UST Criminal Law 2017 - Preweek Final

University of Santo Tomas Faculty of Civil Law

CRIMINAL LAW Pre-week Notes 2017 ACADEMICS COMMITTEE SECRETARY GENERAL: CAMILLE ANGELICA B. GONZALES EXECUTIVE COMMITTEE: EMNIE VALERIE B. DURAN, IRVIN L. PALANCA, MARIELLA A. MARASIGAN, LARA NICOLE T. GONZALES

CRMINAL LAW COMMITTEE COMMITTEE HEAD: CLARICE ANGELINE V. QUESTIN SUBJECT HEADS: MARLO S. NEPOMUCENO, JONATHAN SANTOS MEMBERS: VICTORIA MARIE S. BALILO, JANICE BELLE T. BUZON, JYRUS B. CIMATU, SHERLEEN

ANNE A. DAMIAN, REINIER C. DUBONGCO, CARLOS CARMELO S. FELICIANO, FRANCIS B. FLORENTIN, BION HENRIK A. PRIOLO, KATRINA CHLOIE B. QUILALA, EDREA JEAN V. RAMIREZ, VAN ANGELO K. RESPICIO ATTY. ALJON D. DE GUZMAN ADVISER

UST LAW PRE-WEEK NOTES 2017 Volvik as charges d’affaires is diplomatic, he is vested with blanket diplomatic immunity from criminal suit (Minucher v. CA, G.R. No. 142396, February 11, 2003).

CRIMINAL LAW BOOK I

Mala in se vis-à-vis. mala prohibita (BAR 1999, 2001, 2003, 2005, 2010) MALA MALA IN SE BASIS PROHIBITA There must be Sufficient that a criminal the prohibited intent. act was done.

FUNDAMENTAL AND GENERAL PRINCIPLES What are the basic maxims in criminal law? 1.

2.

Nullum crimen, nulla poena sine lege (There is no crime when there is no law punishing the same) – No matter how wrongful, evil or bad the act is, if there is no law defining the act, the same is not considered a crime.

Wrong from its very nature.

Actus non facit reum, nisi mens sit rea (The act cannot be criminal where the mind is not criminal) – This is true to a felony characterized by dolo, but not to a felony resulting from culpa.

Criminal intent governs. Generally punished under the RPC.

3. Doctrine of Pro Reo – 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. 4.

Actus me invito factus non est meus actus (An act done by me against my will is not my act) – Whenever a person is under a compulsion of irresistible force or uncontrollable fear to do an act against his will, in which that act produces a crime or offense, such person is exempted in any criminal liability arising from said act.

What is the interplay between the doctrine of Pro Reo and Article 48 (Penalty for complex crimes) of the RPC? (BAR 2010) Following the Doctrine of Pro Reo, 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).

Volvik committed five frustrated murders for the unwounded victims and five frustrated murders for the wounded victims. Treachery is present since the sudden attack rendered the victims defenseless. The nature of the weapon used in attacking the victims and extent of the wounds sustained by the five victims showed intent to kill. His psychotic condition is not an exempting circumstance of insanity in the absence of showing that there is a complete deprivation of intelligence in accordance with the cognition test. However, he is immune from criminal prosecution. Since the position of

As to legal implication

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Generally involves violation of special laws. NOTE: Not all violations of special laws are mala prohibita. Even if the crime is punished under a special law, if the act punished is one which is inherently wrong, the same is malum in se, and, therefore, good faith and the lack of criminal intent are valid defenses unless they are the products of criminal negligence or culpa.

As to their concepts

Charges d’affaires Volvik of Latvia suffers from a psychotic disorder after he was almost assassinated in his previous assignment. One day, while shopping in a mall, he saw a group of shoppers whom he thought were the assassins who were out to kill him. He asked for the gun of his escort and shot ten (10) people and wounded five (5) others before he was subdued. The wounded persons required more than thirty (30) days of medical treatment. What crime or crimes, if any, did he commit? (BAR 2016)

Wrong merely because prohibited by statute. Criminal intent is not necessary.

Mitigating and aggravating circumstances are appreciated in imposing the penalties.

Such circumstances are not appreciated unless the special law has adopted the scheme or scale of penalties under the RPC.

(a) Good faith (b) lack of criminal intent; or (c) negligence are valid defenses.

(a) Good faith or (b) lack of criminal intent are NOT valid defenses; it is enough that the prohibition was voluntarily violated.

CRIMINAL LAW Criminal liability is incurred even when the crime is attempted or frustrated.

Criminal liability is generally incurred only when the crime is consummated.

Penalty is computed on the basis of whether he is a principal offender, or merely an accomplice or accessory.

The penalty of the offender is the same as they are all deemed principals.

NOTE: 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 extraterritorially. The general rule on territoriality of criminal law governs the situation. The Philippine consul asked his secretary to work overtime because they were finishing some important repatriation papers in the embassy. The said consul asked his secretary to give him a cup of coffee. The consul asked the secretary to join him. When the said secretary went to the restroom, the said consul placed something in the coffee of the secretary. The secretary felt dizzy and lost consciousness. The consul then raped her inside his own office. The said secretary wants to file a case against the consul. Where shall the secretary file the case? Is the said consul liable under Philippine laws? The secretary shall file the case in the Philippines. Although the crime committed, which is rape, is not in any way connected with the performance of his official function, since it was committed inside the Philippine embassy, Philippine laws will apply. The Philippine embassy is considered as an extension of the Philippine sovereignty. So even if the crimes committed is not in any way connected with the performance of their functions, but the crime is committed inside the Philippine embassy, Philippine laws will still apply.

May an act be malum in se and be, at the same time, malum prohibitum? 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 inspectors 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.

Five Informations charging Francisco Inocencio with acts of theft allegedly committed in conspiracy with Ma. Milagros Clemente were filed before the RTC. In the said Informations, it was alleged that Clemente, a bank officer, fraudulently transferred a million pesos to Inocencio’s bank account, and the latter later withdrew the whole amount. The information alleged conspiracy but only one person is charged. Is the information valid?

Is the crime of technical malversation, punished under the RPC, mala in se? The crime of technical malversation, punished under Article 220 of the RPC, was held to be a crime that is malum prohibitum. The law punishes the act of diverting public property earmarked by law or ordinance for a particular public purpose for another public purpose. The prohibited act is not inherently immoral, but becomes a criminal offense because positive law forbids its commission on considerations of public policy, order, and convenience. Therefore, good faith and lack of criminal intent are not valid defenses (Ysidoro v. People, G.R. No. 192330, November 14, 2012).

Yes. It is valid, but the court cannot pass verdict on the coconspirators who were not charged in the information. The non-inclusion of the co-conspirator does not invalidate the Information especially since conspiracy is not charged as a crime, but is merely alleged as a mode of committing the crime. In this case, conspiracy is alleged only as a mode of committing the crime. Ideally, Clemente and Inocencio should have been indicted together. However, the non-inclusion of Clemente does not invalidate the Information filed, especially since conspiracy is not charged as a crime, but is merely alleged to show how criminal liability was incurred (Inocencio v. People, G.R. No. 205760, November 09, 2015).

Is the crime of plunder mala prohibita or mala in se? It is mala in se, although punishable under special law, because it is inherently evil, being included among the heinous crimes punishable with reclusion perpetua to death and its constitutive crimes are mala in se, such as malversation of public funds, bribery and monopolies and combinations (Joseph Estrada v. Sandiganbayan, G.R. No. 148560, Nov. 2, 2001).

CRIMINAL LIABILITIES AND FELONIES Intentional felony vis-à-vis Negligent felony (BAR 1999, 2001, 2003, 2005, 2010) BASIS DOLO CULPA

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. What crime if any can Abe be prosecuted? (BAR 1994)

As to Malice

Abe, together with Connie, may be prosecuted for concubinage under Art. 334 of the Revised Penal Code for having cohabited as husband and wife.

As to intent

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Act is malicious

Not malicious

With deliberate Injury caused is intent. unintentional, it being an incident of another act performed without malice.

UST LAW PRE-WEEK NOTES 2017 without which the result would not have occurred (People v. Villacorta, G.R. No. 186412, September 7, 2011).

Has intention to Wrongful act As to the cause a wrong. results from source of imprudence, the wrong negligence, lack committed of foresight or lack of skill.

As a rule, the offender is criminally liable for all the consequences of his felonious act, although not intended, if the felonious act is the proximate cause of the felony.

When are light felonies punishable?

What are the requisites of proximate cause?

Light felonies are punishable only when consummated, with the exception of those committed against persons or property.

1. 2. 3. 4.

THREE SITUATIONS WHEREIN A PERSON BECOMES CRIMINALLY LIABLE FOR THE RESULTING FELONY ALTHOUGH DIFFERENT FROM THAT WHICH HE INTENDED

The direct, natural, and logical cause; Produces the injury or damage; Unbroken by any efficient intervening cause; and Without which the result would not have occurred.

Luis Cruz was deeply hurt when his offer of love was rejected by his girlfriend Marivella one afternoon when he visited her. When he left her house, he walked as if he was sleepwalking so much so that a teenage snatcher was able to grab his cell phone and flee without being chased by Luis. He went to the LRT station, he boarded one of the coaches bound for Baclaran. While seated, he happened to read a newspaper left on the seat and noticed that the headlines were about the sinking of the Super Ferry while on its way to Cebu. He went over the list of missing passengers who were presumed dead and came across the name of his grandfather who had raised him from childhood after he was orphaned. He was shocked and his mind went blank for a few minutes, after which he ran amuck and, using his balisong, started stabbing at the passengers who then scampered away, with three of them jumping out of the train and landing on the road below. All the three passengers died later of their injuries at the hospital. Is Luis liable for the death of the three passengers who jumped out of the moving train? State your reasons.

What are the causes which may produce a result different from that which the offender intended? 1. Mistake in identity (error in personae) – The offender intends the injury on one person but the harm fell on another. In this situation the intended victim was not at the scene of the crime. Example: A, wanting to kill B, killed C instead. (BAR 2003, 2015) NOTE: There are only two persons involved: the actual but unintended victim, and the offender. 2. Mistake in blow (aberratio ictus) – A person directed the blow at an intended victim, but because of poor aim, that blow landed on somebody else. In aberratio ictus, the intended victim and the actual victim are both at the scene of the crime.

Yes, Luis is liable for their deaths because he was committing a felony when he started stabbing at the passengers and such wrongful act was the proximate cause of said passengers' jumping out of the train; hence their deaths. Under Article 4 of the Revised Penal Code, any person committing a felony shall incur criminal liability although the wrongful act done be different from that which he intended. In this case, the death of the three passengers was the direct, natural and logical consequence of Luis' felonious act which created an immediate sense of danger in the minds of said passengers who tried to avoid or escape from it by jumping out of the train (People v. Arpa, 27 SCRA 1O37; U.S. vs. Valdez, 41 Phil. 497).

Example: A, shot at B, but because of lack of precision, hit C instead. (BAR 1993, 1994, 1996, 1999, 2015) NOTE: There are three persons involved: the offender, the intended victim, and the actual victim. 3. Injurious consequences are greater than that intended (praeter intentionem) – The injury is on the intended victim but the resulting consequence is so grave a wrong than what was intended. It is essential that there is a notable disparity between the means employed or the act of the offender and the felony which resulted. This means that the resulting felony cannot be foreseen from the acts of the offender. (A, without intent to kill, struck the victim on the back, causing the victim to fall down and hit his head on the pavement.)

IMPOSSIBLE CRIME What is an impossible crime? Can there be an impossible crime of adultery? (BAR 2015)

NOTE: Praeter intentionem is a mitigating circumstance particularly covered by paragraph 3 of Art. 13.

An impossible crime is an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means (Art. 4 par. 2).

The three enumerated situations are always the result of an intentional felony or dolo. These situations do not arise out of criminal negligence.

There is no impossible crime of adultery since this is a crime against chastity, and not against person or property, as required by Art. 4 par. 2 of the RPC.

What is proximate cause? Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily, Charlie’s girlfriend.

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CRIMINAL LAW Charlie went to a veterinarian and asked for some poison on the pretext that it would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad. The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad’s food, did not kill Brad. Did Charlie commit any crime? If so, what and why? If not, why not? (BAR 2009)

No, Antonio is not guilty of attempted rape. The act of Antonio embracing AAA and touching her vagina and breasts did not directly manifest his intent to lie with AAA. The lack of evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any inference about his intent to lie with AAA. At most, his acts reflected lewdness and lust for her (Cruz v. People, G.R. No. 166441, October 8, 2014, Bersamin, J.).

Charlie committed an impossible crime of murder. His act of mixing the non-toxic powder with Brad‟s food, done with intent to kill, would have constituted murder which is a crime against persons, had it not been for the employment of a means which, unknown to him, is ineffectual (Art. 4, par. 2, RPC).

Jefferson was simply fetching water when Kevin suddenly hit him on the nape of his neck. Jefferson complained about this to his landlady, Kevin’s sister, but the latter simply told him to forgive his brother. Two hours later, when he resumed fetching water, Kevin suddenly stabbed Jefferson on the left part of his face and chest. He was found bleeding by his sonin-law and was rushed to the hospital. According to the medical report submitted, the chest wound he sustained was fatal and could have caused Jefferson’s death were it not for the timely medical intervention. What crime is committed by Kevin?

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, 000.00 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 "Impossible Crime to Commit Kidnapping" against Enrique. Is the prosecutor correct? If he is not correct, can he instead file a case of grave coercion? (BAR 2014)

Kevin is liable for frustrated homicide. The essential element in frustrated or attempted homicide is the intent of the offender to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill, being a state of mind, is discerned by the courts only through external manifestations. In this case, Kevin wielded and used a knife in assaulting Jefferson. There is also no doubt that the wound on Jefferson’s chest would have been sufficient to result to his death if it were not for the timely medical intervention (De Guzman, Jr. v. People, G.R. No. 178512, November 26, 2014, Bersamin, J.).

The crime committed by Enrique is kidnapping for ransom. Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffectual means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Enrique deprived Carla of her liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Art. 267 (People v. Tan, G.R. No. 95322, March 1, 1993).

AAA watched television in Martin’s house just across the street from their house. As she was leaving, Martin suddenly pulled AAA into the store attached to the sala of his house and told her to have sex with him. AAA struggled to free herself from him, but his superior strength prevailed. Inside the store, Martin kissed AAA and mashed her breasts. Although, his penis only achieved slight penetration of her vagina, he succeeded in satisfying his lust. Is Martin guilty of consummated rape?

Furthermore, kidnapping is a crime against liberty. In an impossible crime, it is important that the accused committed an act that would have been a crime against person or property.

Yes. The law requires that the accused had carnal knowledge of a woman under the circumstances described under Article 335 of the Revised Penal Code. By definition, carnal knowledge was “the act of a man having sexual bodily connections with a woman.” This understanding of rape explains why the slightest penetration of the female genitalia consummates the crime (People v. Reyes, G.R. No. 173307, July 17, 2013, Bersamin, J.).

The prosecutor cannot file a case of grave coercion instead. As discussed above, the crime committed by Enrique is kidnapping for ransom. STAGES OF EXECUTION Antonio and his wife employed AAA and BBB to help them in their plastic and glass ware business during a town fiesta in La Union. After fixing the wares in order for display they went to bed inside the tents. Less than an hour passed, AAA was awakened with Antonio on top of her mashing her breast and touching her private parts. AAA fought back and was able to free herself from Antonio. She went out to seek for help. Is Antonio guilty for the crime of attempted rape?

COMPLEX CRIMES AND COMPOSITE CRIMES What is the effect of a compound crime in the criminal liability of the offender? The penalty for the most serious crime in its maximum period shall be imposed. While Antonew was outside the kitchen of their house and Marteen in the yard, Alejandrew was spotted near the vicinity of their house. Suddenly, Alejandrew threw a grenade towards the cemented

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UST LAW PRE-WEEK NOTES 2017 part of the yard. The grenade exploded and Antonew was hurt in his pelvic area while Marteen, his father, was fatally hit by a shrapnel causing his death. What is the criminal liability of Alejandrew?

its maximum period. Punzalan was animated by a single purpose, to kill the navy personnel, and committed a single act of stepping on the accelerator, swerving to the right side of the road and ramming through the navy personnel. The crimes of murder and attempted murder are both grave feloniesas the law attaches an afflictive penalty to capital punishment (reclusion perpetua to death) for murder while attempted murder is punished by prision mayor, an afflictive penalty (People v. Punzalan, G.R. No. 199892, December 10, 2012).

Alejandrew is liable for murder with frustrated murder. The act of Alejandrew in throwing a grenade to Marteen and Antonew is a single act which resulted to the death of Marteen and the injuries of Antonew. This single act constitutes two or more grave or less grave felonies which are murder and frustrated murder. Hence, the crime should be complexed and the penalty of the most serious crime in its maximum period should be imposed (People v. Dulay, G.R. No. 194629, April 21, 2014).

SPECIAL COMPLEX CRIME VIS-À-VIS COMPLEX CRIME SPECIAL COMPLEX COMPLEX CRIME CRIME It is the law which The law merely states specifies for the crimes two or more grave or less that should be combined. grave felonies or an offense is necessary to commit the other. The law provides for a The penalty to be single penalty. imposed will be the most serious crime in its maximum period. A light felony committed A light felony committed in the commission of the would constitute a crime is absorbed. separate and distinct charge.

Mayor Tawan-Tawan, together with his security escorts, went home to Salvador, Lanao del Norte, on board a yellow pick-up service vehicle. At around 3:00 p.m. of the same day, Nelmida, together with his other co-accused, surreptitiously waited for the vehicle of the group of Mayor Tawan-Tawan. The moment the yellow pick-up service vehicle passed by the aforesaid waiting shed, Nelmida and their coaccused opened fire and rained bullets on the vehicle using high-powered firearms killing two security escorts while injuring others. Nelmida and his coaccused were charged with double murder with multiple frustrated murder and double attempted murder. Are Nelmida and his other co-accused guilty of the said complex crime?

CONSPIRACY AND PROPOSAL

No. The killing and wounding of the victims were not the result of a single discharge of firearms by Nelmida and his co-accused. To note, Nelmida and his co-accused opened fire and rained bullets on the vehicle boarded by Mayor Tawan-tawan and his group. As a result, two security escorts died while five (5) of them were wounded and injured. The victims sustained gunshot wounds in different parts of their bodies. Therefrom, it cannot be gainsaid that more than one bullet had hit the victims. Moreover, more than one gunman fired at the vehicle of the victims. As held in People v. Valdez, 304 SCRA 611 (1999), each act by each gunman pulling the trigger of their respective firearms, aiming each particular moment at different persons constitute distinct and individual acts which cannot give rise to a complex crime (People v. Nelmida, G.R. No. 184500 September 11, 2012).

Differentiate wheel conspiracy and chain conspiracy (BAR 2016) 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 even that the spoke shares a common purpose to succeed, there is a single conspiracy. However, in the instances when each spoke is unconcerned with the success of the other spokes, there are multiple conspiracies. 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).

A group of navy personnel went to a canteen to have some drinks. At around 10:00 in the evening, they transferred to a videoke bar, “Aquarius”, where they continued their drinking session. Shortly thereafter, a heated argument ensued between Bacosa and Punzalan. To avoid further trouble, the other navy personnel tried to pacify the two and decided to leave “Aquarius” and return to their camp. Soon after the navy personnel passed the sentry gate, a maroon Nissan van was rushing and zigzagging the road towards the group of navy personnel. Punzalan was recognized as the driver. The van sped away towards the camp and suddenly swerved to the right hitting the group of the walking navy personnel. Two of the navy personnel were dead while the others sustained serious injuries in their body. What is the criminal liability of Punzalan?

One night, after escorting his guests outside the house, Allen noticed that garbage was placed in front of his house. Allen, addressing nobody in particular, complained of the garbage. Jeff and Kevin, thinking that Allen was addressing his complaint to them, were angered and started throwing stones at him. Allen rushed inside his house to wash his bloody face and to arm himself with a piece of wood. However, before he was able to retaliate, he was hit by a shovel by Joriemon. Joseph and Jose held Allen, rendering him helpless, while Jeff and Kevin stabbed him in the abdomen with a knife. Allen lost consciousness and was confined in the hospital for nine days. Assuming that that they were convicted for frustrated murder, what is the extent of the criminal liability of Jeff, Kevin, Joriemon, Jose and Joseph?

Punzalan is guilty of the complex crime of murder with attempted murder. When a single act constitutes two or more grave or less grave felonies, the penalty for the most serious crime shall be imposed, the same to be applied in

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CRIMINAL LAW They are liable as co-conspirators. Conspiracy presupposes unity of purpose and unity of action towards the realization of an unlawful objective among the accused. Its existence can be inferred from the individual acts of the accused which, if taken as a whole, are in fact related and indicative of a concurrence of sentiment. The chain of events leading to the commission of the crime adequately established a conspiracy among them. Jeff and Kevin delivered the initial attack on Allen by stoning him. Afterwards, Joriemon struck him with a shovel, and, finally, Joseph and Jose held him so that the others can stab Allen (Ibañez et al. v. People, G.R. No. 190798, January 27, 2016).

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 RPC. 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. The criminal liability of XA, YZ and ZC shall be the same. They are 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.

A Starex van driven by Mayor Mitra and an ambulance driven by Morilla were caught by the police in a checkpoint with a sack of shabu inside the two vehicles. The Starex van which was ahead of the ambulance was able to pass the checkpoint set up by the police officers. However, the ambulance driven by Morilla was stopped by police officers and further examination revealed the sacks inside the van contained shabu. Morilla told the police officers that he was with Mayor Mitra in an attempt to persuade them to let him pass. This discovery prompted the operatives to chase the Starex van of Mayor Mitra in which sacks containing shabu was also discovered. Is there conspiracy established between Morilla and Mayor Mitra?

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY 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 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. (BAR 2016) No. The relatives of the accused for purpose of defense of relative under Art. 11(2) of the RPC are his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sister, 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 the 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.

Yes, there is conspiracy. In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole. In this case, the totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a common desire to transport the dangerous drugs (People v. Morilla, G.R.No.189833, February 5, 2014). How is conspiracy proven? Jurisprudence requires that conspiracy must be proven as the crime itself. Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design to kill the victim. (People v. Villalba, G.R. No. 207629, October 22, 2014).

May the justifying circumstance of self-defense be invoked at the same time with the exempting circumstance of accident? No. Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill. On the other hand, self-defense necessarily contemplates a premeditated intent to kill in order to defend oneself from imminent danger (Pomoy v. People, G.R. No. 150647. September 29, 2004). In Toledo vs. People, the Supreme Court held that, there is no such defense as accidental self-defense in the realm of criminal law. Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and positive overt act of the accused to prevent or repel an unlawful aggression of another with the use of reasonable means. The accused has freedom of action. He is aware of the consequences of his deliberate acts. The defense is based on necessity which is the supreme and irresistible master of men of all human affairs, and of the law. From necessity, and limited by it, proceeds the right of self-defense. The right begins when necessity does, and

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. What crime or crimes did XA, YB and ZC commit, and what is the criminal liability of each? (BAR 2004)

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UST LAW PRE-WEEK NOTES 2017 ends where it ends (Toledo v. People, 439 SCRA 94, G.R. No. 158057 September 24, 2004).

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) stab wounds. Can Ms. A validly put up a defense? Explain. (BAR 2014)

Dion and Talia were spouses. Dion always came home drunk since he lost his job a couple of months ago. Talia had gotten used to the verbal abuse from Dion. One night, in addition to the usual verbal abuse, Dion beat up Talia. The next morning, Dion saw the injury that he had inflicted upon Talia and promised her that he would stop drinking and never beat her again. However, Dion did not make good on his promise. Just after one week, he started drinking again. Talia once more endured the usual verbal abuse. Afraid that he might beat her up again, Talia stabbed Dion with a kitchen knife while he was passed out from imbibing too much alcohol. Talia was charged with the crime of parricide. (BAR 2015) 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. Under Sec. 26 of R.A. 9262, “victim survivors who are found by courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the RPC.” Rogelio Delos Reyes—along with Roderick Licayan and Roberto Lara—were charged with the crime of Kidnapping for Ransom. In his defense, Delos Reyes argued that he was merely passing by at the crime scene when one of the co-accused pointed a gun at him and forced him to guard the victims, hence he is entitled to the exempting circumstance of compulsion due to irresistible force. Is the exempting circumstance of compulsion due to irresistible force present?

May Talia invoke the defense of Battered Woman Syndrome to free herself from criminal liability? Explain.

No, a single act of battery or physical harm committed by Dion against Talia resulting to the physical and psychological or emotional distress on her part is not sufficient to avail of the benefit of the justifying circumstance of “Battered Woman Syndrome”. The defense of Battered Woman Syndrome can be invoked if the woman with a marital relationship with the victim is subjected to cumulative abuse or battery involving the infliction of physical harm resulting to 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).

