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2015 BAR REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER


JUDGE MARLO B. CAMPANILLA

PRO REO
In dubio pro reo is means "when in doubt, for
the accused. Intimately related to the in dubio pro
reo principle is the rule of lenity. The rule applies when
the court is faced with two possible interpretations of a
penal statute, one that is prejudicial to the accused
and another that is favorable to him. The rule calls for
the adoption of an interpretation which is more lenient
to the accused (Intestate estate of Gonzales vs. People,
G.R. No. 181409, February 11, 2010).
POSITIVIST THEORY AND CLASSICAL THERORY
The positivist theory states that the basis for
criminal liability is the sum total of the social and
economic phenomena to which the offense is
expressed. The purpose of penalties is to secure
justice. The penalties imposed must not only be
retributive but must also be reformative, to give the
convict an opportunity to live a new life and rejoin
society as a productive and civic-spirited member of
the community. The adoption of the aspects of the
Positivist theory is exemplified by the indeterminate
sentence law, impossible crime, privilege mitigating
circumstance of minority and modifying circumstances,
rule on imposition of penalties for heinous and quasiheinous crimes) (Joya vs. Jail Warden of Batangas, G.R.
Nos. 159418-19, December 10, 2003;).
Under the classical theory, man is essentially a
moral creature with an absolutely free will choose
between good and evil. When he commits a felonious
or criminal act, the act is presumed to have been done
voluntarily, i.e. with freedom, intelligence and intent.
Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will
appears unimpaired (People vs. Estrada, G.R. No.
130487, June 19, 2000). Since the Revised Penal Code
is based on the classical school of thought, it is the
identity of the mens rea which is considered the
predominant consideration and, therefore, warrants the
imposition of the same penalty for conspirators on the
consequential theory that the act of one is thereby the
act of all (Hon. Sandiganbayan, Honrado, G.R. No.
115439-41, July 16, 1997). Under this theory, the
criminal liability is based on the result of the felonious
act (proximate cause rule).

primitive, ambassador, legislator, President), the


applicable principle is generality. If the accused
attacks the jurisdiction of the court due to the unique
characteristic of the place where the crime was
committed (e.g. the place of commission is foreign
vessel, embassy or high sea) etc, the applicable
principle is territoriality.
1. Military officers - The Revised Penal Code
and special criminal laws are enforceable against
military men living or sojourning in the Philippines.
However, CA 408 (Articles of War) which vests
jurisdiction over members of the AFP to the courtsmartial. RA 7055 (AN ACT STRENGTHENING CIVILIAN
SUPREMACY OVER THE MILITARY) did not divest the
military courts of jurisdiction to try cases involving
"service-connected crimes or offenses" under CA 408
(Example: Mutiny or sedition, quarrels, frays;
disorders, breaking an arrest or escaping from
confinement, releasing prisoners without proper
authority, wrongful appropriation of captured
property, corresponding with, or aiding the enemy,
spies, dueling, fraud against the government affecting
matters and equipment). In fact, RA No. 7055
mandates that these service-connected crimes shall
be tried by the court-martial (Navales v. Abaya, G.R.
No. 162318, October 25, 2004). CA 408 is a law of
preferential application since it excludes members of
the AFP from the operation of the Revised Penal Code
and special criminal laws if the crimes committed by
them are service-connected as defined by RA 7055.
2. Consular officers - Despite the ruling in
Schneckenburger vs. Moran, consular officers and
employees are now enjoying immunity from criminal
prosecution of acts performed in the exercise of
consular function under 1967, Convention on Consular
Relation. Slander (Liang vs. People, GR NO 125865,
January 28, 2000) or reckless imprudence resulting in
homicide is not function-related. Consul is liable for
committing this crime.

TERRITORIALITY PRINCIPLE: Under the


principle of territoriality, the Philippines has
jurisdiction over crimes committed inside its territory
except as provided in the treaties and laws of
preferential application.

CHARACTERISTIC OF CRIMINAL LAW


There are three characteristics of criminal law,
to wit: (1) generality (2) territoriality, and (3)
prospectivity. The general, territorial and prospective
characteristics of criminal law are principles that
define and demarcate the scope and limitation of the
operation of criminal law. Under these three
principles, the operation or enforceability of criminal
law is limited to wrongful acts committed on or after
its effectivity (prospectivity) within the territory of the
Philippines (territoriality) by person living and
sojourning therein (generality).
GENERALITY - Generality principle is akin to
territoriality principle in the sense that the
demarcating factor of both principles is the territory of
the Philippines. Under generality principle, criminal
law is enforceable to person living or sojourning in the
territory of the Philippines. Under the territoriality
principle, criminal law is applicable only to criminal
act committed within the territory of the Philippines.
But the concept of generality is different from
territoriality. The applicability of territoriality principle
or generality principle will depend on the issue raised
by the accused in questioning the jurisdiction of the
court. If the accused attacks the jurisdiction of the
court because of the unique characteristic of his
person (e.g. he is a foreigner, military, hermit,

1. Embassy - The ground occupied by US


embassy is in fact the territory of the USA to which
the premises belong through possession or ownership.
A person who committed a crime within the premises
of an embassy will be prosecuted under the law of
Philippines because of the principle of territoriality
(See: Reagan vs. Commission on Internal Revenue, 30
SCRA 968, En Banc; Answers to 2009 Bar Examination
Questions by UP Law Complex). However, jurisdiction
of the Philippines over the embassy is limited or
restricted by the principles of inviolability of
diplomatic premises, which is a generally accepted
principle of international law. Warrant of arrest cannot
be served inside US embassy without waiver of
American government of its right under the principle
of inviolability.
2. English rule - There are two fundamental
rules in International Law regarding crimes committed
aboard a foreign merchant vessel (not military vessel),
if the same is within the 12-mile territorial water (not
internal or archipelagic water or high seas) of the
Philippines to wit: (1) French rule - Crimes committed
aboard a foreign merchant vessel within the territorial
water of the Philippines are subject to the jurisdiction
of the flag state (extra-territoriality principle) unless

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

their commission affects the peace and security of our


country. (2) English rule Crimes committed aboard a
foreign merchant vessel within the territorial water of
the Philippines are subject to jurisdiction of the
Philippines (territoriality principle) unless their
commission does not affect its peace and security, or
has no pernicious effect therein. It is the English rule
that obtains in this jurisdiction.
3. Convention of the law of the Sea Under the Convention on the Law of the Sea, the flag
state of foreign merchant vessel passing through the
territorial sea has jurisdiction over crimes committed
therein. However, the Philippines can exercise
jurisdiction to arrest any person or to conduct any
investigation in connection with any crime committed
on board the ship during its passage in the following
cases: (1) if the consequences of the crime extend to
the coastal State; (2) if the crime is of a kind to
disturb the peace of the country or the good order of
the territorial sea; (3) if the assistance of the local
authorities has been requested by the master of the
ship or by a diplomatic agent or consular officer of the
flag State; or (4) if such measures are necessary for
the suppression of illicit traffic in narcotic drugs or
psychotropic substances.
4. Drug trafficking - Following the English
rule, the Philippines has no jurisdiction over
transportation of opium in a foreign vessel in transit in
territorial water of our country because possession of
opium does not have a pernicious effect on our
country (U.S. vs. Look Chaw). But under the
Convention of the law of the Sea, the Philippines can
exercise jurisdiction to arrest any person or to conduct
any investigation involving transportation of
dangerous drugs since this is a measure necessary for
the suppression of illicit traffic in narcotic drugs or
psychotropic substances.

EXTRA-TERRITORIALITY - Under the principle


of extra-territoriality, the Philippines has jurisdiction
over crimes committed outside its territory for those
five instances mention in Article 2 such as crime
committed in vessel of Philippines registry (ownership
is not material), function-related crime committed by
public officer (such as corruption or direct bribery),
crimes against national security (such as treason,
espionage; rebellion is not a crime against national
security), and crime against law of nation such as
piracy and mutiny). In People vs. Tulin, G.R. No.
111709, August 30, 2001- Piracy is an exception to
the rule on territoriality in criminal law (Article 2). The
same principle applies even if accused were charged,
not with a violation of qualified piracy under the penal
code but under a special law, PD No. 532 which
penalizes piracy in Philippine waters. It is likewise,
well-settled that regardless of the law penalizing the
same, piracy is a reprehensible crime against the
whole world.

PROSPECTIVITY: Article 22 of RPC - If the


court in trying an accused, who committed a crime
prior to the passage of the law, should give
retroactive effect to the law provided that: (1) it is
favorable to the accused and (2) the accused is not a
habitual delinquent (Article 22). Ex post facto law Congress in passing a law can insert retroactive effect
provision therein subject to the Constitution of ex post
facto law. If the retroactive provision of the law has
passed the constitutional test on prohibition against
ex post facto law, the court must give retroactive

effect to this law even if the accused is a habitual


delinquent. Nullum crimen poena sine lege If the law
repeals a previous law or provision defining a crime,
the applicable principle is not Article 22 of RPC but
nullum crimen poena sine lege (There is no crime
when there is no law punishing it). Since the intention
of the new law is to decriminalize an act punishable
by the repealed law, the accused should be acquitted
or released if the already convicted, even though he is
a habitual delinquent.
X committed crime under RA No. 6425, the
penalty for which is life imprisonment. RA No. 7659
amended RA No. 6425 by prescribing the penalty of
reclusion temporal. Should RA No. 7659 be given
retroactive effect? Answer: Yes. The maximum duration
of reclusion temporal is 40 years of imprisonment while
life imprisonment has no duration. Thus, reclusion
perpetua is a lighter penalty than life imprisonment.
The amendatory law, being more lenient and favorable
to the accused than the original provisions thereof
should be accorded retroactive application (People vs.
Morilla, GR No. 189833, February 05, 2014).
RA No. 9346 prohibits the imposition of death
penalty, prescribes reclusion perpetua in lieu of death
penalty or life imprisonment if the special law does
not use the nomenclature of the penalties under RPC
and declares a person sentenced to reclusion
perpetua as a prescribed or reduced penalty is
ineligible for parole. This law has a retroactive effect.
Penal laws which are favorable to accused are given
retroactive effect. This principle is embodied under
Article 22 of RPC, which provides: Penal laws shall
have a retroactive effect insofar as they favor the
persons guilty of a felony, who is not a habitual
criminal (People vs. Talaro, et.al., GR No. 175781,
March 20, 2012).
REPEAL: Decriminalization - Repeal of a penal
law deprives the courts of jurisdiction to punish
persons charged with a violation of the old penal law
prior to its repeal (Sindiong and Pastor, 77 Phil. 1000;
Binuya, 61 Phil. 208; U.S. vs. Reyes, 10 Phil. 423; U.S.
vs. Academia, 10 Phil. 431; Arizala vs. Court of
Appeals, G.R. No. 43633, September 14, 1990;
Almuete, et al., G.R. No. L-265, February 27,19 76).
The intention of the new law is to decriminalize an act
punishable of old law. Thus, person cannot be
punished for subversion under RA 1700, which was
repealed by RA 7637, even though he is a habitual
delinquent.
New regulation- Repeal with re-enactment of a
penal law does not deprive the courts of jurisdiction to
punish persons charged with a violation of the old
penal law prior to its repeal. Such repeal even without
a saving clause would not destroy criminal liability of
the accused (U.S. vs. Cana, 12 Phil. 241). The
intention of the new law is not to decriminalize an act
punishable of old law but merely to provide new
regulation. If the new law is favorable to the accused,
who is not a habitual delinquent, it shall be given
retroactive effect. Example: A was charged for the
crime of rape under Article 336 of RPC for raping his
minor daughter. However, RA 8353 expressly repealed
Article 336 but re-enacted the provision on rape by
reclassifying it as a crime against person, redefining it
and prescribing a graver penalty for the commission
thereof. The repeal of Article 336 does not deprive the
courts of jurisdiction to try and punish A for rape
under Article 336. RA No. 8353 shall not be given
retroactive effect since it is not favorable to the
accused.

DECRIMINALIZATION

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

1. Vagrancy - Before Article 202 of RPC


punishes vagrancy and prostitution. But Article 202 of
RPC as amended merely penalizes prostitution. In sum,
RA No. 10158 has decriminalized vagrancy by omitting
portions of Article 202 involving crime vagrancy. A
reading of the Senate deliberation pertaining to the
passage of law decriminalizing vagrancy shows that
they considered vagrants as victims of poverty and
that the law on vagrancy serves to oppress the very
people that the government sought to protect.
In view of the new policy of the State
decriminalizing vagrancy, which is embodied in RA No.
10158, ordinance, which punishes vagrancy, should
be declared as contrary to law, and hence, invalid.
Settled is the rule that what the national legislature
expressly allows by law, a local legislature may not
disallow by ordinance or resolution (Lina vs. Pana, G.R.
No. 129093, August 30, 2001). The spring cannot rise
higher than its source. As aptly explained by Justice
Nachura in his book, An ordinance must not be
contrary to the Constitution or law. Prohibited activities
may not be legalized in the guise of regulation;
activities allowed by law cannot be prohibited, only
regulated.
RA No. 10158 shall be given retroactive effect.
Under Section 2 and 3 thereof, all pending cases for
vagrancy shall be dismissed and all persons serving
sentence for vagrancy shall be immediately released.
Since Sections 2 and 3 of RA No. 10158 expressly
provide retroactive application to the law without
distinction, whether the offender is a habitual
delinquent or not.
2. Premature marriage - Under Article 351
of RPC, a woman in contracting marriage within 301
days from death of husband, or dissolution or
annulment of marriage is liable for the crime of
premature marriage. However, RA No. 10655
decriminalizes premature marriage by repealing Article
351. Premature marriage was decriminalize since
Article 351 discriminates women because this provision
is not applicable to men. Moreover, Article 351 sought
to prevent a possible confusion as to whether the
father of the child born after the dissolution of the
marriage is the first husband or the second. This
preventive measure is not anymore necessary since
paternity and filiation could now be easily determined
through modern technology.
MISTAKE OF FACT PRINCIPLE:
Requisites: (1) That the acts done would have
been lawful had the facts been as the accused
believed them to be (2) that the mistake of fact is not
due to negligence or unlawful intent of the offender.
The Supreme Court in several cases had applied the
mistake of fact doctrine, which allowed the accused,
who committed a crime on a mistaken belief, to enjoy
the benefit of the justifying circumstance of selfdefense (United States vs. Ah Chong, 15 Phil., 488),
defense of person and right (US vs. Bautista, G.R. No.
10678 August 17, 1915), defense of honor (United
States vs. Apego, 23 Phil. 391), performance of duty,
(People vs. Mamasalaya, G.R. No.L-4911, February 10,
1953), and the exempting circumstance of obedience
of an order of superior officer (People vs. Beronilla,
G.R. No. L-4445, February 28, 1955). In Ah Chong, the
accused, who believed that the victim was a robber
and that his life was in danger because of the
commencement of unlawful aggression, was acquitted
due to mistake of fact doctrine in relation to the rule
on self-defense. In Oanis vs. Galanta, the accused,
who believed that the sleeping victim is a notorious
criminal to be arrested by them, was held guilty of
murder for shooting him since the mistake of fact

principle in relation to performance of duty is not


applicable. Second element is not present since they
did not ascertain first his identify despite opportunity.
The first element is not likewise present since the
killing of victim believed to be a criminal was not
necessary consequence of the due performance of
duty of the accused as police officers.
The gist of the theft is the intent to deprive
another of his property in a chattel, either for gain or
out of wantonness or malice to deprive another of his
right in the thing taken. This cannot be where the
taker honestly believes the property is his own or that
of another, and that he has a right to take possession
of it for himself or for another, for the protection of
the latter. However, the belief of the accused of his
ownership over the property must be honest and in
good faith and not a mere sham or pretense. If the
claim is dishonest, a mere pretense, taking the
property of another will not protect the taker (Gaviola
vs. People, G.R. No. 163927, January 27, 2006). This
belief of ownership as a defense in theft is in
accordance with the mistake of fact doctrine.
X informed the authorities regarding armed
rebel elements on board a vehicle in a certain
barangay. Several policemen, Barangay officers and
members of the Civil Home Defense Force (CHDF)
responded to information and set a check point. X
pointed at an approaching jitney occupied by rebels.
They flagged down the vehicle but the same did not
stop. They attacked the vehicle with automatic
weapons by firing directly thereat. One died and
another was wounded. It turned out however that the
victims are unarmed innocent civilians. Are those
responsible for the death and injuries of the victims
liable for homicide? Is the doctrine of mistake of fact
applicable?Answer: They are liable for homicide and
attempted homicide. The duty of those manning the
check point is to identify the occupants of their suspect
vehicle and search for firearms inside it to validate the
information they had received; they may even effect a
bloodless arrest. While, rebellion is a continuing
offense, they cannot open fire at or kill the suspects
under any and all circumstances. There is no evidence
showing that they were placed in real mortal danger in
the presence of the victims. Hence, the mistake of fact
principle is not applicable since there is negligence or
bad faith on their part (Yapyucu vs. Sandiganbayan, GR
No. 120744-46, June 25, 2012).

South African athlete Oscar Pistorius has been


found guilty of culpable homicide after the judge found
he killed his girlfriend by mistake. The judge said the
athlete had acted "negligently" when he fired shots
through a toilet door, but in the "belief that there was
an intruder". If the case happened here, should the
athlete be convicted of homicide or reckless
imprudence resulting in homicide?
Answer: The athlete should be held liable with
homicide with privilege mitigating circumstance of
defense of property.
In mistake of fact, which negates dolo, it is
important requisite that that act would have been
lawful had the fact been as the accused believed them
to be. If there was really an intruder inside the toilet, it
would be considered as unlawful aggression against his
property, which would allow him to use reasonable
means to repel it in accordance with the self-help
doctrine under Article 429 of the Civil Code and
defense of property under Article 12 of the Revised
Penal Code. However, the means employed by him
firing shots through the toilet door is not reasonable;

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

and hence, he is only entitled to privileged migrating


circumstance of incomplete defense of property (See:
People vs. Narvaez, G.R. Nos. L-33466-67, April 20,
1983). In sum, the act would have been attended by
the privilege mitigating circumstance of incomplete
justification had the facts been as the accused believed
them to be.
VOLUNTARINESS Concurrence of freedom,
intelligence and intent makes up the criminal mind
behind the criminal act. Thus, to constitute a crime,
the act must, generally and in most cases, be
accompanied by a criminal intent. Actus non facit
reum, nisi mens sit rea. No crime is committed if the
mind of the person performing the act complained of
is innocent (People vs. Ojeda, G.R. Nos. 104238-58,
June 3, 2004). Voluntariness is an element of crime,
whether committed by dolo or culpa or punishable
under special law. The act to be considered a crime
must be committed with freedom and intelligence. In
addition to voluntariness, intentional felony must be
committed with dolo (malice), culpable felony with
culpa, and mala prohibita under special law with
intent to perpetrate the act or with specific intent
(such as animus possidendi in illegal possession of
firearm). Presumption of voluntariness: In the
determination of the culpability of every criminal
actor, voluntariness is an essential element. Without
it, the imputation of criminal responsibility and the
imposition of the corresponding penalty cannot be
legally sanctioned. The human mind is an entity, and
understanding it is not purely an intellectual process
but is dependent to a large degree upon emotional
and psychological appreciation. A mans act is
presumed voluntary.It is improper to assume the
contrary, i.e. that acts were done unconsciously, for
the moral and legal presumption is that every person
is presumed to be of sound mind, or that freedom and
intelligence constitute the normal condition of a
person (People vs. Opuran, G.R. Nos. 147674-75,
March 17, 2004).
CRIMINAL INTENT To be held liable for
intentional felony, the offender must commit the act
prohibited by RPC with specific criminal intent and
general criminal intent. General criminal intent (dolo
in Article 3 of RPC) is an element of all crimes but
malice is properly applied only to deliberate acts done
on purpose and with design. Evil intent must unite
with an unlawful act for there to be a felony. A
deliberate and unlawful act gives rise to a
presumption of malice by intent. On the other hand,
specific intent is a definite and actual purpose to
accomplish some particular thing. In estafa, the
specific intent is to defraud, in homicide intent to kill,
in theft intent to gain (Recuerdo vs. People, G.R. No.
168217, June 27, 2006, ). In the US vs. Ah Chong, the
accused was acquitted because of mistake of fact
principle even though the evidence showed that he
attacked the deceased with intent to kill (United
States vs. Apego, G.R. No. 7929, November 8, 1912;
Dissenting opinion of J. Trent), which was established
by the statement of the accused "If you enter the
room I will kill you." Article 249 (homicide) should be
read in relation to Article 3. The accused was
acquitted not because of the absence of intent to kill
(specific intent) but by reason of lack of general intent
(dolo or malice).
PRESUMED MALICE - The general criminal
intent (malice) is presumed from the criminal act and
in the absence of any general intent is relied upon as
a defense, such absence must be proved by the
accused (Ah Chong case, the accused was able to
rebut the presumption of general criminal intent or
malice). Generally, a specific intent is not presumed.
Its existence, as a matter of fact, must be proved by

the State just as any other essential element. This


may be shown, however, by the nature of the act, the
circumstances under which it was committed, the
means employed and the motive of the accused
(Recuerdo vs. People, G.R. No. 168217, June 27,
2006). There are other specific intents that are
presumed. If a person died due to violence, intent to
kill is conclusively presumed. Intent to gain is
presumed from taking property without consent of
owner.
MOTIVE
Doubt as to the identity of the culprit Motive gains importance only when the identity of the
assailant is in doubt. As held in a long line of cases, the
prosecution does not need to prove the motive of the
accused when the latter has been identified as the
author of the crime. The accused was positively
identified by witnesses. Thus, the prosecution did not
have to identify and prove the motive for the killing. It
is a matter of judicial knowledge that persons have
been killed for no apparent reason at all, and that
friendship or even relationship is no deterrent to the
commission of a crime. The lack or absence of motive
for committing the crime does not preclude conviction
where there are reliable witnesses who fully and
satisfactorily identified the petitioner as the
perpetrator of the felony (Kummer vs. People, GR No.
174461, September 11, 2013).
Circumstantial or inconclusive evidence Indeed, motive becomes material when the evidence is
circumstantial or inconclusive, and there is some doubt
on whether a crime has been committed or whether
the accused has committed it. The following
circumstantial evidence is sufficient to convict accused:
1. Accused had motive to kill the deceased because
during the altercation the latter slapped and hit him
with a bamboo, prompting Romulo to get mad at the
deceased; 2. Accused was chased by the deceased
eastward after the slapping and hitting incident; 3.
Said accused was the last person seen with the
deceased just before he died; (4) Accused and Antonio
Trinidad surrendered to police authorities with the
samurai; (5) Some of the wounds inflicted on the
deceased were caused by a bolo or a knife. (Trinidad
vs. People, GR No. 192241, June 13, 2012).

INDETERMINATE OFFENSE DOCTRINE In


People vs. Lamahang, G.R. No. 43530, August 3, 1935,
En Banc - Accused who was caught in the act of
making an opening with an iron bar on the wall of a
store was held guilty of attempted trespassing and not
attempted robbery. The act of making an opening on
the wall of the store is an overt act of trespassing
since it reveals an evident intention to enter by means
of force said store against the will of its owner.
However, it is not an overt act of robbery since the
intention of the accused once he succeeded in
entering the store is not determinate; it is subject to
different interpretations. His final objective could be to
rob, to cause physical injury to its occupants, or to
commit any other offense. In sum, the crime the he
intended to commit inside the store is indeterminate,
and thus, an attempt to commit it is not punishable as
attempted felony.

In Cruz vs. People, G.R. No. 166441, October


08, 2014 - The petitioner climbed on top of the naked
victim, and was already touching her genitalia with his

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

hands and mashing her breasts when she freed herself


from his clutches and effectively ended his designs on
her. Yet, inferring from such circumstances that rape,
and no other, was his intended felony would be highly
unwarranted. This was so, despite his lust for and lewd
designs towards her being fully manifest. Such
circumstances remained equivocal, or "susceptible of
double interpretation" (People v. Lamahang). Verily, his
felony would not exclusively be rape had he been
allowed by her to continue, and to have sexual
congress with her, for some other felony like simple
seduction (if he should employ deceit to have her yield
to him) could also be ultimate felony.
PROXIMATE CAUSE
Proximate cause is the primary or moving
cause of the death of the victim; it is the cause, which
in the natural and continuous sequence unbroken with
any efficient intervening cause produces death and
without which the fatal result could not have
happened. It is the cause, which is the nearest in the
order of responsible causation (Blacks Law
Dictionary). Intervening cause - The direct relation
between the intentional felony and death may be
broken by efficient intervening cause or an active
force which is either a distinct act or fact absolutely
foreign from the felonious act of the offender.
Lightning that kills the injured victim or tetanus
infecting the victim several days after the infliction of
injuries, or voluntary immersing the wounds to
aggravate the crime committed by accused is an
intervening cause. Thus, the accused is liable for
physical injuries because of the intervening cause
rule. On the other hand, carelessness of the victim, or
involuntary removal of the drainage, lack of proper
treatment is not an intervening cause. Hence, the
accused is liable for the death because of the
proximate cause rule.
If the victim died due to tetanus of which he
was infected when the accused inflicted injuries upon
him, the crime committed is homicide (People vs.
Cornel, G.R. No. L-204, May 16, 1947). If the victim
died due to tetanus of which he was infected after the
accused inflicted injuries upon him, the crime
committed is physical injuries. The accused is not
liable for homicide because tetanus is an efficient
intervening cause. Thus, the proximate cause of the
death of the victim is not the infliction of injuries. In
Villacorta vs. People, G.R. No. 186412, September 7,
2011 (Justice De Castro), there had been an interval
of 22 days between the date of the stabbing and the
date when victim was rushed to hospital, exhibiting
symptoms of severe tetanus infection. Since the
victim was infected of severe tetanus, he died the
next day. The incubation period of severe tetanus is
less than 14 days. Hence, he could not have been
infected at the time of the stabbing since that incident
occurred 22 days before the victim was rushed to the
hospital. The infection of victims stab wound by
tetanus was an efficient intervening cause. The
accused was held liable for physical injuries.
Proximate cause has been defined as "that
cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have
occurred." Although there was no direct injury on his
vital organs of the victim, his wounds affected his
kidneys, causing multiple organ failure and eventually
his death. Accused is liable for homicide. Without the
stab wounds, the victim could not have been afflicted
with an infection which later on caused multiple organ
failure that caused his death. The offender is
criminally liable for the death of the victim if his
delictual act caused, accelerated or contributed to the

death of the victim (Belbis, Jr. vs. People, GR No.


181052, November 14, 2012).
ERROR IN PERSONAE - In case of error in
personae, person is criminally responsible for
committing an intentional felony although the
consequent victim is different from that intended due
to mistake of identity. Requisites: In order to make a
person criminally liable in case of error in personae,
the following requisites must be present: (1) Offender
committed an intentional felony; (2) The consequent
victim against whom the felony was directed is
different from that intended due to mistake of identity.
If the penalty for the intended crime is different from
that of the committed crime, the court shall impose
the penalty for the intended crime or committed
crime, whichever is lesser.
ABERRATIO ICTUS - In case of aberratio
ictus, person is criminally responsible for committing
an intentional felony although the consequent victim
is different from that intended due to mistake of blow.
Requisites: In order to make a person criminally liable
in case of aberratio ictus, the following requisites
must be present: (1) Offender committed an
intentional felony; (2) The consequent victim against
whom the felony was directed is different from that
intended due to mistake of blow. The crime committed
against the intended victim and victim injured due to
aberratio ictus shall be made a complex crime
(compound crime). The court shall impose the penalty
for the most serious crime in its maximum period.
The circumstance of aberratio ictus (mistake in
the blow) can neither exempt the accused from
criminal responsibility nor mitigate his criminal
liability. Under Article 4 of RPC, criminal liability is
incurred by any person committing a felony although
the wrongful act done be different from that which he
intended (Matic vs. People, G.R. No. 180219, November
23, 2011).
PRAETER INTENTIONEM: In case of praeter
intentionem, person is criminally responsible for
committing an intentional felony although its wrongful
consequence is graver than that intended. Requisites:
In order to make a person criminally liable under
Article 4 (1) in case of praeter intentionem, the
following requisites must be present: (1) Offender
committed an intentional felony; (2) The wrongful act
done, which is graver than that intended, is the direct,
natural and logical consequence of the felony
committed by the offender. Praeter intentionem may
be appreciated as mitigating circumstance of lack of
intent to commit so grave a wrong than that
committed.
When death resulted, even if there was no
intent to kill, the crime is homicide, not just physical
injuries, since with respect to crimes of personal
violence the penal law looks particularly to the material
results following the unlawful act and holds the
aggressor responsible for all the consequences thereof.
He who is the cause of the cause is the cause of the
evil caused (Seguritan vs. People, G.R. No.
172896, April 19, 2010).
1. Mitigating circumstance - The mitigating
circumstance that the offender had no intention to
commit so grave a wrong as that committed or
praeter intentionem is obtaining when there is a
notable disparity between the means employed by the
accused to commit a wrong and the resulting crime
committed. The intention of the accused at the time of
the commission of the crime is manifested from the
weapon used, the mode of attack employed and the
injury sustained by the victim (People vs. Maglian, G.R.
No. 189834, March 30, 2011).The mitigating

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

circumstance of praeter intentionem cannot be


appreciated if the acts employed by accused were
reasonably sufficient to produce and did actually
produce the death of the victim (People vs. Sales, G.R.
No. 177218, October 3, 2011).

2. Evident premeditation- In case of


aberatiu ictus and error in personae, the SC did not
appreciate evident premeditation since the victim,
who was actually killed, is not contemplated in the
premeditation of the accused (People vs. Trinidad, G.R.
NO. L-38930, June 28, 1988; People vs. Mabug-at, 51
Phil., 967; People vs. Trinidad, G.R. No. L-38930, June
28, 1988). However, praeter intentionem and evident
premeditation can be independently appreciated.
there is no incompatibility between evident
premeditation and no intention to commit so grave a
wrong since the latter is based on the state of mind of
the offender while the former manner of committing
the crime (Reyes; People vs. Enriquez, 58 Phil. 536).

