order issued by a superior for some lawful purpose does not incur any criminal liability. For this justifying circumstance to apply, the following requisites must be present: (1) an order has been issued by a superior; (2) such order must be for some lawful purpose; and (3) the means used by the subordinate to carry out said order is lawful.53 41. For accident to be properly appreciated as an exempting circumstance, the following requisites must concur: (1) that the accused was performing a lawful act with due care; (2) that the injury is caused by mere accident; and (3) that there was no fault or intent on his part to cause the injury.54 42. A person is exempt from criminal liability if he acts under the impulse of an uncontrollable fear of an equal or greater injury. It is necessary that the compulsion be of such a character as to leave no opportunity to escape or self-defense in equal combat. 55 To avail of this exempting circumstance, the evidence must establish: (1) the existence of an uncontrollable fear; (2) that the fear must be real and imminent; and (3) the fear of an injury is greater than, or at least equal to, that committed. For such defense to prosper, the duress, force, fear or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. 56 The compulsion must be of such a character as to leave no opportunity for the accused to escape.57 43. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of an uncontrollable fear of equal or greater injury, is exempt from criminal liability because he does not act with freedom. The force contemplated must be so formidable as to reduce the actor to a mere instrument who acts not only without will but against his will.58 44. In entrapment, ways and means are resorted to for the purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation on the other hand, instigators practically induce the would-be defendant into the commission of the offense and become coprincipals themselves.59 45. There is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the crime. There is instigation when the accused is induced to commit the crime. The difference in the nature of the two lies in the origin of the criminal intent. In entrapment, the mens rea originates from the mind of the criminal. The idea and the resolve to commit the crime comes from him. In instigation, the law officer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution. 60 The legal effects of entrapment do not exempt the criminal from liability. Instigation does.61

53

Ambil vs. Sandiganbayan, 653 SCRA 576 (2011) People vs. Latosa, 621 SCRA 586 (2010) 55 People vs. Fieldad, G.R. No. 196005, 01 October 2014 56 People vs. Anticamara, 651 SCRA 489 (2011) 57 People vs. Baron, 621 SCRA 646 (2010) 58 People vs. Dequina, 640 SCRA 111 (2011) 59 People vs. Pacis, 384 SCRA 696 (2002) 60 Chang vs. People, 496 SCRA 321 (2006) 61 People vs. Sta. Maria, 519 SCRA 621 (2007) 54

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46. Article 13 paragraph (4) of the Revised Penal Code provides that a person’s criminal liability may be mitigated if there was a sufficient provocation or threat on the part of the offended party which immediately preceded the crime. Before the same can be appreciated, the following elements must concur: (1) That the provocation or threat must be sufficient or proportionate to the crime committed and adequate to arouse one to its commission; (2) That the provocation or threat must originate from the offended party; and (3) That the provocation must be immediate to the commission of the crime by the person provoked.62 47. For passion or obfuscation to be considered, it must be shown that (1) an unlawful act sufficient to produce passion and obfuscation was committed by the intended victim; (2) that the crime was committed within a reasonable length of time from the commission of the unlawful act that produced the obfuscation in the accused’s mind; and that (3) the passion and obfuscation arose from lawful sentiments and not from a spirit of lawlessness or revenge. 63 To be entitled to this mitigating circumstance, the following elements must be present: (1) There should be an act both unlawful and sufficient to produce such condition of mind; (2) the act that produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.64 There is no uniform rule on what constitutes "a considerable length of time." The provocation and the commission of the crime should not be so far apart that a reasonable length of time has passed during which the accused would have calmed down and be able to reflect on the consequences of his or her actions. What is important is that the accused has not yet "recovered his normal equanimity" when he committed the crime. 65 48. For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or to the latter’s agent, and 3) the surrender is voluntary. To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing them. 66 If none of these two (2) reasons impelled the accused to surrender, because his surrender was obviously motivated more by an intention to insure his safety, his arrest being inevitable, the surrender is not spontaneous.67 49. The mere filing of an information and/or the issuance of a warrant of arrest will not automatically make the surrender involuntary. In People v. Oco, the Court appreciated the mitigating circumstance because immediately upon learning that a warrant for his arrest was issued, and without the same having been served on him, the accused surrendered to the police. Thus, it is clear that notwithstanding the pendency of a warrant for his arrest, the accused may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual facts surrounding the very act of giving himself up.68 50. To be entitled to such mitigating circumstance, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. The 62

People vs. Beltran, 503 SCRA 715 (2006) People vs. Gonzalez, 359 SCRA 220 (2001) 64 People vs. Cuasay, 569 SCRA 870 (2008) 65 People vs. Oloverio, G.R. No. 211159, 18 March 2015 66 People vs. Casta, 565 SCRA 341 (2008) 67 People vs. Basite, 412 SCRA 558 (2003 68 De Vera vs. De Vera, 584 SCRA 506 (2009) 63

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following requirements must therefore concur: (1) the accused spontaneously confessed his guilt; (2) the confession of guilt was made in open court, that is, before a competent court trying the case; and (3) the confession of guilt was made prior to the presentation of evidence for the prosecution.69 51. While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code because to be voluntary, the plea of guilty must be to the offense charged.70 52. Although restitution is akin to voluntary surrender, as provided for in paragraph 7 of Article 13, in relation to paragraph 10 of the same Article of the Revised Penal Code, restitution should be treated as a separate mitigating circumstance in favor of the accused when the two circumstances are present in a case, which is similar to instances where voluntary surrender and plea of guilty are both present even though the two mitigating circumstances are treated in the same paragraph 7, Article 13 of the Revised Penal Code. Considering that restitution is also tantamount to an admission of guilt on the part of the accused, it was proper for the Sandiganbayan to have considered it as a separate mitigating circumstance in favor of petitioner.71 53. To appreciate abuse of public position as an aggravating circumstance, the public officer must use the influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The essence of the matter is presented in the inquiry “Did the accused abuse his office to commit the crime?”72 54. The mere fact that the victim is a woman is not per se an aggravating circumstance. There was no finding that the evidence proved that the accused in fact deliberately intended to offend or insult the sex of the victim, or showed manifest disrespect to the offended woman or displayed some specific insult or disrespect to her womanhood. There was no proof of specific fact or circumstance, other than the victim is a woman, showing insult or disregard of sex in order that it may be considered as aggravating circumstance.73 55. Disregard of age, sex or rank is not aggravating in robbery with homicide, which is primarily a crime against property, as the homicide is regarded as merely incidental to the robbery.74 56. For the circumstance of dwelling to be considered, it is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant might have devised means to perpetrate the assault from the outside.75 Also, the building where a crime is occupied against the occupant must entirely be for dwelling purposes.76

69

People vs. Montinola, 360 SCRA 631 (2001) People vs. Dawaton, 389 SCRA 277 (2002) 71 Legrama vs. Sandiganbayan, 672 SCRA 270 (2012) 72 People vs. Villamor, 373 SCRA 254 (2002) 73 Mari vs. Court of Appeals, 332 SCRA 475 (2000) 74 People vs. Montinola, 360 SCRA 631 (2001) 75 People vs. Perreras, 362 SCRA 202 (2001) 76 People vs. Taño, 331 SCRA 448 (2000) 70

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57. When a crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance. Provocation in the aggravating circumstance of dwelling must be: (a) given by the offended party, (b) sufficient, and (c) immediate to the commission of the crime. 77 58. For abuse of confidence as an aggravating circumstance to exist, it is essential to show that the confidence between the parties must be immediate and personal such as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party’s belief that the former would not abuse said confidence.78 59. By and of itself, nighttime is not an aggravating circumstance, however, it becomes aggravating only when: (1) it is especially sought by the offender; or (2) it is taken advantage of by him; or (3) it facilitates the commission of the crime by ensuring the offender’s immunity from capture.79 60. In "aid of armed men," the men act as accomplices only. They must not be acting in the commission of the crime under the same purpose as the principal accused, otherwise they are to be regarded as co-principals or co-conspirators.80 61. For evident premeditation to be appreciated, the following requisites must be shown: (1) the time when the accused determined to commit the crime; (2) an act manifestly indicating that the accused has clung to his determination; and (3) a sufficient lapse of time between such a determination and the actual execution to allow the accused time to reflect upon the consequences of his act 81 and to allow his conscience to overcome the resolution of the will if he desired to hearken to its warning.82 62. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. However, where no such evidence exists, and where conspiracy is merely inferred from the acts of the accused in the perpetration of the crime, the above requisites of evident premeditation need to be established.83 63. Jurisprudence is to the effect that evident premeditation may be considered as present, even if a person other than the intended victim was killed, if it is shown that the conspirators were determined to kill not only the intended victim but also anyone who may help him put a violent resistance. 64. In criminal cases, disguise is an aggravating circumstance because, like nighttime, it allows the accused to remain anonymous and unidentifiable as he carries out his crimes. The introduction of the prosecution of testimonial evidence that tends to prove that the accused were masked but the masks fell off does not prevent them from including disguise as an aggravating circumstance. What is important in alleging disguise as an aggravating circumstance is that there was 77