No. A person invoking the exempting circumstance of compulsion due to irresistible force admits in effect the commission of a punishable act which must show that the irresistible force reduced him to a mere instrument that acted not only without will but also against his will. The duress, force, fear or intimidation must be present, imminent and impending; and it must be of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. It is hard to believe that a person who accidentally discovers kidnap victims would be held at gunpoint by the kidnappers to guard said victims (People v. Licayan, et al., G.R. No. 203961, July 29, 2015).

b. Will your answer be the same, assuming that Talia killed Dion after being beaten up a second time? Explain.

Y, while alighting from his vehicle, was hit by X with his car. This caused Y to be thrown four meters away from his jeepney. X was charged with Frustrated Murder and convicted in the RTC of Frustrated Homicide. Upon appeal in the CA the crime was modified to Reckless Imprudence resulting in Serious Physical Injuries. X contends that the CA should have appreciated voluntary surrender as a mitigating circumstance in his favor. Is X’s contention correct?

No. Talia can now invoke the defense of Battered Woman Syndrome to free herself from criminal liability for killing her husband since she suffered physical and emotional distress arising from cumulative abuse or battery. Under Section 26 of R.A.9262, victim survivors of Battered Woman Syndrome do not incur any criminal or civil liability despite the absence of the requisites of selfdefense.

No. The mitigating circumstance of voluntary surrender cannot be appreciated in his favor. Paragraph 5 of Article 365, Revised Penal Code, expressly states that in the imposition of the penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in Article 64 of the Revised Penal Code (Mariano v. People, G.R. No. 178145, July 7, 2014, Bersamin, J.).

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 (3) 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. Defending herself from the attack, Ms. A grappled for

May disregard of age and sex be appreciated in Robbery with Homicide which is a crime against property? No. With respect to disregard of age and sex, the same may be appreciated only in crimes against persons or honor. It is not correct to consider this aggravating circumstance in crimes against property. Besides, robbery with homicide is principally a crime against property and not against persons. Homicide is a mere

7

CRIMINAL LAW incident of the robbery, the latter being the main purpose and object of the criminal (People v. Hernandez, G.R. No. 139697, June 15, 2004).

State, with reasons, the crime or crimes that had been committed as well as the aggravating circumstances, if any, attendant thereto. (BAR 2008)

Balweg stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Balweg 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 Balweg?

By demanding "protection money" under threat and intimidation that the businessman (Antonio) would be killed or his establishment destroyed if he would refuse to pay the protection money, the crime of grave threats is committed by Roger, the leader of the crime syndicate. For killing the businessman, his wife and three year-old daughter, the complex crime of multiple murder was committed by Mauro, a member of the same crime syndicate. The killing is qualified by the use of an explosive (hand grenade). The treachery attending the killing shall be separately appreciated as another aggravating circumstance aside from the use of explosive as the qualifying circumstance.

The proper charge is murder. The killing constitutes murder because the commission of a crime under the influence of prohibited drugs is a special aggravating circumstance. X, while descending from a curved path, collided with a motorcycle, thereby killing Y, one of its passengers, and causing serious physical injuries to the two other victims. The body of Y was loaded into the vehicle of X but the latter’s engine would not start; thus, the body was loaded in a different vehicle. The jack of X was used to extricate the body of Y from being pinned under the vehicle of X. X, in his defense, claimed that it was not his fault that the tricycle swerved in his direction. X was charged with Reckless Imprudence Resulting to Homicide with Double Serious Physical Injuries and Damage to Property under Article 365 in relation to Article 263 of the RPC “with the aggravating circumstance that accused failed to lend on the spot to the injured party such help that was in his hands to give”. Should the court appreciate the alleged aggravating circumstance?

Other aggravating appreciated are: 1. 2.

3. 4.

No. The aggravating circumstance “that accused failed to lend on the spot to the injured party such help that was in his hands to give” should not be appreciated. Verily, it is the inexcusable lack of precaution or the conscious indifference to the consequences of the conduct which supplies the criminal intent in Article 365. The limiting element in the last paragraph of Article 365 of the RPC, which imposes the penalty next higher in degree upon the offender who “fails to lend on the spot to the injured parties such help as may be in his hands to give”, according to case law, (a) is dependent on the means in the hands of the offender, i.e., the type and degree of assistance that he/she, at the time and place of the incident, is capable of giving; and (b) requires adequate proof. X was able to supply the help according to the extent of his capabilities (Gonzaga v. People, G.R. No. 195671, January 21, 2015).

circumstances

which

may

be

Dwelling, because the killings were committed in the home of the victims who had not given any provocation; Nocturnity, considering that the offenders carried out the killing at around 3:00 AM, indicative of a deliberate choice of nighttime for the commission of the crime; Treachery, under Art. 14, par. 16, RPC, mentioned above, considering that victims were all asleep when killed; and The offense was committed by a person who belongs to an organized/syndicated crime group.

Is abuse of superior strength present as an aggravating circumstance when it is shown that two accused attack a lone victim? No. Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the aggressor selected or taken advantage of by him in the commission of the crime. The fact that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength, there being no proof of the relative strength of the aggressors and the victim. The evidence must establish that the assailants purposely sought the advantage, or that they had the deliberate intent to use this advantage. To take advantage of superior strength means to purposely use excessive force out of proportion to the means of defense available to the person attacked. The appreciation of this aggravating circumstance depends on the age, size, and strength of the parties (Fantastico v. Malicse, Sr., G.R. No. 190912, January 12, 2015).

Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio, the owner of a motel in that area, of P10, 000 a month as “protection money". With the monthly payments, Roger assured that the syndicate would provide protection to Antonio, his business, and his employees. Should Antonio refuse, Roger warned that the motel owner would either be killed or his establishment would be destroyed. Antonio refused to pay the protection money. Days later, at around 3:00 in the morning, Mauro, a member of the criminal syndicate, arrived at Antonio's home and hurled a grenade into an open window of the bedroom where Antonio, his wife, and their three year-old daughter were sleeping. All three of them were killed instantly when the grenade exploded.

For treachery to be appreciated, is it enough to show that the attack against the intended victim was unexpected? No. The unexpectedness of an attack cannot be the sole basis of a finding of treachery even if the attack was intended to kill another as long as the victim’s position was merely accidental. Treachery as a qualifying circumstance must be deliberately sought to ensure the safety of the accused from the defensive acts of the victim. A finding of the existence of treachery should be based on “clear and convincing evidence.” Such evidence must be

8

UST LAW PRE-WEEK NOTES 2017 as conclusive as the fact of killing itself. In this case, no evidence was presented to show that petitioner consciously adopted or reflected on the means, method, or form of attack to secure his unfair advantage (Cirera v. People, G.R. No. 181843, July 14, 2014).

Entrapment vis-à-vis Instigation (BAR 1990, 1995, 2003) BASIS ENTRAPMENT INSTIGATION The criminal The idea and design design to bring originates from about the and is already commission of As to intent in the mind of the crime the lawbreaker originated and even before developed in entrapment. the mind of the law enforcers. The law The law enforcers resort enforcers to ways and induce, lure, or means for the incite a person purpose of who is not capturing the minded to Means and lawbreaker in commit a crime ways flagrante delicto and would not otherwise commit it, into committing the crime.

What are special aggravating circumstances? Special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. They must always be alleged and charged in the information, and must be proves during the trial in order to be appreciated. Moreover, it cannot be offset by an ordinary mitigating circumstance (People v. De Leon, G.R. No. 179943, June 26, 2009, citing Palaganas v. People). e.g.: 1. Quasi-rescidivism (Art. 160, RPC); 2. Robbery by a band (Art. 295, RPC); 3. Robbery in an uninhabited place (Art. 300, RPC); 4. Commission of a crime by a syndicate; 5. Taking advantage of public position; 6. Complex crimes under Art. 48 of the RPC (People v. De Leon, G.R. No. 179943, June 26, 2009, citing Palaganas v. People); 7. Use of a loose firearm, when inherent in the commission of a crime punishable under the RPC or other special laws, i.e. homicide, murder (Sec. 29, RA 10591; People v. Salahuddin, G.R. No. 206291, January 18, 2016); 8. Use of dangerous drugs in the commission of a crime (Sec. 25, RA 9165).

As to criminal liability

NOTE: While Sec. 25 of RA 9165 expressly provides that it is a qualifying aggravating circumstance, it will not be controlling because the use of dangerous drugs in the commission of a crime does not change the nature of the crime committed. Hence, it is only a special aggravating circumstance (Campanilla, 2017).

What are the kinds of principals? 1. 2. 3.

Absolutory cause – has the effect of an exempting circumstance and it is predicated on lack of voluntariness such as instigation.

Principal by direct participation; (BAR 1992, 1994, 2000, 2014) Principal by induction/inducement; and (BAR 1994, 2002, 2003) Principal by indispensable cooperation (BAR 2001, 2013, 2015)

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 is killed by B, would A be liable as a principal by inducement?

Example: In cases of instigation and in case a relative of a principal is charged as an accessory, he is exempt from criminal liability. 2.

This circumstance absolves the accused from criminal liability (People v. Dante Marcos, G.R. No. 83325, May 8, 1990).

PERSONS CRIMINALLY LIABLE

What are the other two circumstances found in the RPC affecting criminal liability? 1.

The circumstance is no bar to prosecution and conviction of the lawbreaker.

Extenuating circumstances – has the effect of mitigating the criminal liability of the offender.

No. A would not be liable as a principal by inducement because the reward he promised B is not the sole impelling reason which made B to kill C. To bring about 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 indicate that B, the killer supposedly induced by A, had his own reason to kill C out of a long standing grudge.

Example: In case of infanticide, concealment of dishonor is an extenuating circumstance insofar as the pregnant woman and the maternal grandparents are concerned. Abortion under Art. 258 would also mitigate the liability of the pregnant woman if the purpose is to conceal dishonor but such is not available to the parents of the pregnant woman. Also, in Art. 333, if the person guilty of adultery committed the offense while being abandoned without justification, the penalty next lower in degree shall be imposed.

Laylay convinced AAA to accompany her at a wake at Parañaque City. Before proceeding to the wake, Laylay and AAA went to Bulungan Fish Port along the coastal road to ask for some fish. When they reached

9

CRIMINAL LAW the fish port, they proceeded to a Kubuhan, Laylay suddenly pulled AAA inside a room where a man known by the name "Speed" was waiting. AAA saw "Speed" give money to Laylay and heard "Speed" tell Laylay to look for a younger girl. Thereafter, "Speed" wielded a knife, tied AAA's hands, and raped her. Is Laylay guilty for the crime of rape as principal by indispensable cooperation? No, Laylay is not a principal by indispensable cooperation. To be a principal by indispensable cooperation, one must participate in the criminal resolution, a conspiracy, or unity in criminal purpose and cooperation in the commission of the offense by performing another act without which it would not have been accomplished. The act of Laylay in convincing AAA to go with her until Laylay received money from “Speed” who raped AAA, are not indispensable in the crime of rape. Anyone could have accompanied AAA and offered the latter’s services in exchange for money and AAA could still have been raped (People v. Dulay, G.R. No. 193854, September 24, 2012). PD 1612 vis-à-vis Art. 19(1) of the RPC FENCING Fencing is limited to theft and robbery. The terms theft and robbery are used as a generic term to refer to any kind of unlawful taking, not just theft or robbery.

ACCESSORY Not limited in scope.

Mere possession of There is no stolen items creates a presumption of being presumption of fencing. an accessory. Fencing is a principal crime in itself. As such, it can stand on its own.

It is necessary to prove that the principal committed

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There is no need to prove that one is guilty of theft or robbery.

the crime. Hence, before an accessory could be held liable, the principal must have been convicted first of the crime charged.

The penalty is higher than the penalty of an accessory.

Penalty is less than that imposed in fencing.

Malum prohibitum and therefore there is no need to prove criminal intent.

Malum in se and therefore there is a need to prove criminal intent.

The fence need not be a natural person but may be a firm, association, corporation or partnership or other organization.

Natural person only.

UST LAW PRE-WEEK NOTES 2017 MULTIPLE OFFENDERS

REITERACION

It is necessary that the offender shall have served out his sentence for the first offense. The previous and subsequent offenses must not be embraced by the same Title of the RPC.

Not always aggravating; discretion of the court to appreciate.

Includes offenses under special law.

A generic aggravating circumstance.

RECIDIVISM

HABITUAL DELIQUENCY

It is enough that a final judgment has been rendered in the first offense.

Within a period of 10 years from the date of release or last conviction of the crimes covered, he is found guilty of any of said crimes a third time or oftener.

QUASI-RECIDIVISM

Felony was committed after having been convicted by final judgment of an offense, before beginning to serve sentence or while serving the same.

Requires that the offenses be included in the same Title of the Code.

Crimes covered are serious or less serious physical injuries, robbery, theft, estafa and falsification.

First and subsequent conviction may or may not be embraced by the same title of the RPC.

It increases the penalty to its maximum period.

Shall suffer additional penalty.

Shall be punished by the maximum period of the penalty prescribed by law for the new felony.

Felonies under RPC only.

Limited to serious or less serious physical injuries, robbery, theft, estafa and falsification.

A generic aggravating circumstance.

Extraordinary aggravating circumstance which cannot be offset by a mitigating circumstance.

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First crime for which the offender is serving sentence need not be a crime under the RPC but the second crime must be one under the RPC.

Special aggravating circumstance which may be offset by special privileged mitigating circumstances not by ordinary mitigating circumstances.

CRIMINAL LAW PENALTIES Reclusion perpetua v. Life imprisonment (BAR 1994, 2001, 2009) RECLUSION PERPETUA

consummated offense. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law (Reyes, 2012).

Pertains to the penalty imposed for violation of the RPC

Pertains to the penalty imposed for violation of special laws

It has fixed duration

It has no fixed duration

It carries with accessory penalties

it

However, Articles 50 to 57 shall not apply to the following cases where the law expressly prescribes:

LIFE IMPRISONMENT

a. b.

the penalty for a frustrated or attempted felony; or to be imposed upon accomplices or accessories (Art. 60, RPC).

What is the penalty for impossible crime? The penalty for impossible crime is arresto mayor, or a fine ranging from 200 to 500 pesos (Art. 59, RPC).

It does not carry with it accessory penalty

What is the basis for the imposition of the proper penalty for impossible crime?

1. Principal penalties – those expressly imposed by the court in the judgment of conviction.

The court must take into consideration the following:

2. Accessory penalties – those that are deemed included in the imposition of the principal penalties.

1. 2.

PRINCIPAL PENALTIES Capital punishment: - Death. Afflictive penalties: - Reclusion perpetua, - Reclusion temporal, - Perpetual or temporary absolute disqualification, - Perpetual or temporary special disqualification, - Prision mayor. Correctional penalties: - Prision correccional, - Arresto mayor, - Suspension, - Destierro.

the social danger; and the degree of criminality shown by the offender (Art. 59, RPC). COMPUTATION OF PENALTY

ACCESSORY PENALTIES

In computing the proper imposable penalty, what are the factors that should be considered?

1. Perpetual or temporary absolute disqualification; 2. Perpetual or temporary special disqualification; 3. Suspension from public office, the right to vote and be voted for, the profession or calling; 4. Civil interdiction; 5. Indemnification; 6. Forfeiture or confiscation of instruments and proceeds of the offense; and 7. Payment of costs.

1. 2. 3.

Prescribed or graduated penalty Indivisible or divisible penalty Applicability or non-applicability of the Indeterminate Sentence Law 1. PRESCRIBED OR GRADUATED PENALTY

What is the prescribed penalty? The prescribed penalty is that found in Book II of the Revised Penal Code. What is the graduated penalty? The graduated penalty is the imposable penalty after taking into consideration certain graduating factors. What are the graduating factors? 1. Stages of execution 2. Nature of participation

Light penalties: - Arresto menor, - Public censure.

NOTE: For #1 and #2, see table on the application of Articles 50-57 of the RPC.

Penalties common to the three preceding classes: - Fine and Bond to keep the peace.

3. Presence of privileged mitigating circumstance PRIVILEGED MITIGATING CIRCUMSTANCE Adjust the penalty by degree Not subject to the offset rule

APPLICATION OF ARTICLES 50-57 OF THE RPC Consummated

Frustrated

Attempted

Principals

0

1

2

Accomplices Accessories

1 2

2 3

3 4

ORDINARY MITIGATING CIRCUMSTANCE Adjust the penalty by period Subject to the offset rule

What are the privileged mitigating circumstances under the RPC? 1.

“0” represents the penalty prescribed by law in defining a crime which is to be imposed on the principal in a

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When the offender is a minor under 18 years of age (RPC, Art. 68); (BAR 2013, 2014)

UST LAW PRE-WEEK NOTES 2017 2.

When the crime committed is not wholly excusable (RPC, Art. 69); When there are two or more mitigating circumstances and no aggravating circumstance, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according the number and nature of such circumstances (RPC, Art. 64, par. 5); (BAR 1997) Voluntary release of the person illegally detained within 3 days without the offender attaining his purpose and before the institution of the criminal action (RPC, Art. 268, par. 3); Abandonment without justification by the offended spouse in case of adultery (RPC, Art. 333, par. 3); and Concealing dishonor in case of infanticide (RPC, Art. 255, par. 2).

b. Murder – prescribed penalty is compound penalty of reclusion perpetua to death

NOTE: If it is the maternal grandparent who committed the offense to conceal dishonor, the penalty imposed is one degree lower. If it is the pregnant woman who committed the offense to conceal dishonor, the penalty imposed is two degrees lower. In case of concealing dishonor by a pregnant woman in abortion, the imposable penalty is merely lowered by period and not by degree, hence, not a privileged mitigating circumstance.

e.g. a. Technical malversation – the prescribed penalty is single period of prision correccional in its minimum period

What are the privileged mitigating circumstances contemplated under Art. 69 of the RPC?

b. Theft – the prescribed penalty is compound period of prision correccional in its medium period to prision correccional in its maximum period

3.

4.

5. 6.

1. 2.

1 degree lower is reclusion temporal 2 degrees lower is prision mayor c. Treason committed by a resident alien – prescribed penalty is complex penalty of reclusion temporal to death 1 degree lower is prision mayor 2 degrees lower is prision correccional Second rule: If the prescribed penalty is in period, then the graduated penalty is also in period Single period – one full period Compound penalty – composed of two periods Complex penalty – consists of three periods

1 degree lower is arresto mayor in its maximum period 2 degrees lower is arresto mayor in its medium period

Incomplete justifying (RPC, Art. 11) and Incomplete exempting (RPC, Art. 12) circumstances,

1 degree lower is arresto mayor in its maximum period to prision correccional in its minimum period 2 degrees lower is arresto mayor in its minimum period to arrestor mayor in its medium period

Provided that the majority of their conditions are present. For Art. 69 of the RPC to apply, it is necessary that: 1. Some of the conditions required to justify the deed or to exempt from criminal liability are lacking, 2. The majority of such conditions are nonetheless present,

c. Simple robbery – the prescribed penalty is complex period of prision correccional in its maximum period to prision mayor in its medium period

NOTE: If there are only two requisites, the presence of one is already considered as majority.

1 degree lower is arrestor mayor in its maximum period to prision correccional in its medium period 2 degrees lower is destierro in its maximum period to arresto mayor in its medium period

3. When the circumstance has an indispensable element, that element must be present in the case (Regalado, 2007).

Third rule: When the prescribed penalty is composed of a full penalty and penalties with period

RULES ON GRADUATION OF PENALTIES First rule: Where the graduated penalty is a single full penalty

e.g. a. Section 5(b) of RA 7610 – the prescribed penalty is reclusion temporal in its medium period to reclusion perpetua – the graduated penalty must be a compex period

Single penalty – one full penalty Compound penalty – composed of two penalties Complex penalty – consists of three penalties

1 degree lower is prision mayor in its medium period to reclusion temporal in its minimum period

Whether the prescribed penalty is single, compound, or complex, the graduated penalty is single and full penalty. e.g. a. Homicide – prescribed penalty is single penalty of reclusion temporal

2. DIVISIBLE OR INDIVISIBLE PENALTY RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES (ART. 63, RPC)

1 degree lower is prision mayor 2 degrees lower is prision correccional

What are the indivisible penalties? 1.

13

Reclusion perpetua

CRIMINAL LAW 2. 3.

Death Reclusion perpetua to death (Campanilla, 2017).

purposes of graduating the penalty from reclusion perpetua to death, to reclusion temporal?

First rule: The law prescribes a single indivisible penalty

No. In People v. Takbobo (G.R. No. 102984, June 30, 1993), it was held that when there are two or more mitigating circumstances and no aggravating circumstance but the imposable penalties are indivisible in nature, the court cannot proceed by analogy with the provisions of paragraph 5 of Article 64 and impose the penalty lower by one degree. The rule applicable in is found in Article 63, and not in Article 64, of the RPC.

Whatever may be the nature or number of aggravating or mitigating circumstance that may have attended the commission of the crime, the court shall apply the prescribed penalty. e.g. a. Simple rape – the prescribed penalty is reclusion perpetua b. Qualified rape – the prescribed penalty is death

The crime committed is parricide. There are three (3) aggravating circumstances and two (2) mitigating circumstances. What is the proper imposable penalty?

The crime committed is simple rape, and the penalty is reclusion perpetua. There are two mitigating circumstances. Can you appreciate the two mitigating circumstances, to appreciate the special mitigating circumstance, for purposes of making the penalty one degree lower?

Applying the off-set rule, only one aggravating circumstance will remain. Thus, the greater penalty which is death is the proper imposable penalty. However, because of RA 9346, the penalty will be reduced to reclusion perpetua.

No, because the special mitigating circumstance consisting of two mitigating circumstances is found under Art. 64. There is no special circumstance in Art. 63 of the RPC.

The crime is parricide. There are two (2) aggravating circumstance and two (2) mitigating circumstance. What is the proper imposable penalty? Applying the off-set rule, no modifying circumstance will remain. Since there is neither mitigating nor aggravating circumstance, the lesser penalty which is reclusion perpetua is the proper imposable penalty.

Second rule: The law prescribes two (2) indivisible penalties There is only one prescribed penalty consisting of two (2) indivisible penalties, that is reclusion perpetua to death for the following crimes under the RPC:

NOTE: Under Administrative Circular No. 15-8-2 (August 4, 2015), there are two reclusion perpetua. 1. reclusion perpetua as a reduced penalty; and 2. reclusion perpetua as a prescribed penalty.

1. 2. 3. 4. 5.

parricide (Art. 246); murder (Art. 248); infanticide (Art. 255); kidnapping and serious illegal detention (Art. 267); rape with the use of a deadly weapon (Art. 266-B par. 2); 6. rape by two or more persons (Art. 266-B par. 2); 7. when by reason or on occasion of rape, the victim becomes insane (Art. 266-B par. 3); 8. when rape is attempted and homicide is committed (Art. 266-B par. 4); 9. robbery with homicide (Art. 295 par. 1); 10. robbery with rape with the use of a deadly weapon, or by two or more persons (Art. 295 par. 2).

Reclusion perpetua as a reduced penalty – the penalty is death but it was reduced to reclusion perpetua because of RA 9346. Reclusion perpetua as a prescribed penalty – reclusion perpetua is the penalty prescribed by law. Whether reclusion perpetua is a reduced penalty or a prescribed penalty, the accused is not eligible for parole. Meaning, the Indeterminate Sentence Law is not applicable. RULES FOR THE APPLICATION OF DIVISIBLE PENALTIES (ART. 64, RPC)

NOTE: Destructive arson under PD 1613 is also punishable by reclusion perpetua to death.

What are the divisible penalties?

When the penalty is composed of two (2) indivisible penalties, the following rules shall be observed: a. When there is only one aggravating circumstance, the greater penalty shall be imposed. b. When there is neither mitigating nor aggravating circumstance, the lesser penalty shall be imposed. c. When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed.

1. 2. 3. 4.

Penalty composed of three (3) periods; Penalty not composed of three (3) periods; Complex penalty; Penalty without a specific legal form (Campanilla, 2017).

1. PENALTY COMPOSED OF THREE (3) PERIODS When the penalty is composed of three (3) periods, the following rules shall be observed:

The crime committed is parricide, the penalty is reclusion perpetua to death. There are two mitigating circumstances. Can you appreciate the two mitigating circumstances as special mitigating circumstance for

a. b.

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When there is neither aggravating and no mitigating, the penalty in its medium period shall be imposed. When there is only a mitigating circumstance, the penalty in its minimum period shall be imposed.

UST LAW PRE-WEEK NOTES 2017 c.