3. Treachery - If accused employed means to


render the victim defenseless, treachery shall be
appreciated even if the killing is due to error in
personae (People vs. Del Castillo, Sr., G.R. No. L32995, April 30, 1984) or aberratio ictus (People vs.
Mabug-at, G.R. No. 25459, August 10, 1926, En Banc)
or with the circumstance of praeter intentionem
(People vs. Cagoco, G.R. No. 38511, October 6, 1933)

4. Conspiracy - Conspirators, who conspired


to kill a particular parson, are equally liable for the
killing of another person due to error in personae
(People vs. Pinto, Jr. and Buenaflor, G.R. No. No.
39519, November 21, 1991). However, conspirator,
who never even fired a single shot and whose only
participation was to drive their getaway vehicle and to
lend his firearm to his back rider so that the latter
could finish off the target victim was not found
accountable for the injury sustained by the
unintended victim was just a star-crossed bystander
who was accidentally hit in the process (aberratio
ictus) (People vs. Herbias, G.R. No. 112716-17,
December 16, 1996; People vs. Flora and Flora, G.R.
No. 125909, June 23, 2000).
INTENT TO KILL: Intent to kill is an element
of homicide and murder. But even if offender had no
intent to kill, he would be held just the same liable for
homicide or murder if his felonious act is the
proximate cause of the death of the latter. Even if
there is no intent to kill, offender is liable for homicide
or murder if the victim died as a result of the
felonious act of the former. The offenders act is
considered felonious if it is accompanied with criminal
or evil intent such as intent to inflict injury, intent to
hide the body of the crime, intent to threaten victim,
intent to silence the hold-up victim, or intent to rape.
Offender is liable for homicide because it is the
natural, direct and logical consequence of an act
committed with criminal intent.
a. With intent to hide the body of the
crime In People vs. Ortega, Jr., G.R. No. 116736, July
24, 1997 - Ortega stabbed the victim. Garcia assisted
Ortega in concealing the body of the victim by
throwing the body into the well. Victim died due to
drowning. Issue: Is Garcia liable for the death of the
victim as principal in homicide even if his intention

was not to kill the victim but merely to assist Ortega


in concealing his dead body not knowing that the
victim was still alive at that time? In assisting Ortega
carry the body of victim to the well, Garcia was
committing an intentional felony; concealing the body
of the crime to prevent its discovery makes him liable
as an accessory in homicide. Hence, Garcia should be
held liable for the direct, natural and logical
consequence of his felonious act of assisting Ortega in
hiding the body of the victim. Since proximate cause
of death of the victim is the felonious and accessory
act of throwing the victim into the well, Garcia should
be held liable for the death as principal in homicide.
b. With intent to threaten In US vs.
Valdez, G.R. No. 16486, March 22, 1921, En Banc The accused in rage he moved towards victim with a
big knife in hand, threatening to stab him. Victim
believing himself in great and immediate peril jumped
into the water where he was drowned. The accused
was found guilty of homicide. The act of threatening
to stab victim constitutes a felony of threat. Hence,
accused is liable for the direct, natural and logical
consequence of his intentional and felonious act. It
was held that: "If a man creates in another man's
mind an immediate sense of danger which causes
such person to try to escape, and in so doing he
injures himself, the person who creates such a state
of mind is responsible for the injuries which result."
d. Intent to inflict injury - Intentional
infliction of injury resulting in death of the victim
constitutes homicide or murder. In People vs. Pugay,
et al., No 74324, November 17, 1988, the deceased, a
retardate, and the accused Pugay were friends.
Deceased used to run errands for Pugay and at times
they slept together. During a town fiesta fair was held
in the public plaza. Accused, Pugay and Samson with
several companions, who appeared to be drunk, made
the deceased dance by tickling him with a piece of
wood. Not content with what they were doing with the
deceased, the accused Pugay suddenly took a can of
gasoline from under the engine of the Ferris wheel
and poured its contents on the body of the former.
Then, the accused Samson set victim on fire making a
human torch out of him. Pugay and Samson were
stunned when they noticed the deceased burning.
Crime committed by Samson: There is no intent to kill.
The act of the Accused was merely a part of their funmaking that evening. Accused merely intended to set
the deceased's clothes on fire. His act, however, does
not relieve him of criminal responsibility. Burning the
clothes of the victim would cause at the very least
some kind of physical injuries on his person, a felony.
Since such felony of physical injuries resulted into a
graver offense, he must be held responsible therefor.
(Note: The crime is not murder qualified by means of
fire because the fire was not use to kill but merely to
inflict injury).
e. Recklessness Even if there is no intent
to kill and evil intent, offender is liable for culpable
felony if the victim died as a result of the recklessness
of the former. Crime committed by Pugay: Having
taken the can from under the engine of the Ferris
wheel and holding it before pouring its contents on
the body of the deceased, this accused knew that the
can contained gasoline. The stinging smell of this
flammable liquid could not have escaped his notice
even before pouring the same. Clearly, he failed to
exercise all the diligence necessary to avoid every
undesirable consequence arising from any act that
may be committed by his companions who at the time
were making fun of the deceased. The accused is only
guilty of homicide through reckless imprudence.
f. Accident - If there is no intent to kill, evil
intent and recklessness on the part of the accused, he

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

is not liable for his intentional act, which caused the


death of the victim. In United States vs. Tanedo (15
Phil. Rep., 196), deceased went with the accused to
hunt wild chickens at the forest. While hunting, the
accused came upon a wild chicken, and, not seeing
deceased about and not knowing or having any
reason to believe that he was in that vicinity shot the
chicken. The bullet that hit the chicken recoiled and
hit the deceased. It was held that accused is not
criminally liable. Life was taken by misfortune or
accident while in the performance of a lawful act
executed with due care and without intention of doing
harm. Note: The accused could not have foreseen that
the slug after hitting the chicken would recoil and hit
deceased. The principle enunciated in Tanedo case
will not apply if the place where the accused lawfully
discharged his firearm is populated. In People vs.
Nocum, G.R. No. L-482, 25 February 1947, En Banc There was a fistic fight between two persons. Desiring
to stop the encounter, accused shouted at the
combatants. As these paid him no attention, he drew
a .45 caliber pistol and shot twice in the air. The bout
continued, however; so he fired another shot at the
ground, but unfortunately the bullet ricocheted, and
hit an innocent by-stander, resident of the place.
Victim died. It was held that: The mishap should be
classed as homicide through reckless imprudence, the
slaying having been unintentional. It is apparent that
defendant willfully discharged his gun-for without
taking the precautions demanded by the
circumstance that the district was populated, and the
likelihood that his bullet would glance over the hard
pavement of the Manila thoroughfare. Note: The
accused should have foreseen that the slug after
hitting the pavement would recoil and might hit
somebody.
IMPOSSIBLE CRIME
Offender shall be held liable for impossible
crime if the following requisites are present: (1)
offender performing an act which would have been an
offense against person or property; (2) offender
performed an act with evil intent; (3) offender did not
commit the offense because of the impossibility of its
accomplishment or employment of inadequate or
ineffectual means; and (4) offender in performing an
act is not violating another provision of the law (Luis
B. Reyes).
Impossible crime of theft - X, employee of
Mega Inc., received check from the customer of her
employer. Instead of remitting the check to her
employer, X deposited the check under her account.
However, the drawee bank dishonored the check
because of insufficiency of funds. What is the crime
committed by X? Answer: The crime committed is
impossible crime of qualified theft. Qualified theft is a
crime against property. The act of depositing the check
is committed with evil intent. The mere act of
unlawfully taking the check meant for Mega Inc.
showed her intent to gain or be unjustly enriched.
There is factually impossibility to accomplish the crime
of qualified theft since the check is unfunded. (Jacinto
vs. People, G.R. No. 162540, July 13, 2009).
Intod principle - In Intod vs. Court of
Appeals, G.R. No. 103119, October 21, 1992 Outside
the house of the victim, accused with intent to kill
fired at the bedroom, where the victim is supposed to
be sleeping. No one was in the room when the
accused fired the shots. No one was hit by the gun
fire. The accused were convicted of impossible crime.
Accused shoot the place where he thought his victim
would be, although in reality, the victim was not
present in said place and thus, the accused failed to
accomplish their end due to its factual impossibility. In
the United States, criminal laws are silent regarding

impossible crimes; hence where the offense sought to


be committed is factually impossible of
accomplishment, the offender shall be liable for
attempted crime. On the other hand, where the
offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime. In the
Philippines, the crime committed is impossible crime if
the offense sought to be committed is factually or
legally impossible. Killing a dead person is impossible
crime because of legal impossibility. Putting the hand
inside an empty pocket with intention to steal a wallet
is impossible crime because of factual impossibility.
Raping a dead person- Prior to RA 8353,
rape is a crime against chastity. Thus, if a person
raped a dead person believing that she was just
sleeping, offender could not be held liable for
impossible crime (J. Ramon Aquino). In impossible
crime the act could have constituted the crime
against person or property if its accomplishment was
not impossible. Rape is neither a crime against person
nor against property. However, RA 8353 reclassifies
rape from crime against chastity to crime against
person. Hence, an offender for raping a dead person
without knowing that she was already dead may now
be held liable for impossible crime.
Committing another crime - A discharged
shotgun at B from a distance of 300 yards; but
because of the limited range of the firepower of the
shotgun, it would be impossible for A to harm B.
A is liable of discharged of firearm and not
impossible crime. Where the offender unlawful
entered the house and took a watch that turned out to
be his own, he is liable for trespass to dwelling and
not impossible crime (Criminal Law Conspectus by
Justice Florenz Regalado). If the accused administered
abortive drugs upon his girlfriend whom he believed
to be pregnant, which turned out not to be true, but
the woman became ill for more than 30 days, the
accused will be liable for serious physical injuries and
not impossible crime of abortion (Criminal Law
Reviewer by Gregorio).
STAGES
ATTEMPTED AND FRUSTRATED STAGES:
In attempted felony, the offender performs directly an
overt act, which consists of one or more acts of
execution, but not enough to consequently produce
the felony. In frustrated felony, the offenders perform
all the acts of execution that would produce the felony
as a matter of consequence. To determine whether
the felony is at the attempted or frustrated stage, acts
of execution of execution of a felony must be
identified. Example: The acts of execution that would
produce homicide or murder are infliction of mortal
wounds upon the victim. If the wounds inflicted upon
the victim with intent to kill are non-mortal, the crime
committed is attempted homicide; if wounds are
mortal, the crime committed is frustrated homicide.
In attempted felony and frustrated felony, the
external acts performed by the offender and the
intended felony must have a direct connection; but in
an attempted felony, the offender failed to perform all
the acts of execution; thus his external acts would
not produce the felony as a consequence; on the
other hand in a frustrated felony, the offender
performed all the acts of execution; thus, his external
acts would produce the felony as a consequence.
FRUSTRATEDANDCONSUMMATED- In
frustrated and consummated felony, the accused
performed all acts of execution that would produce
the felony as a consequence. If the felony is not
produced due to external cause, the crime committed

2015 BAR REVIEWER ON CRIMINAL LAW


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JUDGE MARLO B. CAMPANILLA

is frustrated felony; if the felony is produced the crime


committed is consummated.
In frustrated felony, the offender performed all
the acts of execution but the felony was not produced
as a consequence due to extraneous cause. However,
there are felonies, the commission of which has no
frustrated stage since the performance of all the acts
of execution immediately consummates the felony. In
homicide or murder case, once the offender inflicted
mortal wound on the victim, all the acts of execution
are considered performed. However, what
consummates homicide or murder is not the infliction
of mortal wounds but the death of the victim as a
consequence of the mortal wound inflicted. Thus, if
the mortally wounded victim did not die due to
medical intervention, homicide or murder is only at
the frustrated stage. On the other hand, in rape once
the offender sexually penetrate the labia of the vagina
of the victim, all the acts of execution are considered
performed. But since sexual penetration
consummates rape, there are no occasions where the
offender performed all the acts of execution and yet
the felony was not produced as a consequence. In
sum, there is no such thing as frustrated rape since
the performance of all the acts of execution
immediately consummates rape.
ABSOLUTORY CAUSE In attempted felony
and frustrated felony, the offender failed to
accomplish his criminal objective by reason of
extraneous causes; if the causes are not extraneous,
the accused will be absolved from criminal liability.
a. Negative Act - In the attempted stage of
the execution of a felony, the offender must do a
negative act to be exempt from criminal liability for
attempted felony; since the offender has not yet
performed all the acts of execution that would
produce the felony as a consequence, he must
spontaneously desist from further doing criminal acts
that will complete all the acts of execution. Example:
A with intent to kill shot B; B sustained nonmortal wound. To be exempt from criminal liability for
attempted homicide or murder, A must
spontaneously desist from further shooting B in
order not to inflict mortal injury upon him.
b. Positive Act If the offender performs all
the acts of execution, which would produce the felony
as a consequence, offender is not exempted from
liability for frustrated felony even if he voluntary
desisted from further doing criminal act. Spontaneous
desistance is a defense in attempted felony but not in
frustrated felony. In the frustrated stage of the
execution of a felony, the offender must do a positive
act to be exempt from criminal liability; since the
offender has performed all the acts of execution that
would produce the felony as a consequence, he must
do something to prevent, or thwart the production of
the felony. Example: A with intent to kill shot B; B
sustained mortal wound. To be exempt from criminal
liability for frustrated felony, it is not enough that A
would desist from further shooting B. The
spontaneous desistance is not a valid defense since
A had already inflicted mortal wound on B that
would cause his death as a consequence. Thus, A
must save the life of B by treating his wound. If B
did not die because As medical treatment, the latter
will not be held liable for frustrated felony because
the homicide was not produced due to the will of A.
c. Not absolutory cause If the felony is
consummated, offender cannot undo what was done.
Offender would not be absolved from criminal liability
even if he had done something that will mitigate the
effects of the felonious act. Example: (1) Restitution of
funds malversed immediately and voluntarily made

before the case was instituted is not an absolutory


cause (Navarro vs. Meneses III, CBD Adm. Case No.
313, January 30, 1998, En Banc). (2) A stole chicken
under the house of B one evening. Realizing that
what he did was wrong, A returned the chicken to
the place under the house of B. Since the crime of
theft was already consummated, the return of the
stolen property does not relieve A of criminal
responsibility. A had already performed all the acts
of execution, which produced the crime of theft before
he returned the chicken (Reyes). (3) The fact that the
accused abandoned victim after six days of captivity
does not lessen his criminal culpability much less
exempt him from criminal liability for the kidnapping
and detention of victim (Baldogo, G.R. No. 128106-07,
January 24, 2003, En Banc).
SPONTANOEUS DESISTANCE - The term
spontaneous is not equivalent to voluntary. Even if the
desistance is voluntary, the same could not exempt the
offender from liability for attempted felony if there is
an external constraint. The term spontaneous means
proceeding from natural feeling or native tendency
without external constraint; it is synonymous with
impulsive, automatic and mechanical (People vs.
Lizada, G.R. No. 143468-71, January 24, 2003, En
Banc).
Accused had previously raped the victim
several times. During the subject incident, accused was
wearing a pair of short pants but naked from waist up.
He entered the bedroom of victim, went on top of her,
held her hands, removed her panty, mashed her
breasts and touched her sex organ. However, accused
saw Rossel peeping through the door and dismounted.
He berated Rossel for peeping and ordered him to go
back to his room and to sleep. Accused then left the
room of the victim. Held: Accused intended to have
carnal knowledge of victim. The overt acts of accused
proven by the prosecution were not merely preparatory
acts. By the series of his overt acts, accused had
commenced the execution of rape, which, if not for his
desistance, will ripen into the crime of rape. Although
accused desisted from performing all the acts of
execution, however, his desistance was not
spontaneous as he was impelled to do so only because
of the sudden and unexpected arrival of Rossel.
Hence, accused is guilty only of attempted rape
(People vs. Lizada, G.R. No. 143468-71, January 24,
2003, EnBanc).
HOMICIDE OR MURDER The intent to kill, as
an essential element of homicide at whatever stage,
may be before or simultaneous with the infliction of
injuries. The evidence to prove intent to kill may
consist of, inter alia, the means used; the nature,
location and number of wounds sustained by the
victim; and the conduct of the malefactors before, at
the time of, or immediately after the killing of the
victim (Escamilla vs. People, GR No. 188551, February
27, 2013).
X opened the door and while still in the car
drew a gun and shot A once, hitting him just below the
left armpit. X sped away. The wound sustained by A is
not fatal. What is the crime committed? Answer: X only
shot the victim once and did not hit any vital part of
the latter's body. If he intended to kill him, X could
have shot the victim multiple times or even ran him
over with the car. Since intent to kill is lacking but
wounds are inflicted upon the victim, the crime is not
attempted murder but physical injuries only
(Pentecostes, Jr. vs. People, GR No. 167766, April 07,
2010).
X was charged with frustrated murder for
hacking the neck of victim with the use of a scythe.
Invoking the doctrine in Pentecostes, Jr., X claimed that

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

had he intended to kill victim, he could have


repeatedly hacked him to ensure the latters death. Is
the argument tenable? Answer: No. Pentesoste Jr. case
is not applicable since the victim in that case was shot
in the arm, a non-vital part of the body. In this case, the
use of a scythe against victims neck was
determinative of the homicidal intent of X. A single
hacking blow in the neck could be enough to
decapitate a person and leave him dead. Refraining
from further hacking the victim does not negate intent
to kill. What could have been a fatal blow was already
delivered and there was no more desistance to speak
of (People vs. Abella, G.R. No. 198400, October 07,
2013).

COLLECTIVE RESPONSIBILITY - It is
immaterial whether appellant acted as a principal or as
an accomplice because the conspiracy and his
participation therein have been established. In
conspiracy, the act of one is the act of all and the
conspirators shall be held equally liable for the crime
(People vs. Siongco, G.R. No. 186472, July 5, 2010).

Using a gun, he shot the victim in the chest.


Despite a bloodied right upper torso, the latter still
managed to run towards his house to ask for help.
Nonetheless, petitioner continued to shoot at him three
more times, albeit unsuccessfully. The wound sustained
by the victim is fatal. The crime committed is
frustrated homicide (Escamilla vs. People, GR No.
188551, February 27, 2013).

MASTERMIND - To be held liable as


conspirator, it must also be shown that the accused
performed an overt act in furtherance of the conspiracy
except in the case of the mastermind of a crime
(People vs. Vera, GR No. 128966, August 18, 1999).
One who plans the commission of a crime is liable as
conspirator and principal by inducement (People vs.
Comiling, G.R. No. 140405, March 4, 2004, En
banc).Notwithstanding, the fact that one was not at the
crime scene, evidence proved that he was the
mastermind of the criminal act or the principal by
inducement. What is important is that inducement was
the determining cause of the commission of the
crime. The command or advice made by principal by
inducement was of such nature that, without it, the
crime would not have materialized (People vs.
Janjalani, G.R. No. 188314, January 10, 2011).

COMPLEX CRIME
Killing persons and injuring two more by
treacherously detonating a hand grenade in a dancing
place constitutes the complex crime of multiple
murders with double attempted murder. Single act of
detonating an explosive device may quantitatively
constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses
should be considered only as a single crime in law on
which a single penalty is imposed because the offender
was impelled by a single criminal impulse which shows
his lesser degree of perversity. Even though the other
victim did not suffer mortal wounds, the crime
committed is not physical injuries, because accused
was motivated by the same intent to kill when he
detonated the explosive device inside the dancing
place (People vs. Barde, G.R. No. 183094, September
22, 2010).
RECOMMENDED EXECUTIVE CLEMENCY
Accused was convicted of crime RA No. 8282
for his failure to remit SSS contributions of his
employees and was sentenced to suffer up to 20 years
of reclusion temporal. The penalty is excessive since
he already paid his delinquent contribution. Under
Article 5 of the Revised Penal Code, the courts are
bound to apply the law as it is and impose the proper
penalty, no matter how harsh it might be. The same
provision, however, gives the Court the discretion to
recommend to the President actions it deems
appropriate but are beyond its power when it considers
the penalty imposed as excessive. Although an
accused is convicted under a special penal law, the
Court is not precluded from giving the Revised Penal
Code suppletory application in light of Article 10 of the
same Code (Mendoza vs. People, G.R. No. 183891,
October 19, 2011).
CONSPIRACY
IMPLIED CONSPIRACY - In People vs.
Dollendo, G.R. No. 181701, January 18, 2012 -The
evidence of a chain of circumstances, to wit: that
appellant went inside the house of Romines to
ascertain that the victim was there; that he fetched
Dollendo to bring him to Ruiz; that he gave
the dipang to Dollendo to commit the crime; and that
they both fled after the stabbing, taken collectively,
shows a community of criminal design to kill the victim.
Evidently, there was conspiracy in the commission of
the crime.

DISSOCIATION - To exempt himself from


criminal liability, a conspirator must have performed an
overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the
commission thereof (People vs. Ebet, G.R. No. 181635
November 15, 2010).

PRESENCE - Accused, unarmed, appeared in


the company of his employer, and another person. His
employer shot and killedthe victim. Accused did
nothing to prevent the killing. Accused fled together
with his employer and other person.The fact that
accused appeared together with employer and another
and fled with them proves a certain degree of
participation and cooperation in the execution of the
crime. However, there is doubt as to whether accused
acted as a principal or just a mere accomplice. Such
doubt should be resolved in favor of the milder form of
criminal liabilitythat of a mere accomplice (People vs.
Tomas, G.R. No. 192251, February 16, 2011). If the
accused is armed at the time, he could be held liable
as principal on the basis of implied conspiracy. The fact
that the companion of the criminal actor is armed may
mean that the former is supplying moral assistance to
the latter. The armed presence of conspiratorial
companion may prove a sense of security and
encouragement on the part of the material executor or
may serve as deterrence against possible defender or
rescuer (Galgo, G.R. No. 133887, May 28, 2002, En
Banc).

SPECIAL LAW - B.P. Blg. 22 does not


expressly proscribe the supplementary application of
the provisions RPC including the rule on conspiracy.
Hence, such rule may be applied supplementarily.
Thus, a non-issuer of bum check can be held liable for
violation of BP Blg. 22 on the basis of conspiracy.
(Ladonga vs. People, G.R. No. 141066, February 17,
2005). The principle of conspiracy may be applied to
RA No. 9262. Thus, a person (such as mother-in-law),
who has no marital, sexual or dating relationship with
the victim, can be held liable for violence against
woman on the basis of conspiracy (Go-Tan vs. Go, G.R.
No. 168852, September 30, 2008)

Anti-graft law - May a private person be


indicted for conspiracy in violating Section 3(g) of R.A.

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3019 even if the public officer, with whom he was


alleged to have conspired, has died prior to the filing of
the Information? Answer: Yes. The death of the public
officer does not meanthat the allegation of conspiracy
between him and private individual can no longer be
proved or that their alleged conspiracy is already
expunged. The only thing extinguished by the death of
the public officer is his criminal liability. His death did
not extinguish the crime nor did it remove the basis of
the charge of conspiracy between him and private
individual (People vs. Go, GR NO. 168539, March 25,
2014, en banc).
Robbery with rape When a homicide takes
place by reason of or on the occasion of the robbery,
all those who took part shall be guilty of the special
complex crime of robbery with homicide whether they
actually participated in the killing, unless there is proof
that there was an endeavor to prevent the killing. The
records are bereft of any evidence to prove, or even
remotely suggest, that appellant attempted to prevent
the killing. Therefore, the basic principle in conspiracy
that the "act of one is the act of all," applies in this
case (People vs. Ebet, GR No. 181635, November 15,
2010; People vs. De Leon, GR No. 179943, June 26,
2009; People vs. Diu, GR No. 201449, April 03, 2013)
If a robber tries to prevent the commission of
homicide after the commission of the robbery, he is
guilty only of robbery and not of robbery with
homicide. All those who conspire to commit robbery
with homicide are guilty as principals of such crime,
although not all profited and gained from the robbery.
One who joins a criminal conspiracy adopts the
criminal designs of his co-conspirators and can no
longer repudiate the conspiracy once it has
materialized (People vs. Ebet, GR No. 181635,
November 15, 2010; People vs. Diu, GR No. 201449,
April 03, 2013).
Kidnapping with rape - A, B and C
kidnapped X from her house, and then detained her in
a safe house for purpose of extorting ransom. While C
went to Jolibee to buy food, A raped X in the presence
of B. What is the crime committed by A, B and C?
Answer: A is liable for special complex crime of
kidnapping and serious illegal detention with rape.
Since X is a female, taking her away from her house
against her will and holding her as captive constitute
kidnapping and serious illegal detention. Raping the
kidnapped victim is a qualifying circumstance. These
two crimes should be integrated together to form a
composite crime where the law prescribes a single
penalty.
B is also liable for special complex crime of
kidnapping and serious illegal detention with rape.
Since conspiracy is established between A and B in the
commission of kidnapping, the latter is responsible for
the rape committed by former since there is no
showing that B endeavored to prevent A from raping X
(People vs. Anticamaray, GR No. 178771, June 08,
2011).
C is only liable for kidnapping and serious
illegal detention. Since there is no evidence that he is
aware of the commission of rape, he could not have
prevented A from raping the victim. Hence, he is not
responsible for the rape (People vs. Anticamaray,
supra).
SELF-DEFENSE
SELF-HELP PRINCIPLE - In People vs.
Apolinar, CA, 38 O.G. 2870, it was held: Defense of
property is not of such importance as right to life, and
defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on

the person of one entrusted with said property.


However, in People vs. Narvaez, G.R. Nos. L-33466-67,
April 20, 1983, the SC found the presence of unlawful
aggression despite the fact that the invasion of his
property right was not coupled by an attack against the
accused. The accused has the right to resist pursuant
Article 429 of the Civil Code, which provides: The
owner or lawful possessor of a thing has the right to
exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as
may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or
usurpation of his property. However, since the means
employed to resist the invader (killing) is not
reasonable, the accused is merely given the benefit of
incomplete self-defense. Justice Florenz Regalado
stated that the rule in Apolinar case may be deemed to
have been superseded by Narvaez case.
UNLAWFUL AGGRESSION The essential
requisites of self-defense are the following: (1) unlawful
aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel
such aggression; and (3) lack of sufficient provocation
on the part of the person resorting to self-defense.
Verily, to invoke self-defense successfully, there must
have been an unlawful and unprovoked attack that
endangered the life of the accused, who was then
forced to inflict severe wounds upon the assailant by
employing reasonable means to resist the attack
(Belbis, Jr. vs. People, GR No. 181052, November 14,
2012).
The rule consistently adhered to in this
jurisdiction is that when the accuseds defense is selfdefense he thereby admits being the author of the
death of the victim, that it becomes incumbent upon
him to prove the justifying circumstance to the
satisfaction of the court. The rationale for the shifting
of the burden of evidence is that the accused, by his
admission, is to be held criminally liable unless he
satisfactorily establishes the fact of self-defense. But
the burden to prove guilt beyond reasonable doubt is
not thereby lifted from the shoulders of the State,
which carries it until the end of the proceedings. In
other words, only the onus probandi shifts to the
accused, for self-defense is an affirmative allegation
that must be established with certainty by sufficient
and satisfactory proof. He must now discharge the
burden by relying on the strength of his own evidence,
not on the weakness of that of the Prosecution,
considering that the Prosecutions evidence, even if
weak, cannot be disbelieved in view of his admission of
the killing (People vs. Roman, GR No. 198110, July 31,
2013).
Unlawful aggression is a condition sine qua
non for the justifying circumstance of self-defense.
Without it, there can be no self-defense, whether
complete or incomplete, that can validly be invoked.
There is an unlawful aggression on the part of the
victim when he puts in actual or imminent danger the
life, limb, or right of the person invoking self-defense.
There must be actual physical force or actual use of a
weapon. It is present only when the one attacked
faces real and immediate threat to ones life. It must
be continuous; otherwise, it does not constitute
aggression warranting self-defense (People vs. Gamez,
GR No. 202847, October 23, 2013).Accordingly, the
accused must establish the concurrence of three
elements of unlawful aggression, namely: (a) there
must be a physical or material attack or assault; (b) the
attack or assault must be actual, or, at least, imminent;
and (c) the attack or assault must be unlawful (People
vs. Roman, GR No. 198110, July 31, 2013).
Kinds of aggression - Unlawful aggression is
of two kinds: (a) actual or material unlawful

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aggression; and (b) imminent unlawful aggression.


Actual or material unlawful aggression means an attack
with physical force or with a weapon, an offensive act
that positively determines the intent of the aggressor
to cause the injury. Imminent unlawful aggression
means an attack that is impending or at the point of
happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must be
offensive and positively strong (like aiming a revolver
at another with intent to shoot or opening a knife and
making a motion as if to attack). Imminent unlawful
aggression must not be a mere threatening attitude of
the victim, such as pressing his right hand to his hip
where a revolver was holstered, accompanied by an
angry countenance, or like aiming to throw a pot
(People v. Del Castillo, G.R. No. 169084, January 18,
2012; People vs. Roman, GR No. 198110, July 31, 2013;
People vs. Malicdem, G.R. No. 184601, November 12,
2012 (Justice De Castro)
Ordinarily there is a difference between the act
of drawing ones gun and the act of pointing ones gun
at a target. The former cannot be said to be unlawful
aggression on the part of the victim. For unlawful
aggression to be attendant there must be a real danger
to life or personal safety. Unlawful aggression requires
an actual, sudden and unexpected attack, or imminent
danger thereof, and not merely a threatening or
intimidating attitude. Here, the act of the victim in
drawing a gun from his waist cannot be categorized as
unlawful aggression. Such act did not put in real peril
the life or personal safety of appellant. The facts
surrounding the case must, however, be differentiated
from current jurisprudence on unlawful aggression.
Accused was justified in defending himself considering
that victim was a trained police officer and an
inebriated and disobedient colleague. Even if the
victim did not point his firearm at accused, there would
still be a finding of unlawful aggression on the part of
the victim (Nacnac vs. People, G.R. No. 191913, March
21, 2012).
In People vs. Fontanilla, G.R. No. 177743,
January 25, 2012 - Indeed, had victim really attacked
accused, the latter would have sustained some injury
from the aggression. It remains, however, that no
injury of any kind or gravity was found on the person of
accused when he presented himself to the hospital. In
contrast, the physician who examined the cadaver of
victim testified that he had been hit on the head more
than once. The plea of self-defense was thus belied, for
the weapons used by accused and the location and
number of wounds he inflicted on victim revealed his
intent to kill, not merely an effort to prevent or repel an
attack from victim. We consider to be significant that
the gravity of the wounds manifested the determined
effort of the accused to kill his victim, not just to
defend himself.
Ceased aggression - The unlawful aggression
on the part of the victim ceased when accused Rodolfo
was able to get hold of the bladed weapon. Although
there was still some struggle involved between the
victim and accused, there is no doubt that the latter,
who was in possession of the same weapon, already
became the unlawful aggressor. Retaliation is not the
same as self-defense. In retaliation, the aggression that
was begun by the injured party already ceased when
the accused attacked him, while in self-defense the
aggression still existed when the aggressor was injured
by the accused. Such an aggression can also be
surmised on the four stab wounds sustained by the
victim on his back. It is hard to believe based on the
location of the stab wounds, all at the back portion of
the body, that accused was defending himself. It would
have been different if the wounds inflicted were
located in the front portion of the victim's body. Thus,

the first element of self-defense is not present (Belbis,


Jr. vs. People, GR No. 181052, November 14, 2012).
Necessary means - The means employed by
a person claiming self-defense must be commensurate
to the nature and the extent of the attack sought to be
averted, and must be rationally necessary to prevent
or repel an unlawful aggression. In the present case,
four stab wounds that are the product of direct
thrusting of the bladed weapon are not necessary to
prevent what the accused claim to be the continuous
unlawful aggression from the victim as the latter was
already without any weapon. In connection therewith,
having established that there was no unlawful
aggression on the part of the victim when he was
stabbed, accused cannot avail of the mitigating
circumstance of incomplete self-defense (Belbis, Jr. vs.
People, GR No. 181052, November 14, 2012).
Under doctrine of rationale equivalence, plea of
self-defense would prosper if there is a rational
equivalence between the means of attack by the
unlawful aggressor and the means of defense by the
accused that would characterize the defense as
reasonable. The doctrine of rational equivalence
presupposes the consideration not only of the nature
and quality of the weapons used by the defender and
the assailantbut of the totality of circumstances
surrounding the defense vis--vis, the unlawful
aggression. Clearly, this continuous attack by
accused despite the fact that aggressor already was
neutralized by the blow constitutes force beyond what
is reasonably required to repel the aggressionand is
therefore unjustified (Espinosa vs. People, G.R. No.
181071, March 15, 2010).
BATTERED WOMAN SYNDROME: "Battered
Woman Syndrome" refers to a scientifically defined
pattern of psychological and behavioral symptoms
found in women living in battering relationships as a
result of cumulative abuse (Section 3 of RA No. 9262).
Each of the phases of the cycle of violence must be
proven to have characterized at least two battering
episodes between the accused and her intimate
partner and such final episode produced in the
battered persons 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
vs. Genosa, G.R. No. 135981, January 15, 2004). The
three phases of the Battered Woman Syndrome are:
(1) the tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving or non-violent
phase (People vs. Genosa, G.R. No. 135981, January
15, 2004; Answer to the 2010 Bar Examination
Questions by UP Law Complex). The essence of this
defense of Battered Woman Syndrome as a defense
is that battered woman, who suffers from physical and
psychological or emotional distress, is acting under an
irresistible impulse to defend herself although at the
time of commission of the crime the batterer-victim
had not yet committed unlawful aggression. In Genosa
supra, it was held that it is crucial to the BWS
defense is the state of mind of the battered woman at
the time of the offense. She must have actually
feared imminent harm from her batterer and honestly
believed in the need to kill him in order to save her
life. That is why even in the absence of actual
aggression or any other element of self-defense, a
woman, who is found to be suffering from battered
woman syndrome is not criminally liable for killing her
husband.
IRRESISTABLE FORCE
A person who acts under the compulsion of an
irresistible force, like one who acts under the impulse
of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act

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JUDGE MARLO B. CAMPANILLA

with freedom. Actus me invite factus non est meus


actus. An act done by me against my will is not my
act. The force contemplated must be so formidable as
to reduce the actor to a mere instrument who acts not
only without will but against his will. The duress, force,
fear or intimidation must be present, imminent and
impending, and of such nature as to induce a wellgrounded apprehension of death or serious bodily harm
if the act be done. A threat of future injury is not
enough. The compulsion must be of such a character
as to leave no opportunity for the accused for escape
or self-defense in equal combat (People vs. Dequina,
G.R. No. 177570, January 19, 2011)
MINORITY
The rights and privileges of a child in conflict
with the law are as follows:
1. Exempting circumstance of minority To exempt a minor, who is 15 years old or more, from
criminal liability, it must be shown that he committed
the criminal act without discernment. Choosing an
isolated and dark place to perpetrate the crime, to
prevent detection and boxing the victim to weaken her
defense are indicative of accuseds mental capacity to
fully understand the consequences of his unlawful
action (People vs. Jacinto, G.R. No. 182239, March 16,
2011).