People vs. Rios, 333 SCRA 823 (2000) People vs. Arrojado, 350 SCRA 679 (2001) 79 People vs. Silva, 387 SCRA 77 (2002) 80 People vs. Enojas, 718 SCRA 313 (2014) 81 People vs. Dimacuha, G.R. No. 191060, 02 February 2015 82 People vs. Goleas, 561 SCRA 380 (2008) 83 People vs. Campomanes, 376 SCRA 307 (2002 78

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a concealment of identity by the accused. The inclusion of disguise in the information was, therefore, enough to sufficiently apprise the accused that in the commission of the offense they were being charged with, they tried to conceal their identity.84 65. To appreciate abuse of superior strength, there must be a deliberate intent on the part of the malefactors to take advantage of their greater number. They must have notoriously selected and made use of superior strength in the commission of the crime. To take advantage of superior strength is to use excessive force that is out of proportion to the means for self-defense available to the person attacked; thus, the prosecution must clearly show the offenders’ deliberate intent to do so.85 66. For treachery to be considered, two (2) elements must concur: (a) the employment of means of execution that give the person attacked no opportunity to defend himself or retaliate; and, (b) the means of execution were deliberately or consciously adopted.86 Further, it must always be alleged in the information and proved in trial in order that it may be validly considered.87 67. The essence of qualifying circumstance is the suddenness, surprise and the lack of expectation that the attack will take place, thus, depriving the victim of any real opportunity for selfdefense while ensuring the commission of the crime without risk to the aggressor. Likewise, even when the victim was forewarned of the danger to his person, treachery may still be appreciated since what is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate.88 68. In treachery, the mode of attack must be consciously adopted. This means that the accused must make some preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. The mode of attack, therefore, must be planned by the offender, and must not spring from the unexpected turn of events. The meeting between appellant’s group and the victim was merely by chance and it could not be said that the mode of attack could have been planned. A killing done at the spur of the moment is not treacherous.89 69. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewarned of reprisal. 90 Where a killing was preceded by an argument or quarrel, the qualifying circumstance of treachery can no longer be appreciated. The previous fight would have placed the victim on guard for any reprisal by the assailants.91 Chance encounters, impulse killing or crimes committed at the spur of the moment, or those that were preceded by heated altercations are generally not attended by treachery, for lack of opportunity of the accused deliberately to employ a treacherous mode of attack.92

84

People vs. Feliciano, 724 SCRA 148 (2014) People vs. Amodia, 571 SCRA 444 (2008) 86 People vs. Aviles, 541 SCRA 265 (2007) 87 People vs. Beltran, 503 SCRA 715 (2006) 88 People vs. Villacorta, 657 SCRA 270 (2011) 89 People vs. Calago, 381 SCRA 448 (2002) 90 People vs. Gonzalez, 359 SCRA 220 (2001 91 People vs. Mendez, 387 SCRA 294 (2002) 92 People vs. Caratao, 403 SCRA 482 (2003) 85

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70. Treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. In the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of “homicide” and not to the constituent crime of “robbery” of the special complex crime of robbery with homicide.93 71. For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim’s moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused.94 72. For cruelty to exist, there must be proof showing that the accused delighted in making their victim suffer slowly and gradually, causing him unnecessary physical and moral pain in the consummation of the criminal act.95 73. The third paragraph of Article 15 of the Revised Penal Code provides that the intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony; but when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.96 74. Two or more persons taking part in the commission of a crime are considered principals by direct participation if the following requisites are present: 1. they participated in the criminal resolution and 2. they carried out their plan and personally took part in its execution by acts which directly tended to the same end. 97 75. Even if two or more offenders do not conspire to commit homicide or murder, they may be held criminally liable as principals by direct participation if they perform overt acts which mediately or immediately cause or accelerate the death of the victim, applying Article 4, paragraph 1 of the Revised Penal Code.98 76. The conviction of a person as a principal by inducement requires (1) that the inducement be made with the intention of procuring the commission of the crime; and (2) that such inducement be the determining cause of the commission by the material executor. Inducement may be by acts of command, advice or through influence or agreement for consideration. The words of advice or the influence must have actually moved the hands of the principal by direct participation.99

93

People vs. Escote, 400 SCRA 603 (2003); People vs. Ancheta, 431 SCRA 42 (2004) People vs. Cachola, 420 SCRA 520 (2004) 95 People vs. Catian, 374 SCRA 514 (2002) 96 People vs. Rebucan, 654 SCRA 726 (2011) 97 People vs. Vasquez, 430 SCRA 52 (2004) 98 People vs. Cabareño, 349 SCRA 297 (2001) 99 People vs. Batin, 539 SCRA 272 (2008) 94

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77. Two elements must concur before a person becomes liable as an accomplice: (1) community of design, which means that the accomplice knows of, and concurs with, the criminal design of the principal by direct participation; and (2) the performance by the accomplice of previous or simultaneous acts that are not indispensable to the commission of the crime. Mere commission of an act, which aids the perpetrator, is not enough.100 78. Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.101 79. To convict an accused as an accessory, the following elements must be proven: (1) knowledge of the commission of the crime and (2) subsequent participation in it by any of the three above-cited modes. 80. Under paragraph 3 of Article 19 of the Revised Penal Code, there are two (2) classes of accessories, one of which is a public officer who harbors, conceals or assists in the escape of the principal. Such public officer must have acted with abuse of his public functions, and the crime committed by the principal is any crime, provided it is not a light felony.102 81. The penalty of life imprisonment is not the same as reclusion perpetua. They are distinct in nature, in duration and in accessory penalties. First, “life imprisonment” is imposed for serious offenses penalized by special laws, while reclusion perpetua is prescribed under the Revised Penal Code. Second, “life imprisonment” does not carry with it any accessory penalty. Reclusion perpetua has accessory penalties. Third, “life imprisonment” does not appear to have any definite extent or duration, while reclusion perpetua entails imprisonment for at least thirty (30) years after which the convict becomes eligible for pardon, although the maximum period thereof shall in no case exceed forty (40) years.103 82. In prescribing the penalty of reclusion perpetua, its duration in years, in fine, need not be specified.104 Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. (Art. 63, Revised Penal Code) Reclusion perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code).105

100

Abarquez vs. People, 479 SCRA 225 (2006) People vs. Salvador, 695 SCRA 660 (2013) 102 People vs. Antonio, 335 SCRA 646 (2000) 103 People vs. Latupan, 360 SCRA 60 (2001) 104 People vs. Zacarias, 375 SCRA 278 (2002) 105 People vs. Ramirez, 356 SCRA 595 (2001) 101

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83. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was impelled by a “single criminal impulse” which shows his lesser degree of perversity.106 84. In Delos Santos, the Supreme Court ruled that “the slight physical injuries caused by the accused to the ten other victims through reckless imprudence, would, had they been intentional, have constituted light felonies. Being light felonies, which are not covered by Article 48, they should be treated and punished as separate offenses. Separate informations should have, therefore, been filed.” Pursuant to Ivler vs. Hon. Modesto-San Pedro, et al.107 however, grave and/or less grave and light felonies resulting from reckless imprudence may no longer be treated and punished as separate offenses. 85. There can only be one complex crime of forcible abduction with rape. The crime of forcible abduction was only necessary for the first rape. Thus, the subsequent acts of rape can no longer be considered as separate complex crimes of forcible abduction with rape. They should be detached from and considered independently of the forcible abduction. Therefore, the accused may be convicted of one complex crime of forcible abduction with rape and separate acts of rape.108 86. As there is no complex crime of estafa through falsification of private document, it is important to ascertain whether the offender is to be charged with falsification of a private document or with estafa. If the falsification of a private document is committed as a means to commit estafa, the proper crime to be charged is falsification. If the estafa can be committed without the necessity of falsifying a document, the proper crime to be charged is estafa.109 87. Where the law provides a single penalty for two or more component offenses, the resulting crime is called a special complex crime. Some of the special complex crimes under the Revised Penal Code are (1) robbery with homicide, (2) robbery with rape, (3) kidnapping with serious physical injuries, (4) kidnapping with murder or homicide, and (5) rape with homicide.110 88. There are distinctions between a composite crime, on the one hand, and a complex or compound crime under Article 48, on the other hand. In a composite crime, the composition of the offenses is fixed by law; in a complex or compound crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one offense being the necessary means to commit the other. For a composite crime, the penalty for the specified combination of crimes is specific; for a complex or compound crime, the penalty is that corresponding to the most serious offense, to be imposed in the maximum period. A light felony that accompanies a composite crime is absorbed; a light felony that accompanies the commission of a complex or compound crime may be the subject of a separate information.111 89. Applying this provision, the Court in People v. Bayotas made the following pronouncements: 106

