Quamto Criminal Law 2017

University of Santo Tomas Faculty of Civil Law

CRIMINAL LAW Questions Asked More Than Once

(QuAMTO 2017) *QUAMTO is a compilation of past bar questions with answers as suggested by UPLC and other distinct luminaries in the academe, and updated by the UST Academics Committee to fit for the 2017 Bar Exams. *Bar questions are arranged per topic in accordance with the bar syllabus released by the Supreme Court and were selected based on their occurrence on past bar examinations from 1987 to 2016.

ACADEMICS COMMITTEE CAMILLE ANGELICA B. GONZALES

SECRETARY GENERAL

EMNIE VALERIE B. DURAN IRVIN L. PALANCA LARA NICOLE T. GONZALES MARIELLA A. MARASIGAN

EXECUTIVE COMMITTEE

CAMILLE ANGELICA B. GONZALES

LAYOUT AND DESIGN

QUAMTO COMMITTEE MEMBERS JACKIELYN KRYSTYL NIHAMA BANA KARL ANTHONY BULAONG MERVIN MARCOS KELLY ANN RUBIN NESTOR FERNANDO SIAZON

ATTY. AL CONRAD B. ESPALDON ADVISER

QUAMTO (1987-2016) Q: Distinguish between crimes mala in se and mala prohibita. (1997, 1999, 2001, 2003, 2005 Bar)

CRIMINAL LAW QUAMTO

A: In concept, crimes mala in se are those where the acts or omissions penalized are intently bad, evil, or wrong that they are almost universally condemned. Crimes mala prohibita are those where the acts penalized are not inherently bad, evil, or wrong but prohibited by law for public good, public welfare, or interest and whoever violate the prohibition are penalized.

PART I. REVISED PENAL CODE BOOK I

A. FUNDAMENTAL AND GENERAL PRINCIPLES IN CRIMINAL LAW Power of Congress to Enact Penal Laws

In legal implications, in crimes mala in se, good faith or lack of criminal intent or negligence is a defense, while in crimes mala prohibita, good faith or lack of criminal intent or malice is not a defense; it is enough that the prohibition was voluntarily violated. Also, criminal liability is generally incurred in crimes mala in se even when the crime is only attempted or frustrated, while in crimes mala prohibita, criminal liability is generally incurred only when the crime is consummated.

Q: What are the limitations upon the power of Congress to enact penal laws? (1988, 2012 Bar) A: The limitations upon the power of congress to enact penal laws are as follows: 1. 2. 3.

Congress cannot enact an ex post facto law. Congress cannot enact a bill of attainder. Congress cannot provide for a cruel punishment.

Also in crimes mala in se, mitigating and aggravating circumstances are appreciated in imposing the penalties, while in crimes mala prohibita, such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the Revised Penal Code.

However, other limitations may be considered like: 1. 2.

Congress cannot enact a law which shall punish for a condition. Congress shall punish an act and not the condition or status. (Robinson v. California) Congress should consider Article 21 of the Revised Penal Code which provides that “penalties that may be imposed. No felony shall be punishable by any penalty not prescribed by law prior to its commission.”

Lack of criminal intent is a valid defense in mala in se except when the crime results from criminal negligence. Such defense is not available in cases of mala prohibita. Q: May an act be malum in se and be, at the same time, malum prohibitum? (1997 Bar)

Doctrine of Pro Reo (2010, 2012 Bar)

A: Yes, an act may be malum in se and malum prohibitum at the same time. In People v. Sunico, et. al. (CA, 50 OG 5880) it was held that the omission or failure of election inspection and poll clerks to include a voter’s name in the registry list of voters is wrong per se because it disenfranchises a voter of his right to vote. In this regard, it is considered as malum in se. Since it is punished under a special law (Sec. 101 and 103, Revised Election Code), it is considered malum prohibitum.

Q: What is the Doctrine of Pro Reo? How does it relate to Article 48 of the Revised Penal Code? (2010 Bar) A: The Doctrine of Pro Reo provides that whenever a penal law is to be construed or applied and the law admits of two interpretations, one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted. Following this doctrine, crimes under Art. 48 of the RPC are complexed and punished with a single penalty (that prescribed for the most serious crime and to be imposed in its maximum period). The rationale being, that the accused who commits two crimes with a single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions (People v. Comadre, G.R. No. 153559, June 8, 2004). However, Art. 48 shall be applied only when it would bring about the imposition of a penalty lesser than the penalties imposable for all the component crimes if prosecuted separately.

Applicability and Effectivity of the Penal Code (1988, 1994, 1998, 2000, 2015, 2016 Bar) Q: State the characteristics of criminal law and explain each. (1988, 1998 Bar) A: The characteristics of criminal law are as follows: 1. 2.

Q: What is the fundamental principle in applying and interpreting criminal laws xxx? (2012 Bar) A: The fundamental principle in interpreting and applying penal laws is the principle of pro reo. The phrase “in dubio pro reo” means “when in doubt, for the accused” (Intestate Estate of Gonzales v. People, GR No. 181409, February 11, 2010). This is in consonance with the constitutional guarantee that the accused ought to be presumed innocent until and unless his guilt is established beyond reasonable doubt (See People v. Temporary, GR No. 173473)

3.

Generality – that the law is binding upon all persons who reside to sojourn in the Philippines, irrespective of age, sex, color, creed, or personal circumstances. Territoriality – that the law is applicable to all crimes committed within the limits of Philippine territory, which includes its atmosphere interior water and maritime zone. (Art. 2) Prospectivity – that the law does not have any retroactive effect, except if it favors the offender unless he is a habitual delinquent (Art. 22) or the law otherwise provides.

Q: Abe, married to Liza, contracted another marriage with Connie in Singapore. Thereafter, Abe and Connie returned to the Philippines and lived as husband and wife in the hometown of Abe in Calamba, Laguna. Can Abe be prosecuted for bigamy? (1994 Bar)

Mala in Se and Mala Prohibita (1997, 1999, 2001, 2003, 2005 Bar)

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CRIMINAL LAW A: No. Abe may not be prosecuted for bigamy since the bigamous marriage was contracted or solemnized in Singapore, hence, such violation is not one of those where the Revised Penal Code, under Art. 2 thereof, may be applied extraterritoriality. The general rule on territoriality of criminal law governs the situation.

scene of their confrontation and seeing that nobody was there, went home to sleep. The next day, B’s wife reported to the police station that her husband had not yet come home. A search was conducted by the residents of the barangay but after almost two days, B or his body could not be located and his disappearance continued for the next few days. Based on the testimony of C and other guests, who had seen A and B on top of the cliff, A was arrested and charged with Murder. In his defense, he claimed that since B’s body has not been found, there was no evidence of corpus delicti and therefore, he should be acquitted.

Q: After drinking one (1) case of San Miguel Beer and taking two plates of “pulutan”, Binoy, a Filipino seaman, stabbed to death Sio My, a Singaporean seaman, aboard M/V “Princess of the Pacific”, an overseas vessel which was sailing in the South China Sea. The vessel, although Panamanian registered, is owned by Lucio Sy, a rich Filipino businessman. When M/V “Princess of the Pacific” reached a Philippine Port at Cebu City, the Captain of the vessel turned over the assailant Binoy to the Philippine authorities. An Information for homicide was filed against Binoy in the Regional Trial Court of Cebu City. He moved to quash the Information for lack of jurisdiction. If you were the judge, will you grant the motion? Why? (2000 Bar)

Is the defense of A tenable or not? State the reason(s) for your answer? (2001 Bar) A: The defense of A is not tenable. “Corpus delicti” does not refer to the body of the purported victim which had not been found. Even without the body of the purported victim being found, the offender can be convicted when the facts and circumstances of a crime, the body of the crime or “corpus delicti” is established.

A: Yes. The motion to quash the information should be granted. The Philippine court has no jurisdiction over the crime committed since it was committed on the high seas or outside of Philippine territory and on board a vessel not registered or licensed in the Philippines (US v. Fowler, 1 Phil 614)

In other words, the non-recovery of the body of the victim is not a bar to the prosecution of A for Murder, but the fact of death and identity of the victim must be established beyond reasonable doubt. Motive and Intent

It is the registration of the vessel in accordance with the laws of the Philippines, not the citizenship of her owner, which makes it a Philippine ship. The vessel being registered in Panama, the laws of Panama govern while it is in the high seas.

Q: May a crime be committed without criminal intent? (1988 Bar) A: A crime may be committed without criminal intent in two cases: 1. In offense punishable as mala prohibita; and 2. Felonies committed by means of culpa.

B. FELONIES Corpus delicti

Q: Distinguish intent from motive in Criminal Law. (1996, 2004 Bar)

Q: (a) Define “Corpus delicti”. (b) What are the elements of “Corpus delicti”? (2000 Bar)

A: Motive is the moving power which impels one to action for a definite result; whereas intent is the purpose to use a particular means to effect such results. Motive is not an essential element of a felony and need not be proved for purpose of conviction, while intent is an essential element of felonies by dolo.

A: (a) Corpus Delicti literally means “the body or substance of the crime” or the fact that a crime has been committed, but does not include the identity of the person who committed it. (People v. Pascal, 44 OG 2789)

Q: When is motive relevant to prove a case? When is it not necessary to be established? Explain. (1999, 2006 Bar)

(b) Elements of corpus delicti: The actual commission by someone of the particular crime charged. It is a compound fact made up of two things:

A: Motive is relevant to prove a case when there is doubt as to the identity of the offender or when the act committed gives rise to variant crimes and there is the need to determine the proper crime to be imputed to the offender.

(1) The existence of a certain act or result forming the basis of the criminal charge; and (2) The existence of a criminal agency as the cause of the act or result.

It is not necessary to prove motive when the offender is positively identified or the criminal act did not give rise to variant crimes.

The identity of the offender is not a necessary element of corpus delicti.

IMPOSSIBLE CRIME (1994, 1998, 2000, 2004, 2009, 2014)

Q: At a birthday party in Cebu, A got intoxicated and started quarreling with B and C. At the height of their arguments, A left and took a bolo from his house, after which he returned to the party and threatened to stab everybody. B got scared and ran towards the seashore, with A chasing him. B ran up a steep incline along the shore and was cornered on top of a cliff. Out of fear, B jumped from the cliff into the sea. A returned to the UST BAR OPERATIONS

Q: JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the assistance of Ella, who is familiar with the place. On April 3, 1992, at about 10:00 in the evening, JP, Aries and Randal, all armed with automatic weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of Elsa.

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QUAMTO (1987-2016) Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she attended a prayer meeting that evening in another barangay in Laurel.

“Impossible Crime to Commit Kidnapping” against Enrique. Is the prosecutor correct? (2000 Bar) A:

JP, et. al., were charged and convicted of attempted murder by the Regional Trial Court at Tanauan, Batangas. On appeal to the Court of Appeals, all the accused ascribed to the trial court the sole error of finding them guilty of attempted murder.

a.

b. If you were the ponente, how will you decide the appeal? (1994 Bar) A: If I were the ponente, I will set aside the judgment convicting the accused of attempted murder and instead find them guilty of impossible crime under Art. 4, par. 2, RPC, in relation to Art. 59, RPC. Liability for impossible crime arises not only when the impossibility is legal, but likewise when it is factual or physical impossibility, as in the case at bar.

c.

Impossible crime is an act which would be an offense against person or property, were if not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Art. 4, par. 2, RPC). No, an impossible crime is not really a crime. It is only so-called because the act gives rise to criminal liability. But actually, no felony is committed. The accused is to be punished for his criminal tendency or propensity although no crime was committed. Yes, A, B, C and D are liable for destructive arson because of the destruction of the room of X with the use of an explosive, the hand grenade. Liability for an impossible crime is to be imposed only if the act committed would not constitute any other crime under the Revised Penal Code. Although the facts involved are parallel to the case of Intod v. CA (215 SCRA 52), where it was ruled that the liability of the offender was for an impossible crime, no hand grenade was used in the said case, which constitutes a more serious crime though different from what was intended.

Elsa’s absence from the house is a physical impossibility which renders the crime intended inherently incapable of accomplishment. To convict the accused of attempted murder would make Art. 4, par. 2, practically useless as all circumstances which prevented the consummation of the offense will be treated as an incident independent of the actor’s will which is an element of attempted or frustrated felony. (Intod v. CA, 215 SCRA 52)

d.

Q: Puti detested Pula, his roommate, because Pula was courting Ganda, whom Puti fancied. One day, Puti decided to teach Pula a lesson and went to a veterinarian to ask for poison on the pretext that he was going to kill a sick pet, when actually Puti was intending to poison Pula, the Vet instantly gave Puti a non-toxic solution which, when mixed with Pula’s food, did not kill Pula. What crime, if any, did Puti commit? (1994, 1998, 2004, 2009, 2014 Bar)

No, the prosecutor is not correct in filing a case for “impossible crime to commit kidnapping” against Enrique. Impossible crimes are limited only to acts which when performed would be a crime against persons or property. As kidnapping is a crime against personal security and not against persons or property, Enrique could not have incurred an “impossible crime” to commit kidnapping. There is thus no impossible crime of kidnapping. STAGES OF EXECUTION (1996, 2000, 2005, 2015)

A: Puti committed an impossible crime of murder. Puti, with intent to kill Pula, unknowingly employed ineffectual means to accomplish the intended felony, that is, using a non-toxic solution.

Q: Edgardo induced his friend Vicente, in consideration of money, to kidnap a girl he is courting so that he may succeed in raping her and eventually making her accede to marry him. Vicente asked for more money which Edgardo failed to put up. Angered because Edgardo did not put up the money he required, he reported Edgardo to the police. May Edgardo be charged with attempted kidnapping? (1996 Bar)

Q: a. What is an impossible crime? b. Is an impossible crime really a crime? c. A, B, C and D, all armed with armalites, proceeded to the house of X, Y, a neighbor of X, who happened to be passing by, pointed to the four culprits the room that X occupied. The four culprits peppered the room with bullets. Not satisfied, A even threw a hand grenade that totally destroyed X’s room. However, unknown to the four culprits, X was not inside the room and nobody was hit or injured during the incident. Are A, B, C and D liable for any crime? Explain. d. Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and fetch her to and from school. Enrique wrote a ransom note demanding P500,0 00 from Carla’s parents in exchange for Carla’s freedom. Enrique sent the ransom note by mail. However, before the ransom note was received by Carla’s parents, Enrique’s hideout was discovered by the police. Carla was rescued while Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla’s parents, the investigating prosecutor merely filed a case of

A: No. Edgardo may not be charged with attempted kidnapping inasmuch as no overt act to kidnap or restrain the liberty of the girl had been commenced. At most, what Edgardo has done in the premises was a proposal to Vicente to kidnap the girl, which is only a preparatory act and not an overt act. The attempt to commit a felony commences with the commission of overt act, not preparatory act. Proposal to commit kidnapping is not a crime. Q: Taking into account the nature and elements of the felonies of coup d’etat and rape, may one be criminally liable for frustrated coup d’etat or frustrated rape? Explain. (2005 Bar) A: No. A person may not be held liable for frustrated coup d’ etat or for frustrated rape because in a frustrated felony, it is required that all acts of execution that could produce the felony as a consequence must have been performed by the offender but the felony was not produced by reason of causes independent of the will of the offender. In the said felonies, one cannot perform all the acts of execution

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CRIMINAL LAW without consummating the felony. The said felonies, therefore, do not admit of the frustrated stage.

invited him to poker session at a rented beach cottage. When he was losing almost all his money which to him was his savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal, he decided to take revenge on the three cheats.

COMPLEX AND COMPOSITE CRIMES Complex crime (1987, 1989, 1991, 1994, 1995, 1996, 1999, 2000, 2003, 2007)

Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did, until they all fell asleep. When Harry saw his companions already sound asleep, he hacked them all to death. Then he remembered his losses, he rifled through the pockets of his victims and got back all the money he lost. He then ran away but not before burning the cottage to hide his misdeed. The following day, police investigators found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort.

Q: Jose purchased roofing materials worth P20, 000 from PY & Sons Construction Company owned by Pedro and paid the latter a check in the said amount. The following day, Pedro deposited the check but it was returned dishonored because it was drawn against a closed account. Jose failed to make good the said check despite written demands. Atty. Saavedra, counsel for Pedro, filed two complaints against Jose with the Office of the Provincial Fiscal, one for estafa under Article 315 of the Revised Penal Code and another for violation of BP Blg. 22. Atty. San Pascual, counsel for Jose, claimed that if his client was at all liable, he could only be liable for violation of BP 22 and not for estafa under Art. 315 of the RPC because one precludes the other and because BP 22 is more favorable to the accused as it carries a lighter penalty.

The Provincial Prosecutor charged Harry with the complex crime of arson with quadruple homicide and robbery. Was Harry properly charged? Discuss. (1995 Bar) A: No. Harry was not properly charged. Harry should have been charged with three (3) separate crimes, namely: murder, theft, and arson.

The investigating fiscal, on his resolution, stated that only one crime was committed, namely, the complex crime of estafa under Art. 315 of the RPC and another under BP 22.

Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse of time before he decided to commit the crime and the actual commission of the crime. In addition, Harry employed means which weakened the defense of Jason, Manuel, and Dave. Harry gave them the liquor to drink until they were drunk and fell asleep.

Is the investigating fiscal correct? (Question reframed) (1987 Bar) A: The resolution of the investigating fiscal is erroneous. There is no complex crime of estafa under Art. 315 of the Revised Penal Code and the violation of BP 22. A complex crime refers only to felonies which are punished in the Revised Penal Code.

The taking of the money was a mere afterthought of the killings. Hence, Harry committed the separate crime of theft and not the complex crime of robbery with homicide. Although theft was committed against dead persons, it is still legally possible as the offended party are the estates of the victims.

Q: Rodolfo, a policeman, was cleaning his service pistol inside his house when it fell from his hand and fired. The bullet hit a neighbor on the stomach and a second neighbor on the leg. The injuries sustained by the two neighbors required thirty-five (35) days and nine (9) days of medical attendance, respectively. The investigating fiscal later filed an information for frustrated homicide and slight physical injuries through reckless imprudence against Rodolfo. Is the charge correct? Explain. (1989 Bar)

In burning the cottage, it is another separate crime of arson. The act of burning was not necessary for the consummation of the two previous offenses he committed. The fact that the caretaker died from the blaze did not qualify Harry’s crime into a complex crime of arson with homicide for there is no such crime. Hence, Harry was improperly charged with the complex crime of arson with quadruple homicide and robbery. Harry should have been charged with three separate crimes, murder, theft and arson.

A: The charge is not correct. One single act of accidental shooting cannot give rise to two felonies. One of which is intentional and the other negligent. Frustrated homicide presupposes intent to kill. The facts do not show any intent to kill on the part of Rodolfo. At most, he was careless, and therefore only negligent.

Q: A, actuated by malice and with the use of a fully automatic M-14 sub-machine gun, shot a group of persons who were seated in a cockpit with one burst of successive, continuous, automatic fire. Four (4) persons were killed thereby, each having hit by different bullets coming from the sub-machine gun of A. Four (4) cases of murder were filed against A.

Two separate crimes of serious physical injuries (against the first neighbor whose injuries requires 35 days of medical attendance), and slight physical injuries (against the second neighbor), both through reckless imprudence, were committed by Rodolfo. Although both of these offenses were the result of one single act, a complex crime is not committed because it is only when a single act constitutes two or more grave or less grave felonies that a complex crime may be committed under the first clause of Article 48, RPC. Slight physical injuries is not a grave or less grave felony.

The trial court ruled that there was only one crime committed by A for the reason that, since A performed only one act, he having pressed the trigger of his gun only once, the crime committed was murder. Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua.

Q: Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings. Knowing him to be “loaded”, his friends Jason, Manuel and Dave UST BAR OPERATIONS

(A) Was the decision of the trial judge correct? Explain.

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QUAMTO (1987-2016) (B) What constitutes a complex crime? How many crimes may be involved in a complex crime? What is the penalty therefor? (1999 Bar)

A: In concept – An ordinary complex crime is made up of two or more crimes being punished in distinct provisions of the Revised Penal Code but alleged in one information either because they were brought about by a single felonious act or because one offense is a necessary means for committing the other offense or offenses. They are alleged in one information so that only one penalty shall be imposed.

A: (A) The decision of the trial judge is not correct. When the offender made use of an automatic firearm, the acts committed are determined by the number of bullets discharged inasmuch as the firearm being automatic, the offender need only press the trigger once and it would fire continually. For each death caused by a distinct and separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act of pressing the trigger which should be considered as producing the several felonies, but the number of bullets which actually produced them. (B) A complex crime is constituted when a single act caused two or more grave or less grave felonies or when an offense is committed as a necessary means to commit another offense. (Art 48, RPC)

A special complex crime, on the other hand, is made up of two or more crimes which are considered only as components of a single indivisible offense being punished in one provision of the Revised Penal Code. As to penalties – In ordinary complex crime, the penalty for the most serious crime shall be imposed and in its maximum period. In special complex crime, only one penalty is specifically prescribed for all the component crimes which are regarded as one indivisible offense. The component crimes are not regarded as distinct crimes and so the penalty to be imposed for the most serious crime is not the penalty to be imposed nor in its maximum period. It is the penalty specifically provided for the special complex crime that shall be applied according to the rules on imposition of the penalty.

At least two crimes are involved in a complex crime; either two or more grave or less grave felonies resulted from a single act, or an offense is committed as a necessary means for committing another. The penalty for the more serious crime shall be imposed and in its maximum period. (Art. 48, RPC)

Composite crime (1998, 1999, 2004)

Q: Distinguish between – (1) xxx (2) Between compound concepts. (2004 Bar)

and

complex

crime

Q: A, B, C and D all armed, robbed a bank and when they were about to get out of the bank, policemen came and ordered them to surrender but they fired on the police officers who fired back and shot it out with them. Suppose a bank employee was killed and the bullet which killed him came from the firearm of the police officers, with what crime shall you charge A, B, C and D? (1998, 2004 Bar)

as

A: Compound crimes result when the offender committed only a single felonious act from which two or more crimes resulted. This is provided for in modified form in the first part of Article 48, RPC, limiting the resulting crimes to only grave and/or less grave felonies. Hence, light felonies are excluded even though resulting from the same single act.

A: A, B, C and D should be charged with the crime of robbery with homicide because the death of the bank employee was brought about by the acts of said offenders on the occasion of robbery. They shot it out with the policeman, thereby causing such death by reason or on the occasion of robbery; Hence, the composite crime of robbery with homicide.

Complex crime result when the offender has to commit an offense as a necessary means for committing another offense. Only one Information shall be filed and if proven, the penalty for the more serious crime shall be imposed. Special Complex Crime (1989, 1995, 1997, 2003, 2005, 2006, 2016)

Q: Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One evening, Raul rode on the sidecar, poked a knife at Samuel and instructed him to go near a bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel several times until he was dead. Raul fled from the scene taking the motorcycle with him. What crime(s) did Raul commit? (1998, 2004 Bar)

Q: After raping the complainant in her house, the accused struck a match to smoke a cigarette before departing from the scene. The brief light from the match allowed him to notice a watch in her wrist. He demanded that she hand over the watch. When she refused, he forcibly grabbed it from her. The accused was charged with and convicted of the special complex crime of robbery with rape. Was the court correct? (1997 Bar) A: No. The accused should instead be held liable for two separate crimes of robbery and rape, since the primary intent or objective of the accused was only to rape the complainant, and his commission of the robbery was merely an afterthought. The robbery must precede the rape, in order to give rise to the special complex crime for which the court convicted the accused.

A: Raul committed the composite crime of Carnapping with homicide under Sec. 14 of RA 6539, as amended, considering that the killing “in the course of” or “on the occasion of” a carnapping. (People v. De la Cruz, 183 SCRA 763). A motorcycle is included in the definition of a “motor vehicle” in said Republic Act. There is no apparent motive for the killing of the tricycle driver but for Raul to be able to take the motorcycle. The fact that the tricycle driver was killed brings about the penalty of reclusion perpetua to death.