A child, who are already serving sentence, shall


likewise benefit from the retroactive application of RA
9344. They shall be immediately released if they are so
qualified under this Act or other applicable law (Section
68 of RA No. 9344; People vs. Monticalvo, G.R. No.
193507, January 30, 2013).

2. Privilege mitigating circumstance In


People vs. Agacer, G.R. No. 177751, January 7, 2013
Accused is entitled to the privileged mitigating
circumstance of minority, which graduates the penalty
one degree lower. The rationale of the law in extending
such leniency and compassion is that because of his
age, the accused is presumed to have acted with less
discernment. This is regardless of the fact that his
minority was not proved during the trial and that his
birth certificate was belatedly presented for our
consideration, since to rule accordingly will not
adversely affect the rights of the state, the victim and
his heirs.
Under Section 98 of RA No. 9165, the
provisions in RPC is not applicable unless the accused
is a minor. In such case, the penalty of life
imprisonment shall be considered reclusion perpetua.
In sum, if the accused is a minor, Article 68 of RPC on
the privilege mitigating circumstance of minority shall
apply to crime of illegal possession of dangerous drug
even though this is malum prohibitum punishable by
life imprisonment. Hence, the penalty of life
imprisonment for illegal possession of dangerous drug
committed by a minor, which is treated as reclusion
perpetua, shall be graduated to reclusion temporal
because of the privilege mitigating circumstance of
minority (People vs. Montalaba, G.R. No. 186227, July
20, 2011)
3. Suspension of sentence - While Section
38 of RA 9344 provides that suspension of sentence
can still be applied even if the child in conflict with the
law is already 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. Hence, the

child in conflict with the law, who reached 21 years,


cannot avail of privilege of suspension of
sentence(People vs. Mantalba, G.R. No. 186227, July
20, 2011; People vs. Salcedo, GR No. 186523, June 22,
2011; People vs. Arpon, G.R. No. 183563, December
14, 2011 (Justice De Castro; People vs. Monticalvo,
G.R. No. 193507, January 30, 2013).
4. Probation - Right to apply for probation
despite appeal- Section 4 of PD No. 968 provides:
Application for probation must be filed within the
period of perfecting an appeal and no application for
probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment
of conviction. However, RA No. 9344 has expressly
amended Section 4 of PD No. 968 and provides that a
child in conflict with the law can apply for probation at
any time. Section 42 of RA No. 9344 provides: The
court may, after it shall have convicted and sentenced
a child in conflict with the law, and upon application at
any time, place the child on probation in lie of service
of his/her sentence taking into account the best
interest to the child. The phrase at any time
mentioned in Section 42 means the child in conflict
with the law may file application for probation even
beyond the period of perfecting an appeal and even if
the child has perfected the appeal from the judgment
of conviction.

Right of possessor or user of dangerous drugs


to apply for probation - The rule under Section 24 of
RA No. 9165, which disqualifies drug traffickers and
pushers for applying for probations, does not extend
to possessor of dangerous drugs. In Padua vs. People,
G.R. No. 168546, July 23, 2008, it was held that: The
law considers the users and possessors of illegal
drugs as victims while the drug traffickers and
pushers as predators. Hence, while drug traffickers
and pushers, like Padua, are categorically disqualified
from availing the law on probation, youthful drug
dependents, users and possessors alike, are given the
chance to mend their ways.

Right to apply for probation even if the penalty


for possession of dangerous drug is more than 6 years
Under Section 9 of PD 968, one is sentenced to suffer a
penalty (maximum indeterminate penalty) of more
than is not qualified to apply for probation. However,
under Section 70 of RA No. 9165, a first time minor
offender can apply for probation for the crime of illegal
possession of dangerous drug even if the penalty is
higher than 6 years of imprisonment.
5. Agricultural camp or other training
facilities - The child in conflict with the law may, after
conviction and upon order of the court, be made to
serve his sentence, in lieu of confinement in a regular
penal institution, in an agricultural camp and other
training facilities in accordance with Section 51 of RA
No. 9344 (People vs. Mantalba, G.R. No. 186227, July
20, 2011; People vs. Salcedo, GR No. 186523, June 22,
2011; People vs. Arpon, G.R. No. 183563, December
14, 2011, Justice De Castro).
6. Full credit of preventive imprisonment Under Article 29 of RPC, a convicted recidivist is not
entitled to a full or 4/5 credit of his preventive
imprisonment. However, if the convict is a child, the
applicable rule for crediting the period of commitment
and detention is not Article 29 of RPC but Section 41,
RA 9344. Under the said provision, the full time spent
in actual commitment and detention of juvenile

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JUDGE MARLO B. CAMPANILLA

delinquent shall be credited in the services of his


sentence (Atizado vs. People, G.R. No. 173822, October
13, 2010.
IMBECILITY
In exempting circumstance of minority under
Section 6 of RA No. 9344, what is important is the
chronological age of the accused. If the actual age of
the child is 15 years or under, he is exempt from
criminal liability. In People vs. Roxas, G.R. No. 200793,
June 04, 2014 - In determining age for purposes of
exemption from criminal liability, Section 6 clearly
refers to the age as determined by the anniversary of
ones birth date, and not the mental age.
In exempting circumstance of imbecility, what
is important is the mental age of the accused. If the
mental age of the accused is 2 years, he is an idiot; if
his mental age is 7 years old, he is an imbecile (People
vs. Butiong, G.R. No. 168932, October 19, 2011). An
idiot or imbecile is exempt from criminal liability.
If the mental age of the accused is 12 years
old, he is a feebleminded (People vs. Butiong). A
feebleminded is not an imbecile; hence, he is not
exempt from criminal liability (People vs. Nunez, G.R.
NO. 112429-30, July 23, 1997)
In People vs. Roxas, the chronological age of
the victim is 18 years while his mental age is 9 years
old. Exempting circumstance of minority cannot be
appreciated since he is not a minor. His actual age is
not below 18 years. Exempting circumstance of
imbecility cannot be appreciated. He is not an imbecile
since his mental age is not 7 years.
INSANITY
Acts penalized by law are always presumed to
be voluntary, and it is improper to conclude that a
person acted unconsciously in order to relieve him of
liability, unless his insanity is conclusively proved
(People vs. Pambid, GR No. 124453, March 15,
2000).Insanity is the exception rather than the rule in
the human condition. The presumption, under Article
800 of the Civil Code, is that every human is sane.
Anyone who pleads the exempting circumstance of
insanity bears the burden of proving it with clear and
convincing evidence. It is in the nature of confession
and avoidance. An accused invoking insanity admits to
have committed the crime but claims that he or she is
not guilty because of insanity (People vs. Tibon, G.R.
No. 188320, June 29, 2010).
Insanity as an exempting circumstance must
relate to the time immediately preceding or
coetaneous with the commission of the offense with
which accused is charged (People vs. Tibon, supra).
COGNITION TEST AND VOLITION TEST The case of Formigones established two distinguishable
tests to determine the insane condition of the accused:
(a) The test of cognition whether there was a
complete deprivation of intelligence in committing the
criminal act After satisfying his lust, accused
threatened the victim. This implies that accused knew
what he was doing, that it was wrong, and wanted to
keep it a secret. It also indicated that the crime was
committed during one of his lucid intervals. Accused is
not exempt from liability for failure to pass the
cognition test (People vs. Alipio, G.R. No. 185285,
October 5, 2009) and

Evidence tended to show that accused was not


deprived of reason at all and can still distinguish right
from wrong when, after satisfying his lust, he
threatened victim. This single episode irresistibly
implies, for one, that accused knew what he was doing,
that it was wrong, and wanted to keep it a secret. And
for another, it indicated that the crime was committed
during one of lucid intervals of accused (People vs.
Alipio, supra).
(b) The test of volition whether there was a
total deprivation of freedom of the will. In the Bonoan
case, schizophrenic accused, who acted under
irresistible homicidal impulse to kill (volition test), was
acquitted due to insanity. This is not anymore a good
rule. Even if the mental condition of the accused had
passed the volition test, the plea of insanity will not
prosper unless it also passed the cognition test. The
controlling test is cognition (People vs. Opuran, G.R.
Nos. 147674-75, March 17, 2004).Accused will be
convicted if he was not totally deprived of reason and
freedom of will (People vs. Garchitorena, G. R. No.
175605, August 28, 2009 (Justice De Castro). Only
when there is a complete deprivation of intelligence at
the time of the commission of the crime should the
exempting circumstance of insanity be considered
(People vs. Bulagao, G.R. No. 184757, October 05, 201,
Justice De Castro).
In recent Supreme Court cases, the plea of
insanity of person, who is suffering from schizophrenia,
was rejected because of failure to pass the cognition
test. In sum, a schizophrenic accused must be deprived
completely of intelligence to be exempt from criminal
liability (See: People vs. Medina, G.R. No. 113691,
February 6, 1998; People vs. Pascual, G.R. No. 95029,
March 24, 1993).If a person (such as sex maniac,
homicidal maniac or kleptomaniac)had merely passed
the volition test but not the cognition test, he will only
be given the benefit of mitigating circumstance of
illness. Diminution of freedom of the will is enough to
mitigate the liability of the offender suffering from
illness (See: People vs. Rafanan, Jr. November 21,
1991, G.R. No. 54135, November 21, 1991).
ABSOLUTORY CAUSE IN CRIME AGAINST
PROPERTY
No criminal liability is incurred by the
stepfather who commits malicious mischief against his
stepson; by the stepmother who commits theft against
her stepson; by the stepfather who steals something
from his stepson; by the grandson who steals from his
grandfather; by the accused who swindles his sister-inlaw living with him; and by the son who steals a ring
from his mother (Intestate Estate of Gonzales vs.
People, G.R. No. 181409, February 11, 2010). The
absolutory cause applies to theft, swindling and
malicious mischief. It does not apply to theft through
falsification or estafa through falsification (Intestate
Estate of Gonzales vs. People, G.R. No. 181409,
February 11, 2010). There are two viewson whether the
extinguishment of marriage by death of the spouse
dissolves the relationship by affinity for purpose of
absolutory cause. The first holds that relationship by
affinity terminates with the dissolution of the marriage,
while the second maintains that relationship continues
even after the death of the deceased spouse. The
principle of pro reocalls for the adoption of the
continuing affinity view because it is more favorable to
the accused (Intestate estate of Gonzales vs. People,
G.R. No. 181409, February 11, 2010).
INSTIGATION AND ENTRAPMENT

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Instigation means luring the accused into a


crime that he, otherwise, had no intention to commit,
in order to prosecute him." It differs from entrapment
which is the employment of ways and means in order
to trap or capture a criminal. In instigation, the criminal
intent to commit an offense originates from the inducer
and not from the accused who had no intention to
commit and would not have committed it were it not
for the prodding of the inducer. In entrapment, the
criminal intent or design originates from the accused
and the law enforcers merely facilitate the
apprehension of the criminal by using ruses and
schemes. Instigation results in the acquittal of the
accused, while entrapment may lead to prosecution
and conviction.

buyer seeking to expose his criminal act; or (3) that the


police authorities feigning complicity in the act were
present and apparently assisted in its commission."

Instigation means luring the accused into a


crime that he, otherwise, had no intention to commit,
in order to prosecute him. It differs from entrapment
which is the employment of ways and means in order
to trap or capture a criminal. In instigation, the criminal
intent to commit an offense originates from the inducer
and not from the accused who had no intention to
commit and would not have committed it were it not
for the prodding of the inducer. In entrapment, the
criminal intent or design originates from the accused
and the law enforcers merely facilitate the
apprehension of the criminal by using ruses and
schemes. Instigation results in the acquittal of the
accused, while entrapment may lead to prosecution
and conviction (People vs. Espiritu, G.R. No. 180919,
January 9, 2013).

MITIGATING CIRCUMSTANCES

In People vs. Espiritu et. Al., G.R. No. 180919,


January 9, 2013 - Here, the evidence clearly
established that the police operatives employed
entrapment, not instigation, to capture appellant and
her cohorts in the act of selling shabu. It must be
recalled that it was only upon receipt of a report of the
drug trafficking activities of Espiritu from the
confidential informant that a buy-bust team was
formed and negotiations for the sale of shabu were
made. Also, appellant testified that she agreed to the
transaction of her own free will when she saw the same
as an opportunity to earn money. Notably too,
appellant was able to quickly produce a sample. This
confirms that she had a ready supply of the illegal
drugs. Clearly, she was never forced, coerced or
induced through incessant entreaties to source the
prohibited drug for Carla and PO3 Cario and this she
even categorically admitted during her testimony.

Moreover, a police officers act of soliciting


drugs from appellant during the buy-bust operation, or
what is known as the "decoy solicitation," is not
prohibited by law and does not invalidate the buy-bust
operation. in a prosecution for sale of illicit drugs, any
of the following will not exculpate the accused: "(1)
that facilities for the commission of the crime were
intentionally placed in his way; or (2) that the criminal
act was done at the solicitation of the decoy or poseur-

Hence, even assuming that the PAOCTF


operatives repeatedly asked her to sell them shabu,
appellants defense of instigation will not prosper. This
is "especially true in that class of cases where the
offense is the kind that is habitually committed, and
the solicitation merely furnished evidence of a course
of conduct. Mere deception by the police officer will not
shield the perpetrator, if the offense was committed by
him free from the influence or instigation of the police
officer."

VOLUNTARY SURRENDER To appreciate the


mitigating circumstance of voluntary surrender, the
following requisites must be proven, namely: (1) the
offender has not actually been arrested; (2) the
offender surrendered himself to a person in authority;
and (3) the surrender was voluntary. A surrender to be
voluntary must be spontaneous, showing the intent of
the accused to submit himself unconditionally to the
authorities, either because he acknowledges his guilt,
or he wishes to save them the trouble and expense
necessarily incurred in his search and capture.
Voluntary surrender presupposes repentance (People
vs. Tabarnero, G.R. No. 168169, February 24, 2010,
Justice De Castro)
The surrender made after 14 days from the
date of killing cannot be considered voluntary since his
act did not emanate from a natural impulse to admit
the killing or to save the police officers the effort and
expense that would be incurred in his search and
incarceration. (People vs. Agacer, G.R. No. 177751,
December 14, 2011).
The accused surrendered only after having
been informed of the charge of rape against him or
about two months from the commission of the alleged
crime. He even denied the said charge upon his
purported surrender. The alleged surrender, therefore,
does not qualify as a mitigating circumstance (People
vs. Salle, G.R. No. 181083, January 21, 2010, Justice
De Castro).
Surrender is not voluntary where the accused
went to Barangay Chairman after the killings to seek
protection against the retaliation of the victims
relatives, not to admit his participation in the killing of
the victims (People vs. Del Castillo, G.R. No. 169084,
January 18, 2012).

The evidence shows that the appellants were


arrested when the police officers manning the
checkpoint stopped the passenger jeepney driven by
appellant Ronald and arrested the appellants. The fact
that the appellants did not resist but went peacefully
with the peace officers does not mean that they
surrendered voluntarily (People vs. Castillano, G.R. No.
139412, April 2, 2003).

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JUDGE MARLO B. CAMPANILLA

VOLUNTARY CONFESSION - A plea of guilty


made after the prosecution had begun presenting its
evidence cannot be considered voluntary since it was
made only after the accused realized that the evidence
already presented by the prosecution is enough to
cause his conviction. It is not required that the
prosecution must have presented all its evidence when
the plea of guilty was made to negate the appreciation
of mitigating circumstance of voluntary confession
(People vs. Montinola, G.R. No. 131856-57, July 9,
2001, En Banc).

VENDICATION: The mitigating circumstance


of having acted in the immediate vindication of a grave
offense was, likewise, properly appreciated. The
appellant was humiliated, mauled and almost stabbed
by the deceased. Although the unlawful aggression
had ceased when the appellant stabbed Anthony, it
was nonetheless a grave offense for which the
appellant may be given the benefit of a mitigating
circumstance. But the mitigating circumstance of
sufficient provocation cannot be considered apart from
the circumstance of vindication of a grave
offense. These two circumstances arose from one and
the same incident, i.e., the attack on the appellant by
Anthony, so that they should be considered as only one
mitigating circumstance (People vs. Torpio, G.R. No.
138984, June 4, 2004).

In vindication of grave offense, criminal


exemption of accessories, alternative circumstance of
relationship and defense of stranger, the concept of
relationship is the same. It refers to (1) spouse, (2)
ascendants, (3) descendants, or (4) legitimate, natural
or adopted brothers or sisters or (5) of his relatives by
affinity in the same degrees. However, in defense of
relative, there is an additional concept of relationship.
It includes relatives by consanguinity within the fourth
civil degree. Thus, an uncle is a relative within the
concept of defense of stranger (Reyes). However,
relationship of uncle and niece is not an alternative
circumstance (People vs. Ulit, G.R. Nos. 131799-801,
February 23, 2004).
PASSION - The following essential
requirements must be present: (1) there was an act
that was both unlawful and sufficient to produce such
condition (passion or obfuscation) of the mind; and (2)
such act was not far removed from the commission of
the crime by a considerable length of time, during
which the perpetrator might have recovered his normal
equanimity (People vs. Comillo, G.R. No.
186538, November 25, 2009). Four days after the
victims attempted on the virtue of his wife, accused
killed them. The period of four days was sufficient
enough a time within which accused could have
regained his composure and self-control. Hence,
passion should not be appreciated (People vs. Rebucan,
G.R. No. 182551, July 27, 2011, Justice De Castro).

Generic aggravating circumstances has the


effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to
the next higher degree. It must always be alleged and
charged in the information, and must be proven during
the trial in order to be appreciated. Moreover, it can be
offset by an ordinary mitigating circumstance (People
vs. De Leon, GR No. 179943, June 26, 2009).
It is now a requirement that the aggravating as
well as the qualifying circumstances be expressly and
specifically alleged in the complaint or information.
Otherwise, they cannot be considered by the trial court
in its judgment, even, if they are subsequently proved
during trial (Sombilon, Jr. vs. People, G.R. No. 175528,
September 30, 2009, JusticeDe Castro)
Section 8, Rule 110 of the Rules of Court has
expressly required that qualifying and aggravating
circumstances be specifically alleged in the
information. Due to such requirement being pro reo,
the Court has authorized its retroactive application in
favor of even those charged with felonies committed
prior to December 1, 2000, which is the date of the
effectivity of the 2000 revision of the Rules of Criminal
Procedure that embodied the requirement (People vs.
Dadulla, G. R. No. 172321, February 9, 2011).
TAKING ADVANTAGE OF POSITION - The
mere use of service firearm is not enough to constitute
taking advantage of public position. Fact that accused
made use of firearms which they were authorized to
carry or possess by reason of their positions, could not
supply the required connection between the office and
the crime.The crime in question, for example, could
have been committed by the defendants in the same
or like manner and with the same case if they had
been private individuals and fired with unlicensed
weapons (People vs. Mandolado, G.R. No. L-51304, June
28, 1983; People vs. Joyno, G.R. No. 123982, March 15,
1999, En Banc; People vs. Villa, Jr., G.R. No. 129899,
April 27, 2000; People vs. Villamor, G.R. Nos. 14040708 and 141908-09, January 15, 2002, En Banc; and
People vs. Fallorina, G.R. No. 137347, March 4, 2004,
En Banc).

IGNOMINY - After killing the victim, the


accused severed his sexual organ. Should ignominy be
appreciated? No. For ignominy to be appreciated, it is
required that the offense be committed in a manner
that tends to make its effect more humiliating, thus
adding to the victims moral suffering. Where the
victim was already dead when his body or a part
thereof was dismembered, ignominy cannot be taken
against the accused (People vs. Cachola, G.R. Nos.
148712-15, January 21, 2004)`

TREACHERY To appreciate treachery, two (2)


conditions must be present, namely, (a) the
employment of means of execution that gives the
person attacked no opportunity to defend himself or to
retaliate, and (b) the means of execution were
deliberately or consciously adopted (People vs. Duavis,
GR No. 190861, December 07, 2011).

AGGRAVATING CIRCUMSTANCES
Treachery is not a qualifying circumstance but
a generic aggravating circumstance to robbery with

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JUDGE MARLO B. CAMPANILLA

homicide although said crime is classified as a crime


against property and a single and indivisible crime
(People vs. Baron, G.R. No. 188601, June 29, 2010).
As the killing, in this case, is perpetrated with
both treachery and by means of explosives, the latter
shall be considered as a qualifying circumstance since
it is the principal mode of attack. Reason dictates that
this attendant circumstance should qualify the offense
while treachery will be considered merely as a generic
aggravating circumstance (People vs. Barde G.R. No.
183094, September 22, 2010).

EMPLOMENT OF MEANS TO WEAKEN


DEFENSE - If the employment of means to weaken the
defense of the victim renders the victim defenseless,
treachery absorbs circumstance of employing means to
weaken defense (People vs. Tunhawan, G.R. NO. L81470, October 27, 1988).
DISGUISE - If the accused covers his face with
a handkerchief when he treacherously killed the victim,
the crime committed is murder qualified by treachery
and aggravated by disguise (People vs. Piring, G.R. No.
45053, October 19, 1936). If the accused covers his
face with a handkerchief when he killed the victim, the
crime committed is murder qualified by employment of
means of affords impunity.
If the accused treacherously stabbed the
victim, and the crime committed is murder qualified by
treachery and aggravated by disguise. If the accused
covers his face with a handkerchief when he killed the
victim, the crime committed is murder qualified by
employment of means of affords impunity.
NIGHTTIME - Thus, treachery absorbs
nighttime where had it not been at night the offender,
with his cohorts, would not have been able to approach
the deceased without the latter's becoming aware of
his presence and guessing his intention; If they were
able to catch victim completely unawares, it was due
to the darkness of the night which covered them
(People vs. Gumarang , GR N. 46413, October 6, 1939).

As a general rule, nighttime is aggravating


because the darkness of the night facilitated the
commission of the crime or insured impunity. Thus,
nighttime cannot aggravate the crime if it is committed
in a lighted place although at the wee hours of the
night (People vs. Clario, G.R. NO. 134634, July 31,
2001). The darkness of the night and not nighttime
per se is important in appreciating it as modifying
circumstance (People vs. Banhaon, G.R. No. 131117,
June 15, 2004). But if the offender purposely selected
the wee hour of the night when neighbors and
occupants of the house including the victim were
sleeping to facilitate the commission of the crime or to
afford impunity, nighttime is appreciable even if the
place of commission is lighted. (People vs. Demate,
G.R. No. 132310, January 20, 2004, En Banc).While
accused were already outside the victims house at
around 11:00 p.m., they purposely waited until 2:00
a.m. before breaking into the residence so as not to
call the attention of the victims, household members
and/or their neighbors. Taking advantage of the fact
that the victim and household members were asleep,
accused entered the well-lighted bedroom and killed
the victim. Nighttime should be appreciated since
accused took advantage of the silence of the night
(People vs. Ventura and Ventura, G.R. No. 148145-46,
July 5, 2004, Per Curiam).

ABUSE OF SUEPRIOR STRENGHT - Abuse of


superior strength is present whenever there is
inequality of forces between the victim and the
aggressor, considering that a situation of superiority of
strength is notoriously advantageous for the aggressor
and is selected or taken advantage of by him in the
commission of the crime (People vs. Garchitorena, G. R.
No. 175605, August 28, 2009 (Justice De Castro).The
victim need not be completely defenseless in order for
the said aggravating circumstance to be appreciated
(People vs. Paling, G.R. No. 185390 March 16, 2011). If
the victim is completely defenseless, treachery should
be appreciated (People vs. Rebucan, G.R. No. 182551,
July 27, 2011).When the circumstance of abuse of
superior strength concurs with treachery, the former is
absorbed in the latter (People vs. Dadao, et.al., G.R.
No. 201860, January 22, 2014 (Justice De Castro).
EVIDENT PREMEDITATION -To warrant a
finding of evident premeditation, the prosecution must
establish the confluence of the following requisites: (a)
the time when the offender determined to commit the
crime; (b) an act manifestly indicating that the offender
clung to his determination; and (c) a sufficient interval
of time between the determination and the execution
of the crime to allow him to reflect upon the
consequences of his act (People vs. Sabangan, G.R. No.
191722, December 11, 2013, Justice De Castro).The
essence of evident premeditation is that the execution
of the criminal act must be preceded by cool thought
and reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to
arrive at a calm judgment (People vs. Alinao, GR No.
191256, September 18, 2013).
Accused told witness that they were going to
kill the doctor. After less than thirty minutes, the
accused killed the victim, who is a doctor. Evident
premeditation should not be appreciated. The span of
time (less than thirty minutes), from the time the
accused showed their determination to kill the victim
up to the time they shot the victim, could not have
afforded them full opportunity for meditation and
reflection on the consequences of the crime they
committed (People vs. Patelan, G.R. No. 182918, June
6, 2011).Unlike evident premeditation, there is no
requirement for conspiracy to exist that there be a
sufficient period of time to elapse to afford full
opportunity for meditation and reflection. Instead,
conspiracy arises on the very moment the plotters
agree, expressly or impliedly, to commit the subject
felony (People vs. Carandang, G.R. No. 175926, July 6,
2011).

DISREGARD OF SEX: Robbery with homicide


is essentially a felony against property. The
aggravating circumstance of disregard of the victims
age is applied only to crimes against persons and
honor. Moreover, the bare fact that the victim is a
woman does not per se constitute disregard of sex. For
this circumstance to be properly considered, the
prosecution must adduce evidence that in the
commission of the crime, the accused had particularly
intended to insult or commit disrespect to the sex of
the victim (People vs. Reyes, G.R. No. 153119, April 13,
2004.

The circumstances of disregard of sex, age or


rank should be taken singly or together. But the

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circumstance of dwelling should be considered


independently from the circumstance of disregard of
age, sex and rank since these circumstances signify
different concepts. In the latter, the disrespect shown
by offender pertains to the person of the offended due
to her rank, age and sex. In the former, the disrespect
pertains to the dwelling of the offended party due to
the sanctity of privacy which the law accords it. In
People vs. Puno, G.R. No. L-33211, June 29, 1981, En
Banc - Disregard of rank and dwelling were
appreciated independently.

In robbery with violence and intimidation


against persons, dwelling is aggravating because in
this class of robbery, the crime may be committed
without the necessity of trespassing the sanctity of the
offended party's house(People vs. Evangelio, G.R. No.
181902, August 31, 2011).

AID OF ARMED MEN: Aid of armed men or


persons affording immunity requires (1) that the armed
men are accomplices who take part in minor capacity,
directly or indirectly (People vs. Lozano, G.R. Nos.
137370-71, September 29, 2003, En Banc) and (2) that
the accused availed himself of their aid or relied upon
them when the crime was committed. Thus, this
circumstance should not be appreciated were armed
men acted in concert to ensure the commission of the
crime (People vs. Carino, G.R. No. 131117, June 15,
2004). In aid of armed men, the men act as
accomplices only. They must not be acting in the
commission of the crime under the same purpose as
the principal accused, otherwise they are to be
regarded as co-principals or co-conspirators (People vs.
Enoja, GR No. 204894, March 10, 2014).

CRUELTY: The crime is not aggravated by


cruelty simply because the victim sustained ten stab
wounds, three of which were fatal. For cruelty to be
considered as an aggravating circumstance there must
be proof that, in inflicting several stab wounds on the
victim, the perpetrator intended to exacerbate the pain
and suffering of the victim. The number of wounds
inflicted on the victim is not proof of cruelty (Simangan
vs. People, G.R. No. 157984. July 8, 2004).