When there is only an aggravating circumstance, the penalty in its maximum period shall be imposed. TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME INCLUDED IN EACH OF THEIR PERIODS Penalties

Time included in the Time included in its penalty in its minimum period entirety

Reclusion temporal From 12 years and 1 From 12 years and 1 day to 20 years. day to 14 years and 8 months.

a. Prision mayor From 6 years and 1 b. Absolute day to 12 years. disqualification c. Special temporary disqualification a. Prision From 6 months and 1 correccional day to 6 years. b. Suspension c. Destierro

Time included in its medium period From 14 years, 8 months and 1 day to 17 years and 4 months.

From 6 years and 1 day From 8 years and 1 to 8 years. day to 10 years.

From 6 months and 1 day to 2 years and 4 months.

Time included in its maximum From 17 years, 4 months and 1 day to 20 years.

From 10 years and 1 day to 12 years.

From 2 years, 4 From 4 years, 2 months and 1 day to 4 months and 1 day to years and 2 months. 6 years.

Arresto mayor

From 1 month and 1 From 1 month to 2 day to 6 months. months.

From 2 months and 1 From 4 months and day to 4 months. 1 day to 6 months.

Arresto menor

From 1 to 30 days.

From 11 to 20 days.

From 1 to 10 days.

The crime committed is homicide, the penalty is reclusion temporal. The accused is a minor.

From 21 to 30 days.

The two mitigating circumstance will be considered as a special mitigating circumstance for graduating the penalty. Under Art. 64 par. 5 of the RPC, when two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law. Further, since there is other mitigating or aggravating, the penalty shall be imposed in its medium period. Thus, the proper imposable penalty is prision correccional in its medium period.

a. What is the proper imposable penalty? Prision mayor because minority is a privileged mitigating circumstance. b. Suppose there is an aggravating circumstance which is disguise? Prision mayor in its maximum period.

g. Suppose there are three mitigating circumstances. Will you consider these three mitigating circumstances as a special mitigating circumstance for the purpose of reducing prision mayor to prision correccional?

c. Suppose there are two aggravating circumstances. Will you consider the two aggravating circumstances for purposes of upgrading the penalty of prision mayor to reclusion temporal?

The two mitigating circumstances will be appreciated as special mitigating circumstance for purposes of reducing prision mayor to prision correccional. Since there is one remaining mitigating circumstance, the proper period is minimum period. Thus, the proper imposable penalty is prision correccional in its minimum period.

No. In the case of People v. Manlolo (G.R. No. L-40778, January 26, 1989), the Supreme Court, citing Art. 64 par. 6 of the RPC, held that whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law in its maximum period.

h. Suppose there are four mitigating circumstances. Will you appreciate the special mitigating circumstance twice?

d. Suppose there is neither aggravating nor mitigating circumstance? Prision mayor in its medium period.

No. The special mitigating circumstance will be appreciated only once, even if there are four mitigating circumstances. It will be appreciated for the purpose of reducing prision mayor to prision correccional. Considering the two remaining mitigating circumstances, it will be used to apply the penalty in its minimum period. Thus, the proper imposable penalty is prision correccional in its minimum period.

e. Suppose there is one mitigating circumstance which is confession? Prision mayor in its minimum period. f. Suppose there are two mitigating circumstance which are confession and voluntary surrender?

i. Suppose there is a combination of the modifying circumstances?

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CRIMINAL LAW Maximum period: 10 years and 8 months and 1 day to 12 years

Apply first the offset rule then consider the remaining modifying circumstances.

3. COMPLEX PENALTY (ART. 77 PAR. 1, RPC) If after applying the offset rule, there is still a remaining of one or two or three aggravating circumstances, then you will apply the penalty in its maximum period.

Example: The prescribed penalty for treason committed by a resident alien under Art. 114 of the RPC is reclusion temporal to death penalty.

If after applying the offset rule, no modifying circumstance remain, then you will apply the penalty in its medium period.

Minimum period: reclusion temporal (the lightest component Medium period: reclusion perpetua Maximum period: death

If after applying the offset rule, one mitigating circumstance remains, then you will apply the penalty in its minimum period.

Suppose there is mitigating circumstance?

j. Suppose there are three mitigating circumstances and one aggravating circumstance. Applying the offset rule, there are two mitigating circumstances remaining. Can you appreciate those as a special mitigating circumstance?

Apply the penalty in its minimum period, that is reclusion temporal. Suppose there is no modifying circumstance? Apply the penalty in its medium period, that is reclusion perpetua.

No. Because to appreciate the special mitigating circumstance, it is important that there are two or more mitigating circumstance and no aggravating circumstance (Art. 64, par. 5, RPC). Once you apply the offset rule, you cannot appreciate the special mitigating circumstance because the application of the offset rule presupposes that there is an aggravating circumstance.

Suppose there is aggravating circumstance? Apply the penalty in its maximum period, that is death. Another example: The crime committed is robbery. The prescribed penalty is prision correccional in its maximum period to prision mayor in its medium period.

2. PENALTY NOT COMPOSED OF THREE (3) PERIODS (ART. 65, RPC)

Minimum period: prision correccional in its maximum period (the lightest component) Medium period: prision mayor in its minimum period Maximum period: prision mayor in its medium period

Example: The prescribed penalty is prision mayor in its medium period to maximum period. How do you compute for its minimum, medium, and maximum period?

Suppose there is mitigating circumstance?

First rule: Divide the time included in the duration of the prescribed penalty into three (3) equal portions.

Apply the penalty in its minimum period, prision correccional in its maximum period.

Prision mayor in its medium period to maximum period is 8 years and 1 day to 12 years.

Suppose there is no modifying circumstance? Apply the penalty in its medium period, that is prision mayor in its minimum period.

In computing, you delete the one (1) day. What will be left is 8 years and 12 years. Then you subtract 8 years from 12 years, that is 4 years.

Suppose there is aggravating circumstance?

Then, divide the 4 years into three (3) equal portions. So, it will be 1 year and 4 months for each period.

Apply the penalty in its maximum period, that is prision mayor in its medium period.

Second rule: Form the period out of the three (3) equal portions.

Another example: The crime committed is sexual abuse under Sec. 5 of RA 7610. The prescribed penalty is reclusion temporal in its medium period to reclusion perpetua.

8 years + 1 year and 4 months = 9 years and 4 months 9 years and 4 months + 1 year and 4 months = 10 years and 8 months

Minimum period: reclusion temporal in its medium period (the lightest component) Medium period: reclusion temporal in its maximum period Maximum period: reclusion perpetua

10 years and 8 months + 1 year and 4 months = 12 years Prision mayor in its medium period to maximum period

4. PENALTY WITHOUT A SPECIFIC LEGAL FORM Minimum period: 8 years and 1 day to 9 years and 4 months

Example: The crime committed is intentional mutilation. The prescribed penalty is reclusion temporal to reclusion perpetua.

Medium period: 9 years and 4 months and 1 day to 10 years and 8 months

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UST LAW PRE-WEEK NOTES 2017 First rule: Form the maximum period out of the most severe component

6.

Those who shall have escaped from confinement or evaded sentence; NOTE: When the accused escaped from jail while his case was on appeal, he is not entitled to the benefits of ISL 7. Those who violated the terms of conditional pardon granted to them by the Chief Executive;\ 8. Those whose maximum term of imprisonment does not exceed one (1) year; 9. Thoses who upon the approval of the law (Dec. 5, 1933), had been sentenced to final judgment; and 10. Those sentenced to the penalty of destierro or suspension NOTE: Included are those sentenced disqualification or fine because these penalties are not prison sentence. 11. Illegal possession, and illegal use of dangerous drugs under RA 9165.

Maximum period: reclusion perpetua Second rule: Divide the lightest component into two (2) equal portions Reclusion temporal is 12 years and 1 day to 20 years. In computing, you delete the one (1) day. What will be left is 12 years and 20 years. Then you subtract 12 years from 20 years, that is 8 years. Then, divide the 8 years into two (2) equal portions. So, it will be 4 years for each period. Third rule: Form the minimum period and medium period out of the two (2) equal portions 12 years + 4 years = 16 years

Minimum period: 12 years and 1 day to 16 years

What are the rules in imposing a penalty under the indeterminate sentence law? (BAR 1999, 2005, 2009, 2010, 2013)

Medium period: 16 years and 1 day to 20 years

When penalty is imposed by RPC:

16 years + 4 years = 20 years

Maximum period: reclusion perpetua 3. APPLICABILITY OR NON-APPLICABILITY OF THE INDETERMINATE SENTENCE LAW The essence of the Indeterminate Sentence Law (ISL) is parole. The indeterminate sentence is merely for purposes of determining when the convict will be eligible for parole by means of fixing the minimum penalty.

1.

The Maximum Term – is that which in view of the attending circumstances could be properly imposed under the RPC.

2.

The Minimum Term – is within the range of the penalty next lower to that prescribed by the RPC.

Prescribed penalty is what the penalty is without looking at the circumstances. As opposed to imposed penalty which takes into account the circumstances.

If the ISL is applicable, the convict will be sentenced to an indeterminate sentence that consists of a minimum term and a maximum term. The moment the convict serves the minimum term, he may be considered for parole.

When penalty is imposed by Special Penal Law (BAR 1994): 1. 2.

If the ISL is not applicable, the convict will be sentenced to a straight penalty, which is the imposable penalty in accordance with the RPC.

Maximum Term – must not exceed the maximum term fixed by said law. Minimum Term – must not be less than the minimum term prescribed by the same. (BAR 2003)

Example:

When is the ISL not applicable? The ISL does not apply to:

The penalty is prision correccional in its minimum period and there is confession

1.

a.

2. 3. 4. 5.

Persons convicted of offenses punished with death penalty or life imprisonment; NOTE: Reclusion perpetua either as a prescribed or graduated penalty is included because of RA 9346 which prohibits death penalty. ISL is not applicable because it is an indivisible penalty and when reclusion perpetua is imposed, the convict is not eligible for parole. Those convicted of treason, conspiracy or proposal to commit treason; Those convicted of misprision of treason, rebellion, sedition, or espionage; Those convicted of piracy; Habiqual delinquents; NOTE: Rescidivists are entitiled to avail the ISL.

b.

The judge fixed the penalty to 6 months and 1 day. The ISL is not applicable because it does not exceed one year. So the convict should serve a straight penalty of 6 months and 1 day of prision correccional. The judge fixed the penalty to 1 year and 1 day. The ISL is applicable because it exceeded one year. Since the ISL is applicable, you make the 1 year and 1 day as the maximum term. Then you compute for the minimum term. The penalty one degree lower to prision correccional is arresto mayor which is 1 month and 1 day to 6 months – that is the range of the minimum term.

Explain the application of the Indeterminate Sentence Law (ISL). (BAR 2016) The court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which,

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CRIMINAL LAW in view of the attending circumstances, could be properly imposed under the rules of the Revised Penal Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law (special law), the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not ne less than the minimum term prescribed by the same (Sec. 1, ISL, Act No. 4103 as amended by Act No, 4225)

the neck of Espinola, Hubilla stabbed Espinola using a bladed weapon. Dequito aided Espinola as the latter was already struggling to his feet and later brought him to the hospital. The RTC rendered its judgment finding Hubilla guilty of homicide as charged, and sentenced him to suffer the indeterminate penalty of imprisonment for four years and one day of prision correccional, as minimum, to eight years and one day of prision mayor, as maximum. On appeal, the CA affirmed the Hubilla’s conviction but reduced the sentence to six months and one day to six years of prision correccional as minimum, to six years and one day to twelve years of prision mayor as maximum. On motion for reconsideration by Hubilla, the CA sentenced him to an indeterminate penalty of six months and one day of prision correccional, as minimum, to eight years and one day of prision mayor.

The court must, instead of a single fixed penalty, except where the imposable penalty is one (1) year or less, determine two penalties, referred to in the ISL as the “maximum” and “minimum” terms. During Grand Alumni Homecoming of the Bulabog Elementary School, Ladines suddenly and without warning approached and stabbed Erwin below the navel with a machete. Ladines then left after delivering the blow. At that juncture, Licup also mounted his attack against Erwin but the latter evaded the blow by stepping back. Erwin pulled out the machete from his body and wielded it against Licup, whom he hit in the chest. Licup pursued but could not catch up with Erwin because they both eventually fell down. Erwin was rushed to the hospital where he succumbed.

Did the CA imposed the correct penalty imposable on Hubilla, taking into consideration the pertinent provisions of Republic Act No. 9344, the Revised Penal Code and Act No. 4103 (Indeterminate Sentence Law)? Yes. Article 249 of the Revised Penal Code prescribes the penalty of reclusion temporal for homicide. Considering that Hubilla then a minor at the time of the commission of the crime, being 17 years, four months and 28 days old when he committed the homicide on March 30, 2000, such minority was a privileged mitigating circumstance that lowered the penalty to prision mayor.

The RTC convicted Ladines of homicide, and fixed the indeterminate penalty of 10 years and one day of prision mayor, as minimum, to 17 years and four months of the medium period of reclusion temporal, as maximum. The CA affirmed the penalty fixed by the RTC. Did the lower courts impose the proper penalty?

Under the Indeterminate Sentence Law, the minimum of the indeterminate sentence should be within the penalty next lower than the imposable penalty, which, herein, was prision correccional (i.e., six months and one day to six years). For the maximum of the indeterminate sentence, prision mayor in its medium period – eight years and one day to 10 years – was proper because there were no mitigating or aggravating circumstances present. Accordingly, the CA imposed the indeterminate penalty of imprisonment of six months and one day of prision correccional, as minimum, to eight years and one day of prision mayor, as maximum.

No. The lower courts could not impose 17 years and four months of the medium period of reclusion temporal, which was the ceiling of the medium period of reclusion temporal, as the maximum of the indeterminate penalty without specifying the justification for so imposing. They thereby ignored that although Article 64 of the Revised Penal Code, which has set the rules "for the application of penalties which contain three periods," requires under its first rule that the courts should impose the penalty prescribed by law in the medium period should there be neither aggravating nor mitigating circumstances, its seventh rule expressly demands that "within the limits of each period, the courts shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the crime."

Is Hubilla’s insistence that the maximum of his indeterminate sentence of eight years and one day of prison mayor should be reduced to only six years of prision correccional to enable him to apply for probation under Presidential Decree No. 968 tenable?

By not specifying the justification for imposing the ceiling of the period of the imposable penalty, the fixing of the indeterminate sentence became arbitrary, or whimsical, or capricious. In the absence of the specification, the maximum of the indeterminate sentence for Ladines should be the lowest of the medium period of reclusion temporal, which is 14 years, eight months and one day of reclusion temporal (Ladines vs. People, G.R. No. 167333, January 11, 2016, Bersamin, J.).

No. Hubilla’s insistence is bereft of legal basis. Neither the Revised Penal Code, nor Republic Act No. 9344, nor any other relevant law or rules support or justify the further reduction of the maximum of the indeterminate sentence. To yield to his insistence would be to impose an illegal penalty, and would cause the Court to deliberately violate the law (Hubilla v. People, G.R. No. 176102, November 26, 2014, Bersamin, J.). Bruno was charged with homicide for killing the 75year 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

Dequito was at the gate of Dalupaon Elementary School watching the graduation ceremony of the high school students. Espinola then arrived. Later, however, Dequito saw Hubilla approach Espinola and stabbed the latter. With the Hubilla’s left arm around

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UST LAW PRE-WEEK NOTES 2017 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? (BAR 2013)

Would you consider dwelling? No. In the said dwelling both Bruno and the victim are residing. Therefore, dwelling is not an aggravating circumstance because both of them are living in the same dwelling. It cannot be said that when Bruno killed the man, he disrespected the dwelling of the said man. Therefore, we have no aggravating circumstance present. Take note that Bruno was able to prove voluntary surrender, voluntary plea of guilt, and then we have an incomplete self-defense — a privileged mitigating circumstance.

Bruno should be sentenced to an indeterminate sentence penalty of arresto mayor in any of its period as minimum to prision correccional in its medium period as maximum. Bruno was entitled to the privileged mitigating circumstances of incomplete selfdefense 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 prisioncorreccional.

Applying these conclusions, we have two (2) ordinary mitigating circumstances with one (1) privileged mitigating circumstance and with no aggravating circumstance. How do we compute the penalty? 1.

Consider first the Privileged Mitigating Circumstance.

Further Explanation Whenever there is a privileged mitigating circumstance present, apply it first before computing the penalty. In this example, since we have incomplete self-defense, you have to lower the penalty by one degree because it is a privileged mitigating circumstance. Thus, it will become prision mayor.

In this kind of question, the Bar examiner wants you to determine whether there was self-defense or not. The problem provides that the defense was able to prove that it was the man who first attacked Bruno; therefore, there was unlawful aggression. But there was no provocation coming from Bruno, therefore, there was a lack of sufficient provocation. So two elements of self-defense are present.

2.

How about the 3rd element of self-defense, reasonable necessity of the means employed to prevent or repel the attack, is this present?

Consider the Ordinary Mitigating Circumstance. So now, there are two ordinary mitigating circumstances with no aggravating circumstance. Article 64 provides that when there are two mitigating with no aggravating, lower the penalty by one degree. Therefore, if you lower it by one degree, it is now prisioncorreccional.

The 3rd element of self-defense is absent because based on the facts proven by Bruno, although it was the man who attacked Bruno first, he prevailed upon the man because he made use of a knife and stabbed the man. While the man attacked Bruno by means of his fist, it is not reasonably necessary for Bruno to make use of a knife in killing the man. So what we have is an incomplete selfdefense.

3.

Determine the Maximum Sentence after considering all justifying, exempting, mitigating, and aggravating circumstances, if any. You have already applied everything so it will become prision correccional in its medium period.

Under paragraph 1 of Article 13, in case of incomplete self-defense, if aside from unlawful aggression, another element is present but not all, we have a privileged mitigating circumstance. Therefore, this incomplete selfdefense shall be treated as a privileged mitigating circumstance.

4. Determine the minimum term of the sentence. You go one degree lower and that is arresto mayor. Therefore, arresto mayor in its medium period (or any period in the discretion of the court) is the minimum term of the sentence.

The prosecution was able to prove that the man is 75 years old. Would you consider the aggravating circumstance of disrespect of age?

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. The court found that Ken died under exceptional circumstances and exonerated Macky of murder but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Macky to pay indemnity to the heirs of the victim in the amount of P50,000. 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

No. Even if Bruno killed the said 75 year-old man, there was no showing in the problem that he disrespected the age of the man. Would you consider nighttime as an aggravating circumstance? No. Even if the problem says that the crime was committed at 10 in the evening, it did not say whether the house was lighted or not. There was also no showing that the offender deliberately sought nighttime to commit the crime.

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CRIMINAL LAW the use of prohibited substances? Explain your answer. (BAR 2007)

according to the amendment to Section 20 of the law, shall be applied if what is involved is 750 grams or more of indian hemp or marijuana; otherwise, if the quantity involved is less, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity.

No, Macky is not entitled to the benefit of the Indeterminate Sentence Law (R.A. 4103, as amended) for having evaded the sentence which banished or placed him on destierrro. Sec. 2 of the said law expressly provides that the law shall not apply to those who shall have "evaded sentence".

In other words, there is here an overlapping error in the provisions on the penalty of reclusion perpetua by reason of its dual imposition, that is, as the maximum of the penalty where the marijuana is less than 750 grams, and also as the minimum of the penalty where the marijuana involved is 750 grams or more. The same error has been committed with respect to the other prohibited and regulated drugs provided in said Section 20. To harmonize such conflicting provisions in order to give effect to the whole law, the penalty to be imposed where the quantity of the drugs involved is less than the quantities stated in the first paragraph shall range from prision correccional to reclusion temporal, and not reclusion perpetua. This is also concordant with the fundamental rule in criminal law that all doubts should be construed in a manner favorable to the accused.

Alternative Answer: No, because the penalty for use of any dangerous drug by a first offender is not imprisonment but rehabilitation in a government center for a minimum period of six (6) months (Sec. 15, R.A. 9165). The Indeterminate Sentence Law does not apply when the penalty is imprisonment not exceeding one year. An agonizing and protracted trial having come to a close, the judge found A guilty beyond reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1) DAY of prision mayor. The public prosecutor objected to the sentence on the ground that the proper penalty should have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal. The defense counsel chimed in, contending that application of the Indeterminate Sentence Law should lead to the imposition of a straight penalty of SIX (6) MONTHS and ONE (1) DAY of prision correccional only. Who of the three is on the right track? (BAR 2010)

If the marijuana involved is below 250 grams, the penalty to be imposed shall be prision correccional; from 250 to 499 grams, prision mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed as a conjunctive penalty only if the penalty is reclusion perpetua to death. Now, considering the minimal quantity of the marijuana subject of the case at bar, the imposable penalty under RA 6425, as amended by RA 7659, is prision correccional, to be taken from the medium period thereof pursuant to Article 64 of the Revised Penal Code (RPC), there being no attendant mitigating or aggravating circumstance.

None of the contentions is correct because the Indeterminate Sentence Law (R.A. 4103, as amended) has not been followed. The imposition of penalty for the crime of homicide, which is penalized by imprisonment exceeding one (1) year and is divisible, is covered by the Indeterminate Sentence Law. The said law is requires that the sentence in this case should reflect a minimum term for purposes of parole, and a maximum term fixing the limit of the imprisonment. Imposing a straight penalty is incorrect.

B) Should modifying circumstances be taken into account in this case? Yes. In the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the RPC cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the RPC.

PEOPLE V. SIMON (1994) Simon was arrested during a buy bust operation at Sto. Cristo, Guagua, Pampanga after he sold two marijuana tea bags for P40.00 to Sgt. Lopez, who acted as the poseur-buyer. Another two marijuana tea bags were found in possession of Simon. Simon was charged with a violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, for the sale of the four marijuana tea bags with a total weight of only 3.8 grams. The trial court convicted Simon as charged but only in relation to the sale of the two marijuana tea bags, and sentenced him to suffer the penalty of life imprisonment, to pay a fine of P20,000.00, and to pay the costs.

The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the RPC in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to the RPC. In the case of the Dangerous Drugs Act as now amended by RA 7659 by the incorporation and prescription therein of the technical penalties defined in and constituting integral parts of the three scales of penalties in the RPC, with much more reason should the provisions of the RPC on the appreciation and effects of all attendant modifying circumstances apply in fixing the penalty. Likewise, the different kinds or classifications of penalties and the rules for graduating such penalties by degrees should have supplementary effect on RA 6425, except if they would result in absurdities. Mitigating circumstances should be considered and applied only if they affect the periods and the degrees of the penalties within rational limits.

A) Is the trial court correct in imposing the penalty of life imprisonment? No. As applied to the present case, Section 4 of RA 6425, as now further amended, imposes the penalty of reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully sell, administer, deliver, give away, distribute, dispatch in transit or transport any prohibited drug. That penalty,

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UST LAW PRE-WEEK NOTES 2017 While modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses.

the trial court (Art. 39, as amended by R.A. 10159 approved on April 10, 2012). When may it be imposed? 1. 2.

When there is a principal penalty of imprisonment or any other principal penalty and it carries with it a fine; or When penalty is only fine.

Is subsidiary penalty an accessory penalty?

C) Is Simon entitled to the application of the Indeterminate Sentence Law?

A subsidiary penalty is not an accessory penalty. It is a penalty imposed upon the accused and served by him in lieu of the fine which he fails to pay on account of insolvency. The accused cannot be made to undergo subsidiary imprisonment unless the judgment expressly so provides.

Yes. Since drug offenses are not included in nor has Simon committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death; provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment.

THREE-FOLD RULE What are the three systems of imposition of penalties in case two or more penalties are imposed on one and the same accused?

RA 6425, as now amended by RA 7659, has unqualifiedly adopted the penalties under the RPC in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, the Court applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the RPC to impose the same in the medium period. Such offense, although provided for in a special law, is now in effect punished by and under the RPC. Correlatively, to determine the minimum, we must apply the first part of Section 1 of the Indeterminate Sentence Law which directs that "in imposing a prison sentence for an offense punished by the RPC, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the RPC, and the minimum which shall be within the range of the penalty next lower to that prescribed by the RPC for the offense."

1.

Material accumulation system - no limitation whatever. All the penalties for all violations were imposed even if they reached beyond the natural span of human life.

2.

Juridical accumulation system - limited to not more than the three-fold length of time corresponding to the most severe and in no case exceed 40 years.

3.

Absorption system - the lesser penalties are absorbed by the graver penalties. It is observed in the imposition of the penalty in complex crimes, continuing crimes, and special complex crimes like robbery with homicide, etc.

What is the Three-Fold Rule? Three-fold rule means that the maximum duration of a convict’s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him but in no case exceed 40 years.

It is thus both amusing and bemusing if, in the case at bar, Simon should be begrudged the benefit of a minimum sentence within the range of arresto mayor, the penalty next lower to prision correccional which is the maximum range the Court has fixed through the application of Articles 61 and 71 of the RPC. For, with fealty to the law, the court may set the minimum sentence at 6 months of arresto mayor, instead of 6 months and 1 day of prision correccional. The difference, which could thereby even involve only one day, is hardly worth the creation of an overrated tempest in the judicial teapot.