People vs. Barde, 631 SCRA 187 (2010) 635 SCRA 191 (2010) 108 People vs. Garcia, 378 SCRA 266 (2002) 109 Batulanon vs. People, 502 SCRA 35 (2006) 110 People vs. Montamir, 647 SCRA 170 (2011) 111 People vs. Villaflores, 669 SCRA 365 (2012) 107

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“1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, ‘the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore.’” “2. Corollarily, the claim for civil liability survives notwithstanding the death of (the) accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a) b) c) d) e)

Law Contracts Quasi-contracts xxx Quasi-delicts

“3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above. “4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with the provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription.”112 90. Under Article 91 of the Revised Penal Code, the period of prescription shall “commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, xxx.” In People v. Reyes, it was held that the registration in public registry is a notice to the whole world. The record is constructive notice of its contents as well as all interests, legal and equitable, included therein. All persons are charged with knowledge of what it contains.113 91. The prevailing rule is that irrespective of whether the offense charged is punishable by the Revised Penal Code or by a special law, it is the filing of the complaint or information in the office of the public prosecutor for purposes of the preliminary investigation that interrupts the period of prescription.114 92. Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a 112

Datu vs. People, 637 SCRA 754 (2010 Recebido vs. People, 346 SCRA 881 (2000) 114 Disini vs. Sandiganbayan, 705 SCRA 459 (2013) 113

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fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at the time, from the discovery thereof.115 93. The prescription of penalties found in Article 93 of the Revised Penal Code, applies only to those who are convicted by final judgment and are serving sentence which consists in deprivation of liberty. The period for prescription of penalties begins only when the convict evades service of sentence by escaping during the term of his sentence.116 94. Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence. “Escape” in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom.117 95. Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does ‘not work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,’ and it ‘in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence’ (Article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense.118 96. The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code. This liability is enforceable in the same criminal proceeding where the award is made. However, before execution against an employer ensues, there must be a determination, in a hearing set for the purpose of 1) the existence of an employer-employee relationship; 2) that the employer is engaged in some kind of industry; 3) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties not necessarily any offense he commits "while" in the discharge of such duties; and 4) that said employee is insolvent.119 97. The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear.120

115

Panaguiton, Jr. vs. DOJ, 571 SCRA 549 (2008) Pangan vs. Gatbalite, 449 SCRA 144 (2005) 117 Del Castillo vs. Torrecampo and People, 394 SCRA 221 (2002) 118 People vs. Patriarca, 341 SCRA 464 (2000) 119 Basilio vs. Court of Appeals, 328 SCRA 341 (2000) 120 Astorga vs. People, 437 SCRA 152 (2004) 116

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98. One can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or furtherance of rebellion. Corollarily, offenses which were not committed in furtherance of the rebellion, but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts.121 99. Possession of false treasury or bank notes alone, without anything more, is not a criminal offense. For it to constitute an offense under Article 168 of the RPC, the possession must be with intent to use said false treasury or bank notes.122 100. A public officer or employee as an offender in Falsification under Article 171 of the RPC “takes advantage of his official position” in falsifying a document when (1) he has the duty to make or to prepare or otherwise intervene in the preparation of the document; or (2) he has the official custody of the document which he falsifies.123 101. The element of gain or benefit on the part of the offender or prejudice to a third party as a result of the falsification, or tarnishing of a document’s integrity, is not essential to maintain a charge for falsification of public documents. What is punished in falsification of public document is principally the undermining of the public faith and the destruction of truth as solemnly proclaimed therein. In this particular crime, therefore, the controlling consideration lies in the public character of a document; and the existence of any prejudice caused to third persons or, at least, the intent to cause such damage becomes immaterial.124 102. Under Article 171 (4) of the Revised Penal Code, any public officer or employee who, taking advantage of his official position, makes untruthful statements in a narration of facts, commits the crime of falsification of public documents. This kind of falsification requires the concurrence of the following requisites: (a) the offender makes in a document untruthful statements in a narration of facts; (b) he has a legal obligation to disclose the truth of the facts narrated by him; and (c) the facts narrated by the offender are absolutely false.125 103. The elements of "use of falsified documents," which is a crime under Art. 172 of the Revised Penal Code, are: (a) That the offender knew that a document was falsified by another person; (b) That the false document is embraced in Art. 171 or in any of subdivisions 1 or 2 of Art. 172; (c) That he used such document (not in judicial proceedings); and, (d) That the use of the false document caused damage to another or at least it was used with intent to cause such damage.126 104. Perjury cannot be willful where the oath is according to belief or conviction as to its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a statement is an adequate defense. A false statement which is obviously the result of an honest mistake is not perjury.127

121

People vs. Oliva, 341 SCRA 78 (2001) Clemente vs. People, 652 SCRA 382 (2011) 123 Adaza vs. Sandiganbayan, 464 SCRA 460 (2005) 124 Goma vs. Court of Appeals, 576 SCRA 1 (2009) 125 Santos vs. Sandiganbayan, 347 SCRA 386 (2000) 126 Lumancas vs. Intas, 347 SCRA 22 (2000) 127 Villanueva vs. Secretary of Justice, 475 SCRA 495 (2005) 122

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105. A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement.128 106. The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer.129 Thus, the acts constituting direct bribery are: (1) by agreeing to perform, or by performing, in consideration of any offer, promise, gift or present an act constituting a crime, in connection with the performance of his official duties; (2) by accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; or (3) by agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of any gift or promise.130 107. Malversation consists not only in misappropriation or converting public funds or property to one’s personal use but also by knowingly allowing others to make use of or misappropriate the same. The felony may thus be committed by dolo or by culpa. The crime is consummated and the appropriate penalty is imposed regardless of whether the mode of commission is with intent or due to negligence.131 108. An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. To be liable for malversation, an accountable officer need not be a bonded official. 132 An accountable officer under Article 217 is a public officer who, by reason of his office is accountable for public funds or property.133 The name or relative importance of the office or employment is not the controlling factor. The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the provincial or municipal government may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same.134 109. A public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property.135 110. Under Article 217 of the Code, the failure of the public officer to have duly forthcoming such public funds or property, upon demand by a duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. 136 An accountable officer may thus be 128

Ibid.. Balderama vs. People, 542 SCRA 423 2008 130 Garcia vs. Sandiganbayan, 507 SCRA 258 (2006) 131 Sarigumba vs. Sandiganbayan, 451 SCRA 533 (2005) 132 Quiñon vs. People, 389 SCRA 412 (2002) 133 Arriola vs. Sandiganbayan, 494 SCRA 344 (2006) 134 Barriga vs. Sandiganbayan, 457 SCRA 301 (2005) 135 Ibid. 136 Quiñon vs. People, supra note 132. 129

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convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in the officer’s account which he has not been able to explain satisfactorily. All that is essential is proof that the accountable officer has received public funds but that when demand therefor is made, he is unable to satisfactorily account for the same. 137 The presumption of conversion incarnated in Article 217, paragraph (4) of the Revised Penal Code is — by its very nature — rebuttable. To put it differently, the presumption under the law is not conclusive but disputable by satisfactory evidence to the effect that the accused did not utilize the public funds or property for his personal use, gain or benefit.138 111. Case law has it that the individuals’ taking of funds is completed and is consummated even if the severance of the funds from the possession was only for an instant. Restitution of the said amount after the consummation of the crimes is not a ground for acquittal of the said crimes.139 112. The essential elements of the crime of technical malversation defined in Article 220 of the Revised Penal Code are: 1. That the offender is a public officer; 2. That there is public fund or property under his administration; 3. That such public fund or property has been appropriated by law or ordinance; 4. That he applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance.140 113. For technical malversation to exist, it is necessary that public funds or properties had been diverted to any public use other than that provided for by law or ordinance. To constitute the crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated by law or ordinance.141 114. When the killing is perpetrated with treachery and by means of explosives, the latter shall be considered as a qualifying circumstance. Not only does jurisprudence support this view but also, since the use of explosives is the principal mode of attack, reason dictates that this attendant circumstance should qualify the offense instead of treachery which will then be relegated merely as a generic aggravating circumstance.142 115. The mere decapitation of the victim’s head constitutes outraging or scoffing at the corpse of the victim, thus qualifying the killing to murder. In this case, accused-appellant not only beheaded Elsa. He further cut up her body like pieces of meat. Then, he strewed the dismembered parts of her body in a deserted road in the countryside, leaving them to rot on the ground.143 116. Corpus delicti consists of two things: first, the criminal act and second, defendant's agency in the commission of the act. In homicide (by dolo) as well as in murder cases, the prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or 137