REPETITION - Differences of recidivism, quasirecidivism, reiteracion and habitual delinquency:


(a) Nature of crime In recidivism, the first
crime, and the aggravated second crime are embraced
in the same Title of the Revised Penal Code; In quasirecidivism, the nature of the first crime and aggravated
second crime is not material. In reiteration, the penalty
for the first crime is equal or greater than that for the
aggravated second crime or the penalty for the first
two crimes is lighter than that for the aggravated third
crime. In habitual delinquency, the first, second and
third crimes must be a habitual-delinquency crime, and
that is, serious or less serious physical injuries, theft,
robbery, estafa or falsification of document.
(b) Time element In recidivism, the accused
was convicted of the first crime by final judgment at
the time of trial of the second crime. In quasi-

recidivism, the accused has been convicted by final


judgment of the first offense but before beginning to
serve his sentence or while servicing of his sentence,
he committed the second crime. In reiteration, the
accused was convicted of the first crime (or first two
crimes) and served his sentences at the time he was
convicted of the second crime (or third crime). In
habitual delinquency, the accused was convicted of
first habitual-delinquency crime; within 10 years after
conviction or release, he was found guilty of habitualdelinquency crime for the second time; within 10 years
after conviction or release he was found guilty of
habitual-delinquency crime for the third time or
oftener.
(c) Nature of the aggravating circumstance Recidivism and reiteration are ordinary aggravating
circumstances, the presence of any of which will
trigger the application of the penalty for the second
crime committed in its maximum period unless it is offset by mitigating circumstance. Quasi-recidivism is
special aggravating circumstance, the presence of
which will trigger the application of the penalty for the
second crime or third crime in its maximum period
regardless of the presence of mitigating circumstance.
Habitual delinquency is an extraordinary or special
aggravating circumstance, the presence of which will
trigger the imposition of additional penalty for the third
or subsequent crime. This is not subject to the off-set
rule.
ALTERNATIVE CIRCUMSTANCE
Alternative circumstances are those which
must be taken into consideration as aggravating or
mitigating according to the nature and effects of the
crime and other conditions attending its commission.
Based on a strict interpretation, alternative
circumstances are thus not aggravating
circumstances per se. (People vs. Orilla, G.R. Nos.
148939-40, February 13, 2004, En banc).
If the offender has committed a felony in a
state of intoxication, this circumstance may be
mitigating or aggravating. If the prosecution claims
intoxication as aggravating, it must establish that the
intoxication is habitual or intentional(People vs.
Patelan, G.R. No. 182918, June 6, 2011).Even if the
accused could still fully comprehend what is right and
what is wrong, intoxication is aggravating as long as
intoxication is habitual or intentional and it boasted the
courage of accused that propelled him to commit the
crime. To aggravate the liability of the accused, it is not
necessary that degree of intoxication must have
impaired the will power of the accused (People vs. Ga,
G.R. No. 49831, June 27, 1990).If accused claims
intoxication as mitigating, he must establish that his
intoxication was not habitual or subsequent to the plan
to commit the crime and that he took such quantity of
alcoholic beverage, prior to the commission of the
crime, as would blur his reason (People vs. Fontillas,
G.R. No. 184177, December 15, 2010, Justice De
Castro). Failure of the prosecution or the accused to
do so, intoxication is neither aggravating nor
mitigating.
PARTICIPATION
Chief actor - Criminal or chief actor is the
person who actually committed the crime. He is the
one who committed or omitted the act, which causes
the criminal result. He directly perpetrated the acts,
which constitute the crime. With or without
conspiracy, the chief actor is a principal by direct
participation.
Criminal participator - Criminal participator is
the offender who participated in committing a crime

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by indispensable or dispensable act. He performed an


act, which is not constitutive of felony but intended to
give moral or material aid to the chief actor.
(1) With conspiracy - If there is conspiracy, the
criminal participator or cooperator is a principal by
direct participation. The act of the chief actor is
considered the act of the criminal participator.
(2) Without conspiracy - If there is no
conspiracy, criminal participator may be held liable
as principal by indispensable cooperation,
accomplice or accessory depending upon the
nature and time of participation. A criminal
participator may participate in the commission of
the crime by previous, simultaneous and/or
subsequent acts.
(a) Previous or simultaneous acts The
criminal participator by previous or
simultaneous acts is liable either as principal
by indispensable cooperation or accomplice. If
the cooperation is indispensable, the
participator is a principal by indispensable
cooperation; if dispensable an accomplice.
(b) Subsequent acts The criminal
participator by subsequent acts is liable as an
accessory. An accessory does not participate in
the criminal design, nor cooperate in the
commission of the felony, but, with knowledge
of the commission of the crime, he
subsequently takes part by any of the three
modes under Article 19.
The liability of accessory and principal should
also be considered as quasi-collective. It is quasicollective in the sense that the principal and the
accessory are liable for the felony committed but the
penalty for the latter is two degrees lower than that
for the former.

ACCOMPLICE AND CONSPIRATOR - In


People vs. PO1 Eusebio G.R. No. 182152, February 25,
2013 - It noted that victim had only three gunshot
wounds despite the many shots fired at him. Since
Bongon shot victim thrice at very close range, causing
him to fall, it appears that it was only Bongon who
inflicted those wounds. And, considering that the
prosecution evidence did not show that the shots three
other accused fired from their guns made their marks,
there is doubts that the three agreed beforehand with
Bongon to kill victim. It cannot rule out the possibility
that they fired their guns merely to scare off outside
interference.

Because witnesses are rarely present when


several accused come to an agreement or conspired to
commit a crime, such agreement is usually inferred
from their "concerted actions" while committing it. On
the other hand, accomplices are the persons who, not
being principals, cooperate in the execution of the
offense by previous or simultaneous acts.

The line that separates a conspirator by


concerted action from an accomplice by previous or
simultaneous acts is indeed slight. Accomplices do not

decide whether the crime should be committed; but


they assent to the plan and cooperate in its
accomplishment. The solution in case of doubt is that
such doubt should be resolved in favor of the accused.
It was held that when there is doubt as to whether a
guilty participant in a homicide performed the role of
principal or accomplice, the Court should favor the
"milder form of responsibility." He should be given the
benefit of the doubt and can be regarded only as an
accomplice. Hence, in the case at bar, the other three
accused should be granted the benefit of doubt and
should considered merely as accomplices.

It is immaterial whether accused acted as a


principal or an accomplice. What really matters is that
the conspiracy was proven and he took part in it.
Without the participation of accused, the offense would
not have been committed. He was the one who paved
the way for victim to board the vehicle and his
closeness with the victim led the latter to trust the
former, thus, accomplishing their devious plan of
kidnapping him. Consequently, the conspirators shall
be held equally liable for the crime, because in a
conspiracy the act of one is the act of all (People vs.
Cruz, Jr., GR No. 168446, September 18, 2009).
ACCOMPLICE - In order that a person may be
considered an accomplice, namely, (1) that there be
community of design; that is knowing the criminal
design of the principal by direct participation, he
concurs with the latter in his purpose; (2) that he
cooperates in the execution by previous or
simultaneous act, with the intention of supplying
material or moral aid in the execution of the crime in
an efficacious way; and (3) that there be a relation
between the acts done by the principal and those
attributed to the person charged as accomplice (People
vs. Gambao, GR No. 172707, October 01, 2013).
Accused entered the room where the victim
was detained and conversed with kidnappers regarding
stories unrelated to the kidnapping. Accused should be
held liable as accomplice. The defenses raised by
accused are not sufficient to exonerate her criminal
liability. Assuming arguendo that she just came to the
resort thinking it was a swimming party, it was
inevitable that she acquired knowledge of the criminal
design of the principals when she saw victim being
guarded in the room. A rational person would have
suspected something was wrong and would have
reported such incident to the police. Accused, however,
chose to keep quiet; and to add to that, she even spent
the night at the cottage. It has been held before that
being present and giving moral support when a crime
is being committed will make a person responsible as
an accomplice in the crime committed. It should be
noted that the accused-appellants presence and
company were not indispensable and essential to the
perpetration of the kidnapping for ransom; hence, she
is only liable as an accomplice. Moreover, in case of
doubt, the participation of the offender will be
considered as that of an accomplice rather than that of
a principal (People vs. Gambao, GR No. 172707,
October 01, 2013).
X and Y did not participate when the victim was
forcibly abducted. However, they owned the safehouse,
the basement of their house, where the kidnapped
victim was detained. X assisted the kidnappers when
the victim the basement stairs of the safehouse. Y
brought foods to the safehouse. Are X and Y liable as
accomplice or principal by direct participation?They are
liable as principals because of conspiracy. Their
participations are of minor importance. These acts

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pertain to those committed by mere


accomplices. However, their acts coincide with their
ownership of the safehouse. They provided the place
where the victim is to be detained, which is logically a
primary consideration in a conspiracy to commit the
crime of kidnapping for ransom. Ownership of the
safehouse and their participations reasonably indicate
that they were among those who at the outset
planned, and thereafter concurred with and
participated in the execution of the criminal design
(People vs. Salvador, GR No. 201443, April 10, 2013).
FENCING
The essential elements of the crime of fencing
are as follows: (1) a crime of robbery or theft has been
committed; (2) the accused, who is not a principal or
on accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or
anything of value, which has been derived from the
proceeds of the crime of robbery or theft; (3) the
accused knew or should have known that the said
article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or
theft; and (4) there is, on the part of one accused,
intent to gain for oneself or for another (Ong vs.
People, GR No. 190475, April 10, 2013).
The essential elements of the crime of fencing
under PD No. 1612 are as follows: (1) A crime of
robbery or theft has been committed; (2) The
accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft (or
carnapping but not malversation or estafa), buys,
receives, possesses, keeps, acquires, conceals, sells
or disposes, or buys and sells, or in any manner deals
in any article, item, object or anything of value, which
has been derived from the proceeds of the said crime;
(3) The accused knows or should have known that the
said article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or
theft; and (4) There is on the part of the accused,
intent to gain for himself or for another (Francisco vs.
People, G.R. No. 146584, July 12, 2004).
a. Proving robbery or theft Commission
of robbery or theft by the principal as an element of
fencing should be proven beyond reasonable doubt to
convict the fencer. One may not be convicted of the
crime of fencing if the complainant did not lodge a
criminal complaint against the principal in the crime
of theft. This will create doubt if theft was really
committed (Tan vs. People, G.R. No. 134298, August
26, 1999) Failure to show finality of conviction of theft
against the principal is fatal to prosecution for fencing.
In Francisco vs. People, G.R. No. 146584, July 12,
2004, - The decision of the trial court convicting the
principal of theft does not constitute proof against the
accused for the crime of fencing, that the principal
had, indeed, stolen the jewelry. There is no showing
that the said decision was already final and executory
when the trial court rendered its decision in the
fencing case. Accused was acquitted.
b. Knowledge - In Dimat vs. People, G.R. No.
181184, January 25, 2012 But Presidential Decree
1612 is a special law and, therefore, its violation is
regarded as malum prohibitum, requiring no proof
of criminal intent. Of course, the prosecution must still
prove that accused knew or should have known that
the Nissan Safari he acquired and later sold to
complainant was derived from theft or robbery and
that he intended to obtain some gain out of his acts.
Accused knew that the Nissan Safari he bought was not
properly documented. He said that Tolentino showed
him its old certificate of registration and official

receipt. But this certainly could not be true because,


the vehicle having been carnapped, Tolentino had no
documents to show. That Tolentino was unable to
make good on his promise to produce new documents
undoubtedly confirmed to accused that the Nissan
Safari came from an illicit source. Still, accused sold
the same to complainant who apparently made no
effort to check the papers covering her purchase. That
complainant might herself be liable for fencing is of no
moment since she did not stand accused in the case.
Accused was in the business of buy and sell of
tires for the past 24 years,] ought to have known the
ordinary course of business in purchasing from an
unknown seller. Admittedly, Go approached accused
and offered to sell the 13 tires (which were stolen) and
he did not even ask for proof of ownership of the
tires. The entire transaction, from the proposal to buy
until the delivery of tires happened in just one day. His
experience from the business should have given him
doubt as to the legitimate ownership of the tires
considering that it was his first time to transact with Go
and the manner it was sold is as if Go was just peddling
the 13 tires in the streets. Accused was convicted of
fencing (Ong vs. People, GR No. 190475, April 10,
2013).
Accused knew the requirement of the law in
selling second hand tires. Section 6 of P.D. 1612
requires stores, establishments or entities dealing in
the buying and selling of any good, article, item, object
or anything else of value obtained from an unlicensed
dealer or supplier thereof to secure the necessary
clearance or permit from the station commander of the
Integrated National Police in the town or city where
that store, establishment or entity is located before
offering the item for sale to the public. In fact, accused
has practiced the procedure of obtaining clearances
from the police station for some used tires he wanted
to resell but, in this particular transaction, he was
remiss in his duty as a diligent businessman who
should have exercised prudence (Ong vs. People, GR
No. 190475, April 10, 2013).
The issuance of a sales invoice or receipt is
proof of a legitimate transaction and may be raised as
a defense in the charge of fencing; however, that
defense is disputable. In this case, the validity of the
issuance of the receipt was disputed, and the
prosecution was able to prove that Gold Link and its
address were fictitious. Accused failed to overcome the
evidence presented by the prosecution and to prove
the legitimacy of the transaction. Thus, he was unable
to rebut the prima facie presumption under Section 5
of P.D. 1612 (Ong vs. People, GR No. 190475, April 10,
2013).
c. Presumption: Section 6 of PD No. 1612
provides: Mere possession of any good, article, item,
object, or anything of value which has been the
subject of robbery or thievery shall be prima facie
evidence of fencing.Possession is not limited to
actual manual control of the offender over the stolen
property but extends to power and dominion over it.
Circumstances normally exist to forewarn, for
instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of
robbery or theft. Such circumstances include the time
and place of the sale, both of which may not be in
accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact
that the seller is not regularly engaged in the business
of selling goods may likewise suggest the illegality of
their source, and therefore should caution the buyer.
This justifies the presumption found in Section 5 of P.D.
No. 1612 that mere possession of any goods, object
or anything of value which has been the subject of

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robbery or thievery shall be prima facie evidence of


fencing. This presumption is reasonable for no other
natural or logical inference can arise from the
established fact of possession of the proceeds of the
crime of robbery or theft (Ong vs. People, GR No.
190475, April 10, 2013).
The accessory in theft should materially benefit
from it. Riding in a stolen vehicle is not profiting
within the contemplation of Article 17 of the Revised
Penal Code since it does not improve his economic
position. Profiting is not synonymous to intent to gain
as an element of theft (Gregorio). However, in
violation of PD No. 1612, use of stolen property gives
rise to the presumption of fencing. Hence, the user
may be held liable for fencing even though he did not
materially benefit from crime of theft.

b. Knowledge - An accessory under Revised


Penal Code must have knowledge of the commission
of the crime by the principal. To commit obstruction of
justice, what is important is not knowledge of the
commission of a crime but awareness of an ongoing or
impending investigation and prosecution of a criminal
case. In fact, even though the suspect did not commit
a crime, obstruction of justice is committed if he
knowingly obstructs, impedes, or frustrates the said
investigation and prosecution.
c. Obstructing criminal investigation or
prosecution - Public officer, who destroyed
dangerous drugs as evidence for monetary
consideration, is liable for obstruction of justice in
addition to graft and corruption and direct bribery
(2005 Bar Exam)

The presumption of theft is disputable. The


presumption of fencing may be overcome by showing
proof that accused bought the item from a licensed
dealer of second-hand items (Hizon-Pamintuan vs.
People, G.R. No. 11414, July 11, 1994) or by showing
official receipts covering the purchases of property,
which is the subject of fencing (D. M Consunji, Inc. vs.
Esguerra, G.R. No. 118590, July 30, 1996).

If a respondent in a preliminary investigation


altered the allegation in the complaint-affidavit as to
the date of criminal incident to make it appear that
the crime, with which he was charged, had prescribed,
the alteration is constitutive of the crime of
falsification of document under Article 172 of the
Revised Penal Code and obstruction of justice under
PD No. 1829.

d. Recently stolen property If suspect is


found in possession of recently stolen property, he
should be charged as principal in the crime of theft or
robbery. Under Section 3 (j), Rule 131, a person found
in possession of a thing taken in the doing of recently
wrongful act is the taker and the doer of the whole
act. Settled is the rule that unexplained possession of
recently stolen property is prima facie evidence of
guilt of the crime of theft ( US vs. Ungal, 37 Phil.,
835). If the subject property is not recently stolen, the
presumption under Section 3 (j), Rule 131 will not
arise. However, the possessor is still presumed to
have violated PD No. 1612 even if the property being
possessed was not recently stolen. Under the law,
mere possession of stolen property gives rise to the
presumption of fencing.

d. Principal of the crime - A and B killed


X. After the slaughter, A and B burned the dead
body of X in the forest to prevent its discovery. Can
A and B be charged as accessory of the crime to
murder or obstruction of justice? A and B are
principals by direct participation in the crime of
murder qualified by employment of means to afford
impunity. Hence, they cannot be charged as
accessories. Under the Revised Penal Code,
accessories must not have participated in the
commission of the crime as principals. However, in
addition to murder, they can be charged with the
crime of obstruction of justice for destroying an object
to impair its availability as evidence in a case. Under
PD No. 1829, it is not required that the offenders must
not have participated as principals.

OBSTRUCTION OF JUSTICE

e. Suspicion - An accessory under Article 19


(3) of the Revised Penal Code must have knowledge of
the commission of the crime by the principal.
Entertaining suspicion is not itself proof of knowledge
that a crime has been committed. Knowledge and
suspicion are not synonymous. The word suspicion
is defined as being the imagination of the existence of
something without proof, or upon very slight evidence
or upon no evidence at all (Reyes). On the other hand,
the offender may violate Section 1 (c) of PD No. 1829
even though he has no knowledge of the commission
of the crime as long as he has reasonable ground to
believe or suspects that the person he assisted has
committed a crime. In some, mere suspicion is
enough to establish the second element of the
offense.

Obstruction of justice under PD No. 1829 is


committed by any person who knowingly or willfully
obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and
prosecution of criminal cases by (1) altering,
destroying, suppressing or concealing any paper,
record, document, or object, with intent to impair its
verity, authenticity, legibility, availability, or
admissibility as evidence in any investigation of or
official proceedings in, criminal cases, or to be used in
the investigation of, or official proceedings in, criminal
cases; (2) harboring or concealing, or facilitating the
escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any
offense under existing penal laws in order to prevent
his arrest prosecution and conviction;
a. Commission of crime, not an element To be held liable as accessory under the Revised Penal
Code, it is required that the crime was committed by
the principal. To be held liable for obstruction of
justice, it is not necessary that the crime was
committed by a criminal suspect. Example: A
committed suicide. To make it appear that B
murdered A, C placed the gun used in perpetrating
suicide inside the bag of B. C committed the crime
of obstruction of justice for having obstructed the
investigation of a criminal case involving the death of
A. C cannot be held liable as accessory because
murder was not really committed.

d. Preventing an illegal arrest Harboring


or concealing a criminal suspect in order to prevent a
lawful warrantless arrest or the implementation of a
warrant of arrest constitutes obstruction of justice.
However, harboring or concealing a criminal suspect
to prevent an illegal arrest is not a crime. The term
arrest in Section 1 (c) of PD No. 1829 contemplates
a lawful arrest (Posadas vs. the Hon. Ombudsman,
G.R. No. 131492, September 29, 2000)
e. Accessory To make a person liable as
accessory under the Revised Penal Code, it is required
that he is a public officer, who acted with abuse of his
public functions, or that the person assisted is guilty
as principal in treason, parricide, murder, or an
attempt to take the life of the Chief Executive or a
principal, who is known to be habitually guilty of some

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JUDGE MARLO B. CAMPANILLA

other crime. This requirement is not applicable if the


accused is charged with obstruction of justice.
f. No exempting circumstance Accessories are exempt from criminal liability if the
principal merely committed a light felony (Article 16 of
the Revised Penal Code). Accessories of the second or
third kind are exempt also from criminal responsibility
if they are related to the criminal actor (Article 20 of
the Code). However, if the accessories of the crime
were charged with the crime of obstruction of justice,
they cannot claim criminal exemption under the
Revised Penal Code. PD No. 1829 has no provision on
criminal exemption.

Article 29 of RPC
RA NO. 10592 and its implementing rules

1. Preventive imprisonment Under Article


29 of RPC as amended by RA No. 10592 and its
implementing rules and regulations, an accused who
has undergone preventive imprisonment shall be
credited, either full or four-fifths (4/5) term, for his
actual detention or service of his sentence, provided he
is not disqualified.
Credit for preventive imprisonment for the
penalty of reclusion perpetua shall be deducted from
thirty (30) years.

a. No credit by reason of disqualification


The grant of credit of preventive imprisonment shall
not apply to the following:

a. An accused who is recidivist;


b. An accused who has been convicted
previously twice or more times of any crime;
and
c. An accused who, upon being summoned for
the execution of his sentence, has failed to
surrender voluntarily before a court of law.

b. Full time credit - An accused who has


undergone preventive imprisonment shall be credited
with the full time during which he has undergone
preventive imprisonment if;
a. He agrees voluntarily, in writing, to abide by
the same disciplinary rules imposed upon
convicted prisoners; and
b. Such undertaking is executed with the
assistance of the counsel.

The undertaking is called detainees


manifestation, which is defined as a written declaration
of a detained prisoner, with the assistant of a counsel,
stating his refusal to abide by the same disciplinary
rules imposed upon a convicted prisoner for the
purpose of availing the full credit of the period of his
preventive imprisonment

c. 4/5 time credit - An accused who has


undergone preventive imprisonment and who does not
agree to abide by the same disciplinary rules imposed
upon prisoners convicted by final judgment shall be
credited by the service of his sentence with four-fifths
(4/5) of the time during which he has undergone
preventive imprisonment if;

a. He shall do in writing
b. With the assistance of counsel.

In sum, the detainee must execute a written


waiver, which is called detainees waiver defined as a
written declaration of a detained prisoner, with the
assistant of a counsel, stating his refusal to abide by
the same disciplinary rules imposed upon a prisoner
convicted by final judgment and thus be entitled to a
credit of four-fifths (4/5) of the time during preventive
imprisonment.

d. Full time credit for child in conflict with


the law - If the offender is a child, the applicable rule
for crediting the period of commitment and detention is
not Article 29 of the Revised Penal Code but Section
41, RA 9344. Under the said provision, the full time
spent in actual commitment and detention of juvenile
delinquent shall be credited in the services of his
sentence.
2. Immediate release Under Article 29 of
RPC as amended by RA No. 10592, whenever an
accused has undergone preventive imprisonment for a
period equal to the imposable maximum imprisonment
of the offense charged to which he may be sentenced
and his case is not yet decided, he shall be released
immediately without prejudice to the continuation of
the trial thereof or the proceeding on appeal, if the
same is under review, except for the following:

1) Recidivist
2) Habitual Delinquent
3) Escapee
4) Person charged with heinous crimes

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If the maximum penalty to which the accused


may be sentenced is destierro, he shall be released
after thirty (30) days of imprisonment.

The computation of preventive imprisonment


for purposes of immediate release shall be the actual
period of detention with good conduct time allowance;
provided, however, that if the accused is absent
without motu propio order the re-arrest of the accused.

3. Good conduct time allowance (GCTA)


Before, only prisoner service sentence is entitled to
allowance for good conduct. However, under Article 94
of RPC as amended by RA 10592, the following shall be
entitled to good conduct time allowance:

a. A detention prisoner qualified for credit for


preventive imprisonment for his good conduct
and exemplary behaviour; and

b. A prisoner convicted by the final judgment in


any penal institution, rehabilitation or
detention center or any other local jail for his
good conduct and exemplary behaviour.

The good conduct time allowances under Article 97 as


amended are as follows:

First 2 years of imprisonment 20 days for each month


of good behavior
3rd to 5th year 23 days for each month of good
behavior
6th to 10th year 25 days for each month of good
behavior
11th year and successive years 30 days for each
month of good behavior

An appeal by the accused shall not deprive him


of entitlement to the above allowances for good
conduct.

4. Time Allowance for Study, Teaching and


Mentoring (TASTM) - A prisoner is also entitled to
Time Allowance for Study, Teaching and Mentoring,
which is privilege granted to a prisoner, whether

detained or convicted by final judgment, as a reward


for having earned a post post-graduate degree or
collage degree, a certificate of completion of a
vocational or technical skills or values development
course, a high school or elementary diploma or to one
serving his fellow prisoner as a teacher or mentor while
incarcerated, equivalent to a deduction of a maximum
of fifteen (15) days for every month of study or
mentoring services
5. Special time allowance for loyalty
(STAL) - Special time allowance for loyalty is a
privilege granted to a prisoner, whether detained or
convicted by final judgment, who has evaded
preventive imprisonment or service of sentence during
said calamity, and surrendered to the authorities within
forty-eight (48) hours following the proclamation
announcing the passing away of the calamity and the
catastrophe referred to in the said article in the form of
the deduction of one fifth (1/5) from his preventive
imprisonment or service of sentence or a deduction of
two fifth (2/5) if prisoner opted to stay in jail or prison
during the calamity.
However, prisoner is not entitled to special
time allowance for loyalty if he has committed other
offense or any act in violation of the law.
In case of disorder in the penal institution
resulting from a conflagration, earthquake, explosion,
or similar catastrophe, or during a mutiny in which the
prisoner has not participated, the prisoner, entitled to
special time allowance for loyalty (STAL) or liable for
evasion of sentence.
a. No evasion - In case said prisoner chose to
stay in the place of his confinement notwithstanding
the existence of a calamity or catastrophe, he is
entitled to deduction of two-fifths (2/5) of the period of
his sentence. This a new rule introduced by RA No.
10592.
Article 98 under the original version does not
grant special allowance for loyalty to prisoner who did
not escape despite the existence of calamity (Losada
vs. Acenas, GR NO. L-810, March 31, 1947; Fortuno vs.
Director of Prisons, GR NO. L-1782, February 2, 1948).
RA No. 10529 sought to correct this rule since a
prisoner who did not escape despite of the calamity
manifests a higher degree of loyalty to the penal
system than those who evaded their sentence but
thereafter gives themselves up upon the passing away
of the calamity.
b. Evasion In case the prisoner chose to
evade evaded his preventive imprisonment or the
service of his sentence during the calamity and the
President issued a proclamation by the President
announcing the passing away of such calamity, he has
to options:
1. He may give himself up to the authorities
within forty-eight hours following the issuance of a
proclamation by the President announcing the passing
away of such calamity. In such case, he is entitled to
one fifth (1/5) special time allowance for loyalty under
Article 98; or
2. He may not give himself up to the
authorities within said period of forty-eight hours. In
such case, he is liable for evasion of sentence under
Article 158. The penalty for evasion under Article 158 is
equivalent to one-fifth of the time still remaining to be
served under the original sentence, which in no case
shall exceed six months.
Prisoner is entitled to special time allowance
for loyalty whether he is a convicted or detention

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prisoner. Article 98 of RPC as amended by RA No.


10592 provides "This Article shall apply to any prisoner
whether undergoing preventive imprisonment or
serving sentence." Special allowance is given to
prisoner, who evaded his preventive imprisonment or
the service of his sentence during calamity but give
himself up within the required period.
However, a detention prisoner is not liable for
evasion of sentence under Article 158 of RPC if he fails
to give himself up within forty-eight hours following the
announcement of the passing away of such calamity.
RA No. 10592 amended Article 98 to extend the benefit
of a special allowance to preventive prisoner but the
amendment does not include Article 158. The crime of
evasion under Article 158 is committed only by a
convict, who shall evade the service of his sentence
during calamity and fail to give himself up within the
period.
PENALTY
In De Castro vs. People, G.R. No. 171672,
February 02, 2015, the court should prescribe the
correct penalties in complex crimes in strict
observance of Article 48 of the Revised Penal Code.
In estafa through falsification of commercial
documents, the court should impose the penalty for
the graver offense in the maximum period. Otherwise,
the penalty prescribed is invalid, and will not attain
finality.
RECLUSION PERPETUA AND LIFE IMPRISONMENT
If the law was amended to change the penalty
from life imprisonment to reclusion perpetua, the
amendatory law, being more lenient to the accused
than the previous law, should be accorded retroactive
application. The penalty of reclusion perpetua is a
lighter penalty than life imprisonment. (People vs.
Pang, G.R. No. 176229, October 19, 2011).
ISLAW
RA 9165 provides that illegal possession of less
than five (5) grams of shabu is penalized with
imprisonment of 12 years and 1 day to 20 years. The
court sentenced the accused to suffer a straight
penalty of imprisonment of 12 years and 1 day. Is the
penalty imposed by the court correct? No. The
indeterminate Sentence Law mandates that, in case of
a special law, the accused shall be sentenced "to an
indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term
prescribed by the same." (Asiatico vs. People, G.R. No.
195005, September 12, 2011)
SPECIAL MITIGATING CIRCUMSTANCE:
Under Article 64 (5), the presence of two or more
mitigating circumstances will graduate the divisible
penalty prescribed by law to one degree lower. This
is called special mitigating circumstance. However,
the appreciation of this circumstance is subject to two
conditions: (1) the penalty prescribed by law must be
divisible; and (2) there must be no aggravating
circumstance. In People vs. Takbobo, G.R. No. No.
102984, June 30, 1993 - Accused was found guilty of
parricide punishable by the penalty of reclusion
perpetua to death. Applying Article 63, when the
penalty is composed of two indivisible penalties, the
penalty cannot be lowered by one degree, no matter
how many mitigating circumstances are present. The
rule on special mitigating circumstance is found in
Article 64 (5) which provides the "rules for the
application of penalties which contain three periods,"
meaning, divisible penalties. Article 64 (5) is

inapplicable. Thus, the rule applicable in said case is


found in Article 63, and not in Article 64.
If there are two mitigating circumstances, the
penalty prescribed law shall graduated to one degree
lower, and the graduated penalty shall be applied in it
medium period. If there are three mitigating
circumstances taken as special mitigating, the penalty
prescribed law shall graduated to one degree lower,
and the graduated penalty shall be applied in it
minimum period. Reason: The two mitigating
circumstances were taken to constitute special
mitigating circumstance; while the remaining
mitigating circumstance was used to apply the
graduated penalty in its minimum period.
GRADUATING DEATH PENALTY - For
purposes of graduating penalty, the penalty of death is
still the penalty to be reckoned with. RA No. 9346,
which prohibits the imposition of death penalty, does
not exclude death penalty in the order of graduation of
penalties.In qualified rape, the penalty for accomplice
is reclusion perpetua, the penalty next lower in degree
than death prescribed for the crime (See: People vs.
Jacinto, G.R. No. 182239, March 16, 2011).
SUPPLETORY APPLICATION - A special law
prescribes the penalty of 10 years of imprisonment for
violation thereof while another law prescribes the
penalty of arresto mayor. Can the rules on graduation
of penalties or application of penalty on its proper
imposable period under RPC applicable to violation of
thesespecial laws?(a) Where the special law has not
adopted the Spanish penalties (10 years of
imprisonment) under RPC, rules on graduation of
penalties or application of penalty on its proper
imposable period is not applicable. Article 10 of RPC on
suppletory effects of the Code cannot be invoked
where there is a legal or physical impossibility of such
supplementary application (People vs. Mantalba, G.R.
No. 186227, July 20, 2011). The penalty of 10 years of
imprisonment can neither be graduated by decrees nor
divided into three periods. (b) Where the special law
has adopted the Spanish penalty (arresto mayor) under
RPC, rules on graduation of penalties or application of
penalty on its proper imposable period are applicable.
Where the penalty under a special law is actually taken
from the Revised Penal Code in its technical
nomenclature, the penal system under the Code is
necessarily applicable to this law (See: People vs.
Mantalba, supra). This adoption reveals the statutory
intent to give the provisions on penalties for felonies
under RPC the corresponding application to said special
law, in the absence of any express or implicit
proscription in these special laws (See: People vs.
Simon, G.R. No. 93028, July 29, 1994).
SUBSIDIARY PENALTYUNDER RA No. 10159
Article 39 of the Revised Penal Code as
amended by RA No. 10159 provides: If the convict has
no property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall be
subject to a subsidiary personal liability 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 the
trial court, subject to the following rules:
1. If the principal penalty imposed be prision
correctional or arresto and fine, he shall remain under
confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment
shall not exceed one-third of the term of the sentence,
and in no case shall it continue for more than one year,
and no fraction or part of a day shall be counted
against the prisoner.