When does the Three-Fold Rule apply? The rule applies if a convict has to serve at least four sentences, continuously. NOTE: All the penalties, even if by different courts at different times, cannot exceed three-fold to most severe penalty.

Therefore, in view of the foregoing, Simon must be sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as the minimum, to six (6) years of prision correccional, as the maximum thereof (People v. Martin Simon, G.R. No. 93028, July 29, 1994, EN BANC, Regalado, J.)

PROBATION LAW (AS AMENDED BY R.A. NO. 10707) Who are disqualified to avail the benefits of the probation law? (BAR 2004) 1.

What is subsidiary penalty? Subsidiary personal liability is to be suffered by the convict who has no property with which to meet the fine, at the rate of one day for each amount equivalent to the highest minimum wage rate prevailing in the Philippines at the time of the rendition of judgment of conviction by

2. 3.

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Sentenced to serve a maximum term of imprisonment of more than six (6) years; (BAR 1990, 1995, 2002) Convicted of subversion or any crime against the national security; (Sec. 9, RA 10707) Who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one (1) day and/or a

CRIMINAL LAW

4. 5. 6. 7.

fine of more than one thousand pesos (P1,000.00); (Sec. 9, RA 10707) Who have been once on probation under the provision of this Decree; Who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof; If he appeals the judgment or conviction (however see Colinares v. People, G.R. No. 182748, December 13, 2011); or (BAR 2013) If he is convicted of violation of Election offenses

would have had the right to apply for probation. Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice between appeal and probation. While it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he certainly does not have. What he has is the right to apply for that privilege. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case (Colinares v. People, G.R. No. 182748, December 13, 2011).

NOTE: In multiple prison terms, those imposed against the accused found guilty of several offenses should not be added up, and their sum total should not be determinative of his disqualification from probation since the law uses the word “maximum” not “total” term of imprisonment (Francisco v. CA, et. Al, G.R. No. 108747, April 6, 1995).

Meno was convicted by final judgment of the crime of arbitrary detention and was sentenced to suffer imprisonment by the RTC. On that ground, Bena filed a petition to disqualify Meno from running for Punong Baranggay. Meno argued that he was already granted probation, which effectively restores him all the civil rights including the right to vote and be voted for in the elections. The COMELEC En Banc disqualified Meno citing Sec. 40(a) of the Local Government Code. Meno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code. Is Meno disqualified from running for public office?

Arnel Colinares was found guilty of frustrated homicide by the RTC. On appeal, CA affirmed. On petition for review, SC ruled that he was only guilty of attempted homicide, in which the penalty is “probationable”. Is Colinares now entitled to apply for probation upon remand of the case to the lower court, even after he has perfected his appeal to a previous conviction (frustrated homicide) which was not “probationable”? Yes. The probation law as amended provides that, “xxx No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final.” The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a nonprobationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction.

No, Meno is not disqualified from running for public office. During the period of probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. The period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order. The Probation Law should be construed as an exception to the Local Government Code (Moreno v. Comelec, G.R. No. 168550, August 10, 2006). PARDON VIS-À-VIS PROBATION PARDON PROBATION Extinguishes criminal Does not extinguish liability. criminal liability; merely suspends the execution of the sentence. Includes any crime Exercised individually and is exercised by the trial court. individually by the President.

The trial court shall, upon receipt of the application filed, suspend the execution of the sentence imposed in the judgment. This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified decision which already imposes a probationable penalty. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable.’’ (R.A. 10707 Section 1, amending Section 4 of PD No. 968, Approved last November 26, 2015) Alternative Answer: What is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he

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UST LAW PRE-WEEK NOTES 2017 Merely looks forward and relieves the offender from the consequences of an offense of which he has been convicted.

Does not work for the restoration of the rights to hold public office, or the right of suffrage, unless such rights are expressly restored by means of pardon.

Exercised when the person is already convicted. Being a private act by the president, it must be pleaded and proved by the person pardoned.

Does not alter the fact that the accused is a recidivist as it produces only the extinction of the personal effects of the penalty. Does not extinguish the civil liability of the offender.

7.

It promotes the correction and rehabilitation of an offender by providing him with individualized treatment; provides an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and prevent the commission of offenses. Those who have not served their sentence by reason of the grant of probation which should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run (Moreno v. Comelec, G.R. No. 168550, August 10, 2006). Must be exercised within the period for perfecting an appeal. Being a grant by the trial court; it follows that the trial court also has the power to order its revocation in a proper case and under proper circumstances.

Bayot was found guilty beyond reasonable doubt of the crime of rape committed against AAA, thus sentencing him to suffer the penalty of reclusion perpetua. CA affirmed the ruling but increased the award of indemnity and ordered Bayot to pay AAA moral damages in the amount of P 50,000. During pendency of his appeal, Bayot died at the prison hospital, as evidenced by the letter of the Penal Superintendent to the CA. Did the death of Bayot extinguish both his criminal and civil liability? Yes, Bayot’s death during the pendency of his appeal before the Court of Appeals extinguished not only his criminal liability for the crime of rape committed against AAA, but also his civil liability solely arising from or based on said crime. Article 89(1) of the Revised Penal Code, specifically provides the effect of death of the accused on his criminal, as well as civil, liability. According to the pertinent provision, criminal liability is totally extinguished by death of the convict, as to the personal penalties, and as to pecuniary penalties. Liability is extinguished only when the death of the offender occurs before final judgment. It is already unnecessary to rule on Bayot’s appeal. Said appeal was still pending and no final judgment had been rendered against him at the time of his death (People v. Bayot, G.R. No. 200030, April 18, 2012). AAA is the second of five children of Amistoso and BBB. AAA was 12 years old when the rape incident happened. Amistoso had sexual intercourse against the will of AAA. Amistoso was charged with statutory rape. However, the RTC and CA convicted him for qualified rape. Insisting upon his innocence, Amistoso appealed to the Supreme Court. In a Decision dated January 9, 2013, the Supreme Court affirmed with modification the judgment of conviction against Amistoso. However the Court was belatedly informed that Amistoso had died on December 11, 2012 at the New Bilibid Prison due to cardio respiratory arrest. Yet, the Public Attorney’s Office which represented Amistoso and which was apparently also unaware of its client’s demise, still filed a Motion for Reconsideration of the Court’s Decision on February 22, 2013. What is the effect of the death of Amistoso on his criminal and civil liability pending resolution from Court?

Does not alter the fact that the accused is a recidivist as it provides only for an opportunity of reformation to the penitent offender. Does not extinguish the civil liability of the offender.

Article 89, paragraph 1 of the Revised Penal Code states that, “Criminal liability is totally extinguished by the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefore is extinguished only when the death of the offender occurs before final judgment.” Therefore, the death of the Amistoso pending appeal of his conviction extinguishes his criminal liability, as well as his civil liability ex delicto. Since the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal case.

EXTINGUISHMENT OF CRIMINAL LIABILITY Criminal liability is totally extinguished: 1.

2. 3. 4. 5. 6.

By the marriage of the offended woman, as provided in Article 344 of the RPC.

By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment; By service of the sentence; By amnesty, which completely extinguishes the penalty and all its effects; By absolute pardon; By prescription of the crime; By prescription of the penalty;

Undeniably, Amistoso’s death on December 11, 2012 preceded the promulgation by the Supreme Court of its Decision on January 9, 2013. When Amistoso died, his appeal before the SC was still pending and unresolved. The SC ruled upon Amistoso’s appeal only because it was

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CRIMINAL LAW not immediately informed of his death. Amistoso’s death on December 11, 2012 renders the SC’s Decision dated January 9, 2013, even though affirming Amistoso’s conviction, irrelevant and ineffectual. Moreover, said Decision has not yet become final, and the SC still has the jurisdiction to set it aside (People v. Amistoso, G.R. No. 201447, August 28, 2013).

A killed his wife and buried her in the 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 3 years later to take care of his ailing sibling. Six years thereafter, he was charged with parricide, but he raised the defense of prescription.

Consorte was convicted for murder for the death of Elizabeth Palmar. The Court of Appeals affirmed his conviction, hence he elevated his case to the Supreme Court, assailing the incredibility of his conviction. The Supreme Court affirmed with modification the conviction of Consorte on July 9, 2014. A Motion for Reconsideration was pending resolution before the Supreme Court when Consorte died in New Bilibid Prison. His death was evidenced by a death certificate issued by the NBP Medical Officer and attached in a letter by the Officer-In-Charge of the New Bilibid Prison informing the Court of the update. Did the death of Consorte extinguish his criminal and civil liability pending resolution?

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. (BAR 2010) a. b.

Yes. Consorte died before final judgment, as in fact, his motion for reconsideration is still pending resolution by the Court. As such, his criminal liability as well as his civil liability ex delicto are extinguished by his death prior to final judgment. The death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. The death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed (People v. Consorte, G.R. No. 194068, November 26, 2014).

c.

Under Art. 91 of the RPC, the period of prescription commence to run upon discovery of the crime by the offended party, the authorities, or their agent. It is interrupted upon filing of the complaint or information in court. No, parricide prescribes in 20 years. The period of prescription started only when Z reported the matter to the police, which is equivalent to 10 years of hiding from the time of reporting to Z. The period of three years shall not be counted since he is absent from the Philippines. The filing of the charge 6 years thereafter is well within the prescriptive period.

Goyena filed with the City Prosecutor a complaint for slight physical injuries against Bautista. After conducting the preliminary investigation, the prosecutor issued a recommendation for the filing of information against Bautista. Such recommendation was approved by the City Prosecutor but the date of such approval cannot be found in the records. The Information was, however, filed with the MeTC of Manila only on June 20, 2000. Bautista sought the dismissal of the case against him on the ground of the 60-day period of prescription from the date of the commission of the crime. Has the crime prescribed?

PRESCRIPTION OF CRIMES One fateful night in 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 of Ara, place it inside the trunk of the 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 City. For fear of his life, Albert did not tell anyone, even his parents and relatives, about what he witnessed. Twenty and a half (20 & 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 1/2 years? (BAR 2000)

No, the crime has not prescribed. It is a settled rule that the filing of the complaint with the Fiscal’s office suspends the running of the prescriptive period. The Office of the Prosecutor miserably incurred some delay in the filing the Information but such mistake or negligence should not unduly prejudice the interests of the State and the offended party. As held in People vs. Olarte, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint (People v. Bautista, G.R. No. 168641, April 27, 2007).

Yes, the State can still prosecute Mina for the death of Ara despite the lapse of 20 and 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. 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, while serving sentence for homicide escaped but was re-arrested, and was sentenced for evasion of service of sentence. Later on, he was granted absolute pardon for homicide. He now claims that the pardon includes the evasion of service since the latter crime occurred because of Homicide. Is A’s contention correct? No. Pardon by the Chief Executive must specify the crime and does not include those not specified in the pardon.

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UST LAW PRE-WEEK NOTES 2017 On June 30, 2004, the Office of the Ombudsman filed two informations charging Disini in the Sandiganbayan with corruption of public officials and violation of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) in the year 1974 to 1986 for offering, promising or giving gifts and presents to Ferdinand Marcos. Disini filed a motion to quash the informations on August 2, 2004 alleging that the criminal actions had been extinguished by prescription, and that the informations did not conform to the prescribed form. The Sandiganbayan denied the motion to quash and as well as the motion for reconsideration that followed afterward. Disini commenced a special civil action for certiorari once again alleging the prescription of the charges in the information. Is Disini’s contention correct?

The second mode of proving treason is by the confession of guilt made in open court. The confession of guilt must be judicial confession of guilt made by the accused in open court. Extrajudicial confession of guilt will not suffice to bring a conviction in the crime of treason. In a time wherein the Philippines is involved in a war with another country, the offender XXX Filipino citizens, commandeered women for the enemy troops? Are they liable for treason? No, the act of commandeering women to the enemies does not constitute a treasonable act. This act of commandeering women to the enemies to satisfy the lust of the enemies is not a treasonable act because whatever benefits it would give to the enemy would have been trivial and perceptible in nature. It is only secondary and not the primary purpose of the said offender (People v. Perez, G.R. No. L-856, April 18, 1949).

A: No, the offenses charged in the information have not yet prescribed. In resolving the issue of prescription, the following must be considered, namely: (1) the period of prescription for the offense charged; (2) the time when the period of prescription starts to run; and (3) the time when the prescriptive period is interrupted. The crime of corruption of public officials is punished by a penalty of prision mayor in its medium and minimum periods and a fine not less than three times the value of the gift and Article 90 of the Revised Penal Code states that the period of prescription for this species of corruption is 15 years from the date of the discovery of the crime. The prescriptive period for violation of R.A. No. 3019, as stated in Section 2 of R.A. No. 3326, is 10 years from the day of the commission or date of discovery by the offended party, the authorities, or their agents. Therefore, the prescriptive period for the crime which is the subject herein, commenced from the date of its discovery in 1992 after the Committee made an exhaustive investigation. When the complaint was filed in 1997, only five years have elapsed, and, hence, prescription has not yet set in. (Disini v. Sandiganbayan, G.R. No. 169823-24, September 11, 2013, Bersamin, J.).

PIRACY VIS-À-VIS MUTINY PIRACY MUTINY Offenders are strangers Offenders are to the vessel. Hence, members of the offenders are neither complement or the passengers nor crew passengers of the members. vessel. Done with animo Against the authority furandi/intent to steal of the commander of and with the intention of the ship. universal hostility. Intent to gain is an Intent to gain is element of piracy. immaterial. Attack from the outside. Attack from the inside. A, B, and C hijacked a plane bound to Malaysia. In the course of the hijack, D, a passenger was shot and killed. The court charged and convicted them for the violation of Anti-Hijacking Law and murder. Is the court correct?

BOOK II

No. The charge should only be RA No. 6235 or violation of Anti-Hijacking Law. A, B and C should not be charged with a separate crime of murder because the act of killing a passenger or complement in a violation of RA No. 6235 will only bring a higher penalty. Murder should not be charged separately.

CRIMES AGAINST NATIONAL SECURITY As a rule, Crimes Against National Security can only be committed in times of war. What are the exceptions under this rule?

CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

The following crimes can also be committed even in times of peace: 1. 2. 3. 4.

What are the three ways of committing arbitrary detention? (BAR 2006)

Espionage Inciting to war or giving motives for reprisal Violation of Neutrality Mutiny and Piracy

1.

How may treason be proved? Explain.

2.

The two ways of proving treason are: (1) by the testimony of at least two witnesses to the same overt act (two-witness rule); and (2) confession of guilt made in open court.

3.

By detaining or locking up a person without any legal cause or ground thereof purposely to restrain his liberty; By delaying delivery to the proper judicial authority of a person lawfully arrested without a warrant; and By delaying release of a prisoner whose release has been ordered by competent authority.

Is there an arbitrary detention even if the offended party were not kept in an enclosure?

The first mode of proving treason is by testimony of at least two witnesses to the same overt act. There must be two witnesses that must corroborate each other as to the overt act performed by the offender. Therefore, Treason cannot be proven by mere circumstantial evidence. The law requires that there must be direct evidence.

Yes. There is arbitrary detention even if the victims were not kept in an enclosure. The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s person. If the acts and

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CRIMINAL LAW actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intent and purposes, detained against his will (Astorga v. People, G.R. No. 154130, October 1, 2003).

present, is not an act as can be designated as “notoriously offensive to the faithful.”In this case, the accused were acquitted of a violation of Art. 133 of the RPC but they were found guilty of a violation of Art. 287 of the RPC for the circumstances showed that their acts were done in such a way as to vex and annoy the parties who had gathered to celebrate the “pabasa” (People v. Reyes, et al., G.R. No. L-40577, August 23, 1934).

TRUE OR FALSE. A policeman who, without a judicial order, enters a private house over the owner’s opposition is guilty of trespass to dwelling (BAR 2009).

CRIMES AGAINST PUBLIC ORDER What is the theory of absorption in rebellion?

False. The crime committed by the policeman in this case is violation of domicile because the official duties of a policeman carry with it an authority to make searches and seizure upon judicial order. He is therefore acting under color of his official authority.

Whenever in the course of committing rebellion, murder, homicide, arson, physical injuries, other common crimes are committed, and these common crimes are furtherance to, incident to, in connection with rebellion is considered as absorbed in the crime of rebellion. Only one charge of rebellion should be charged against the offender.

Policemen Conde, Avenido, Degran, Rufano, and Balolot, thinking that Galvantes was armed with a gun, pointed their firearms at him and asked for his gun. Conde went near Galvantes’ jeep and conducted search without a search warrant. After a while they saw the super .38 pistol under the floor mat of the jeep. Galvante, then, filed complaints before the Ombudsman. One of the criminal complaint he filed was warrantless search, would the complaint proper? No. The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act for it is not penalized under the RPC or any other special law. What the RPC punishes are only two forms of searches which are search warrants maliciously obtained and abuse in the service of those legally obtained under Art. 129, and searching domicile without witnesses under Art. 130. Galvante did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused Conde, Avenido, Degran, Rufano, Balolot of conducting a search on his vehicle without being armed with a valid warrant. This situation, while lamentable, is not covered by Articles 129 and 130 of the RPC. The remedy of petitioner against the warrantless search conducted on his vehicle is civil in nature under Article 32, in relation to Article 2219(6) and (10) of the Civil Code (Galvante v. Casimiro, G.R. No. 162808, April 22, 2008). While a “pabasa” was going on at a municipality in the Province of Tarlac, Reyes and his company arrived at the place, carrying bolos and crowbars, and started to construct a barbed wire fence in front of the chapel. The chairman of the committee in charge of the “pabasa” persuaded them to refrain from said acts. A verbal altercation then ensued. The people attending the “pabasa” left the place hurriedly in confusion and the “pabasa” was discontinued until after investigation. Reyes and his company, in their defense claim that the land where the chapel is built belongs to the Clemente family, of which they are partisans. Are the accused guilty of the crime under Art. 133? No, Art. 133 of the RPC punishes acts “notoriously offensive to the feelings of the faithful.” The construction of a fence, even though irritating and vexatious to those

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UST LAW PRE-WEEK NOTES 2017 BASIS

REBELLION (ART. 133)

TERRORISM (RA 9372)

COUP D’ ETAT (ART. 133-A)

Crime Against

Public order

National security and law of nations

Public order

Purpose

Overthrow the government (political crime)

Unlawful demand against the government (need not be political)

Diminish inherent powers of the state (political crime)

How committed

Through violence

Through predicate crimes and by widespread and extraordinary panic and fear

Need not be through force and violence, can be by threat, intimidation, strategy or stealth

Number of people

Multitude of people

Can be singly or a lot

Can be singly or a lot

Offenders

Private or public officers

Private or public officers

Public officers only; unless private individuals conspire

Ability to absorb common crimes

Generally, yes. Murder, rape, robbery absorbed. Use of loose firearms absorbed.

Yes, absorbs predicate crimes like rebellion, coup d’etat, murder. Use of loose firearms absorbed.

Yes, but must be related to political purpose. Rape not absorbed. Use of loose firearms absorbed.

Conspiracy and proposal

Conspiracy and proposal punished

Only conspiracy is punished

Conspiracy and proposal punished

Inciting

Inciting punished

Not punished

Not punished

All continuing crime Accomplices

No accomplices

Accomplices are punished

As a result of the killing of SPO3 Jesus Lucilo, Elias Lovedioro was charged with and subsequently found guilty of the crime of murder. On appeal, Lovedioro claims that he should have been charged with the crime of rebellion, not murder as, being a member of the NPA, he killed Lucilo as a means to or in furtherance of subversive ends. The Solicitor General, opposing appellant’s claim, avers that it is only when the defense had conclusively proven that the motive or intent for the killing of the policeman was for "political and subversive ends" will the judgement of rebellion be proper. Between the appellant and the Solicitor General, who is correct?

No accomplices

Appellant, with about twenty armed men and Huk Commander Torio, raided and attacked the house of Punzalan, his political adversary and incumbent Mayor of Tiaong, Quezon, with automatic weapons, hand grenades, and bottles filled with gasoline. The raid resulted not only in destruction of Punzalan’s house and that of others but also in the death and injuries to a number of civilians. The CFI found appellant guilty of the complex crime of rebellion with multiple murder, among others. Was the lower court correct? No. The accused is guilty of sedition, multiple murder and physical injuries, among others. The purpose of the raid and the act of the raiders in rising publicly and taking up arms was not exactly against the Government and for the purpose of doing the things defined in Article 134 of the Revised Penal code under rebellion. The raiders did not even attack the Presidencia, the seat of local Government. Rather, the object was to attain by means of force, intimidation, etc. one object, to wit, to inflict an act of hate or revenge upon the person or property of a public official, namely, Punzalan was then Mayor of Tiaong. Under Article 139 of the same Code this was sufficient to constitute sedition (People v. Umali, et. al., G.R. No. L-5803, November 29, 1954).

The Solicitor General is correct. It is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. If no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice (People v. Lovedioro, G.R. No. 112235, November 29, 1995). Is the crime of direct assault based on material consequence of the unlawful act?

What are the elements of the second form of Direct Assault?

No. The essence of the crime of direct assault is the spirit of lawlessness and the contempt or hatred for the authority or the rule of law.

1.

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Offender: a. Makes an attack, b. Employs force,

CRIMINAL LAW

2. 3.

4. 5.

c. Makes a serious intimidation, or d. Makes a serious resistance. Person assaulted is a person in authority or his agent; That at the time of the assault the person in authority or his agent: a. Is engaged in the performance of official duties, or that he is assaulted b. On occasion of such performance; The offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties; and There is no public uprising.

person in authority. Accordingly, the attack on C is, in the eyes of law, an attack on an agent of a person in authority, not just the attack on the student. During election time, Isko was found in possession of an unlicensed firearm. Arrested, he was charged with (1) violation of the COMELEC gun ban, and (2) illegal possession of unlicensed firearm. During the arraignment for the violation of COMELEC gun ban, he pleaded not guilty. However, during the arraignment for illegal possession of an unlicensed firearm, he filed a motion to quash the information arguing that he cannot be charged of illegal possession of unlicensed firearm because the law says that you can only be charged of the offense provided that no other crime is committed by the person arrested. Is his contention correct?

What is the nature of sedition? Sedition is a violation of the public peace or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the Constitution. It is an offense not directed primarily against individuals but to the general public peace; it is the raising of commotions or disturbances in the State, a revolt against legitimate authority (People v. Perez, G.R. No. L-21049, December 22, 1923).

No, his contention is wrong. When the law says, “provided that no other crime is committed by the person arrested”, the word “committed” means that there is already a final determination of guilt — a final conviction of guilt based on a successful prosecution or judicial admission. In this case, he was not yet convicted, he was only being prosecuted. Therefore both cases can proceed. However, the moment he is convicted of violation of the COMELEC gun ban, he should be acquitted of illegal possession of unlicensed firearm (Celino, Sr. v. People, G.R. No. 170562, June 29, 2007).

As the town president failed to pay their salaries, the accused, accompanied by four armed men, went to the house of the former and compelled him by force to leave and go to the Presidencia. The accused kept the town president there confined until the relatives of the latter had raised enough money to pay what was due the accused and the armed men as salaries. What crime did the accused commit?

Who are deemed to be persons in authority and agents of persons in authority? Persons in authority are those directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority.

The facts constitute the crime of direct assault. There is no public uprising when the accused, accompanied by armed men, compelled by force the town president to go with them to proceed to the municipal building and detained him there. By reason of detaining the town president, the accused inflicted upon a public officer an act of hate or revenge. This is one of the objects of sedition, which is essentially what the accused intended to attain (U.S. v. Dirain, G.R. No. 1948, May 5, 1905).

Agents of persons in authority are persons who by direct provision of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority.

A, a lady professor was giving an examination. She noticed B, one of the students, cheating. She called the student’s attention and confiscated his examination booklet, causing embarrassment to him. The following day, while the class was going on, the student, B, approached A and without any warning, slapped her. B would have inflicted further injuries on A had not C, another student, come to A’s rescue and prevented B from continuing attack. B turned his ire on C and punched the latter. What crime or crimes, if any, did B commit? Why? (BAR 2002)

In applying the provisions of Arts. 148 and 151 of the RPC, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. Sydeco, the cook and the waitress in his restaurant were on the way home when they were signalled to stop by Police Officers who asked Sydeco to open the vehicle’s door and alight for a body and vehicle search. When Sydeco opened the vehicle window, he insisted on a plain view search, obviously irked by this remark, one of the policemen told him he was drunk, pointing to three empty beer bottles in the trunk of the vehicle. The Officers then pulled Sydeco out of the vehicle and brought him to the Ospital ng Maynila where they succeeded in securing a medical certificate under the signature of one Dr. Harvey Balucating depicting Sydeco as positive of alcoholic breath, although no alcohol breath examination was conducted. Sydeco was detained and released only in

B committed two (2) counts of direct assault: one for slapping the professor, A, who was then conducting classes and thus in the exercise of her authority; and another one for the violence on the student C, who came to the aid of the said professor. By express provision of Article 152, teachers and professors of public and duly authorized private schools, colleges and university in the in the actual performance of their professional duties or on the occasion of such performance are deemed person-in-authority for purpose of the crime of direct assault and of resistance and disobedience. And any person who comes to the aid of the person in authority shall be deemed an agent of a

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UST LAW PRE-WEEK NOTES 2017 the afternoon of the following day when he was allowed to undergo actual medical examination where the resulting medical certificate indicated that he has sustained physical injuries but negative for alcohol breath. Is Sydeco criminally liable for any crime?

