Handout for Criminal Law (Ticman)

JURISTS BAR REVIEW CENTER™ NOTES ON CRIMINAL LAW By: Atty. Modesto A. Ticman, Jr. Construction of penal laws 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.1 Prospectivity of Philippine criminal laws The law looks forward, never backward. Lex prospicit, non respicit. 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. These are the rule, the exception and exception to the exception on effectivity of laws.2 Motive Proof of motive is not indispensable for a conviction, particularly where the accused is positively identified by an eyewitness and his participation is adequately established. Motive becomes material only when the evidence is circumstantial or inconclusive and there is some doubt on whether the accused had committed it.3 It assumes significance only where there is no showing of who the perpetrator of the crime was,4 when the identity of the culprit is doubtful,5 or in ascertaining the truth as between two antagonistic theories or versions of the killing.6 Alibi and denial as defenses It is elementary that alibi and denial are outweighed by positive identification that is categorical, consistent and untainted by any ill motive on the part of the eyewitness testifying on the matter. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.7 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. To be valid for purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been physically impossible for the person charged with the crime to be at the locus criminis at the time of its commission, the reason being that no person can be in two places at the same time. The excuse must be so airtight that it would admit of no exception.8 Physical impossibility “refers to the distance between the place where the accused was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.”9 Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.10 While the defenses of denial and alibi are inherently weak, they are only so in the face of an effective identification. Where the identification has been fatally tainted by irregularity and attendant

1

People vs. Bon, G.R. No. 166401, 30 October 2006 Valeroso vs. People, G.R. No. 164815, 22 February 2008 3 People vs. Delos Santos, G.R. No. 135919, 09 May 2003, 403 SCRA 153 4 Velasco vs. People, G.R. No. 166479, 28 February 2006, 483 SCRA 649 5 Resay vs. People, G.R. No. 154502, 27 April 2007; People vs. Zeta, G.R. No. 178541, 27 March 2008 6 Ubales vs. People, G.R. No. 175692, 29 October 2008 7 Malana vs. People, G.R. No. 173612, 26 March 2008 8 Lumanog vs. People, G.R. No. 182555, 07 September 2010 9 People vs. Aminola, G.R. No. 178062, 08 September 2010 10 People vs. Castro, G.R. No. 172874, 17 December 2008 2

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inconsistencies, doubt on the culpability of the accused, at the very least, has been established without need to avail of the defenses of denial and alibi.11 How criminal liability is incurred 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.12 Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. The proximate legal cause is that acting first and producing the injury, either immediately, or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor. 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)

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

(b)

the resulting injury is due to the intentional act of the victim.13

Impossible crimes 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. xxx Herein petitioner’s case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner’s evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her into to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check. 14 Attempted felonies Where the wound inflicted on the victim is not fatal, i.e., 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.15 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

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People vs. Rodrigo, G.R. No. 176159, 11 September 2008 Quinto vs. Andres, G.R. No. 155791, 16 March 2005, 453 SCRA 511 13 Quinto vs. Andres, G.R. No. 155791, 16 March 2005, 453 SCRA 511 14 Jacinto vs. People, G.R. No. 162540, 13 July 2009 15 People vs. Valledor, G.R. No. 129291, 03 July 2002, 383 SCRA 653 12

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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.16 Facts: One evening, inside her room, Malou retired at around 10:30. Outside, right in front of her bedroom door, her maid slept on a folding bed. Early morning of the following day, petitioner, clad in t-shirt and shorts, entered the room of Malou through its window. Once inside, he approached Malou and tightly pressed on her face a piece of cloth soaked chemical and at the same time pinned her down on the bed. She was awakened thereby and that she struggled but could not move. She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight. Still, Malou continued fighting off her attacker by kicking him until at last her right hand got free. With this, the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed. Petitioner let her go and escaped while Malou went straight to the bedroom door and roused her maid. Is petitioner guilty of attempted rape? Ruling: NO. There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape. Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybody’s guess.17 Frustrated felonies 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.18 Frustrated and attempted felonies may be distinguished as follows: a.

In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution.

b.

In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender’s own spontaneous desistance.19

Attempted/frustrated homicide and physical injuries distinguished 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.20 In People vs. Almazan,21 the Supreme Court rejected the accused’s claim that he should be convicted of slight 16

Perez vs. Court of Appeals, G.R. No. 143838, 09 May 2002, 382 SCRA 182 People vs. Baleros, 483 SCRA 10 18 People vs. Caballero, 149028-30, 02 April 2003, 400 SCRA 424 19 People vs. Palaganas, G.R. No. 165483, 12 September 2006 20 People vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA 220 21 G.R. No. 138943, 17 September 2001, 365 SCRA 373 17

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physical injuries only as the he was motivated by the same impetus and intent, i.e., to exact vengeance and even kill, if necessary, when he shot the victim therein. The fact that the wound was merely a minor injury which could heal in a week becomes inconsequential. Stages of execution in rape Rape is either attempted or consummated. There can be no frustrated 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. It is settled 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.”22 Stages of execution in theft/robbery There is no crime of frustrated theft. 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.23 Conspiracy Direct proof is not essential to establish conspiracy, and may be inferred from the collective acts of the accused before, during and after the commission of the crime. Conspiracy can be presumed from and proven by acts of the accused themselves when the said acts point to a joint purpose and design, concerted action and community of interests. It is not necessary to show that all the conspirators actually hit and killed the victim. Conspiracy renders all the conspirators as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one conspirator is the act of all.24 Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship.25 Mere suspicion, speculation, relationship, association, and companionship do not prove conspiracy.26 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.27 In determining the existence of conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. The presence of conspiracy among the accused can be proven by their conduct before, during or after the commission of the crime showing that they acted in unison with each other, evincing a common purpose or design. There must be a showing that appellant cooperated in the commission of the offense, either morally, through advice, encouragement or agreement or materially through external acts indicating a manifest intent of supplying aid in the perpetration of the crime in an efficacious way. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed.28 Conspiracy must be alleged in the information in order that an accused may be held liable for the acts of his co-accused. In the absence of any averment of conspiracy in the information, an accused can

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People vs. Aca-ac, G.R. No. 142500, 20 April 2001, 357 SCRA 373 Valenzuela vs. People, G.R. No. 160188, 21 June 2007, 525 SCRA 306 24 People vs. Buntag, G.R. No. 123070, 14 April 2004, 427 SCRA 180 25 People vs. Comadre, G.R. No. 153559, 08 June 2004, 431 SCRA 366 26 People vs. Manijas, G.R. No. 148699, 15 November 2002, 391 SCRA 731 27 People vs. Compo, G.R. No. 112990, 28 May 2001, 358 SCRA 266 28 People vs. Ramos, G.R. No. 135204, 14 April 2004, 427 SCRA 299 23