Q: Distinguish between an ordinary complex crime and a special complex crime as to their concepts and as to the imposition of penalties. (2003 Bar)

Q: Two young men, A and B, conspired to rob a residential house of things of value. They succeeded in the commission of their original plan to simply rob. A,

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CRIMINAL LAW however, was sexually aroused when he saw the lady owner of the house, and so raped her.

so fast that Pat Negre fired warning shots into the air shouting for Filemon to stop. In as much as Filemon continued running Pat. Negre fired at him hitting and killing him. Is the plea of self-defense sustainable? Why would you then hold Pat. Negre criminally liable? Discuss. (1993 Bar)

The lady victim testified that B did not in any way participate in the rape but he watched the happening from a window and did nothing to stop the rape. Is B as criminally liable as A for robbery with rape? Explain. (1999 Bar)

A:

A: Yes. B is as criminally liable for the composite crime of robbery with rape under Art. 294 (1). Although the conspiracy of A and B was only to rob, B was present when the rape was being committed which gave rise to a composite crime, a single indivisible offense of robbery with rape. B would not have been liable had he endeavored to prevent the commission of the rape. But since he did not when he could have done so, he in effect acquiesced with the rape as a component of the robbery and so he is also liable for robbery with rape.

(a) Yes. Self-defense can be claimed as there is an imminent and great peril on the life of Negre. (b) No. Self-defense is no longer sustainable as there is no more peril on his life. Q: Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said “Salamat Osang" as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? Why? (2000, 1998 Bar)

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY JUSTIFYING CIRCUMSTANCES (1993, 1998, 2000, 2002, 2003, 2004, 1996, 2008, 2016 BAR) Q: Distinguish clearly but briefly: Between justifying and exempting circumstances in criminal law. (2004, 1998 Bar) A: Justifying circumstance affects the act, not the actor; while exempting circumstance affects the actor, not the act. In justifying circumstance, no criminal and, generally, no civil liability is incurred; while in exempting circumstance, civil liability is generally incurred although there is no criminal liability

A: No. Osang's claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under Art. 11(1) of the RPC, it is required inter alia that there be (1) unlawful aggression, and (2) reasonable necessity of the means employed to prevent or repel it. The unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense. Otherwise, the attack made is a retaliation and not a defense. Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.

Self-Defense (Defense of Person, Rights, Property and Honor) Q: BB and CC, both armed with knives, attacked FT. The victim's son, ST, upon seeing the attack, drew his gun but was prevented from shooting the attackers by AA, who grappled with him for possession of the gun. FT died from knife wounds. AA, BB and CC were charged with murder. In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury, contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil. Will AA's defense prosper? Reason briefly. (2004 Bar)

Defense of Relatives Q: When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took his gun and shot B, killing him. Charged with homicide, A claimed he acted in defense of his daughter's honor. Is A correct? If not, can A claim the benefit of any mitigating circumstance or circumstances? (2002, 2000, 1998 Bar)

A: No, AA's defense will not prosper. The act of the victim's son, ST, appears to be a legitimate defense of relatives; hence, justified as a defense of his father against the unlawful aggression by BB and CC. ST’s act to defend his father's life and to stop BB and CC achieve their criminal objective cannot be regarded as an evil inasmuch as it is, in the eyes of the law, a lawful act. What AA did was a lawful defense, not greater evil. Likewise, AA’s defense will not prosper because in this case there was a conspiracy among the three of them, hence, the act of one is the act of all.

A: No. A cannot validly invoke defense of his daughter's honor in having killed B since the rape was already consummated; moreover, B already ran away, hence, there was no aggression to defend against and no defense to speak of. Defense of honor as included in self-defense, must have been done to prevent or repel an unlawful aggression. There is no defense to speak of where the unlawful aggression no longer exists.

Q: Pat. Negre saw Filemon, an inmate, escaping from jail and ordered the latter to surrender. Instead of doing so, Filemon attacked Pat. Negre with a bamboo spear. Filemon missed in his first attempt to hit Pat. Negre, and before he could strike again, Pat. Negre shot and killed him.

A may, however, invoke the benefit of the mitigating circumstance of having acted in immediate vindication of a grave offense to a descendant, his daughter, under par. 5, Art. 13 of the RPC.

(a) Can Pat. Negre claim self defense? Explain. (b) Suppose Pat Negre missed in his shot, and Filemon ran away without parting with his weapon. Pat Negre pursued Filemon but the latter was running UST BAR OPERATIONS

Q: Pedro is married to Tessie. Juan is the first cousin of Tessie. While in the market, Pedro saw a man stabbing Juan. Seeing the attack on Juan, Pedro picked up a spade

6

QUAMTO (1987-2016) nearby and hit the attacker on his head which caused the latter’s death. Can Pedro be absolved of the killing on the ground that it is in defense of a relative? Explain. (2016 Bar)

precise moment when the crime was being committed. The facts of the case indicate that Romeo committed the crime with discernment and was only diagnosed to be mentally unstable after the crime was committed. (b) The effect of the diagnosis made by NCMH is possibly a suspension of the proceeding against Romeo and his commitment to appropriate institution for treatment until he could already understand the proceedings.

A: No. The relatives of the accused for purpose of defense of relative under Art. 11(20 of the Revised Penal Code are his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree. Relative by affinity within the same degree includes ascendant, descendant, brother or sister of the spouse of the accused. In this case, Juan is not the ascendant, descendant, brother or sister of Tessie, the spouse of Pedro. Relative by consanguinity within the fourth civil degree includes first cousin. But in this case, Juan is the cousin of Pedro by affinity but not by consanguinity. Juan, therefore, is not a relative of Pedro for purpose of applying the provision on defense of relative.

Minority Q: While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at Pomping with a ball pen. The top of the ball pen hit the right eye of Pomping which bled profusely. Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping's eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye. (2000, 1998 Bar)

Pedro, however, can invoke defense of a stranger. Under the Revised Penal Code, a person who defends a person who is not his relative may invoke the defense of a stranger provided that all its elements exist, to wit: (a) unlawful aggression; (b) reasonable necessity of the means employed to prevent or repel the attack; and (c) the person defending be not induced by revenge, resentment, or other evil motive.

(a) Is Katreena criminally liable? Why? (b) Discuss the attendant circumstances and effects thereof.

Defense of Stranger

A:

Q: A chanced upon three men who were attacking B with fist blows. C, one of the men, was about to stab B with a knife. Not knowing that B was actually the aggressor because he had earlier challenged the three men to a fight, A shot C as the latter was about to stab B. May A invoke the defense of a stranger as a justifying circumstance in his favor? Why? (Bar 2002)

(a) No. Katreena is not criminally liable due to her minority. She is exempted from criminal liability for being a minor less than fifteen (15) years old although over nine (9) years of age. Nonetheless is she civilly liable. (b) The attendant circumstances which may be considered are:

A: Yes. A may invoke the justifying circumstance of defense of stranger since he was not involved in the fight and he shot C when the latter was about to stab B. There being no indication that A was induced by revenge, resentment or any other evil motive in shooting C, his act is justified under par. 3, Art. 11 of the RPC.

1.

2.

EXEMPTING CIRCUMSTANCES (1998, 2000, 2010 BAR) Insanity Q: While his wife was on a 2-year scholarship abroad, Romeo was having an affair with his maid Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled Dulcinea to death while she was sleeping in the maid’s quarters.

3.

4.

The following day, Romeo was found catatonic inside the maid’s quarters. He was brought to the National Center for Mental Health (NCMH) where he was diagnosed to be mentally unstable. Charged with murder, Romeo pleaded insanity as a defense.

Minority of the accused as an exempting circumstance under Art. 12(3) of RPC, where she shall be exempt from criminal liability, unless it was proved that she acted with discernment. She is however civilly liable; 
 If found criminally liable, the minority of the accused is a privileged mitigating circumstance. A discretionary penalty lower by at least two (2) degrees than that prescribed for the crime committed shall be imposed in accordance with Art. 68(1) of RPC. The sentence however, should automatically be suspended in accordance with Sec. 5(a) of R.A. No. 8369 (Family Courts Act of 1997); Likewise if found criminally liable, the ordinary mitigating circumstance of not intending to commit so grave a wrong as that committed under Art. 13(3) of the RPC may apply; The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act.

MITIGATING CIRCUMSTANCES (1988, 1992, 1996, 1997, 1999, 2012, 2016 BAR)

(a) Will Romeo’s defense prosper? Explain. (b) What is the effect of the diagnosis of the NCMH on the case? (2010 Bar) A:

Q: What is a privileged mitigating circumstance? Distinguish a privileged mitigating circumstance from an ordinary mitigating circumstance as to reduction of penalty and offsetting against aggravating circumstance/s. (2012 Bar)

(a) No. Romeo’s defense of insanity will not prosper. Insanity as a defense to the commission of a crime must have existed and proven to have been existing at the

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CRIMINAL LAW A: Privileged mitigating circumstances are those that mitigate the criminal liability of the accused by graduating the imposable penalty for the crime being modified to one or two degrees lower. These circumstances cannot be offset by aggravating circumstance. The circumstance of incomplete justification or exemption (when majority of the conditions are present), and the circumstance of minority (if the child above 15 years of age acted with discernment) are privileged mitigating circumstance. The distinctions between ordinary mitigating circumstances are as follows: a.

and

2. 3.

AGGRAVATING CIRCUMSTANCES (1988, 1991, 1993, 1994, 1996, 1997, 2000, 2003, 2005, 2009 BAR) Q: The robbers killed a mother and her baby, then threw the body of the baby outside the window. Can the aggravating circumstance of cruelty be considered in this case? Reason. (1988 Bar)

privileged

Under the rules for application of divisible penalties (RPC, Art. 64), the presence of a mitigating circumstance, if not off-set by aggravating circumstance, has the effect of applying the divisible penalty in its minimum period. Under the rules on graduation of penalty (RPC, Art. 68, 69), the presence of privileged mitigating circumstance has the effect of reducing the penalty one to two degrees lower; Ordinary mitigating circumstances can be off-set by aggravating circumstances. Privileged mitigating circumstances are not subject to the off-set rule.

b.

A: Cruelty cannot be considered in this case because the aggravating circumstance of cruelty requires deliberate prolongation of the suffering of the victim. In this case, the baby was dead already so that there is no more prolongation to speak of. Q: At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street, Manila, Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died.

Surrender and Confession of Guilt Q: After killing the victim, the accused absconded. He succeeded in eluding the police until he surfaced and surrendered to the authorities about two years later. Charged with murder, he pleaded not guilty but, after the prosecution had presented two witnesses implicating him to the crime, he changed his plea to that of guilty. Should the mitigating circumstances of voluntary surrender and plea of guilty be considered in favor of the accused? (1997 Bar)

Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide. Can the court appreciate the aggravating circumstances of nighttime and band? (1994 Bar) A: No. Nighttime cannot be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of nighttime (People v. De los Reyes, 203 SCRA 707) Besides, judicial notice can be taken of the fact that Padre Faura Street is well-lighted.

A: Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a time to consider the surrender as spontaneous (People v. Ablao, G.R. No. 69184, March 26, 1990).

However, band should be considered as the crime was committed by more than three armed malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons. Q: Name the four (4) kinds of aggravating circumstances and state their effect on the penalty of crimes and nature thereof. Distinguish generic aggravating circumstance from qualifying aggravating circumstance. (1999 Bar)

For sure the government had already incurred considerable efforts and expenses in looking for the accused. Plea of guilty can no longer be appreciated as a mitigating circumstance because the prosecution had already started with the presentation of its evidence (Art. 13[7], RPC). Q: When is surrender by an accused considered voluntary, and constitutive of the mitigating circumstance of voluntary surrender? (1999 Bar)

A: The four (4) kinds of aggravating circumstances are:

A: A surrender by an offender is considered voluntary when it is spontaneous, indicative of an intent to submit unconditionally to the authorities.
 To be mitigating, the surrender must be: a.

1.

2.

Spontaneous, i.e., indicative of acknowledgment of guilt and not for convenience nor conditional; Made before the government incurs expenses, time and effort in tracking down the offender's whereabouts; and Made to a person in authority or the letter's agents.

b. c.

3.

4.

Q: In order that the plea of guilty may be mitigating, what requisites must be complied with? (1999 Bar) A: For plea of guilty to be mitigating, the requisites are: 1.

That such plea was made before the court competent to try the case and render judgment; and That such plea was made prior to the presentation of evidence for the prosecution.

Generic aggravating or those that can generally apply to all crimes, and can be offset by mitigating circumstances, but if not offset, would affect only the maximum of the penalty prescribed by law;
 Specific aggravating or those that apply only to particular crimes and cannot be offset by mitigating circumstances;
 Qualifying circumstances or those that change the nature of the crime to a graver one, or brings about a penalty next higher in degree, and cannot be offset by mitigating circumstances; Inherent aggravating or those that essentially accompany the commission of the crime and do not affect the penalty whatsoever.

The distinctions between generic aggravating circumstances and qualifying aggravating circumstances are as follows:

That the accused spontaneously pleaded guilty to the crime charged;

Generic aggravating circumstances: UST BAR OPERATIONS

8

QUAMTO (1987-2016) a. b. c. d.

criminal information for estafa, but the actual recital of facts of the offense charged therein, if proven, would constitute not only the crime of estafa, but also falsification of public document as a necessary means for committing estafa. AAA invokes the absolutory cause of relationship by affinity. Which statement is most accurate? (2012 Bar)

affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed; can be offset by ordinary mitigating circumstances; need not be alleged in the Information as long as proven during the trial;
 the same shall be considered in imposing the sentence.


A: There are two views on whether the extinguishment of the marriage by death of the spouse dissolves the relationship by affinity for purpose of absolutory clause.

Qualifying circumstances: a. b. c.

affects the nature of the crime or brings about a penalty higher in degree than that ordinarily prescribed;
 cannot be offset by mitigating circumstances;
 must be alleged in the Information and proven during trial.

The first holds that the relationship by affinity terminates with the dissolution of the marriage, while the second maintains that relationship continues even after the death of the deceased spouse. The principle of pro reo calls for the adoption of the continuing affinity view because it is more favorable to the accused. However, the absolutory cause applies to theft, swindling and malicious mischief. It does not apply to theft through falsification or estafa through falsification (Intestate estate of Gonzales v. People, G.R. No. 181409, February 11, 2010).

Q: Rico, a member of the Alpha Rho Fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, will you consider the aggravating circumstances of using poison, in consideration of a promise or reward and cruelty? (2000 Bar)

Article 20: Accessories exempt from criminal liability by reason of relationship Q: DCB, the daughter of MCB, stole the earrings of XYZ, a stranger. MCB pawned the earrings with TBI Pawnshop as a pledge for P500 loan. During the trial, MCB raised the defense that being the mother of DCB, she cannot be held liable as an accessory. Will MCB's defense prosper? Reason briefly. (2004 Bar)

A: The circumstances of using poison, in consideration of a promise or reward and cruelty which attended the killing of Rico could only be appreciated as generic aggravating circumstances since none of them have been alleged in the Information to qualify the killing to murder. A qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such.

A: No. MCB's defense will not prosper because the exemption from criminal liability of an accessory by virtue of relationship with the principal does not cover accessories who themselves profited from or assisted the offender to profit by the effects or proceeds of the crime.

Q: When would qualifying circumstances be deemed, if at all, elements of a crime? (2003 Bar) A: A qualifying circumstance would be deemed an element of a crime when: 1. 2. 3.

This non-exemption of an accessory, though related to the principal of the crime, is expressly provided in Art. 20 of the RPC.

It changes the nature of the crime, bringing about a more serious crime and heavier penalty; It is essential to the crime involved, otherwise some other crime is committed; and It is specifically alleged in the information and proven during trial.

EXCEPTIONAL CIRCUMSTANCE (1988, 1991, 2001, 2007, 2015, 2016 BAR) Q: At 10:00 in the evening, upon his arrival, Marco surprised his wife, Rosette and her former boyfriend, Raul, both naked and in the act of illicit copulation. Raul got his revolver and upon seeing the revolver, Marco ran toward the street, took a pedicab and proceeded to the house of his brother, a policeman from whom he borrowed a revolver. With the weapon, he returned to his residence. Unable to find Raul and Rosette, Marco proceeded to a disco jointly owned and operated by Raul. It was already 11:00 that evening when he arrived at the joint. Upon seeing Raul with two (2) male companions, A and B, drinking beer at one of the tables, Marco fired two (2) shots at Raul, who was hit on his forehead with one of the bullets; the other hit A, injuring him on his stomach. As a consequence of the gunshot wound, Raul died instantaneously. Due to the timely medical attention given to A, he survived. He was, however, hospitalized for 45 days. Marco was prosecuted for Murder for the death of Raul and for frustrated murder in the case of A. You are Marco’s lawyer, what will be your defense? (1991 Bar)

Q: Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of “shabu” at the time he committed the stabbing. What should be the proper charge against Candido? Explain. (2005 Bar) A: Candido should be charged with murder qualified by treachery because the suddenness of the stabbing caught the victim by surprise and was totally defenseless. Being under the influence of dangerous drugs is a qualifying aggravating circumstance in the commission of a crime (Sec. 25, RA 9165, Comprehensive Dangerous Drug Act of 2002); Hence, the penalty for murder shall be imposed in the maximum. ABSOLUTORY CAUSE (2004, 2008, 2012 BAR) Article 332: Persons exempt from criminal liability for theft, swindling and malicious mischief

A: The defense with respect to the death of Raul is death under exceptional circumstances (Art. 247, People v. Abarca, 153 SCRA 735). Although the killing happened one hour

Q: The wife of AAA predeceased his mother-in-law. AAA was accused of defrauding his mother-in-law under a

9

CRIMINAL LAW after having surprised the spouse, that would still be within the context of “immediately thereafter”.

Principal (1994, 2000, 2002, 1994, 2014, 2015 Bar)

With respect to the wounding of the stranger, the defense of lawful exercise of a right is a justifying circumstance. Under Art. 11, par. 5 could be invoked. At the time the accused shot Raul, he was not committing a felonious act and therefore could not have been criminally liable under Art. 4, RPC.

Q: Tata owns a three-storey building. She wanted to construct a new building but had no money to finance the construction. So, she insured the building for P3, 000, 000.00. She then urged Yoboy and Yongsi, for monetary consideration, to burn her building so she could collect the insurance proceeds. Yoboy and Yongsi burned the said building resulting to its total loss. What is their respective criminal liability? (1994 Bar)

Q: Macky, a security guard, arrived home late one night after rendering overtime. He was shocked to see Joy, his wife and Ken, his best friend, in the act of having sexual intercourse. Macky pulled out his service gun and shot and killed Ken. Macky was charged with murder for the death of Ken.

A: Tata is a principal by inducement for the crime of destructive arson because she directly induced Yoboy and Yongsi for a price or monetary consideration, to commit arson which the latter would not have committed were it not for such reason. Yoboy and Yongsi are principals by direct participation (Art. 17, pars. 21 and 3, RPC).

The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro. The court also ordered Macky to pay indemnity to the heirs of the victim in the amount of P50, 000.00. Did the court correctly order Macky to pay indemnity? (2007 Bar)

Q: Jonas convinced Jaja to lend him his .45 caliber pistol so that he could use it to knock down Jepoy and end his arrogance. When Jepoy came out, Jonas immediately shot him with Jaja’s .45 caliber gun but missed his target. Instead, the bullet hit Jepoy’s five year old son who was following behind him, killing the boy instantaneously. What is the criminal liability of Jonas and Jepoy? (Question reframed) (2000 Bar)

A: No. Since the killing of Ken was committed under the exceptional circumstances in Article 247, RPC, it is the consensus that no crime was committed in the light of the pronouncement in People v. Cosicor (79 Phil 672) that banishment (destierro) is intended more for the protection of the offender rather than as a penalty. Since the civil liability under the RPC is the consequence of the criminal liability, there would be no legal basis for the award of indemnity when there is no criminal liability.

A: Jonas shall be convicted as principal by direct participation and Jaja as co-principal by indispensable cooperation for the complex crime of murder with homicide. Jaja should be liable as co-principal and not only as an accomplice because he knew of Jonas’ criminal design even before he lent his firearm to Jonas and still he concurred in that criminal design by providing the firearm.

Q: Jojo and Felipa are husband and wife. Believing that his work as a lawyer is sufficient to provide for the needs of their family, Jojo convinced Felipa to be a stayat-home mom and care for their children. One day, Jojo arrived home earlier than usual and caught Felipa in the act of having sexual intercourse with their female nanny, Alma, in their matrimonial bed. In a fit of rage, Jojo retrieved his revolver from inside the bedroom cabinet and shot Alma, immediately killing her.

Q: A asked B to kill C because of a grave injustice done to A by C. A promised B a reward. B was willing to kill C, not so much because of the reward promised to him but because he also had his own long-standing grudge against C, who had wronged him in the past. If C killed by B, would A be liable as a principal by inducement? (2002 Bar)

Is Art. 247 (Death or physical injuries inflicted under exceptional circumstances) of the RPC applicable in this case given that the paramour was of the same gender as the erring spouse? (2015, 2016 Bar)

A: No. A would not be liable as principal by inducement because the reward he promised B is not the sole impelling reason which made B kill C. To bring about the criminal liability of a co-principal, the inducement made by the inducer must be the sole consideration which caused the person induced to commit the crime and without which the crime would not have been committed. The facts of the case would indicate that B, the killer supposedly induced by A had his own reason to kill C out of a long standing grudge.

A: The crime committed is parricide qualified by the circumstance of relationship. Killing a spouse after having been surprised in the act of committing sexual intercourse with another woman is death under exceptional circumstance under Article 247 of the Revised Penal Code.

Q: Mr. Red was drinking with his buddies, Mr. White and Mr. Blue when he saw Mr. Green with his former girlfriend, Ms. Yellow. Already drunk, Mr. Red declared in a loud voice that if he could not have Ms. Yellow, no one can. He then proceeded to the men’s room but told Mr. White and Mr. Blue to take care of Mr. Green. Mr. Blue and Mr. White asked Mr. Red what he meant but Mr. Red simply said, "You already know what I want," and then left. Mr. Blue and Mr. White proceeded to kill Mr. Green and hurt Ms. Yellow.

However, in this case this is not death under exceptional circumstance because Felipa was having homosexual intercourse with another woman and not sexual intercourse with a man. “Homosexual intercourse “is not within the contemplation of the term “sexual intercourse” in Article 247. However, the crime of parricide is attended by the circumstance of passion arising from a lawful sentiment as a result of having caught his wife in the act of infidelity with another woman (People v. Belarmino, G.R. No. L-4429, April 18, 1952, En Banc).

(a) What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the death of Mr. Green? (b) What, if any, are the respective liabilities of Mr. Red, Mr. White and Mr. Blue for the injuries of Ms. Yellow? (2014 Bar)

PERSONS LIABLE AND DEGREE OF PARTICIPATION (a) PRINCIPALS, ACCOMPLICES, AND ACCESSORIES (1987, 1989, 2013 BAR) UST BAR OPERATIONS

10

QUAMTO (1987-2016) A:

the police. Can Jake’s mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (2010, 1998 Bar)

(a) Mr. Blue and Mr. White are liable for the death of Mr. Green as principals by direct participation. They were the ones who participated in the criminal resolution and who carried out their plan and personally took part in its execution by acts which directly tended to the same end. Mr. Red cannot be held criminally liable as principal by inducement because his statement that Mr. Blue and Mr. White are to take care of Mr. Green was not made directly with the intention of procuring the commission of the crime. There is no showing that the words uttered by him may be considered as so efficacious and powerful so as to amount to physical or moral coercion (People v. Assad, G.R. No. L-33673, February 24, 1931). Neither is there evidence to show that Mr. Red has an ascendancy or influence over Mr. White and Mr. Blue (People v. Abarri, F.R. No. 90815, March 1, 1995). (b) Mr. Blue and Mr. White are liable as principals by direct participation for the crime of physical injuries for hurting Ms. Yellow to the extent of the injuries inflicted. Having no participation in the attack upon Ms. Yellow, Mr. Red would have no criminal liability therefor.