In falsification of public documents, is it necessary that there be the idea of gain or intent to injure a third person? No. In falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to injure a third person because in the falsification of a public document, what is punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed (Galeos v. People, G.R. Nos. 174730-37, February 9, 2011).

No. It is fairly clear that what triggered the confrontational stand-off between the Police Officers, on one hand, and Sydeco on the other, was the latter’s refusal to get off of the vehicle for a body and vehicle search juxtaposed by his insistence on a plain view search only. Sydeco’s twin gestures cannot plausibly be considered as resisting a lawful order. He may have sounded boorish or spoken crudely at that time, but none of this would make him a criminal.

A counterfeited the signature of B but what he entered in the Statement of Assets and Liabilities of B are all true. Since there was no damage to the government, did he commit a crime?

It remains to stress that he has not, when flagged down, committed a crime or performed an overt act warranting a reasonable inference of criminal activity.

Yes. In falsification of a public document, it is immaterial whether or not the contents set forth therein were false. What is important is the fact that the signature of another was counterfeited. In a crime of falsification of a public document, the principal thing punished is the violation of public faith and the destruction of the truth as therein solemnly proclaimed. Thus, intent to gain or injure is immaterial. Even more so, the gain or damage is not necessary (Caubang v. People, G.R. No. L-62634 June 26, 1992).

The two key elements of resistance and serious disobedience punished under Art. 151 of the RPC are: (1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and (2) That the offender resists or seriously disobeys such person or his agent. There can be no quibble that the officer and his apprehending team are persons in authority or agents of a person in authority manning a legal checkpoint. But surely Sydeco’s act of exercising one’s right against unreasonable searches to be conducted in the middle of the night cannot, in context, be equated to disobedience let alone resisting a lawful order in contemplation of Art. 151 (Sydeco v. People, G.R. No. 202692, November 12, 2014).

Can falsification be committed by omission? Yes. In the case of People v. Dizon, an assistant bookkeeper who, having bought several articles for which he signed several chits, intentionally did not record in his personal account most of the said chits and destroyed them so that he could avoid paying the amount thereof was held guilty of falsification by omission.

Manny killed his wife under exceptional circumstances and was sentenced by RTC Dagupan of destierro during which he was not allowed to enter Dagupan City. While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila. Did Manny commit any crime? (1998 BAR)

Is there a complex crime of estafa through falsification of a private document? None. The fraudulent gain obtained through deceit in estafa, in the commission of which a private document was falsified is nothing more or less than the very damage caused by the falsification of such document.

Yes, Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro. A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty.

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. Is A guilty of Perjury? (BAR 1997) 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.

CRIMES AGAINST PUBLIC INTEREST How is forgery committed? (BAR 2008) Forgery is committed: 1.

2.

By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document; or By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.

The Ombudsman placed petitioner Jose C. Miranda then the mayor of Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25 January 1998 for alleged violations of the Code of Conduct and Ethical Standards for Public Officials and Employees. Subsequently, then Vice Mayor Amelita S. Navarro filed a Complaint with the Office of the Ombudsman. Vice Mayor Navarro

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CRIMINAL LAW contended that Mayor Miranda committed the felony of usurpation of authority or official functions. Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith. He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchez instructing him to vacate his office and he immediately complied with the same. Notably, Mayor Miranda’s counter-affidavit also stated that he left the mayoralty post after “coercion” by the Philippine National Police. May Miranda invoked good faith?

stipulated that the substance contained in the sachets examined by the forensic chemist is in fact methamphetamine hydrochloride or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned the admissibility of the evidence because Macario failed to observe the requisite "chain of custody" of the alleged "shabu" seized from him. On behalf of the State, the Solicitor General claimed that despite non-compliance with some requirements, the prosecution was able to show that the integrity of the substance was preserved. Moreover, even with some deviations from the requirements, the counsel of Dimas stipulated that the substance seized from Dimas was shabu so that the conviction should be affirmed.

No. The court is not persuaded by the posture of Miranda that he reassumed office under an honest belief that he was no longer under preventive suspension. Miranda’s pretense cannot stand scrutiny. Miranda’s excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merely followed the advice of his lawyer. If Miranda and his counsel had an iota of respect for the rule of law, they should have assailed the validity of the order of suspension in court instead of taking the law into their own hands (Miranda v. Sandiganbayan, GR. No. 154098, July 27, 2005).

Rule on the contention of the State. (BAR 2016) The contention of the state is meritorious. Macario, the policeman failed to comply with Section 21 of RA 9165 since the inventory and photograph of the drugs was only made in the presence of barangay tanod and the same was not submitted to the PNP Crime Laboratory within 24 hours. The rule is settled that failure to strictly comply with Section 21(1), Article II of RA 9165 does not necessarily render the accused’s arrest illegal or the items seized or confiscated from him inadmissible. The most important factor is the preservation of the integrity and evidentiary value of the seized item. Moreover, the issue of non-compliance with Section 21 of RA 9165 cannot be raised for the first time on appeal (People v. Badilla, G.R. No. 218578, August 31, 2016).

Petitioner Ursua was asked by his counsel to get a copy of the complaint from the Office of the Ombudsman. Petitioner told Oscar Perez, the law firm’s messenger, that he feels uncomfortable asking for a copy of the complaint since he one of the respondents. Perez told petitioner that the latter can go there as “Oscar Perez”. At the Office of the Ombudsman, petitioner registered in the logbook as “Oscar Perez”. LoidaKahulugan gave him a copy of the complaint to which petitioner acknowledged as “Oscar Perez”. However, Loida learned that the person is not “Oscar Perez” but in fact Cesario Ursua. Is the act of petitioner of using the name “Oscar Perez” a violation of Sec. 1 of C.A. No. 142?

Tiburcio 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. What crime can Anastacio be charged with, if any? Explain your answer. (BAR 2007)

No. Petitioner’s writing of the name “Oscar Perez” in an isolated transaction is not the act contemplated under Sec. 1 of C.A. No. 142. The use of a fictitious name or a different name belonging to another person in a single instance without any sign or indication that the user intends to be known by this name in addition to his real name from that day forth does not fall within the prohibition contained in C.A. No. 142 as amended. Petitioner introduced himself in the Office of the Ombudsman as “Oscar Perez,” which was not his own name and he did so while merely serving the request of his lawyer to obtain a copy of the complaint in which the petitioner was a respondent. Hence, the use of “Oscar Perez” is not an alias name of petitioner. There is no evidence showing that he had used or was intending to use that name as his second name in addition to his real name (Ursua v. CA, G.R. No.112170, April 10, 1996).

Anastacio may not be charged of any crime. Sec. 7 of Republic Act No. 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. After receiving reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight NO. PR 181, 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 attache case. Upon inspection inside the Immigration holding area, the attache case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attache 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 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

COMPREHENSIVE DANGEROUS DRUGS ACT Dimas was arrested after a valid buy-bust operation. Macario, the policeman who acted as poseur-buyer, inventoried and photographed ten (10) sachets of shabu in the presence of a barangay tanod. The inventory was signed by Macario and the tanod, but Dimas refused to sign. As Macario was stricken with flu the day after, he was able to surrender the sachets to the PNP Crime Laboratory only after four (4) days. During pre-trial, the counsel de oficio of Dimas

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UST LAW PRE-WEEK NOTES 2017 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. What are their respective criminal liabilities? (BAR 2006)

drug user or pusher or that what was inside the sachet given to her was shabu, is she nonetheless liable under the Dangerous Drugs Act? (BAR 2002) No, B will not be criminally liable because she is unaware that A was a drug user or pusher or of the content of the sachet handed to her by A, and therefore the criminal intent to possess the drug in violation of the Dangerous Drugs Act is absent. There would be no basis to impute criminal liability to her in the absence of animus possidendi.

Chief Inspector Gamboa and PO3 Pepito Lorbes who conspired in taking the attache case are liable for the following crimes defined under RA. 9165: (a) Sec. 27 for misappropriation or failure to account for the confiscated or seized dangerous drugs. (b) Sec. 4 in relation to Sec. 3(ee) for their acts as protector/coddler of Dante Ong who imported drugs.

Estipona Jr. was charged with violation of Sec. 11 of RA 9165. On June 15, 2016, Estipona filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement, praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Sec. 12 of RA 9165, with a penalty of rehabilitation in view of his being a first-time offender and the minimal quantity of the dangerous drug seized in his possession being a first-time offender. Prosecution moved for the denial of the motion arguing that it if prohibited by express provision of Sec. 23, RA 9165. May Estipona, Jr. plead guilty for a lesser offense?

In addition, by allowing Ong to escape prosecution for illegal importation or illegal transportation of dangerous drugs, where the penalty is life imprisonment to death, they are also liable for qualified bribery under Art. 211-A of the Revised Penal Code. With respect to Dante Ong, he is guilty of illegal importation of dangerous drugs under Sec. 4, R.A. 9165, if PR 181 is an international flight. If PR 181 is a domestic flight, he is liable for violation of Sec. 5, RA. 9165 for illegal transportation of dangerous drugs.

Yes. The power to promulgate rules of pleading, practice and procedure is now the Supreme Court’s exclusive domain and no longer shared with the Executive and Legislative departments. The other branches trespass upon this prerogative if they enact laws or issue orders that effectively repeal, alter or modify any of the procedural rules promulgated by the Court.

Who are subject to confirmatory drug test under Section 15 of R.A. 9165? A person apprehended or arrested who are to be subject of confirmatory drug test cannot literally mean any person apprehended or arrested for any crime. The phrase must be read in context and understood in consonance with R.A. 9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under Article II of the law. In this case, the accused appellant was arrested in the alleged act of extortion, hence, the drug test conducted to him despite his objection is rendered illegal and is therefore inadmissible. Since the drug test was the only basis for his conviction, the Court ordered the acquittal of the accused (Dela Cruz v. People, G.R. No. 200748, July 23, 2014).

Plea bargaining is rule of procedure. In this jurisdiction, plea bargaining has been defined as "a process whereby the accused and the prosecution work out a mutually satisfactory disposition of the case subject to court approval." There is give-and-take negotiation common in plea bargaining. The essence of the agreement is that both the prosecution and the defense make concessions to avoid potential losses. Considering the presence of mutuality of advantage, the rules on plea bargaining neither create a right nor take away a vested right. Instead, it operates as a means to implement an existing right by regulating the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them.

Is coordination with the PDEA an indispensable requirement before police authorities may carry out a buy-bust operation? Coordination with the PDEA is not an indispensable requirement before police authorities may carry out a buy-bust operation. While it is true that Republic Act No. 9165 requires the NBI, PNP and the Bureau of Customs to maintain "close coordination with the PDEA on all drug related matters," the provision does not make PDEA’s participation a condition sine qua non for every buy-bust operation. A buy-bust operation is just a form of an in flagrante arrest sanctioned by Section 5, Rule 113 of the Rules of the Court, which police authorities may rightfully resort to in apprehending violators of Republic Act No. 9165 in support of the PDEA. A buy-bust operation is not invalidated by mere non-coordination with the PDEA (People v. Balaquiot, G.R. No. 206366, August 13, 2014).

Sec. 23 of RA 9165 prohibiting plea bargaining in drug related cases is unconstitutional (Estipona v. Lobrigo, G.R. No. 226679, August 15, 2017). What is the "chain of custody" requirement in drug offenses? (BAR 2016) To establish the chain of custody, the prosecution must show the movement of the dangerous drugs from its confiscation up to its presentation in court. The following links must be established in the chain of custody in a buybust situation are:

A and his fiancee B were walking in the plaza when they met a group of policemen who had earlier been tipped off that A was in possession of prohibited drugs. Upon seeing the policemen and sensing that they were after him, A handed a sachet containing shabu to his fiancee B, telling her to hide it in her handbag. The policemen saw B placing the sachet inside her handbag. If B was unaware that A was a

1. 2. 3.

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The seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; The turnover of the illegal drug seized by the apprehending officer to the investigating officer; The turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and

CRIMINAL LAW 4.

The turnover and submission of the marked illegal drug seized from the forensic chemist to the court.

When a party desires the court to reject the evidence offered, he must so state in the form of an objection. Without such objection, he cannot raise the question for the first time on appeal (People v. Cabrera, G.R. No. 190175, November 12, 2014).

What is the primary purpose of establishing the chain of custody? Compliance with the chain of custody requirement ensures the integrity of confiscated, seized, and/or surrendered drugs and/or drug paraphernalia in four (4) respects: 1. 2. 3. 4.

Is the delay in the turn-over of the dangerous drugs to the PNP Crime Laboratory decisive in the prosecution for violation of dangerous drugs act? Yes. When there was delay in the turn-over of the corpus delicti to the PNP Crime Laboratory as it was alleged that the date the illegal sachet was seized falls on a Friday and therefore the PNP Crime Laboratory was closed, it appears that said date falls on a Wednesday, not on a Friday, conviction must be immediately set aside. It must be emphasized that in criminal prosecutions involving illegal drugs, the presentation of the drugs which constitute the corpus delicti of the crime calls for the necessity of proving with moral certainty that they are the same seized items (People v. Sumili, G.R. No. 212160, February 4, 2015).

The nature of the substances or items seized; The quantity (e.g., weight) of the substances or items seized; The relation of the substances or items seized to the incident allegedly causing their seizure; and The relation of the substances or items seized to the person/s alleged to have been in possession of or peddling them.

Compliance with this requirement forecloses opportunities for planting, contaminating, or tampering of evidence in any manner.

Is the presentation of an informant in an illegal drugs case essential for the conviction of an accused?

By failing to establish identity of corpus delicti indicates a failure to establish an element of the offense of illegal sale of dangerous drugs. It follows that this noncompliance suffices as a ground for acquittal.

No. The presentation of an informant in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would be merely corroborative and cumulative. The informant’s testimony is not needed if the sale of the illegal drug has been adequately proven by the prosecution (People v. Amansec, 662 SCRA 574, December 14, 2011).

In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity of the drug. The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict (People v. Dela Cruz, G.R. No. 205821 October 1, 2014).

Based on an information from an informant, a buybust operation was constituted. The police officers occupied different positions in order to observe their informant who was also the poseur buyer. The transaction between the informant and accused Andaya was made and thereafter, the prearranged signal signifying consummation of the transaction was given. The police officers approached the two and arrested them. The accused was charged with illegal sale of drugs but he contends that the nonpresentation during the trial of the confidential informant who was the poseur buyer was adverse to the prosecution, indicating that his guilt was not proved beyond reasonable doubt. Is the presentation of informant necessary in the prosecution for illegal sale of dangerous drugs?

The chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness’ possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. Thus, if the prosecution failed to present the testimony of a police inspector who had the only keys to the evidence locker where the sachet of shabu, the unbroken chain of custody was not established and the accused must be acquitted (People v. Abetong, G.R. No. 209785, June 4, 2014).

As a rule, it is not necessary for the State to present the informant during the trial for illegal sale of dangerous drugs. However, in this case, the confidential informant was not a police officer but he was designated to be the poseur buyer himself. The State did not present the confidential informant/poseur buyer during the trial to describe how exactly the transaction between him and Andaya had taken place. There would have been no issue against failure to present the confidential informant/poseur-buyer except that none of the members of the buy-bust team had directly witnessed the transaction, if any, between Andaya and the poseur buyer due to their being positioned at a distance at the moment of the supposed transaction. The presentation of the confidential informants as witnesses for the Prosecution in those instances could be excused because there were poseur buyers who directly incriminated the accused. In this case, however, it was different, because the poseur

May the defense of non-compliance to chain of custody rule be raised for the first time on appeal? When an accused raises the issue of non-compliance by the police officers with Sec. 21 of the IRR of R.A. 9165 particularly the lack of physical inventory of the seized specimen and the non-taking of photograph thereof on appeal after the CA rendered a decision, the Court must uphold his conviction. Cabrera should have raised the said issue before the trial court. Truly, objection to evidence cannot be raised for the first time on appeal.

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UST LAW PRE-WEEK NOTES 2017 buyer and the confidential informant were one and the same. Without the poseur buyer's testimony, the State did not credibly incriminate Andaya (People v. Andaya, G.R. No. 183700, October 13, 2014).

his mere act of driving a vehicle containing dangerous drugs is not sufficient to convict him. Is his contention meritorious? No. Mere act of driving is sufficient to convict Morilla of the crime charge. “Transport”, as used under the Dangerous Drugs Act, means “to carry or convey from one place to another.” It was well-established during trial that Morilla was driving the ambulance following the lead of Mayor Mitra, who was driving a Starex vangoing to Manila. The very act of transporting methamphetamine hydrochloride or shabu is malum prohibitum since it is punished as an offense under a special law. The fact of transportation of the sacks containing dangerous drugs need not be accompanied by proof of criminal intent, motive or knowledge (People v. Morilla, G.R. No. 189833, February 5, 2014).

Is the non-presentation of the forensic chemist in illegal drugs case a sufficient cause for acquittal? No. The Court has already ruled in a number of cases that non-presentation of the forensic chemist in illegal drugs cases is an insufficient cause for acquittal. xxx The nonpresentation as witnesses of other persons who had custody of the illegal drugs is not a crucial point against the prosecution. It is the prosecution which has the discretion as to how to present its case and it has the right to choose whom it wishes to present as witnesses. What is important is that the integrity and evidentiary value of the seized drugs are properly preserved (People v. Fundales, Jr., 680 SCRA 181, September 5, 2012).

PO1 Reyes and PO1 Pastor, both wearing civilian clothes, were conducting anti-drug surveillance operations. While they were in front of a sari-sari store, accused Laylo approached them and asked, “Gusto mong umiskor ng shabu?” PO1 Reyes replied, “Bakit mayroon ka ba?” Laylo then brought out two plastic bags containing shabu and told the police officers, “Dos (P200.00) ang isa.” Upon hearing this, the police officers introduced themselves as cops. PO1 Reyes immediately arrested Laylo. A laboratory examination was conducted which found the recovered items positive for methylamphetamine hydrochloride or shabu, a dangerous drug. Is there a crime committed even though the sale of illegal drugs was not consummated?

A police officer surreptitiously placed a marijuana stick in a student’s pocket and then arrested him for possession of marijuana cigarette. What crime can the police officer be charged with? (BAR 2012) a. b. c. d.

None, as it is a case of entrapment Unlawful arrest Incriminating an innocent person Complex crime of incriminating an innocent person with unlawful arrest

NOTE: The correct answer is not included in the choices. The correct answer is “planting of evidence.” Section 29 of R.A. 9165, The Comprehensive Dangerous Drugs Act of 2002, specifically punishes the act of planting dangerous drugs. Section 29 provides that any person who is found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.

Yes. The crime committed was attempted illegal sale of drugs punishable under Section 26(b) of R.A. 9165.The elements necessary for the prosecution of illegal sale of drugs are – first, identity of the buyer and seller; second, the object, and the consideration; and third, the delivery of the thing sold and the payment. The policemen were the poseur-buyers and the appellant was the seller. The substance contained in the plastic sachets which were found to be positive for shabu as the object, and the consideration, which is P200.00 for each sachet, was made known by the appellant. However, the sale was interrupted when the poseur-buyers introduced themselves to the appellant; hence, the crime was not consummated. The appellant already commenced by overt acts the commission of the intended crime by showing the substance to both of the policemen but did not perform all the acts of execution which would produce such crime by reason of some cause or accident other than his own spontaneous desistance. Such cause or accident is when the policemen introduced themselves and the sale was immediately aborted. Hence, appellant is guilty of attempted sale of dangerous drugs (People v. Laylo, G.R. No. 192235, July 6, 2011).

Section 3(cc), R.A. 9165 defines planting of evidence as the willful act of any person of maliciously and surreptitiously inserting, placing, adding or attaching, directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of R.A. 9165. Two vehicles were suspected to be used for transportation of dangerous drugs. The Starex van driven by Mayor Mitra was able to pass the checkpoint, however, the ambulance driven by Morilla was stopped for it was noticed that there were several sacks inside the van. Upon inquiry, Morilla said that the sacks contained narra wooden tiles. But the police officers requested for further inspection where it was noticed that white crystalline granules were scattered on the floor. At the request of the police officers to open the sacks, Morilla said that he was with Mayor Mitra to let him pass. Upon inspection, the contents of the sacks turned out to be sacks of methamphetamine hydrochloride or shabu. It was also found that the van driven by Mayor Mitra contains the same. Accused was charged with illegal transport of dangerous drugs. Morilla contends that

CRIMES AGAINST PUBLIC MORALS X, an 11 year-old girl, had sexual intercourse with her 18 year-old boyfriend Y. They performed the act in a secluded vacant lot. Unknown to them, there was a roving policeman at that time. Hence, they were arrested. What crime did they commit? The sexual intercourse with the girl constitutes statutory rape. Though the act was carried out in a public place, criminal liability for grave scandal cannot be incurred.

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CRIMINAL LAW NOTE: The highly scandalous conduct should not fall within any other article of the RPC. Thus, this article provides for a crime of last resort.

close door talk took place between the two wherein the respondent offered the public prosecutor P2M in exchange for the dismissal of the case filed against the respondent. The public prosecutor accepted the P2M. Later, by reason of the bribe money given to him, the prosecutor issued a resolution dismissing the said case for lack of probable cause.

CRIMES COMMITTED BY PUBLIC OFFICERS Define malfeasance, misfeasance and nonfeasance. (BAR 2016) MALFEASANCE

MISFEASANCE

NONFEASANCE

Performance of some act which ought not to be done.

Improper performance of some act which might be lawfully done.

Omission of some act which ought to be performed.

a) What crime/crimes is/are committed by the public prosecutor? The public prosecutor is liable for direct bribery under Article 210. First, he is a public officer. Second, the said public prosecutor accepted a bribe money in the amount of P2M in connection with the performance of a criminal act which has a connection with his official function. Hence, he is liable for Direct Bribery. The public prosecutor is also liable for Dereliction of Duty in the Prosecution of Offenses under Art. 208. By reason of the P2M given to him by the respondent, the public prosecutor actually rendered the said resolution dismissing the case despite his knowledge that the offender had actually committed the crime. He is a public officer who has the duty to prosecute and he knows the commission of the crime, yet he did not cause the prosecution of the offender. He did so with malice and deliberate intent to favor the violator of the law because of the bribe money given to him. So in this case the public prosecutor is liable for two crimes: (1) Direct Bribery and (2) Dereliction of Duty in the Prosecution of Offenses.

Governor A was given the amount of PIO million by the Department of Agriculture for the purpose of buying seedlings to be distributed to the farmers. Supposedly intending to modernize the farming industry in his province, Governor A bought farm equipment through direct purchase from XY Enterprise, owned by his kumpare B, the alleged exclusive distributor of the said equipment. Upon inquiry, the Ombudsman discovered that B has a pending patent application for the said farm equipment. Moreover, the equipment purchased turned out to be overpriced. What crime or crimes, if any, were committed by Governor A? (BAR 2016)

b) Without direct bribery, dereliction of duty in the prosecution of offenses will not be committed. Are you going to complex these crimes considering that one is a necessary means to commit the other?

Governor A committed the crimes of: (1) technical malversation; and (2) violations of Sections 3(e) and (g) of RA 3019.

No. Art. 210 prohibit the complexity of crimes. Under Art. 210, the liability of direct bribery shall be in addition to the liability attaching to the public officer for the commission of the crime agreed upon.

Governor A committed technical malversation under Art. 220 of the RPC. The amount of P10M granted by the Department of Agriculture to Governor A, an accountable public officer, is specificially appropriated for the purpose of buying seedlings to be distributed to the farmers. Instead, Governor A applied the amount to aquire modern farm equipment through direct purchase from XY Enterprise owned by his kumpare. The law punishes the act of diverting public funds earmarked by law or ordinance for a specific public purpose to another public purpose; hence, the liability for technical malversation.