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only be made liable for the acts committed by him alone and such criminal responsibility is individual and not collective.29 Confederation is not enumerated as an aggravating circumstance under Article 14 of the Revised Penal Code. Like conspiracy which must be alleged in and not merely inferred from the information, confederation is but a mode of incurring criminal liability and may not be considered criminal in itself unless specifically provided by law. Neither may confederation be treated as an aggravating circumstance in the absence of any law defining or classifying it as such.30 Suppletory application of the RPC Article 10 of the Revised Penal Code is composed of two clauses. The first provides that offenses which in the future are made punishable under special laws are not subject to the provisions of the RPC, while the second makes the RPC supplementary to such laws. While it seems that the two clauses are contradictory, a sensible interpretation will show that they can perfectly be reconciled. The first clause should be understood to mean only that the special penal laws are controlling with regard to offenses therein specifically punished. Said clause only restates the elemental rule of statutory construction that special legal provisions prevail over general ones. xxx. The second clause contains the soul of the article. The main idea and purpose of the article is embodied in the provision that the "code shall be supplementary" to special laws, unless the latter should specifically provide the contrary. 31 Corpus delicti Corpus delicti has been defined as the body or substance of the crime and, in its primary sense, refers to the fact that a crime has actually been committed. As applied to a particular offense, it means the actual commission by someone of the particular crime charged.32 It is made up of two elements: (a) that a certain result has been proved, for example, a man has died and (b) that some person is criminally responsible for the act.33 Self-defense 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.34 It is a settled rule that when an accused claims the justifying circumstance of self-defense, an accused admits the commission of the act of killing. The burden of evidence, therefore, shifts to the accused’s side in clearly and convincingly proving that the elements of self-defense exist that could justify the accused’s act.35 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.36 The condition of unlawful aggression is a sine qua non; otherwise stated, there can be no selfdefense, complete or incomplete, unless the victim has committed unlawful aggression against the person defending himself.37 In other words in self-defense, unlawful aggression is a primordial element. 29

Peple vs. Galvez, G.R. No. 157221, 30 March 2007 People vs. Baroy, G.R. Nos. 137520-22, 09 May 2002, 382 SCRA 56 31 Ladonga vs. People, G.R. No. 141066, 17 February 2005, 451 SCRA 673 32 People vs. Obedo, G.R. No. 123054, 10 June 2003, 403 SCRA 431 33 People vs. Quimzon, G.R. No. 133541, 14 April 2004, 427 SCRA 261 34 People vs. Enfectana, G.R. No. 132028, 19 April 2002, 381 SCRA 359 35 People vs. Maningding, G.R. No. 195665, 14 September 2011 36 Manaban vs. CA, G.R. No. 150723, 11 July 2006, 494 SCRA 503 37 People vs. Enfectana, G.R. No. 132028, 19 April 2002, 381 SCRA 359 30

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A threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material aggression.38 The aggression must be real and not just imaginary. A mere perception of an impending attack is not sufficient to constitute unlawful aggression, and neither is an intimidating or threatening attitude.39 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.40 When an unlawful aggression has ceased to exist, the one making a defense has no right to kill or injure the former aggressor.41 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.42 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.43 Aggression, if not continuous, does not constitute aggression warranting self-defense.44 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.45 After the danger has passed, one is not justified in following up his adversary to take his life. The conflict for blood should be avoided if possible. An assault on his person, he cannot punish when the danger or peril is over. When the danger is over, the right of self-defense ceases. His right is defense, not retribution.46 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 As to the third requisite that the provocation must be sufficient, it should be proportionate to the aggression and adequate to stir the aggressor to its commission. To be entitled to self-defense, however, the one defending himself must not have given cause for the aggression by his unjust conduct or by inciting or provoking the aggressor.49 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.50 Avoidance of greater evil In state of necessity as a justifying circumstance, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable. Moreover, 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 Fulfillment of duty 38

People vs. Pateo, G.R. No. 156786, 03 June 2004, 43O SCRA 604 People vs. Arnante, G.R. No. 148724, 15 October 2002, 391 SCRA 155 40 People vs. Court of Appeals and Tangan, G.R. Nos. 103613 and 105830, 23 February 2001, 352 SCRA 599 41 People vs. San Juan, G.R. No. 144505, 06 August 2002, 386 SCRA 400; People vs. Tejero, G.R. No. 135050, 19 April 2002, 381 SCRA 382 42 People vs. Geneblazo, G.R. No. 133580, 20 July 2001, 361 SCRA 572 43 People vs. Caguing, G.R. No. 139822, 06 December 2000, 347 SCRA 374 44 Sanchez vs. People, G.R. No. 161007, 06 December 2006 45 People vs. Vicente, G.R. No. 137296, 26 June 2003, 405 SCRA 40 46 Senoja vs. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695 47 People vs. Dagani, G.R. No. 153875, 16 August 2006 48 People vs. Rabanal, G.R. No. 146687, 22 August 2002, 387 SCRA 85 49 Rimano vs. People, G.R. No.156567, 27 November 2003, 416 SCRA 569 50 People vs. Annibong, G.R. No. 139879, 08 May 2003, 403 SCRA 92 51 Ty vs. People, G.R. No. 149275, 27 September 2004, 439 SCRA 220 39

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For fulfillment of duty to be appreciated as a justifying circumstance, the following must be established: (1) that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense committed be the necessary consequence of the due performance of such right or office.52 Insanity Only when there is a complete deprivation of intelligence at the time of the commission of the crime should the exempting circumstance of insanity be considered.53 Minority For a minor between 15 to 18 years of age to be criminally liable, the prosecution is burdened to prove beyond reasonable doubt, by direct or circumstantial evidence, that he acted with discernment, meaning that he knew what he was doing and that it was wrong. Such circumstantial evidence may include the utterances of the minor; his overt acts before, during and after the commission of the crime relative thereto; the nature of the weapon used in the commission of the crime; his attempt to silence a witness; his disposal of evidence or his hiding the corpus delicti.54 In People vs. Atizado,55 the Supreme Court, conformably with Section 756 of Republic Act No. 9344, ruled to appreciate minority as a privileged mitigating circumstance despite the accused’s failure to present his birth certificate at the trial observing that – “Yet, it cannot be doubted that Monreal was a minor below 18 years of age when the crime was committed on April 18, 1994. Firstly, his counter-affidavit executed on June 30 1994 stated that he was 17 years of age. Secondly, the police blotter recording his arrest mentioned that he was 17 years old at the time of his arrest on May 18, 1994. Thirdly, Villafe’s affidavit dated June 29, 1994 averred that Monreal was a minor on the date of the incident. Fourthly, as RTC’s minutes of hearing dated March 9, 1999 showed, Monreal was 22 years old when he testified on direct examination on March 9, 1999, which meant that he was not over 18 years of age when he committed the crime. And, fifthly, Mirandilla described Monreal as a teenager and young looking at the time of the incident.” Accident 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. Appellant must convincingly prove the presence of these elements in order to benefit from the exempting circumstance of accident.57 Uncontrollable fear For uncontrollable fear to be considered as an exempting circumstance, it must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary man would have succumbed to it. It should be based on a real, imminent or reasonable fear for one’s life or limb. A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote. A person invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a

52

Mamangun vs. People, G.R. No. 149152, 02 February 2007 People vs. Robiños, G.R. No. 138453, 29 May 2002, 382 SCRA 751 54 Jose vs. People, G.R. No. 162052, 13 January 2005, 448 SCRA 116 55 G.R. No. 173822, 13 October 2010 53

56

Section 7. Determination of Age. - The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child’s birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. 57