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2. When the principal penalty imposed be only


a fine, the subsidiary imprisonment shall not exceed
six months, if the culprit shall have been prosecuted
for a grave or less grave felony, and shall not exceed
fifteen days, if for a fight felony.
3. When the principal penalty imposed is
higher than prision correctional, no subsidiary
imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be
executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules,
shall continue to suffer the same deprivations as those
of which the principal penalty consists.
5. The subsidiary personal liability which the
convict may have suffered by reason of his insolvency
shall not relieve him from the fine in case his financial
circumstances should improve.

Special law - In Escalante vs. People, G.R. No.


192727, January 9, 2013 -The penalty for election
offense is imprisonment of not less than one year but
not more than six years. Under ISLAW, if the offense is
punished by 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 be less than the
minimum term prescribed by the same. Applying the
ISLAW, the imposable penalty for violation of the
election gun ban should have a maximum period,
which shall not exceed six (6) years, and a minimum
period which shall not be less than one (1) year.

THREE-FOLD AND 40 YEARS LIMITATION RULE


Simultaneous service -When the culprit has to
serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so
permit. Thus, convict could serve simultaneously
arresto mayor and fine, prision correccional and
perpetual absolute disqualification, or reclusion
perpetua and civil interdiction. In sum, while lingering
in prison, convict could pay fine, return the property
confiscated, be disallowed to cast his vote or to act
function as a public officer. In Rodriguez vs. Director of
Prisons, G.R. No. L-35386, September 28, 1972, En
Banc - Penalties which could be served simultaneously
with other penalties, are perpetual or temporary
absolute disqualification, perpetual or temporary
special disqualification, public censure, suspension
from public office and other accessory penalties. There
are only two modes of serving two or more (multiple)
penalties: simultaneously or successively. Successive
service When the culprit has to serve two or more
penalties, he shall serve them successively if the
nature of the penalties will not permit simultaneous
service. Convict must serve multiple penalties
successively: (1) where the penalties to be served are
destierro and imprisonment; and (2) where the
penalties to be served are imprisonment. However, the
successive service of sentences is subject to the threefold rule and 40-year limitation rule.
a. Three-fold rule - The maximum period of
the imprisonment that convict must suffer in serving
multiple penalties must not exceed threefold the
length of time corresponding to the most severe of
the penalties imposed upon him. A was sentenced to
suffer penalty of 7 years of prision mayor for serious
physical injuries, 6 years of prision correccional for

qualified less serious physical injuries, 5 years of


prision correccional for robbery and 5 years of prison
correccional for theft. The total duration of the
penalties imposed on him is 23 years. The most
severe penalty imposed on him is 7 years of prision
mayor. Thus, threefold the length of time
corresponding to the most severe of the penalties is
21 years. A will be imprisoned for 21 years because
of the three-fold rule.
b. Forty-year limitation rule The
maximum period of the imprisonment that convict
must suffer in serving multiple penalties must not
exceed forty years. A was sentenced to suffer three
penalties of 15 years of reclusion temporal for three
counts of homicide and the penalty of 10 years of
prision mayor for serious physical injuries. The total
duration of the penalties imposed on him is 55 years.
The most severe penalty imposed on him, is 15 years
of reclusion temporal. Thus, threefold the length of
time corresponding to the most severe of the
penalties is 45 years. A will be imprisoned for 40
years because of the forty year limitation rule.
Article 70 provides that the maximum
duration of the convicts sentence shall not be more
than threefold the length of time corresponding to the
most severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be
inflicted after the sum total of those imposed equals
the said maximum period. Such maximum period shall
in no case exceed forty years. Applying said rule,
despite the four penalties of reclusion perpetua for four
counts of qualified theft, accused-appellant shall suffer
imprisonment for a period not exceeding 40 years
(People vs. Mirto, G.R. No. 193479, October 19, 2011).
In Mejorada vs. Sandiganbayan, G.R. No. L51065-72, June 30, 1987, En Banc - This article is to be
taken into account not in the imposition of the penalty
but in connection with the service of the sentence
imposed. Article 70 speaks of "service" of sentence.
Nowhere in the article is anything mentioned about the
"imposition of penalty". It merely provides that the
prisoner cannot be made to serve more than three
times the most severe of these penalties the maximum
of which is forty years.

SPECIAL COMPLEX CRIME

KIDNAPPING WITH HOMICIDE

Old rule: (1) Where the accused kidnapped the


victim for the purpose of killing him, and he was in fact
killed by his abductor, the crime committed was the
complex crime of kidnapping with murder as the
kidnapping of the victim was a necessary means of
committing the murder. (2) Where the victim was
kidnapped not for the purpose of killing him but was
subsequently slain as an afterthought, two (2) separate
crimes of kidnapping and murder were
committed.Present rule: Where the person kidnapped
is killed in the course of the detention, regardless of
whether the killing was purposely sought or was
merely an afterthought, the kidnapping and murder or
homicide can no longer be complexed, nor be treated
as separate crimes, but shall be punished as a special

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complex crime (People vs. Ramos, G.R. No.


118570, October 12, 1998, En Banc, People vs.
Larranaga, 138874-75, February 3, 2004, En Banc;
People vs. Montanir, GR No. 187534, April 04, 2011;
People vs. Dionaldo, G.R. No. 207949, July 23, 2014)

However, where there is no actual detention


(People vs. Masilang, 1986) or intent to deprive liberty
(People vs. Estacio Jr., G.R. No. 171655, July 22, 2009,
En Banc) killing the person is murder. Demand for
ransom will not convert the crime into kidnapping.

If kidnapping is a necessary means to commit


frustrated murder, special complex crime of kidnapping
and serious illegal detention with frustrated homicide.
Homicide as a component of special complex crime
must be at the consummated stage. In this situation,
the crime committed is complex crime of kidnapping
and serious illegal detention with frustrated murder
(See: People vs. Roxas, GR No. 172604, August 17,
2010)

RAPE WITH HOMICIDE


Raping a dying victim Stabbing the victim
and raping her while she was dying is not a special
complex crime of rape with homicide because the
original design of the victim is kill and not to rape the
victim. These are not separate crimes of murder and
rape since the bestiality at the threshhold of death of
the victim shall be regarded either as a form
of ignominy causing disgrace or as a form
of cruelty which aggravated the murder because it was
unnecessary to the commission thereof (People vs.
Laspardas, G.R. No. L-46146, Oct. 23, 1979). Hitting the
victim thrice with a piece of wood and inserting
toothbrush into the anal orifice while the victim was
dying is not special complex crime of rape through
sexual assault with homicide because the original
design of the victim is kill and not to sexually assault
the victim. These are not separate crimes of murder
and rape through sexual assault since the bestiality at
the threshhold of death of the victim shall be regarded
as a form of cruelty which aggravated the murder
because it was unnecessary to the commission thereof
(People vs. Bernabe, G.R. No. 185726, October 16,
2009, Justice De Castro)
Homicide - In the special complex crime of
rape with homicide, the term "homicide" is to be
understood in its generic sense, and includes murder
and slight physical injuries committed by reason or on
occasion of the rape. Hence, even if the circumstances
oftreachery, abuse of superior strength and evident
premeditation are alleged in the information and duly
established by the prosecution, the same would not
qualify the killing to murder and the crime committed
is still rape with homicide. However, these
circumstances shall be regarded as ordinary
aggravating (People vs. Laog, G.R. No. 178321,
October 5, 2011).
By reason or on occasion of rape - The
phrase by reason of the rape obviously conveys the
notion that the killing is due to the rape, which is the
crime the offender originally designed to commit. The
victim of the rape is also the victim of the killing. The
indivisibility of the homicide and the rape (attempted
or consummated) is clear and admits of no doubt. In
contrast, the import of the phrase on the occasion of

the rape may not be as easy to determine. The


phrase on the occasion of the rape as shown by
Senate deliberations refers to a killing that occurs
immediately before or after, or during the commission
itself of the attempted or consummated rape, where
the victim of the homicide may be a person other than
the rape victim herself for as long as the killing is
linked to the rape, became evident (People vs.
Villaflores, G.R. No. 184926, April 11, 2012).
A and B were walking along the rice
paddies when X suddenly assaulted them with a lead
pipe. X killed A, and thereafter, raped B. X is
liable for special complex crime of rape with homicide.
There is no doubt that X killed A to prevent her from
aiding B or calling for help once she is able to run
away, and also to silence her completely so she may
not witness the rape of B, the original intent of X
(People vs. Laog, G.R. No. 178321, October 5, 2011).
Stabbing after the rape - In People vs. Isla,
G.R. No. 199875, November 21, 2012 - With respect to
the stabbings, it appears that Isla committed two acts.
The first was while he was ravishing AAA. The Court
considers this and the rape as one continuous act, the
stabbing being necessary, as far as he was concerned,
for the successful perpetration of the crime. When he
testified, Isla claimed that he had to use the knife so he
could have sexual intercourse with her. The second
stabbing took place after consummation of the rape
act. According to AAA, after her defilement, she
noticed the knife bloodied and she tried to wrest it
from him. In their struggle, she was stabbed under her
lower left breast but she was able to force Isla to drop
the knife. This second stabbing is a separate and
distinct offense as it was not a necessary means to
commit the rape. It was intended to do away with her
life.
COMPLEX CRIME
There are two kinds of complex crimes. The
first is known as compound crime, or when a single act
constitutes two or more grave or less grave
felonies. The second is known as complex crime
proper, or when an offense is a necessary means for
committing the other (People vs. Rebucan, G.R. No.
182551, July 27, 2011).The underlying philosophy of
complex crimes in the Revised Penal Code, which
follows the pro reo principle, is intended to favor the
accused by imposing a single penalty irrespective of
the crimes committed. The rationale being, that the
accused who commits two crimes with single criminal
impulse demonstrates lesser perversity than when the
crimes are committed by different acts and several
criminal resolutions (People vs. Gaffud, Jr., G.R. No.
168050, September 19, 2008)
COMPLEX CRIME AND COMPOSITE CRIME A composite crime, also known as a special complex
crime, is composed of two or more crimes that the law
treats as a single indivisible and unique offense for
being the product of a single criminal impulse. It is a
specific crime with a specific penalty provided by law.
The distinctions between a composite crime, on the
one hand, and a complex or compound crime under
Article 48 are as follows: (1) In a composite crime, the
composition of the offenses is fixed by law; In a
complex or compound crime, the combination of the
offenses is not specified but generalized, that is, grave
and/or less grave, or one offense being the necessary
means to commit the other; (2) For a composite crime,
the penalty for the specified combination of crimes is
specific; for a complex or compound crime, the penalty
is that corresponding to the most serious offense, to be
imposed in the maximum period; and (3) A light felony
that accompanies a composite crime is absorbed; a

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light felony that accompanies the commission of a


complex or compound crime may be the subject of a
separate information (People vs. Villaflores, G.R.
No. 184926, April 11, 2012).
COMPOUND CRIME
The single act of pitching or rolling the hand
grenade on the floor of the gymnasium which resulted
in the death of one victim and injuries to other victims
constituted a compound crime of multiple murders
qualified by means of explosion (People vs. Mores, GR
No. 189846, June 26, 2013, Justice De Castro). The
single act of running over the victims with a van
constitutes compound crime of multiple murders
(People vs. Punzalan, Jr., G.R. No. 199892, December
10, 2012 (Justice De Castro)
X was charged with complex crime with murder
and attempted murder. The information alleges that
the accused shot the victim, but it does not allege that
he did so several times. However, the evidence show
that accused shot her and her father several times.
Can X be convicted of separate crimes of murder and
attempted murder or complex crime? Answer: On the
basis of evidence, X committed separate crimes of
murder and attempted murder. Several shootings rule
out the application of the concept of complex crime.
However, evidence does not conform to the
Information, which contains no allegation accused shot
the victims several times. In the absence of a clear
statement of several shootings in the Information, the
accused may be convicted only of the complex crime
of murder with attempted murder. After all, the concept
of complex crimes is intended to favor the accused by
imposing a single penalty irrespective of the number of
crimes committed. Information merely states that
accused shot the victims. This is a compound crime
since murder and attempted murder was produced by
a single act of shooting. To rule that the accused should
be convicted of two separate offenses of murder and
attempted murder pursuant to the evidence presented
but contrary to the allegations in the Information is to
violate the right of the accused to be informed of the
nature and cause of the accusation against him (People
vs. Bernardo, GR No. 198789, June 03, 2013).
Single act rule - If there is more than one
death resulting from different acts there is no
compound crime of multiple homicides or murder.
Article 48 speaks of a single act. In People vs. Toling,
G.R. No. L-27097, January 17, 1975 - Twin brothers,
who ran amok like juramentados in a passenger
train, and killed their eight co-passengers, were held
liable for eight (8) murders and one attempted murder.
The conduct of the twins evinced conspiracy and
community of design. The eight killings and the
attempted murder were perpetrated by means of
different acts. Hence, they cannot be regarded as
constituting a complex crime under Article 48 of the
Revised Penal Code, which refers to cases where "a
single act constitutes two or more grave felonies, of,
when an offense is a necessary means for committing
the other.
In People vs. Punzalan G .R. No. 199892,
December 1, 2001 - Appellant 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 ramming through
the navy personnel, causing the death of two persons
and, at the same time, constituting an attempt to kill
others. The crime committed is complex crime of
multiple murders and attempted murder.
Single criminal impulse Several acts
committed by several offenders with one criminal
impulse resulting in several deaths constitute one

crime: the compound crime of multiple homicides or


murders. In People vs. Lawas, L-7618-20, June 30, 1955
- Members of the Home Guard, upon order of their
leader, Lawas, simultaneously and successively fired at
several victims. After a short time, the firing stopped
immediately when Lawas ordered his men to cease
fire. As a result of the firing, fifty (50) persons died. It
was held that the evidence positively shows that the
killing was the result of a single impulse, which was
induced by the order of the leader to fire, and
continued with the intention to comply therewith, as
the firing stopped as soon as the leader gave the order
to that effect. There was no intent on the part of the
accused either to fire at each and every of the victims
as separately and distinctly from each other. If the act
or acts complained of resulted from a single criminal
impulse, it constitutes a single offense - compound
crime of multiple homicides.
Under the Lawas principle, if accused fired their
guns killing several victims pursuant to a single
impulse, they shall be held liable for continued crime of
murder. The Lawas principle should only be applied in a
case where (1) there is no conspiracy (People vs. Hon.
Pineda, G.R. No. L-26222, July 21, 1967) and (2) it is
impossible to ascertain the number of deaths caused
by each accused (People vs. Tabaco, G.R. No. 100382100385, March 19, 1997). In conspiracy, each
conspirator is not only liable for deaths attributable to
him but also for deaths caused by others because in
conspiracy the act of one is the act of all. Thus, the
Lawas doctrine should not be applied if there is
conspiracy since the number of victims actually killed
by each conspirator is not anymore material if there is
conspiracy (People vs. Elarcosa, G.R. No. 186539, June
29, 2010).
In People vs. Nelmida, G.R. No.
184500. September 11, 2012 - Significantly, there was
no conspiracy in Lawas case. However, the Lawas
doctrine is more of an exception than the general rule.
With the presence of conspiracy in the case at bench,
appellants had assumed joint criminal responsibility
the act of one is the act of all. The ascertainment of
who among them actually hit, killed and/or caused
injury to the victims already becomes immaterial.
Collective responsibility replaced individual
responsibility. The Lawas doctrine, premised on the
impossibility of determining who killed whom, cannot
be applied.

In Lawas, this Court was merely forced to apply


Article 48 of RPC because of the impossibility of
ascertaining the number of persons killed by each
accused. Since conspiracy was not proven therein, joint
criminal responsibility could not be attributed to the
accused. Each accused could not be held liable for
separate crimes because of lack of clear evidence
showing the number of persons actually killed by each
of them.

In conspiracy, the act of one is the act of all. It


is as though each one performed the act of each one of
the conspirators. Each one is criminally responsible for
each one of the deaths and injuries of the several
victims. The severalty of the acts prevents the
application of Article 48. The applicability of Article 48
depends upon the singularity of the act, thus the
definitional phrase "a single act constitutes two or

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more grave or less grave felonies." To apply the first


half of Article 48, there must be singularity of criminal
act; singularity of criminal impulse is not written into
the law.

Single purpose rule - In People vs. Abella, 93


SCRA 25, the Lawas principle was applied despite the
presence of conspiracy. In the said case, sixteen
prisoners, who are members of the OXO gang, were
able to break into the cell of Sigue-Sigue gang and
killed fourteen (14) inmates. All accused were
convicted for a compound crime. It was held: Where a
conspiracy animates several persons with a single
purpose, their individual acts done in pursuance of that
purpose are looked upon as a single act, the act of
execution, giving rise to a complex offense. Various
acts committed under one criminal impulse may
constitute a single complex offense.Basis- Thesingle
purpose rule was actually adopted in consideration of
the plight of the prisoners. Requisites -There are two
requisites to apply the Abella principle: (1) there must
be a conspiracy, which animates several persons to
commit crimes under a single criminal purpose; and (2)
the offenders committed crimes in prison against their
fellow prisoners (People vs. Pincalin, et al., G.R. No. L38755, January 22, 1981).
In People vs. Nelmida, G.R. No.
184500. September 11, 2012 - The application of the
Abella doctrine, has already been clarified in Pincalin,
thus: where several killings on the same occasion were
perpetrated, but not involving prisoners, a different
rule may be applied, that is to say, the killings would
be treated as separate offenses. If the killings did not
involve prisoners or it was not a case of prisoners
killing fellow prisoners, Abella would not apply.

COMPLEX CRIME PROPER - In U.S. vs.


Hernandez, 29 Phil. 109, accused Hernandez, who
seduced a 15-year-old girl to live with him by
procuring the performance of a fictitious marriage
ceremony with the help of Bautista, who pretended to
be a Protestant minister, was held liable for the
complex crime proper of simple seduction (Art. 338)
through usurpation of official function (Art. 177).
Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor.
Comment: The case of Hernandez was decided prior
to the effectivity of the RPC. At that time, a religious
official such as a bishop is a person in authority within
the purview of the Old Penal Code (Smith, G.R. No.
14057, January 22, 1919).However, Article 152 of RPC
does not include religious minister as a person in
authority. Hence, performing the function of religious
minister in solemnizing marriage is not usurpation of
official function.

DOCTRINE OF ABSORPTION - What is the


effect of the elimination of the overt acts of violence
in Article 135 by RA No. 9668? In People vs.
Hernandez, G.R. No. L-6025, July 18, 1956 The
Supreme Court justified the doctrine of absorption in
rebellion since murder, robbery, and arson are just a
part of the engaging in war against the forces of the
government", "committing serious violence", and
destroying property in Article 135. However, RA No.
6968 eliminated the phrases "engaging in war against
the forces of the government", "committing serious
violence" and destroying property in Article 135.
According to Florenz Regalado, the amendment of

Article 135 does not affect the accepted concept of


rebellion and these overt acts of violence are
deemed subsumed in the provision on rebellion in
Article 134. Under this principle of subsumption,
engaging in combat against the forces of the
Government, destroying property or committing
serious violence is an essential ingredient of rebellion.
If the accused committed robbery, but
thereafter, they detained the victims to forestall their
capture by the police, the crime committed is robbery
only. Robbery absorbs kidnapping and serious illegal
detention. The detention was only incidental to the
main crime of robbery, and although in the course
thereof women and children were also held, that
threats to kill were made, the act should not be
considered as a separate offense (People vs. Astor,
G.R. Nos. L-71765-66, 29 April 1987). If the accused
committed robbery, but thereafter, they detained the
victims to demand additional money, and later forestall
their capture by the police, the crime committed is
complex crime of robbery through kidnapping and
serious illegal detention. The detention was availed of
as a means of insuring the consummation of the
robbery. The detention was not merely a matter of
restraint to enable the malefactors to escape, but
deliberate as a means of extortion for an additional
amount. Hence, the Astor principle is not applicable
(People vs. Salvilla, G.R. No. 86163 April 26, 1990). If
the accused committed robbery by band, but
thereafter, they took one of the victims and detained
him for seven days in another place for purpose of
demanding ransom, they are liable of separate crimes
of robbery by band and kidnapping for ransom (People
vs. Basao, G.R. No. 189820, October 10, 2012, Justice
De Castro).
ABDUCTION AND MULTIPLE RAPES
Main objective is to rape If the main
objective of the accused is to rape the victim, the
crime committed is rape. Forcible abduction (People vs.
Mejoraday, G.R. No. 102705, July 30, 1993; People vs.
Almanzor, G.R. No. 124916, July 11, 2002) or illegal
detention (People vs. Nuguid, G.R. No. 148991, January
21, 2004), which is incidental to the commission of
rape, is absorbed. The doctrine of absorption rather
than Article 48 of RPC is applicable since forcible
abduction or illegal detention is an indispensable
means to commit rape.
Abduction with lewd design If forcible
abduction is a necessary means to commit rape, this is
a complex crime proper under Article 48 of RPC.
However, multiple rapes were committed, forcible
abduction will be considered as a necessary means to
commit the first rape but not the subsequent rape.
Hence, with respect to the first rape, the crime
committed is rape though forcible abduction while the
subsequent rapes will be treated as separate crimes
(People vs. Jose, G.R. No. L-28232, February 6, 1971;
People vs. Garcia, G.R. No. 141125, February 28, 2002,
En Banc; People vs. Amaro, G.R. No. 199100, July 18,
2014).
As a rule, forcible abduction is an indispensable
means to commit rape; hence, the latter absorbs the
former. However, if the victim was brought in a house
or motel or in a place with considerable distance from
the place where she was abducted, forcible abduction
will be considered as a necessary means to commit
rape; hence, the crime committed is complex crime
proper.
Abduction to deprive liberty If the
accused abducted the victim without clear showing of
lewd design, the crime committed is kidnapping and
serious illegal detention since it will appear that the

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intention of the accused is to deprive victim of his


liberty. If as a consequence of illegal detention, the
victim was rape, the crime committed is a special
complex crime of kidnapping and serious illegal
detention with rape. This is the crime committed
regardless of the number of rapes. Multiple rapes will
be considered as a component of this special complex
crime (People vs. Mirandilla, Jr., G.R. No. 186417, July
27, 2011; People vs. Anticamaray, G.R. No. 178771,
June 8, 2011). If as a consequence of illegal detention,
the victim was rape and then killed, the crime
committed is a special complex crime of kidnapping
and serious illegal detention with homicide and rape.
Both the homicide and rape will be considered as a
component of this special complex crime (People vs.
Larranaga, 138874-75, February 3, 2004, En Banc).
The difference between rape through forcible
abduction and kidnapping with rape lies on the criminal
intention of the accused at the precise moment of
abduction. If the abduction is committed with lewd
design, the crime committed is rape through forcible
abduction. On the other hand, if the abduction is
committed without lewd design, the crime committed
is kidnapping and serious illegal detention with rape
(People vs. Mirandilla, Jr., G.R. No. 186417, July 27,
2011).Even if the victim was detained for one week
and in the course thereof, she was rape, the crime
committed is rape through forcible abduction if the
abduction is committed with lewd design (People vs.
Amaro, G.R. No. 199100, July 18, 2014).
MULTIPLE KIDDNAPPINGS - In People v
Tadah, G.R. No. 186226, February 1, 2012 - Since the
prosecution adduced proof beyond reasonable doubt
that the accused conspired to kidnap the 5 victims for
ransom, and kidnapped and illegally detained them
until they were released by the accused after the latter
received the P2,000,000.00 ransom xxx Appellant
Yusop Tadah is found guilty beyond reasonable doubt of
5 counts of kidnapping.

leveled at them is a continued crime of robbery.


Several acts of robbery were made pursuant to general
plan to despoil all those in the said place, which is an
indicative of a single criminal design.
Accused intended only to rob one place; and
that is the Energex gasoline station. That they did; and
in the process, also took away by force the money and
valuables of the employees working in said gasoline
station. Clearly inferred from these circumstances are
the series of acts which were borne from one criminal
resolution. A continuing offense is a continuous,
unlawful act or series of acts set on foot by a single
impulse and operated by an unintermittent force,
however long a time it may occupy. The perpetrated
acts were not entirely distinct and unconnected from
one another. Thus, there is only single offense or crime
(People vs. De Leon, GR No. 179943, June 26, 2009).

c. Single criminal impulse to satisfy lust In People vs. Aaron, G.R. NOS. 136300-02, September
24, 2002 - The accused inserted his penis into the
victims vagina; he then withdrew it and ordered the
latter to lie down on the floor and, for the second time,
he inserted again his penis into the victims vagina; the
accused, thereafter, stood up and commanded the
victim to lie near the headboard of the makeshift bed
and, for the third time, he inserted again his penis into
the victims vagina and continued making pumping
motions. Accused is convicted of only one count of
rape. Accused thrice succeeded in inserting his penis
into the private part of victim. However, the three
penetrations occurred during one continuing act of
rape in which the accused obviously motivated by a
single criminal intent. Accused decided to commit
those separate and distinct acts of sexual assault
merely because of his lustful desire to change positions
inside the room where the crime was committed.

DELICTO CONTINUADO
In order that continuous crime may exist, there
should be: (1) plurality of acts performed separately
during a period of time; (2) unity of criminal intent and
purpose and (3) unity of penal provision infringed upon
or violated (Santiago vs. Garchitorena , GR NO.
109266, December 2, 1993).

a. Single criminal impulse to steal - In


People vs. Tumlos, G.R. No. 46428, April 13, 1939, En
Banc - The theft of the thirteen cows owned by six
owners involved thirteen (13) acts of taking. However,
the acts of taking took place at the same time and in
the same place; consequently, accused performed but
one act. The intention was likewise one, namely, to
take for the purpose of appropriating or selling the
thirteen cows which he found grazing in the same
place. The fact that eight of said cows pertained to
one owner and five to another does not make him
criminally liable for as many crimes as there are
owners, for the reason that in such case neither the
intention nor the criminal act is susceptible of division.

b. Single criminal impulse to commit


robbery - In People vs. Dela Cruz, G.R. No. L-1745,
May 23, 1950, it was held that ransacking several
houses located within the vicinity of a sugar mill while
two of the bandits guarded the victims with guns

In People vs. Lucena, GR No. 190632, February


26, 2014 - Accused thrice succeeded in inserting his
penis into the private part of victim. The three (3)
penetrations occurred one after the other at an interval
of five (5) minutes wherein the accused would rest
after satiating his lust upon his victim and, after he has
regained his strength, he would again rape the victim.
When the accused decided to commit those separate
and distinct acts of sexual assault upon victim, he was
not motivated by a single impulse, but rather by
several criminal intents. Hence, his conviction for three
(3) counts of rape is indubitable.

d. Foreknowledge doctrine - In Gamboa vs.


CA, G.R. No. L-41054, November 28, 1975 - Accused
cannot be held to have entertained continuously the
same criminal intent in making the first abstraction on
October 2, 1972 for the subsequent abstractions on
the following days and months until December 30,
1972, for the simple reason that he was not possessed
of any fore-knowledge of any deposit by any customer
on any day or occasion and which would pass on to
his possession and control. At most, his intent to
misappropriate may arise only when he comes in
possession of the deposits on each business day but
not in future, since petitioner company operates only
on a day-to-day transaction. As a result, there could
be as many acts of misappropriation as there are
times the private respondent abstracted and/or

2015 BAR REVIEWER ON CRIMINAL LAW


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JUDGE MARLO B. CAMPANILLA

diverted the deposits to his own personal use and


benefit (People vs. Dichupa, G.R. No. L-16943,
October 28, 1961).
X as punong barangay was angered when
he discovered a tap from the main line of the public
water tank. On separate occasions, X threatened to
kill and crack the skulls of A, B, and C, who
suspected to be responsible for the tapping of water
line. There is no continued crime since the three
crimesof grave threatwere not committed under a
single criminal impulse. Xs intent to threaten A,
B, and C with bodily harm arose only when he
chanced upon each of his victims. Moreover, X has
no foreknowledge that will change upon the second
and third victims at the time he was committing the
first threat. Several threats can only be considered as
continued crime if the offender threatened three
individuals at the same place and at the same time
(Paera vs. People, G.R. No. 181626, May 30, 2011).
NOVATION
The novation theory may perhaps apply prior
to the filing of the criminal information in court by the
state prosecutors because up to that time the original
trust relation may be converted by the parties into an
ordinary creditor-debtor situation, thereby placing the
complainant in estoppel to insist on the original trust.
But after the justice authorities have taken cognizance
of the crime and instituted action in court, the offended
party may no longer divest the prosecution of its power
to exact the criminal liability, as distinguished from the
civil. The crime being an offense against the state, only
the latter can renounce it (Degaos vs. People, GR No.
162826, October 14, 2013).
It may be observed in this regard that novation
is not one of the means recognized by the Penal Code
whereby criminal liability can be extinguished; hence,
the role of novation may only be to either prevent the
rise of criminal liability or to cast doubt on the true
nature of the original basic transaction, whether or not
it was such that its breach would not give rise to penal
responsibility, as when money loaned is made to
appear as a deposit, or other similar disguise is
resorted to (Degaos vs. People, GR No. 162826,
October 14, 2013).
Although the novation of a contract of agency
to make it one of sale may relieve an offender from an
incipient criminal liability, that did not happen here, for
the partial payments and the proposal to pay the
balance the accused made during
the barangay proceedings were not at all incompatible
with Degaos liability under the agency that had
already attached. Rather than converting the agency to
sale, therefore, he even thereby confirmed his liability
as the sales agent of the complainants. The
acceptance of partial payments, without further
change in the original relation between the
complainant and the accused, cannot produce
novation. For the latter to exist, there must be proof of
intent to extinguish the original relationship, and such
intent cannot be inferred from the mere acceptance of
payments on account of what is totally due. Much less
can it be said that the acceptance of partial satisfaction
can effect the nullification of a criminal liability that is
fully matured, and already in the process of
enforcement. Thus, this Court has ruled that the
offended partys acceptance of a promissory note for
all or part of the amount misapplied does not obliterate
the criminal offense (Degaos vs. People, GR No.
162826, October 14, 2013).
DEATH OF THE ACCUSED

Novation can only be used as a defense in a


crime where one of its elements is the existence of
contractual relationship between the offender and the
victim. Defense of novation is applicable to estafa
through misappropriation because the contractual trust
relationship between the parties can be validly novated
or converted by the parties into an ordinary creditordebtor situation, thereby placing the complainant in
estoppel to insist on the original trust (People vs. Nery,
G.R. No. L-19567, February 5, 1964, En Banc). Novation
cannot be used as a defense in case of theft or estafa
through falsification of document. In theft case, there
was no contractual relationship or bilateral agreement
which can be modified or altered by the parties (People
vs. Tanjutco, G.R. No. L-23924, April 29, 1968, En
Banc).In estafa through falsification of public
documents, the liability of the offender cannot be
extinguished by mere novation (Milla vs. People, G.R.
No. 188726, January 25, 2012).
In People v. Bayotas, the Court laid down the
rules in case the accused dies prior to final judgment:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by
Justice Regalado, in this regard, the death of the
accused prior to final judgment terminates his criminal
liability and only the civil liability directly arising from
and based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore.
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than
delict. Article 1157 of the Civil Code enumerates these
other sources of obligation from which the civil liability
may arise as a result of the same act or omission: law;
contracts; quasi-contracts; quasi-delicts;
3. Where the civil liability survives, as
explained in Number 2 above, an action for recovery
therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111
of the 1985 Rules on Criminal Procedure as amended.
This separate civil action may be enforced either
against the executor/administrator or the estate of the
accused, depending on the source of obligation upon
which the same is based as explained above.
4. Finally, the private offended party need not
fear a forfeiture of his right to file this separate civil
action by prescription, in cases where during the
prosecution of the criminal action and prior to its
extinction, the private-offended party instituted
together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155 of the Civil
Code, that should thereby avoid any apprehension on a
possible privation of right by prescription (People vs.
Amistoso, GR No. 201447, August 28, 2013)
PRESCRIPTION
The crime of falsification of a public document
involving a deed of sale which was registered with the
Registry of Deeds, the rule on constructive notice can
be applied in the construction of Article 91. Hence, the
prescriptive period of the crime shall have to be
reckoned from the time the notarized deed of sale was
recorded in the Registry of Deeds (People vs. Reyes,
G.R. No. 74226, July 27, 1989). Constructive notice
rule is not applicable to registration of bigamous
marriage in the Office of the Civil Registrar.
Furthermore, P.D. 1529, which governed registration
of document involving real property, specifically
provides the rule on constructive notice. On the other

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

hand, Act No. 3753 or the Family Code, which


governed registration of marriage do not provide rule
on constructive notice (Sermonia vs. Court of Appeals,
G.R. No. 109454, June 14, 1994); hence the period of
prescription commences to run on the date of actual
discovery of the bigamous marriage.
COMMENCEMENT - As a rule, period of
prescription commence to run from the date of
discovery of its commission. However, if the crime is
not yet actionable at the time of its commission, period
of prescription will commence to run from the time it
becomes actionable. In false testimony, the crime was
committed at the time the accused falsely testified in
court. However, the period of prescription for false
testimony commences to run from the date of the
finality of judgment of a case in which the offender
testified falsely. Prior to the date of finality, the crime is
not yet actionable (People vs. Maneja, G.R. No. 47684,
June 10, 1941).