A: Obviously, Jake’s mother was aware of her son’s having committed a felony, such that her act of harbouring and concealing him renders her liable as an accessory. But being an ascendant of Jake, she is exempt from criminal liability by express provision of Art. 20 of the RPC. On the other hand, the criminal liability of Jake’s aunt depends on her knowledge of his commission of the felony, her act of harbouring and concealing Jake would render her criminally liable as accessory to the crime of murder; otherwise, without knowledge of Jake’s commission of the felony, she would not be liable. (b) CONSPIRACY AND PROPOSAL (1988, 1990, 1992, 1993, 1998, 2004, 2006, 2012, 2013, 2016 BAR) Q: As Sergio, Yoyong, Zoilo and Warlito engaged in a drinking spree at Heartthrob Disco, Special Police Officer 3 (SPO3) Manolo Yabang suddenly approached them, aimed his revolver at Sergio whom he recognized as a wanted killer and fatally shot the latter. Whereupon, Yoyong Zoilo and Warlito ganged up on Yabang, Warlito, using his own pistol, shot and wounded Yabang.

Accomplice (2007, 2012 Bar) Q: Ponciano borrowed Ruben’s gun, saying that he would use it to kill Freddie. Because Ruben also resented Freddie, he readily lent his gun, but told Ponciano: "O, pagkabaril mo kay Freddie, isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want Freddie’s neighbors to hear the gunshot.

What are the criminal libailities of Yoyong, Zoilo and Warlito for the injury to Yabang? Was there conspiracy and treachery? (1992 Bar) A: If they have to be criminally liable at all, each will be responsible for their individual acts as there appears to be no conspiracy, as the acts of the three were spontaneous and a reflex response to Yabang’s shooting of Sergio. There was no concerted act that will lead to a common purpose.

(a) What, if any, is the liability of Ruben? Explain. (b) Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben, who was killed by Ponciano using Ruben’s gun? Explain. (2009 Bar)

Q: As a result of a misunderstanding during a meeting, Joe was mauled by Nestor, Jolan, Reden, and Arthur. He ran towards his house but the four chased and caught him. Thereafter, they tied Joe’s hands at his back and attacked him. Nestor used a knife; Jolan, a shovel; Arthur, his fists; and Reden, a piece of wood. After killing Joe, Reden ordered the digging of a grave to bury Joe’s lifeless body. Thereafter, the four (4) left together. Convicted for the killing of Joe, Arthur now claims that his conviction is erroneous as it was not he who conflicted the fatal blow. Would you sustain his claim? (1993 Bar)

A: (a) Ruben’s liability is that of an accomplice only because he merely cooperated in Pociano’s determination to kill Freddie. Such cooperation is not indispensable to the killing, as in fact the killing was carried out without the use of Ruben’s gun. Neither may Ruben be regarded as a co-conspirator since he was not a participant in the decision-making of Ponciano to kill Freddie; he merely cooperated in carrying out the criminal plan which was already in place (Art. 18, RPC). (b) No. The answer would not be the same because Ruben lent his gun purposely for the killing of Freddie only, not for any other killing. Ponciano’s using Ruben’s gun in killing a person other than Freddie is beyond Ruben’s criminal intent and willing involvement. Only Ponciano will answer for the crime against Manuel.

A: No. Arthur’s claim is without merit. The offenders acted in conspiracy in killing the victim and hence, liable collectively. The act of one is the act of all. The existence of a conspiracy among the offenders can be clearly deduced or inferred from the manner they committed the killing, demonstrating a common criminal purpose and intent. There being a conspiracy, the individual acts of each participant is not considered because their liability is collective.

Q: Who is an accomplice? (2012 Bar) A: Accomplices are those persons who, not being the principal, cooperate in the execution of the offense by previous or simultaneous acts (Art. 18, RPC).

Q: State the concept of “implied conspiracy” and give its legal effects. (1998, 2003 Bar)

Accessory (1998, 2010, 2013 Bar)

A: An implied conspiracy is one which is only inferred or deduced from the manner of participants in the commission of crime carried out its execution. Where the offenders acted in concert in the commission of the crime, meaning that their acts are coordinated or synchronized in a way indicative that they are pursuing a common criminal

Q: Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told him to hide in the maid’s quarters until she finds a better place for him to hide. After two days, Jake transferred to his aunt’s house. A week later, Jake was apprehended by

11

CRIMINAL LAW objective, they shall be deemed to be acting in conspiracy and their criminal liability shall be collective, not individual.

instances when each spoke is unconcerned with the success of the other spokes, there are multiple conspiracies.

The legal effects of an implied conspiracy are:

A “chain conspiracy”, on the other hand, exists when there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. (Estrada v. Sandiganbayan, G.R. No. 148965, February 26, 2002)

(1) Not all those who are present at the scene of the crime will be considered as co-conspirators; (2) Only those who participated by criminal acts in the commission of the crime will be considered as coconspirators; and (3) Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator.

PENALTIES (1988, 1994, 1995, 1997, 2001, 2004, 2005, 2007 Bar) Q:

Q: During a town fiesta, a free-for-all fight erupted in the public plaza. As a result of the tumultuous affray, A sustained one fatal and three superficial stab wounds. He died a day after. B, C, D and E were proven to be participants in the “rumble”, each using a knife against A, but it could not be ascertained who, among them, inflicted the mortal injury. Who shall be held criminally liable for the death of A and for what? (1997 Bar)

(a) State the two classes of penalties under the Revised Penal Code. Define each. (b) May censure be included in a sentence of acquittal? (1988 Bar) A: (a) The two classes of penalties under Article 25 of the RPC are as follows:

A: B, C, D and E being participants in the tumultuous affray and having been proven to have inflicted serious physical injuries, or at least, employed violence upon A, are criminally liable for the latter’s death. And because it cannot be ascertained who among them inflicted the mortal injury on A, there being a free-for-all fight or tumultuous affray, B, C, D and E are all liable for the crime of death caused in a tumultuous affray under Art. 251 of the Revised Penal Code. Q: Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of the windows in her house. After taking her personal properties and as they were about to leave, XA decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her bedroom and did nothing to prevent XA from raping OD.

1. 2.

(b) Censure may not be included in a sentence of acquittal because a censure is a penalty. Censure is repugnant and is essentially inconsistent and contrary to an acquittal (People v. Abellera, 69 Phil 623). Q: Imagine that you are a Judge trying a case, and based on the evidence presented and the applicable law, you have decided on the guilt of two (2) accused. Indicate the five (5) steps you would follow to determine the exact penalty to be imposed. Stated differently, what are the factors you must consider to arrive at the correct penalty? (1991 Bar)

What crime/s did XA, YB and ZC commit and what is the criminal liability of each? Explain briefly. (2004 Bar) A: The crime committed by XA, YB and ZC is the composite crime of Robbery with Rape, a single, indivisible offense under Art. 294 (1) of the Revised Penal Code.

A:

Although the conspiracy among the offenders was only to commit robbery and only XA raped CD, the other robbers, YB and ZC, were present and aware of the rape being committed by their co-conspirator. Having done nothing to stop XA from committing the rape, YB and ZC thereby concurred in the commission of the rape by their coconspirator XA.

1. 2. 3. 4. 5.

The criminal liability of all, XA, YZ, and ZC, shall be the same, as principals in the special complex crime of robbery with rape which is a single, indivisible offense where the rape accompanying the robbery is just a component. Q: Differentiate wheel conspiracy. (2016 Bar)

conspiracy

and

Determine the crime committed; Stage of execution and degree of participation; Determine the penalty Consider the modifying circumstances; Determine whether Indeterminate Sentence Law is applicable or not.

Q: After trial, Judge Juan Laya of the Manila RTC found Benjamin Garcia guilty of Murder, the victim having sustained several bullet wounds in his body so that he died despite medical assistance given in the Ospital ng Manila. Because the weapon used by Benjamin was unlicensed and the qualifying circumstance of treachery was found to be present. Judge Laya rendered his decision convicting Benjamin and sentencing him to "reclusion perpetua or life imprisonment". Are "reclusion perpetua" and life imprisonment the same and can be imposed interchangeably as in the foregoing sentence? Or are they totally different? State your reasons. (1994, 2001, 2005 Bar)

chain

A: There are two structures of multiple conspiracies, namely: wheel or circle conspiracy and chain conspiracy. A “wheel conspiracy” occurs when there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes). The spoke typically interacts with the hub rather than with another spoke. In the event that the spoke shares a common purpose to succeed, there is a single conspiracy. However, in the

UST BAR OPERATIONS

Principal – A principal penalty is defined as that provided for a felony and which is imposed by court expressly upon conviction. Accessory – An accessory penalty is defined as that deemed included in the imposition of the principal penalty.

A: The penalty of reclusion perpetua and the penalty of life imprisonment are totally different from each other and therefore, should not be used interchangeably. Reclusion

12

QUAMTO (1987-2016) perpetua is a penalty prescribed by the RPC, with a fixed duration of imprisonment from 20 years and 1 day to 40 years, and carries it with accessory penalties. Life imprisonment, on the other hand, is a penalty prescribed by special laws, with no fixed duration of imprisonment and without any accessory penalty.

charged with, and was convicted of, five (5) counts of rape, but the judge did not impose the penalty of reclusion perpetua for each count. Instead, the judge sentenced Roman to 40 years of imprisonment on the basis of the three- fold rule. Was the judge correct? (2013 Bar)

Q: Under Article 27 of the Revised Penal Code, as amended by Republic Act (RA) No. 7959, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does this mean that reclusion perpetua is now a divisible penalty? Explain. (2005 Bar)

A: No, the three-fold rule is applicable only in connection with the service of the sentence not in the imposition of the proper penalties. The court must impose all penalties for all the crimes for which the accused have been found guilty. Thus, the court should not make a computation in it decision and sentence the accused to not more than the three-fold of the most severe of the penalties imposable. The computation under the three-fold rule is for the prison authorities to make.

A: No, because the Supreme Court has repeatedly called the attention of the Bench and the Bar to the fact that the penalties of reclusion perpetua and life imprisonment are not synonymous and should be applied correctly and as may be specified by the applicable law. Reclusion perpetua has a specific duration of 20 years and 1 day to 40 years (Art. 27) and accessory penalties (Art. 41), while life imprisonment has no definite term or accessory penalties. Also, life imprisonment is imposable on crimes punished by special laws, and not on felonies in the Code.

Q: E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary imprisonment in case of insolvency. (a) Is the penalty proper? Explain. (b) May the judge impose an alternative penalty of fine or imprisonment? Explain. (2005 Bar)

Q: What are the penalties that may be served simultaneously? (2007 Bar) A: The penalties that may be served simultaneously are imprisonment/destierro and – 1. 2. 3. 4. 5. 6.

A: (a) No. The penalty should be imposed individually on every person accused of the crime. Any of the convicted accused who is insolvent and unable to pay the fine, shall serve the subsidiary imprisonment. (b) No. Although the law may prescribe an alternative penalty for a crime, it does not mean that the court may impose the alternative penalties at the same time. The sentence must be definite. Otherwise, the judgment cannot attain finality.

Perpetual absolute disqualification; Perpetual special disqualification; Temporary absolute disqualification; Temporary special disqualification; Suspension from public office, the right to vote and be voted for and the right to follow a profession or calling; Fine; and any principal penalty with its accessory penalties.

Principles (include R.A. No. 9346 – Act Prohibiting the Imposition of Death Penalty in the Philippines) (1988, 1997, 2004 Bar)

C. CRIMINAL AND CIVIL LIABILITIES 1. EXTINCTION OF CRIMINAL LIABILITIES (1988, 1990, 2004, 2015 BAR)

Q: What offenses, if any, may be punished with the death penalty in our jurisdiction at present? Explain. (1988, 1995 Bar)

Q: (a) How is criminal liability totally extinguished? (1988, 1990 Bar) (b) How is criminal liability partially extinguished? (c) If an accused is acquitted does it necessarily follow that no civil liability arising from the acts complained of may be awarded in the same judgment? Explain briefly. (1988 Bar)

A: At present, no offense may be punished with the death penalty in our jurisdiction at present. The 1987 Constitution has abolished the death penalty and the abolition affects even those who has already been sentenced to death penalty. Therefore, unless Congress enacts a law, no offense may be punished with the death penalty at present.

A:

Application (2005, 2013 Bar) (a) Article 89 of the Revised Penal Code provides for the following causes of total extinction of criminal liability:

Indeterminate Sentence Law (Act No. 4103, as amended) (Refer to SPL Section)

1.

Q: Roman and Wendy are neighbors. On Valentine's Day, without prior notice, Roman visited Wendy at her condo to invite her to dinner, but Wendy turned him down and abruptly left, leaving her condo door unlocked. Roman attempted to follow, but appeared to have second thoughts; he simply went back to Wendy's condo, let himself in, and waited for her return. On Wendy's arrival later that evening, Roman grabbed her from behind and, with a knife in hand, forced her to undress. Wendy had no choice but to comply. Roman then tied Wendy's hands to her bed and sexually assaulted her five (5) times that night. Roman was

2. 3. 4. 5. 6. 7.

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Death of the convict as to personal penalties, as to the pecuniary liabilities, liability therefore is extinguished only when death occurs before final judgment Service of sentence Amnesty Absolute pardon Prescription of the crime Prescription of the penalty Marriage of the offended woman as provided in Article 344.

CRIMINAL LAW (b) Article 94 of the Revised Penal Code provides for the following causes of the partial extinction of criminal liability: 1. 2. 3. 4. 5.

of Ara, place it inside the trunk of her car and drive away. The dead body of Ara was never found. Mina spread the news in the neighborhood that Ara went to live with her grandparents in Ormoc. For fear of his life, Albert did not tell anyone, even his parents and relatives. 20 and ½ years after the incident, and right after his graduation in Criminology, Albert reported the crime to NBI authorities. The crime of homicide prescribes in 20 years. Can the State still prosecute Mina for the death of Ara despite the lapse of 20 and ½ years? Explain. (2000 Bar)

Conditional pardon Commutation of sentence Good conduct allowance during confinement Parole Probation

(c) If an accused is acquitted, it does not necessarily follow that no civil liability arising from the acts complained of may be awarded in the same judgment except: If there is an express waiver of the liability; and if there is a reservation to file a separate civil action (Rule 107; Padilla v. CA, People v. Jalandoni).

A: Yes. The State can still prosecute Mina for the death of Ara despite the lapse of 20 & ½ years. Under Article 91, RPC, the period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents.

Q: AX was convicted of reckless imprudence resulting in homicide. The trial court sentenced him to a prison term as well as to pay P150, 000 as civil indemnity and damages. While his appeal was pending, AX met a fatal accident. He left a young widow, 2 children, and a million-peso estate. What is the effect, if any, of his death on his criminal as well as civil liability? Explain briefly. (2004 Bar)

In the case at bar, the commission of the crime was known only to Albert, who was not the offended party nor an authority or an agent of an authority. It was discovered by the NBI Authorities only when Albert revealed to them the commission of the crime. Hence, the period of prescription of 20 years for homicide commenced to run only from the time Albert revealed the same to the NBI Authorities.

A: The death of AX while his appeal from the judgment of the trial court is pending, extinguishes his criminal liability. The civil liability insofar as it arises from the crime and recoverable under the RPC is also extinguished; but indemnity and damages may be recovered in a civil action if predicated on a source of obligation under Art. 1157, NCC, such as law, contracts, quasi-contracts and quasi-delicts, but not on the basis of delicts (People v. Balagtas, 236 SCRA 239).

Q: On June 1, 1988, a complaint for concubinage committed in February 1987 was filed against Roberto in the Municipal Trial Court of Tanza, Cavite for purposes of preliminary investigation. For various reasons, it was only on July 3, 1998 when the judge of said court decided the case by dismissing it for lack of jurisdiction since the crime was committed in Manila. The case was subsequently filed with the City Fiscal of Manila but it was dismissed on the ground that the crime had already prescribed. The law provides that the crime of concubinage prescribes in ten (10) years. Was the dismissal by the fiscal correct? Explain. (2001 Bar)

Prescription of crimes (1987, 1990, 1993, 1994, 1997, 2000, 2001, 2004, 2009, 2010, 2015 Bar) Q: B imitated the signature of A, registered owner of a lot, in a special power of attorney naming him (B) as his attorney-in-fact of A. On February 13, 1964, B mortgaged the lot to a bank using the special power of attorney to obtain a loan. On the same day, both the special power of attorney and the mortgage contract were duly registered in the Registry of Deeds. Because of B’s failure to pay, the bank foreclosed the mortgage and the lot was sold to X in whose name a new title was issued. In March, 1974, A discovered that the property was already registered in the name of X because of an ejectment case filed against him by X.

A: No. The fiscal’s dismissal of the case on alleged prescription is not correct. The filing of the complaint with the Municipal Trial Court, although only for preliminary investigation, interrupted and suspended the period of prescription inasmuch as the jurisdiction of a court in a criminal case is determined by the allegations in the complaint or information, not by the result of proof (People v. Galano, 75 SCRA 193). Q: A killed his wife and buried her in their backyard. He immediately went into hiding in the mountains. Three years later, the bones of A’s wife were discovered by X, the gardener. Since X had a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of hiding, A left the country but returned three years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide but raised the defense of prescription.

If you were the counsel of B, what would be your defense? Discuss. (1993 Bar) A: My defense will be prescription because the crime was committed in 1964 and almost twenty-nine years had already elapsed since then. Even if we take Falsification and Estafa individually, they have already prescribed. It is to be noted that when it comes to discovery, the fact that the crime was discovered in 1964 will be of no moment because the offended party is considered to have constructive notice on the forgery after the Deed of Sale where his signature had been falsified was registered in the office of the Register of Deeds (Cabral v. Puno, 70 SCRA 606).

(a) Under the Revised Penal Code, when does the period of prescription of a crime commence to run? (b) When is it interrupted? (c) Is A’s defense tenable? Explain. (2000, 2004, 2009, 2010 Bar)

Q: On January 1990, while 5-year old Albert was urinating at the back of their house, he heard a strange noise coming from the kitchen of their neighbor and playmate, Ara. When he peeped inside, he saw Mina, Ara’s stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina carry the dead body UST BAR OPERATIONS

A: (a) Generally, the period of prescription of a crime commences to run for the date it was committed; but if the crime was committed clandestinely, the period of prescription of the crimes under the RPC commence to

14

QUAMTO (1987-2016) run from the day on which the crime was discovered (the discovery rule) by the offended party, the authorities or their agents (Art. 91, RPC). (b) The running of the prescriptive period of the crime is interrupted when “any kind of investigative proceedings is instituted against the guilty person which may ultimately lead to his prosecution.” (Panaguiton, Jr. v. DOJ, G.R. No. 167571, November 25, 2008) (c) No, the defense of prescription of the crime is not tenable. The crime committed is parricide which prescribes in twenty (20) years (Art. 90, RPC). It was only when the caretaker, Z, found the victim’s bones and reported the matter to the police that the crime is deemed legally discovered by the authorities or their agents and thus the prescriptive period of the crime commenced to run. When A left the country and returned only after three (3) years, the running of the prescriptive period of the crime is interrupted and suspended because prescription shall not run when the offender is absent from the Philippine Archipelago (Art. 91, RPC). Since A had been in hiding for 15 years after the commission of the crime and the prescriptive period starting running only after 5 years from such commission when the crime was discovered, only 10 years lapsed and 3 years thereof should be deducted when the prescriptive period was interrupted and suspended. Hence, the 3 years when A was out of the Philippines should be deducted from the 10 years after the prescription starts running. Adding the 7 years of prescription and the 6 years that lapsed before the case was filed, only a total of thirteen (13) years of the prescriptive period had lapsed. Hence, the crime has not yet prescribed.

(b) Even if Taylor was able to go to another country which the Philippines had no extradition treaty, I will deny the motion to quash. Going to a foreign country with which this Government has no extradition treaty to interrupt the running of prescription is not applicable nor even material because the period of prescription is not applicable nor even material because the period of prescription had not commenced to run in the first place; hence, there is nothing to interrupt. Pardon and Amnesty (2006, 2009) Q: Enumerate the differences between pardon and amnesty. (2006 Bar) A: The following are the differences between pardon and amnesty: In pardon – The convict is excused from serving the sentence but the effects of conviction remain unless expressly remitted by the pardon; hence, for pardon to be valid there must be a sentence already final and executory at the time the same is granted. Moreover, the grant is in favor of individual convicted offenders, not to a class of convicted offenders; and the crimes subject of the grant may be common crimes or political crimes. Finally, the grant is a private act of the Chief Executive which does not require the concurrence of any other public officer or office. In amnesty – The criminal complexion of the act constituting the crime is erased, as though such act was innocent when committed; hence, the effects of the conviction are obliterated. Amnesty is granted is in favor of a class of convicted offenders, not to individual convicted offenders; and the crimes involved are generally political offenses, not common crimes. Amnesty is a public act that requires the conformity or concurrence of the Philippine Senate.

Q: Taylor was convicted of a violation of the Election Code, and was sentenced to suffer imprisonment of one year as minimum, to three years as maximum. The decision of the trial court was affirmed on appeal and became final and executory. Taylor failed to appear when summoned for execution of judgment, prompting the judge to issue an order for his arrest. Taylor was able to use the backdoor and left for the United States. Fifteen years later, Taylor returned to the Philippines and filed a Motion to Quash the warrant of arrest against him, on the ground that the penalty imposed against him had already prescribed.

2. CIVIL LIABILITIES IN CRIMINAL CASES (1987, 1990, 1991, 1992 BAR) Q: Rico was convicted of raping Letty, his former sweetheart, by the Regional Trial Court of Manila and he was ordered to serve the penalty of life imprisonment, to indemnify Letty in the amount of P30, 000.00 and to support their offspring. Pending appeal in the Supreme Court, Rico died. His widow, Bernie, moved for a dismissal of the case.

(a) If you were the judge, would you grant Taylor's Motion to Quash? Explain. (b) Assuming that instead of the United States, Taylor was able to go to another country with which the Philippines had no extradition treaty, will your answer be the same? Explain. (2015 Bar)

What is the legal effect of Rico’s death on his civil liability? State your reasons. (1990 Bar)

A: A: The civil liability of Rico survives. (People v. Tirol, G.R. L30588, January 31, 1981, People v. Naboa, et. al., 132 SCRA 410)

(a) If I were the judge, I will deny the motion to quash. Article 93 of the Revised Penal Code provides when the prescription of penalties shall commence to run. Under said provision, it shall commence to run from the date the felon evades the service of his sentence. Pursuant to Article 157 of the same Code, evasion of service of sentence can be committed only by those who have been convicted by final judgment by escaping during the term of his sentence. Taylor never served a single minute of his sentence, and thus, prescription never started to run in his favor. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom (Del Castillo v. Torrecampo, G.R. No. 139033, December 18, 2002).

PART II. REVISED PENAL CODE (BOOK II) A. CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Piracy and mutiny on the high seas or in Philippine waters (2006, 2008 Bar)

15

CRIMINAL LAW Q: The inter-island vessel M/V Viva Lines I, while cruising off Batanes, was forced to seek shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel, boarded it and divested the passengers of their money and jewelry. A passenger of M/V Viva Lines I, Dodong took advantage of the confusion to settle an old grudge with another passenger, and killed him. After their apprehension, all four were charged with qualified piracy before a Philippine court.

with intent to gain. It is of no moment that the vessel was anchored when deprecated so long as it was at sea. (2) The crime was qualified piracy under Art. 123 of the RPC because it was attended by a killing committed by the same culprits against a member of the crew of the vessel.

B. CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE Arbitrary Detention or Expulsion, Violation of Dwelling, Prohibition, Interruption, and Dissolution of Peaceful Meeting and Crimes Against Religious Worship

(a) Was the charge of qualified piracy against the three person (Max, Badong and Bogart) who boarded the inter-island vessel correct? Explain. (b) Was Dodong correctly charged before the Philippine court for qualified piracy? Explain. (2008 Bar)

ARBITRARY DETENTION AND EXPULSION (2006, 2008, 1992 BAR)

A:

Q: Major Menor, while patrolling Bago-Bago community in a police car with SP03 Caloy Itliong blew his whistle to stop a Nissan Sentra car which wrongly entered a one-way street. After demanding from Linda Lo Hua, the driver, her driver’s license, Menor asked her to follow them to the police precinct. Upon arriving there, he gave instructions to Itliong to guard Lo Hua in one of the rooms and not to let her out of sight until he returns; then got the car key from Lo Hua. In the meantime, the latter was not allowed to make any phone calls but was given food and access to a bathroom.