Sarigumba vs. Sandiganbayan, 451 SCRA 533 (2005) Agullo vs. Sandiganbayan, 361 SCRA 556 (2001) 139 Pondevida vs. Sandiganbayan, 467 SCRA 219 (2005) 140 Abdulla vs. People, 455 SCRA 78 (2005) 141 Tetangco vs. Ombudsman, 479 SCRA 249 (2006) 142 People vs. Comadre, 431 SCRA 366 (2004) 143 People vs. Whisenhunt, 386 SCRA 586 (2001) 138

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suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. In other words, proof of homicide or murder requires incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed. In such case, even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof. Evidence of intent to kill is crucial only to a finding of frustrated and attempted homicide, as the same is an essential element of these offenses, and thus must be proved with the same degree of certainty as that required of the other elements of said offenses.144 117. A tumultuous affray takes place when a quarrel occurs between several persons who engage in a confused and tumultuous manner, in the course of which a person is killed or wounded and the author thereof cannot be ascertained. The quarrel in the instant case is between a distinct group of individuals, one of whom was sufficiently identified as the principal author of the killing, as against a common, particular victim. It is not, as the defense suggests, a "tumultuous affray" within the meaning of Art. 251 of The Revised Penal Code, that is, a melee or free-for-all, where several persons not comprising definite or identifiable groups attack one another in a confused and disorganized manner, resulting in the death or injury of one or some of them.145 118. Absent an intent to kill in firing the gun towards the victim, petitioner should be held liable for the crime of illegal discharge of firearm under Article 254 of the Revised Penal Code. The elements of this crime are: (1) that the offender discharges a firearm against or at another person; and (2) that the offender has no intention to kill that person. Though the information charged the petitioner with murder, he could be validly convicted of illegal discharge of firearm, an offense which is necessarily included in the crime of unlawful killing of a person.146 119. As distinguished from infanticide, the elements of unintentional abortion are as follows: (1) that there is a pregnant woman; (2) that violence is used upon such pregnant woman without intending an abortion; (3) that the violence is intentionally exerted; and (4) that as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom. In the crime of infanticide, it is necessary that the child be born alive and be viable, that is, capable of independent existence.147 120. The elements of mutilation under the first paragraph of Art. 262 of the Revised Penal Code are the following: 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction.148 121. When there is no evidence of actual incapacity of the offended party for labor or of the required medical attendance, the offense is only slight physical injuries.149 144

Yapyuco, et al. vs. Sandiganbayan, 674 SCRA 420 (2012) People vs. Unlagada, 389 SCRA 224 (2002) 146 Dado vs. People, 392 SCRA 46 (2002) 147 People vs. Paycana, 551 SCRA 657 (2008) 148 Aguirre vs. Secretary of Justice, 547 SCRA 431 (2008) 149 Li vs. People, 427 SCRA 217 (2004) 145

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122. In People v. Campuhan, it was ruled that rape is consummated “by the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis.” There need not be full and complete penetration of the victim’s vagina for rape to be consummated. 150 Penile invasion necessarily entails contact with the labia. Even the briefest of contacts, without laceration of the hymen, is deemed to be rape.151 123. Sexual intercourse with a girl below 12 years old is statutory rape. The two elements of statutory rape are: (1) that the accused had carnal knowledge of a woman; and (2) that the woman was below 12 years of age. Sexual congress with a girl under 12 years old is always rape.152 In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant.153 124. In cases of multiple rape, each of the defendants is responsible not only for the rape committed by him but also for those committed by the others. Accused-appellant, therefore, is responsible not only for the rape committed personally by him but also for the two other counts of rape committed by his co-accused.154 125. Rape can now be committed either through sexual intercourse or through sexual assault. In rape under paragraph 1 or rape through sexual intercourse, carnal knowledge is the crucial element which must be proven beyond reasonable doubt. xxx. On the other hand, rape under paragraph 2 of the above-quoted article is commonly known as rape by sexual assault. The perpetrator commits this kind of rape by inserting his penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. It is also called "instrument or object rape", also "gender-free rape", or the narrower "homosexual rape."155 126. follows: (1) (2) (3) (4)

In People v. Abulon, this Court differentiated the two modes of committing rape as In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman; In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman; In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and The penalty for rape under the first mode is higher than that under the second.156

150

People vs. Jalosjos, 369 SCRA 179 (2001) People vs. Teodoro, 691 SCRA 324 (2013)

151

152

People vs. Lolos, 627 SCRA 509 2010 People vs. Jalosjos, supra note 150. 154 People vs. Plurad, 393 SCRA 306 (2002) 155 People vs. Gaduyon, 709 SCRA 129 (2013) 156 People vs. Pareja, 714 SCRA 131 (2014) 153

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127. Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the realm of marriage, if not consensual, is rape.157 128. A positive DNA match is unnecessary when the totality of the evidence presented before the court points to no other possible conclusion, i.e., appellant raped the private offended party. A positive DNA match may strengthen the evidence for the prosecution, but an inconclusive DNA test result may not be sufficient to exculpate the accused, particularly when there is sufficient evidence proving his guilt. Notably, neither a positive DNA match of the semen nor the presence of spermatozoa is essential in finding that rape was committed. The important consideration in rape cases is not the emission of semen but the penetration of the female genitalia by the male organ.158 129. In People vs. Lining,159 accused-appellant was convicted only for the crime of rape, instead of the complex crime of forcible abduction with rape since the main objective of the accused when the victim was taken to the house of another was to rape her. Hence, forcible abduction is absorbed in the crime of rape. 130. In the special complex crime of rape with homicide, the term "homicide" is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on occasion of the rape. Hence, even if any or all of the circumstances (treachery, abuse of superior strength and evident premeditation) alleged in the information have been duly established by the prosecution, the same would not qualify the killing to murder and the crime committed by appellant is still rape with homicide. As in the case of robbery with homicide, the aggravating circumstance of treachery is to be considered as a generic aggravating circumstance only.160 131. The crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code has the following elements: (1)

the offender is a private individual; not either of the parents of the victim or a public officer who has a duty under the law to detain a person; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal and (4) in the commission of the offense, any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made or (d) the person kidnapped or detained is a minor, female or a public official.161 132. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proved by words or overt acts before, during or after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.162

157

People vs. Jumawan, 722 SCRA 108 (2014) People vs. Cabigquez, 631 SCRA 652 (2010) 159 384 SCRA 427 (2002) 160 People vs. Laog, 658 SCRA 654 (2011) 161 People vs. Mamantak, 560 SCRA 298 (2008) 162 People vs. Martinez, 425 SCRA 528 (2004) 158

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133. If the kidnapping was done for the purpose of extorting ransom, the fourth element is no longer necessary.163 Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.164 134. The essence of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code is the actual deprivation of the victim’s liberty coupled with the intent of the accused to effect it. 165 It includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time. 166 Equally significant is the fact that, in kidnapping, the victim’s lack of consent is also a fundamental element. The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim. However, where the victim is a minor, lack of consent is presumed.167 135. Even a public officer can commit kidnapping within the context of the Article 267 of the Revised Penal Code. In People vs. Trestiza,168 the Supreme Court, citing People vs. Alipio, ruled: "The fact alone that appellant Pillneta is an organic member of the NARCOM and appellant Sandigan a member of the PNP would not exempt them from the criminal liability of kidnapping. It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official functions nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity that they have acted in concert with their co-appellant Santiano and Chanco." 136. The deprivation required by Article 267 of the Revised Penal Code means not only the imprisonment of a person, but also the deprivation of his liberty in whatever form and for whatever length of time. It includes a situation where the victim cannot go out of the place of confinement or detention or is restricted or impeded in his liberty to move.169 137. 1993,170 is:

The applicable rule when the abduction and killing happened before 31 December

a) Where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as kidnapping of the victim was a necessary means of committing the murder. b) Where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed.171

163

People vs. Silongan, 401 SCRA 459 (2003) People vs. Salvador, 695 SCRA 660 (2013) 165 People vs. Muit, 568 SCRA 251 (2008) 166 People vs. Mamantak, supra note 161. 167 People vs. Siongco, 623 SCRA 501 (2010) 168 660 SCRA 407 (2011) 169 People vs. Siongco, supra note 167. 170 Date of effectivity of R.A. No. 7659 171 People vs. Solangon, 537 SCRA 746 (2007) 164

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After said date though, offenders in either case may now be held liable for the special complex crime of kidnapping with murder or homicide in view of the amendment of Article 267 of the Revised Penal Code by R.A. No. 7659 by adding the following provision thereto: “When the victim is killed or dies as a consequence of the detention, or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.” 138. No matter how many rapes had been committed in the special complex crime of kidnapping with rape, the resultant crime is only one kidnapping with rape. This is because these composite acts are regarded as a single indivisible offense as in fact R.A. No. 7659 punishes these acts with only one single penalty. However, for the crime of kidnapping with rape, the offender should not have taken the victim with lewd designs, otherwise, it would be complex crime of forcible abduction with rape. In People v. Garcia, we explained that if the taking was by forcible abduction and the woman was raped several times, the crimes committed is one complex crime of forcible abduction with rape, in as much as the forcible abduction was only necessary for the first rape; and each of the other counts of rape constitutes distinct and separate count of rape.172 139. Kidnapping and failure to return a minor under Article 270 of the Revised Penal Code has two essential elements, namely: (1) the offender is entrusted with the custody of a minor person; and (2) the offender deliberately fails to restore the said minor to his parents or guardians. What is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. The word “deliberate” as used in Article 270 must imply something more than mere negligence - it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong.173 140.