People vs. Concepcion, G.R. No. 136844, 01 August 2002, 386 SCRA 74

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mere instrument acting not only without will but against his will as well. It must be of such character as to leave no opportunity to the accused for escape.58 Instigation vs. Entrapment In instigation, officers of the law or their agents incite, induce, instigate or lure an accused into committing an offense which he or she would otherwise not commit and has no intention of committing. But in entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused, and law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify his or her conduct. In instigation, where law enforcers act as co-principals, the accused will have to be acquitted. But entrapment cannot bar prosecution and conviction. As has been said, instigation is a “trap for the unwary innocent,” while entrapment is a “trap for the unwary criminal.”59 Incomplete self-defense In order that incomplete self-defense may be successfully appreciated as a mitigating circumstance, it is necessary that a majority of the requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of the victim. Unlawful aggression by itself or in combination with either of the other two requisite suffices to establish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense, complete or incomplete, because if there is nothing to prevent or repel, the other two requisites of defense will have no basis.60 Provocation Before threat or provocation can be appreciated as a mitigating circumstance, 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.61 Provocation and passion or obfuscation are not two separate mitigating circumstances. If these two circumstances are based on the same facts, they should be treated together as one mitigating circumstance. From the facts established in this case, it is clear that both circumstances arose from the same set of facts aforementioned. Hence, they should not be treated as two separate mitigating circumstances.62 Passion or obfuscation For passion or obfuscation as a mitigating circumstance 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 Voluntary surrender 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 58

Ty vs. People, G.R. No. 149275, 27 September 2004, 439 SCRA 220 People vs. Bayani, G.R. No. 179150, 17 June 2008 60 People vs. Court of Appeals and Tangan, G.R. Nos. 103613 and 105830, 23 February 2001, 352 SCRA 599 61 People vs. Beltran, G.R. No. 168051, 27 September 2006 62 Romera vs. People, G.R No. 151978, 14 July 2004, 434 SCRA 467 63 People vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA 220 64 People vs. Malejana, G.R. No. 145002, 24 January 2006, 479 SCRA 610 59

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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.65 In People v. Cagas and in People v. Taraya, the Supreme Court added a fourth requisite before “voluntary surrender” may be appreciated in favor of the accused – that there is no pending warrant of arrest or information filed.66 In De Vera though, it upheld the appreciation of the trial court of this mitigating circumstance, as the accused, upon learning that the court had finally determined the presence of probable cause and even before the issuance and implementation of the warrant of arrest, had given himself up, acknowledging his culpability. Thus, it is clear that notwithstanding the filing of an information or the pendency of an arrest warrant, 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. Confession of guilt To be entitled to the mitigating circumstance of confession of guilt, the accused must have voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. The 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.67 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.68 Similar or analogous circumstances In malversation of public funds, payment, indemnification, or reimbursement of funds misappropriated, after the commission of the crime, does not extinguish the criminal liability of the offender which, at most, can merely affect the accused's civil liability thereunder and be considered a mitigating circumstance being analogous to voluntary surrender.69 Aggravating circumstances: Generic, Qualifying and Special A qualifying circumstance changes the nature of the crime. A generic aggravating circumstance, on the other hand, does not affect the designation of the crime; it merely provides for the imposition of the prescribed penalty in its maximum period. Thus, while a generic aggravating circumstance may be offset by a mitigating circumstance, a qualifying circumstance may not.70 Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated. Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated. Moreover, it cannot be offset by an ordinary mitigating circumstance.71

65

Andrada vs. People, G.R. No. 135222, 04 March 2005, 452 SCRA 685 De Vera vs. De Vera, G.R. No. 172832, 07 April 2009 67 People vs. Montinola, G.R. Nos. 131856-57, 09 July 2001, 360 SCRA 631 68 People vs. Dawaton, G.R. No. 146247, 17 September 2002, 389 SCRA 277 69 Davalos vs. People, G.R. No. 145229, 20 April 2006, 488 SCRA 84,citing Kimpo vs. Sandiganbayan 70 People vs. Mendoza, G.R. No. 133382, 09 March 2000, 327 SCRA 695 71 People vs. Palaganas, G.R. No. 165483, 12 September 2006 66

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Abuse of public position If the accused could have perpetrated the crime even without occupying his position, there is no abuse of public position.72 Disregard of age, sex or rank Disregard of age, sex or rank is applicable only to crimes against persors or honor. It 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.73 Dwelling Dwelling aggravates a felony where the crime was committed in the dwelling of the offended party if the latter has not given provocation or if the victim was killed inside his house.74 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.75 The victim need not own the place where he lives or dwells. Be he a lessee, a boarder, or a bedspacer, the place is his home, the sanctity of which the law seeks to protect.76 If the building where the offense was committed was not entirely for dwelling purposes, dwelling cannot be appreciated as an aggravating circumstance.77 Abuse of confidence For abuse of confidence 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 Nighttime, uninhabited place or band 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 If the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity.80 By means of explosives 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.81 Evident premeditation

72

People vs. Villamor, G.R. Nos. 140407-08, 15 January 2002, 373 SCRA 254 People vs. Montinola, G.R. Nos. 131856-57, 09 July 2001, 360 SCRA 631 74 People vs. Perreras, G.R. No. 139622, 31 July 2001, 362 SCRA 202) 75 People vs. Rios, G.R. No. 132632, 19 June 2000, 333 SCRA 823 76 People vs. Dela Torre, G.R. No. 98431, 15 January 2002, 373 SCRA 104 77 People vs. Taño, G.R. No. 133872, 05 May 2000, 331 SCRA 448 78 People vs. Arrojado, G.R. No. 130492, 31 January 2001, 350 SCRA 679 79 People vs. Silva, G.R. No. 140871, 08 August 2002, 387 SCRA 77 80 People vs. Librando, G.R. No. 132251, 06 July 2000, 335 SCRA 232 81 People vs. Comadre, G.R. No. 153559, 08 June 2004, 431 SCRA 366 73

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For evident premeditation to be appreciated, the prosecution must prove the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to their determination to commit the crime; and (3) the lapse of a period of time between the decision and the execution of the crime sufficient to allow the accused to reflect upon the consequences of the act.82 In one case, no evidence was presented by the prosecution as to when and how appellant planned and prepared for the killing of the victim. There is no showing of any notorious act evidencing a determination to commit the crime which could prove appellant’s criminal intent. Hence, we cannot agree that there was evident premeditation here, on appellant’s part.83 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, as in the case at bar, the above requisites of evident premeditation need to be established.84 Evident premeditation is not aggravating when the victim is different from that. However, 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, evident premeditation may be appreciated.85 Craft Craft involves intellectual trickery and cunning on the part of the offender. When there is a direct inducement by insidious words or machinations, fraud is present.86

Abuse of superior strength 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.87 Mere superiority in number would not necessarily indicate the attendance of abuse of superior strength. The prosecution should still prove that the assailants purposely used excessive force out of proportion to the means of defense available to the persons attacked.88 Treachery There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.89 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.90 Treachery exists when an offender commits any of the crimes against persons, employing means, methods or forms which tend directly or especially to ensure its execution, without risk to the offender, arising from the defense that the offended party might make. This definition sets out what must be shown by evidence to conclude that treachery existed, namely: (1) the employment of such means of execution as would give the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of the means of execution. To reiterate, the essence of qualifying circumstance is the 82