(a) No. Dodong was not correctly charged with qualified piracy because committing piracy was never in his mind nor did he have any involvement in the piracy committed. He merely took advantage of the situation in killing the passenger. He should be charged with murder since there was evident premeditation and intent to kill. (b) The charge is correct. Qualified Piracy was committed when the offenders seized the vessels by firing on or boarding the same. In the problem, they even went further by divesting the passengers of their money and jewelry. The vessel was anchored in the harbour of Kaoshioung, Taiwan and it is submitted that the crime was committed within the territorial jurisdiction of another country. The Supreme Court has ruled that the high seas contemplated under Art. 122 of the RPC include the three-mile limit of any state (People v. Lollo, G.R. No. 17958, February 27, 1922). Moreover, piracy is an offense that can be tried anywhere because it is a crime against the Law of Nations.

When Menor showed up after two days, he brought Lo Hua to a private house and told her that he would only release her and return the car if she made arrangements for the delivery of P500, 000.00 in a doctor’s bag at a certain place within the next twentyfour hours. When Menor went to the designated spot to pick up the bag of money, he suddenly found himself surrounded by several armed civilians who introduced themselves as NBI agents. What criminal offense has Menor committed? Explain. (1992 Bar)

Q: While SS Nagoya Maru was negotiating the sea route from Hongkong towards Manila, and while still 300 miles from Aparri, Cagayan, its engine malfunctioned. The Captain ordered the ship to stop for emergency repairs lasting for almost 15 hours. Due to exhaustion, the officers and crew fell asleep. While the ship was anchored, a motorboat manned by renegade Ybanags from Claveria, Cagayan, passed by and took advantage of the situation. They cut the ship’s engines and took away several heavy crates of electrical equipment and loaded them in their motorboat. Then they left hurriedly towards Aparri. At daybreak, the crew found that a robbery took place. They radioed the Aparri Port Authorites resulting in the apprehension of the culprits.

A: Menor is liable under Art. 124, RPC (Arbitrary Detention) he being a public officer who detained, a person without legal grounds. Violation of a traffic ordinance by entering a one-way street is not a valid reason to arrest and detain the driver. Such only merits the issuance of a traffic violation ticket. Hence, when Lo Hua was ordered to follow the police officers to the precinct (confiscating her license to compel her to do so), and confining her in a room for two days and prohibiting her to make phone calls, is a clear case of deprivation of personal liberty. Giving her food and access to the bathroom will not extinguish or mitigate the criminal liability. Menor is further liable for robbery, because money or personal properly was taken, with intent to gain, and with intimidation. The peculiar situation of Lo Hua practically forced her to submit to the monetary demands of the major.

(1) What crime was committed? Explain. (2) Supposing that while the robbery was taking place, the culprits stabbed a member of the crew while sleeping. What crime was committed? Explain. (2006 Bar)

Q: What are the 3 ways of committing arbitrary detention? Explain each. What are the legal grounds for detention? (2006 Bar)

A: A: The three (3) ways of committing arbitrary detention are:

(1) The crime committed was piracy under Art. 122, Revised Penal Code, the essence of which is robbery directed against a vessel and/or its cargoes. The taking of the several heavy crates of electrical equipment from a vessel at sea, was effected by force and undoubtedly UST BAR OPERATIONS

a.

16

by detaining or locking up a person without any legal cause or ground therefore purposely to restrain his liberty (RPC, Art. 124);


QUAMTO (1987-2016) b. c.

by delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant (RPC, Art. 125); and
 by delaying release of a prisoner whose release has been ordered by competent authority (RPC, Art. 126).

criminal liability to the co- conspirators, but not to a person who learned of such and did not report to the proper authorities (US v. Vergara, 3 Phil. 432; People vs. Atienza, 56 Phil. 353). COUP D’ ETAT (BAR 1988, 1991, 1998, 2002 BAR)

In all the above-stated ways, the principal offender should be a public officer acting under color of his authority.

Q: Distinguish rebellion from coup d’etat. (1991, 2004 Bar)

The legal grounds for detention are: 1. 2.

A: Rebellion distinguished from coup d’etat:

commission of a crime; 
 violent insanity or other ailment requiring compulsory confinement in an institution established for such purpose. 


As to overt acts, in rebellion, there is public uprising and taking up arms against the Government. In coup d’etat public uprising is not necessary. The essence of the crime is a swift attack, accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Government, or any military camp or installation, communication networks, public utilities, or facilities needed for the exercise and continued possession of government power.

C. CRIMES AGAINST PUBLIC ORDER 1.

Rebellion, Coup d’etat, Sedition, and Disloyalty REBELLION (1991, 1994, 1998, 2004 BAR)

Q: In the early morning of 25 October 1990, the troops of the Logistics Command (LOGCOM) of the AFP at Camp General Emilio Aguinaldo headed by their Operations Officer, Col. Rito Amparo, withdrew firearms and bullets and, per prior agreement, attacked, in separate teams, the offices of the Chief of Staff, the Secretary of National Defense, the Deputy Chief of Staff for Operations, the Deputy Chief of Staff for Intelligence and other offices, held hostage the Chief of Staff of LOGCOM and other officers, killed three (3) proGovernment soldiers, inverted the Philippine flag, barricaded all entrances and exits to the camp, and announced complete control of the camp. Because of the superiority of the pro-Government forces, Col. Amparo and his troops surrendered at 7:00 in the morning of that day.

As to objective or purpose, in rebellion, the purpose is to remove from the allegiance of the Philippines, the whole or any part of the Philippines, or any military or naval camps, deprive the Chief Executive or Congress from performing their functions. In coup d’etat, the objective is to seize or diminish the state powers. As to participation, in rebellion, any person may commit. In coup d’etat, any person belonging to the military or police or holding public office, with or without civilian participation may commit. Q: Supposing a public school teacher participated in a coup d'etat using an unlicensed firearm. What crime or crimes did he commit? (1998 Bar) A: The public school teacher committed only coup d'etat for his participation therein. His use of an unlicensed firearm is absorbed in the coup d'etat under the new firearms law (R.A. 8294).

Did Col. Amparo and his troops commit the crime of coup d’etat (Article 134-A, RPC) or of rebellion? (1991 Bar) A: Under the facts stated, the crime committed would be coup d’etat (R.A. 6988 incorporating Art. 134-A).

Q: If a group of persons belonging to the armed forces makes a swift attack, accompanied by violence, intimidation and threat against a vital military installation for the purpose of seizing power and taking over such installation, what crime or crimes are they guilty of?

However, since the law was not yet effective as of October 25, 1990, as the effectivity thereof (Sec. 8) is upon its approval (which is October 24, 1990) and publication in at least two (2) newspapers of general circulation, the felony committed would be rebellion.

If the attack is quelled but the leader is unknown, who shall be deemed the leader thereof? (1998, 2002 Bar) A: The perpetrators, being persons belonging to the Armed Forces, would be guilty of the crime of coup d'etat, under Art. 134-A of the RPC, as amended, because their attack was against vital military installations which are essential to the continued possession and exercise of governmental powers, and their purpose is to seize power by taking over such installations.

Q: VC, JG, GG, and JG conspired to overthrow the Philippine Government. VG was recognized as the titular head of the conspiracy. Several meetings were held and the plan was finalized. JJ, bothered by his conscience, confessed to Father Abraham that he, VG, JG and GG have conspired to overthrow the government. Father Abraham did not report this information to the proper authorities. Did Father Abraham commit a crime? If so, what crime was committed? What is his criminal liability? (1994 Bar)

The leader being unknown, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the group shall be deemed the leader of said coup d'etat (Art 135, RPC).

A: No. Father Abraham did not commit a crime because the conspiracy involved is one to commit rebellion, not a conspiracy to commit treason which makes a person criminally liable under Art 116, RPC. And even assuming that it will fall as misprision of treason, Father Abraham is exempted from criminal liability under Art. 12, par. 7, as his failure to report can be considered as due to "insuperable cause", as this involves the sanctity and inviolability of a confession. Conspiracy to commit rebellion results in

SEDITION (1987, 2007 BAR) Q: A, B, C, D, and E were former soldiers who deserted their command in Mindanao. Jose and Pedro, two big landowners, called A, B, C, D, and E to a conference. Jose and Pedro proposed to these former soldiers that they

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CRIMINAL LAW recruit their comrades and organize a group of 100 for the purpose of challenging the government by force of arms in order to prevent the enforcement or implementation of the Land Reform Law in Cotabato Province. Jose and Pedro promised to finance the group and to buy firearms for the purpose. The former soldiers agreed. After Jose and Pedro left, A, the leader of the former soldiers, said that in the meanwhile he needed money to support his family. D suggested that they rob a bank and agreed to carry put the plan on the 15th day of the month. Unknown to all of them, as they were conferring with Jose and Pedro and as they were planning to rob the bank, Rosauro, a houseboy was within hearing distance. On the pretext of buying cigarettes, Rosauro instead went directly to the Police and told them what transpired. All the former soldiers, as well as Jose and Pedro, were arrested.

Q: A, a teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the latter’s throwing paper clips at his classmates, twisted his right ear. X went out of the classroom crying and proceeded home located at the back of the school. He reported to his parents, Y and Z, what A had done to him, Y and Z immediately proceeded to the school building and because they were running and talking in loud voices, they were seen by the barangay chairman, B, who followed them as he suspected that an untoward incident might happen. Upon seeing A inside the classroom, X pointed him out to his father, Y, who administered a fist blow on A, causing him to fall down. When Y was about to kick A, B rushed towards Y and pinned both of the latter’s arms. Seeing his father being held by B, X went near and punched B on the face, which caused him to lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband, and also threatened to slap A.

(a) What crime, if any, did the former soldiers commit? (b) What about Jose and Pedro? (1987 Bar) A:

Security guards of the school arrived, intervened and surrounded X, Y and Z so that they could be investigated in the principal’s office. Before leaving, Z passed near A and threw a small flower pot at him but it was deflected by B.

(a) The former soldiers committed the crime of conspiracy to commit sedition. What Jose and Pedro proposed to the soldiers that they recruit their comrades and organize a group of 100 for the purpose of challenging the government by force of arms in order to prevent the implementation of the Land Reform Law in Cotabato Province is to commit sedition.

(a) What, if any, are the respective criminal liability of X, Y and Z? (b) Would your answer be the same if B were a barangay tanod only? (2001 Bar)

Proposal to commit sedition is not punished. But since the soldiers agreed, a conspiracy to commit sedition resulted which is now punishable. Conspiracy arises on the very moment the plotters agree (People v. Peralta, 25 SCRA 759).

A: 1.

(b) Jose and Pedro will also be liable for conspiracy to commit sedition since they are members of the conspiracy where the act of one is the act of all. If the soldiers did not agree to their proposal, they would not incur any criminal liability because there is no proposal to commit sedition.

Y is liable for the complex crimes of Direct Assault with Less Serious Physical Injuries for the fist blow on A, the teacher, which caused the latter to fall down. For purposes of the crime in Arts. 148 and 151 of the RPC, a teacher is considered a person in authority, and having been attacked by Y by reason of his performance of official duty, direct assault is committed with the resulting less serious physical injuries complexed.

Q: What are the different acts of inciting to sedition? (2007 Bar) A: The different acts which constitute the crime of inciting to sedition are: 1. 2.

3. 4. 5.

X is liable for direct assault only, assuming the physical injuries inflicted on B, the Barangay Chairman, to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is a person in authority (Art. 152, RPC) and in this case, was performing his duty of maintaining peace and order when attacked.

Inciting others through speeches, writings, banners and other media of representation to commit acts which constitute sedition; Uttering seditious words, speeches or circulating scurrilous libels against the Government of the Philippines or any of its duly constituted authorities, which tend to disturb or obstruct the performance of official functions, or which tend to incite others to cabal and meet for unlawful purposes; Inciting through the same media of representation rebellious conspiracies or riots; Stirring people to go against lawful authorities, or disturb the peace and public order of the community or of the Government; or Knowingly concealing any of the aforestated evil practices (Art. 142, RPC)

Z, the mother of X and wife of Y may only be liable as an accomplice to the complex of crimes of direct assault with less serious physical injuries committed by Y. Her participation should not be considered as that of a coprincipal, since her reactions were only incited by her relationship to X and Y, as the mother of X and the wife of Y. 2.

ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO PERSONS IN AUTHORITY AND THEIR AGENTS (1993, 1995, 2001, 2002, 2013 BAR)

If B were a Barangay Tanod only, the act of X of laying hand on him, being an agent of a person in authority only, would constitute the crime of Resistance and Disobedience under Art. 151, RPC since X, a high school pupil, could not be considered as having acted out of contempt for authority but more of helping his father get free from the grip of B. Laying hand on an agent of a person in authority is not ipso facto direct assault, while it would always be direct assault if done to a person in authority in defiance to the latter’s exercise of authority. D. CRIMES AGAINST PUBLIC INTEREST

UST BAR OPERATIONS

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QUAMTO (1987-2016) A: The lawyer would be liable under Article 172 of the RPC for the offense of introducing a false document in a judicial proceeding as he knew the same to be false.

Forgeries Q: How are "forging" and "falsification" committed?

Falsification of Public Document (1988, 1992, 1993, 1999, 2000, 2008 Bar)

A: Forging or forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; or by erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or signs contained therein.

Q: Andrea signed her husband’s name in endorsing his treasury warrants which were delivered to her directly by the district supervisor who knew that her husband had already died, and she used the proceeds to pay for the expenses of her husband’s last illness and his burial. She knew that her husband had accumulated vacation and sick leaves the money value of which exceeded that value of the three treasury warrants, so that the government suffered no damage. Andrea’s appeal is based on her claim of absence of criminal intent and of good faith.

Falsification, on the other hand, is committed through – 1. 2. 3. 4. 5. 6. 7. 8.

9.

Counterfeiting or imitating any handwriting, signature or rubric;
 Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;
 Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;
 Making untruthful statements in a narration of facts; Altering true dates;
 Making any alteration or intercalation in a genuine document which changes its meaning;
 Issuing in an authenticated form a document Purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

Should she be found guilty of falsification? Discuss briefly. (1988 Bar) A: Andrea should be held guilty of falsification of public documents. Her claim of absence of criminal intent and of good faith cannot be considered because she is presumed to know that her husband is dead. The element of damage required in falsification does not refer to pecuniary damage but damage to public interest. NB: Executive clemency can, however, be sought for by Andrea. Q: Jose Dee Kiam, a Chinese citizen born in Macao, having applied with a recruitment agency to work in Kuwait, went to Quezon City Hall to procure a Community Tax Certificate, formerly called Residence Certificate.

Counterfeiting coins; Forging treasury or bank notes, obligations and securities; Importing and uttering false or forged notes, obligations and securities Q: Is mere possession of false money bills punishable under Article 168 of the Revised Penal Code? (1999 Bar)

He stated therein that his name is Leo Tiampuy, a Filipino citizen born in Binan, Laguna. As he paid for the Community Tax Certificate, Cecille Delicious, an employee in the office recognized him and reported to her boss that the information written in the Community Tax Certificate were all lies. Shortly thereafter, an information was filed against Dee Kiam alias Tiampuy.

A: No. Possession of false treasury or bank note alone without an intent to use it, is not punishable. But the circumstances of such possession may indicate intent to utter, sufficient to consummate the crime of illegal possession of false notes.

(a) An information was filed against Dee Kiam. What crime, if any, may he be indicted for? Why? (b) The accused move to quash the information on the ground that it did not allege that he had the obligation to disclose the truth in the Community Tax Certificate; that the same is a useless scrap of paper which one can buy even in the Quiapo underpass and that he had no intent of deceiving anybody. Would you grant the motion to quash? (1992 Bar)

Introduction of false documents Q: M was forced by a policeman to sign a document entitled “Sinumpaang Salaysay” in which M implicated X as the brain behind the robbery of a bank where P500, 000.00 were lost. The document was prepared by the policeman upon advice of B, the bank’s lawyer, who was present when the policeman asked M to sign the document. As M refused to sign it, the policeman held him by the neck and forced him to sign, which he did as he was afraid he might be bodily harmed.

A: (a) Dee Kiam can be indicted for the felony of Falsification of a Public Document committed by a private individual under Art. 172 of the RPC in relation to Art. 171 thereof. A residence certificate is a public or official document within the context of said provisions and jurisprudence. Since Dee Kiam made an untruthful statement in a narration of facts (Art. 171(4), RPC), and he being a private individual, he is culpable thereunder. (b) Falsification of public documents under Arts. 171 and 172, RPC does not require that the document is required by law. The sanctity of the public document, a residence certificate, cannot be taken lightly as being a “mere scrap of paper”.

During the hearing of the robbery before the Fiscal’s Office, B submitted the “Sinumpaang Salaysay” as evidence, on the basis of which X was included in the information filed by the Fiscal in court. When M testified in court, he repudiated the document and told the court there was no truth to its contents as he was merely forced to sign it. Did lawyer B commit any crime when he used the “Sinumpaang Salaysay” as evidence?

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CRIMINAL LAW Intent to cause damage or actual damage, is not an indispensable requisite for falsification of public document.

Criminal liability for falsification of a private document does not arise without damage or at least proof of intent to cause damage. It cannot co-exist with the crime of estafa which also essentially requires damage or at least proof of intent to cause damage.

Q: A falsified official or public document was found in the possession of the accused. No evidence was introduced to show that the accused was the author of the falsification. As a matter of fact, the trial court convicted the accused of falsification of official or public document mainly on the proposition that “the only person who could have made the erasures and the superimposition mentioned is the one who will be benefited by the alterations thus made” and that “he alone could have the motive for making such alterations”.

Since the “talaan” was falsified to cover up or conceal the misappropriation of the amount involved, whatever damage or intent to cause damage that will attend the estafa. If such “talaan” or ledger was a commercial document, damage or proof of intent to cause damage is not necessary. The falsification alone if done with intent to pervert the truth, would bring about criminal liability for falsification of a commercial document. Damage or intent to cause damage, would sustain the estafa independently of the falsification of the commercial document. In this case, two (2) separate crimes are committed – estafa and falsification of the commercial document. The falsification should not be complexed with estafa since it was not committed as a necessary means to commit the estafa but rather resorted to, to conceal or hide the misappropriation of the amount she pocketed.

Was the conviction of the accused proper although the conviction was premised merely on the aforesaid ratiocination? Explain your answer. (1999 Bar) A: Yes. The conviction is proper because there is a presumption in law that the possessor and user of a falsified document is the one who falsified the same. Falsification of Private Document (1989, 1991, 2007 Bar) Q: In a civil case for recovery of a sum of money filed against him by A, B interposed the defense of payment. In support thereof, he identified and offered in evidence a receipt which appears to be signed by A. On rebuttal, A denied having been paid by B and having signed the receipt. He presented a handwriting expert who testified that the alleged signature of A on the receipt is a forgery and that a comparison thereof with the specimen signatures of B clearly shows that B himself forged the signature of A.

ALTERNATIVE ANSWER: The crime committed by Fe are theft and falsification of private document because Fe’s possession of the proceeds of the rice mill was only physical, not juridical, possession, and having committed the crimes with grave abuse of confidence, it is qualified theft. The falsification is a separate crime from the theft because it was not committed as a necessary means to commit the theft but resorted to only to hide or conceal the unlawful taking.

(a) Is B liable for the crime of using a falsified document in a judicial proceeding (last paragraph of Article 172 of the Revised Penal Code)? (b) If he is not, what offense of offenses may he be charged with? (1991 Bar)

Simulation of birth Q: A childless couple, A and B, wanted to have a child they could call their own. C, an unwed mother, sold her newborn baby to them. Thereafter, A and B caused their names to be stated in the birth certificate of the child as his parents. This was done in connivance with the doctor who assisted in the delivery of C. What are the criminal liabilities, if any, of the couple A and B, C and the doctor? (2002 Bar)

A: (a) No. B should not be liable for the crime of using a falsified document, under the last paragraph of Art. 172, RPC. He would be liable for forgery of a private document under the second mode of falsification under Art. 172, RPC.

A: The couple, A and B, and the doctor shall be liable for the crime of simulation of birth penalized under Article 347 of the Revised Penal Code, as amended. The act of making it appear in the birth certificate of a child that the persons named therein are the parents of the child when they are not really the biological parents of the said child constitutes the crime of simulation of birth.

Being the possessor and user of the falsified document he is presumed to be the forger or falsifier and the offense of introducing falsified document is already absorbed in the main offense of forgery or falsification. (b) If he testified on the genuineness of the document, he should also be liable under Art. 182, which is false testimony in civil cases.

C, the unwed mother is criminally liable for “Child Trafficking”, a violation of Article IV, Sec. 7 of RA 7610. The law punishes inter alia the act of buying and selling of a child.

Q: Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it appear that the rice mill was earning less than it actually was by writing in a “talaan” or ledger a figure lower than what was collected and paid by their customers. Fe then pocketed the difference. What crime/s did Fe commit, if any? Explain your answer. (2007 Bar)

False testimony (1987, 1991, 1993, 1994, 1996, 1997, 2005, 2008 Bar) Q: Explain and illustrate “subordination of perjury”. (1993 Bar)

A: If the “talaan” or ledger which Fe made to show a falsehood was a private document, the only crime that Fe committed was estafa thru abuse of confidence or unfaithfulness. UST BAR OPERATIONS

A: Subordination of perjury refers to the act of a person procuring a false witness to testify and thereby commit perjury. The procurer is a co- principal by inducement.

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QUAMTO (1987-2016) Q: Sisenando purchased the share of the stockholders of Estrella Corporation in two installments, making him the majority stockholder thereof and eventually, its president. Because the stockholders who sold their stocks failed to comply with their warranties attendant to the sale, Sisenando withheld payment of the second installment due on the shares and deposited the money in escrow instead, subject to release once said stockholders comply with their warranties. The stockholders concerned, in turn, rescinded the sale in question and removed Sisenando from the Presidency of the Estrella Corp., Sisenando then filed a verified complaint for damages against said stockholders in his capacity as president and principal stockholder of Estrella Corp. In retaliation, the stockholders concerned, after petitioning the Securities and Exchange Commission to declare the rescission valid, further filed a criminal case for perjury against Sisenando, claiming that the latter perjured himself when he stated under oath in the verification of his complaint for damages that he is the President of the Estrella Corporation when in fact he had already been removed as such.

is not liable as principal by direct participation in perjury, having testified on matters not material to an administrative case. Q: Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization. What crime or crimes, if any, did Al Chua commit? Explain. (2005 Bar) A: Al Chua committed perjury. His declaration under oath for naturalization that he is of good moral character and residing at Sampaloc, Manila are false. This information is material to his petition for naturalization. He committed perjury for this wilful and deliberate assertion of falsehood which is contained in a verified petition made for a legal purpose.

Under the facts of the case, could Sisenando be held liable for perjury? Explain. (1996 Bar)

E. CRIMES AGAINST PUBLIC MORALS (1996, 1993 BAR)

A: No. Sisenando may not be held liable for perjury because it cannot be reasonably maintained that he wilfully and deliberately made an assertion of a falsehood when he alleged in the complaint that he is the President of the Corporation.

Q: Pia, a bold actress living on top floor of a plush condominium in Makati City sunbathed naked at its penthouse every Sunday morning. She was unaware that the business executives holding office at the adjoining tall buildings reported to office every Sunday morning and, with the use of powerful binoculars, kept on gazing at her while she sunbathed. Eventually, her sunbathing became the talk of the town.

Obviously, he made the allegation on the premise that his removal from the presidency is not valid and that is precisely the issue brought about by his complaint to the SEC. It is a fact that Sisenando has been the President of the corporation and it is from that position that the stockholders concerned purportedly removed him, whereupon he filed the complaint questioning his removal. There is no wilful and deliberate assertion of a falsehood which is a requisite of perjury.

(a) What crime, if any, did Pia commit? Explain. (b) What crime, if any, did the business executives commit? Explain. (1996 Bar) A:

Q: A, a government employee, was administratively charged with immorality for having an affair with B, a co-employee in the same office who believed him to be single. To exculpate himself, A testified that he was single and was willing to marry B, He induced C to testify and C did testify that B was single. The truth, however, was that A had earlier married D, now a neighbor of C.