Article 287 of the Revised Penal Code reads:

“Art. 287. Light coercions. – Any person, who by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos. “Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 to 200 pesos, or both.” The second paragraph of the Article is broad enough to include any human conduct which, although not productive of some physical or material harm, could unjustifiably annoy or vex an innocent person. Compulsion or restraint need not be alleged in the Information, for the crime of unjust vexation may exist without compulsion or restraint. However, in unjust vexation, being a felony by dolo, malice is an inherent element of the crime. Good faith is a good defense to a charge for unjust vexation because good faith negates malice. The paramount question to be considered is whether the offender’s act caused annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. The main purpose of the law penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of law, not of men. It is unlawful for any person to take into his own hands the administration of justice.174 172

People vs. Mirandilla, 654 SCRA 761 (2011) People vs. Marquez, 648 SCRA 694 (2011) 174 Maderazo vs. People, 503 SCRA 234 (2006) 173

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141. In robbery, the term “gain” is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owner’s consent constitutes gain.175 142. In robbery by the taking of property through intimidation or violence, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. Article 293 of the Revised Penal Code employs the phrase “belonging to another” and this has been interpreted to merely require that the property taken does not belong to the offender. Actual possession of the property by the person dispossessed thereof suffices.176 143. In robbery with homicide, the accused must be shown to have the principal purpose of committing robbery, the homicide being committed either by reason of or on occasion of the robbery. The intent to rob must precede the taking of human life. So long as the intention of the felons was to rob, the killing may occur before, during or after the robbery. The original design must have been robbery, and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate the robbery. The taking of the property should not be merely an afterthought which arose subsequently to the killing.177 144. A homicide is considered as having been committed on the occasion or by reason of the robbery when the motive of the offender in killing the victim is to deprive the latter of his property, to eliminate an obstacle to the crime, to protect his possession of the loot, to eliminate witnesses, to prevent his being apprehended or to insure his escape from the scene of the crime, 178 or to prevent discovery of the commission of the robbery.179 Essential for conviction of robbery with homicide is proof of a direct relation, an intimate connection between the robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes are committed at the same time. As long as there is a nexus between the robbery and the homicide, the latter crime may be committed in a place other than the situs of the robbery.180 145. The word “homicide” (in robbery with homicide) is used in its generic sense. Homicide, thus, includes murder, parricide, and infanticide.181 The term "homicide", embraces not only the act which results in death but also all other acts producing anything short of death. Neither is the nature of the offense altered by the number of killings in connection with the robbery. 182 Stated differently, the homicides or murders and physical injuries, irrespective of their numbers, committed on the occasion or by reason of the robbery are merged in the composite crime of robbery with homicide.183 146. Whenever homicide is committed as a consequence or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals in the special complex crime of robbery with homicide although they did not take part in the homicide, unless it is clearly shown that they endeavored to prevent the homicide. 184 If a robber tries to prevent the 175

De Guzman vs. People, 569 SCRA 452 (2008) People vs. Reyes, 399 SCRA 528 (2003) 177 People vs. Lara, 505 SCRA 137 (2006) 178 People vs. Cachuela, 698 SCRA 161 (2013) 179 People vs. Jabiniao, 553 SCRA 769 (2008) 180 People vs. Ebet, 634 SCRA 689 (2010) 181 Ibid. 182 People vs. Zuela, 323 SCRA 589 (2000) 183 People vs. Dinamling, 379 SCRA 107 (2002) 184 People vs. FO1 Dela Cruz, 575 SCRA 412 (2008) 176

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commission of homicide after the commission of the robbery, he is guilty only of robbery and not of robbery with homicide.185 147. When the special complex crime of robbery with homicide is accompanied by another offense like rape or intentional mutilation, such additional offense is treated as an aggravating circumstance which would result in the imposition of the maximum penalty of death.186 148. When the killing is committed by reason or on the occasion of the robbery, the qualifying circumstances attendant to the killing would be considered as generic aggravating circumstances.187 149. In the special complex crime of robbery with rape, the true intent of the accused must first be determined, because their intent determines the offense they committed. This felony contemplates a situation where the original intent of the accused was to take, with intent to gain, personal property belonging to another; and rape is committed on the occasion thereof or as an accompanying crime. In other words, the offenders had an intent to take personal property belonging to another, and such intent preceded the rape.188 150. If the original plan was to commit rape, but the accused after committing the rape also committed robbery when the opportunity presented itself, the robbery should be viewed as a separate and distinct crime.189 151. Once conspiracy is established between two accused in the commission of the crime of robbery, they would be both equally culpable for the rape committed by one of them on the occasion of the robbery, unless any of them proves that he endeavored to prevent the other from committing the rape. The rule in this jurisdiction is that whenever a rape is committed as a consequence, or on the occasion of a robbery, all those who took part therein are liable as principals of the crime of robbery with rape, although not all of them took part in the rape.190 152. Art. 294, par. 1 of the Revised Penal Code covers cases of multiple rapes. This is primarily due to the fact that the juridical concept of this crime does not limit the consummation of rape against one single victim or to one single act, making other rapes in excess of that number as separate, independent offense or offenses. All the rapes are merged in the composite, integrated whole that is robbery with rape, so long as the rapes accompanied the robbery. It does not matter too whether the rape occurred before, during, or after the robbery.191 153. In People v. Regala, it was held that “there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the same Code regarding mitigating circumstances where there is specific paragraph (paragraph 10) providing for analogous circumstances.”192 185

People vs. Ebet, supra note 180. People vs. Fabon, 328 SCRA 302 (2000) 187 People vs. Montinola, 360 SCRA 631 (2001) 188 People vs. Domingo, 383 SCRA 43 (2002) 189 People vs. Moreno, 374 SCRA 667 (2002) 190 People vs. Verceles, 388 SCRA 515 (2002) 191 People vs. Seguis, 349 SCRA 547 (2001) 192 People vs. Gano, 353 SCRA 126 (2001) 186

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154. Any property which is not included in the enumeration of real properties under the Civil Code and capable of appropriation can be the subject of theft under the Revised Penal Code. The only requirement for a personal property to be the object of theft under the penal code is that it be capable of appropriation. It need not be capable of “asportation,” which is defined as “carrying away.” Jurisprudence is settled that to “take” under the theft provision of the penal code does not require asportation or carrying away. xxx. The business of providing telecommunication or telephone service is likewise personal property which can be the object of theft under Article 308 of the Revised Penal Code.193 155. Theft is qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.194 156. For charges of estafa to prosper, the following elements must be present: (1) that the accused defrauded another by abuse of confidence or by means of deceit, and (2) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.195 157. The elements of Syndicated Estafa are: (a) Estafa or other forms of swindling, as defined in Articles 315 and 316 of the RPC, is committed; (b) the Estafa or swindling is committed by a syndicate of five (5) or more persons; and (c) defraudation results in the misappropriation of moneys contributed by stockholders, or members of rural banks, cooperative, “samahang nayon(s),” or farmers’ associations, or of funds solicited by corporations/associations from the general public.196 158. The elements of estafa under Article 315, par. 1 (b) of the Revised Penal Code are the following: 1) that money, goods or other personal property is received by the offender in trust, or on commission or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; 2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; 3) that such misappropriation or conversion or denial is to the prejudice of another; and 4) that there is a demand made by the offended party on the offender.197 In proving the element of conversion or misappropriation, a legal presumption of misappropriation arises when the accused fails to deliver the proceeds of the sale or to return the items to be sold and fails to give an account of their whereabouts.198 159. Disturbance of property rights is equivalent to damage and is in itself sufficient to constitute injury within the meaning of Art. 315, par. 1 (b) of the RPC. In Real vs. People,199 the Supreme Court ruled that complainant therein, who is a businessman, not only failed to recover his investment but also lost the opportunity to realize profits therefrom. Anxiety also set in as he ran the 193

Laurel vs. Abrogar, 576 SCRA 41 (2009) Miranda vs. People, 664 SCRA 124 (2012) 195 People vs. Gallo, 622 SCRA 439 (2010) 196 People vs. Tibayan, G.R. Nos. 209655-60, 14 January 2015 197 Gamboa vs. People, 722 SCRA 173 (2014) 198 Pamintuan vs. People, 621 SCRA 538 (2010) 199 543 SCRA 15 (2008) 194