People vs. Barde, G.R. No. 183094, 22 September 2010 People vs. Mondijar, G.R. No. 141194, 21 November 2002, 392 SCRA 356 84 People vs. Campomanes, G.R. No. 132568, 06 February 2002, 376 SCRA 307 85 People vs. Ventura, G.R. Nos. 148145-46, 05 July 2004, 433 SCRA 389 86 People vs. Labuguen, G.R. No. 127849, 09 August 2000, 337 SCRA 488 87 People vs. Lobrigas, G.R. 147649, 17 December 2002, 394 SCRA 170 88 People vs. Sansaet, G.R. No. 139330, 06 February 2002, 376 SCRA 426 89 Andrada vs. People, G.R. No. 135222, 04 March 2005, 452 SCRA 685 90 People vs. Ausa, G.R. No. 174194, 20 March 2007; People vs. Hammer, G.R. No. 147836, 17 December 2002, 394 SCRA 182 83

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suddenness, surprise and the lack of expectation that the attack will take place, thus, depriving the victim of any real opportunity for self-defense 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. 91 The essence of treachery is the sudden, unexpected, and unforeseen attack on the person of the victim, without the slightest provocation on the part of the latter.92 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. A killing done at the spur of the moment is not treacherous.93 Mere suddenness of the attack would not, by itself, constitute treachery. There is a further need to prove that appellant consciously and deliberately adopted the mode of attack to insure execution without risk to himself.94 There is no treachery when the killing results from a verbal altercation between the victim and the assailant such that the victim was forewarned of the impending danger.95 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.96 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.97 For treachery to be appreciated, that circumstances must be present at the inception of the attack, and if absent and the attack is continuous, treachery, even if present at a subsequent stage is not to be considered.98 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. xxx. Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime. xxx. In fine, 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.99 The aggravating circumstance of nighttime is absorbed by treachery.100 Nighttime was evidently an integral part of the peculiarly treacherous means and manner adopted to ensure the execution of the crime, or that it facilitated the treacherous character of the attack.101

91

People vs. Villacorta, G.R. No. 186412, 07 September 2011 People vs. Hormina, G.R. No. 144383, 16 January 2004, 420 SCRA 102 93 People vs. Calago, G.R. No. 141122, 22 April 2002, 381 SCRA 448 94 People vs. Magbanua, G.R. No. 133004, 20 May 2004, 428 SCRA 617 95 People vs. Ilo, G.R. No. 140731, 21 November 2002, 392 SCRA 326 96 People vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA 220 97 People vs. Caratao, G.R. No. 126281, 10 June 2003, 403 SCRA 482 98 People vs. Loterono, G.R. No. 146100, 13 November 2002, 391 SCRA 593 99 People vs. Escote, 140756, 04 April 2003, 400 SCRA 603; People vs. Ancheta, G.R. No. 143935, 04 June 2004, 431 SCRA 42 100 People vs. Costales, G.R. Nos. 141154-56, 15 January 2002, 373 SCRA 269 101 People vs. Catapang, G.R. No. 128126, 25 June 2001, 359 SCRA 459 92

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The aggravating circumstances of abuse of superior strength and aid of armed men are absorbed in treachery.102 Use of a motor vehicle The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof.103 It was appreciated when a truck itself was used to kill the victim by running over him.104 Cruelty 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.105 “Use of unlicensed firearm” Under PD 1866, as amended RA 8294, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.106 If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense.107 Intoxication The general rule is that intoxication may be considered either as aggravating or mitigating, depending upon the circumstances attending the commission of the crime. Intoxication is mitigating and therefore has the effect of decreasing the penalty if the intoxication is not habitual or attendant to the plan to commit the contemplated crime. On the other hand, when intoxication is habitual or done intentionally to embolden the malefactor and facilitate the plan to commit the crime, it is considered as an aggravating circumstance.108 Principals Conspiracy once found, continues until the object of it has been accomplished and unless abandoned or broken up. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. 109 Accomplice The following requisites must concur in order that a person may be considered an accomplice: (a)

community of design, i.e., knowing that criminal design of the principal by direct participation, he concurs with the latter in his purpose;

(b)

he cooperates in the execution of the offense by previous or simultaneous acts; and,

(c)

there must be a relation between the acts done by the principal and those attributed to the person charged as accomplice.110

102

People vs. Parreno, G.R. No. 144343, 07 July 2004, 433 SCRA 591 People vs. Enguito, G.R. No. 128812, 28 February 2000, 326 SCRA 508 104 People vs. Mallari, G.R. No. 145993, 17 June 2003, 404 SCRA 170 105 People vs. Catian, G.R. No. 139693, 24 January 2002, 374 SCRA 514 106 People vs. Tadeo, G.R. Nos. 127660 and144011-12, 17 September 2002, 389 SCRA 20 107 People vs. Ladjaalam, G.R. Nos. 136149-51, 19 September 2000, 340 SCRA 617 108 People vs. Bernal, G.R. Nos. 132791 and 140465-66, 02 September 2002, 388 SCRA 211 109 People vs. Vasquez, G.R. No. 123939, 28 May 2004, 430 SCRA 52 110 People vs. Roche, G.R. No. 115182, 06 April 2000, 330 SCRA 91 103

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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.111 After a conscientious reflection on the complicity of Doblen and Rojas, we have reached the conclusion that they should be held guilty as accomplices. It is true, strictly speaking, that as coconspirators they should be punished as co-principals. However, since their participation was not absolutely indispensable to the consummation of the murder, the rule that the court should favor the milder form of liability may be applied to them.112 Accessories Article 19 of the Revised Penal Code defines an accessory as one who had knowledge of the commission of the crime and did not participate in its commission as principal or accomplice, yet took part subsequent to its commission by any of three modes: (1) profiting oneself or assisting the offender to profit by the effects of the crime; (2) concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery; and (3) harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or when the offender is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. 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.113 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.114 Pardon by the offended party A criminal offense is an outrage to the sovereign State and to prosecute and punish crimes. By itself, an affidavit of desistance is not action, once it has been instituted in court. A private complainant loses decide whether the charge should proceed, because the case was already to be heard by the trial court.115

the State belongs the power to a ground for the dismissal of an the right or absolute privilege to filed and must therefore continue

Life imprisonment vs. reclusion perpetua 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.116 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 111

People vs. Garcia, G.R. Nos. 133489 and 143970, 15 January 2002, 373 SCRA 134 Garcia vs. Court of Appeals, G.R. No. 134730, 18 September 2000, 340 SCRA 545 113 People vs. Tolentino, G.R. No. 139179, 03 April 2002, 380 SCRA 171) 114 People vs. Antonio, G.R. No. 128900, 14 July 2000, 335 SCRA 646 115 People vs. Dimaano, G.R. No. 168168, 14 September 2005, 469 SCRA 647 116 People vs. Latupan, G.R. Nos. 112453-56, 28 June 2001, 360 SCRA 60 112

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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).117 Complex crimes Where a conspiracy animates several persons with a single purpose, their individual acts done in pursuance of that purpose are looked upon as a single act, the act of execution, giving rise to a single complex offense.118 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.119 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.120 Death of the accused In People v. Bayotas, the Supreme Court made the following pronouncements on the implications of the death of the accused: “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 xxx 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.”121 117