(a) Pia did not commit a crime, the felony closest to making Pia criminally liable is Grave Scandal, but then such act is not to be considered as highly scandalous and offensive against decency and good customs. In the first place, it was not done in a public place and within public knowledge or view. As a matter of fact it was discovered by the executives accidentally and they have to use binoculars to have public and full view of Pia sunbathing in the nude. (b) The business executives did not commit any crime. Their acts could not be acts of lasciviousness (as there was no overt lustful act), or slander, as the eventual talk of the town, resulting from her sunbathing, is not directly imputed to the business executives, and besides such topic is not intended to defame or put Pia to ridicule.

Is A guilty of perjury? Are A and C guilty of subordination of perjury? (1997 Bar) A: No. A is not guilty of perjury because the willful falsehood asserted by him is not material to the charge of immorality. Whether A is single or married, the charge of immorality against him as a government employee could proceed or prosper. In other words, A's civil status is not a defense to the charge of immorality, hence, not a material matter that could influence the charge.

Q: Juan and Petra are officemates. Later, intimacy developed between them. One day, Juan sent to Petra a booklet contained in a pay envelope which was securely sealed. The booklet is unquestionably indecent and highly offensive to morals. Juan was thereafter charged under par. 3 of Art. 201 of the Revised Penal Code, as amended by P.D. 969, which provides that the penalty of prision mayor or a fine from P6, 000to P12, 000, or both such imprisonment and fine shall be imposed upon those who shall sell,

There is no crime of subornation of perjury. The crime is now treated as plain perjury with the one inducing another as the principal inducement, and the latter, as principal by direct participation (People v. Podol, 66 Phil. 365). Since in this case, A cannot be held liable for perjury, the matter that he testified to being immaterial, he cannot therefore be held responsible as a principal by inducement when he induced C to testify on his status. Consequently, C

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CRIMINAL LAW give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals.

A: Yes. Commissioner Torres violated the following:

Is Juan guilty of the crime charged? Reasons. (1993 Bar)

1.

A: No. Juan is not guilty of the crime charged because the law (Art. 201, RPC) covers only the protection of public moral and not only the moral of an individual.

2.

F.

3.

CRIMES COMMITTED BY PUBLIC OFFICERS

Bribery (1990, 1993, 1994, 1997, 2001, 2005, 2006, 2010, 2014 Bar)

Q: A, who is the private complainant in a murder case pending before a Regional Trial Court judge, gave a judge a Christmas gift, consisting of big basket of assorted canned goods and bottles of expensive wines, easily worth P10, 000.00. The judge accepted the gift knowing it came from A. What crime or crimes, if any, were committed? (1997, 1993 Bar)

Q: During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500, 000 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug.

A: The judge committed the crime of indirect bribery under Art. 211 of the RPC. The gift was offered to the judge by reason of his office. In addition, the judge will be liable for the violation of P.D. 46 which punishes the receiving of gifts by public officials and employees on occasions like Christmas.

State with reasons whether Patrick committed the following crimes: (a) Direct bribery (b) Indirect bribery (c) Section 3 (e) of RA 3019 (Anti-Graft and Corrupt Practices Act) (d) Obstruction of Justice under PD 1829 (2005 Bar)

Qualified bribery Q: What is the crime of qualified bribery? May a judge be charged and prosecuted for such felony? How about a public prosecutor? A police officer? Explain. (2010 Bar)

A: Patrick committed the crimes of direct bribery under Article 210 of the Revised Penal Code, Violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act (RA3019) and Obstruction of Justice under Section 1 (b) of PD 1829.

A: Qualified bribery is a crime committed by a public officer who is entrusted with law enforcement and who, in consideration of any offer, promise, gift of offer, refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/ or death (Art. 211-A, RPC).

(a) Direct bribery was committed by Patrick when, for a consideration of P500, 000.00, he committed a violation of PD 1829 by destroying the drugs which were evidence entrusted to him in his official capacity. (b) Indirect bribery is not committed because he received the P500, 000.00 as consideration for destroying the evidence against the offender, which was under his official custody as a public officer. The money was not delivered to him simply as a gift or present by reason of his public office. (c) Patrick also violated Section 3 (e), R.A. 3019 causing undue injury to the government through evident bad faith, giving unwarranted benefit to the offender by destroying evidence of a crime. (d) Obstruction of justice under Section 1 (b) of P.D. 1829 is committed by destroying evidence intended to be used in official proceedings in criminal case.

No, a judge may not be charged of this felony because his official duty as a public officer is not law enforcement but the determination of cases already filed in court. On the other hand, a public prosecutor may be prosecuted for this crime in respect of the bribery committed, aside from dereliction of duty committed in violation of Art. 208 of the Revised Penal Code, should he refrain from prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present. Meanwhile, a police officer who refrains from arresting such offender for the same consideration above stated, may be prosecuted for this felony since he is a public officer entrusted with law enforcement.

Indirect bribery Q: Commissioner Marian Torres of the Bureau of Internal Revenue (BIR) wrote solicitation letters addressed to the Filipino-Chinese Chamber of Commerce and Industry and to certain CEOs of various multinational corporations requesting donations of gifts for her office Christmas party. She used the Bureau's official stationery. The response was prompt and overwhelming so much so that Commissioner Torres' office was overcrowded with rice cookers, radio sets, freezers, electric stoves and toasters. Her staff also received several envelopes containing cash money for the employees' Christmas luncheon. Has Commissioner Torres committed any impropriety or irregularity? What laws or decrees did she violate? (2006 Bar) UST BAR OPERATIONS

Indirect bribery (Art. 211, RPC) for receiving gifts offered by reason of office. RA 6713 or Code of Conduct and Ethical Standards for Public Officials and Employees when he solicited and accept gifts (Sec. 7[d]). PD 46 making it punishable for public officials and employees to receive, and for private persons to give gifts on any occasion, including Christmas.

Malversation of Public Funds (1987, 1988, 1990, 1994, 1996, 1999, 2001, 2005, 2006, 2008 Bar) Q: Dencio, who is the Municipal Treasurer of the town, was also the treasurer of a charity ball of the church. Because he was short of payroll funds for the municipal employees, he used part of the church funds to replenish the payroll funds with the intention of returning the same when the public funds came. (a) Is Dencio guilty of malversation under the RPC? State your reasons.

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QUAMTO (1987-2016) (b) Assuming that he failed to replenish the church funds, may he be held criminally liable thereby? (1990 Bar)

purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain. (1996 Bar)

A: (a) No. The church funds used by Dencio do not constitute public funds which are the proper subject of malversation. Neither does said funds constitute the so called private funds which could be the proper subject of malversation under Art. 222, RPC, which pertain to private property placed in the custody of public officers by reason of their office. (b) Yes. Momentary use of funds, since there is defraudation, is tantamount to estafa under Art. 215 of the RPC. This is because he received the funds in his capacity as treasurer and there was temporary damage caused. Personal benefit is not an element of the crime of estafa.

A: Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous is legally tenable because she was charged for malversation of public funds under Art. 217 of the RPC but was convicted for Illegal use of public funds which is defined and punished under Art. 220. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information (Parungao v. Sandiganbayan, G.R. No. 96025, May 15, 1991). From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that the absence of such law or ordinance was, in fact, established.

Q: Randy, an NBI agent, was issued by the NBI an armalite rifle (M16) and a Smith and Wesson Revolver Cal. 38. After a year, the NBI Director made an inspection of all the firearms issued. Randy, who reported for work that morning, did not show up during the inspection. He went on absence without leave (AWOL). After two years, he surrendered to the NBI the two firearms issued to him. He was charged with malversation of government property before the Sandiganbayan.

So, procedurally and substantially, the Sandiganbayan's decision suffers from serious infirmity.

Randy put up the defense that he did not appropriate the armalite rifle and the revolver for his own use, that the delay in accounting for them does not constitute conversion and that actually the firearms were stolen by his friend, Chiting. Decide the case. (1994 Bar)

Q: Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In 1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging that they constitute "Ill-gotten wealth" of the Marcos family. Upon their application, Reyes and Santos were appointed as fiscal agents of the sequestered firm and they were given custody and possession of the sequestered building and its contents, including various vehicles used in the firm's operations.

A: Randy is guilty as charged under Art. 217, RPC. He is accountable for the firearms they issued to him in his official capacity. The failure of Randy to submit the firearms upon demand created the presumption that he converted them for his own use. Even if there is no direct evidence of misappropriation, his failure to account for the government property is enough factual basis for a finding of malversation.

After a few months, an inventory was conducted and it was discovered that two (2) delivery vans were missing. After demand was made upon them, Reyes and Santos failed to give any satisfactory explanation why the vans were missing or to turn them over to the PCGG; hence, they were charged with Malversation of Public Property. During the trial, the two accused claimed that they are not public accountable officers and, if any crime was committed, it should only be Estafa under Art. 315, par. 1(b) of the Revised Penal Code.

Indeed, even his explanation that the guns were stolen is incredible for if the firearms were actually stolen, he should have reported the matter immediately to the authorities. Q: Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer, from the Department of Public Works and Highways, the amount of P100, 000.00 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the P100, 000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50, 000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific

What is the proper offense committed? State the reason(s) for your answer. (2001 Bar) A: The proper offense committed was Malversation of Public Property, not estafa, considering that Reyes and Santos, upon their application, were constituted as "fiscal agents" of the sequestered firm and were "given custody and possession" of the sequestered properties, including the delivery vans which later they could not account for. They were thus made the depositary and administrator of properties deposited by public authority and hence, by the duties of their office/position, they are accountable for such properties. Such properties, having been sequestered by the Government through the PCGG, are in custodia legis and therefore impressed with the character of public property, even though the properties belong to a private individual (Art. 222, RPC).

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CRIMINAL LAW The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is prima facie evidence that they had put the same to their personal use. Q: Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a daylong official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for P20, 000.00, although the car was worth P800, 000.00.

2.

a. b. c.

(a) What are the respective crimes, if any, committed by Allan, Danny and Jules? Explain. (b) What, if any, are their respective civil liabilities? Explain. (2005 Bar)

(a) Allan, the municipal treasurer is liable for malversation committed through negligence or culpa. The government car which was assigned to him is public property under his accountability by reason of his duties. By his act of negligence, he permitted the taking of the car by another person, resulting in malversation, consistent with the language of Art. 217 of RPC. 3. Danny committed the crime of fencing for having bought the car which was the proceeds of carnapping, a crime in the nature of theft or robbery of motor vehicle. The presumption of fencing applies to him for he paid a price so inadequate for the value of the car. Jules committed the crime of carnapping for the unlawful taking, with intent to gain, of the government’s motor vehicle. (Unlawful taking of a motor vehicle is now governed by the Anti-Carnapping Act, R.A. 6539, not by the provisions of the RPC on theft or robbery).

Meynardo, not being a public officer, is guilty of the crime of Delivering Prisoners From Jails (Art. 156), which is committed by any person who either removes from any jail or penal establishment any person confined therein, or who helps the escape of such person by means of violence, intimidation, bribery of other means. The act of Meynardo in giving to Ernani his cigarette container is helping in the latter’s escape by other means.

Q: Amy was apprehended and arrested by the Patrolman Bart for illegal parking. She was detained at the police precinct, underwent investigation, and released only after 48 hours.

(b) Allan, Jules and Danny are all civilly liable for restitution of the car to the government or if not possible, reparation of damages caused by payment of the replacement cost of the car minus allowance for depreciation, and to indemnify consequential damages. Infidelity of Public Officers

(a) Is Patrolman Bart liable for any offense? Explain your answer. (b) Suppose Amy resisted the arrest and grappled with patrolman Bart, is she criminally liable thereby? State your reasons. (1990 Bar)

Custody of prisoners (1989, 1990, 1996, 1997, 2002, 2009, 2014 Bar)

A: (a) Patrolman Bart is liable for violation of Article 125 of the Revised Penal Code – Delay on the Delivery of Detained Persons to the Proper Judicial Authorities. (b) She is criminally liable for slight disobedience under Art. 151 of the RPC – Resistance and disobedience to a person in authority or the agents of such person.

Q: Ernani was accused of estafa. Unable to post a bail bond for his provisional liberty pending trial of his case, he was detained in the city jail. On the date of the hearing of the estafa case, Daniel, a policeman detailed in the city jail, escorted Ernani to the city hall for the trial. Daniel removed the handcuffs of Ernani and allowed him to sit on one of the chairs inside the courtroom. As Daniel was talking to a lawyer inside the courtroom, Ernani, with the help of a cigarette vendor, Meynardo, who used his cigarette container as cover, surreptitiously moved out of the room and escaped. Ernani and Meynardo went to the comfort room for a while, then went down the stairs and lost themselves in the crowd. What crime/s were committed by Ernani, Daniel and Meynardo? Give your reasons. (1989 Bar)

Q: During a town fiesta, A, the chief of police, permitted B, a detention prisoner and his compadre, to leave the municipal jail and entertain visitors in his house from 10:00 am to 8:00 pm. B returned to the municipal jail at 8:30 pm. Was there any crime committed by A? (1997 Bar) A: Yes. A committed the crime of infidelity in the custody of a prisoner. Since B is a detention prisoner, as Chief of Police, A has custody over B. Even if B returned to the municipal jail at 8:30pm. A, as custodian of the prisoner, has maliciously failed to perform the duties of his office, and when he permits said prisoner to obtain a relaxation of his

A: Ernani, the escaped prisoner himself is not criminally liable for any offense. The detention prisoner who

UST BAR OPERATIONS

That the offender is a public officer That he has in his custody or charge a prisoner, either detention prisoner/s by final judgment That such prisoner escaped from his custody thru his negligence.

All of these elements are present, Daniel, a policeman detailed in the city jail, is a public officer. As the escort for Ernani in the latter’s trial, he had custody of charge of a detention prisoner. Ernani escape was thru his negligence because after removing Ernani’s handcuffs and allowing him to sit in one of the chairs inside the courtroom, he should have taken the necessary precautions to prevent Ernani’s escape by keeping an eye on him. Instead, he provided the opportunity for the escape by talking with a lawyer and not keeping watch over his prisoner.

A:

1.

escapes from detention does not commit any crime. If he were a convict by final judgment who is serving a sentence which consists of deprivation of liberty and he escapes during term of his sentence, he would be liable for Evasion of Service Sentence (Art. 157). Daniel, the policeman, committed the crime of Evasion thru Negligence, one of the forms of Infidelity in the custody of Prisoner (Art. 224), the essential elements of which offense are:

24

QUAMTO (1987-2016) imprisonment, he consents to the prisoner escaping the punishment of being deprived of his liberty which can be considered real and actual evasion of service under Article 223 of the RPC (People v. Leon Bandino, 29 Phil 459).

However, her parents drove her away so she returned to Manila and stayed with Oniok in his boarding house. Upon learning of her pregnancy, already in an advanced state, Oniok tried to persuade her to undergo an abortion, but she refused. Because of their constant and bitter quarrels, she suffered birth pangs and gave birth prematurely to a live baby girl while Oniok was at his place of work. Upon coming home and learning what happened, he prevailed upon Ana to conceal his dishonor. Hence, they placed the infant in a shoe and threw it into a nearby creek. However, an inquisitive neighbor saw them and with the help of others. Retrieved the infant who was already dead from drowning. The incident was reported to the police who arrested Ana and Oniok.

G. CRIMES AGAINST PERSONS Parricide (1994, 1996, 1997, 2003, 2006, 2015 Bar) Q: Aldrich was dismissed from his job by his employer. Upon reaching home, his pregnant wife, Carmi, nagged him about money for her medicines. Depressed by his dismissal and angered by the nagging of his wife, Aldrich struck Carmi with his fist. She fell to the ground. As a result, she and her unborn baby died. What crime was committed by Aldrich? (1994 Bar)

The two were charged with parricide under Article 246 of the RPC. After trial, they were convicted of the crime charged. Was the conviction correct? (Bar 2006)

A: Aldrich committed the crime of parricide with unintentional abortion. When Aldrich struck his wife, Carmi, with his fist, he committed the crime of maltreatment under Art. 266, par. 3 of the RPC. Since Carmi died because of the felonious act of Aldrich, he is criminally liable of parricide under Art. 246, RPC in relation to Art. 4, par. 1 of the same Code. Since the unborn baby of Carmi died in the process, but Aldrich had no intention to cause the abortion of his wife, Aldrich committed unintentional abortion as defined in Art. 257, RPC. Inasmuch as the single act of Aldrich produced two grave or less grave felonies, he falls under Art. 48, RPC, i.e. a complex crime (People v. Salufrancia, 159 SCRA 401).

A: The conviction was incorrect because: (a) Under Art. 46, Civil Code, a newborn with an intrauterine life of less than 7 months must live for at least 24 hours before it may be considered born and hence, before it may acquire personality of its own; (b) The newborn, therefore was still a fetus when killed and was not yet a person. Hence, the crime in law is abortion. It is legally a fetus who was killed, not a person or child because legally it has no personality yet. (c) Infanticide and parricide involves a killing when the victim is already a person.

Q: In 1975, Pedro, then a resident of Manila, abandoned his wife and their son, Ricky, who was then only three years old. Twenty years later, an affray took place in a bar in Olongapo City between Pedro and his companions, on one hand, and Ricky and his friends, upon the other, without the father and son knowing each other. Ricky stabbed and killed Pedro in the fight, only to find out, a week later, when his mother arrived from Manila to visit him in jail, that the man whom he killed was his own father.

Murder (1987, 1991, 1993, 1995, 1996, 1999, 2001, 2008, 2009 Bar) Q: A, a 76-year old woman, was brought to the hospital in a coma with slight cerebral hemorrhage. An endotracheal tube was inserted in her mouth to facilitate her breathing. B, a hospital janitor, removed the tube. The victim started to convulse and bleed in the mouth. Only the timely arrival of the nurse prevented the patient’s death. The patient was then transferred to another hospital where she died the next day of cardio-respiratory. Is B criminally liable? If so, what crime was committed? (1991 Bar)

(1) What crime did Ricky commit? (2) Suppose Ricky knew before the killing that Pedro is his father, but he nevertheless killed him out of bitterness for having abandoned him and his mother, what crime did Ricky commit? Explain. (1996 Bar)

A: Yes. B is criminally liable for Murder (qualified by treachery) because the death of A appears to be the proximate cause of the overt acts of B.

A: (1) Ricky committed parricide because the person killed was his own father and the law punishing the crime (Art. 246, RPC) does not require that the crime be knowingly committed. Should Ricky be prosecuted and found guilty of parricide, the penalty to be imposed is Art. 49 of the Revised Penal Code for Homicide (the crime he intended to commit) but in its maximum period. (2) The crime committed should be parricide if Ricky knew before the killing that Pedro is his father, because the moral basis for punishing the crime already exists. His having acted out of bitterness for having been abandoned by his father may be considered mitigating.

A died of cardio-respiratory arrest which evidently was brought about by the convulsion and bleeding in the mouth of the victim due to the removal by B of the endotracheal tube twice. The two acts of B can be considered as the result of one criminal design.

Q: Ana has been a bar girl/GRO at a beer house for more than 2 years. She fell in love with Oniok, the bartender, who impregnated her. But Ana did not inform about her condition and, instead, went to Cebu to conceal her shame.

A: Murder is the unlawful killing of a person which otherwise would constitute only homicide, had it not been attended by any of the following circumstances:

In People v. Umaging, 107 SCRA 166, the Supreme Court ruled that removal of the endotracheal tube is attempted murder, qualified by treachery, because the patient did not die. Q: Define murder. What are the elements of the crime? (1999 Bar)

1.

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With treachery or taking advantage of superior strength, or with the aid of armed men, or employing

CRIMINAL LAW

2. 3.

4. 5. 6.

means to weaken the defense or of means or persons to insure or afford impunity; In consideration of a price, reward or promise; By means or on the occasion of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin; On occasion of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity; With evident premeditation; With cruelty, by deliberately and inhumanely augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

For Nereo, Lino should be liable for serious physical injuries as the wounding of Nereo was the natural and logical consequences of Lino’s felonious act. (b) Tommy is exempted from criminal liability for the injury to Nereo as he was performing a lawful act with due care and the injury was caused by mere accident (Art. 12, par. 4), or that he was in lawful exercise of a right (Art. 11, par. 6), that is, defense of a stranger. Q: In a free-for-all brawl that ensued after some customers inside a nightclub became unruly, guns were fired by a group, among them A and B, that finally put the customers back to their senses. Unfortunately, one customer died. Subsequent investigation revealed that A’s gunshot had inflicted on the victim a slight wound that did not cause the deceased’s death nor materially contribute to it. It was B’s gunshot that inflicted a fatal wound on the deceased. A contended that his liability should, if at all, be limited to slight physical injury. Would you agree? Why? (2003 Bar)

Q: Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of “shabu” at the time he committed the stabbing. What should be the proper charge against Candido? Explain. (2005 Bar)

A: No. I beg to disagree with A’s contention that his liability should be limited to slight physical injury only. He should be held liable for attempted homicide because he inflicted said injury with the use of a firearm which is a lethal weapon. Intent to kill is inherent in the use of a firearm (Araneta, Jr. v. Court of Appeals, 187 SCRA 123).

A: Candido should be charged with murder qualified by treachery because the suddenness of the stabbing caught the victim by surprise and was totally defenseless. Being under the influence of dangerous drugs is a qualifying aggravating circumstance in the commission of a crime (Sec. 25, RA 9165, Comprehensive Dangerous Drugs Act of 2002). Hence, the penalty for murder shall be imposed in the maximum.

Q: Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter, Gaston, while driving a car, saw Belle crossing the street. Incensed that Belle had reported him, Gaston decided to scare her by trying to make it appear that he was about to run her over. He revved the engine of his car and drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and hit Belle causing her death. What is the liability of Gaston? Why? (2005 Bar)

Homicide (1989, 1990, 1992, 1994, 1995, 1996, 2003, 2005, 2014 Bar) Q: Tommy saw Lino and Okito engaged in a street fight. Lino then suddenly drew his balisong and lunged at Okito. In an effort to break up the fight, Tommy tried to snatch the balisong from Lino but not before the latter had inflicted a wound on Okito. As Lino withdrew the weapon and attempted to stab Okito a second time, Tommy tried to grab the weapon again. In so doing, his left forearm was slashed. As he succeeded in snatching away the balisong with his right arm, it flew with such force, that it hit Nereo, a passerby who was seriously injured.

A: Gaston is criminally liable for homicide in doing the felonious act which caused Belle’s death, although the penalty therefor shall be mitigated by lack of intention to commit so grave a wrong as that committed (Art. 13 [3], RPC). The act having been deliberately done with malice, is felonious and being the proximate cause of Belle’s death, brings about criminal liability although the wrong done.

Explain your answers fully.

Rape (1992, 1993, 1995, 1996, 2000, 2002, 2004, 2009 Bar)

(a) What is the criminal liability of Lino with respect to Okito, Tommy and Nereo? (b) In turn, is Tommy criminally liable to Nereo? (1992 Bar)

Q: The complainant, an eighteen-year old mental retardate with an intellectual capacity between the ages of nine and twelve years, when asked during the trial how she felt when she was raped by the accused, replied “Masarap, it gave me much pleasure.”

A: (a) As far as Okito is concerned, Lino is liable for frustrated homicide, assuming that the wound suffered by Okito is such that for reasons or causes independent of the will of Lino (such as timely medical attention) Okito would have died. If the injury is not serious enough, the liability is only attempted homicide.

With the claim of the accused that the complainant consented for a fee to the sexual intercourse, and with the foregoing answer of the complainant, would you convict the accused of rape if you were the judge trying the case? Explain. (1996 Bar) A: Yes, I would convict the accused of rape. Since the victim is a mental retardate with an intellectual capacity of a child less than 12 years old, she is legally incapable of giving a valid consent to the sexual intercourse. The sexual intercourse is tantamount to a statutory rape because the level of intelligence is that of a child less than 12 years of age. Where the victim of rape is a mental retardate, violence or intimidation is not essential to constitute rape (People v. Trimor, G.R. 106541-42, March 31, 1995). As a matter of fact,

Intent to kill is manifest because of the use of a deadly weapon. For the injury on the arm of Tommy, Lino is liable only for physical injuries (serious, less serious or slight, depending on the nature of the injury). Apparently, there is no intent to kill.

UST BAR OPERATIONS

26

QUAMTO (1987-2016) R.A. No. 7659, the Heinous Crimes Law, amended Art. 335, RPC, by adding the phrase “or is demented”.