In violation of BP Blg. 22, the crime is


consummated upon the dishonor of the check by the
drawee bank (Bautista vs. Court of Appeals, G.R. No.
143375, July 6, 2001). However, the period of
prescription for such crime commences to run from
the date of the expiration of the five-day period from
receipt of notice of dishonor by the drawer. Prior to
that date, the crime is not yet actionable since the
offender can still avert criminal prosecution by
satisfying the amount of the check or making
arrangement for its payment within five day grace
period.

Moreover, the running of prescription for


crime punishable under special law shall be
interrupted upon filing of complaint with prosecutor
office for preliminary investigation. It would be absurd
to consider the prescriptive period for crime under BP
Blg. 22 as already running even prior to the expiration
of the grace period despite the fact that the
complainant could not cause its interruption by filing a
complaint for preliminary investigation since it is not
yet actionable.

In People vs. Pangilinan, G.R. No. 152662, June


13, 2012 - This Court reckons the commencement of
the period of prescription for violations of BP Blg. 22
imputed to accused sometime in the latter part of
1995, as it was within this period that the accused was
notified by the private complainant of the fact of
dishonor of the subject checks and, the five (5) days
grace period granted by law had elapsed. The private
complainant then had, pursuant to Act 3326, four years
there from or until the latter part of 1999 to file her
complaint or information against the petitioner before
the proper court.
Blameless ignorance doctrine - Generally,
the prescriptive period shall commence to run on the
day the crime is committed. An exception to this rule
is the "blameless ignorance" doctrine, incorporated in
Section 2 of Act No. 3326. Under this doctrine, "the
statute of limitations runs only upon discovery of the
fact of the invasion of a right which will support a
cause of action. Considering that during the Marcos
regime, no person would have dared to assail the

legality of the transactions involving cronies such as


behest loan, it would be unreasonable to expect that
the discovery of the unlawful transactions was possible
prior to 1986 (Disini vs. Sandiganbayan, G.R. No.
169823-24 and 174764-65, September 11, 2013).
Hence, the prescriptive period for violation of RA No.
3019 commenced from the date of its discovery in
1992 after the Committee made an exhaustive
investigation (Presidential Ad hoc fact-finding
committee vs. Hon. Desierto, G.R. No. 135715, April 13,
2011)
INTERRUPTION OF PRESCRIPTION Under
Act No. 3326, the running of the prescription of
offense punishable under special law shall be
interrupted when judicial proceedings for
investigation and punishmentare instituted against
the guilty person. The proceeding is described as
judicial since when Act No. 3326 was passed on
December 4, 1926, preliminary investigation of
criminal offenses was conducted by justices of the
peace. Considering that preliminary investigation in
criminal case for purposes of prosecution has become
the exclusive function of the executive branch, the
term proceedings should now be understood either
executive or judicial in character: executive when it
involves the investigation phase and judicial when it
refers to the trial and judgment stage. Hence,
institution of proceeding, whether executive or
judicial, interrupts the running of prescriptive period
(Panaguiton vs. Department of Justice, G.R. No.
167571, November 25, 2008).
Thus, the commencement of the following
proceedings for the prosecution of the accused
effectively interrupted the prescriptive period for the
offense charged: (1) Filing of complaint for violation of
BP 22 with the Office of the City Prosecutor
(Panaguiton vs. Department of Justice, supra); (2)
Filing of complaint for violations of the Revised
Securities Act and the Securities with the Securities
and Exchange Commission (SEC vs. Interport
Resources Corporation, G.R. No. 135808, October 6,
2008, the Supreme Court En Banc); and(3) Filing of
complaint for violation of RA No. 3019 with the Office
of the Ombudsman (Disini vs. Sandiganbayan, G.R.
No. 169823-24 and 174764-65, September 11, 2013)
Exceptions:
1. Violation of ordinance In Zaldivia v.
Reyes, Jr., G.R. No. 102342, July 3, 1992 - The
proceedings referred to in Section 2 of Act No. 3326 are
judicial proceedings (which does not include
administrative proceedings). Thus, a crime such as
violation of ordinance may prescribe even if the
complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of
the necessary judicial proceedings until it is too late.
In Jadewell Parking Systems Corp. vs. Lidua, Sr.,
GR No. 169588, Oct. 7, 2013, the Supreme Court
applied the Zaldivia principle to prescription of
violation of ordinance. In this case, what is involved in
this case is violation of ordinance of Baguio City, a
chartered city. Accordingly, when the representatives
of the petitioner filed the Complaint before the
Provincial Prosecutor of Baguio, the prescription period
was running. It continued to run until the filing of the
Information. They had two months to file the
Information and institute the judicial proceedings by
filing the Information with the Municipal Trial Court.
While the case of Pangilinan categorically
abandoned the Zaldivia principle, the Supreme Court
in Jadewell case ruled the doctrine of Pangilinan
pertains to violations of special laws but not to
ordinances. In sum, if what is involved is prescription

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

of violation of special law, institution of administrative


proceeding for investigation interrupts the prescriptive
period.Zaldivia is not controlling. If what is involved is
prescription of violation of ordinance, institution of
judicial proceeding is required to interrupt the running
of prescription. Zaldivia case is controlling.
2.Invalid proceeding In People vs.
Romualdez and Sandiganbayan, G.R. No. 166510,
April 29, 2009 - The investigatory power of the PCGG
extended only to alleged ill-gotten wealth cases,
absent previous authority from the President for the
PCGG to investigate such graft and corruption cases
involving the Marcos cronies. Accordingly, the
preliminary investigation conducted by the PCGG
leading to the filing of the first information is void ab
initio, and thus could not be considered as having
tolled the fifteen (15)-year prescriptive period for
violation of RA No. 3019. After all, a void ab
initio proceeding such as the first preliminary
investigation by the PCGG could not be accorded any
legal effect.
MARRIAGE IN RAPE
There are two rules under Article 334 of RPC
in connection with marriage as a mode of criminal
extinction. First, in cases of seduction, abduction,
acts of lasciviousness and rape, the marriage of the
offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed
upon him. Second, the provisions of this paragraph
shall also be applicable to the co-principals,
accomplices and accessories after the fact of the
abovementioned crimes.
According to Regalado, since rape is now a
crime against person, it should be considered ad
deleted from the text of Article 334. In case of rape,
the applicable rule is Article 266-C of RPC as
amended by RA 8353. Under this provision,
subsequent marriage between the offender and
offended party shall extinguish the criminal action or
penalty. It seems that RA 8353 adopted the first rule
in Article 344 of RPC but not the second rule. Hence,
marriage between the offender and offended party
will not extinguish the criminal liability of the coprincipal, accomplice or accessory of the crime of
rape
PROBATION
Probation distinguished from parole and
pardon (1) Grant of probation is judicial while that of
parole and pardon is executive. (2) Probation and
parole are suspension sentence while pardon is
remission of penalty. (3) Offender can only apply for
probation within the period of perfecting an appeal;
offender is eligible for pardon after conviction by final
judgment; offender is eligible for parole after serving
the minimum of the indeterminate penalty. (4)
Offender, who was sentenced to suffer a penalty of
more than 6 years of imprisonment, is disqualified to
apply for probation. Offender, who was sentence to
suffer reclusion perpetua or death penalty, is not
qualified for parole. However, the President can
pardon offender even if the penalty imposed upon him
is reclusion perpetua or death penalty.
a. Mutual exclusive remedies - Probation is
not a right but a mere privilege, an act of grace and
clemency conferred by the State, and may be granted
by the court to a deserving defendant. Accordingly, the

grant of probation rests solely upon the discretion of


the court. It is to be exercised primarily for the benefit
of organized society, and only incidentally for the
benefit of the accused (Almero vs. People, GR No.
188191, March 12, 2014).
Probation is a special privilege granted by the
state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible
convict to immediately admit his liability and save the
state of time, effort and expenses to jettison an appeal.
The law expressly requires that an accused must not
have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on
the part of the accused to wager on the result of his
appeal that when his conviction is finally affirmed on
appeal he now applies for probation as an escape
hatch thus rendering nugatory the appellate court's
affirmance of his conviction(Almero vs. People, GR No.
188191, March 12, 2014).
Aside from the goals of according expediency
and liberality to the accused, the rationale for the
treatment of appeal and probation as mutually
exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for
probation is deemed to have accepted the judgment.
The application for probation is an admission of guilt on
the part of an accused for the crime which led to the
judgment of conviction. This was the reason why the
Probation Law was amended: precisely to put a stop to
the practice of appealing from judgments of conviction
even if the sentence is probationable for the
purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid (Almero vs.
People, GR No. 188191, March 12, 2014).
While accused did not file an appeal before
applying for probation, he assailed the validity of the
conviction in the guise of a petition supposedly
assailing the denial of probation. In so doing, he
attempted to circumvent P.D. No. 968, as amended by
P.D. 1990, which seeks to make appeal and probation
mutually exclusive remedies (Almero vs. People, GR
No. 188191, March 12, 2014).
b. Non-probationable offense - The
accused, who was convicted by the lower court of a
non-probationable offense (frustrated homicide), but
on appeal was found guilty of a probationable offense
(attempted homicide), may apply for probation upon
remand of the case to the RTC because of the
following reasons: (1) The Probation Law never
intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused.
Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions; (2)
If the accused will not be allowed to apply for
probation, he will be made to pay for the trial courts
erroneous judgment with the forfeiture of his right to
apply for probation; (3) While it is true that probation
is a mere privilege, the accused has the right to apply
for that privilege; (4) It is true that under the
probation law the accused who appeals "from the
judgment of conviction" is disqualified from availing
himself of the benefits of probation. But, as it
happens, two judgments of conviction have been
meted out to accused: one, a conviction for frustrated
homicide by the regional trial court, now set aside;
and, two, a conviction for attempted homicide by the
Supreme Court (Colinares vs. People, G.R. No. 182748,
December 13, 2011). The SC reaffirmed the Colinares
case in Villareal vs. People, G.R. No. 151258,
December 1, 2014, accused was convicted of
homicide, a non-probationable crime, by the trial
court. However, the SC found them liable for reckless

2015 BAR REVIEWER ON CRIMINAL LAW


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JUDGE MARLO B. CAMPANILLA

imprudence resulting in homicide, which is a


probationable crime,because of lack of dolo. They can
still apply for probation.
CRIMES AGAINST FUNDEMENTAL LAW
UNLAWFUL ARREST AND ARBITRARY DETENTION

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
(Regidor, Jr., vs. People, G. R. Nos. 166086-92 Feb. 13,
2009).

In unlawful arrest, the private individual or


public officer in its private capacity arrests or detains
the victim without reasonable ground or legal authority
for purpose of delivering him to the proper judicial
authority. In arbitrary detention, the public officer, who
has authority to make arrest, detains the victim
without legal grounds (People vs. Bringas G.R. No.
189093, April 23, 2010)for the purpose of: (1)
Delivering him to judicial authority (U.S. us. Gellada, 15
Phil. 120); (2) Conducting criminal investigation
(People vs. Oliva, 95 Phil. 962; U.S. vs. Agravante, G.R.
No. 3947, January 28, 1908); or (3) Determining if he
committed or is committing a crime [U.S. vs. Hawchaw,
G.R. No. L-6909, February 20, 1912].

Falsification and estafa, malversation or theft

Arbitrary detention is a crime against


fundamental law of the law or the Constitution. A
public officer, who is vested with the authority to
detain or to order the detention of a person accused of
a crime, is acting in behalf of the State in arresting or
detaining a person. If such public officer detained a
person in violation of his constitutional right against
unreasonable seizure (or not in accordance with
Section 5, Rule 113 of the Revised Rules of Criminal
Procedure), the crime committed is arbitrary
detention. Unlawful arrest is a crime against personal
liberty and security.A public officer, who is not vested
with the authority to detain or to order the detention of
a person (e.g. stenographer, researcher or municipal
treasurer), is not acting in behalf of the State in making
a warrantless arrest. Such public officer acting in his
private capacity (or a private individual) could not
violate the Constitution (People vs Marti, G.R. No.
81561, January 18,1991); hence, if he arrests or
detains a person not in accordance with Section 5, Rule
113 of the Revised Rules of Criminal Procedure, the
crime committed is unlawful arrest. The essence of
this crime is not violation of fundamental law of the law
but deprivation of liberty of the victim.

If the public officer is an accountable officer,


misappropriation of public funds is malversation
(People vs. Barbas). If the public officer is not an
accountable officer, misappropriation of funds is estafa
(Ilumin vs. Sandiganbayan).

CRIMES AGAINST PUBLIC INTEREST


FALSIFICATION
Affidavit - In Lonzanida vs. People, G.R. Nos.
160243-52, July 20, 2009, Justice De Castro Petitioner as mayor, who is authorized to administer
oath, attested to the fact that the affiants swore and
signed their affidavits in his presence when in fact they
never did. He committed falsification by causing it to
appear that persons have participated in an act or
proceeding when in fact and in truth, they did not
participate in the act or proceeding.
Commercial document - Commercial
documents are, in general, documents or instruments
which are used by merchants or businessmen to
promote or facilitate trade or credit transactions.
Promissory notes facilitate credit transactions while a
check is a means of payment used in business in lieu of
money for convenience in business transactions. A
cashiers check necessarily facilitates bank
transactions for it allows the person whose name and
signature appear thereon to encash the check and
withdraw the amount indicated therein (Tanenggee vs.
People, GR No. 179448, June 26, 2013).
Damage as an element - Is intent to cause
damage an element of falsification of public or official
document? No. In falsification of public or official
documents, it is not necessary that there be present

When the offender commits falsification of


public, official or commercial document as a necessary
means to commit malversation (People vs. Barbas, G.R.
No. L-41265, July 27, 1934), estafa (Ilumin vs.
Sandiganbayan, G.R. No. 85667, February 23, 1995;
Intestate Estate of Gonzales vs. People, G.R. No.
181409, February 11, 2010; Ambito vs. People, G.R. No.
127327, February 13, 2009, Justice De castro,
Tanenggee vs. People, GR No. 179448, June 26, 2013)
or theft (People vs. Salonga, G.R. No. 131131, June 21,
2001), the crime committed is complex crime proper
under Article 48 of RPC.

Using a falsified check to defraud the bank is


estafa through falsification of commercial document
(Tanengee vs. People). Using a stolen and falsified
check to defraud the bank is theft through falsification
of commercial document (People vs. Salonga).
When the offender commits falsification of
public, official or commercial document as a means to
conceal malversation (People vs. Sendaydiego, G.R.
Nos. L-33252-54, January 20, 1978; People vs.
Villanueva, G.R. No. 39047, October 31, 1933, En
Banc), estafa (People vs. Monteverde, G.R. No. 139610,
August 12, 2002; People vs. Benito, G.R. No. 36979,
November 23, 1932) or theft, the crimes are separate.
This is not complex crime proper since one is not a
necessary means to commit another.
Other view: If falsification is committed for
purpose of enabling the accused to commit
malversation (People vs. Silvanna, G.R. No. L-43120,
July 27, 1935; Zafra vs. People, G.R. No. 176317, July
23, 2014) or estafa (People vs. Go, G.R. No. 191015,
August 06, 20140, the accused is liable for complex
crime proper.
Under the doctrine of common element, an
element used to complete one crime cannot be legally
re-used to complete the requisites of a subsequent
crime (Regalado). The common element of estafa or
malversation and falsification is damage to the victim.
Thus, falsification of private document and estafa
cannot co-exist. The use of damage as an element in
falsification precludes the re-use thereof to complete
the elements of estafa, and vice versa.
If the falsification of a private document is
committed as a means to commit estafa, the proper
crime to be charged is falsification. If the estafa can be
committed without the necessity of falsifying a private
document, the proper crime to be charged is estafa
(Batulanon vs. People, G.R. NO. 139857, September 15,
2006).
If the offender commits falsification of private
document as a means to commit estafa, he is liable for
falsification only. Falsification absorbs estafa. (See: U.S.
vs Chan Tiao, G.R. No. 12609, October 30, 1917;
People vs. Reyes, G.R. No. L-34516, November 10,
1931).

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If a person commits falsification of private


document to conceal malversation or estafa, the crime
is malversation or estafa only. Falsification of private
document is not committed because: (a) the use of
damage as an element in estafa precludes the re-use
thereof to complete the elements of falsification; and
(b) the damage to third person is not caused by the
falsity in the document but by the commission of
estafa(See: People vs. Beng, 40 O.G. 1913).
If falsification of private document was used as
a means to commit estafa, the former was committed
ahead of the latter; hence, falsification absorbs the
element of damage of estafa. If falsification of private
document was used as a means to conceal estafa, the
latter was committed ahead of the former; hence,
estafa absorbs the element of damage of falsification.
USURPATION OF FUNCTION
Usurpation of authority is committed by
knowingly and falsely representing himself to be an
officer, agent or representative of any department or
agency of the government or of any foreign
government. Usurpation of function is committed by
performing any act under pretense of official position
pertaining to any person in authority or public officer of
the government or any foreign government, or any
agency thereof, without being lawfully entitled to do so
(Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April
17, 2013).
In Ruzol vs. Sandiganbayan, GR Nos. 186739960, April 17, 2013 - Accused, a mayor issued permits
to transport salvaged forest products. According to
prosecution, DENR is the only government
instrumentality that can issue the permits to transport
salvaged forest products. The prosecution asserted
that accused usurped the official functions that
properly belong to the DENR.
Accused chose to exercise the right to protect
the environment and to share in this responsibility by
exercising his authority as municipal mayoran act
which was executed with the cooperation of nongovernmental organizations, stakeholders, and
concerned citizens. His acts may be invalid but it does
necessarily mean that such mistakes automatically
justify his conviction.
There is no showing that accused possessed
that criminal mind when he in his capacity as mayor
issued the subject permits. What is clear from the
records is that accused, as municipal mayor, intended
to regulate and monitor salvaged forest products in
order to avert the occurrence of illegal logging in the
area.
Good faith is a defense in criminal prosecutions
for usurpation of official functions. The requirement of
permits to transport was accuseds decision alone; it
was a result of the collective decision of the
participants during the Multi-Sectoral Consultative
Assembly. If, indeed, accused intended to usurp the
official functions of the DENR, he would not have asked
the presence of a DENR official who has the authority
and credibility to publicly object against accuseds
allegedly intended usurpation. Thus, the presence of
DENR official during the Multi-Sectoral Assembly
strengthens accuseds claim of good faith.
The DENR is not the sole government agency
vested with the authority to issue permits relevant to
the transportation of salvaged forest products,
considering that, pursuant to the general welfare
clause, LGUs may also exercise such authority.
CRIMES COMMITTED BY PUBLIC OFFICER

MALVERSATION
The essential elements common to all acts of
malversation under Article 217 of the Revised Penal
Code are: (1) That the offender be a public officer; (2)
That he had the custody or control of funds or property
by reason of the duties of his office; (3) That he had
the custody or control of funds or property by reason of
the duties of his office; (4) That those funds or property
were public funds or property for which he was
accountable; and (5) That he appropriated, took,
misappropriated or consented, or through
abandonment or negligence, permitted another person
to take them (Legrama vs. Sandiganbayan, GR No.
178626, June 13, 2012).
Accountable officer An accountable public
officeris one who has custody or control of public funds
or property by reason of the duties of his office. The
nature of the duties of the public officer or employee,
the fact that as part of his duties he received public
money for which he is bound to account and failed to
account for it, is the factor which determines whether
or not malversation is committed by the accused public
officer or employee. Hence, a school principal of a
public high school may be held guilty of malversation if
he or she is entrusted with public funds and
misappropriates the same (Torres vs. People, GR No.
175074, August 31, 2011).
The municipal mayor initiated the request for
obligation of allotments and certified and approved the
disbursement vouchers. The municipal accountant
obligated the allotments despite lack of prior
certification from the budget officer. Municipal
treasurer certified to the availability of funds and
released the money even without the requisite budget
officers certification. The signatures of beneficiaries,
who supposed to have received the money, were
forged. Can the mayor and accountant be held liable
for malversation even though they are not accountable
officer? Yes. Ordinarily, a municipalitys mayor and
accountant are not accountable public officers as
defined under the law. However, a public officer who is
not in charge of public funds or property by virtue of
his official position, or even a private individual, may
be liable for malversation if such public officer or
private individual conspires with an accountable public
officer to commit malversation. In this case, combined
acts of the mayor and accountant, and treasurer, an
accountable officer, conspired to defraud the
government (People vs. Pajaro, G.R. Nos. 167860-65,
June 17, 2008).
In addition, municipal mayors are chief
executives of their respective municipalities. Under the
Government Auditing Code of the Philippines, he is
responsible for all government funds pertaining to the
municipality. As a required standard procedure, the
signatures of the mayor and the treasurer are needed
before any disbursement of public funds can be made.
No checks can be prepared and no payment can be
effected without their signatures on a disbursement
voucher and the corresponding check. In other words,
any disbursement and release of public funds require
their approval. The mayor and treasurer had control
and responsibility over the funds of the municipality.
Hence, they are accountable officers. Any unlawful
disbursement or misappropriation of the municipal
funds would make them accountable for malversation
(Evangelista vs. Hon. Sandiganbayan, G.R. No. 158413,
February 08, 2012).
Intentional and culpable malversation
Malversation may be committed either through a
positive act of misappropriation of public funds or
property, or passively through negligence. To sustain a
charge of malversation, there must either be criminal

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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 areequally punishable for
malversation (Torres vs. People, GR No. 175074, August
31, 2011).

1995. Petitioner was liable for failure to render account


under Article 218 because it took him over six years
before settling his accounts. Demand before an
accountable officer is held liable for a violation of the
crime is not required. Article 218 merely provides that
the public officer be required by law and regulation to
render account.

Even when the Information charges intentional


malversation, conviction for malversation through
negligence may still be adjudged if the evidence
ultimately proves the mode of commission of the
offense. Malversation is committed either intentionally
or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from mode
proved, the same offense of malversation is involved
and conviction thereof is proper (Torres vs. People, GR
No. 175074, August 31, 2011).

KNOWINGLY RENDERING UNJUST JUDGEMENT

Presumption of malversation - Mere


absence of funds is not sufficient proof of conversion;
neither is the mere failure of the public officer to turn
over the funds at any given time sufficient to make
even the prima facie case. In fine, conversion must be
proved. However, an accountable officer may be
convicted of malversation even in the absence of direct
proof of misappropriation so long as there is evidence
of shortage in his account which he is unable to
explain.
Under Article 217, a presumption was installed
that upon demand by any duly authorized officer, the
failure of a public officer to have duly forthcoming any
public funds or property with which said officer is
accountable should be prima facie evidence that he
had put such missing funds or properties to personal
use. When these circumstances are present, a
presumption of law arises that there was
malversation of public funds or properties. To be sure,
this presumption is disputable and rebuttable by
evidence showing that the public officer had fully
accounted for the alleged cash shortage (Legrama vs.
Sandiganbayan, G.R. No. 178626, June 13, 2012).
In the crime of malversation, all that is
necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he
did not have them in his possession when demand
therefor was made, and that he could not satisfactorily
explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as
long as the accused cannot explain satisfactorily the
shortage in his accounts (Icdang vs. Sandiganbayan,
G.R. No. 185960, January 25, 2012).
FAILURE TO RENDER ACCOUNTING
In People vs. Lumauig, G.R. No.166680, July 7,
2014 - Article 218 of RPC consists of the following
elements: (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.
Petitioner received cash advance for payment
of the insurance coverage of motorcycles purchased by
the Municipality in 1994. Under COA Circular,
petitioner is required to liquidate the same within 20
days after the end of the year or on ore before January
20, 1995. To avoid liability under Article 218, he should
have liquidated the cash advance within two months
from the time it was due, or on or before March 20,

To commit the offense of knowingly rendering


an unjust judgment, the offender must be a judge who
is adequately shown to have rendered an unjust
judgment, not one who merely committed an error of
judgment or taken the unpopular side of a
controversial point of law. The term knowingly means
sure knowledge, conscious and deliberate intention to
do an injustice. Thus, the complainant must not only
prove beyond reasonable doubt that the judgment is
patently contrary to law or not supported by the
evidence but that it was also made with deliberate
intent to perpetrate an injustice. Good faith and the
absence of malice, corrupt motives or improper
consideration are sufficient defenses that will shield a
judge from the charge of rendering an unjust
decision. In other words, the judge was motivated by
hatred, revenge, greed or some other similar motive in
issuing the judgment. Bad faith is, therefore, the
ground for liability. The failure of the judge to correctly
interpret the law or to properly appreciate the evidence
presented does not necessarily render him
administratively liable(Re: Verified Complaint for
Disbarment of AMA LAnd Inc. against CA Association
Justice Bueser et.al., OCA IPI No. 12-204-CA-J, March
11, 2014).
USURPATION OF JUDICIAL AUTHORITY
Under Article 241 of the Revised Penal Code,
the crime of usurpation of judicial authority involves
the following elements: (1) that the offender is an
officer of the executive branch of the government; and
(2) that he assumes judicial powers, or obstructs the
execution of any order or decision rendered by any
judge within his jurisdiction. These elements were
alleged in the information. Mayor Irisari was an officer
of the executive branch (Munez vs. Arino, A.M. No. MTJ94-985, February 21, 1995). In usurpation of judicial
function, the accused, who is not a judge, attempts to
perform an act the authority for which the law has
vested only in a judge (Mioso v. Pamulag, A.M. No. P05-2067, 31 August 2005; Pace v. Leonardo, A.M. No. P03-1675, 6 August 2003,). A Provincial Adjudicator,
who rendered judgment in DARAB Case in the
performance of a quasi-judicial function, closely akin to
the function of a judge of a court of law, could not be
held liable under Article 241 of RPC, therefore,
considering that the acts constitutive of usurpation of
judicial function were lacking herein (Reyes vs. People,
G.R. Nos. 177105-06, August 12, 2010). A clerk of
court, who is not an officer of the executive branch,
cannot be held liable for usurpation of judicial function.
However, a clerk of court, who usurped judicial
prerogative of the judge by issuing the arrest of an
accused in a criminal case, is administratively liable for
grave misconduct (Albior vs. Auguis, A.M. No. P-011472, June 26, 2003).
CRIMES AGAINST PERSONS
PARRICIDE

Parricide is committed when: (1) a person is killed; (2)


the deceased is killed by the accused; and (3) the
deceased is the father, mother, or child, whether

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legitimate or illegitimate, or a legitimate other


ascendant or other descendant, or the legitimate
spouse of the accused (People vs. Gamez, GR No.
202847, October 23, 2013).

MURDER
Murder, the prosecution must prove that: (1) a
person was killed; (2) the accused killed him; (3) the
killing was attended by any of the qualifying
circumstances mentioned in Article 248; and (4) the
killing is neither parricide nor infanticide (People vs.
Camat, G.R. No. 188612, July 30, 2012
ATTEMPTED MURDER - Accused opened the
door of his vehicle and then drew a gun and shot victim
once, hitting him just below the left armpit. Victim
immediately ran at the back of the car, while accused
sped away. Is the accused liable for attempted murder?
No. Accused only shot the victim once and did not hit
any vital part of the latters body. If he intended to kill
him, accused could have shot the victim multiple times
or even ran him over with the car. When such intent is
lacking but wounds are inflicted upon the victim, the
crime is not attempted murder but physical injuries
only (Pentecoste, Jr. vs. People, G.R. No. 167766, April
7, 2010).
EXCESSIVE CHASTISEMENT
X tied his son to a coconut tree and, there
after hit on his right eye and right leg. As a
consequence, his son sustained injuries that would heal
in one week upon medication. Is X liable for slight
physical injuries despite the fact that his intention in
beating his son is merely to discipline him? Yes. X
cannot evade criminal culpability by the circumstance
that he merely intended to discipline his son (People
vs. Sales, G.R. No. 177218, October 3, 2011).
RAPE

(People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002,


En banc). Failure to shout should not be taken against
the victim (People vs. Rivera, GR No. 200508,
September 04, 2013; see: People vs. Rubio, G.R.
No. 195239, March 7, 2012; People vs. Penilla, GR No.
189324, March 20, 2013). It necessary for the victim to
sustain physical injuries. She need not kick, bite, hit or
scratch the offender with her fingernails to prove that
she had been defensive. It is sufficient that she
yielded because of a real application of bodily harm
(People vs. Torres, G.R. No. 134766, January 16, 2004).
The use of a weapon, by itself, is strongly suggestive of
force or at least intimidation, and threatening the
victim with a gun is sufficient to bring her into
submission (People vs. Tubat, G.R. No. 183093,
February 1, 2012; People vs. Penilla, GR No. 189324,
March 20, 2013).
In incestuous rape of a minor, actual force or
intimidation need not even be employed where the
overpowering moral influence of appellant, who is
private complainants father, would suffice (People vs.
Samandre, G.R. No. 181497, February 22, 2012) In rape
committed by a father, his moral ascendancy and
influence over the victim substitute for the requisite
force, threat, and intimidation, and strengthen the fear
which compels the victim to conceal her dishonor
(People vs. Ortega, G.R. No. 186235, January 25, 2012;
People vs. Broca, GR No. 201447, January 09,
2013People vs. Candellada, G.R. No. 189293, July 10,
2013,Justice De Castro). The absence of violence or
offer of resistance would not affect the outcome of the
case because the overpowering and overbearing moral
influence of the father over his daughter takes the
place of violence and offer of resistance required in
rape cases committed by an accused who did not have
blood relationship with the victim (People vs. Osma,
G.R. No. 187734, August 29, 2012, Justice De
Castro).In People vs. Abanilla, G.R. Nos. 148673-75,
October 17, 2003, En Banc - Being the father,
appellants force or threat was sufficient to create fear
in the mind of the complainant compelling her to
submit to his sexual abuse.