People vs. Ramirez, G.R. No. 138261, 17 April 2001, 356 SCRA 595 People vs. Sanidad, G.R. No. 146099, 30 April 2003, 402 SCRA 381 119 People vs. delos Santos, G.R. No. 131588, 27 March 2001, 355 SCRA 415 120 People vs. Garcia, G.R. No. 141125, 28 February 2002, 378 SCRA 266 121 Datu vs. People, G.R. No. 169718, 13 December 2010; People vs. Abungan, G.R. No. 136843, 28 September 2000, 341 SCRA 258 118

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Prescription of crimes 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, x x x.” In People v. Reyes, this Court has declared that 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.122 That the filing of a complaint with the fiscal’s office suspends the running of the prescriptive period of a criminal offense.123 Prescription of penalties The prescription of penalties shall commence to run from the date the felon evades the service of his sentence. xxx One who has not been committed to prison cannot be said to have escaped therefrom.124 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. Since petitioner never suffered deprivation of liberty before his arrest on January 20, 2000 and as a consequence never evaded sentence by escaping during the term of his service, the period for prescription never began.125 Pardon by the Chief Executive vs. Amnesty 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.126 Subsidiary civil liability of employers

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.127 The determination of these conditions may be done in the same criminal action in which the employee’s liability, criminal and civil, has been pronounced, in a hearing set for that precise purpose, with due notice to the employer, as part of the proceedings for the execution of the judgment.128

122

Recebido vs. People, G.R. No. 141931, 04 December 2000, 346 SCRA 881 Brillante vs. Court of Appeals, G.R. Nos. 118757 and 121571, 19 October 2004, 440 SCRA 541 124 Del Castillo vs. Torrecampo and People, G.R. No. 139033, 18 December 2002, 394 SCRA 221 125 Pangan vs. Gatbalite, G.R. No. 141718, 21 January 2005, 449 SCRA 144 126 People vs. Patriarca, G.R. No. 135457, 29 September 2000, 341 SCRA 464 127 Basilio vs. Court of Appeals, G.R. No. 113433, 17 March 2000, 328 SCRA 341 128 Calang and Philtranco vs. People, G.R. No. 190696, 03 August 2010 123

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The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees. Although in substance and in effect, they have an interest therein, this fact should be viewed in the light of their subsidiary liability. While they may assist their employees to the extent of supplying the latter’s lawyers, as in the present case, the former cannot act independently on their own behalf, but can only defend the accused.129 Due diligence in the selection and supervision of employees is not a defense on the part of the employer and may not free the latter from subsidiary liability for the employee’s civil liability in a criminal action.130 The provisions of the Revised Penal Code on subsidiary liability – Articles 102 and 103 – are deemed written into the judgments in cases to which they are applicable. Thus, in the dispositive portion of its decision, the trial court need not expressly pronounce the subsidiary liability of the employer.131 The subsidiary liability of the employer arises only after conviction of the employee in the criminal action.132 Arbitrary detention The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear.133 The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will. 134 Rebellion 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.135 The political motivation for the crime must be shown in order to justify finding the crime committed to be rebellion. Merely because it is alleged that appellants were members of the Moro Islamic Liberation Front or of the Moro National Liberation Front does not necessarily mean that the crime of kidnapping was committed in furtherance of a rebellion.136 Direct assault Direct assault, a crime against public order, may be committed in two ways: first, by any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition; and second, by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.137 Falsification In falsification committed by public officers, the offender “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.138

129

Philippine Rabbit Bus Lines vs. People, G.R. No. 147703, 14 April 2004, 427 SCRA 526 Pangonorom and MMTC vs. People, G.R. No. 143380, 11 April 2005, 455 SCRA 211 131 Pangonorom and MMTC vs. People, G.R. No. 143380, 11 April 2005, 455 SCRA 211 132 Pangonorom and MMTC vs. People, G.R. No. 143380, 11 April 2005, 455 SCRA 211 133 Astorga vs. People, G.R No. 154130, 20 August 2004, 437 SCRA 152 134 Astorga vs. People, G.R No. 154130, 01 October 2003 135 People vs. Oliva, G.R. No. 106826, 18 January 2001, 341 SCRA 78 136 People vs. Silongan, G.R. No. 137182, 24 April 2003, 401 SCRA 459 137 Rivera vs. People, G.R. No. 138553, 30 June 2005, 462 SCRA 350 138 Adaza vs. Sandiganbayan, G.R. No. 154886, 28 July 2005, 464 SCRA 460 130

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The petitioner was in possession of the forged deed of sale which purports to sell the subject land from the private complainant to him. Given this factual backdrop, the petitioner is presumed to be the author of the forged deed of sale, despite the absence of any direct evidence of his authorship of the forgery. Since the petitioner is the only person who stood to benefit by the falsification of the document found in his possession, it is presumed that he is the material author of the falsification.139 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.140 The accomplishment of the Personal Data Sheet being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment xxx" The filing of a Personal Data Sheet is required in connection with the promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.141 Use of falsified documents 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. The fact that they used the false certifications in support of this promotion resulted in prejudice to other applicants genuinely qualified for the position.142 Perjury For perjury to exist, (1) there must be a sworn statement that is required by law; (2) it must be made under oath before a competent officer; (3) the statement contains a deliberate assertion of falsehood; and (4) the false declaration is with regard to a material matter. xxx. On the element of materiality, a material matter is the main fact which is the subject of the inquiry or any fact or circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects the credit of any witness who testifies.143 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.144 A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused.In perjury, 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.145 Obscene publications Mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The law does not require that a person be caught in the act of selling, giving away or exhibiting

139

Recebido vs. People, G.R. No. 141931, 04 December 2000, 346 SCRA 881 Goma vs. Court of Appeals, G.R. No. 168437, 08 January 2009 141 Lumancas vs. Intas, G.R. No. 133472, 05 December 2000, 347 SCRA 22 142 Lumancas vs. Intas, G.R. No. 133472, 05 December 2000, 347 SCRA 22 143 Masangkay vs. People, G.R. No. 164443, 18 June 2010 144 Villanueva vs. Secretary of Justice, G.R. No. 162187, 18 November 2005, 475 SCRA 495 145 Villanueva vs. Secretary of Justice, G.R. No. 162187, 18 November 2005, 475 SCRA 495 140

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obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. 146 Direct bribery 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. 147 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.148 Indirect bribery Indirect bribery is committed by a public officer who shall accept gifts offered to him by reason of his office. The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal Code is that the public officer concerned must have accepted the gift or material consideration.149 Malversation of public funds or property Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation. To sustain a charge of malversation, there must either be criminal intent or criminal negligence and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Article 217 of the Revised Penal Code.150 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. xxx 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.151 Hence, a school principal of a public high school may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same.152 In malversation, all that is necessary to prove is that the defendant received in his possession public funds; that he could not account for them and did not have them in his possession; and that he could not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily.153 Demand to produce public funds under a public officer’s custody is not an essential element of the felony. The law creates a prima facie presumption of connivance if the public officer fails to produce public funds under his custody upon demand therefor.154