RA No. 7610. (Amployo v. People, G.R. No. 157718, April 26, 2005) Under Section 5 (b) of RA 7610, when the victim (child subjected to sexual abuse) is under 12 years of age, the perpetrators shall be prosecuted (for acts of lasciviousness) under Article 336 of the Revised Penal Code: Provided, That the penalty for lasciviousness conduct when the victim is under 12 years of age shall be reclusion temporal in its medium period.

Q: Flordeluna boarded a taxi on her way home to Quezon City which was driven by Roger. Flordeluna noticed that Roger was always placing his car freshener in front of the car aircon ventilation but did not bother asking Roger why. Suddenly, Flordeluna felt dizzy and became unconscious. Instead of bringing her to Quezon City, Roger brought Flordeluna to his house in Cavite where she was detained for two (2) weeks. She was raped for the entire duration of her detention. May Roger be charged and convicted of the crime of rape with serious illegal detention? (2000 Bar)

H. CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Kidnapping (1991, 2009, 2014, 2016 Bar) Q: A charged B with the crime of rape. While the case was pending in court, B, together with his mother and brother, overpowered A while riding a tricycle, dragged her inside a carenderia owned by them and detained her for two (2) days. They demanded that she sign an affidavit of desistance and reimburse B the sum of P5, 000.00 which he paid to his lawyer in the case. She was released only after she signed the affidavit asking for the dismissal of the case and delivered to B P1, 000.00. She promised to deliver the balance of P4, 000.00 thirty (30) days later. What crime/s was/were committed by B, his mother and brother? (1991 Bar)

A: No. Roger may not be charged and convicted of the crime with serious illegal detention. Roger may be charged and convicted of multiple rapes. Each rape is a distinct offense and should be punished separately. Evidently, his principal intention was to abuse Flordeluna; the detention was only incidental to the rape. Q: A, a male, takes B, another male, to a motel and there, through threat and intimidation, succeeds in inserting his penis into the anus of B. What, if any, is A’s criminal liability? Why? (2002 Bar)

A: This is Kidnapping with Ransom which is kidnapping or illegal detention committed by a private person for the purpose of extorting ransom. Since the victim is a woman, it is serious.

A: A shall be criminally liable for rape by committing an act of sexual assault against B, by inserting his penis into the anus of the latter. Even a man may be a victim of rape by sexual assault under paragraph 2 of Article 266-A of the Revised Penal Code, as amended, “when the offender’s penis is inserted into his mouth or anal orifice.”

Q: A, with lewd designs, took a 13-year old girl to a nipa hut in his farm and there had sexual intercourse with her. The girl did not offer any resistance because she was infatuated with the man, who was good-looking and belonged to a rich and prominent family in the town. What crime, if any, was committed by A? Why? (2002 Bar)

Q: Braulio invited Lulu, his 11-year old stepdaughter, inside the master bedroom. He pulled out a knife and threatened her with harm unless she submitted to his desires. He was touching her chest and sex organ when his wife caught him in the act.

A: A committed the crime of Consented Abduction under Article 343 of the Revised Penal Code, as amended.

The prosecutor is unsure whether to charge Braulio for acts of lasciviousness under Art. 336 of the RPC, for lascivious conduct under RA 7610 (Special Protection against Child Abuse, Exploitation, and Discrimination Act); or for rape under Art. 266-A of the RPC. What is the crime committed? Explain. (2016 Bar) A: The acts of Braulio of touching the chest and sex organ of Lulu who is under 12 years of age, are merely acts of lasciviousness and not attempted rape because intent to have sexual intercourse is not clearly shown. (People v. Banzuela, G.R. No. 202060, December 11, 2013) To be held liable of attempted rape, it must be shown that the erectile penis is in the position to penetrate (Cruz v. People, G.R. No. 166441, October 8, 2014) or the offender actually commenced to force his penis into the victim’s sexual organ. (People v. Banzuela, supra)

The said Article punishes the abduction of a virgin over 12 and under 18 years of age, carried out with her consent and with lewd designs. Although the problem did not indicate the victim to be a virgin, virginity should not be understood in its material sense, as to exclude a virtuous woman of good reputation, since the essence of the crime is not the injury to the woman but the outrage and alarm to her family (Valdepeñas v. People, 16 SCRA 871). Trespass to dwelling Q: At about 11:00 in the evening, Dante forced his way inside the house of Mamerto. Jay, Mamerto’s son, saw Dante and accosted him. Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained injuries that incapacitated him for 25 days.

The same acts of touching the chest and sex organ of Lulu under psychological coercion or influence of her stepfather, Braulio, constitutes sexual abuse under Section 5(b) of RA No. 7610. (People v. Optana, G.R. No. 133922, February 12, 2001)

What crime/s did Dante commit? (1994 Bar)

Since the requisites for acts of lasciviousness under Article 336 of the Revised Penal Code are met, in addition to the requisites for sexual abuse under Section 5 of RA No. 7610, and the victim is under 12 years of age, Braulio shall be prosecuted for acts of lasciviousness under the Revised Penal Code but the penalty imposable is that prescribed by

A: Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified trespass to dwelling should not be complexed with frustrated homicide because when the

27

CRIMINAL LAW trespass is committed as a means to commit a more serious crime, trespass to dwelling is absorbed by the greater crime and the former constitutes an aggravating circumstance of dwelling (People v. Abedoza, 53 Phil 788).

confession without the offended party being confined in jail. (US v. Cusi, 10 Phil 143) It is noted that the offended party was merely “brought” to the police headquarters and is thus not a detention prisoner. Had he been validly arrested, the crime committed would be maltreatment of prisoners.

Grave Threats and Coercion (1987, 1988, 1989, 1998, 1999) Grave Coercion

I.

CRIMES AGAINST PROPERTY

Q: Isagani lost his gold necklace bearing his initials. He saw Roy wearing the said necklace. Isagani asked Roy to return to him the necklace as it belongs to him, but Roy refused. Isagani then drew his gun and told Roy, “If you will not give back the necklace to me, I will kill you!” Out of fear for his life and against his will, Roy gave the necklace to Isagani. What offense did Isagani commit? (1998 Bar)

Robbery (1987, 1988, 1992, 1996, 2000, 2001, 2012 Bar)

A: Isagani committed the crime of grave coercion (Art. 286, RPC) for compelling Roy, by means of serious threats or intimidation, to do something against the latter’s will, whether it be right or wrong. Serious threats or intimidation approximating violence constitute grave coercion, not grave threats. Such is the nature of the threat in this case because it was committed with a gun, is a deadly weapon.

A: The offenders committed only one robbery in the eyes of the law because when they entered the compound, they were impelled only by a single indivisible criminal resolution to commit a robbery as they were not aware that there were five families inside said compound, considering that the same was enclosed by a six-foot high hollow block fence. The series of robbery committed in the same compound at about the same time constitutes one continued crime, motivated by one criminal impulse.

Q: Five robbers robbed one after the other five houses occupied by different families located inside a compound enclosed by a six-foot high hollow block fence. How many robberies did the five commit? Explain. (1996 Bar)

The crime cannot be robbery because intent to gain, which is an essential element of robbery, is absent since the necklace belongs to Isagani.

Q: A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is being used by B as a bank for his coins from inside their locked cabinet using their common key. Forthwith, A broke the coconut shell outside of their home in the presence of his friends.

Q: (a) Distinguish coercion from illegal detention. (b) Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw from him a confession which was their intention to obtain through the employment of such means. What crime was committed by the agents of the law? (1999 Bar) A:

(a) What is the criminal liability of A, if any? Explain. (b) Is A exempted from criminal liability under Article 332 of the Revised Penal Code for being a brother of B? Explain. (2000 Bar) A: (a) A is criminally liable for Robbery with force upon things, because the coconut shell with the coins inside, was taken with intent to gain and broken outside of their home (Art. 299 [b], [2], RPC). (b) No. A is not exempt from criminal liability under Art. 332 because said Article applies only to theft, swindling, or malicious mischief. Here, the crime committed is robbery.

(a) Coercion may be distinguished from illegal detention as follows: In coercion, the basis of criminal liability is the employment of violence or serious intimidation approximating violence, without authority of law, to prevent a person from doing something not prohibited by law or to compel him to do something against his will whether it be right or wrong; while in Illegal Detention, the basis of liability is the actual restraint or locking up of a person thereby depriving him of his liberty without authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of illegal detention is not committed. (b) Evidently, the person tortured and maltreated by the agents of the law is a suspect and may have been detained by them. If so and he had already been booked and put in jail, the crime is maltreatment of prisoner and the fact that the suspect was subjected to torture to extort a confession would bring about a higher penalty, in addition to the offender’s liability for the physical injuries inflicted.

Q: A entered the house of another without employing force or violence upon things. He was seen by a maid who wanted to scream but was prevented from doing so because A threatened her with a gun. A then took money and other valuables and left. Is A guilty of theft or robbery? Explain. (2002 Bar) A: A is liable for robbery because the intimidation he employed on the maid before the taking of the money and other valuables. It is the intimidation of the person relative to the taking that qualifies the crime as robbery, instead of simply theft. ‘ The non-employment of force upon things is of no moment because robbery is committed not only by employing force upon things but also by employing violence against or intimidation of persons.

But if the suspect was forcibly brought to the police headquarters to make him admit the crime and tortured/maltreated to make him confess to such crime, but later released because the agents failed to draw such confession, the crime is grave coercion because of the violence employed to compel such UST BAR OPERATIONS

Theft (1989, 1998, 2000, 2001, 2005, 2008, 2012 Bar)

28

QUAMTO (1987-2016) Q: Sunshine, a “beauteous” colegiala but a shoplifter, went to the Ever Department Store and proceeded to the women’s wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft consummated, frustrated, or attempted? Explain. (2000 Bar) A: The theft was consummated because the taking or asportation was complete. The asportation is complete when the offender acquired the exclusive control of the personal property being taken. In this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store, with evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property.

A: A committed the crime of qualified theft because he took the goods on the occasion of and taking advantage of the fire which broke out in the department store. The occasion of a calamity such as fire, when the theft was committed, qualifies the crime under Article 310 of the Revised Penal Code, as amended. Q: Forest Ranger Jay Velasco was patrolling the Balara Watershed and Reservoir when he noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and after a few minutes, he saw Rene and Dante coming out of the gate with some more newly-cut logs. He apprehended and charged them with the proper offense. What is that offense? Explain. (2006 Bar) A: The offense committed is qualified theft pursuant to Sec. 1 of P.D. No. 330 and Sec. 68 of P.D. No. 705 defining the offense committed by any person who directly or indirectly cuts, gathers, removes or smuggles timber or other forest products in violation of existing laws, rules and regulation, from any public forest reserves, and other kinds of public forest or even privately owned forest lands.

Q: Francis Garcia, a Jollibee waiter, found a gold bracelet in front of his working place in Makati and, upon inspecting it, saw the name and address of the owner engraved on the inside. Remembering his parents’ admonition that he should not take anything which does not belong to him, he delivered the bracelet to PO1 Jesus Reyes of the Makati quad precinct with the instruction to locate the owner and return it to him. PO1 Reyes, instead, sold the bracelet and misappropriated the proceeds. Subsequent events brought out the fact that the bracelet was dropped by a snatcher who had grabbed it from the owner a block away from where Francis had found it and further investigation traced the last possessor as PO1 Reyes.

Q: A is the driver of B’s Mercedez Benz car. When B was on a trip to Paris, A used the car for a joy ride with C whom he is courting. Unfortunately, A met an accident. Upon his return, B came to know about the unauthorized use of the car and sued A for qualified theft. B alleged that A took and used the car with intent to gain as he derived some benefit or satisfaction from its use. On the other hand, A argued that he has no intent of making himself the owner of the car as he in fact returned it to the garage after the joy ride. What crime/s, if any, were committed? Explain. (2016 Bar) A: The crime committed by A is carnapping. The unlawful taking of motor vehicles is now covered by the AntiCarnapping Law (RA 6539 as amended) and not by the provisions on qualified theft or robbery. (People v. Bustinera, G.R. No. 148233, June 8, 2004) The concept of carnapping is the same as that of robbery and theft. Hence, rules applicable to theft or robbery are also applicable to carnapping. (People v. Asamuddin, G.R. No. 213913, September 2, 2015) In theft, unlawful taking should be understood within the Spanish concept of apoderamiento. In order to constitute apoderamiento, the physical taking must be coupled with the intent oto appropriate the object, which means intent to deprive the lawful owner of the thing, whether permanently or temporarily. (People v. Valenzuela, G.R. No. 160188, June 21, 2007) In this case, A took the car without the consent of B with intent to temporarily deprive him of the car. Although the taking was “temporary” and for a “joy ride”, the Supreme Court in People v. Bustinera (supra), sustains as the better view which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gain is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure.

Charged with theft, PO1 Reyes reasoned out that he had not committed any crime because it was not he who had found the bracelet, and moreover, it turned out to have been stolen. Resolve the case with reasons. (2001 Bar) A: PO1 Reyes is criminally liable. His contention that he has not committed any crime because he was not the one who found the bracelet and it turned out to be stolen also, is devoid of merit. It is enough that the bracelet belonged to another and the failure to restore the same to its owner is characterized by intent to gain. The act of PO1 Reyes of selling the bracelet which does not belong to him and which he only held to be delivered to its owner, is furtive misappropriation with intent to gain. Where a finder of lost or mislaid property entrusts it to another for delivery to the owner, the person to whom such property is entrusted and who accepts the same, assumes the relation of the finder to the owner as if he was the actual finder; if he would misappropriate it, he is guilty of theft (People v. Avila, 44 Phil 720). Qualified theft (1992, 2002, 2006 Bar)

Usurpation (1988, 1989, 1996 Bar) Q: Jorge is the owner of 10 hectares of land in the foothills which he planted with lanzones. On his last visit there, he was shocked to discover that his land had been taken over by a group of 15 families whose members had forcibly driven away his caretaker, had

Q: A fire broke out in a department store. A, taking advantage of the confusion, entered the store and carried away goods which he later sold. What crime, if any, did he commit? Why? (2002 Bar)

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CRIMINAL LAW appropriated the fruits for themselves, and were not threatening to kill him should he try to eject them.

extensively spread. Only a portion of the house was burned. Discuss Eddie’s liability. (2000 Bar)

What crime should Jorge charge these 15 families? Explain. (1988 Bar)

A: Eddie is liable for destructive arson in the consummated stage. It is destructive arson because fire was resorted to in destroying the house of Mario which is an inhabited house or dwelling. The arson is consummated because the house was in fact already burned although not totally. In arson, it is not required that the premises be totally burned for the crime to be consummated. It is enough that the premises suffer destruction by burning.

A: Jorge can charge the 15 families of 2 separate crimes namely: (a) Violation of Article 282, Grave threats xxx (b) Violation of Article 312 which provides that: “Occupation of real property or usurpation of real rights in property. – Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another, in addition to the penalty incurred for the acts of violence executed by him, shall be punished by a fine...”.

J.

Adultery & Concubinage (1991, 1994, 2002, 2005, 2010 Bar) Q: A, a married woman, had sexual intercourse with a man who was not her husband. The man did not know she was married. What crime, if any, did each of them commit? Why? (2002 Bar)

Q: A and B, both farmers, entered the land owned by X and planted palay thereon. When X came to know about it, he confronted A and B and inquired why the latter occupied his land and planted palay thereon.

A: A, the married woman, committed the crime of adultery under Article 333 of the Revised Penal Code, as amended, for having sexual intercourse with a man not her husband while her marriage is still subsisting. But the man who had carnal knowledge of her, not knowing her to be married, shall not be liable for adultery.

A, with a bolo in hand, replied that the land belongs to the family of S, and not to X and at the same time said, “If you touch this land and my palay, blood will flow on this ground.” Because of the said remark, X went to the Chief of Police and complained. The Chief of Police filed a complex crime of Usurpation of Real Property with Grave Threats.

Q: A is married. He has a paramour with whom he had sexual relations on a more or less regular basis. They meet at least once a week in hotels, motels, and other places where they can be alone. Is A guilty of any crime? Why?

What crime/s were committed? (1989 Bar) A: The crime committed by A and B is squatting under PD 772 and not Usurpation of Real Property because in the latter crime, there must be violence against or intimidation of persons employed in taking possession of any real property or in usurping any real rights in property belonging to another (Art. 312, RPC). In this case, it appears that A and B entered X’s land without the owner’s consent or against his will but without any violence against or intimidation of persons.

A: A is guilty of the crime of concubinage by having sexual intercourse under scandalous circumstances, with a woman who is not his wife. Having sexual relations on a more or less regular basis in hotels, motels, and other places may be considered scandalous circumstances that offends public conscience, giving rise to criticism and general protest, such acts being imprudent and wanton and setting a bad example (People v. Santos, 86 SCRA 705).

The crime of squatting is committed by any person, who, with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential, commercial or any other purposes.

K. CRIMES AGAINST HONOR Libel (2002, 2005, 2013, 2016 Bar) Q: A was nominated Secretary of a Department in the Executive Branch of the government. His nomination was thereafter submitted to the Commission on Appointments for confirmation. While the Commission was considering the nomination, a group of concerned citizens caused to be published in the newspapers a full-page statement objecting to A’s appointment. They alleged that A was a drug dependent, that he had several mistresses, and that he was corrupt, having accepted bribes or favors from parties transacting business in his previous office, and therefore he was unfit for the position to which he had been nominated. As a result of the publication, the nomination was not confirmed by the Commission on Appointments. The official sued the concerned citizens and the newspapers for libel and damages on account of his non-confirmation. How will you decide the case? (2002 Bar)

The threat uttered by A, not having been used in the taking of possession of the land, it is not absorbed in the crime of squatting. When A threatened X that blood will flow if X touches the land and his palay, he committed the crime of grave threats by threatening another with the infliction of a wrong amounting to a crime. Only A is criminally liable for the crime of grave threats. Arson (1994, 2000 Bar) Q: One early evening, there was a fight between Eddie Gutierrez and Mario Cortez. Later that evening, at about 11 o’clock, Eddie passed by the house of Mario carrying a plastic bag containing gasoline, threw the bag at the house of Mario who was inside the house watching television, and then lit it. The front wall of the house started blazing and some neighbors yelled and shouted. Forthwith, Mario poured water on the burning portion of the house. Neighbors also rushed in to help put the fire under control before any great damage could be inflicted and before the flames have

UST BAR OPERATIONS

CRIMES AGAINST CHASTITY

A: I will acquit the concerned citizens and the newspapers involved, from the crime of libel, because obviously they

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QUAMTO (1987-2016) made the denunciation out of a moral or social duty and thus there is absence of malice.

A: The publication is not defamatory because the element of intent to defame is absent. This is a mere announcement and does not carry any implication.

Since A was a candidate for a very important public position of a Department Secretary, his moral, mental, and physical fitness for the public trust in such position becomes a public concern as the interest of the public is at stake. It is pursuant to such concern that the denunciation was made; hence, bereft of malice.

Q: During a seminar workshop attended by government employees from the Bureau of Customs and Bureau of Internal Revenue, A, the speaker, in the course of his lecture, lamented the fact that a great majority of those serving in said agencies were utterly dishonest and corrupt.

Q: A is the president of the corporate publisher of the daily tabloid, Bulgar; B is the managing editor and C is the author/writer. In his column, Direct Hit, C wrote about X, the head examiner of the BIR-RDO Manila as follows:

The following morning, the whole group of employees in the two bureaus who attended the seminar, as complainants, filed a criminal complaint against A for uttering what the group claimed to be defamatory statements of the lecturer.

“Itong si X ay talagang BUWAYA kaya ang logo ng Lacoste Tshirt niya ay napaka swapang na buwaya. Ang nickname niya ay si Atty. Buwaya. Ang PR niya ay 90% sa bayad ng taxpayer at ang para sa RP ay 10% lang. Kaya ang baba ng collection ng RDO niya. Masyadong magnanakaw si X at dapat tanggalin itong bundat na bundat na buwaya na ito at napalaki na ng kurakot.”

In court, A filed a Motion to Quash the Information, reciting fully the above facts, on the ground that no crime was committed. If you were the judge, how would you resolve the motion? (2003 Bar) A: I would grant the Motion to Quash on the ground that the facts charged do not constitute an offense, since there is no definite person or persons dishonored.

A, B and C were charged with libel before the RTC of Manila. The three (3) defendants argued that the article is within the ambit of qualified privileged communication; that there is no malice in law and in fact; and that defamatory comments on the acts of public officials which are related to the discharge of their official duties do not constitute libel.

The crime of libel or slander is a crime against honor such that the person/s dishonored must be identifiable even by innuendoes. Otherwise, the crime against honor is not committed. Moreover, A was not making a malicious imputation, but merely stating an opinion; he was delivering a lecture with no malice at all during a seminar workshop. Malice being inherently absent in the utterance, the statement is not actionable as defamatory.

Was the crime of libel committed? If so, are A, B and C all liable for the crime? Explain. (2016 Bar) A: Yes, the crime of libel is committed. Fair comment on acts of public officers related to the discharge of their duties is a qualified privileged communication, hence, the accused can still be held liable for libel if actual malice is shown. In fair comment, actual malice can be established by showing that comment was made with knowledge that it was false or with reckless disregard of whether it was false or not. (Guingguing v. The Honorable Court of Appeals, G.R. No. 128959, September 30, 2005) Journalists bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of public interest. The report made by C describing a lawyer in the Bureau of Customs as corrupt cannot be considered as “fair” and “true” since he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not “fair and true reports,” but merely wild accusations. He has written and published the subject articles with reckless disregard of whether the same were false or not. (Erwin Tulfo v. People, G.R. No. 161032, September 16, 2008)

Slander Q: Lando and Marco are candidates in the local elections. In his speeches, Lando attacked his opponent Marco alleging that he is the son of Nanding, a robber and a thief who amassed his wealth through shady deals. May Marco file a case against Lando for grave oral defamation? State your reasons. (1990 Bar) A: Marco cannot file a case for grave oral defamation. If at all, he may file a case for light slander. In the case of People v. Laroga (40 OG 123), it was held that defamation in a political meeting when feelings are running high and people could not think clearly only amount to light slander. Moreover, his statements against Marco pertains to a person who is running for public office wherein a wider latitude is given . PART III. QUASI-OFFENSES

Defamation (1988, 1993, 2003 Bar) Q: Romeo Cunanan, publisher of the Baguio Daily, was sued by Pedro Aguas for libel for the public publication of his picture with the notice that: “This is to inform the public that Mr. Pedro Aguas whose picture appears above has ceased to be connected with the Sincere Insurance Company as underwriter as of December 31, 1987. Any transaction entered into by him after the said date will not be honored.

ARTICLE 365 – CRIMINAL NEGLIGENCE (2001, 2007 BAR) Q: Eddie brought his son Randy to a local faith healer known as “Mother Himala”. He was diagnosed by the faithhealer as being possessed by an evil spirit. Eddie thereupon authorized the conduct of a “treatment” calculated to drive the “spirit” from the boy’s body. Unfortunately, the procedure conducted resulted in the boy’s death.

Is the publication defamatory? Explain briefly. (1988 Bar)

The faithhealer and three others who were part of the healing ritual were charged with murder and convicted

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CRIMINAL LAW by the lower court. If you were the appellate court Justice, would you sustain the conviction upon appeal? Explain your answer. (2007 Bar)

(2) The possible defenses Lt. Col. Agaton may interpose are –

A: No. The conviction for murder should not be sustained because there is no indication that the accused acted with intent to kill Randy. On the contrary, the facts show that the accused acted to “treat” the victim in a way of driving the evil spirit which was believed to have “possessed” him. Considering that the proximate cause of the victim’s death was the healing ritual done by the accused which is not recognized in law as legitimate, the accused are criminally liable for the victim’s death. As they may have overdone the “healing ritual” they conducted on the victim’s body, causing the latter’s death, although the intent to kill was absent, the accused may be held criminally liable for Reckless Imprudence Resulting in Homicide.