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risk of being sued by the person who likewise entrusted him the same pieces of jewelry. To assert his legal recourse, he further incurred expenses in hiring a lawyer and in litigating the case. 160. One of the elements of estafa with abuse of confidence is that the money, goods or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same. When the thing is received by the offender from the offended party in trust or in commission or for administration, the offender acquires both material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee a right over the thing transferred and this he may set up even against the owner.200 161. Deceit is not an essential requisite of estafa by abuse of confidence; the breach of confidence takes the place of fraud or deceit, which is a usual element in the other estafas.201 162. Unlike estafa under paragraph 1 (b) of Article 315 of the Code, estafa under paragraph 2( a) of that provision does not require as an element of the crime proof that the accused misappropriated or converted the swindled money or property. All that is required is proof of pecuniary damage sustained by the complainant arising from his reliance on the fraudulent representation.202 163. The elements of estafa under Article 315, paragraph 2(d) of the Revised Penal Code, as amended, are the following: (1) postdating or issuing checks in payment of an obligation contracted at the time the checks were issued; (2) lack or insufficiency of funds to cover said checks; (3) knowledge on the part of the drawer of checks of such lack or insufficiency of funds; and (4) damage capable of pecuniary estimation to the payee thereof. Underlying all these must be the presence of fraud or deceit.203 164. The first element of the offense requires that the dishonored check must have been postdated or issued at the time the obligation was contracted. In other words, the date the obligation was entered into, being the very date the check was issued or postdated, is a material ingredient of the offense.204 165. In order to constitute estafa under this statutory provision, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of the defraudation. This means that the offender must be able to obtain money or property from the offended party by reason of the issuance of the check, whether dated or postdated. In other words, the Prosecution must show that the person to whom the check was delivered would not have parted with his money or property were it not for the issuance of the check by the offender. The check should have been issued as an inducement for the surrender by the party deceived of his money or property, and not in payment of a pre-existing obligation.205

200

San Diego vs. Court of Appeals, G.R. No. 176114, 08 April 2015 Brokmann vs. People, 665 SCRA 83 (2012) 202 Lopez vs. People, 703 SCRA 118 (2013) 203 Flores vs. People, 375 SCRA 491 (2002) 204 People vs. Dinglasan, 389 SCRA 71 (2002) 205 People vs. Nagrampa, 386 SCRA 412 (2002) 201

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166. Prima facie evidence of deceit exists by law upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three days from receipt of the notice of dishonor.206 167. No criminal liability for estafa attaches if postdated checks were issued as a security guarantee for the payment of loan, or as evidence of investment or indebtedness.207 168. There is no estafa through bouncing checks when it is shown that private complainant knew that the drawer did not have sufficient funds in the bank at the time the check was issued to him. Such knowledge negates the element of deceit and constitutes a defense in estafa through bouncing checks.208 169. Under Article 315 (2) (d), failure of the drawer of the check to deposit an amount sufficient to cover the check within three days from receipt of notice from the bank and/or payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. 209 If there is no proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed, and unless there is a priori intent, which is hard to determine and may not be inferred from mere failure to comply with a promise, no Estafa can be deemed to exist. So holds the 2004 case of People v. Ojeda.210 x x x [N]otice of dishonor is required under both par. 2(d) Art. 315 of the R[evised] P[enal] C[ode] and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist. (Emphasis and underscoring supplied) 170. Novation is not a ground under the law to extinguish criminal liability. Article 89 (on total extinguishment) and Article 94 (on partial extinguishment) of the Revised Penal Code list down the various grounds for the extinguishment of criminal liability. Not being included in the list, novation is limited in its effect only to the civil aspect of the liability, and, for that reason, is not an efficient defense in estafa. This is because only the State may validly waive the criminal action against an accused. The role of novation may only be either to prevent the rise of criminal liability, or to cast doubt on the true nature of the original basic transaction, whether or not it was such that the breach of the obligation would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to.211 171. The reimbursement or restitution to the offended party of the sums swindled by the petitioner does not extinguish the criminal liability of the latter. It only extinguishes pro tanto the civil liability. Moreover, estafa is a public offense which must be prosecuted and punished by the State on 206

People vs. Wagas, 705 SCRA 17 (2013) People vs. Dimalanta, 440 SCRA 55 (2004) 208 People vs. Reyes, 454 SCRA 635(2005) 209 People vs. Dinglasan, 389 SCRA 71 (2002) 210 People vs. Ojeda, 430 SCRA 436 (2004) 211 Degaños vs. People, 707 SCRA 438 (2013) 207

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its own motion even though complete reparation had been made for the loss or damage suffered by the offended party. The consent of the private complainant to petitioner’s payment of her civil liability pendente lite does not entitle the latter to an acquittal. Subsequent payments does not obliterate the criminal liability already incurred. Criminal liability for estafa is not affected by a compromise between petitioner and the private complainant on the former’s civil liability.212 172. In cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated – whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed – homicide/murder and arson.213 173. Code are:

The elements of the crime of malicious mischief under Article 327 of the Revised Penal

(1) That the offender deliberately caused damage to the property of another; (2) That such act does not constitute arson or other crimes involving destruction; (3) That the act of damaging another's property be committed merely for the sake of damaging it. 174. While rape and acts of lasciviousness have the same nature, they are fundamentally different. For in rape, there is the intent to lie with a woman, whereas in acts of lasciviousness, this element is absent.214 175. The elements of the crime of forcible abduction, as defined in Article 342 of the Revised Penal Code, are: (1) that the person abducted is any woman, regardless of her age, civil status, or reputation; (2) that she is taken against her will; and (3) that the abduction is with lewd designs. On the other hand, rape is committed by having carnal knowledge of a woman by force or intimidation, or when the woman is deprived of reason or is unconscious, or when she is under twelve years of age. 176. If the main objective in abducting the victim is to rape her, offender can be convicted only for rape. Hence, forcible abduction is absorbed in the crime of rape.215 177. For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage. xxx. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.216 212

Firaza vs. People, 518 SCRA 681 (2007) People vs. Malngan, 503 SCRA 294 (2006) 214 Tibong vs. People, 630 SCRA 639 (2010) 215 People vs. Sabadlab, 668 SCRA 237 (2012) 216 Manuel vs. People, 476 SCRA 461 (2005) 213

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178. The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. The outcome of the civil case for annulment of accused’s first marriage had no bearing upon the determination of his innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.217 179. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy.218 180. To be liable for libel under Article 353 of the Revised Penal Code, the following elements must be shown to exist: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.219 181. Publication, in the law of libel, means the making of the defamatory matter, after it has been written, known to someone other than the person to whom it has been written. If the statement is sent straight to a person for whom it is written there is no publication of it. The reason for this is that “a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A man’s reputation is not the good opinion he has of himself, but the estimation in which others hold him.”220 182. Malice is a term used to indicate the fact that the offender is prompted by personal illwill or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed; it implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof.221 183. Under Article 360 of the Revised Penal Code, “not only is the person who published, exhibited or caused the publication or exhibition of any defamation in writing shall be responsible for the same, all other persons who participated in its publication are liable, including the editor or business manager of a daily newspaper, magazine or serial publication, who shall be equally responsible for the defamations contained therein to the same extent as if he were the author thereof. The liability which attaches to petitioners is, thus, statutory in nature.” xxx 217

People vs. Abunado, 426 SCRA 562 (2004) People vs. Odtuhan, 701 SCRA 506 (2013) 219 Magno vs. People, 480 SCRA 276 (2006) 220 Ibid. 221 Brillante vs. Court of Appeals, 440 SCRA 541 (2004) 218

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Indeed, when an alleged libelous article is published in a newspaper, such fact alone sufficient evidence to charge the editor or business manager with the guilt of its publication. This sharing of liability with the author of said article is based on the principle that editors and associate editors, by the nature of their positions, edit, control and approve the materials which are to be published in a newspaper. This means that, without their nod of approbation, any article alleged to be libelous would not be published.222 184. To sustain a conviction for libel, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has been specifically identified as “author, editor, or proprietor” or “printer/publisher” of the publication. “Article 360 is clear and unambiguous, and to apply People v. Beltran and Soliven,223 which requires specific knowledge, participation, and approval on the part of the publisher to be liable for the publication of a libelous article, would be reading into the law an additional requirement that was not intended by it.”224 185. Pointing a dirty finger ordinarily connotes the phrase “Fuck You,” which is similar to the expression “Puta” or “Putang Ina mo,” in local parlance. Such expression was not held to be libelous in Reyes v. People, where the Court said that: “This is a common enough expression in the dialect that is often employed, not really to slander but rather to express anger or displeasure. It is seldom, if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother.” Following Reyes, and in light of the fact that there was a perceived provocation coming from complainant, petitioner’s act of pointing a dirty finger at complainant constitutes simple slander by deed, it appearing from the factual milieu of the case that the act complained of was employed by petitioner "to express anger or displeasure" at complainant for procrastinating the approval of his leave monetization.