146

Fernando vs. Court of Appeals, G.R. No. 159751, 06 December 2006 Balderama vs. People, G.R. Nos. 147598-605, 28 January 2008; Merencillo vs. People, G.R. Nos. 142369-70, 13 April 2007 148 Garcia vs. Sandiganbayan, G.R. No. 155574, 20 November 2006 149 Garcia vs. Sandiganbayan, G.R. No. 155574, 20 November 2006 150 People vs. Ting Lan Uy, G.R. No. 157399, 17 November 2005, 475 SCRA 248 151 Barriga vs. Sandiganbayan, G.R. Nos. 161784-86, 26 April 2005, 457 SCRA 301 152 Torres vs. People, G.R. No. 1753074, 31 August 2011 153 Perez vs. People, G.R. No. 164763, 12 February 2008 154 Pondevida vs. Sandiganbayan, G.R. Nos. 160929-31, 16 August 2005, 467 SCRA 219 147

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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.155 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.156 The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate such practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds.157 Technical malversation 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.158 Under Article 220, technical malversation has three elements: a) that the offender is an accountable public officer; b that he applies public funds or property under his administration to some public use; and c) that the public use for which such funds or property were applied is different from the purpose for which they were originally appropriated by law or ordinance.159 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 is violated. Hence, malice or criminal intent is completely irrelevant. 160 Murder/homicide An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.161 Decapitation of the victim’s head constitutes outraging or scoffing at the corpse of the victim, thus qualifying the killing to murder.162 Death caused in a tumultuous affray 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 155

Agullo vs. Sandiganbayan, G.R. No. 132926, 20 July 2001, 361 SCRA 556 Barriga vs. Sandiganbayan, G.R. Nos. 161784-86, 26 April 2005, 457 SCRA 301 157 Chan vs. Sandiganbayan, G.R. No. 149613, 09 August 2005, 466 SCRA 190 158 Abdulla vs. People, G.R. No. 150129, 06 April 2005, 455 SCRA 78; Tetangco vs. Ombudsman, G.R. No. 156427, 20 January 2006, 479 SCRA 249 159 Ysidoro vs. People, G.R. No. 192330, 14 November 2012 160 Ysidoro vs. People, G.R. No. 192330, 14 November 2012 161 Rivera vs. People, G.R. No. 166326, 25 January 2006, 480 SCRA 188 162 People vs. Whisenhunt, G.R. No. 123819, 14 November 2001, 386 SCRA 586 156

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identifiable groups attack one another in a confused and disorganized manner, resulting in the death or injury of one or some of them.163 Slight physical injuries 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.164 Rape Republic Act No. 8385, otherwise also known as the Anti-Rape Act of 1997, has incorporated a new chapter in the Revised Penal Code. In a new provision, designated Article 266-A, the crime of rape is committed either by sexual intercourse or by sexual assault.165 Rape by sexual intercourse, pursuant to the first paragraph of the article, is committed by a man who shall have carnal knowledge of a woman,166 under any of the following circumstances; viz: (a)

Through force, threat, or intimidation;

(b)

When the offended party is deprived of reason or otherwise unconscious;

(c)

By means of fraudulent machination or grave abuse of authority; and

(d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. The last of the enumeration, item (d) above, constitutes what is so often referred to as statutory rape. Rape by sexual assault, mentioned in the second paragraph of the same article, is committed by any person who, under any of the aforestated circumstances, inserts his penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person.167 With these amendments, rape was reclassified as a crime against person and not merely a crime against chastity.168 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.169 Penile invasion necessarily entails contact with the labia. Even the briefest of contacts, without laceration of the hymen, is deemed to be rape.170 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.171 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.172 Rape through sexual assault Inserting a finger inside the genital of a woman is rape through sexual assault within the context of paragraph 2 of Article 266-A of the Revised Penal Code,173 and not merely an act of lasciviousness.174 163

People vs. Unlagada, G.R. No. 141080, 17 September 2002, 389 SCRA 224 Li vs. People, G.R. No. 127962, 14 April 2004, 427 SCRA 217 165 People vs. Buban, G.R. No. 166895, 24 January 2007 166 People vs. Buban, G.R. No. 166895, 24 January 2007 167 People vs. Olaybar, G.R. Nos. 130630-31, 01 October 2003, 412 SCRA 490 168 People vs. Fetalino, G..R. No. 174472, 19 June 2007 169 People vs. Jalosjos, G.R. Nos. 132875-76, 16 November 2001, 369 SCRA 179. 170 People vs. Basquez, G.R. No. 144035, 27 September 2001, 366 SCRA 154 171 People vs. Jalosjos, G.R. Nos. 132875-76, 16 November 2001, 369 SCRA 179 172 People vs. Plurad, G.R. Nos. 138361-63, 03 December 2002, 393 SCRA 306 173 People vs. Soriano, G.R. Nos. 142779-95, 29 August 2002, 388 SCRA 140 174 People vs. Fetalino, G..R. No. 174472, 19 June 2007 164

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Any physical overt act manifesting resistance against the rape in any degree from the victim is admissible as evidence of lack of consent. Tenacious resistance, however, is not required. Neither is a determined and persistent physical struggle on the part of the victim necessary.175 The medico-legal findings are merely corroborative in character and is not an element of rape. The prime consideration in the prosecution of rape is the victim's testimony, not necessarily the medical findings; a medical examination of the victim is not indispensable in a prosecution for rape. The victim's testimony alone, if credible, is sufficient to convict.176 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.177 Infanticide vs. unintentional abortion 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.178 Kidnapping and serious illegal detention 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.179 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. And liberty is not limited to mere physical restraint but embraces one’s right to enjoy his God-given faculties subject only to such restraints necessary for the common welfare.180 In cases of kidnapping, if the person detained is a child, the question is whether there was actual deprivation of the child's liberty, and whether it was the intention of the accused to deprive the parents of the custody of the child.181 In such case, the duration of his detention is immaterial. 182 If the kidnapping was done for the purpose of extorting ransom, the fourth element is no longer necessary.183 Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.184 The corpus delicti in the crime of kidnapping for ransom is the fact that an individual has been in any manner deprived of his liberty for the purpose of extorting ransom from the victim or any other person. Whether or not the ransom is actually paid to or received by the perpetrators is of no moment. In People vs. Salimbago, the Court stressed: “x x x No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim’s freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity.”185 It may include

175

People vs. Gondaway, G.R. Nos. 144344-68, 23 July 2002, 385 SCRA 155 People vs. Perez, G.R. No. 191265, 14 September 2011 177 People vs. Cabigquez, G.R. No. 185708, 29 September 2010 178 People vs. Paycana, G.R. No. 179035, 16 April 2008 179 People vs. Muit, G.R. 181043, 08 October 2008 180 People vs. Mamantak, G.R. 174659, 28 July 2008 181 People vs. Suriaga, G.R. No. 123779, 17 April 2002, 381 SCRA 159 182 People vs. Mamantak, G.R. 174659, 28 July 2008 183 People vs. Silongan, G.R. No. 137182, 24 April 2003, 401 SCRA 459 184 People vs. Tan, G.R. No. 177566, 26 March 2008 185 People vs. Castro, G.R. No. 132726, 23 July 2002, 385 SCRA 24 176