X a police officer, was conducting a patrol in an area when he noticed a man hiding behind a mango tree. He saw that the man was intently looking at the house across the street. When the gate of the house opened just as when a car was about to leave the house, the man immediately boarded his motorcycle, went near the said gate and thereafter repeatedly shot the driver of the car which resulted to the instant death of the latter. The man in the motorcycle got away. The police officer chased him and was able to arrest him. However, the man in the motorcycle said, “If you allow me to leave, I’ll give you P500, 000.00.” The police officer accepted the money and allowed him to leave. What crime if any is committed by the said police officer?

Governor A can also be held liable for violation of Section 3(e) of RA 3019. All the elements are present. “Through manifest partiality” in favoring his kumpare, Governor A did not hold a public bidding and directly purchased the farm equipment from his kumpare. Further, Governor A’ actions caused undue injury to the government as well as the farmers who were deprived of the seedlings. His acts likewise gave his kumpare, a private party, the unwarranted benefit, advantage or preference, to the exclusion of other interested suppliers. The act by Governor A is also a violation of Section 3(g) of RA 3019 for entering a contract on behalf of the government which is manifestly and grossly disadvantageous to the same.

The police officer is liable for qualified bribery under Art. 211-A. The police officer is a public officer in charge with the enforcement of the law and he resisted to arrest a person who has committed a crime punishable by reclusion perpetua and/or death. The police officer did not arrest the said man because of the P500, 000.00 given to him.

The public prosecutor has to render his resolution on a case filed before their office. While the investigating public prosecutor was already drafting his resolution, the respondent in the said case arrived. A

X has been appointed as the new head of LTO. During his first day in office, Y visited him. Y talked to X and after their exchange of pleasantries, the visitor left. When Y left, he also left a small gift box on top of the

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UST LAW PRE-WEEK NOTES 2017 table of X containing a key to a new car and a note that the car is in the parking space at the basement of the building. X went to the basement and used the car. Is X liable for any crime?

Don Gabito is liable for Corruption of Public Officials under Article 212 of the Revised Penal Code for having given the amounts that were deposited in an account which he opened in the Mayor’s name for no reason but the public position or office held by the Mayor;

X is liable for indirect bribery under Art. 211 because he is a public officer and he accepts a gift by reason of his office. Y, the visitor, does not require him to do anything; it was merely given to him because he was newly appointed as the LTO Chief. His acceptance brings about the consummation of indirect bribery.

The Mayor is liable for Indirect Bribery for accepting such money deposited in his account by using them when they were given to him for no other reason except for his public position as a Mayor and Violation of Rep. Act 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) and for receiving such gift from someone who may be affected by the functions of his office.

In the abovementioned cases, what is/are the criminal liability of the person giving the bribe? They are liable for corruption of public officials under Art. 212. It is committed by any person who shall have made the offers or promises or given the gifts or presents in the consummation of direct or indirect bribery.

Accused Hernandez served a Mission Order against Takao Aoyagi, a Japanese national. There were complaints against Aoyagi for being suspected as a Yakuza big boss, a drug dependent and an overstaying alien. To prove his innocence, Aoyagi gave his passport to Hernandez as guarantee for his appearance at a BID hearing. In a meeting outside the BID Office, accused Hernandez allegedly demanded 1 million pesos for the return of Aoyagi’s passport. Because of such demand, an entrapment operation was made. In a meeting to return Aoyagi’s passport, Hernandez immediately left after the payment was made to his co-accused. Is the act of direct bribery committed even though his act of returning the passport is not a crime?

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, 000.00. May she be held criminally liable for this accommodation? (BAR 1990) The answer would depend/be qualified by the implication of the phrase “to have his case calendared as early as possible". If the phrase is interpreted 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 Practices Act, as amended: “x x x giving any private party any unwarranted benefits".

Yes. The second kind of direct bribery was committed by the accused. Accused was convicted under the second kind of direct bribery, which contained the following elements: 1) the offender was a public officer, 2) who received the gifts or presents personally or through another, 3) in consideration of an act that did not constitute a crime, and 4) that act related to the exercise of official duties. The passport confiscated by the accused was supposed to have been voluntarily given to Takao Aoyagi as a guarantee to appear at the BID office. However, Takao Aoyagi had to negotiate for the retrieval of the passport during the meetings held outside the BID which was not a standard operating procedure to officially return withheld passports in such locations. It can readily be inferred that the accused had an ulterior motive for withholding the passport for some time despite the absence of any legal purpose (Acejas III v. People, G.R. No. 156643, June 27, 2007).

If you interpret the phrase as a non-violation of the rules and regulations then he can only be held liable for direct bribery. 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? (BAR 1990) Melda is not criminally liable because the act of 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.

Torres was the principal of a high school. The school’s collection and disbursing officer prepared 3 checks representing the teachers’ and employees’ salaries and other compensation for the months of January to March, 1994 in the total amount of P196,654.54. Torres signed the three (3) checks and encashed them. However, he never returned to the school to deliver the money and contends that a group of armed men took the encashed checks from him. The RTC convicted Torres of the crime of malversation of public funds. He appealed his case. May Torres be properly convicted based on the information which clearly charged him with intentional malversation and not malversation through negligence, which was the actual nature of malversation for which he was convicted by the RTC?

Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayor’s name and regularly deposited various amounts ranging from P500,000.00 to P1 Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito was actually a jueteng operator and the amounts he deposited were proceeds from his jueteng operations. What crime/s were committed? Who are criminally liable? Explain. (BAR 2005)

Yes. Malversation may be committed either through a positive act of misappropriation of public funds or

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CRIMINAL LAW property, or passively through negligence. To sustain a charge of malversation, there must either be criminal intent or criminal negligence, and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable under Article 217 of the RPC. Even when the Information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves the mode of commission of the offense (Torres v. People, G.R. No 184908, July 3, 2013).

malversation of public funds under Art. 217 of the Revised Penal Code but was convicted for illegal use of public funds which is defined and punished under Art. 220 of said Code. 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. 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." So, procedurally and substantially, the Sandiganbayan’s decision suffers from serious infirmity.

Major Cantos was assigned to supervise the disbursement of funds for the PSG personnel and to perform other finance duties. He placed the money in a duffel bag and kept it inside the steel cabinet in his office. One day, he inspected the steel cabinet and discovered that the duffel bag which contained the money was missing. He was found liable by the RTC for malversation. Major Cantos contends that he could not be liable for malversation for mere failure to produce the funds does not necessarily mean that he misappropriated the same. Is he liable for malversation of public funds?

COA Auditor Florence L. Paguirigan examined the year-end reports involving the municipal officials of Alfonso Lista, Ifugao and during the course of her examination, she came across a disbursement voucher for P101,736.00 prepared for Lumauig, a former mayor of the municipality, as cash advance for the payment of freight and other cargo charges for 12 units of motorcycles supposed to be donated to the municipality. Despite the full efforts of COA, letters informing him of the unliquidated cash advance were not sent because of the address of the same cannot be obtained. Lumauig admitted having obtained the cash advance of P101,736.00 during his incumbency as municipal mayor of Alfonso Lista, Ifugao. This amount was intended for the payment of freight and insurance coverage of 12 units of motorcycles to be donated to the municipality by the City of Manila. However, instead of motorcycles, he was able to secure two buses and five patrol cars. He claimed that it never came to his mind to settle or liquidate the amount advanced since the vehicles were already turned over to the municipality. Can Lumauig be held liable for the crime of failure of accountable officer to render account?

Yes. The presumption in Article 217 of the Revised Penal Code, as amended, states that the failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, is prima facie evidence that he has put such missing fund or property to personal use. The presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence that can nullify any likelihood that he put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. In this case, however, petitioner failed to overcome this prima facie evidence of guilt (Cantos v. People, G.R. No. 184908, July 3, 2013). 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 P100,000.00 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 appro-priating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain. (BAR 1996)

Yes, Lumauig can be held liable with the crime of failure of accountable officer to render account under Art. 218. To be liable for such crime, the following requisites must be present: (1) that the offender is a public officer, whether in the service or separated therefrom; (2) that he must be an accountable officer for public funds or property; (3) that he is required by law or regulation to render accounts to the Commission on Audit, or to a provincial auditor; and (4) that he fails to do so for a period of two months after such accounts should be rendered. The law does not state that there must first be a demand for an officer to be held liable. Therefore, he is liable to such crime (People v. Lumauig, G.R. No. 166680, July 7, 2014).

Elizabeth’s contention that her conviction for illegal use of public funds (technical malversation) was erroneous, is legally tenable because she was charged for

Explain and illustrate the stages of execution of the crime of homicide, taking into account the nature of the offense, the essential element of each of the stages

CRIMES AGAINST PERSONS What are the essential elements of parricide as to relationship? The relationship of the offender with the victim must be: 1. Legitimate, except in the case of parent and child; 2. In the direct line; and 3. By blood, except in the case of a legitimate spouse.

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UST LAW PRE-WEEK NOTES 2017 of execution and the manner of committing such intentional felony as distinguished from felony committed through reckless imprudence. (BAR 2012)

(1) Means used by the malefactors; (2) Nature, location, and number of wounds sustained by the victim; (3) Conduct of the malefactors before, during, or immediately after the killing of the victim; and (4) Circumstances under which the crime was committed; (5) Motive of the offender; and (6) Words he uttered at the time of inflicting the injuries on the victim (De Guzman, Jr. v. People, G.R. No. 178512 November 26, 2014, Bersamin, J.).

Elements of the crime Homicide as an intentional felony has three stages, attempted, frustrated and consummated. In whatever stages homicide is committed, intent to kill must be established for being an indispensible element thereof. However, if the victim died as a consequence of wounds caused by an act committed with malice, intent to kill is conclusively presumed and the crime committed is consummated homicide. Because of this conclusive presumption, lack of intent to kill is not a defense in consummated homicide.

State the rules for the application of the circumstances which qualify the killing to murder. 1. 2.

NOTE: In consummated homicide, the accused may prove lack of intent to kill for purpose of appreciating the mitigating circumstance of praeter intentionem.

3.

But if the victim did not die as a consequence of wounds caused by an act committed with malice, intent to kill must be established beyond reasonable doubt. If intent to kill is proven, the crime committed is frustrated or attempted homicide. If intent to kill is not proven, the crime committed is physical injuries. Thus, lack of intent to kill is a defense in attempted or frustrated homicide.

4.

That murder will exist with any of the circumstances. Where there are more than one qualifying circumstance present, only one will qualify the killing, with the rest to be considered as generic aggravating circumstances. That when the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. That any of the qualifying circumstances enumerated must be alleged in the information.

On his way to buy a lotto ticket, a policeman suddenly found himself surrounded by four men. One of them wrestled the police officer to the ground and disarmed him while the other three companions who were armed with a hunting knife, an ice pick, and a balisong, repeatedly stabbed him. The policeman died as a result of the multiple stab wounds inflicted by his assailants. What crime or crimes were committed? Discuss fully. (BAR 1995)

Nature of the crime If the offender with intent to kill attempted to inflict or inflicted non-mortal wounds upon the victim, he already directly commenced an overt act to commit homicide. Hence, the crime committed is attempted homicide if he failed to inflict mortal wounds upon the victim by reason of some cause or accident other than his own spontaneous desistance. If the offender with intent to kill inflicted mortal wounds upon the victim, he already performed all acts of execution which would produce the homicide as a consequence.

All the assailants are liable for the crime of murder, qualified by treachery, (which absorbed abuse of superior strength) as the attack was sudden and unexpected and the victim was totally defenseless. Conspiracy is obvious from the concerted acts of the assailants. Direct assault would not complex the crime, as there is no showing that the assailants knew that the victim was a policeman; even if there was knowledge, the fact is that he was not in the performance of his official duties, and therefore there is no direct assault.

If death is not produced despite the mortal character of the wounds due to causes independent of the will of the offender, the crime committed is frustrated homicide.

Pascual operated a rice thresher in Barangay Napnud where he resided. Renato, a resident of the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly resented by Pascual. One afternoon Pascual, and his two sons confronted Renato and his men who were operating their mobile rice thresher along a feeder road in Napnud. A heated argument ensued. A barangay captain who was fetched by one of Pascual’s men tried to appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the intervention of the barangay captain and hacked him to death. What crime was committed by Pascual? Discuss fully. (BAR 1995)

If death is produced, the crime committed is consummated homicide. In this situation, all the elements necessary for execution and accomplishment of homicide are present if the victim dies due to the wounds inflicted by the offender with the intent to kill. Intentional felony and culpable felony Homicide regardless of stages must be committed with malice (general intent) and intent to kill (specific intent). Even if there is no intent to kill and evil intent, the offender is liable for culpable felony if the victim dies or was injured as a result of the recklessness of the former. If there is no intent to kill, evil intent and recklessness on the part of the accused, he is not liable for his intentional act, which caused the death of or injury upon the victim because of the exempting circumstance of accident.

Pascual committed the qualified direct assault with homicide. (Arts. 148 and 249 in relation to Art. 48. RPC). A barangay chairman, is in law (Art. 152), a person in authority and if he is attacked while in the performance of his official duties or on the occasion thereof the felony of direct assault is committed.

Cite five (5) factors in ascertaining intent to kill.

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CRIMINAL LAW of reason or otherwise unconscious. Since she is suffering from an incapacity, being incompetent on account of her mental age, the parents have the right to file the complaint for rape.

Art. 48, RPC, on the other hand, provides that if a single act produces two or more grave or less grave felonies, a complex crime is committed. Here, the single act of the offender in hacking the victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave.

XXX (then a 10 year-old boy) requested his mother to pick up Ricalde at McDonald’s Bel-Air, Sta. Rosa. Ricalde, then 31 years old, is a distant relative and textmate of XXX. After dinner, XXX’s mother told Ricalde to spend the night at their house as it was late. He slept on the sofa while XXX slept on the living room floor. It was around 2:00 a.m. when XXX awoke as "he felt pain in his anus and stomach and something inserted in his anus." He saw that Ricalde "fondled his penis." When Ricalde returned to the sofa, XXX ran toward his mother’s room to tell her what happened. He also told his mother that Ricalde played with his sexual organ. XXX’s mother armed herself with a knife for self-defense when she confronted Ricalde about the incident, but he remained silent. She asked him to leave. Is Ricalde guilty of the crime of rape?

Dagami concealed Bugna’s body and the fact that he killed him by setting Bugna’s house on fire. What crime or crimes did Dagami commit? A. B. C. D.

Murder, the arson being absorbed already Separate crimes of murder and arson Arson, the homicide being absorbed already Arson with murder as a compound crime

A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were attacked by X, Y and Z members of a rival fraternity. A rumble ensued in which the above-named members of the two fraternities assaulted each other in confused and tumultuous manner resulting in the death of A. As it cannot be ascertained who actually killed A, the members of the two fraternities took part in the rumble and were charged for death caused in a tumultuous affray. Will the charge prosper? (2010 BAR)

Yes, all the elements of rape is present in the case at bar. Rape under the second paragraph of Article 266-A is also known as "instrument or object rape," "gender-free rape," or "homosexual rape." Any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. The gravamen of rape through sexual assault is "the insertion of the penis into another person’s mouth or anal orifice, or any instrument or object, into another person’s genital or anal orifice’’ (Ricalde v. People, G.R. No. 211002, January 21, 2015).

No, the charge of death caused in a tumultuous affray will not prosper. In death caused by tumultuous affray under Art. 251 of the RPC, it is essential that the persons involved did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. In this case, there is no tumultuous affray since the participants in the rumble belong to organized fraternity.

AAA, a 67-year-old woman, was fast asleep when Bill covered her mouth, threatened her with a knife and told her not to scream because he will have sexual intercourse with her. Thereafter, he removed AAA’s underwear. However, his penis was not yet erected so he toyed with AAA’s sexual organ by licking it. He then made his way up and tried to suck AAA’s tongue. Once done, Bill held his penis and inserted it to AAA’s vagina. In his defense, bill argued that during the entire alleged incident AAA never reacted at all. Is Bill guilty of rape?

State the effects of the reclassification of rape into a crime against person (BAR 1993) 1.

2.

The procedural requirement of consent of the offended party to file the case is no longer needed because this is now a public crime, unlike when it was still classified as a crime against chastity; and There is now an impossible crime of rape because impossible crimes can only be committed against persons or property.

AJ, a medical student, was a boarder in the house of Mr. and Mrs. M who had a good-looking 25-year old retarded daughter with the mental age of an 11-year old girl. One day when the couple were out, Perlita, the retarded daughter, entered AJ’s room, came near him and started kissing him. He tried to avoid her. But she persisted. They had sexual intercourse. This was repeated every time Perlita’s parents were out until Perlita got pregnant. Mr. and Mrs. M filed a complaint of rape against AJ who claimed that it was Perlita who seduced him that Perlita was intelligent, clearly understood what she was doing, and that since Perlita was already 25 years old and did not herself filed the complaint, her parents had no personality to file the complaint for rape. How would you resolve the case? (1987 BAR)

Yes, Bill is guilty of rape. AAA was already 67 years of age when she was raped in the dark by Bill who was armed with a knife, a woman of such advanced age could only recoil in fear and succumb into submission. In any case, with such shocking and horrifying experience, it would not be reasonable to impose upon AAA any standard form of reaction. Different people react differently to a given situation involving a startling occurrence (People v. Jastiva, G.R. No. 199268, February 12, 2014). One night while AAA was sleeping, XXX hugged her and kissed her nape and neck. He then undressed AAA and went on top of her and held her hands. Afterwards, he parted AAA’s legs and then tried to insert his penis into her vagina. XXX’s penis touched AAA’s vagina but he stopped as soon as AAA’s cry got louder. He then threatened AAA not to disclose the incident. What crime is committed?

The contention of AJ cannot be sustained. Sexual intercourse with Perlita, who is a mental retardate, although 25 years old but with a mental age of 11 years old girl is rape. She is the same class as a woman deprived

XXX is guilty of attempted rape. Without showing of such carnal knowledge, XXX is guilty only of attempted rape.

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UST LAW PRE-WEEK NOTES 2017 Mere touching cannot be considered as slight penetration. Since XXX did not succeed in inserting his penis in AAA’s female organ he cannot be convicted of consummated rape. Slightest penile penetration is necessary (People v. Pareja, G.R. No. 188979, September 5, 2012).

2. 3. 4.

Sexy boarded a taxi on her way home from a party. Because she was already tipsy, she fell asleep. Pogi, the taxi driver, decided to take advantage of the situation and drove Sexy to a deserted place where he raped her for a period of two (2) weeks. What crime did Pogi commit? (BAR 2014)

Cruz and his wife employed AAA and BBB to help them in their plastic and glassware business during a town fiesta in La Union. After fixing the wares in order for display they went to bed inside the tents. Less than an hour passed, AAA was awakened with Cruz on top of her mashing her breast and touching her vagina. AAA fought back and was able to free herself from Cruz. She went out to seek for help. Is Cruz guilty for the crime of attempted rape?

Pogi committed the special complex crime of Kidnapping and Serious Illegal Detention with Rape. All the elements of Kidnapping and Serious Illegal Detention are present. Pogi, a private individual, kidnapped and detained Sexy by bringing her to a deserted place. Said detention is illegal and is serious because it lasted for more than 3 days and the victim is a female.

No, Cruz is not guilty of attempted rape. The intent to commit rape must be inferred from overt acts directly leading to rape. In embracing AAA and touching her vagina and breasts did not directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the position to penetrate her when he was on top of her deterred any inference about his intent to lie with her. At most, his acts reflected lewdness and lust for her (Cruz v. People, G.R. No. 166441, October 8, 2014).

The special complex crime of Kidnapping and Serious Illegal Detention with Rape resulted because Sexy, the victim of the kidnapping and detention, was raped as a consequence of the detention. (Article 267, last par., RPC) Since it is a special complex crime, regardless of the number of times the victim had been raped, there is only one single indivisible offense of Kidnapping and Serious Illegal Detention with Rape.

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Anniban and Lerio are neighbors. Lerio entered the house of Anniban, laid down beside the infant child of Anniban and began chatting with her. Lerio then told Anniban that she would take the infant outside to bask him under the morning sun but the latter refused. A few minutes later, Anniban realized that Lerio and her child were no longer in the house. After searching, Anniban found her infant child, Lerio’s boyfriend, and Lerio on board a vessel. Lerio, together with co-accused were charged with Kidnapping of a Minor. Are they liable as charged?

While walking alone on her way home from a party, Mildred was seized at gun point by Felipe and taken on board a tricycle to a house some distance away. Felipe was with Julio, Roldan, and Lucio, who drove the tricycle. At the house, Felipe, Julio, and Roldan succeeded in having sexual intercourse with Mildred against her will and under the threat of Felipe's gun. Lucio was not around when the sexual assaults took place as he left after bringing his colleagues and Mildred to their destination, but he returned everyday to bring food and the news in town about Mildred's disappearance. For five days, Felipe, Julio and Roldan kept Mildred in the house and took turns in sexually assaulting her. On the 6th day, Mildred managed to escape; she proceeded immediately to the nearest police station and narrated her ordeal.

Yes. The following are the elements of kidnapping under Art. 267, par. 4 of the Revised Penal Code: 1. 2. 3. 4.

The offender is a private individual; He kidnaps or detains another, or in any other manner deprives the latter of his or her liberty; The act of detention or kidnapping is illegal; and The person kidnapped or detained is a minor, female or a public officer.

What crime/s did Felipe, Julio, Roldan, and Lucio commit and what was their degree of participation? (BAR 2013)

The prosecution has adequately and satisfactorily proven that accused-appellant is a private individual; that accused-appellant took one-month old baby Justin Clyde from his residence, without the knowledge or consent of, and against the will of his mother; and that the victim was a minor, one-month old at the time of the incident, the fact of which accused-appellant herself admitted (People v. Lerio, G.R. No. 209039, December 09, 2015).

Felipe, Julio, Roldan and Lucio are all liable for the special complex crime of Kidnapping and Serious Illegal Detention with Rape. It was sufficiently proved that the 4 accused kidnapped Mildred and held her in detention for 5 days and carnally abused her. Since it is a special complex crime, no matter how many times the victim had been raped, the resultant crime is only one kidnapping and serious illegal detention with rape. The composite acts are regarded as a single indivisible offense with only one penalty. It is illegal detention and not forcible abduction since it was evident that the intent was to detain the victim.

What are the qualifying circumstances of the crime of kidnapping and serious illegal detention? 1.

When the victim is killed or dies as a consequence of the detention; When the victim is raped; or When the victim is subjected to torture or dehumanizing acts.

If the purpose of the kidnapping is to extort ransom; NOTE: If the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial (People v. Ramos, G.R. No. 178039, January 19, 2011).

As to the degree of their participation, Felipe, Julio, Roldan and Lucio are all liable as principals. There was

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CRIMINAL LAW implied conspiracy as they acted toward a single criminal design or purpose(People v. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Although Lucio was not around when the sexual assaults took place, there is complicity on his part as he was the one who drove the tricycle at the time the victim was seized and he returned everyday to bring food and news to his conspirators.

Jervis and Marlon committed the crime of robbery, while Jonathan committed the special complex crime of robbery with homicide. Jervis and Marlon are criminally liable for the robbery only because that was the crime conspired upon and actually committed by them, assuming that the taking of the cellphones and the cash from the bank’s customers was effected by intimidation. They will not incur liability for the death of the pedestrian because they have nothing to do with it. Only Jonathan will incur liability for the death of the pedestrian, aside from the robbery, because he alone brought about such death. Although the death caused was not intentional but accidental, it shall be a component of the special complex crime of robbery with homicide because it was committed in the course of the commission of the robbery.

Paz Masipag worked as a housemaid and yaya of the one-week old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked Martin for a cash advance of P1,000.00 but Martin refused. One morning, Paz gagged the mouth of Martin’s son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000.00 as ransom for the release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? Explain. (BAR 2005)

What is the criminal liability of a person who, on the occasion of a robbery, kills a bystander by accident? The person is liable for robbery with homicide because the Revised Penal Code punishes the crimes as only one indivisible offense when a killing, whether intentional or accidental, was committed by reason or on occasion of a robbery (Art. 294[1], RPC; People v. Mabasa, 65 Phil. 568 [1938]).

Paz committed the special complex crime of kidnapping with homicide under Art. 267, RFC as amended by R.A. 7659. Under the law, any person who shall detain another or in any manner deprive him of liberty and the victim dies as a consequence is liable for kidnapping with homicide and shall be penalized with the maximum penalty. In this case, notwithstanding the fact that the one-week old child was merely kept in the attic of his house, gagged with stockings and placed in a box sealed with tape, the deprivation of liberty and the intention to kill becomes apparent. Though it may appear that the means employed by Paz was attended by treachery (killing of an infant), nevertheless, a separate charge of murder will not be proper in view of the amendment. Here, the term "homicide" is used in its generic sense and covers all forms of killing whether in the nature of murder or otherwise. It is of no moment that the evidence shows the death of the child took place three minutes after the box was sealed and the demand for the ransom took place in the afternoon. The intention is controlling here, that is, ransom was demanded.