SELECTED SPECIAL PENAL AND ALLIED LAWS Probation Law 186. Section 9 paragraph (c) is in clear and plain language, to the effect that a person who was previously convicted by final judgment of an offense punishable by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos, is disqualified from applying for probation. This provision of law is definitive and unqualified. There is nothing in Section 9, paragraph (c) which qualifies "previous conviction" as referring to a conviction for a crime which is entirely different from that for which the offender is applying for probation or a crime which arose out of a single act or transaction as petitioner would have the court to understand.225 187. Facts: On the date the judgment of conviction was promulgated, the accused filed an application for probation. On the 14th day therefrom, accused withdrew said application for probation and filed notice of appeal. The trial court denied accused’s notice of appeal. Is the order denying the notice of appeal correct? 222

Bautista vs. Cuneta-Pangilinan, 684 SCRA 521 (2012) CA-G.R. CR No. 13561, 06 November 1995 224 Fermin vs. People, G.R. No. 157643, 28 March 2008 225 Pablo vs. Castillo, 337 SCRA 176 (2000) 223

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Ruling: Yes. Section 7, Rule 120, of the Rules on Criminal Procedure is explicit that a judgment in a criminal case becomes final when the accused has applied for probation. This is totally in accord with Section 4 of Presidential Decree No. 968 (Probation Law of 1976, as amended), which in part provides that the filing of an application for probation is deemed a waiver of the right to appeal. Thus, there was no more opportunity for petitioner to exercise her right to appeal, the judgment having become final by the filing of an application for probation.226 188. Facts: The RTC convicted Arnel of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. On appeal, he Court of Appeals (CA) affirmed the RTC decision. On petition for review, the Supreme Court modified the lower courts’ rulings whereby Arnel was adjudged guilty of the lower crime of attempted homicide and was accordingly sentenced to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. Is Arnel still entitled to apply for probation? Ruling: Yes. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the RTC. It is true that under the probation law the accused who appeals from the judgment of conviction is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court. Applying such rule, the probation law will be applied on Arnel based on the trial courts annulled judgment against him. Hence, he will not be entitled to probation because of the severe penalty that such judgment imposed on him. In such case however, the Supreme Court’s judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial courts judgment even if this has been found in error. And, worse, Arnel will now also be made to pay for the trial courts erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there?227 226

Vicoy vs. People, 383 SCRA 707 (2002) Colinares vs. People, 662 SCRA 266 (2011)

227

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Indeterminate Sentence Law 189. Under the Indeterminate Sentence Law, the maximum term of the penalty shall be “that which, in view of the attending circumstances, could be properly imposed” under the Revised Penal Code, and the minimum shall be “within the range of the penalty next lower to that prescribed” for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.228 190. In People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza and People v. Tan, to name a few cases, the Supreme Court had in effect equated the penalty of reclusion perpetua as synonymous to life-imprisonment for purposes of the Indeterminate Sentence Law, and ruled that the latter law does not apply to persons convicted of offenses punishable with the said penalty.229 191. Persons sentenced to suffer the penalty of reclusion perpetua shall not be entitled to parole in view of Republic Act (R.A.) No. 9346, Sec. 3 of which states that “[p]ersons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Moreover, it is settled that reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the Indeterminate Sentence Law, which provides that it is only after “any prisoner shall have served the minimum penalty imposed on him” that the Board of Indeterminate Sentence may consider whether such prisoner may be granted parole.230 Comprehensive Dangerous Drugs Act 192. In illegal possession of dangerous drugs, the following facts must be proved: (a) the accused was in possession of dangerous drugs, (b) such possession was not authorized by law, and (c) the accused was freely and consciously aware of being in possession of dangerous drugs. 231 We also note that the crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act.232 193. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his 228

Real vs. People, 543 SCRA 15 (2008) People vs. Enriquez, 465 SCRA 407 (2005) 230 People vs. Gardon, 503 SCRA 757 (2006) 231 People vs. Villarta, 731 SCRA 497 (2014); People vs. De Jesus, 690 SCRA 180 (2013) 232 People vs. Tiu, 405 SCRA 280 (2003) 229

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right to exercise control and dominion over the place where the contraband is located, is shared with another.233 194. In sale of dangerous drugs, a successful prosecution thereof requires the concurrence of the following elements: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor.234 What is material is the proof that the transaction or sale actually took place, coupled with the presentation in court of the corpus delicti as evidence.235 195. “Possession of prohibited drugs” is a necessary element in the offense of selling them, except where the seller is also found in possession of another quantity of prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller.236 196. "Chain of custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.237 197. The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and 233

People vs. Tira, 430 SCRA 134 (2004) Chan vs. Secretary of Justice, 548 SCRA 337 (2008) 235 People vs. Lascano, 635 SCRA 551 (2010) 236 People vs. Balag-ey, 427 SCRA 384 (2004) 237 People vs. Adriano, G.R. No. 208169, 08 October 2014 234

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invalid such seizures of and custody over said items[.] Strict compliance with the prescribed procedure is required because of the illegal drug's unique characteristic rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by accident or otherwise.238 198. Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. 239 What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.240 199. While non-compliance with the prescribed procedural requirements will not automatically render the seizure and custody of the items void and invalid, this is true only when (a) there is a justifiable ground for such noncompliance, and (b) the integrity and evidentiary value of the seized items are properly preserved. Hence, any divergence from the prescribed procedure must be justified and should not affect the integrity and evidentiary value of the confiscated items.241 Anti-Graft and Corrupt Practices Act 200. The legislature, in mandating the inclusion of “presidents, directors or trustees, or managers of government-owned or controlled corporations” within the jurisdiction of the Sandiganbayan, has consistently refrained from making any distinction with respect to the manner of their creation. The deliberate omission, in our view, clearly reveals the intention of the legislature to include the presidents, directors or trustees, or managers of both types of corporations within the jurisdiction of the Sandiganbayan whenever they are involved in graft and corruption.242 201. Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations. Petitioner (a Student Regent of the University of the Philippines) falls under this category. As the Sandiganbayan pointed out, the BOR performs functions similar to those of a board of trustees of a non-stock corporation. By express mandate of law, petitioner is, indeed, a public officer as contemplated by P.D. No. 1606.243 202. Once a court determines that the information charging a public officer with an offense under R.A. No. 3019 or Title 7, Book II of the Revised Penal Code, or any other offense involving fraud upon government or public funds or property is valid, it is bound to issue an order of preventive suspension of the accused public officer as a matter of course. The order of suspension pendente lite, while mandatory in nature, is by no means automatic or self-operative. Before such suspension is imposed, a determination as to the validity of the information must first be made in a pre-suspension hearing. 238

People vs. Lascano, note 235 People vs. Bondad, 573 SCRA 497 (2008) 240 People vs. Ortega, 729 SCRA 179 (2014) 241 People vs. Viterbo, 730 SCRA 672 (2014) 242 People vs. Sandiganbayan and Alas, 451 SCRA 413 (2005) 243 Serana vs. Sandiganbayan, 542 SCRA 224 (2008) 239

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xxx Once the information is found to be sufficient in form and substance, then the court must issue the order of suspension as a matter or course. There are no ifs and buts about it. This is because a preventive suspension is not a penalty. It is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension... Taking into consideration the public policy involved in preventively suspending a public officer charged under a valid information, the protection of public interest will definitely have to prevail over the private interest of the accused.244 203. Preventive suspension is not a penalty in itself. xxx. Preventive suspension is merely a preventive measure, a preliminary step in an administrative investigation. The purpose of the suspension order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, the charge is established and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty.245 Anti-Plunder Law 204. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se.246 Comprehensive Firearms and Ammunition Regulation Act 205. Two requisites are necessary to establish illegal possession of firearms: first, the existence of the subject firearm; and second, the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence.247 206. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses.248 244

Flores vs. Layosa, 436 SCRA 337 (2004) Bustillo vs. Sandiganbayan, 486 SCRA 545 (2006) 246 Estrada vs. Sandiganbayan, 369 SCRA 394 (2001) 247 People vs. Eling, 553 SCRA 724 (2008) 248 Fajardo vs. People, 639 SCRA 194 (2011) 245