INTIMIDATION - It is a well-entrenched law


that intimidation in rape includes the moral kind of
intimidation or coercion. Intimidation is a relative
term, depending on the age, size and strength of the
parties, and their relationship with each other. It can
be addressed to the mind as well. For rape to exist it is
not necessary that the force or intimidation employed
be so great or of such character as could not be
resisted. It is only necessary that the force or
intimidation be sufficient to consummate the purpose
which the accused had in mind. Intimidation must be
viewed in the light of the victim's perception and
judgment at the time of the rape and not by any hard
and fast rule. It is therefore enough that it produces
fear -- fear that if the victim does not yield to the
bestial demands of the accused, something would
happen to her at the moment or thereafter, as when
she is threatened with death if she reports the
incident. Intimidation would also explain why there are
no traces of struggle which would indicate that the
victim fought off her attacker (People vs. Leonardo
G.R. No. 181036. July 6, 2010).

Sweetheart theory - The sweetheart theory,


as a defense, necessarily admits carnal knowledge, the
first element of rape. This admission makes the
sweetheart theory more difficult to defend, for it is not
only an affirmative defense that needs convincing
proof; after the prosecution has successfully
established a prima facie case, the burden of evidence
is shifted to the accused, who has to adduce evidence
that the intercourse was consensual (People vs.
Deligero, GR No. 189280, April 17, 2013).

Tenacious resistance - Among the


amendments of the law on rape introduced under RA
No. 8353 is Section 266-D, which provides Any
physical overt act manifesting resistance against the
act of rape in any degree from the offended party, or
where the offended party is so situated as to render
her/him incapable of giving valid consent, may be
accepted as evidence in the prosecution rape (People
vs. Sabadlab, G.R. No. 175924, March 14, 2012). The
legislators agreed that Article 266-D is intended to
soften the jurisprudence on tenacious resistance

A child was not capable of fully understanding


or knowing the import of her actions and in
consequence, remained vulnerable to the cajolery and
deception of adults. Unlike rape, therefore, consent is
immaterial in cases involving sexual absue under
Section 5 of RA 7610. For purposes of sexual abuse,
the sweetheart defense is unacceptable. A child
exploited in prostitution or subjected to other sexual
abuse cannot validly give consent to sexual intercourse
with another person (Caballo vs. People, GR No.
198732, June 10, 2013).

Sweetheart defense will not exculpate accused


from liability for rape against mentally retarded person.
In the rape of a woman deprived of reason or
unconscious, the victim has no will. The absence of will
determines the existence of the rape. Such lack of will
may exist not only when the victim is unconscious or
totally deprived of reason, but also when she is
suffering some mental deficiency impairing her reason
or free will. Carnal knowledge of a woman so weak in
intellect as to be incapable of legal consent constitutes
rape (People vs. Caoile, GR No. 203041, June 05, 2013).

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MENTAL RETARDATION In People vs. Dalan,


G.R. No. 203086, June 11, 2014 - The term statutory
rape should only be confined to situations where the
victim of rape is a person less than 12 years of age. If
the victim of rape is a person with mental abnormality,
deficiency, or retardation, the crime committed is
simple rape committed against a person "deprived of
reason" . In short, carnal knowledge with a mental
retardate with mental age of below 12 years, while akin
to statutory rape should still be designated as simple
rape. At any rate, proof of force, threat or intimidation
is dispensed with in both statutory rape and rape with
a person who is deprived of reason.
In rape, the phrase "deprived of reason" refers
to mental abnormality, deficiency or retardation, which
includes (a) idiot (equivalent to two-year old child); (b)
imbecile (seven-year old child); (c) moron or
feebleminded (twelve-year old child) and (d) borderline
intelligence. A person is guilty of rape when he had
sexual intercourse with a female who was suffering
from a "borderline mental deficiency (People vs.
Butiong, G.R. No. 168932, October 19, 2011; G.R. No.
140209, December 27, 2002, People vs. Dalandas)
Intimidation - Mental retardation was not
alleged in the information. However, the accused can
be convicted of with rape though intimidation alleged
in the Information. Having sex with a mentally retarded
person even with consent constitutes rape through
intimidation (People vs. Balatazo, G.R. No.
118027, January 29, 2004).
Demented person - The
term demented refers to a person who has dementia,
which is a condition of deteriorated mentality,
characterized by marked decline from the individuals
former intellectual level and often by emotional
apathy, madness, or insanity. On the other hand, the
phrase deprived of reason includes those suffering
from mental abnormality, deficiency, or
retardation. Thus,a mental retardate can be properly
classified as a person who is deprived of reason, and
not one who is demented.
Accused was charged in the Information with
rape of a demented person with a mental age of 7
years old. Evidence however shows that the victim is
not demented but mentally retarded. The mistake will
not exonerate accused. His rights to be informed of the
nature and cause of the accusation against him were
violated. The allegation that the victim is a person with
a mental age of 7 years old is sufficient to inform
accused of the nature of the charges against him.
Carnal knowledge of a woman who is a mental
retardate is rape (People vs. Caoile, GR No. 203041,
June 05, 2013,Justice De Castro).

Accused was charged in the Information with


rape of a demented personwith mental capacity below
18 years old. Evidence however shows that the victim
is not demented but mentally retarded. Mistake in the
information will not exonerate the accused he failed to
raise this as an objection, and the particular facts
stated in the Information were protestation sufficient to
inform him of the nature of the charge against him
(People vs. Ventura, Sr. GR. No. 205230, March 12,
2014).

Deafmute - The deprivation of reason need


not be complete. Mental abnormality or deficiency is
enough. Cohabitation with a feebleminded, idiotic
woman is rape. Sexual intercourse with an insane
woman was considered rape. But a deafmute is not
necessarily deprived of reason. These circumstances
must be proven. Intercourse with a deafmute is not
rape of a woman deprived of reason, in the absence of
proof that she is an imbecile (People vs. Caoile, GR No.
203041, June 05, 2013).
Borderline intelligence - The traditional but
now obsolescent terms applied to those degrees of
mental retardation were (a) idiot, having an IQ of 0-19,
and a maximum intellectual factor in adult life
equivalent to that of the average two-year old child;
(b)imbecile by an IQ of 20 to 49 and a maximum
intellectual function in adult life equivalent to that of
the average seven-year old child;
(c) moron or feebleminded, having an IQ of 50 to 69
and a maximum intellectual function in adult life
equivalent to that of the average twelve-year old child.
Psychiatrists and psychologists apply the term
borderline intelligence to those with IQ between 70
to 89. A person is guilty of rape when he had sexual
intercourse with a female who was suffering from a
borderline mental deficiency (People vs. Bayrante,
G.R. No. 188978, June 13, 2012 (Justice De Castro).
STATUTORY RAPE - In statutory rape, what
the law punishes is carnal knowledge of a woman
below 12 years of age. Thus, the only subject of
inquiry is the age of the woman and whether carnal
knowledge took place. The law presumes that the
victim does not and cannot have a will of her own on
account of her tender years (People vs. Dollano, Jr., GR
No. 188851, October 19, 2011).
QUALIFIED RAPE - RPC punishes the rape of a
mentally disabled person regardless of the
perpetrators awareness of his victims mental
condition. However, the perpetrators knowledge of the
victims mental disability, at the time he committed the
rape, qualifies the crime (People vs. Caoile, GR No.
203041, June 05, 2013). Since knowledge is an element
of this qualifying circumstance, it must be formally
alleged in the information and duly proved by the
prosecution (People vs. Obogne, GR No. 199740, March
24, 2014).In People vs. Lascano, G.R. No. 192180,
March 21, 2012 the information in the present case
merely stated that the victim was blind; it did not
specifically allege that the appellant knew of her
blindness at the time of the commission of the rape.
Hence, the crime committed is simple rape.
In qualifying circumstances of minority and
relationship in rape and special aggravating
circumstance under Section 31(c) of RA No. 7610 in
sexual abuse under Section 5, the guardian must be a
person who has legal relationship with his ward. He
must be legally appointed was first (People vs. Flores
G.R. No. 188315, August 25, 2010).
MARITAL RAPE In People vs. Jumawan, G.R.
No. 187495, April 21, 2014 Husbands do not have property rights over their wives
bodies. Sexual intercourse, albeit within the realm of
marriage, if not consensual, is rape. This is the clear
State policy expressly legislated in Section 266-C of
RPC as amended by RA No. 8353 or the Anti-Rape Law
of 1997, which provides in case it is the legal husband
who is the offender, the subsequent forgiveness by the
wife as the offended party shall extinguish the criminal
action or the penalty. RA No 8353 eradicated the
archaic notion that marital rape cannot exist because a
husband has absolute proprietary rights over his wifes
body and thus her consent to every act of sexual
intimacy with him is always obligatory or at least,

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presumed.Husbands are once again reminded that


marriage is not a license to forcibly rape their wives. A
husband does not own his wifes body by reason of
marriage. By marrying, she does not divest herself of
the human right to an exclusive autonomy over her
own body and thus, she can lawfully opt to give or
withhold her consent to marital coitus. A husband
aggrieved by his wifes unremitting refusal to engage
in sexual intercourse cannot resort to felonious force or
coercion to make her yield. He can seek succor before
the Family Courts that can determine whether her
refusal constitutes psychological incapacity justifying
an annulment of the marriage.
CONSPIRACY - Accused are liable for two (2)
counts of rape on account of a clear
conspiracy between them, shown by their obvious
concerted efforts to perpetrate, one after the other, the
rapes. Each of them is responsible not only for the
rape committed personally by him but also for the
rape committed by the other as well (People vs.
Lascano, G.R. No. 192180, March 21, 2012).
PARDON - For crimes of seduction, abduction,
and acts of lasciviousness, pardon and marriage
extinguish criminal liability. However, pardon should
have been made prior to the institution of the criminal
actions (People vs. Dollano, Jr., GR No. 188851, October
19, 2011). Rape is no longer a crime against chastity
for it is now classified as a crime against
persons. Consequently, rape is no longer considered a
private crime or that which cannot be prosecuted,
except upon a complaint filed by the aggrieved party.
Hence, pardon by the offended party of the offender in
the crime of rape will not extinguish the offender's
criminal liability (People vs. Bonaagua, GR No. 188897,
June 06, 2011).
UNTENABLE DEFENSE - In crimes against
chastity, the medical examination of the victim is not
an indispensable element for the successful
prosecution of the crime as her testimony alone, if
credible, is sufficient to convict the accused thereof
(People vs. Ortega, G.R. No. 186235, January 25, 2012).
In Sison vs. People, G.R. No. 187229, February
22, 2012 -While petitioner was portraying AAA as a
prostitute, the latter cried. AAA's crying shows how
she might have felt after being raped by the petitioner
and yet be accused of a woman of loose morals. The
victim's moral character in rape is immaterial where it
is shown that intimidation was used for the victim to
have sex with the accused.
Time and again, we have taken into
consideration how rapists are not deterred by the
presence of people nearby, such as the members of
their own family inside the same room, with the
likelihood of being discovered, since lust respects no
time, locale or circumstance (People vs. Colorado, G.R.
No. 200792, November 14, 2012)
It is not absurd nor contrary to human
experience that AAA gave birth ten (10) months after
the alleged sexual assault as there may be cases of
long gestations. In any event, we dismiss appellants
contention as immaterial to the case at bar because
jurisprudence tells us that impregnation is not an
element of rape. Whether the child which the rape
victim bore was fathered by the accused, or by some
unknown individual, is of no moment. What is
important and decisive is that the accused had carnal
knowledge of the victim against the latters will or
without her consent, and such fact was testified to by
the victim in a truthful manner (People vs. Gahi, G.R.
No. 202976, February 19, 2014, Justice De Castro).

STAGES
CONSUMMATED RAPE If the touching" of
the female organ constitutes the sliding of the penis
into or the touching of either labia majoraor labia
minoraof the pudendum, the crime committed is
consummated rape. Anything short of that will only
result in either attempted rape or acts of lasciviousness
(People vs. Publico, April 13, 2011, G.R. No.
183569).However, the penis that touches the external
genitalia must be capable of consummating the sexual
act to constitute consummated rape (People vs.
Butiong, G.R. No. 168932, October 19, 2011). Touching
must be made in the context of the presence or
existence of an erect penis capable of penetration
(People vs. Campuhan, G.R. No. 129433, March 30,
2000).
Circumstantial evidence - In People vs.
Castillo, GR No. 193666, February 19, 2014, Justice De
Castro - Absent any showing of the slightest
penetration of the female organ, i.e, touching of
either labia of the pudendum by the penis, there can
be no consummated rape. However, even though the
victim testified that there was no penetration and the
accused simply rubbed his penis in the victim's vagina,
accused will be convicted of consummated Rape if
there are evidence that the pain felt by the victim, the
sex organ of the victim suffered injury, and there is
bleeding of the victim's genitalia.
Hymen is intact - Sexual penetration even
without laceration of the hymen or even the briefest of
contact consummates rape (People vs. Pangilinan, G.R.
No. 183090, November 14, 2011). It is possible for the
victims hymen to remain intact despite repeated
sexual intercourse. Likewise, whether the accuseds
penis fully or only partially penetrated the victims
genitalia, it is still possible that her hymen would
remain intact because it was thick and distensible or
elastic. The strength and dilability of the hymen varies
from one woman to another such that it may be so
elastic as to stretch without laceration during
intercourse, or on the other hand, may be so resistant
that its surgical removal is necessary before
intercourse can ensue. In some cases even, the hymen
is still intact even after the woman has given birth
(People vs. Deligero, GR No. 189280, April 17, 2013;
People vs. Broca, GR No. 201447, January 09, 2013).
ATTEMPTED RAPE If the touching merely
constitutes an epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the penis on the
external layer of the victims vagina, or the mons
pubis, the crime committed is either attempted rape or
acts of lasciviousness (People v. Campuhan, G.R. No.
129433, March 30, 2000). Attempted rape is
committed when the touching of the vagina by the
penis is coupled with the intent to penetrate;
otherwise, there can only be acts of lasciviousness. The
difference between attempted rape and acts of
lasciviousness lies in the intent of the perpetrator as
deduced from his external acts. (People vs. Dadulla, G.
R. No. 172321, February 9, 2011; People vs.
Collado G.R. Nos. 135667-70, March 1, 2001).
To be held liable of attempted rape, it must be
shown that erectile penis is in the position to penetrate
(Cruz vs. People, G.R. No. 166441, October 08, 2014) or
the offender actually commenced to force his penis
into the victim's sexual organ (People vs. Banzuela,
G.R. No. 202060, December 11, 2013, Justice De
Castro).
Mother of the victim saw X was kneeling
before victim whose pajamas and panty were already
removed, while his short pants were down to his knees.
Accused was forcing his penis into victims vagina.

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Horrified, she cursed the accused and boxed him


several times. Is X liable for acts of lasciviousness or
attempted rape? X should be held liable for
attempted rape since it was not shown that his penis
was able to penetrate vagina of victim however slight
(People vs. Campuhan, G.R. No. 129433, March 30,
2000, En Banc). Intent to have sexual intercourse was
clearly established in this case.
The victims statements that the accused was
trying to force his sex organ into mine and binundolundol ang kanyang ari did not prove that the
accuseds penis reached the labia of the pudendum of
the victims vagina. Accused was convicted of
attempted rape (People vs. Pareja, G.R. No. 188979,
September 5, 2012).
ACTS OF LASCIVIOUNESS - The elements
of acts of lasciviousness, punishable under Article 336
of the RPC, are: (1) That the offender commits any act
of lasciviousness or lewdness; (2) That it is done under
any of the following circumstances: a. By using force or
intimidation; or b. When the offended party is deprived
of reason or otherwise unconscious; or c. When the
offended party is under 12 years of age; and (3) That
the offended party is another person of either sex
(People vs. Garcia, G.R. No. 200529, September 19,
2012; (People vs. Rellota, GR No. 168103 , August 03,
2010).The modes of committing acts of lasciviousness
are the same as those of committing rape under the
old version.
Undressing the victim (People vs. Sanico, G.R.
No. 208469, August 13, 2014) or touching her vagina
by the hand of the accused (People vs. Banzuela) or
rubbing his penis on the mons pubis of the pudendum
(People vs. Abanilla, G.R. Nos. 148673-75, October 17,
2003) is merely acts of lasciviousness.
RAPE THROUGH SEXUAL ASSAULT
It is commonly denominated as organ rape or
penile rape and must be attended by any of the
circumstances enumerated in subparagraphs (a) to (d)
of paragraph 1. On the other hand, rape under
paragraph 2 of Article 266-A is commonly known as
rape by sexual assault. The perpetrator, under any of
the attendant circumstances mentioned in paragraph
1, commits this kind of rape by inserting his penis into
another persons mouth or anal orifice, or any
instrument or object into the genital or anal orifice of
another person. It is also called instrument or object
rape, also gender-free rape (People vs. Soria, G.R.
No. I 79031, November 14, 2012).
A, a child, testified that X touched her private
part and licked it but he did not insert his finger inside
her vagina. What is the crime committed? Answer: If
the tongue, in an act of cunnilingus, touches the outer
lip of the vagina, the act should also be considered as
already consummating the crime of rape through
sexual assault, not the crime of acts of lasciviousness.
This testimony of the victim, however, is open to
various interpretation, since it cannot be identified
what specific part of the vagina was defiled by X. Thus,
X cannot be convicted of rape through sexual assault.
Thus, X is liable for acts of lasciviousness (People vs.
Bonaagua, GR No. 188897, June 06, 2011).
Prior to RA No. 8353, rape through sexual
assault is considered as acts of lasciviousness.
However, upon the passage of RA No. 8353, acts,
which were as acts of lasciviousness before, are now
treated as rape through sexual assault. However, the
concept of rape through sexual assault has not
acquired some of the characteristic of acts of
lasciviousness.

1. Doctrine of absorption If the accused


commits rape and acts of lasciviousness, the latter is
absorbed by the former (People vs. Dy, G.R. Nos.
115236-37, January 29, 2002). But if the accused
commits rape through sexual intercourse and rape
through sexual abuse, the doctrine of absorption is not
applicable. The accused will be convicted of separate
crimes of rape through sexual intercourse and rape
through sexual abuse.
In People vs. Crisostomo, GR No. 196435,
January 29, 2014 Accused on the same occasion
inserted a lit cigarette stick into genital orifice of victim
(6 years of age) and her anal orifice, and had sexual
intercourse with her. He is guilt for two counts of rape
by sexual assault and rape through sexual intercourse.
In People vs. Espera, G.R. No. 202868, October
02, 2013 - Justice De Castro Accused inserted his
penis into the mouth of the victim, and thereafter, rape
her. He was convicted of rape through sexual assault
by inserting his penis into the mouth of the victim and
rape by sexual intercourse. Doctrine of absorption was
not applied.
2. Variance rule If the crime charged is
rape, but the crime proven is acts of lasciviousness,
the accused will be convicted of the latter because of
the variance rule. Acts of lasciviousness is necessarily
included in the charge of rape.
If the crime charged is rape through sexual
intercourse, but the crime proven is rape through
sexual assault, the accused cannot be convicted of the
latter. The variance rule is not applicable since rape
through sexual assault is not necessarily included in
the charge of rape through sexual intercourse. The
elements of these two crimes are materially and
substantially different. In such case, the accused will
be convicted of acts of lasciviousness (People vs.
Pareja, GR No. 202122, January 15, 2014, Justice De
Castro; People vs. Cuaycong, G.R. No. 196051,
October 02, 2013, Justice De Castro;People vs. CA,
G.R. No. 183652, February 25, 2015).
CHILD PROSTITUION AND SEXUAL ABUSE

Sexual abuse under Section 5(b) of R.A. No.


7610 has three elements: (1) the accused commits an
act of sexual intercourse or lascivious conduct; (2) the
said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and (3)
the child is below 18 years old.

Sexual abuse and lascivious conduct "Sexual abuse" includes the employment, use,
persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children;

"Lascivious conduct" means the intentional


touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks,
or the introduction of any object into the genitalia,
anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire

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of any person, bestiality, masturbation, lascivious


exhibition of the genitals or pubic area of a person
(Section 2(g) and (h) of the Rules and Regulations on
the Reporting and Investigation of Child Abuse Cases)

Child exploited in prostitution or subject


to other sexual abuse - Children, whether male or
female, who for money, profit, or any other
consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse
(Section 5 of RA No 7610).

The averments in the information against the


accused clearly make out a charge for sexual abuse
under Section 5(b) of RA No. 7610 although the caption
charged him with child abuse under Section 10 (a).
However, the character of the crime is not determined
by the caption or preamble of the information nor from
the specification of the provision of law alleged to have
been violated (People vs. Rayon, G.R. No. 194236,
January 30, 2013)

Sexual intercourse or lascivious conduct under


the coercion or influence of any adult exists when there
is some form of compulsion equivalent to intimidation
which subdues the free exercise of the offended partys
free will (Caballo vs. People, GR No. 198732, June 10,
2013).

Accused (23 years of age) repeatedly assured


the victim (17 years) of his love for her, and even,
promised to marry her. In addition, he also guaranteed
that she would not get pregnant since he would be
using the "withdrawal method" for safety. These were
meant to influence her to set aside her reservations
and eventually give into having sex with accused, with
which he succeeded. The age disparity between an
adult and a minor placed accused in a stronger position
over the victim so as to enable him to force his will
upon the latter. An important factor is that the victim
refused accused's incipient advances and in fact, asked
him to leave. However, the victim eventually yielded.
Thus, it stands to reason that she was put in a situation
deprived of the benefit of clear thought and choice.
The actuations of the accused may be classified as
"coercion" and "influence" within the purview of
Section 5 of RA 7610. Hence, accused is guilty of
sexual abuse (Caballo vs. People, GR No. 198732, June
10, 2013).

The Information alleged that accused


committed acts of lasciviousness upon the person of
victim, a minor subjected to sexual abuse. Can the
accused be convicted for sexual abuse under Section 5
(b) of RA No. 7610? Answer: No. Under the law,
committing lascivious conduct upon a child under
coercion or influence of an adult or group is sexual
abuse. There is no allegation of coercion or influence,

which is an indispensable ingredient of this crime. It


does not contain the essential facts constituting the
offense, but a statement of a conclusion of law. Thus,
accused cannot be convicted of sexual abuse under
such Information. The information is void for being
violative of the accuseds constitutionally-guaranteed
right to be informed of the nature and cause of the
accusation against him (People vs. Pangilinan, GR No.
183090, November 14, 2011, ).

Child 12 years of age or above X taking


advantage of his ascendancy committed sexual
intercourse with his daughter (15 years of age). What
crime can X be prosecuted for? The child is under the
influence of an adult. This is sexual abuse under
Section 5 (b) of RA No. 7610. The act is committed with
psychological intimidation or grave abuse authority.
This is rape. Hence, X can be prosecuted for either (1)
sexual abuse under violation of RA No. 7610; or rape
under Article 266-A of RPC. X should not be charged for
Rape in relation to sexual abuse. Existing
jurisprudence, however, proscribes charging an
accused for both crimes, rather, he may be charged
only for either (Alberto vs. Hon. Court of Appeals, GR
No. 182130, June 19, 2013).X cannot be accused of
both crimes for the same act because his right against
double jeopardy will be prejudiced. A person cannot be
subjected twice to criminal liability for a single criminal
act. Likewise, rape cannot be complexed with a
violation of Section 5(b) of RA 7610. Under Section 48
of RPC, a felony cannot be complexed with an offense
penalized by a special law (People v. Abay, G.R. No.
177752, February 24, 2009; People vs. Pangilinan, G.R.
No. 183090, Nov. 14, 2011, ,People v. Dahilig, G.R. No.
187083, June 13, 2011, People v. Matias, G.R. No.
186469, June 13, 2012 and Alberto vs. Hon. Court of
Appeals, G.R. No. 182130, June 19, 2013).

Child under 12 years Those who commit the


act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victims is under twelve
(12) years of age, the perpetrators shall be prosecuted
for rape and for rape or lascivious conduct, as the case
may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period
(Section 5).

X taking advantage of his ascendancy


committed sexual intercourse with his daughter (9
years of age). What crime can X be prosecuted for?
The child, who is under the influence of an adult, is
under 12 years of age. Hence, X should be prosecuted
for statutory rape. Section 5 (b) of RA No. 7610
provides that when the victim (child subjected to
sexual abuse) is under 12 years of age, the
perpetrators shall be prosecuted for rape (People vs.
Jalosjos, G.R. Nos. 132875-76, November 16, 2001).

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Accused was convicted of rape through sexual


assault committed against a 4 year old child. There is
no allegation in the Information that the child is
indulged in lascivious conduct for money, profit, or any
other consideration or due to the coercion or influence
of any adult, syndicate or group. Accused was punished
under RPC. In sum, the penalty under RA 7160 was not
imposed since the information failed to allege that the
victim is exploited in prostitution or subjected to sexual
abuse (Pielago vs. People, GR No. 202020, March 13,
2013)

Rape through sexual assault and sexual


abuse - X forced A, a minor, in an isolated place and
inserted his finger into her vagina. (a) For what crimes
can X be prosecuted if A is 17 years of age at the time?
Answer: X committed rape through sexual
assault, or object or instrument rape under RPC since
he inserted object, his finger, into the vaginal orifice of
A by using force. The crime of sexual abuse under
Section 5 of RA No. 7160 is also committed since A is
indulged in lascivious conduct under coercion of an
adult. However, X can only be prosecuted either for
rape or sexual abuse.
(b) Would your answer be the same if the age
A is 10 years old?
Answer: Since A, who is a child indulged in
lascivious conduct under coercion of an adult, is under
12 years of age, X should be prosecuted for rape
through sexual assault under RPC. Under Section 5 of
RA No. 7610, when the child subjected to sexual abuse
is under twelve (12) years of age, the perpetrators
shall be prosecuted for rape under RPC (People vs.
Pangilinan, GR No. 183090, November 14, 2011, ).
(c) The penalty for rape through sexual
assault under RPC as amended by RA No. 8353 is
prision mayor while the penalty under RA No. 7610 for
acts of lasciviousness committed against a child
subjected to sexual abuse, under 12 years of age, is
reclusion temporal in its medium period. If the age of A
is 10 years old, would you impose the penalty under RA
No. 8353 or under RA No. 7610?
Answer: One who commits acts of
lasciviousness in relation to RA No. 7610 suffers the
more severe penalty of reclusion temporal in its
medium period than the one who commits rape
through sexual assault, which is merely punishable by
prision mayor. This is undeniably unfair to the child
victim. To be sure, it was not the intention of the
framers of RA No. 8353, to have disallowed the
applicability of RA No. 7610 to sexual abuses
committed to children. Despite the passage of RA No.
8353, R.A. No. 7610 is still good law, which must be
applied when the victims are children (People vs.
Chingh, G.R. No. 178323, March 16, 2011). The penalty
under RA No. 7160 should be imposed.
(d) The penalty for qualified rape through
sexual assault is reclusion temporal under RPC as
amended by RA No. 8353. If A is the 10 year-old
daughter of X, would you impose penalty penalty under
RA No. 8353 or under RA No. 7610?
Answer:Since the crime committed is rape
through sexual assault with qualifying circumstance of
minority and relationship, the rationale of unfairness to
the child victim that Chingh case wanted to correct is
absent because RPC as amended by RA No. 8353
already prescribes the penalty of reclusion temporal for
this crime. Hence, there is no more need to apply the

penalty prescribed by RA No. 7610 for sexual abuse


(People vs. Bonaagua, G.R. No. 188897, June 6, 2011).
The penalty under RPC should be imposed.
CONSENT OF THE VICTIM - Is consent of the
victim a defense in rape, or child prostitution or sexual
abuse?A child exploited in prostitution may seem to
"consent" to what is being done to her or him and may
appear not to complain. However, a child who is "a
person below eighteen years of age or those unable to
fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or
discrimination because of their age or mental disability
or condition" is incapable of giving rational consent to
any lascivious act or sexual intercourse (People vs.
Dulay, GR No. 193854, September 24, 2012; People vs.
Delantar, G.R. No. 169143, February 2,
2007).Submissiveness of child under influence or
psychological coercion of adult is not likewise a
defense in sexual abuse (People vs. Larin, G.R. No.
128777, October, 7 1998).
But if the sexual abuse is committed as
alleged in the information against a child, who indulges
in sexual intercourse under coercion, the prosecution
must show lack of consent on the part of the victim.
Showing that the child consented to the sexual
intercourse will negate coercion as an element of the
crime (see: People vs. Abello,G.R. No. 151952, March
25, 2009).
CHILD PROSTITUTION
The elements of child prostitution are:(1) The
accused engages in, promotes, facilitates or induces
child prostitution;(2) The act is done through, but not
limited to, the following means:(a) Acting as a procurer
of a child prostitute;Inducing a person to be a client of
a child prostitute by means of written or oral
advertisements or other similar means;(c) Taking
advantage of influence or relationship to procure a
child as a prostitute;(d) Threatening or using violence
towards a child to engage him as a prostitute; orgiving
monetary consideration, goods or other pecuniary
benefit to a child with intent to engage such child in
prostitution;(3) The child is exploited or intended to be
exploited in prostitution and(4) The child, whether male
or female, is below 18 years of age (People vs. Dulay,
GR No. 193854, September 24, 2012).
X convinced A to accompany her. When they
reached Kubuhan, X suddenly pulled A inside a room
where Y. Y gives money to X and tells her to look for a
younger girl. Thereafter, Y wielded a knife and tied As
hands to the papag and raped her. A asked for X's help
when she saw the latter peeping into the room while
she was being raped, but X did not do so. After the
rape, X and Y told A not to tell anyone what had
happened or else they would get back at her. What is
the crime committed by X?
Answer: X is not liable as principal by
indispensable cooperation. From the time X convinced
A to go with her until X received money from Y are not
indispensable in the crime of rape. Anyone could have
accompanied A and offered the latter's services in
exchange for money and A could still have been raped.
Note: Conspiracy was not alleged in the information.
X is liable for child prostitution under Section 5
of RA No. 7610. X facilitated or induced child
prostitution. The act of X in convincing A, who was 12
years old at that time, to go with her and thereafter,
offer her for sex to a man in exchange for money
makes her liable for child prostitution (People vs.
Dulay, GR No. 193854, September 24, 2012).