What is essential for a conviction for the crime of robbery with homicide? What is for the prosecution to establish the offender’s intent to take personal property before the killing, regardless of the time when the homicide is actually carried out. In cases when the prosecution failed to conclusively prove that homicide was committed for the purpose of robbing the victim, no accused can be convicted of robbery with homicide (People v. Chavez, G.R. No. 207950, September 22, 2014). Clepto went alone to a high-end busy shop and decided to take one of the smaller purses without paying for it. Overcame by conscience, she decided to leave her own purse in place of the one she took. Her act was discovered and Clepto was charged with theft. She claimed that there was no theft, as the store suffered no injury or prejudice because she had left a purse in place of the one she took. Comment on her defense. (BAR 2014)

CRIMES AGAINST PROPERTY Can there be a crime of robbery with attempted rape?

The defense of Clepto has no merit. Theft is already consummated from the moment Clepto took possession of one of the smaller purses inside a high-end shop, without paying for it. She took the personal property of another, with intent to gain, without the consent of the latter. Damage or injury to the owner is not an element of theft, hence, even if she left her purse in lieu of the purse she took, theft is still committed.

The crime cannot be a complex crime of robbery with attempted rape under Article 48, because a robbery cannot be a necessary means to commit attempted rape; nor attempted rape, to commit robbery (People v. Cariaga, C.A., 54 O.G. 4307). Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon went inside the bank, but were unable to get any money from the vault because the same was protected by a time-delay mechanism. They contended themselves with the customer’s cellphones and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan pulled the car out of the curb, hitting a pedestrian which resulted in the latter’s death. What crime or crimes did Jervis, Marlon and Jonathan commit? Explain your answer. (BAR 2007)

When is the crime of theft qualified? 1. 2.

If theft is committed by a domestic servant; If the theft is committed with grave abuse of confidence; NOTE: If the offense is to be qualified by abuse of confidence, the abuse must be grave, like an accused who was offered food and allowed to sleep in the house of the complainant out of the latter’s pity and

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UST LAW PRE-WEEK NOTES 2017 charity, but stole the latter’s money in his house when he left the place. 3. 4. 5. 6.

It is settled that a person may be charged and convicted separately of illegal recruitment under Republic Act No. 8042, in relation to the Labor Code, and estafa under Article 315, paragraph 2(a) of the Revised Penal Code.

If the property stolen is a motor vehicle, mail matter or large cattle; If the property stolen consist of coconuts taken from the premises of a plantation; If the property stolen is fish taken from a fishpond or fishery; or If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

The Court explicated in People v. Cortez and Yabut that: In this jurisdiction, it is settled that the offense of illegal recruitment is malumprohibitum where the criminal intent of the accused is not necessary for conviction, while estafa is malum in se where the criminal intent of the accused is crucial for conviction. Conviction for offenses under the Labor Code does not bar conviction for offenses punishable by other laws. Conversely, conviction for estafa under par. 2(a) of Art. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the Labor Code. It follows that one’s acquittal of the crime of estafa will not necessarily result in his acquittal of the crime of illegal recruitment in large scale, and vice versa (People v. Ochoa, G.R. No. 173792, August 31, 2011).

Madam X, a bank teller, received from depositor Madam Y, a check payable to cash in the amount of P1 million, to be deposited to the account of Madam Y. Because the check was not a crossed check, Madam X credited the amount to the account of her good friend, Madam W, by accomplishing a deposit slip. Seven (7) days after, Madam X contacted her good friend, Madam W and told her that the amount of P1 million was wrongfully credited to Madam W, thus, Madam X urged Madam W to withdraw the amount of P1 million from her account and to turn over the same to MadamX. As a dutiful friend, Madam W readily acceded. She was gifted by Madam X with an expensive Hermes bag after the withdrawal of the amount. What crime/s, if any, did Madam X and Madam W commit? Explain. (BAR 2014)

Solina met with several people and gave the impression that she had the capability to facilitate applications for employment as factory workers in Japan in lieu of a fee amounting to Php20, 000.00. These people believed Solina paid the said amount, however no such promise materialized and the money taken as a fee was never returned. Is Solina guilty of the crime of illegal recruitment in large scale as well as estafa under Article 315 par. 2 (a) of the RPC?

Madam X committed the crime of Qualified Theft under Article 310, RPC. When Madam X, a bank teller, received the check payable to cash in the amount of P1million for deposit to the account of Madam Y, what was transferred to her was merely the physical or material possession thereof. Hence, her subsequent misappropriation of the amount shall constitute theft, qualified by grave abuse of confidence. There is grave abuse of confidence because the relationship of guardianship, dependence, and vigilance between the depositor and the bank created a high degree of confidence between them which Madam X, as the bank teller representing the bank, abused.

Yes, Solina is guilty of the crime of illegal recruitment in large scale as well as estafa under Article 315 par. 2 (a) of the RPC. It is settled that a person may be charged and convicted separately of illegal recruitment under R.A. 8042 and estafa under Article 315 (2) (a) of the RPC. In this case all the elements of the crime of illegal recruitment in large scale are present: (1) the offender has no valid license or authority required by law to enable him to lawfully engage in recruitment and placement of workers; (2) the offender undertakes any of the activities within the meaning of “recruitment and placement” under Article 13 (b) 14 of the Labor Code, or any of the prohibited practices enumerated under Article 34 of the said Code (now Section 6 of R.A. 8042); and (3) the offender committed the same against three (3) or more persons, individually or as a group.

What does fraud and deceit in the crime of estafa mean? In Alcantara v. CA, the Court, citing People v. Balasa, explained the meaning of fraud and deceit, viz.: Fraud in its general sense is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which another is cheated.

Likewise Solina is also liable for estafa under Article 315 (2) (a) of the RPC when she defrauded the private complainants into believing that she had the authority and capability to facilitate applications for employment as factory workers in Japan in lieu of a fee amounting to Php20, 000.00 in which the complainants complied with resulting to their own damage and prejudiced when such promise for employment never materialized (People v. Solina, G.R. No. 196784, January 13, 2016). Ernesto Pideli, assisted his brother, Wilson, and his business partner, Placido Cancio, in purchasing construction materials for a project by allowing them to use his credit line in Mt. Trail Farm Supply and Hardware (MTFSH). At the completion of their project, the business partners Wilson and Cancio heeded to the advice of Ernesto that their net income of P130, 000.00 should be applied first to settle their balance to MTFSH, and they entrusted the entire

Deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury (Lateo v. People, G.R. No. 161651, June 8, 2011). Separate charges for estafa and illegal recruitment

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CRIMINAL LAW amount to Ernesto, with express instructions to pay MTFSH and deliver the remaining balance to them. Afterwards, Ernesto refused to give Cancio his share in the net income despite the latter’s repeated demands. Is Ernesto guilty of Theft or Estafa?

Yes. All the elements are present, in which the first element was admitted by Villanueva, who confirmed that she had issued the checks to Madarang in exchange for the jewelry she had purchased. There is no question that Madarang accepted the checks upon the assurance of Villanueva that they would be funded upon presentment. The second element was likewise established because the checks were dishonored upon presentment due to insufficiency of funds or because the account was already closed. The third element was also proved by the showing that Madarang suffered prejudice by her failure to collect from Villanueva (People v. Villanueva, G.R. No. 163662, February 25, 2015).

Ernesto is guilty of Theft, not Estafa. The Court has consistently ruled that not all misappropriation is estafa. The principal distinction between the two crimes is that in theft, the thing is taken while in estafa, the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical or de facto possession of the thing, his misappropriation of the same constitutes theft, such as in the case at bar, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa (Pideli v. People, G.R. No. 163437, February 13, 2008).

Sato, through fraudulent misrepresentations, was able to secure the signature and thumbmark of Manolita Gonzales on a Special Power of Attorney where his daughter is made attorney-in-fact and sold four valuable pieces of land in Tagaytay City. Estafa under Art 315 (3) was filed against him in the RTC. Sato moved for the quashal of the Information claiming that under Art 332, his relationship with Manolita Gonzales, his mother-in-law, was an exempting circumstance. Is Sato exempted from criminal liability under Art 332 for the complex crime of estafathrough falsification of public documents?

Carganillo was alleged to have entered a Kasunduan with Teresita Lazaro, a rice trader in Nueva Ecija. Teresita gave the accused 132,000.00 pesos for the purpose of buying palay to be delivered on or before Nov. 28, 1998 to Lazaro Palay Buying Station. In their Kasunduan, the parties agreed that for every kilo of palay bought, the petitioner shall earn a commission of twenty centavos (P0.20). But if no palay is purchased and delivered on November 28, the petitioner must return the P132, 000.00 to Teresita within one (1) week after November 28. However, no palay was received on the agreed day and the 132,000.00 was never returned. Then Teresita made oral and written demands to the petitioner for the return of the P132, 000.00 but her demands were simply ignored. Is Carganillo guilty of the crime of estafa?

No, Sato is not exempted from criminal liability under Art 332 for the complex crime of estafa through falsification of public documents. The absolutory cause under Art 332 is meant to address only simple crime of theft, swindling, and malicious mischief. When the offender resorts to an act that breaches the public interest in the integrity of public documents as to violate the property rights of a family member, he is removed from the protective mantle of the absolutory cause under Art 332 (Intestate Estate of Manolita Gonzales, G.R. No. 181409, February 11, 2010).

Yes. All elements of estafa are present. First, that money, goods or other personal property is received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same. The petitioner received in trust the amount of P132,000 from Teresita for the purpose of buying palay. Second, that there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt. There was misappropriation when petitioner failed to conform in their Kasunduan, not delivering the agreed palay nor returning the 132,000 for such failure of delivery of palay. Third, that such misappropriation or conversion or denial is to the prejudice of another. The acts of petitioner were to the prejudice of Teresita. Lastly, that there is demand by the offended party to the offender. Teresita demanded for the return of the P132,000 and this was shown in her oral and written demands to the petitioner (Carganillo v. People, G.R. No. 182424, September 22, 2014).

CRIMES AGAINST CHASTITY ELEMENTS OF ADULTERY 1.

2.

Madarang went to Villanueva’s residence and was able to sell to Villanueva five sets of jewelry. Villanueva made out nine checks, eight of which were postdated for the payment of such jewelries. Madarang received the checks because of Villanueva’s assurance that they would all be honored upon presentment. However, the drawee bank paid only one of the eight postdated checks since the remaining checks were dishonored on account of insufficient funds and account closed. Is Madarang liable for estafa?

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To convict a woman for adultery, it is necessary: a. That she is a married woman; and b. That she unites in sexual intercourse with a man not her husband. To convict a man for adultery, it is necessary: a. That he had actual intercourse with a married woman; and b. That he commits the act with the knowledge that

ELEMENTS OF CONCUBINAGE 1.

Man must be married;

2.

He committed any of the following acts: a. Keeping a mistress in the conjugal dwelling; b. Having sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or c. Cohabiting with her in any other place.

3.

As regards the woman, she must know him to be married.

UST LAW PRE-WEEK NOTES 2017 said woman is married.

Yes, Vitangcol is liable of the crime of bigamy. Bigamy consists of the following elements: (1) that the offender has been legally married; (2) that the first marriage had not yet been legally dissolved or in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity. In this case, all the elements of bigamy are present, since Vitangcol was still legally married to Gina when he married Alice. His defense of Certification from the Office of the Civil Registrar implying that there is no record of the marriage license issued to Vitangcol and his first wife Gina will not lie since marriages are not dissolved through mere certifications by the civil registrar. Hence, Vitangcol is still considered to be legally married to Gina when he married Alice and is not exculpated from the bigamy charged (Vitangcol v. People, G.R. No. 207406, January 13, 2016).

NOTE: Adultery as to the male sexual partner of the married woman. AAA was about to enter the school campus with her friend when Cayanan, her brother-in-law, arrived on a tricycle and pulled AAA towards the tricycle. She tried shouting but Cayanan covered her mouth. Cayanan brought AAA to a dress shop to change her clothes since she was in her school uniform, and later to a Jollibee outlet. Afterwards, he brought her to his sister’s house and raped her inside a bedroom. AAA told her mother and brother of the incident and she was shown to be suffering from depressive symptoms and presence of sexual abuse. Cayanan interposed the sweetheart defense and presented two love letters supposedly written by AAA. The RTC and CA convicted Cayanan of Forcible Abduction with Qualified Rape. Is Cayanan guilty for the crime of forcible abduction with qualified rape?

Maine was validly married to Liko on June 1, 2015. Liko, however, died a month after the celebration of their marriage. Three months after the death of her husband, Maine found another love of her life in the name of Darney. They eventually fell in love with each other. Darney married Maine on October 3, 2015. Is Maine liable for any crime?

No, Cayanan should only be liable for qualified rape. Forcible abduction is absorbed in the crime of rape if the real objective of the accused is to rape the victim. In this case, circumstances show that AAA’s abduction was with the purpose of raping her (People v. Cayanan, G.R. No. 200080, July 18, 2014).

No. R.A. 10655 (March 13, 2015) decriminalized the act of premature marriage. Article 1 of the said law provides that “without prejudice to the provisions of the Family Code on paternity and filiation, Article 351 of Act No. 3815, otherwise known as the Revised Penal Code, punishing the crime of premature marriage committed by a woman, is hereby repealed.”

CRIMES AGAINST CIVIL STATUS A contracted a second marriage while having a subsistent and valid first marriage. The first marriage was declared void ab initio. Subsequently, A was charged with the crime of Bigamy. A contends that the information on Bigamy must be quashed on the ground that there was a declaration of nullity of the previous marriage prior to the filing of the action. Is the contention of A correct?

CRIMES AGAINST HONOR True or false. In the crime of libel, truth is an absolute defense. (BAR 2010) False. Article 361 of the RPC provides that proof of truth shall be admissible in libel cases only if the same imputes a crime or is made against a public officer with respect to facts related to the discharge of their official duties, and moreover must have been published with good motives and for justifiable ends. Hence, "truth" as a defense, on its own, is not enough.

No, the contention of A is wrong. It has been clarified in the Family Code and has been held in a number of cases that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage. xxx Well settled is the rule that criminal culpability attaches to the offender upon the commission of the offense and from that instant, liability appends to him until extinguished as provided by law and that the time of filing of the criminal complaint or information is material only for determining prescription (People v. Odtuhan, G.R. No. 191566, July 17, 2013).

X was charged with the crime of libel. In his defense he contended that he should not be liable for the crime of libel because there is no malice in fact proven by the prosecution since he is merely a responding urban poor leader acting as counsel, defending a member of an association under threat of ejectment from her dwelling place, and thus should be considered as privileged communication. X also contends that there is no proper publication since the libelous remarks were only made in a private correspondence. Are the contentions of X correct?

Vitangcol married Alice Eduardoand begot 3 children. After some time Alice began hearing rumors that her husband was previously married to another woman named Gina Gaerlan. Such marriage was supported by a marriage contract registered with the NSO. This prompted Alice to file a criminal complaint for bigamy against Vitangcol. In his defense, Vitangcol alleges that he already revealed to Alice that he had a “fake marriage” with his college girlfriend Gina and that there is a Certification from the Office of the Civil Registrar that there is no record of the marriage license issued to Vitangcol and his first wife Gina which makes his first marriage as void. Is Vitangcol liable of the crime of bigamy?

X is criminally liable of the crime of libel. When the imputation is defamatory, the prosecution need not prove malice on the part of X (malice in fact) for the law already presumes that his imputation is malicious (malice in law). There is publication when that same letter was furnished to all those concerned. A written letter containing libelous matter cannot be classified as

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CRIMINAL LAW privileged when it is published and circulated among the public (Buatisv. People, G.R. No. 142509, March 24, 2006).

statements only to the person or persons who have some interest or duty in the matter alleged, and who have the power to furnish the protection sought by the author of the statement. A written letter containing libelous matter cannot be classified as privileged when it is published and circulated among the public.

Alexis filed an action for damages arising from libel and defamation against Alejandro on account of a published letter containing the following: This is to notify you and your staff that one ALEXIS "DODONG" C. ALMENDRAS, a brother, is not vested with any authority to liaison or transact any business with any department, office, or bureau, public or otherwise, that has bearing or relation with my office, mandates or functions. x xx.

CRIMINAL NEGLIGENCE What is reckless imprudence? Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing of failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

Noteworthy to mention, perhaps, is the fact that Mr. Alexis “Dodong” C. Almendras, a reknown blackmailer, is a bitter rival in the just concluded election of 1995 who ran against the wishes of my father, the late Congressman Alejandro D. Almendras, Sr. He has caused pain to the family when he filed cases against us, his brothers and sisters, and worst, against his own mother.

What is simple imprudence? Simple imprudence consists in the lack of precaution displayed in cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.

I deemed that his act of transacting business that affects my person and official functions is malicious in purpose, done with ill motive and part of a larger plan of harassment activities to perforce realise his egoistic and evil objectives. May I therefore request the assistance of your office in circulating the above information to concerned officials and secretariat employees of the House of Representatives. x xx

Y while alighting from his vehicle was hit by X with his car. This caused Y to be thrown four meters away from his jeepney. X was charged with frustrated murder and convicted in the RTC of frustrated homicide. Upon appeal in the CA, the crime was modified to reckless imprudence resulting in serious physical injuries. X contends that he is not liable for such crime because he lacked criminal intent; that he was not negligent in driving his pick-up truck; and that the CA should have appreciated voluntary surrender as a mitigating circumstance in his favor. Is X’s contention correct?

Alejandro in his defense insists that he has the legal, moral, or social duty to make the communication, or at least, had an interest to protect, being then a Congressman duty-bound to insulate his office and his constituents from the dubious and mistrustful pursuits of his elder brother. Moreover, the letters were also not meant to be circulated or published. They were sent merely to warn the individuals of respondent’s nefarious activities, and made in good faith and without any actual malice. Is Alejandro guilty of Libel?

The contention of X is wrong. To constitute the offense of reckless driving, the act must be something more than a mere negligence in the operation of the motor vehicle, but a willful and wanton disregard of the consequences is required. The fact that Y’s body was thrown four (4) meters away from his jeep showed that X was driving his pick-up at a fast speed when he overtook the jeep of Y.

Yes. Under Article 354, every defamatory imputation is presumed to be malicious, even if true, if no good intention and justifiable motive is shown. As an exception to the rule, the presumption of malice is done away with when the defamatory imputation qualifies as privileged communication.

The mitigating circumstance of voluntary surrender cannot be appreciated in his favor. Paragraph 5 of Article 365, Revised Penal Code, expressly states that in the imposition of the penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in Article 64 of the Revised Penal Code (Mariano v. People, G.R. No. 178145, July 7, 2014).

In order to qualify as privileged communication under Article 354, Number 1, the following requisites must concur: 1.

2.

3.

The person who made the communication had a legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest may either be his own or of the one to whom it is made; The communication is addressed to an officer or a board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection sought; and The statements in the communication are made in good faith and without malice.

X, while descending from a curved path, collided with a motorcycle, killing Y, one of its passengers, and causing serious physical injuries to the two other victims. The body of Y was loaded to the vehicle of X but the latter’s engine would not start; thus the body was loaded in a different vehicle. The jack of X was used to extricate the body of Y from being pinned under the vehicle of X. X, in his defense, claimed that it was not his fault that the tricycle swerved in his direction. X was charged with Reckless Imprudence Resulting to Homicide with Double Serious Physical Injuries and Damage to Property under Article 365 in relation to Article 263 of the RPC “with the aggravating circumstance that accused failed to lend on the spot to the injured party such help that was in

Alejandro’s contention that he has the legal, moral or social duty to make the communication cannot be countenanced because he failed to communicate the

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UST LAW PRE-WEEK NOTES 2017 his hands to give”. Should the court appreciate the alleged aggravating circumstance?

2. ACCOMPLICES a.

No. The aggravating circumstance “that accused failed to lend on the spot to the injured party such help that was in his hands to give” should not be appreciated. Verily, it is the inexcusable lack of precaution or conscious indifference to the consequences of the conduct which supplies the criminal intent in Article 365. The limiting element in the last paragraph of Article 365 of the RPC, which imposes the penalty next higher in degree upon the offender who “fails to lend on the spot to the injured parties such help as may be in his hands to give.”, according to case law, (a) is dependent on the means in the hands of the offender, i.e., the type and degree of assistance that he/she, at the time and place of the incident, is capable of giving; and (b) requires adequate proof. X was able to supply the help according to the extent of capabilities (Gonzaga v. People, G.R. No. 195671, January 21, 2015).

b.

What are the legal requirements before initiation rites may be conducted? 1. 2. 3.

SPECIAL PENAL LAWS ANTI-HAZING LAW What is hazing? Hazing is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury (Sec. 1, RA 8049).

2. 3.

1.

2.

That there is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization; That there must be a recruit, neophyte or applicant of the fraternity, sorority or organization; and That the recruit, neophyte or applicant is placed in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury (Dungo v. People, G.R. No. 209464, July 01, 2015).

1.

2.

3.

1. PRINCIPALS

b.

c.

d.

Hazing or initiation rites in any form or manner by a fraternity, sorority or organization without prior written notice to the school authorities or head of organization 7 days before the conduct of such initiation; and Infliction of any physical violence during initiation rites.

What are the instances when the maximum penalty must be imposed for violation of the Anti-Hazing Law?

Who are the persons liable for violation of AntiHazing Law?

a.

That the fraternity, sorority or organization has a prior written notice to the school authorities or head of organization; The said written notice must be secured at least seven (7) days before the conduct of such initiation; That the written notice shall indicate: a. The period of the initiation activities which shall not exceed three (3) days; b. The names of those to be subjected to such activities; and c. An undertaking that no physical violence be employed by anybody during such initiation rites (Dungo v. People, supra).

What are the punishable acts under the Anti-Hazing Law?

What are the elements of hazing? 1.

The owner of the place where the hazing is conducted, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring; and The school authorities and faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring.

4.

The officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm; The parents of the officer or member of the fraternity, sorority or organization, when they have actual knowledge of the hazing conducted in their home but failed to take any action to prevent the same from occurring; The officers, former officers or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting hazing were committed; and Persons actually present during the initiation who fail to prove that they acted to prevent the same.

5.

When the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; When the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting; When the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation; When the hazing is committed outside of the school or institution; or When the victim is below 12 years of age at the time of the hazing (Sec. 4, RA 8049). ANTI-GRAFT AND CORRUPT PRACTICES ACT

Cite an example of an act which constitute as graft and corrupt practices and state the elements constituting the crime. Sec. 3 (e) Causing any undue injury to any part including the government, or giving any private party any unwarranted benefits, advantage, or preference in the discharge of his official, administrative or judicial

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CRIMINAL LAW functions through manifest partiality, evident bad faith or gross inexcusable negligence.

What pre-conditions are necessary to be met or satisfied before preventive suspension may be ordered? (BAR 1999)

The elements are as follows: 1. 2. 3.

The pre-conditions necessary to be met or satisfied before a suspension may be ordered are: (1) there must be proper notice requiring the accused to show cause at a specific date of hearing why he should not be ordered suspended from office pursuant to R.A. 3019, as amended; and (2) there must be a determination of a valid information against the accused that warrants his suspension.

The said offender is public officer who performs official, administrative or judicial functions That said official acted with manifest partiality, evident bad faith or gross inexcusable negligence The said official caused any undue injury to any party, including the government, or gave any private unwarranted benefits, advantage, or preference in the discharge of his official functions.

An administrative case and a violation of R.A. 3019 was filed against a public officer. Insofar as the violation of RA 3019 is concerned, the public officer was placed under preventive suspension for 90 days. And then thereafter, the Office of the Ombudsman placed him again under preventive suspension on account of the administrative case. The public officer contended that since he has already been placed under preventive suspension in the RA 3019 case, he can no longer be placed under preventive suspension in the administrative case. Is the contention of the public officer correct?

How many crimes are mentioned in this example? There are two (2) crimes mentioned. The SC said that the law used the disjunctive word “or”, hence two crimes are mentioned under Section 3(e) — (1) Causing any undue injury to any party (2) Giving any private party any unwarranted benefit, advantage or preference. Atty. David Loste, President of the Eastern Samar Chapter of the IBP sent a letter to the Office of the Ombudsman, praying for an investigation into the alleged transfer of then Mayor Francisco Adalim, an accused in a criminal case for murder, from the provincial jail of Eastern Samar to the residence of then Governor Ruperto A. Ambil, Jr. The NBI filed a Report recommending the filing of criminal charges against Governor Ambil, Jr. for violation of Section 3(e) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act, as amended). It was alleged that the detention prisoner Mayor Adalim was released from jail and allowed to stay at Ambil’s residence for a period of 85 days, without any court order authorizing such transfer. Thus, Ambil in the performance of his official functions, had given unwarranted benefits and advantages to detainee Mayor Francisco Adalim to the prejudice of the government. Ambil admitted the allegations in the information. They argued, however, that Adalim’s transfer was justified considering the imminent threats upon his person and the dangers posed by his detention at the provincial jail. This threat was that of Akyatan's gesture of raising a closed fist at Adalim. Can Ambil Jr. be held liable?