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benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the victim’s release.186 The amount of and purpose for the ransom is immaterial.187 The applicable rule when the abduction and killing happened before 31 December 1993,188 is: 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.189

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.” 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. In a way, R.A. 7659 depreciated the seriousness of rape because no matter how many times the victim was raped, like in the present case, there is only one crime committed – the special complex crime of kidnapping with rape.190 Kidnapping and failure to return a minor 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.191 Unjust vexation Unjust vexation 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.192 Robbery

186

People vs. Ejandra, G.R. No. 134203, 27 May 2004, 429 SCRA 364 People vs. Mamantak, G.R. 174659, 28 July 2008 188 Date of effectivity of R.A. No. 7659 189 People vs. Solangon, G.R. No. 172693, 21 November 2007. 190 People vs. Mirandilla, G.R. No. 186417, 27 July 2011 191 People vs. Pastrana, G.R. No. 143644, 14 August 2002, 387 SCRA 342; People vs. Bernardo, G.R. No. 144316, 11 March 2002, 378 SCRA 708 192 Maderazo vs. People, G.R. No. 165065, 26 September 2006 187

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In robbery, intent to gain or animus lucrandi may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. The intent to gain may be presumed from the proven unlawful taking.193 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.194 Robbery through intimidation or violence 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.195 Robbery with homicide 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.196 Even if the malefactor intends to kill and rob another, it does not preclude his conviction for the special complex crime of robbery with homicide. The fact that the intent of the felons was tempered with a desire also to avenge grievances against the victim killed, does not negate the conviction of the accused and punishment for robbery with homicide.197 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,198 or to prevent discovery of the commission of the robbery.199 But if robbery was an afterthought and a minor incident in the homicide, there are two distinct offenses.200 The term "homicide" in Article 294(1) is used in its generic sense, embracing 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.201 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.202 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.203 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.204 193

People vs. Reyes, G.R. No.135682, 26 March 2003, 399 SCRA 528 De Guzman vs. People, G.R. No.166502, __ October 2008 195 People vs. Reyes, G.R. No.135682, 26 March 2003, 399 SCRA 528 196 People vs. Lara, G.R. No. 171449, 23 October 2006 197 People vs. Milliam, G.R. No. 129071, 31 January 2000, 324 SCRA 155 198 People vs. Reyes, G.R. No. 153119, 13 April 2004, 427 SCRA 28 199 People vs. Jabiniao, G.R. No. 179499, 30 April 2008 200 People vs. Temanel, G.R. Nos. 97138-39, 28 September 2000, 341 SCRA 319 201 People vs. Zuela, G.R. No. 112177, 28 January 2000, 323 SCRA 589 202 People vs. Dinamling, G.R. No. 134605, 12 March 2002, 379 SCRA 107 203 People vs. Napalit, G.R. No. 142919, 04 February 2003, 396 SCRA 687 204 People vs. Fabon, G.R. No. 133226, 16 March 2000, 328 SCRA 302 194

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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.205 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. xxx. Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime. xxx. In fine, 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.206 Robbery with rape In robbery with rape, the offender must have the intent to take the personal property of another under circumstances that makes the taking one of robbery, and such intent must precede the rape. 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.207 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.208 Multiplicity of rapes can neither affect the criminal liability of the accused. 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.209 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.”210 Qualified theft While the mere circumstance that the petitioner is an employee or laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the crime as qualified theft, it has been held that access to the place where the taking took place or access to the stolen items changes the complexion of the crime committed to that of qualified theft.211 Deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession remains with the bank. If the teller appropriates the money for personal gain then the felony committed is theft and not estafa. Further, since the teller occupies a position of confidence, and the bank

205

People vs. Montinola, G.R. Nos. 131856-57, 09 July 2001, 360 SCRA 631 People vs. Escote, 140756, 04 April 2003, 400 SCRA 603; People vs. Ancheta, G.R. No. 143935, 04 June 2004, 431 SCRA 42 207 People vs. Moreno, G.R. No. 140033, 25 January 2002, 374 SCRA 667 208 People vs. Verceles, G.R. No. 130650, 10 September 2002, 388 SCRA 515 209 People vs. Seguis, G.R. No. 135034, 18 January 2001, 349 SCRA 547 210 People vs. Gano, G.R. No. 134373, 28 February 2001, 353 SCRA 126, citing People vs. Regala. 211 Cariaga vs. Court of Appeals, G.R. No. 143561, 09 June 2001, 358 SCRA 583 206

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places money in the teller’s possession due to the confidence reposed on the teller, the felony of qualified theft would be committed.212 Estafa A fiduciary relationship between the complainant and the accused is an essential element of estafa by misappropriation or conversion, without which the accused could not have committed estafa.213 The elements of estafa by misappropriation or conversion are: (1) the offender’s receipt of money, goods, or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to deliver, or to return, the same; (2) misappropriation or conversion by the offender of the money or property received, or denial of receipt of the money or property; (3) the misappropriation, conversion or denial is to the prejudice of another; and (4) demand by the offended party that the offender return the money or property received. xxx. The words “convert” and “misappropriate” connote the act of using or disposing of another’s property as if it were one’s own, or of devoting it to a purpose or use different from that agreed upon. To misappropriate for one’s own use includes not only conversion to one’s personal advantage, but also every attempt to dispose of the property of another without right. 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.214 The consummation of the crime of estafa does not depend on the fact that a request for a return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied.215 Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of the money or property subject of the Information. In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion. However, failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.216 Demand need not be formal. It may be verbal. Even a query as to the whereabouts of the money is tantamount to a demand.217 Article 315 of the Revised Penal Code provides that “any person who shall defraud another by any means mentioned [in Article 315]” may be held liable for estafa. The use by the law of the word “another” instead of the word “owner” means that as an element of the offense, loss should have fallen upon someone other than the perpetrator of the crime.218 A person who has committed illegal recruitment may be charged and convicted separately of the crime of illegal recruitment under the Labor Code and estafa under paragraph 2(a) of Article 315 of the Revised Penal Code. The reason for the rule is that the crime of illegal recruitment is malum prohibitum where the criminal intent of the accused is not necessary for conviction, while the crime of estafa is malum in se where the criminal intent of the accused is necessary for conviction. In other words, a person convicted under the Labor Code may also be convicted of offenses punishable by other laws.219 In estafa by postdating a check, 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.220 To constitute estafa by postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation, and as such it should be either prior to, or simultaneous with the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of a check whether postdated or not. That is, the latter would not have parted with his money or 212

Roque vs. People, G.R. No. 138954, 25 November 2004, 444 SCRA 98 Murao vs. People, G.R. No. 141485, 30 June 2005, 462 SCRA 366 214 Pamintuan vs. People, G.R. No. 172820, 23 June 2010 215 Nepomoceno vs. People, G.R. No. 166246, 30 April 2008 216 Cosme vs. People, G.R. No. 149753, 27 November 2006 217 Lee vs. People, G.R. No. 157781, 11 April 2005, 455 SCRA 256 218 Salazar vs. People, G.R. No. 149472, 15 October 2002, 391 SCRA 162 219 People vs. Comila, G.R. No. 171448, 28 February 2007 220 People vs. Dinglasan, G.R. No. 133645, 17 September 2002, 389 SCRA 71 213