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207. It must be made clear, however, that RA No. 8294 did not amend the definition of murder under Article 248, but merely made the use of explosives an aggravating circumstance when resorted to in committing “any of the crimes defined in the Revised Penal Code.” The legislative purpose is to do away with the use of explosives as a separate crime and to make such use merely an aggravating circumstance in the commission of any crime already defined in the Revised Penal Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the aggravating circumstance of “explosion” in paragraph 12, “evident premeditation” in paragraph 13, or “treachery” in paragraph 16 of Article 14, the new aggravating circumstance added by RA No. 8294 does not change the definition of murder in Article 248. What the law emphasizes is the act’s lack of authority. Thus, when the second paragraph of Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of “the use of the aforementioned explosives, etc.” as an aggravating circumstance in the commission of crimes, it refers to those explosives, etc. “unlawfully” manufactured, assembled, dealt in, acquired, disposed or possessed mentioned in the first paragraph of the same section. What is per se aggravating is the use of unlawfully “manufactured … or possessed” explosives. The mere use of explosives is not. Anti-Fencing Law 208. The elements of "fencing" are 1) a robbery or theft has been committed; 2) the accused, who took no part in the robbery or theft, "buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article or object taken" during that robbery or theft; (3) the accused knows or should have known that the thing derived from that crime; and (4) he intends by the deal he makes to gain for himself or for another.249 209. Fencing is malum prohibitum, and P.D. No. 1612 creates a prima facie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value which has been the subject of robbery or theft, and prescribes a higher penalty based on the value of the property. The stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of the testimonies and other evidence adduced by the prosecution to prove the crime of fencing. xxx. The words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists.250 Anti-Carnapping Law 210. A felonious taking may be defined as the act of depriving another of the possession and dominion of movable property without his privity and consent and without animus revertendi. Thus, an unlawful taking takes place when the owner or juridical possessor does not give his consent to the taking; or, if the consent was given, it was vitiated, xxx.251 211. Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence against or intimidation of persons, or by using force upon things; it is deemed complete 249

Dimat vs. People, 664 SCRA 220 (2012) Ong vs. People, 695 SCRA 588 (2013) 251 People vs. Tan, 323 SCRA 30 (2000) 250

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from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.252 212. Intent to gain or animus lucrandi is an internal act, presumed from the unlawful taking of the motor vehicle. Actual gain is irrelevant as the important consideration is the intent to gain. The term “gain” is not merely limited to pecuniary benefit but also includes the benefit which in any other sense may be derived or expected from the act which is performed. Thus, the mere use of the thing which was taken without the owner’s consent constitutes gain.253 213. While the anti-carnapping law penalizes the unlawful taking of motor vehicles, it excepts from its coverage certain vehicles such as roadrollers, trolleys, street-sweepers, sprinklers, lawn mowers, amphibian trucks and cranes if not used on public highways, vehicles which run only on rails and tracks, and tractors, trailers and tractor engines of all kinds and used exclusively for agricultural purposes. By implication, the theft or robbery of the foregoing vehicles would be covered by Article 310 of the Revised Penal Code, as amended and the provisions on robbery, respectively.254 214. It becomes qualified when in the course of the commission or on occasion of the carnapping, the owner, driver or occupant of the carnapped vehicle is killed or raped. When the carnapping is qualified, the penalty imposable is reclusion perpetua to death.255 215. To prove the special complex crime of carnapping with homicide, there must be proof not only of the essential elements of carnapping, but also that it was the original criminal design of the culprit and the killing was perpetrated in the course of the commission of the carnapping or on the occasion thereof. The appellate court correctly observed that the killing of Jesus cannot qualify the carnapping into a special complex crime because the carnapping was merely an afterthought when the victim’s death was already fait accompli. Thus, appellant is guilty only of simple carnapping.256 Anti-Piracy and Anti-Highway Robbery Law 216. P.D. No. 532 amended Art. 306 of the Revised Penal Code and that it is no longer required that there be at least four armed persons forming a band of robbers. The number of offenders is no longer an essential element of the crime of highway robbery.257 Anti-Cattle Rustling Law 217. The crime is committed if the following elements concur: (1) a large cattle is taken; (2) it belongs to another; (3) the taking is done without the consent of the owner; (4) the taking is done by any means, methods or scheme; (5) the taking is with or without intent to gain; and (6) the taking is accomplished with or without violence or intimidation against person or force upon things.258 Bouncing Checks Law 252

People vs. Garcia, 400 SCRA 229 (2003) People vs. Fieldad, G.R. No. 196005, 01 October 2014 254 People vs. Bustinera, 431 SCRA 284 (2004) 255 People vs. Lobitania, 388 SCRA 417 (2002) 256 People vs. Aquino, 714 SCRA 107 (2014) 257 People vs. Agomo-o, 334 SCRA 279 (2000) 258 Canta vs. People, 353 SCRA 250 (2001) 253

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218. The gravamen of the offense under BP 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.259 219. The law enumerates the elements of violation of B.P. 22, namely (1) the making, drawing and issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.260 220. The presumption that the issuer has knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received notice of dishonor and that within 5 banking days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment. The prosecution is burdened to prove these acts that give rise to the prima facie presumption.261 221. While Section 2 of B.P. 22 indeed does not state that the notice of dishonor be in writing, this must be taken in conjunction with Section 3 of the law, i.e., “that where there are no sufficient funds in or credit with such drawee bank, such fact shall always be explicitly stated in the notice of dishonor or refusal”. A mere oral notice or demand to pay would appear to be insufficient for conviction under the law.262 222. Notice of dishonor is required under both par. 2(d) Art. 315 of the RPC and Sec. 2 of BP 22. While the RPC prescribes that the drawer of the check must deposit the amount needed to cover his check within three days from receipt of notice of dishonor, BP 22, on the other hand, requires the maker or drawer to pay the amount of the check within five days from receipt of notice of dishonor. Under both laws, notice of dishonor is necessary for prosecution (for estafa and violation of BP 22). Without proof of notice of dishonor, knowledge of insufficiency of funds cannot be presumed and no crime (whether estafa or violation of BP 22) can be deemed to exist.263 223. Not only must there be a written notice of dishonor or demand letters actually received by the drawer of a dishonored check, but there must also be proof of receipt thereof that is properly authenticated, and not mere registered receipt and/or return receipt.264 224. While the registry receipt, which is said to cover the letter-notice of dishonor and of demand sent to petitioner, was presented, there is no proof that he or a duly authorized agent received the same. Receipts for registered letters including return receipts do not themselves prove receipt; they must be properly authenticated to serve as proof of receipt of the letters.265

259

Dy vs. People, 571 SCRA 59 (2008) Azarcon vs. People, 622 SCRA 341 (2010) 261 Vergara vs. People, 450 SCRA 495 (2005) 262 Rico vs. People, 392 SCRA 61 (2002) 263 People vs. Ojeda, 430 SCRA 436 (2004) 264 Suarez vs. People, 555 SCRA 238 (2008) 265 Svendsen vs. People, 546 SCRA 659 (2008) 260

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225. Positive allegation of the prosecution that a demand letter was served upon the accused prevails over the denial made by the accused.266 226. If the drawer or maker is an officer of a corporation, the notice of dishonor to the said corporation is not notice to the employee or officer who drew or issued the check for and in its behalf.267 227. Only a full payment of the face value of the check at the time of its presentment or during the five-day grace period could exonerate the accused from criminal liability. xxx. Neither could the subsequent payment of the amount due on the check during the pendency of the case against the accused result in freeing him from criminal liability because the same had already attached after the check was dishonored. Said subsequent payments can only affect his civil, not criminal, liability. A subsequent payment by the accused would not obliterate the criminal liability theretofore already incurred.268 228. The cause or reason for the issuance of the check is inconsequential in determining criminal culpability under BP 22. The Court has since said that a “check issued as an evidence of debt, although not intended for encashment, has the same effect like any other check” and must thus be held to be “within the contemplation of BP 22.” Once a check is presented for payment, the drawee bank gives it the usual course whether issued in payment of an obligation or just as a guaranty of an obligation. BP 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency.269 229. What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. 270 The agreement surrounding the issuance of the checks need not be first looked into since the law itself provides that regardless of the intent of the parties, the mere issuance of any kind of check which is subsequently dishonored makes the person who issued the check liable.271 230. Violations of Batas Pambansa Bilang 22 are categorized as transitory or continuing crimes. xxx Hence, a person charged with a transitory crime may be validly tried in any municipality or territory where the offense was in part committed. 272 Applying these principles, a criminal case for violation of BP 22 may be filed in any of the places where any of its elements occurred – in particular, the place where the check is drawn, issued, delivered, or dishonored.273 231. Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg. 22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years from the commission of the offense or, if the same be not known at the time, from the discovery thereof.274 266

Mitra vs. People, 623 SCRA 673 (2010) Marigomen vs. People, 459 SCRA 169 (2005) 268 Macalalag vs. People, 511 SCRA 400 (2006) 269 Meriz vs. People, 368 SCRA 524 (2001) 270 Caras vs. Court of Appeals, 366 SCRA 371 (2001) 271 Narte vs. Court of Appeals, 434 SCRA 336 (2004) 272 Rigor vs. People, 442 SCRA 450 (2004) 273 Yalong vs. People, 704 SCRA 195 (2013) 274 Panaguiton, Jr. vs. Department of Justice, 571 SCRA 549 (2008) 267

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