No. It is clear that criminal and administrative cases are distinct from each other. The settled rule is that criminal and civil cases are altogether different from administrative matters, such that the first two will not inevitably govern or affect the third and vice versa. Verily, administrative cases may proceed independently of criminal proceedings. Criminal actions will not preclude administrative proceedings, and vice-versa, insofar as the application of the law on preventive suspension is concerned (Villaseor v. Sandiganbayan, G.R. No. 180700, March 4, 2008). May a public officer charged under Section 3(b) of Republic Act No. 3019 [“directly or indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself of for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law”] also be simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal Code? Explain. (BAR 2010)

Yes. Without a court order, Ambil and Apelado transferred Adalim and detained him in a place other than the provincial jail. The latter was housed in much more comfortable quarters, provided better nourishment, was free to move about the house and watch television. Ambil readily extended these benefits to Adalim on the mere representation of his lawyers that the mayor's life would be put in danger inside the provincial jail (Ambil Jr. v. Sandiganbayan, G.R. No. 175457, July 6, 2011).

Yes, a public officer charged under Sec. 3 (b) of RA 3019 (Anti-Graft and Corrupt Practices Act) may also be charged simultaneously or successively for the crime of direct bribery under Art. 210 of the Revised Penal Code because two crimes are essentially different and are penalized under distinct legal philosophies. Violation of Sec. (b) of RA 3019 is a malum prohibitum, the crime under Art. 210 of the Code is a malum in se. There is no double jeopardy if a person is charged simultaneously or successively for violation of Section 3 of RA 3019 and the Revised Penal Code (Merendillo v. People, G.R. Nos. 142369-70, April 13, 2007).

Who are public officers? (BAR 1999) Public Officers are persons who, by direct provision of the law, popular election or appointment by competent authority, take part in the performance of public functions in the Government of the Philippines, or perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class. (Art. 203, RPC)

During the audit report conducted by the COA Regional Office it was found out that the accused herein, Venancio Nava, succeeded in persuading seven (7) school division superintendents to use the allotment for the purchase of Science Laboratory Tools and Devices (SLTD) for the calendar year 1990. However, the said money was supposed to be used for

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UST LAW PRE-WEEK NOTES 2017 the improvement of the school facilities, and it is required that in buying school materials, it must undergo an effective public bidding. Nava persuaded his school division superintendents to ignore the circular requiring public bidding as allegedly, time was of the essence in making the purchases and if not done before the calendar year 1990, the funds allotted will revert back to the general fund. Furthermore, COA found out that the contract that was entered into by Nava sellers exceeded the prevailing market price ranging from 56% to 1,175% based on the mathematical computation done by the COA audit team. The loss of the government was said to be in the amount of PHP 380,013.60. Nava was charged therefore with the violation of Section 3(g) of R.A. No. 3019 for entering on behalf of the government in any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the pubic officer profited or will profit thereby. Is the suit vested with merit?

actually moonlighting elsewhere. Thus, the medical Director caused the withholding of his salary for the periods in question until he submitted his DTRs in May 2000. Can Dr. Chow prosecute the medical director for causing him undue injury in violation of the Anti-Graft and Corrupt Practices Act? A. Yes, since the medical Director acted with evident bad faith. B. No, since the medical director has full discretion in releasing the salary of government doctors. C. Yes, since his salary was withheld without prior hearing. D. No, since Dr. Chow brought it upon himself, having failed to submit the required DTRs. ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT What are the three phases of the "Battered Woman Syndrome"?

Yes, the suit is with merit. In order to be liable for such, the following elements must be present: (i) the accused is a public officer; (ii) the public officer entered into a contract or transaction on behalf of the government; and (iii) the contract or transaction was grossly and manifestly disadvantageous to the government. In this case, Nava is a public officer, who approved the transactions on behalf of the government, which thereby suffered a substantial loss (Nava v. Sandiganbayan, G.R. No. 160211, August 28, 2006).

The three (3) phases of the "Battered Woman Syndrome" are: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving, or nonviolent phase (People v. Genosa, G.R. No. 135981, January 15, 2004). BBB and AAA had a relationship when the latter was still raising her first child borne CCC from a previous relationship. During the relationship with BBB, AAA bore two more children namely, DDD and EEE. To legalize their relationship, BBB and AAA married in civil rights and thereafter, the birth certificates of the children, including CCC’s, was amended to change their civil status to be legitimated by virtue of the said marriage. However, there were fights and arguments which caused them to have strained relationship that lead them to the filing of a case under the VAWC. Pending the Court’s deliberation of the instant case, BBB filed a Manifestation and Motion to Render Judgment Based on a Memorandum of Agreement (MOA). BBB alleges that on July 29, 2013, he and AAA had entered into a compromise anent the custody, exercise of parental authority over, and support of DDD and EEE. Is the case a proper subject of a compromise agreement?

The Mayor of an LGU, along with several local government officials through their official duties, purchased on various occasions, through personal canvass, from ZARO Trading, a total of 142,612 pieces of "walis ting-ting” at either P25 per piece or P15 per piece. The said purchases were made without the required public bidding, and were overpriced. Can the local government officials be held liable for entering a contract which is disadvantageous to the government on account of failure to conduct public bidding, and alleged overpricing based on the unsigned quotation from a walis ting-ting supplier alone? No. Given the factual milieu of this case, the subject contracts would be grossly and manifestly disadvantageous to the government if characterized by an overpriced procurement. However, the gross and manifest disadvantage to the government was not sufficiently shown because the conclusion of overpricing was erroneous since it was not also adequately proven. In finding that the walis ting-ting purchase contracts were grossly and manifestly disadvantageous to the government, the Sandiganbayan relied on the COA's finding of overpricing which was, in turn, based on the special audit team's report. Notably, however, the evidence of the prosecution did not include a signed price quotation from the walis ting-ting suppliers of Parañaque City. Effectively, the prosecution was unable to demonstrate the requisite burden of proof, in order to overcome the presumption of innocence in favor of petitioners (Caunan v. People, G.R. No. 182001-04, September 2, 2009).

No. The instant petition is not a proper subject of a compromise agreement. The law explicitly prohibits compromise on any act constituting the crime of violence against women. Thus, in Garcia v. Drilon, the Court declared that: Violence, however, is not a subject for compromise. xxx A process which involves parties mediating the issue of violence implies that the victim is somehow at fault.xxx (BBB,* v. AAA*, G.R. No. 193225, February 9, 2015). Sharica Mari Go-Tan and Steven Tan were married. Barely six years into the marriage, Go-Tan filed a Petition with Prayer for the Issuance of a Temporary Protective Order (TPO) against Tan and her parentsin-law before the RTC. She alleged that Tan, in conspiracy with her parents-in-law, were causing verbal, psychological and economic abuses upon her. Can the parents-in-law be considered as conspirators and be included in the petition for issuance of a TPO?

Dr. Chow, a government doctor, failed to submit his Daily Time Record (DTR) from January to March 2000 and did not get approval of his sick leave application for April because of evidence that he was

Yes. While Section 3 of R.A. 9262 provides that the offender must be related or connected to the victim by

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CRIMINAL LAW marriage, former marriage, or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the RPC (Go-Tan v. Tan, G.R. No. 168852, September 30, 2008).

the latter threw stones at her daughters, calling them as “Kimi” and for burning one of his daughter’s hair. Did Bongalon acts amounted to child abuse under R.A. 7610?

Del Socorro and Van Wilsem got married in 1990 in Holland. They were blessed with a son. However, in 1995, their marriage bond ended by virtue of a Divorce Decree issued by the appropriate Court of Holland. Van Wilsem made a promise to provide monthly support for their son. Del Socorro and their son went back to the Philippines. Since the arrival of Del Socorro and their son to the Philippines, Van Wilsem never gave support to their son. Consequently, Van Wilsem came to the Philippines and remarried. All of the parties are presently living in Cebu City. Thereafter, Del Socorro sent a letter demanding support to Van Wilsem. Is Van Wilsem liable under R.A. 9262?

No. When Bongalon struck and slapped Jayson, he did not do so with the intention to debase the child’s “intrinsic worth and dignity” or to humiliate or embarrass him. Rather, Bongalon did so at the spur of the moment and in anger which only indicated his being overwhelmed by his fatherly concern for the personal safety of his own minor daughter. Not every instance of laying of hands on a child constitutes the crime of child abuse under Republic Act No. 7610. The Court explained that a person can only be punished for child abuse when there’s an intention to debase, degrade or demean the intrinsic worth and dignity of the child as a human being (People v. Bongalon, G.R. No. 169533, March 20, 2013). NOTE: The elements of the offense of child abuse are:

Yes, Van Wilsem may be made liable under Section 5(e) and (i) of R.A. No. 9262. The deprivation or denial of financial support to the child is considered an act of violence against women and children (Del Socorro v. Van Wilsem, G.R. No. 193707, December 10, 2014).

(a) minority of the victim; (b) acts complained of are prejudicial to the development of the child-victim; and c) the said acts are covered by the pertinent provisions of R.A. No. 7610 and P.D. No. 603 (Sanchez v. People, G.R. No. 179090, June 5, 2009).

NOTE: In Republic v. Yahon (G.R. No. 201043, June 16, 2014), the trial court directed Armed Forces Of The Philippines Finance Center to automatically deduct a percentage from the retirement benefits of S/Sgt. Charles Yahon, and to give the same directly to his wife Daisy Yahon as spousal support in accordance of the permanent protection order issued for his violation of the AntiViolence Against Women and Their Children Act of 2004. Despite the provision of exemption of funds provided in P.D. No. 1638, the Court held that Sec. 8(g) of R.A. 9262, being a later enactment, should be construed as laying down an exception to the general rule that retirement benefits are exempt from execution.

JUVENILE JUSTICE AND WELFARE ACT What are Status Offenses? Status offenses refer to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like (Sec. 4[r], RA 9344). Michael was 17 years old when he was charged for violation of Sec. 5 of R.A. 9165 (illegal sale of prohibited drug). By the time he was convicted and sentenced, he was already 21 years old. The court sentenced him to suffer an indeterminate penalty of imprisonment of six (6) years and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, and a fine of P500,000. Michael applied for probation but his application was denied because the probation law does not apply to drug offenders under R.A. 9165. Michael then sought the suspension of his sentence under R.A. 9344 or the Juvenile Justice and Youth Welfare Code. Can Michael avail of the suspension of his sentence provided under this law? (BAR 2013)

SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION ACT On July 1, 2004, Jet Matulis, a pedophile, gave P1, 000.00 to Sherly, an orphan and a prostitute, and brought her to a motel. He inserted a rusty and oversized vibrator into her vagina with such force that she bled profusely. Jet panicked and fled. Sherly was brought to the hospital and died a few days later because of shock caused by hemorrhage. If Sherly were a minor when she died, what is/are the liability of Jet Matulis? (BAR 2005) The crimes of homicide and child abuse in violation of R.A. 7610 (Special Protection of Children against abuse, exploitation, discrimination and for other purposes), are committed by Jet Matulis, provided Sherly is not less than 12 years old. If Sherly was less than 12 years old then, the crime committed by Matulis is rape (through sexual assault) with Homicide, a special complex crime under Article 266-B of the Revised Penal Code.

The benefits of a suspended sentence can no longer apply to Michael. The suspension of sentence lasts only until as provided for by the law, the offender reaches the maximum age and thus, could no longer be considered a child for purposes of applying R.A. 9344. However, he shall be entitled to the right of restoration, rehabilitation and reintegration in accordance with the law to give him the chance to live a normal life and become a productive member of the community. Accordingly, Michael may be confined in an agricultural camp and other training facility in accordance with Section 51 of R.A. 9344 (People v. Sarcia, GR No. 169641, September 10, 2009).

Bongalon was charged for the crime of child abuse under Sec. 10 (a) of R.A. 7610. Bongalon allegedly physically abused and/or maltreated Jayson (12 years old) with his palm hitting the latter at his back and by slapping said minor hitting his left cheek and uttering derogatory remarks to the latter’s family. On his part, Bongalon denied having physically abused or maltreated Jayson but only confronted him when

Can the provisions of R.A. 9344 be given retroactive application?

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UST LAW PRE-WEEK NOTES 2017

Does Sec. 38 of R.A. 9344 providing for a suspended sentence apply even to child in conflict with the law who has committed a heinous crime?

Loko advertised on the internet that he was looking for commercial models for a TV advertisement. Ganda, a 16-year-old beauty, applied for the project. Loko offered her a contract, which Ganda signed. She was asked to report to an address which turned out to be a high-end brothel. Ganda became one of its most featured attractions. What is Loko’s liability, if any? What effect would Ganda’s minority have on Loko’s liability? (BAR 2014)

Yes, according to the SC, such provision of R.A. 9344 does not distinguish as to the nature of the crime committed by the offender, therefore, taking into consideration the rule in Statutory Construction, that when the law does not distinguish, neither should the court distinguish (People v. Sarcia G.R. No. 169641, September 10, 2009).

Loko is liable of the crime of Trafficking in Persons under R.A.9208. He recruited, offered and hired Ganda by means of fraud or deception for the purpose of exploitation or prostitution. By means of deceit, i.e., in the guise of making her a commercial model, Loko recruited Ganda for the purpose of prostitution.

NOTE: The ruling in People v. Sarcia was reiterated inPeople v. Mantalaba where the SC held that while Section 38 of R.A. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of R.A. 9165, the RTC imposed the penalty of reclusion perpetua as mandated in Section 98 of the same law. A violation of Section 5 of R.A. 9165 merits the penalty of life imprisonment to death; however, in Section 98, it is provided that, where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this means that the penalty can now be graduated as it has adopted the technical nomenclature of penalties provided for in the Revised Penal Code (People v. Mantalaba, G.R. No. 186227 July 20, 2011).

Ganda’s minority is a qualifying circumstance. Under Section 6, R.A.9208, when the trafficked person is a child, the crime committed is Qualified Trafficking in Persons, penalized by life imprisonment.

Yes. Under Sec 68 of R.A. 9344, persons who are already convicted or are serving sentence but who were minors at the time of the commission of the crime, shall be given retroactive application of the law.

ANTI-FENCING LAW True or False. In a prosecution for fencing under P.D. 1612, it is a complete defense for the accused to prove that he had no knowledge that the goods or articles found in his possession had been the subject of robbery. (BAR 2000) False. Fencing is committed if the accused “should have known” that the goods or articles had been the subject of theft or robbery. Mere possession of the stolen goods gives rise to the prima facie presumption of fencing. Arlene is engaged in the buy and sell of used garments, more popularly known as"ukayukay." Among the items found by the police in a raid of her store in Baguio City were brand-new Louie Feraud blazers. Arlene was charged with "fencing." Will the charge prosper? Why or why not? (BAR 2010)

HUMAN SECURITY ACT OF 2007 A bus full of children from the province went to Manila to have an excursion. Before the children were able to alight from the bus, here comes X in full battle gear, with all kinds of guns and ammunitions and at gunpoint, he told the conductor to open the bus. X hostaged the children. Thereafter, X posted cartolinas on the glass windows of the bus. These cartolinas contained his demands to the government. Later after 12 hours of negotiation, X gave in and so X was arrested and was charged based on a valid complaint with violation of R.A. 9372. He was however acquitted. Can the State still prosecute X for the crime of serious illegal detention and for violation of R.A. 10591 for having in his possession various unlicensed firearms?

No, a charge of “fencing” will not prosper. “Fencing” is committed when a person, with intent to gain for himself or for another, deals in any manner with an article of value which he knows or should be known to him to have been derived from proceeds of theft or robbery (Sec.2, PD 1612). Thus, for a charge of fencing to prosper, it must first be established that a theft or robbery of the article subject of the alleged “fencing” has been committed- a fact which is a wanting in this case. It should be noted that the suspect is engaged in the buy and sell of used garments, which are in the nature of personal property. In civil law, possession of personal or movable property carries with it a’ prima facie presumption of ownership. The presumption of “fencing” arises only when the article or item involved is the subject of a robbery or thievery (Sec. 5, PD 1612).

No. Because under Sec 49 of R.A.9372, it is provided that when a person has been prosecuted under a provision of R.A.9372, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under R.A.9372.

BOUNCING CHECKS LAW Who are the persons liable under B.P. 22? 1.

ANTI-TRAFFICKING IN PERSONS ACT

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Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check

CRIMINAL LAW is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment; or 2.

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 he 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 negotiated. Obviously, B issued the postdated check only to help A. Criminal intent or dolo is absent.

Having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Where should a case for a violation of B.P. 22 be filed? It is well settled that violations of BP 22 cases are categorized as transitory or continuing crimes, meaning that some acts material and essential thereto and requisite in their consummation occur in one municipality or territory, while some occur in another. In such cases, the court wherein any of the crime's essential and material acts have been committed maintains jurisdiction to try the case; it being understood that the first court taking cognizance of the same excludes the other. Thus, a person charged with a continuing or transitory crime may be validly tried in any municipality or territory where the offense was in part committed.

Campos obtained a loan from FWCC. In return, she issued post-dated checks to FWCC as security for the loan. Fourteen of these checks were dishonored when presented to the bank. FWCC filed cases for violation of B.P. 22. After her arraignment, she did not attend any of her hearings hence, she was tried in absentia. She was held guilty for violation of B.P.22. She claims she did not receive any notice of dishonor. Further, she made subsequent arrangements for payments of the obligation to FWCC, which is tantamount to good faith. Is Campos liable for B.P.22? Yes, Campos is liable for B.P.22. Sec. 2 of B.P.22 creates a presumption of insufficiency of funds. When she made subsequent arrangements for payments of the obligation to FWCC, this statement was a confirmation that she actually received the required notice of dishonor from FWCC (Campos v. People & FWCC, G.R. No 187401, September 17, 2014).

B.P. 22 VIS-À-VIS ESTAFA B.P. 22 ESTAFA Malum prohibitum. Malum in se. Crime against public Crime against interest. property. Deceit is not required. Deceit is an element. Punishes the making or The act constituting drawing of any check the offense is that is subsequently postdating or issuing dishonored, whether a check in payment of issued in payment of an an obligation when obligation or to merely the offender has no guarantee an obligation. funds in the bank or his funds deposited It is the issuance of a therein were not check, not the non- sufficient to cover the payment of obligation amount of the check. which is punished. Violated if check is issued Not violated if check in payment of a pre- is issued in payment existing obligation. of a pre-existing obligation. Damage is not required. Damage is required. Drawer is given 5 banking days to make arrangements of payment after receipt of notice of dishonor.

Castor used the checks given to him by Lim as payment for the delivery of printing materials, but later asked Lim to “stop payment” as the printing materials were delivered too late. Later, Badiee sent two demand letters to Lim and subsequently filed a complaint against Lim before the Office of the Prosecutor for violation of B.P.22. After one month from receipt of the demand letters and after receiving the subpoena, Lim issued a replacement check, and Badiee was able to encash the said replacement check. Six months after the payment of the bounced checks, two Informations were filed against Lim for violation of B.P.22. Is he liable for violation of B.P.22? No, the fact that the issuer of the check had already paid the value of the dishonored check after having received the subpoena, should have forestalled the filing of the Information in court (Lim v. People, G.R. No. 190834, November 26, 2014).

Drawer is given 3 days to make arrangements for payment after receipt of notice of dishonor.

NOTE: The Supreme Court issued SC Administrative Circular No. 13-2001 which clarified the application of Administrative Circular No. 12-2000 concerning the penalty for violation of B.P. 22.

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 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 postdated check with which A negotiated for the 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. (BAR 2003)

In Saguitguit v. People (G.R. No. 144054, June 30, 2006), the Supreme Court explained: The clear tenor and intention of Administrative Circular No. 122000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22.

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UST LAW PRE-WEEK NOTES 2017 The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violations of B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.

were occupants of the van, resulting in the unlawful taking and asportation of the entire van and its contents. 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. (BAR 2012)

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance.

No. If I were the public prosecutor, I would charge the ten men of violation of R.A. 6539, The Anti-CarnappingAct. All the elements of carnapping are present. (1) there was actual taking of a motor vehicle, the postal van; (2) the postal van belonged to another; (3) the taking was done with intent to gain; and (4) the taking was done without the consent of the owner and with force, violence and intimidation against the 3 van employees who were occupants thereof.

It is, therefore, understood that: 1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. Blg. 22;

It is not highway robbery under P.D. 532 because there was no showing that the 10 men were a band of robbers organized for the purpose of committing robbery indiscriminately. What was shown is one isolated hijacking of a postal van, hence, carnapping.

2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;

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?

3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.”

The elements of highway robbery under P.D. 532 are:

ANTI-CARNAPPING ACT, AS AMENDED

1. 2. 3.

A is the driver of B’s Mercedes Benz car. When B was on a trip to Paris, A used the car for a joy ride with C whome 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 or crimes, if any, were committed? (BAR 2016)

4.

That there is unlawful taking of property of another; That said taking is with intent to gain; That said taking is done with violence against or intimidation of persons or force upon things or other unlawful means; and That it was committed on any Philippine highway.

NOTE: To sustain 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 men (People v. Mendoza, G.R. No. 104461, February 23, 1996; Filoteo, Jr. v. Sandiganbayan, G.R. No. 79543, October 16, 1996).

The crime committed by A is carnapping. The unlawful taking of motor vehicles is now covered by the AntiCarnapping Law, and not by the provisions on qualified theft or robbery. The concept of carnapping is the same as that of robbery and theft.

ARSON UNDER THE RPC IN RELATION TO ANTI-ARSON LAW The laws on arson in force today are P.D. 1613 and Article 320 as amended of the Revised Penal Code. Consequently, simple arson is governed by P.D. 1613 while destructive arson is governed by the Revised Penal Code.

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” or for a “joy ride”, the Supreme Court in People v. Bustinera sustains as the better view that 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.

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. Macabando was found on the road holding a lead pipe and breaking bottles. That same night, a fire broke out in Macabando’s house. Those living nearby tried to call for help and stop the fire but were prevented by the owner of the house who stood outside his house and fired several gun shots in the air. He also threatened to kill anyone who would try to put out the fire. In the process, other residential homes were also destroyed. The Bureau of Fire Protection conducted an investigation and the results revealed that the fire was intentionally started in the

A postal van containing mail matters, including checks and treasury warrants, was hijacked along a national highway by ten (10) men, two (2) of whom were armed. They used force, violence and intimidation against three (3) postal employees who

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CRIMINAL LAW Macabando’s home. The Regional Trial Court found Macabando guilty beyond reasonable doubt of destructive arson, punishable under Article 320 of the RPC. The CA affirmed the RTC judgment in toto. Macabando contends that the crime committed is only simple arson. Is he correct? Yes, Macabando is correct. Simple arson contemplates the malicious burning of public and private structures, regardless of size not punished under destructive arson. In this case, he burned his own house and other residential homes. There are two elements required for simple arson: first, there is intentional burning; and second, what is intentionally burned is an inhabited house or dwelling. The Court held that both elements were sufficiently proven in court. All property destroyed in the fire were his own house and several other inhabited homes. Based on the facts, the burning was clearly intentional (People v. Macabando, G.R. No. 188708, July 31, 2013). Diego and Pablo were both farmers residing in Barangay Damayan. On one occasion, Diego called Pablo to come down from his house in order to ask him why he got his (Diego’s) plow without permission. One word led to another. Diego, in a fit of anger, unsheathed his bolo and hacked Pablo to death. Pablo’s 9-year old son, Mario, who was inside the house, saw the killing of his father. Afraid that he might also be killed by Diego, Mario covered himself with a blanket and hid in a corner of the house. To conceal the killing of Pablo, Diego brought Pablo’s body inside the house and burned it. Mario was also burned to death. What crime or crimes did Diego commit? (BAR 1989) Diego committed two crimes (1) homicide for the death of Pablo and (2) the special complex crime of arson with homicide as provided in PD 1613 for the burning of the house and the death of Mario. The hacking of Pablo to death is homicide, the killing not being attended by any of the qualifying circumstances of murder. It was killing in the course of a quarrel. The burning of the house to conceal the killing of Pablo is a separate crime. Were it not for the death of Mario, this separate offense would have been arson. But inside the house unknown to Diego, was Mario, the resulting crime is under PD No. 1613, because the death resulted from the arson. If by reason or on the occasion of the arson, death results, the offense is the special complex crime of arson with homicide (Sec. 5, P.D. 1613, which expressly repealed Art. 320 and, People v. Paterno, L-2665, March 6, 1950). If Diego knew that Mario was inside the house when he set it on fire, the crime committed, instead of arson, would be murder, with the use of fire as the qualifying circumstance.

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