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other property were it not for the issuance of the check.221 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 preexisting obligation.222 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.223 The 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.224 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.225 Uncollected deposits are not the same as insufficient funds. The prima facie presumption of deceit arises only when a check has been dishonored for lack or insufficiency of funds. Notably, the law speaks of insufficiency of funds but not of uncollected deposits.226 Under paragraph 2(d), 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. 227 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) Notice of dishonor being then an element of a charge under Article 2(d) under which petitioner was clearly charged, failure to prove it is a ground for acquittal thereunder.228 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 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.229

221

People vs. Reyes, G.R. No. 154159, 31 March 2005, 454 SCRA 635 People vs. Nagrampa, G.R. No. 146211, 06 August 2002, 386 SCRA 412 223 People vs. Reyes, G.R. No. 154159, 31 March 2005, 454 SCRA 635 224 People vs. Dinglasan, G.R. No. 133645, 17 September 2002, 389 SCRA 71 225 Ibid.; Flores vs. People, G.R. Nos. 146921-22, 31 January 2002, 375 SCRA 491; People vs. Holzer, G.R. No. 132323, 20 July 2000, 336 SCRA 319. 226 Dy vs. People, G.R. No. 158312, 14 November 2008 227 People vs. Ojeda, G.R. Nos. 104238-58, 03 June 2004, 430 SCRA 436 228 Ong vs. People, G.R. No. 165275, 23 September 2008 229 People vs. Durano, G.R. No. 175316, 28 March 2007; Recuerdo vs. People, G.R. No. 168217, 27 June 2006, 493 SCRA 517 222

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Arson 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.230 Forcible abduction with rape 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. 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.231 Bigamy 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.232 A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. xxx. The requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her marriage, the person who marries again cannot be charged with bigamy.233 The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.234 Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena P. Geraldino, did not comply with the above-mentioned provision of the law. In fact, he did not even declare that he was a Muslim convert in both marriages, indicating his criminal intent. In his converting to the Muslim faith, said accused entertained the mistaken belief that he can just marry anybody again after marrying the private complainant. What is clear, therefore, is [that] a Muslim is not given an unbridled right to just marry anybody the second, third or fourth time. There are requirements that the Shari’a law imposes, that is, he should have notified the Shari’a Court where his family resides so that copy of said notice should be furnished to the first wife. The argument that notice to the first wife is not required since she is not a Muslim is of no moment. This obligation to notify the said court rests upon accused Atilano Nollora, Jr. It is not for him to interpret the Shari’a law. It is the Shari’a Court that has this authority. 235 Libel In determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain, natural and ordinary meaning as they would naturally be 230

People vs. Malngan, G.R. No. 170470, 26 September 2006 People vs. Mirandilla, G.R. No. 186417, 27 July 2011 232 Manuel vs. People, G.R. No. 165482, 29 November 2005, 476 SCRA 461 233 Teves vs. People, G.R. No. 188775, 24 August 2011 234 Morigo vs. People, G.R. No. 145226, 06 February 2004, 422 SCRA 376 235 Nollora vs. People, G.R. No. 191425, 07 November 2011 231

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understood by persons reading them, unless it appears that they were used and understood in another sense.236 In libel cases, the question is not what the writer of the libelous material means, but what the words used by him mean.237 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.238 It is enough that the author of the libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public.239 Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks not in response to duty, but merely to injure the reputation of the person defamed; 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.240 Unfounded and malicious statements made by one against another in the course of an election campaign, or by reason of differences in political views are not per se constitutionally protected speech. Our laws on defamation provide for sanctions against unjustified and malicious injury to a person’s reputation and honor. Although wider latitude is given to defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public figures in relation to matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officer’s performance of his duties, the same may give rise to criminal and civil liability. 241 In libel cases against public officials, for liability to arise, the alleged defamatory statement must relate to official conduct, even if the defamatory statement is false, unless the public official concerned proves that the statement was made with actual malice, that is, with knowledge that it was false or not.242 The “actual malice” rule to apply not only to public officials, but also to public figures. If the statements made against the public figure are essentially true, then no conviction for libel can be had. Any statement that does not contain a provably false factual connotation will receive full constitutional protection.243 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,244 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.”245 An editor or manager of a newspaper, who has active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a libelous article. On the theory that it is the duty of the editor or manager to know and control the contents of the paper, it is held that said person cannot evade responsibility by abandoning the duties to employees, so that it is immaterial whether or not the editor or manager knew the contents of the publication.246

236

Binay vs. Secretary of Justice, G.R. No. 170643, 08 September 2006 Figueroa vs. People, G.R. No. 159813, 09 August 2006 238 Magno vs. People, G.R. No. 133896, 27 January 2006, 480 SCRA 276 239 Buatis vs. People, G.R. No. 142509, 24 March 2006, 485 SCRA 275 240 Brillante vs. Court of Appeals, G.R. Nos. 118757 and 121571, 19 October 2004, 440 SCRA 541 241 Ibid. 242 Jalandoni vs. Hon. Secretary of Justice, G.R. Nos. 115239-40, 02 March 2000, 327 SCRA 107 243 Guingguing vs. Court of Appeals, G.R. No. 128959, 30 September 2005, 471 SCRA 196 244 CA-G.R. CR No. 13561, 06 November 1995 245 Fermin vs. People, G.R. No. 157643, 28 March 2008 246 Tulfo vs. People, G.R. No. 161032, 16 September 2008 237

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The venue of libel cases where the complainant is a private individual is limited to only either of two places, namely: 1) where the complainant actually resides at the time of the commission of the offense; or 2) where the alleged defamatory article was printed and first published. xxx. If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published (not where the defamatory article was first accessed by private complainant), as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass.247 The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website on the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenez’s premise of equating his first access to the defamatory article on petitioners’ website in Makati with “printing and first publication” would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website.248 Slander Slander is libel committed by oral (spoken) means, instead of in writing. The term oral defamation or slander as now understood, has been defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood. There is grave slander when it is of a serious and insulting nature. The gravity of the oral defamation depends not only (1) upon the expressions used, but also (2) on the personal relations of the accused and the offended party, and (3) the circumstances surrounding the case. Indeed, it is a doctrine of ancient respectability that defamatory words will fall under one or the other, depending not only upon their sense, grammatical significance, and accepted ordinary meaning judging them separately, but also upon the special circumstances of the case, antecedents or relationship between the offended party and the offender, which might tend to prove the intention of the offender at the time.249 Slander by deed Slander by deed is a libel committed by actions rather than words. The most common examples are slapping someone or spitting on his/her face in front of the public market, in full view of a crowd, thus casting dishonor, discredit, and contempt upon the person of another.250 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. While it may have cast dishonor, discredit or contempt upon complainant, said act is not of a serious nature.251 Criminal negligence Violation of Article 365 of the RPC cannot absorb violation of special laws. A mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.252 -o0o247

Bonifacio vs. RTC of Makati, Branch 149, et al., G.R. No. 184800, 05 May 2010 Ibid. 249 Villanueva vs. People, G.R. No. 160351, 10 April 2006, 487 SCRA 42 250 Ibid. 251 Ibid. 252 Loney vs. People, G.R. No. 152644, 10 February 2006, 482 SCRA 194 248

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