(a) That the child is related to him by affinity, or by consanguinity within the fourth degree or by a bond recognized in law, or local customs and traditions; or (b) That he was only acting in pursuance of a moral, social or legal duty [Sec. 10 (b), Art. VI, R.A. 7610] Q: Arnold, 25 years of age, was sitting on a bench in Luneta Park, watching the statue of Jose Rizal, when, without his permission, Leilani, 17 years of age, sat beside him and asked for financial assistance, allegedly for payment of her tuition fee, in exchange for sex. While they were conversing, police operatives arrested and charged him with violation of Section 10 of RA 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), accusing him of having in his company a minor, who is not related to him, in a public place. It was established that Arnold was not in the performance of a social, moral and legal duty at that time. Is Arnold libale for the charge? Explain. (2016 Bar)

PART IV. SPECIAL PENAL LAWS

A: No, Arnold is not liable. Under Section 10 of RA No. 7610, any person who shall keep or have in his company a minor, twelve (12) years or under or who in ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places is liable for child abuse.

ANTI-CHILD ABUSE LAW (R.A. NO. 7610, AS AMENDED) (1993, 2004 Bar) Q: Sometime in December 1992, retired Lt. Col. Agaton, celebrating the first year of his compulsory retirement from the Armed Forces of the Philippines, had in his company a fourteen (14) year-old girl whose parents were killed by the Mt. Pinatubo eruption and being totally orphaned has been living or fending for herself in the streets in Manila. They were alone in one room in a beach resort and stayed there for two (2) nights. No sexual intercourse took place between them. Before they parted, retired Lt. Col. Agaton gave the girl P1, 000.00 for her services. She gladly accepted it.

Arnold is not liable for the charge. To be held liable under Section 10(b) of RA No. 7610, it is indispensable that the child in the company of the offender must be 12 years or under or who in 10 years or more his junior in a public place. In this case, Leilani is 17 years of age, and only 8 years younger than Arnold. Moreover, Leilani sat beside Arnold without his permission, hence, he is not in the company if a child in a public place.

(1) What crime may the retired colonel be charged with, if any? Discuss. (2) What possible defenses can he interpose? Explain. (1993 Bar)

Lastly, applying the episdem generis principle, Arnold is not liable for child abuse because Luneta is not a place similar to hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort.

A:

ANTI-FENCING LAW (P.D 1612) (1987, 1990, 1992, 1995, 1996, 2005, 2010, 2013 Bar)

(1) The retired colonel may be charged with child abuse, the violation of Rep. Act. 7610, a law providing special protection against child abuse, exploitation and discrimination.

Q: Pedro, a municipal treasurer, received form the Provincial Treasurer of the Province five (5) brand new typewriters for use in the municipal treasurer’s office. Each typewriter is valued at P10, 000.00. Since Pedro needed money for the hospitalization of his sick son, he sold four (4) of the typewriters to his friend, Rodolfo, a general merchant in San Isidro for P2, 000.00 each. Rodolfo, as a general merchant knew that one typewriter could easily be between P6, 000.00 to P10, 000.00. For this reason, he readily agreed to buy the typewriters. Rodolfo then resold the typewriters at P6, 000.00 thus making a profit of P16, 000.00. Two months after the transaction, Pedro was audited and the investigation as to his accountabilities led to the discovery that Rodolfo bought the four (4) typewriters from Pedro. Is Rodolfo liable for violation of the AntiFencing Law? (1987 Bar)

One of the acts of child abuse or exploitation penalized under Article VI of RA 7610 is that of keeping company of a minor who is ten (10) years or younger than the offender in a hotel, motel, beer house, disco joint, pension house, cabaret, sauna or massage parlor, beach resort, and similar places. Considering that Lt. Col Agaton is a retiree pursuant to a compulsory retirement, while the child he kept company within a private room in the beach resort is only 14 years old, there must be an age difference of more than 10 years between them. This fact plus the circumstance that Lt. Col. Agaton stayed with the child, a girl in one room at such beach resort for two nights and thereafter he gave her P1,000.00 “for her services”, constitutes the very evil punished, among other acts, in said law. UST BAR OPERATIONS

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QUAMTO (1987-2016) A: Rodolfo is not liable for violation of the Anti-Fencing Law as this law refers only to the buy and sell of articles of value which are the proceeds of robbery and theft. Rodolfo is liable as an accessory to the crime of malversation as he purchased the typewriters for P2, 000 each only although he knew it could easily be sold for P6, 000 to P10, 000. Therefore, he profited or assisted the principal to profit from the effects or proceeds of the commission of the crime.

(b) Is Ofelia liable under the Anti-Fencing Law? Explain. (2016 Bar) A: (a) Fencing is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. (Section 2, PD 1612) (b) No. Ofelia is not liable under the Anti-Fencing Law. While under the said law mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing, such evidence when sufficiently overturned constitutes a defense.

Q: (1) What are the elements of fencing? (2) What is the difference between a fence and an accessory to theft or robbery? Explain. (3) Is there any similarity between them? (1995 Bar) A: (1) The elements of fencing are: (a) A crime of robbery or theft has been committed; (b) Accused, who is not a principal or accomplice in the crime, buys, receives, possesses, keeps, acquires, conceals or disposes or buys and sells or in any manner deals in any article, item, object or anything of value , which has been derived from the proceeds of said crime; (c) The accused knows or should have known that said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (d) There is, on the part of the accused, intent to gain for himself or for another.

In this case, Ofelia’s defense that she merely acquired the jewelries through a legitimate transaction is sufficient. Further, there is no other circumstance as regards the jewelries which would indicate to Ofelia, an innocent purchaser, that the jewelries were the subject of theft. There was even a receipt produced by Ofelia for the transaction. ANTI-GRAFT AND CORRUPT PRACTICES ACT (R.A. NO. 3019, AS AMENDED) (1990,1991, 2001, 2008, 2009, 2010, 2014, 2016 Bar) Q:

(2) One difference between a fence and accessory to theft or robbery is the penalty involved – a fence is punished as a principal under PD No. 1612 and the penalty is higher, whereas an accessory to robbery or theft under the RPC is punished two degrees lower than the principal, unless he bought or profited from the proceeds of theft or robbery arising from robbery in Philippine highways under PD 532 where he is punished as an accomplice, hence the penalty is one degree lower.

a.

Melda who is the private secretary of Judge Tolits Naya, was persuaded by a litigant, Jumbo, to have his case calendared as early as possible for a consideration of P500.00. May she be held criminally liable for this accommodation? Explain your answer. b. What will be the criminal liability of Melda if she volunteered to persuade Judge Tolits Naya to rule in Jumbo’s favor without asking any consideration? Explain your answer. (1990 Bar)

Also, fencing is a malum prohibitum and therefore there is no need to prove criminal intent of the accused; this is not so in violations of the RPC.

A: a.

(3) There is similarity in the sense that all the acts of one who is an accessory to the crimes of robbery or theft are included in the acts defined as fencing. In fact, the accessory in the crimes of robbery or theft could be prosecuted as such under the RPC or as a fence under PD 1612 (Dizon-Pamintuan v. People, 234 SCRA 63)

The answer would depend or be qualified by the implication of the phrase “to have his case calendared as early as possible”. If the phrase is interrupted as an unjust act and in violation of the rule to give priority to the older cases, then she would be liable under direct bribery for an act which does not constitute a crime but is unjust. He may also be held liable under Section 3 (e) of RA 3019, the Anti-Graft and Corrupt Practicess Act, as amended: “xxx giving any private party any unwarranted benefits”. If you interpret the phrase as a non-violation of the rules and regulations, then she can only be held liable for direct bribery.

Q: Ofelia engaged in the purchase and sale of jewelry, was charged with violation of PD 1612, otherwise known as the Anti-Fencing Law, for having been found in possession of recently stolen jewelry valued at P100, 000.00 at her jewelry shop. Her defense is that she merely bought the same from Antonia and produced a receipt covering the sale. She presented other receipts given to her by Antonia representing previous transactions. Convicted of the charge, Ofelia appealed, arguing that her acquisition of the jewelries resulted from a legal transaction and that the prosecution failed to prove that she knew or should have known that the pieces of jewelry which she bought from Antonia were proceeds of the crime of theft.

b.

(a) What is a “fence” under PD 1612?

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Melda is not criminally liable because the actor volunteering to persuade is not a criminal act. It is the act of persuading that is considered a criminal act. The act does not fall under Article 210 of the Revised Penal Code on Direct Bribery nor does it fall under Article 211 of the RPC on Indirect Bribery. Neither does it fall under the Anti-Graft and Corrupt Practices Act. Section 3(a) of RA 3019 refers to acts of persuading another public official to violate rules and regulations.

CRIMINAL LAW Q: Malo, a clerk of court of a trial court, promised the accused in a drug case pending before the court, that he would convince the judge to acquit him for a consideration of P5 million. The accused agreed and delivered the money through his lawyer to the clerk of court.

(Filoteo, Jr. v. Sandiganbayan, GR No. 79543, October 16, 1996). (B) Under Section 2 of PD 532, highway robbery is defined as “the seizure of any person for ransom, extortion, or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippines highway.” Hence, the elements of highway robbery are:

The judge, not knowing of the deal, proceeded to rule on the evidence and convicted the accused. Malo was charged with violation of Section 3 (b), RA 3019 which prohibits a public officer from directly or indirectly requesting or receiving any gift, present, share percentage or benefit wherein the public officer, in his official capacity, has to intervene under the law. He was later charged also with indirect bribery under the RPC. Malo claims he can no longer be charged under the RPC for the same act under RA 3019. Is he correct? (2014 Bar)

(a) (b) (c) (d)

To obtain a conviction for highway robbery, the prosecution must prove that the accused were organized for the purpose of committing robbery indiscriminately. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants (See People v. Mendoza, GR No. 104461, February 23, 1996).

A: No. One may be charged with violation of RA No. 3019 in addition to a felony under the RPC for the same delictual act, either concurrently or subsequent to being charged with a felony under the RPC. This is very clear from Section 3 of RA 3019. Also, RA 3019 is a special law, the elements of the crime is not the same as those punished under the RPC.

Q: Distinguish Highway Robbery under PD No. 532 from Robbery committed on a highway. (2000 Bar)

ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY (P.D. NO. 532) (2000, 2001, 2006, 2008, 2012 Bar)

A: Highway Robbery under PPD 532 differs from ordinary Robbery committed on a highway in these respects:

Q: A postal van containing mail matter, including checks and treasury warrants, was hijacked along a national highway by ten (10) men, two of whom, were armed. They used force, violence and intimidation against the three postal employees who were occupants of the van, resulting in the unlawful taking and aspiration of the entire van and its contents.

(1) In Highway Robbery under PD 532, the robbery is committed indiscriminately against persons who commute in such highways, regardless of the potentiality they offer; while in ordinary Robbery committed on a highway, the robbery is committed only against predetermined victims;

(A) If you were the public prosecutor, would you charge the ten (10) men who hijacked the postal van with violation of Presidential Decree No. 532, otherwise known as the Anti-Piracy and AntiHighway Robbery Law of 1974? Explain your answer. (B) If you were the defense counsel, what are the elements of the crime of highway robbery that the prosecution should prove to sustain a conviction? (2012 Bar) A:

(2) It is Highway Robbery under PD 532, when the offender is a brigand or one who roams in public highways and carries out his robbery in public highways as venue, whenever the opportunity to do so arises. It is ordinary Robbery under the RPC when the commission thereof in a public highway is only incidental and the offender is not a brigand; and (3) In Highway Robbery under PD 532, there is frequency in the commission of the robbery in public highways and against persons traveling thereat; whereas ordinary robbery in public highways is only occasional against a predetermined victim, without frequency in public highways.

(A) No. I would not charge the 10 men with the crime of highway robbery. The mere fact that the offense charged was committed on a highway would not be the determinant for the application of PD No. 532. If a motor vehicle, either stationary or moving on a highway is forcibly taken at a gunpoint by the accused who happened to take a fancy thereto, the location of the vehicle at the time of the unlawful taking would not necessarily put the offense within the ambit of PD 532.

ANTI-PLUNDER ACT (R.A. NO. 7080, AS AMENDED) (1993, 2014) Q: Through kickbacks, percentages or commissions and other fraudulent schemes/conveyances and taking advantage of his position, Andy, a former mayor of a suburban town, acquired assets amounting to P10 billion which is grossly disproportionate to his lawful income. Due to his influence and connections and despite knowledge by the authorities of his ill-gotten wealth, he was charged with the crime of plunder only after twenty (20) years from his defeat in the last elections he participated in.

In this case, the crime committed is violation of the Anti-Carnapping Act of 1972 (People v. Punk, GR No. 97471, February 17, 1993). Moreover, there is no showing that the 10 men were a band of outlaws organized for the purpose of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another. What was shown is one isolated hijacking of a postal van. It was not stated in the facts given that the 10 men previously attempted at similar robberies by them to establish the “indiscriminate” commission thereof

UST BAR OPERATIONS

Intent to gain; Unlawful taking of property of another; Violence against or intimidation of any person; Committed on a Philippine highway.

(1) May Andy still be held criminally liable? Why? (2) Can the State still recover the properties and assets that he illegally acquired, the bulk of which is in the name of his wife and children? Reason out. (1993 Bar)

34

QUAMTO (1987-2016) A:

notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC.”

(1) Andy will not be criminally liable because Section 6 of RA 7080 provides that the crime punishable under this Act shall prescribe in twenty years and the problem asked whether Andy can still be charged with the crime of plunder after 20 years. (2) Yes, because Section 6 provides that recovery of properties unlawfully acquired by public officers from them or their nominees or transferees shall not be barred by prescription, laches or estoppel.

As a rule, once the unlawful aggression ceased, stabbing the victim further is not self-defense. However, even if the element of unlawful aggression in self-defense is lacking, Ms. A, who is suffering for battered woman syndrome, will not incur criminal and civil liability. Q: Romeo and Julia have been married for twelve (12) years and had two (2) children. The first few years of their marriage went along smoothly. However, on the fifth year onwards, they would often quarrel when Romeo comes home drunk. The quarrels became increasingly violent, marked by quiet periods when Julia would leave the conjugal dwelling. During the times of quiet, Romeo would court Julia with flowers and chocolates and convince her to return home, telling her that he could not live without her; or Romeo would ask Julia to forgive him, which she did, believing that if she humbled herself, Romeo would change. After a month of marital bliss, Romeo would return to his drinking habit and the quarrel would start again, verbally at first, until it would escalate to physical violence.

ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN (R.A. NO. 9262) Battered Woman Syndrome (2010, 2014, 2015 Bar) Q: Define "Battered Woman Syndrome." What are the three phases of the "Battered Woman Syndrome"? Would the defense prosper despite the absence of any of the elements for justifying circumstances of selfdefense under the Revised Penal Code? Explain. (2010 Bar) A: “Battered Woman Syndrome” refers to a scientifically define pattern of psychological and behavioural symptoms found in woman living in battering relationships as a result of cumulative abuse (Sec. 3[d], R.A. 9262). The three (3) phases of the BWS are: (1) tension- building phase; (2) acute battering incident; and (3) tranquil, loving, or non-violent phase (People v. Genosa, G.R. No. 135981, January 15, 2004).

One night, Romeo came home drunk and went straight to bed. Fearing the onset of another violent fight, Julia stabbed Romeo, while he was asleep. A week later, their neighbors discovered Romeo’s rotting corpse on the marital bed. Julia and the children were nowhere to be found. Julia was charged with parricide. She asserted “battered woman syndrome” as her defense.

Yes, the defense will prosper. Sec. 26 of R.A. 9262 provides that victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements of justifying circumstances of selfdefense under the RPC.

(a) Explain the cycle of violence. (b) Is Julia’s “battered woman syndrome” defense meritorious? Explain. (2016 Bar) A:

Q: Ms. A had been married to Mr. B for 10 years. Since their marriage, Mr. B had been jobless and a drunkard, preferring to stay with his “barkadas” until the wee hours of the morning. Ms. A was the breadwinner and attended to the needs of their three (3) growing children. Many times, when Mr. B was drunk, he would beat Ms. A and their three children, and shout invectives against them. In fact, in one of the beating incidents, Ms. A suffered a deep stab wound on her tummy that required a prolonged stay in the hospital. Due to the beatings and verbal abuses committed against her, she consulted a psychologist several times, as she was slowly beginning to lose her mind. One night, when Mr. B arrived dead drunk, he suddenly stabbed Ms. A several times while shouting invectives against her.

(a) The Battered Woman Syndrome is characterized by the so-called “cycle of violence,” which has three phases: (1) tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or at least, nonviolent) phase. During the tension-building phase, minor battering occurs – it could be verbal or slight physical abuse or another form of hostile behavior. The woman tries to pacify the batterer through a kind, nurturing behavior; or by simply staying out of his way. The acute battering incident is characterized by brutality, destructiveness and sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief.

Defending herself from the attack, Ms. A grappled for the possession of a knife and she succeeded. She then stabbed Mr. B several times which caused his instantaneous death. Medico-Legal Report showed that the husband suffered three (3) stabbed wounds. Can Ms. A validly put up a defense? Explain. (2014 Bar) A: Yes. Ms. A can put up the defense of battered woman syndrome. It appears that she is suffering from physical and psychological or emotional distress resulting from cumulative abuse by her husband.

(b) Yes. Under Section 3(c) of RA No. 9262, “Battered Woman Syndrome” refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of “cumulative abuse”. Under Section 3(b), “Battery” refers to an act of inflicting physical harm upon the woman or her child resulting in physical and psychological or emotional distress.

Under Section 26 of RA 9262, “victim survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability

In sum, the defense of Battered Woman Syndrome can be invoked if the woman in marital relationship with the victim is subjected to cumulative abuse or battery

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CRIMINAL LAW involving the infliction of physical harm resulting to the physical and psychological or emotional distress. Cumulative means resulting from successive addition. In sum, there must be “at least two battering episodes” between the accused and her intimate partner and such final episode produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. (People v. Genosa, G.R. No. 135981, January 15, 2004)

A: No. As long as the checks issued were issued to apply on account or for value, and was dishonored upon presentation for payment to the drawee bank for lack of insufficient funds on their due date, such act falls within the ambit of B.P. Blg. 22. Said law expressly punishes any person who may have insufficient funds in the drawee bank within ninety (90) days from the date appearing thereon.

In this case, because of the battering episodes, Julia feared the onset of another violent fight and honestly believed the need to defend herself even if Romeo had not commenced an unlawful aggression. Even in the absence of unlawful aggression, however, Battered Woman Syndrome is a defense. Under Section 27 of RA No. 9262, Battered Woman Syndrome is a defense notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code such as unlawful aggression. (Section 26, RA No. 9262)

Q: B imitated the signature of A, registered owner of a lot, in special power of attorney naming him (B) as the attorney-in-fact of A. On February 13, 1964, B mortgaged the lot to a bank using the special power of attorney to obtain a loan of P8, 500. On the same day, both the special power of attorney and the mortgage contract were duly registered in the Registry of Deeds.

Estafa (1989, 1998, 1990, 1991, 2005, 2010, 2013, 2014 Bar)

Because of B’s failure to pay, the bank foreclosed the mortgage and the lot was sold to X in whose name a new title was issued. In March 1974, A discovered that the property was already registered in the name of X because an ejectment case filed against him by X.

BOUNCING CHECKS LAW (B.P. 22) (1987, 1990, 1991, 1995, 1996, 2009, 2010, 2013 Bar)

(a) If you were the lawyer of A, with what crime or crimes would you charge B? Explain. (b) If you were the counsel of B, what would be your defense? Discuss. (1993 Bar)

Q: As security for a loan of P50, 000.00 he obtained from his friend, Joseph David, payable not later than 17 April 1990, Roger Vasquez drew and delivered to Joseph a check on due date. The check was dishonored on the ground of insufficiency of funds. After appropriate preliminary investigation, the City Prosecutor filed against Roger an Information for violation of B.P. Blg. No. 22 alleging therein, inter alia, that Roger “with intent to defraud, by means of deceit, knowing fully well that he had no funds and/or sufficient funds in the bank, for value received, did then and there, willfully and feloniously, issue the aforesaid check” but “when the said check was presented for encashment, said check was dishonored and returned” on the ground of insufficiency of funds.

A: (a) The crime committed is estafa thru falsification of public document. (b) My defense will be prescription because the crime was committed in 1964 and almost twenty nine years had already elapsed since then. xxx Q: On March 31, 1995, Orpheus Financing Corp. received from Maricar the sum of P500, 000 as money market placement for sixty days at fifteen (15) percent interest, and the President of said Corp. issued a check covering the amount including the interest due thereon, postdated May 30, 1995. On the maturity date, however, Orpheus Financing Corp. failed to deliver back Maricar's money placement with the corresponding interest earned, notwithstanding repeated demands upon said Corporation to comply with its commitment. Did the President of Orpheus Financing Corporation incur any criminal liability for estafa for reason of the non-payment of the money market placement? Explain. (1996 Bar)

In a decision rendered thereafter, the trial judge ruled that Roger cannot be convicted of the offense charged because the information failed to allege that he knew, when he issued the check, that he would have insufficient funds for its payment in full upon its presentment to the drawee bank. Is the judge correct? (1991 Bar) A: No. The allegation satisfies the legal definition of the offense. The maker’s knowledge of insufficiency of his funds is legally presumed from the dishonor of the check for lack of funds (People v. Lagui, 171 SCRA 305).

A: No. The President of the financing corporation does not incur criminal liability for estafa because a money market transaction partakes of the nature of a loan, such that nonpayment thereof would not give rise to estafa through misappropriation or conversion. In money market placement, there is transfer of ownership of the money to be invested and therefore the liability for its return is civil in nature. Q: A sold a washing machine to B on credit with the understanding that B could return the appliance within two weeks if after testing the same, B decided not to buy it. Two weeks lapsed without B returning the appliance. A found out that B had sold the washing machine to a third party. Is B liable for estafa? Why? (2002 Bar)

Q: The accused was convicted under BP Blg. 22 for having issued several checks which were dishonored by the drawee bank on their due date because the accused closed her account after the issuance of checks. On appeal, she argued that she could not be convicted under B.P. Blg. 22 by reason of the closing of her account because said law applies solely to checks dishonored by reason of insufficiency of funds and that at the time she issued the checks concerned, she had adequate funds in the bank. While she admits that she may be held liable for estafa under Article 215 of the Revised Penal Code, she cannot however be found guilty of having violated B.P. Blg. 22. Is her contention correct? Explain. (1996 Bar)

UST BAR OPERATIONS

A: No. B is not liable for estafa because he is not just an entrustee of the washing machine which he sold; he is the owner thereof by virtue of the sale of the washing machine to him. The sale being on credit, B as buyer is only liable for

36

QUAMTO (1987-2016) the unpaid price of the washing machine; his obligation is only a civil obligation. There is no felonious misappropriation that could constitute estafa.

acquittal since his acquittal is premised on the finding that his liability is only civil in nature. (De Guzman v. Alva, 51 OG 1311).

Q: A and B agreed to meet at the latter's house to discuss B's financial problems. On his way, one of A's car tires blew up. Before A left following the meeting, he asked B to lend him money to buy a new spare tire. B had temporarily exhausted his bank deposits, leaving a zero balance. Anticipating, however, a replenishment of his account soon, B issued A a postdated check with which A negotiated for a new tire. When presented, the check bounced for lack of funds. The tire company filed a criminal case against A and B. What would be the criminal liability, if any, of each of the two accused? Explain. (2003 Bar)

COMPREHENSIVE DANGEROUS DRUGS ACT (R.A. 9165) (1990, 1992, 1995, 1996, 1998, 2000, 2003, 2005, 2006, 2007, 2009, 2015, 2016 Bar) Q: (1) Distinguish entrapment from instigation. Discuss fully. (1990, 1995, 2003, 2015 Bar) (2) Suspecting that Juan was a drug pusher, SPO2 Mercado, leader of the Narcom team, gave Juan a P100-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went inside the shopping mall while the officer waited at the corner of mall. After 15 minutes, Juan returned with ten sticks of marijuana cigarettes which he gave to SPO2 Mercado who thereupon placed Juan under arrest and charged him with violation of The Dangerous Drugs Law by selling marijuana cigarettes. Is Juan guilty of any offense punishable under The Dangerous Drugs Act? Discuss fully. (1995 Bar)

A: A who negotiated the unfunded check of B in buying a new tire for his car may only be prosecuted for estafa if he was aware at the time of such negotiation that the check has no sufficient funds in the drawee bank; otherwise, he is not criminally liable. B who accommodated A with his check may nevertheless be prosecuted under B.P. 22 for having issued the check, knowing at the time of issuance that it has no funds in the bank and that A will negotiate it to buy a new tire, i.e., for value. B may not be prosecuted for estafa because the facts indicate that he is not actuated by intent to defraud in issuing the check which A negotiated. Obviously, B issued the postdated check only to help A; criminal intent or dolo is absent.

A: (1) As to the criminal design, in entrapment, it originates from and is already in the mind of the lawbreaker even before entrapment. In instigation, the idea and design to bring about the commission of the crime originated and developed in the mind of the law enforcers;

Q: DD was engaged in the warehouse business. Sometime in November 2004, he was in dire need of money. He, thus, sold merchandise deposited in his warehouse to VR for P500, 000.00. DD was charged with theft, as principal, while VR as accessory. The court convicted DD of theft but acquitted VR on the ground that he purchased the merchandise in good faith. However, the court ordered VR to return the merchandise to the owner thereof and ordered DD to refund the P500, 000.00 to VR. DD moved for the reconsideration of the decision insisting that he should be acquitted of theft because being the depositary, he had juridical possession of the merchandise. VR also moved for the reconsideration of the decision insisting that since he was acquitted of the crime charged, and that he purchased the merchandise in good faith, he is not obligated to return the merchandise to its owner. Rule on the motions with reasons. (2005 Bar) A: The motion for reconsideration of DD should be denied.

In entrapment, the law enforcers resort to ways and means for the purpose of capturing the lawbreaker in flagrante delicto. In instigation, the law enforcers induce, lure, or incite a person who is not minded to commit a crime and would not otherwise commit it, into committing the crime; and Entrapment will not bar the prosecution and conviction of the lawbreaker while instigation absolves the accused from criminal liability (People v. Dante Marcos, 185 SCRA 154, 1990). (2) Juan cannot be charged of any offense punishable under the Dangerous Drugs Act. Although Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion. By providing the money with which to buy marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan to commit the offense of illegal possession of marijuana. Set against the facts instigation is a valid defense available to Juan.

In this case, there being no proof that title to the goods was transferred to DD, only physical possession is presumed transferred to and obtained by DD. (U.S. v. De Vera, G.R. No. L-16961, September 19, 1921) The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused received the property and converts it to his own use or benefit. However, there maybe theft even if the accused has possession of the property, if he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa (Santos v. People, G.R. No. 77429, January 29, 1990).

Q: Pat. Buensuceso, posing as a buyer, approached Ronnie, a suspected drug pusher, and offered to buy P300.00 worth of shabu. Ronnie then left, came back five minutes later and handed the aluminum foil containing the shabu to him. Before Pat. Buensuceso was able to deliver the marked money to Ronnie, the latter spotted a policeman at a distance, whom Ronnie knew to be connected with the Narcotics Command of the Police. Upon seeing the latter, Ronnie ran away but was arrested thirty minutes later by other policemen who pursued him. Under the circumstances, would you consider the crime of sale of a prohibited drug already consummated? (1996 Bar)

While VR is acquitted of theft, such acquittal does not of itself negate civil liability of VR to return the property stolen by DD. Civil liability on the part of VR exists despite

A: Yes. The sale of prohibited drug is already consummated although the marked money was not yet delivered. When Ronnie handed the aluminum foil containing the shabu to

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CRIMINAL LAW Pat. Buensuceso pursuant to their agreed sale, the crime was consummated. Payment of the consideration is not an element of requisite of the crime. If ever, the marked money is only evidentiary to strengthen the case of the prosecution.

A: Chief Inspector Samuel Gamboa and PO3 Pepito Lorbes incur criminal liability under Art. 11, Sec. 4 last par., RA No. 9165, otherwise known as the “Comprehensive Dangerous Drugs Act of 2002”. They acted as “protector/coddler” to the unlawful bringing into the Philippines of the dangerous drugs. A “protector/coddler” refers to any person who uses his power or position in, inter alia, facilitating the escape of any person whom he knows or believes, has violated the Dangerous Drugs Law, in order to prevent the arrest, prosecution and conviction of the violator.

The absence of the marked money will not create a hiatus in the prosecution’s evidence as long as the sale of the dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. There was a perfected contract of sale of the drug (People v. Ong Co, 245 SCRA 733)

The two police officers are criminally liable for violation of Sec. 27. RA 9165 of the same law for misappropriation and failure to account for the confiscated or seized dangerous drugs.

Q: Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or “shabu”. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of “shabu” and violation of Section 15, Art. II of RA 9165 for the use of marijuana.

On the other hand, Dante Ong is criminally liable for the illegal importation or bringing into the Philippines of the dangerous drugs (Art. 11, Sec. 4, RA 9165). Q: Tuburcio asked Anastacio to join their group for a “session”. Thinking that it was for a mahjong session, Anastacio agreed. Upon reaching Tiburcio’s house, Anastacio discovered that it was actually a shabu session. At that precise time, the place was raided by the police, and Anastacio was among those arrested.

(a) Are the charges proper? Explain. (b) So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why? (1998, 2004, 2005 Bar)

What crime can Anastacio be charged with, if any? Explain. (2007 Bar)

A: (a) Proper. The mere possession of such drug is punishable, but the charge of use of marijuana is not proper as Section 15 of R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002) expressly excludes penalties for “use” of dangerous drugs when the person tested “is also found to have in possession such quantity of any dangerous drug” provided for in Section 11 of such Act. (b) No. Because Section 23 of R.A. 9165 expressly provides that “Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.” For this reason, Obie Juan cannot be allowed to plead guilty to a lesser offense.

A: Anastacio may not be charged of any crime. Sec. 7 of RA 9165 on the Comprehensive Dangerous Drugs of 2002 punishes employees and visitors of a den, dive or resort where dangerous drugs are used in any form. But for a visitor of such place to commit the crime, it is a requisite that he is “aware of the nature of the place as such and shall knowingly visit the same.” These requisites are absent in the facts given. Q: Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence because the police officers who conducted the buy-bust operation failed to observe the requisite "chain of custody" of the evidence confiscated and/or seized from him.

Q: After receiving a reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight No. PR181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his attaché case. Upon inspection the Immigration holding area, the attaché case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attaché case and boarded him in an unmarked car driven by PO3 Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner Edsa, Chief Inspector Gamboa ordered PO3 Lorbes to stop the car. They brought out the drugs from the case in the trunk to and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents had been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and PO3 Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later charged.

(a) What is the "chain of custody" requirement in drug offenses? What is its rationale? (2009, 2016 Bar) (b) What is the effect of failure to observe the requirement? (2009 Bar) A: “Chain of custody” requirement in drug offenses refers to the duly recorded, authorized movement and custody of seized dangerous drugs, controlled chemicals, plant sources of dangerous drugs, and laboratory equipment of dangerous drugs from the time of confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic laboratory for examination, to its safekeeping and eventual violation, and for destruction (Dangerous Drugs Board Regulation No. 1 Series of 2001) Its rationale is to preserve the authenticity of the corpus delicti or body of the crime by rendering it improbable that the original item seized/ confiscated in the violation has been exchanged or substituted with another or tampered with or contaminated. It is a method of authenticating the evidence as would support a finding beyond reasonable doubt that the matter is what the prosecution claims to be. Failure to observe the “chain of custody” requirement

What are their respective criminal liabilities? (2006 Bar) UST BAR OPERATIONS

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QUAMTO (1987-2016) renders the evidence questionable, not trustworthy and insufficient to prove the corpus delicti beyond reasonable doubt.

deemed absorbed in a separate charge of rebellion filed against him. Decide the issue. (b) Suppose Ka Jacinto, using one of the unlicensed firearms, shot and killed his neighbor in an altercation. May the charge of murder and illegal possession of firearms be deemed absorbed in the separate charge of rebellion filed against him? Resolve the matter with reasons. (1990) Bar

Hence, Tommy would be acquitted on reasonable doubt. Q: The Philippine Drug Enforcement Agency (PDEA) had intelligence reports about the drug pushing activities of Rado, but could not arrest him for lack of concrete evidence. SP03 Relio, a PDEA team leader, approached Emilo and requested him to act as poseurbuyer of shabu and transact with Rado. Emilo refused, saying that he had completely been rehabilitated and did not want to have anything to do with drugs anymore. But he was prevailed upon to help when SP03 Relio explained that only he could help capture Rado because he used to be his customer. SP03 Relio then gave Emilo the marked money to be used in buying shabu from Rado. The operation proceeded. After Emilo handed the marked money to Rado in exchange for the sachets of shabu weighing 50 grams, and upon receiving the pre-arranged signal from Ernilo, SP03 Relio and his team members barged in and arrested Rado and Ernilo, who were both charged with violation of R.A. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

A: (a) The charge of illegal possession of firearms and explosives is deemed absorbed in the crime of rebellion, such possession being a necessary means for the perpetration of the latter crime. (Elias v. Rodriguez, 107 Phil 659) (b) The charges here could not be absorbed in the separate charge of rebellion as it is clear that the act of murder, coupled with the possession of an unlicensed firearm, was not in furtherance of the rebellion. Q: PH killed OJ, his political rival in the election campaign for Mayor of their town. The Information against PH alleged that he used an unlicensed firearm in the killing of the victim, and this was proved beyond reasonable doubt by the prosecution. The trial court convicted PH of two crimes: Murder and Illegal Possession of Firearms. Is the conviction correct? Reason briefly. (2004 Bar)

(a) What defense, if any, may Emilo invoke to free himself from criminal liability? Explain. (b) May Rado adopt as his own Emilo's defense? Explain. (2015 Bar)

A: No. The conviction of PH for two crimes is not correct. Under the new law on illegal possession of firearms and explosives, RA 8294, a person may only be criminally liable for illegal possession of firearm if no other crime is committed therewith; If a homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an aggravating circumstance.

A: (a) Ernilo may invoke Section 33, Art. II of RA 9165 or the “Comprehensive Drugs Act of 2002”. He may have violated Section 11 of RA 9165 for possession of shabu but he is immune from prosecution and punishment because of his role as the poseur-buyer in the entrapment operation. There was virtually instigation. He is exempted from prosecution or punishment because the information obtained from him by the PDEA agents, who had no direct and concrete evidence of Rado’s drug-pushing activities, led to the whereabouts, identity and arrest of Rado. So long as the information and testimony given are pleaded and proven, Ernilo cannot be prosecuted for violation of RA 9165. (b) No. First, an entrapment operation is a valid means of arresting violators of RA 9165. It is an effective way of apprehending law offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime originates from the offender, without anybody inducing or prodding him to commit the offense. Second, the immunity does not extend to violators of Section 5 of RA 9165 or the sale of shabu (sec. 33, RA 9165). Lastly, he was the offender of the crime and apparently the most guilty of the offense.

PH therefore may only be convicted of murder and the use of an unlicensed firearm in its commission may only be appreciated as a special aggravating circumstance, provided that such use is alleged specifically in the Information for Murder. INDETERMINATE SENTENCE LAW (R.A. 4103, AS AMENDED) (1988, 1989, 1990, 1994, 1997, 1999, 2002, 2005, 2007, 2009, 2010, 2013, 2016) Q: State the application of the Indeterminate Sentence Law. (1988, 2016 Bar) A: (a) The Indeterminate Sentence Law (ISLaw) applies in cases where the penalty imposed is more than one year and the ISLaw shall apply where there is a minimum penalty which is not lower than the penalty next lower in degree provided by law and the maximum not higher than the maximum penalty provided by law in cases of felonies but when it comes to statutory offenses, it must be lower than the minimum penalty provided by law and not higher than the maximum penalty provided by law except in the following cases as provided by Section 2 of Art. 4103:

ILLEGAL POSSESSION OF FIREARMS (P.D. 1866, AS AMENDED BY R.A. NO. 8294 AND R.A. 10591) (1990, 2000, 2004 Bar) Q:

1. 2.

(a) Ka Jacinto, an NPA commander, was apprehended with unlicensed firearms and explosives. He was accordingly charged with illegal possession of said firearms and explosives. He now questions the filing of the charges on the ground that they are

3. 4. 5.

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Life imprisonment Those convicted of treason, conspiracy or proposal to commit treason To those convicted of misprision of treason, rebellion, sedition or espionage Those convicted of piracy Those who are habitual delinquents

CRIMINAL LAW 6. 7. 8.

Those who shall have escaped from confinement or evaded sentence Those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof Those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Sec. 5 hereof

A: No. Macky is not entitled to the benefit of the Indeterminate Sentence Law (Act 4103, as amended) for having evaded the sentence which banished or placed him on destierro. Sec. 2 of the said law expressly provides that the law shall not apply to those who shall have “evaded sentence”. Q: Bruno was charged with homicide for killing the 75 year old owner of his rooming house. The prosecution proved that Bruno stabbed the owner causing his death; and that the killing happened at 10 in the evening in the house where the victim and Bruno lived. Bruno, on the other hand, successfully proved that he voluntarily surrendered to the authorities; that he pleaded guilty to the crime charged; that it was the victim who first attacked and did so without any provocation on his (Bruno's) part, but he prevailed because he managed to draw his knife with which he stabbed the victim. The penalty for homicide is reclusion temporal. Assuming a judgment of conviction and after considering the attendant circumstances, what penalty should the judge impose? (2013 Bar)

Q: Itos was convicted of an offense penalized by a special law. The penalty prescribed is not less than six years but not more than twelve years. No modifying circumstance attended the commission of the crime. If you were the judge, will you apply the Indeterminate Sentence Law? If so, how will you apply it? (1994, 1999 Bar) A: If I were the judge, I will apply the provisions of the Indeterminate Sentence Law, as the last sentence of Section 1 Act 4103, specifically provides the application thereof for violations of special laws. Under the same provision, the minimum must not be less than the minimum provided therein (six years and one day) and the maximum shall not be more than the maximum provided therein, i.e. twelve years.

A: Bruno should be sentenced to an indeterminate sentence penalty of arresto mayor in any of its period to prision correccional in its medium period as maximum. Bruno was entitled to two privileged mitigating circumstances of incomplete self-defense and the presence of at least two ordinary mitigating circumstances (voluntary surrender and plea of guilt) without any aggravating circumstance under Art. 69 and 64(5) of the RPC respectively, which lowers the prescribed penalty for homicide which is reclusion temporal to prision correccional.

Q: When would the Indeterminate Sentence Law (ISLaw) be inapplicable? (1999, 2003 Bar) A: The ISLaw is not applicable to: 1.

Those persons convicted of offenses punished with death penalty or life-imprisonment or reclusion perpetua; 2. Those convicted of treason, conspiracy or proposal to commit treason; 3. Those convicted of misprision of treason, rebellion, sedition or espionage; 4. Those convicted of piracy; 5. Those who are habitual delinquents; 6. Those who shall have escaped from confinement or evaded sentence; 7. Those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; 8. Those whose maximum term of imprisonment does not exceed one year; 9. Those already sentenced by final judgment at the time of the approval of this Act; and 10. Those whose sentence imposes penalties which do not involve imprisonment, like destierro.

JUVENILE JUSTICE AND WELFARE ACT (R.A. NO. 9344, AS AMENDED, R.A. NO. 10630 AND IN RELATION TO P.D. 603) (1995, 2003, 2006, 2009, 2013 Bar) Q: Victor, Ricky, Rod and Ronnie went to the store of Mang Pandoy, Victor and Ricky entered the store while Rod and Ronnie posted themselves at the door. After ordering beer, Ricky complained that he was shortchanged although Mang Pandoy vehemently denied it. Suddenly, Ricky whipped out a knife as he announced “Hold-up ito!” and stabbed Mang Pandoy to death. Rod boxed the store’s salesgirl Lucy to prevent her from helping Mang Pandoy. When Lucy ran out of the store to seek help from people next door, she was chased by Ronnie. As soon as Ricky had stabbed Mang Pandoy, Victor scooped up the money from the cash box. Then Victor and Ricky dashed to the street and shouted, “Tumakbo na kayo!” Rod was 14 and Ronnie was 17. The money and other articles looted from the store of Mang Pandoy were later found in the houses of Victor and Ricky.

Q: How are the maximum and the minimum terms of the indeterminate sentence for offenses punishable under the Revised Penal Code determined? (2002 Bar)

Are the minors Rod and Ronnie entitled to suspended sentence under The Child and Youth Welfare Code? Explain. (1995 Bar)

A: For crimes punished under the Revised Penal Code, the maximum term of the indeterminate sentence shall be the penalty properly imposable under the same Code after considering the attending mitigating and/or aggravating circumstances according to Art. 64 of said Code. The minimum term of the same sentence shall be fixed within the range of the penalty next lower in degree to that prescribed for the crime under the said Code.

A: No. Because the benefits of suspension of sentence is not available where the youthful offender has been convicted of an offense punishable by reclusion perpetua to death under Art. 294 (1), RPC (People v. Galit, 230 SCRA 486). Q:

Q: While serving his sentence, Macky entered the prohibited area and had a pot session with Ivy (Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of use of prohibited substances? Explain your answer. (2007 Bar)

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(a) A was 2 months below 18 years of age when he committed the crime. He was charged with the crime 3 months later. He was 23 when he was finally convicted and sentenced. Instead of preparing to serve a jail term, he sought a

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QUAMTO (1987-2016) suspension of the sentence on the ground that he was a juvenile offender. Should he be entitled to a suspension of sentence? Reasons. (b) Can juvenile offenders, who are recidivists, validly ask for suspension of sentence? Explain. (2003, 2013 Bar)

commence to serve his sentence. Is “A” eligible for probation? (1989 Bar) A: A is still eligible for probation since he filed his application for probation within 15 days from the promulgation of the judgment. Under the Probation Law, the accused may apply for probation within the period for perfecting an appeal which is 15 days from promulgation or notice thereof.

A: (a) No. A is not entitled to a suspension of sentence because he is no longer a minor at the time of promulgation of the sentence. For purposes of suspension of sentence, the offender’s age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. So although A was below 18 years old when he committed the crime, but he was already 23 years old when sentenced, he is no longer eligible for suspension of sentence. (b) Yes. So long as the offender is still a minor at the time of the promulgation of the sentence. The law establishing Family Courts, RA 8369, provides to this effect: that if the minor is found guilty, the court should promulgate the sentence and ascertain any civil liability which the accused may have incurred. However, the sentence shall be suspended without the need of application pursuant to PD 603, otherwise known as the “Child and Youth Welfare Code” (RA 8369, Sec. 5a). It is under PD 603 that an application for suspension of the sentence is required and thereunder it is one of the conditions for suspension of sentence that the offender be a first time convict: this has been displaced by RA 8369.

The judge committed an error in issuing a Commitment order on the same day of promulgation. A commitment order for the convict to begin serving his sentence can be validly issued only if the period for perfecting an appeal has expired with no appeal being taken. The fact that in compliance with such order, which is void, the accused commenced to serve his sentence does not bar him from availing himself of the benefits of the Probation Law. While it is true under the Rules that a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied or served or the accused has applied for probation (Sec. 7, Rule 120), Sec. 9 of the same Rule provides that “nothing in this Rule shall be construed as affecting any existing provision in the law governing suspension of sentence, probation or parole.” The probation law does NOT speak of filing an application for probation before judgment has become final. It only speaks of filing the application WITHIN THE PERIOD FOR PERFECTING AN APPEAL. There is nothing in the Probation Law that bars an accused who has commenced to serve his sentence from filing an application for probation provided he does so within the period for perfecting an appeal.

PROBATION LAW (P.D. 968, AS AMENDED) (1988, 1989, 1990, 1991, 1992, 1993, 1995, 2000, 2002, 2003, 2004, 2005, 2010 Bar)

What the Probation Law provides is that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment or conviction. It does not say that no application shall be entertained if the judgment has become final because the convict has already commenced to serve his sentence.

Q: Who are the offenders disqualified from availing themselves of the benefits of the probation law (P.D. 968, as amended)? (1988 Bar) A: The following offenders are disqualified from availing of the benefits of the Probation Law: 1. 2. 3.

4. 5.

Q: Boyet Mar was charged with consented abduction by a 17-year old complainant. The accused made wedding arrangements with the girl, but her parents insisted on the prosecution of the case. To avoid further embarrassment of a court trial for him and the girl, the accused entered a plea of guilty. He then filed a petition for probation before serving sentence, but the court denied the petition on the ground that “it would be better for the accused to serve sentence so that he would reform himself and avoid the scandal in the community that would be caused by the grant of the petition. The accused serve sentence but he brought the matter to the Supreme Court in a petition for certiorari. Did the trial court act correctly in denying the petition for probation? (1991 Bar)

Those sentenced to serve maximum term of imprisonment of more than six years; Those convicted of subversion or any crime against the national security of the public order; Those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and or a fine of not less than P200; Those who have been once on probation under the provisions of this decree; and Those who are already serving sentence at the time the substantive provisions of this decree applicable pursuant to Sec. 33 of P.D. 968.

Q: A was charged with theft and upon arraignment, pleaded guilty to the charge. He was detained for failure to post bail. After two (2) months, a decision was rendered sentencing “A” to an indeterminate sentence of six (6) months and one (1) day as a minimum, to one (1) year and one (1) month as maximum, and to pay the offended party the amount of P700. On January 16, 1985, the very day the sentence was read to “A”, the Judge issued a Commitment Order addressed to the Provincial Jail Warden. On January 28, 1985, “A” applied for probation but his application was denied on the ground that the sentence of conviction became final and executory on January 16, 1985, when “A”

A: The trial court acted incorrectly. In Balleta v. Leviste (92 SCRA 719), the Judge precisely denied the petition for probation on the same excuse stated in the problem. The Supreme Court held that an accused must fall within any one of the disqualifications stated in Sec. 9 of PD 960 in order to be denied probation. Q: Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was imposed the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years as maximum, both of prision correccional and was ordered to indemnify the offended party in the amount

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CRIMINAL LAW of P3, 000.00. He filed an application for probation upon the promulgation of the judgment. What is the legal effect of his application for probation on the judgment of conviction? Does said application interrupt the running of the period of appeal? (1992 Bar) A: The filing of the application for probation is considered as a waiver of the right of the accused to appeal; the decision has become final. In view of the finality of the decision, there is no period of appeal to speak of. Q: On February 3, 1986, Roberto was convicted of arson through reckless imprudence and sentenced to pay a fine of P15, 000.00, with subsidiary imprisonment in case of insolvency by the Regional Trial Court of Quezon City. On February 10, 1986, he appealed to the Court of Appeals. Several months later, he filed a motion to withdraw the appeal on the ground that he is applying for probation. On May 7, 1987, the Court of Appeals granted the motion and considered the appeal withdrawn. On June 10, 1987, the records of the case were remanded to the trial court. Roberto filed a “Motion for Probation” praying that execution of his sentence be suspended, and that a probation officer be ordered to conduct an investigation and to submit a report on his probation. The judge denied the motion on the ground that pursuant to Presidential Decree No. 1990, which took effect on July 16, 1986, no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Is the denial of Roberto’s motion correct? (1994 Bar) A: Yes, even if at the time of his conviction, Roberto was qualified for probation but that at the time of his application for probation, he is no longer qualified, he is not entitled to probation. The qualification for probation must be determined as of the time the application is filed in Court (Bernardo v. Judge Balagot, et. al., G.R. 86561, Nov. 10, 1992). Q: Juan was convicted of the Regional Trial Court of a crime and sentenced to suffer the penalty of imprisonment for a minimum of eight years. He appealed both his conviction and the penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan’s conviction but reduced his sentence to a maximum of four years and eight months imprisonment. Could Juan forthwith file an application for probation? Explain. (1992, 1995, 2000, 2001, 2002, 2003 Bar) A: No. Juan can no longer avail of the probation because he appealed from the judgment of conviction of the trial court, and therefore, cannot apply for probation anymore. Section 4 of the Probation Law, as amended, mandates that no application for probation shall be entertained or granted if the accused has perfected an appeal from the judgment of conviction. Q: May a probationer appeal from the decision revoking the grant of probation or modifying the terms and conditions thereof? (2002 Bar) A: No. Under Sec. 4 of the Probation Law, as amended, an order granting or denying the probation is not appealable.

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