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CHILD ABUSE

Under Section 10 (a) of RA No. 7610, child


abuse or cruelty is committed by any person who shall
commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions
prejudicial to the childs development including those
covered by Article 59 of PD No. 603 but not covered by
the RPC.

Under Section 3 (b), "child abuse" refers to the


maltreatment, whether habitual or not, of the child
which includes any of the following: (1) Psychological
and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment; (2) Any act by deeds or words
which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being; (3)
Unreasonable deprivation of his basic needs for
survival, such as food and shelter; or (4) Failure to
immediately give medical treatment to an injured child
resulting in serious impairment of his growth and
development or in his permanent incapacity or death.

Section 10 (a) punishes not only those


enumerated under Article 59 of PD No. 603, but also
four distinct acts, i.e., (a) child abuse, (b) child cruelty,
(c) child exploitation and (d) being responsible for
conditions prejudicial to the child's development. We
stress that Section 10 refers to acts of child abuse
other than child prostitution and other sexual abuse
under Section 5, attempt to commit child prostitution
under Section 6, child trafficking under Section 7,
attempt to commit child trafficking under Section 8,
and obscene publications and indecent shows under
Section 9 (People vs. Rayon, G.R. No. 194236, January
30, 2013).

In Bongalon vs. People, G.R. No. 169533, March


20, 2013 - Accused saw the victim and his companions
hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his
face. Since the accused committed the act at the spur
of the moment, they are perpetrated without intent to
debase his "intrinsic worth and dignity" as a human
being, or to humiliate or embarrass him. Without such
intent, the crime committed is not child abuse under
RA 7610 but merely slight physical injuries.

In Rosaldes vs. People, G.R. No. 173988,


October 08, 2014 - Although the accused, as a
schoolteacher, could duly discipline her minor student,
her infliction of the physical injuries on him was
unnecessary, violent and excessive. The boy even
fainted from the violence suffered at her hands. She
could not justifiably claim that she acted only for the

sake of disciplining him. Her physical maltreatment of


him was precisely prohibited by no less than the Family
Code, which has expressly banned the infliction
of corporal punishment by a school administrator,
teacher or individual engaged in child care exercising
special parental authority. Accused was convicted of
child abuse under Section 10 (a) of RA No. 7610.
CRIMES AGAINST PROPERTY
ESTAFA
ESTAFA THROUGH MISAPPROPRIATION
The elements of estafa under Article 315, par. 1 (b) of
the Revised Penal Code are the following: (a) 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; (b)
that there be misappropriation or conversion of such
money or property by the offender, or denial on his
part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and
(d) there is demand by the offended party to the
offender (Tabaniag vs. People, GR No. 165411, June 18,
2009;Magtira vs. People, G.R. No. 170964, March 7,
2012). However, demand is not necessary if there is
evidence of misappropriation.
Misappropriation as an element of the offense
of estafa connotes an act of using, or disposing of,
anothers property as if it were ones own, or of
devoting it to a purpose or use different from that
agreed upon. Failure to account upon demand for funds
or property held in trust without offering any
satisfactory explanation for the inability to account is
circumstantial evidence of misappropriation. Demand
for the return of the thing delivered in trust and the
failure of the accused to account are similarly
circumstantial evidence that the courts can appreciate
(Magtira vs. People, G.R. No. 170964, March 7, 2012).
The essence of estafa under Article 315, par.
1(b) is the appropriation or conversion of money or
property received to the prejudice of the owner. The
words "convert" and "misappropriate" connote an act
of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use
different from that agreed upon. To misappropriate for
one's own use includes not only conversion to one's
personal advantage, but also every attempt to dispose
of the property of another without right (Tabaniag vs.
People, GR No. 165411, June 18, 2009).
X received from A jewelry with obligation to
return the same if unsold or deliver the proceeds of
sale. In the acknowledgement receipt, X is prohibited
from selling jewelry the jewelry on credits or giving it
for safekeeping. X transferred the jewelry to Y, a
subagent. Y failed to return the jewelry. Is X liable for
estafa through conversion?
Answer: No. It must be pointed out that the law
on agency in our jurisdiction allows the appointment by
an agent of a substitute or sub-agent in the absence of
an express agreement to the contrary between the
agent and the principal. In the case at bar, the
appointment of sub-agent was not expressly prohibited
by A. Neither does it appear that X was verbally
forbidden by A from passing on the jewelry to another
person. Thus, it cannot be said that X's act of
entrusting the jewelry to Y is characterized by abuse of
confidence because such an act was not proscribed
and is, in fact, legally sanctioned.

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

Since properties were given by X to Y to


achieve the very same end for which they were
delivered to her in the first place, there is no
conversion since the same were not devoted to a
purpose or use different from that agreed upon.
Similarly, it cannot be said that X delivered them to Y
"without right." Aside from the fact that no condition or
limitation was imposed on the mode or manner by
which X was to effect the sale, it is also consistent with
usual practice for the seller to necessarily part with the
valuables in order to find a buyer and allow inspection
of the items for sale (Tabaniag vs. People, GR No.
165411, June 18, 2009).
Can X be held liable for estafa through
negligence? Answer: No. In estafa, the profit or gain
must be obtained by the accused personally, through
his own acts, and his mere negligence in permitting
another to take advantage or benefit from the
entrusted chattel cannot constitute estafa (Tabaniag
vs. People, GR No. 165411, June 18, 2009).
Can X be held liable for estafa on the basis of
conspiracy? Answer: No. If an agent acted in
conspiracy with subagent in carrying out the actual
misappropriation, then the former would be answerable
for the acts of his co-conspirators. However, the mere
fact that X failed to return the pieces of jewelry upon
demand is not proof of conspiracy, nor is it proof of
misappropriation or conversion (Tabaniag vs. People,
GR No. 165411, June 18, 2009).
ESTFA THROUGH ISSUANCE OF BOUNCING
CHECK - The essential elements of estafa through
bouncing check: (1) the accused shall defraud another
by issuing or postdating check in payment of an
obligation contracted at the time the check is issued;
(2) lack or insufficiency of funds to cover the check; (3)
check was issued or postdated prior to or
simultaneously with the parting of money or property
by the payee; and (4) damage to the payee thereof.
It is the criminal fraud or deceit in the issuance
of a check that is punishable, not the non-payment of a
debt. Prima facie evidence of deceit exists by law upon
proof that the drawer of the check failed to deposit the
amount necessary to cover his check within three days
from receipt of the notice of dishonor. To be guilty
of estafa the accused must have used the check in
order to defraud the complainant. What the law
punishes is the fraud or deceit, not the mere issuance
of the worthless check. Accused could not be held
guilty of estafa simply because he had issued the
check used to defraud complainant. The proof of guilt
must still clearly show that it had been accused as the
drawer who had defrauded complainant by means of
the check. Complainant admitted that it was another
person who received the rice from him and who
delivered the bearer check to him (People vs. Reyes,
GR No. 157943, September 04, 2013).
In order to constitute estafa under this statutory
provision, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause of
the defraudation. This means that the offender must be
able to obtain money or property from the offended
party by reason of the issuance of the check, whether
dated or postdated. In other words, the Prosecution
must show that the person to whom the check was
delivered would not have parted with his money or
property were it not for the issuance of the check by
the offender (People vs. Reyes, GR No. 157943,
September 04, 2013).
ABUSE OF CONFIDENCE AND DECEIT - The
offense of estafa, in general, is committed either by (a)
abuse of confidence or (b) means of deceit. The acts
constituting estafa committed with abuse of confidence

are enumerated in item (1) of Article 315 of the


Revised Penal Code, as amended; item (2) of Article
315 enumerates estafa committed by means of deceit.
Deceit is not an essential requisite of estafa by abuse
of confidence; the breach of confidence takes the place
of fraud or deceit, which is a usual element in the
other estafas (Brokmann vs. People, G.R. No. 199150,
February 6, 2012).
ESTAFA AND OTHER DECEIT - What is the
difference between estafa through false representation
and other deceit? The common elements of these two
crimes are: (1) false pretense, fraudulent act or
pretense must be made or executed prior to or
simultaneously with the commission of the fraud; and
(2) as a result, the offended party suffered damage or
prejudice. It is essential that such false statement or
fraudulent representation constitutes the very cause or
the only motive for the private complainant to part
with her property. In estafa under Article 315, the false
representation is committed by using fictitious name,
or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or
imaginary transactions; or by means of other similar
deceits. Following the principle of ejusdem generis,
other deceit as a means to commit estafa must be
similar to pretending to possess power, imaginary
transaction etc. If the deceit is not similar to
pretending to possess power or imaginary transaction,
the crime committed is other deceit under Article 318.
In Guinhawa vs. People, G.R. No. 162822 August 25,
2005 () - Fraudulent representation of the seller that
the van to be sold is brand new constitutes other
deceit under Article 318. On the other hand, in People
vs. Rubaton, C.A., 65 O.G. 5048, issue of May 19, 1069,
false representation that accused has a palay by
reason of which the victim parted his money in
consideration of the palay constitutes estafa under
Article 315. Unlike in the Guinhawa case, the
transaction in Rubaton case is imaginary.
Authority to sell - Primelink entered into joint
venture agreement with the owner of a certain land to
develop a club. Accused represent to complainant on
October 10, 1996 Primelink will finished the Club by
July 1998. Because of this representation complainant
purchased a Club share. However, the Club was not
completed because the owner of the property
mortgaged it in violation of their agreement. The
projected was aborted. Accused is not liable for estafa
for such representation. False pretense of power to
develop the Club resulting in damage to buyer is
estafa. However, the law requires that the false
pretense be used prior to or simultaneous with the
execution of the fraud, and that is October 10, 1996. In
this case, there is no showing that Primelink
possessed no power (capability) to develop the Club
and that accused knew that the Club was a bogus
project. Primelink is a legitimate developer. In fact, it
has already released money for the initial funding of
the project. The project was only aborted because of
the problem with the owner of the land, which occurred
after October 10, 1996. However, the false pretense
made by accused that Primelink was authorized to sell
membership shares is estafa. False pretense of
qualification (to sell securities) is within the
contemplation of the provision on estafa (Lopez vs.
People, GR NO. 199294, July 31, 2013)
SUBSEQUENT FRAUD - Is the fraudulent act
committed by the accused subsequent to the time the
victim parted his money constitutes estafa? In the
prosecution for this kind of estafa, it is indispensable
that the false pretense or fraudulent act is committed
prior to or simultaneously with the commission of the
fraud, it being essential that such false statement or
representation constitutes the very cause or the only
motive which induces the offended party to part with

2015 BAR REVIEWER ON CRIMINAL LAW


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JUDGE MARLO B. CAMPANILLA

his money. In the absence of such requisite, any


subsequent act of the accused, however fraudulent
and suspicious it might appear, cannot serve as basis
for prosecution for estafa (Ambito, vs. People, G. R. No.
127327, Feb. 13, 2009).
REPRESENTATION OF FUTURE PROFIT When will a representation of a future profits or income
be considered as an actionable fraud or estafa? Where
one states that the future profits or income of an
enterprise shall be a certain sum, but he actually
knows that there will be none, or that they will be
substantially less than he represents, the statements
constitute an actionable fraud where the hearer
believes him and relies on the statement to his injury.
In the present case, it is abundantly clear that the
profits which Elvira and her co-conspirators promised
to Elizabeth would not be realized (Joson vs. People, G.
R. No. 178836, July 23, 2008).

OTHER DECEIT- Other deceit under Article


316 (a) of RPC is committed by any person who,
knowing that the real property is encumbered, shall
dispose of the same, although such encumbrance be
not recorded. The law was taken from Article 455 of
the Spanish Penal Code. However, the words "como
libre" in the Spanish Penal Code, which means "free
from encumbrance" do not appear in the English text
of RPC, nonetheless, the same are deemed
incorporated in the RPC. The gravamen of the crime is
the disposition of legally encumbered real property by
the offender under the express representation that
there is no encumbrance thereon. Hence, for one to
be criminally liable for estafa under the law, the
accused must make an express representation in the
deed of conveyance that the property sold or disposed
of is free from any encumbrance (Naya vs. Abing, G.R.
No. 146770, February 27, 2003, ).

THEFT
QUALIFIED THEFT - The elements of the
crime of theft are: (1) that there be taking of personal
property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and
(5) that the taking be accomplished without the use of
violence against or intimidation of persons or force
upon things. Theft becomes qualified "if committed by
a domestic servant, or with grave abuse of confidence,
or if the property stolen is a motor vehicle, mail matter
or large cattle, or consists of coconuts taken from the
premises of a plantation, 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
(People vs. Bayon, GR No. 168627, July 02, 2010).
ABUSE OF CONFIDENCE - To warrant the
conviction and, hence, imposition of the penalty for
qualified theft, there must be an allegation in the
information and proof that there existed between the
offended party and the accused such high degree of
confidence]or that the stolen goods have been
entrusted to the custody or vigilance of the accused. In
other words, where the accused had never been vested
physical access to, or material possession of, the stolen
goods, it may not be said that he or she exploited such
access or material possession thereby committing such
grave abuse of confidence in taking the property (Viray
vs. People, GR No. 205180, November 11, 2013).

In Zapanta vs. People, G.R. No. 170863, March


20, 2013 - Accused betrayed the trust and confidence
reposed on him when he, as project manager,
repeatedly took construction materials from the project
site, without the authority and consent of Engr.
Marigondon, the owner of the construction materials.
He is liable for qualified theft.

Taking committed by accused cannot be


qualified by the breaking of the door, as it was not
alleged in the Information. Moreover, the same
breaking of the door does not constitute the qualifying
element of grave abuse of confidence. The very fact
that accused forced open the main door because he
was denied access to complainants house negates the
presence of such confidence in him by private
complainant. Without ready access to the interior of
the house where the properties were taken, it cannot
be said that complaint had a firm trust on
accused and that the same trust facilitated taking of
the personal properties (Viray vs. People, GR No.
205180, November 11, 2013).
If the subject matter of a crime against
property was money, identity of the offended party is
material and necessary for the proper identification of
the offense charged. Since money is genericand has no
earmarks that could properly identify it, the only way
that it (money) could be described and identified in a
complaint is by connecting it to the offended party or
the individual who was robbed as its owner or
possessor. Thus, the erroneous designation of the
offended party would also be material, as the subject
matter of the offense could no longer be described with
such particularity as to properly identify the offense
charged (Senador vs. People, GR No. 201620, March
06, 2013).
If the subject matter of a crime against
property is specific or one described with such
particularity as to properly identify the offense
charged, then an erroneous designation of the
offended party is not material and would not result in
the violation of the accuseds constitutional right to be
informed of the nature and cause of the accusation
against her. Such error would not result in the
acquittal of the accused (Senador vs. People, GR No.
201620, March 06, 2013).
Accused asserted that the person named as
the offended party in the Information is not the same
person who made the demand and filed the complaint.
According to accused, the private complainant in the
Information went by the name Cynthia Jaime,
whereas, during trial, the private complainant turned
out to be Rita Jaime. Applying the Uba principle, the
case should be dismissed. Is the argument tenable?
Answer: No. The principle in People vs. Uba,
106 Phil. 332 is not applicable. In Uba case, the
appellant was charged with oral defamation, a crime
against honor, wherein the identity of the person
against whom the defamatory words were directed is a
material element. Thus, an erroneous designation of
the person injured is material. On the contrary, in the
instant case, accused was charged with estafa, a crime
against property that does not absolutely require as
indispensable the proper designation of the name of
the offended party. Rather, what is absolutely
necessary is the correct identification of the criminal
act charged in the information. Thus, in case of an
error in the designation of the offended party in crimes
against property, Rule 110, Sec. 12 of the Rules of
Court mandates the correction of the information, not
its dismissal.

2015 BAR REVIEWER ON CRIMINAL LAW


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JUDGE MARLO B. CAMPANILLA

In this case, the subject matter of the offense


does not refer to money or any other generic property.
Instead, the information specified the subject of the
offense as various kinds of jewelry valued in the total
amount of P705,685.00. Thus, The error in the
designation of the offended party in the information is
immaterial and did not violate accuseds constitutional
right to be informed of the nature and cause of the
accusation against her.
THEFT THROUGH MISAPPROPRIATION Misappropriation of personal property in possession of
the accused may constitute estafa or theft depending
upon the nature of possession. If his possession of the
property is physical or de facto, misappropriation
thereof is constitutive of theft. If the possession is
juridical or legal, misappropriation thereof is estafa
through misappropriation.
1. Agency - A travelling sales agent, who
failed to return to his principal the proceeds of goods
he was commissioned or authorized to sell, is liable for
estafa because his possession is juridical. Under the
Civil Code Article 1914 of the Civil Code, an agent can
even assert, as against his own principal, an
independent, autonomous, right to retain money or
goods received in consequence of the agency; as when
the principal fails to reimburse him for advances he has
made, and indemnify him for damages suffered without
his fault (Guzman v. Court of Appeals, 99 Phil. 703). On
the other hand, branch manager of the company, who
misappropriate payments from customers that he
collected and accepted, is liable for qualified theft.
Because of this employer-employee relationship, he
cannot be considered an agent of the company and is
not covered by the Civil Code provisions on agency.
Money received by an employee in behalf of his
employer is considered to be only in the material
possession of the employee(People vs. Mirto, G.R. No.
193479, October 19, 2011).
In Carganillo vs. People, G.R. No. 182424,
September 22, 2014 Accused received money from
complainant for the purpose of buying palay with the
corresponding obligations to (1) deliver the palay to
the Palay Buying Station or (2) return the money in
case of failure to purchase palay. Possession is
juridical. Failure to return is estafa.
In Tria vs. People, G.R. No. 204755, September
17, 2014 - By selling the jewelry on credit, the
petitioner used the property for a purpose other than
that agreed upon. The words convert and
misappropriate connote an act of using or disposing
of anothers property as if it were ones own or
devoting it to a purpose or use different from that
agreed upon.
In Velayo vs. People, G.R. No. 204025,
November 26, 2014 Accused induced to complainant
to entrust to her the funds for the taxes because she
knew someone at the BIR who could help her facilitate
the remittance, and even reduce the amounts due. She
received the money for remit the same to the BIR with
full freedom and discretion. Thus, she had juridical
possession of money. The crime committed is estafa,
2. Employer-employee relationship As a
rule, the possession of the employee is only physical
possession. Hence, misappropriation of property is
considered as theft. If the property is accessible to the
employee, the qualifying circumstance of abuse of
confidence can be appreciated.

In People v. Locson, G.R. No. L-35681, October


18, 1932 - The receiving teller of a bank, who
misappropriated the money received by him for the
bank, is liable for qualified theft. The possession of the
teller is the possession of the bank. Payment by third
persons to the teller is payment to the bank itself. The
teller has no independent right or title to retain or
possess the same as against the bank.
In Balerta vs. People, G.R. No. 205144,
November 26, 2014 Accused was handling the funds
lent by Care Philippines to his employer as cash
custodian. Over the funds, she had mere physical or
material possession, but she held no independent right
or title, which she can set up against employer. Hence,
juridical possession of the funds as an element of the
crime of estafa by misappropriation is absent.
In Benabaye vs. People, G.R. No. 203466,
February 25, 2015 - Accused was merely a collector of
loan payments from clients of his employer. Hence, as
an employee of the Bank, specifically, its temporary
cash custodian whose tasks are akin to a bank
teller, she had no juridical possession over the missing
funds but only their physical or material possession.
Since the accused was charged with estafa, but the
crime proven is theft, the case was dismissed without
prejudice,
Driver of jeepney under boundary
arrangement, who did not return the vehicle to its
owner, is liable for carnapping.In People v. Isaac G.R.
No. L-7561, April 30, 1955, the rules prohibits motor
vehicle operator from allowing the use and operation of
his equipment by another person under a fixed rental
basis. In the eye of the law the driver was only an
employee of the owner rather than a lessee. For being
an employee, his possession of the jeepney is physical,
and misappropriation thereof is qualified theft. In
People vs. Bustinera, G. R. No. 148233, June 8, 2004,
the Supreme Court affirmed the principle in Isaac case,
but found the accused guilty of carnapping in view of
the passage of RA No. 6539(Anti-Carnapping Act).
However, there are instances where the
possession of the employee is considered as juridical.
1. In Aigle vs. People, G.R. No. 174181, June 27,
2012 -A corporate officer received the property to be
utilized in the fabrication of bending machines in trust
from the corporation and he has absolute option on
how to use them without the participation of the
corporation. Upon demand, the officer failed to account
the property. Since the corporate officer received the
property in trust with absolute option on how to use
them without the participation of the corporation, he
acquired not only physical possession but also juridical
possession over the equipment. He is liable for estafa
through misappropriation.
2. In People vs. Go, G.R. No. 191015, August 6,
2014 The President of the Bank is holding the banks
fund in trust or for administration for the banks
benefit. His possession is juridical. Hence,
misappropriating the funds by making fictitious loan is
estafa.
3. In Gamboa vs. People, G.R. No. 188052, April
21, 2014 - Accused employed as Liaison Officer of a
pawnshop received money in trust to secure or renew
licenses and permits. His possession is juridical. Hence,
misappropriating the money is estafa.
THEFT OF INTANGIBLE PROPERTY - The
term "personal property" in the Revised Penal Code
should be interpreted in the context of the Civil Code.

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JUDGE MARLO B. CAMPANILLA

Consequently, any personal property, tangible or


intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may
be appropriated under Bulk Sales Law. Thus, the
business of providing telecommunication and the
telephone service is a personal property (Laurel vs.
Abrogar, G.R. No. 155076, January 13, 2009,).
The word "take" in the RPC includes controlling
the destination of the property stolen to deprive the
owner of the property, such as the use of a meter
tampering, use of a device to fraudulently obtain gas,
and the use of a jumper to divert electricity.
Appropriation of forces of nature which are brought
under control by science such as electrical energy can
be achieved by tampering with any apparatus used for
generating or measuring such forces of nature,
wrongfully redirecting such forces of nature from such
apparatus, or using any device to fraudulently obtain
such forces of nature (Laurel vs. Abrogar).
A "phreaker" is one who engages in the act of
manipulating phones and illegally markets telephone
services. Phreaking includes the act of engaging in
International Simple Resale (ISR) or the unauthorized
routing and completing of international long distance
calls using lines, cables, antennae, and/or air wave
frequency and connecting these calls directly to the
local or domestic exchange facilities of the country
where destined (Laurel vs. Abrogar, G.R. No. 155076,
February 27, 2006 and January 13, 2009).
Can PLDT validly claim that the long distance
calls are its properties stolen by the phreaker? No.
International long distance calls take the form of
electrical energy. It cannot be said that such
international long distance calls were personal
properties belonging to PLDT since the latter could not
have acquired ownership over such calls. PLDT merely
encodes, augments, enhances, decodes and transmits
said calls using its complex communications
infrastructure and facilities. PLDT not being the owner
of said telephone calls, then it could not validly claim
that such telephone calls were taken without its
consent (Laurel vs. Abrogar). Telephone calls belong to
the persons making the calls.
Can phreaker be held criminally liable for
engaging in ISR involving the telephone facilities of
PLDT? Yes. Phreaker can be held liable for access
device fraud under RA No. 8484 and theft under the
Revised Penal Code.PLDTs business of providing
telecommunication or telephone service is personal
property which can be the object of theft. While
telephone calls are not properties belonging to PLDT
that can be stolen, it is the use of these
communications facilities without the consent of PLDT
that constitutes the crime of theft, which is the
unlawful taking of the telephone services and
business.The act of conducting ISR operations by
illegally connecting various equipment or apparatus to
PLDTs telephone system, through which petitioner is
able to resell or re-route international long distance
calls using respondent PLDTs facilities constitutes acts
of subtraction (taking)penalized under the said
article(Laurel vs. Abrogar).
THEFT OF BULKY GOODS - Is the ability of
the accused to freely dispose of bulky goods stolen
from the owner determinative as to the consummation
of theft? No. In Valenzuela vs. People, G. R. No. 160188,
June 21, 2007, the Supreme Court En Banc expressly
abandoned the principle in Dio case. It was held that:
The ability of the offender to freely dispose of the
property stolen is not a constitutive element of the
crime of theft. Such factor runs immaterial to the
statutory definition of theft, which is the taking, with
intent to gain, of personal property of another without

the latters consent. While the Dio dictum is


considerate to the mindset of the offender, the
statutory definition of theft considers only the
perspective of intent to gain on the part of the
offender, compounded by the deprivation of property
on the part of the victim.
Unlawful taking is deemed complete from the
moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.
Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the
felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the
offense could only be attempted theft, if at all. Thus,
theft cannot have a frustrated stage. Theft can only be
attempted or consummated (Valenzuela vs. People, G.
R. No. 160188, June 21, 2007, En Banc).
THEFT OF CHECK - In Miranda vs. People, G.R.
No. 176298, January 25, 2012 - Petitioner was
entrusted with checks payable to complainant by virtue
of her position as accountant and bookkeeper. She
deposited the said checks to the joint account
maintained by complainant, then withdrew a total
of P797,187.85 from said joint account using the presigned checks, with her as the payee. Petitioner argued
that full ownership of the thing stolen needed to be
established first before she could be convicted of
qualified theft. Held: The subject of the crime of theft is
any personal property belonging to another. Hence, as
long as the property taken does not belong to the
accused, who has a valid claim thereover, it is
immaterial whether said offender stole it from the
owner, a mere possessor, or even a thief of the
property.
ROBBERY

Robbery with homicide exists when a homicide


is committed either by reason, or on occasion, of the
robbery. To sustain a conviction for robbery with
homicide, the prosecution must prove the following
elements: (1) the taking of personal property is
committed with violence or intimidation against
persons; (2) the property belongs to another; (3) the
taking is animo lucrandi or with intent to gain; and (4)
on the occasion or by reason of the robbery, the crime
of homicide, as used in the generic sense, was
committed.
a. Intent to rob -A conviction needs certainty
that the robbery is the central purpose and objective of
the malefactor and the killing is merely incidental to
the robbery. The intent to rob must precede the taking
of human life, but the killing may occur before, during
or after the robbery (People vs. Ladiana, GR No.
174660, May 30, 2011).

Assuming that robbery was indeed committed,


the prosecution must establish with certitude that the
killing was a mere incident to the robbery, the latter
being the perpetrators main purpose and objective. It
is not enough to suppose that the purpose of the
author of the homicide was to rob; a mere
presumption of such fact is not sufficient. Stated in a
different manner, a conviction requires certitude that
the robbery is the main purpose, and objective of the
malefactor and the killing is merely incidental to the
robbery. The intent to rob must precede the taking of

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human life but the killing may occur before, during or


after the robbery. What is crucial for a conviction for
the crime of robbery with homicide is for the
prosecution to firmly establish the offenders intent to
take personal property before the killing, regardless of
the time when the homicide is actually carried out
(People vs. Gatarin, GR NO. 198022, April 07, 2014).

b. Intent to kill and rob - However, the law


does not require that the sole motive of the
malefactor is robbery and commits homicide by
reason or on the occasion thereof. In one case, it was
ruled that even if the malefactor intends to kill and
rob another, it does not preclude his conviction for the
special complex crime of robbery with homicide. The
fact that the intent of the felons was tempered with a
desire also to avenge grievances against the victim
killed, does not negate the conviction of the accused
and punishment for robbery with homicide (People vs.
Daniela, G.R. No. 139230, April 24, 2003).

c. Robbing, killing and raping - A


conviction for robbery with homicide is proper even if
the homicide is committed before, during or after the
commission of the robbery. The homicide may be
committed by the actor at the spur of the moment or
by mere accident. Even if two or more persons are
killed and a woman is raped and physical injuries are
inflicted on another, on the occasion or by reason of
robbery, there is only one special complex crime of
robbery with homicide. What is primordial is the result
obtained without reference or distinction as to the
circumstances, cause, modes or persons intervening
in the commission of the crime (People vs. Daniela,
G.R. No. 139230, April 24, 2003).

d. One of the robbers is the victim of


homicide - It is immaterial that the death would
supervene by mere accident; or that the victim of
homicide is other than the victim of robbery, or that
two or more persons are killed or that aside from the
homicide, rape, intentional mutilation, or usurpation of
authority, is committed by reason or on the occasion of
the crime. Likewise immaterial is the fact that the
victim of homicide is one of the robbers; the felony
would still be robbery with homicide. Once a homicide
is committed by or on the occasion of the robbery, the
felony committed is robbery with homicide. All the
felonies committed by reason of or on the occasion of
the robbery are integrated into one and indivisible
felony of robbery with homicide. The word homicide
is used in its generic sense. Homicide, thus, includes
murder, parricide, and infanticide (People vs. Laog,
G.R. No. 178321, October 5, 2011; (People vs. Ebet, GR
No. 181635, November 15, 2010; People vs. De Leon,
GR No. 179943, June 26, 2009; People vs. Diu, GR No.
201449, April 03, 2013).
In People vs. Concepcion, G.R. No. 200922, July
18, 2012 - Accused snatched victims shoulder bag
which was hanging on her left shoulder. No violence,
intimidation or force was used in snatching her
shoulder bag. Given the facts, the snatching of
shoulder bag constitutes the crime of theft, not

robbery. Accuseds co-conspirator, who was driving the


motorcycle, died because he lost control of the
motorcycle and crashed in front of a taxi. Since
accused as passenger in the motorcycle, did not
perform or execute any act that caused the death of
his companion, he cannot be held liable for homicide.
e. Homicide through reckless imprudence
- In robbery with homicide, the original criminal design
of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the
robbery. The intent to commit robbery must precede
the taking of human life. The homicide may take place
before, during or after the robbery. It is only the result
obtained, without reference or distinction as to the
circumstances, causes or modes or persons intervening
in the commission of the crime that has to be taken
into consideration. There is no such felony of robbery
with homicide through reckless imprudence or simple
negligence. The constitutive elements of the crime,
namely, robbery and homicide, must be consummated
(People vs. Ebet, GR No. 181635, November 15, 2010;
People vs. De Leon, GR No. 179943, June 26, 2009;
People vs. Diu, GR No. 201449, April 03, 2013).
f. Failure to present the stolen property Intent to rob is an internal act but may be inferred from
proof of violent unlawful taking of personal property.
When the fact of taking has been established beyond
reasonable doubt, conviction of the accused is justified
even if the property subject of the robbery is not
presented in court. After all, the property stolen may
have been abandoned or thrown away and destroyed
by the robber or recovered by the owner. The
prosecution is not burdened to prove the actual value
of the property stolen or amount stolen from the
victim. Whether the robber knew the actual amount in
the possession of the victim is of no moment because
the motive for robbery can exist regardless of the exact
amount or value involved (People vs. Ebet, GR No.
181635, November 15, 2010; People vs. De Leon, GR
No. 179943, June 26, 2009; People vs. Diu, GR No.
201449, April 03, 2013).
g. Direct connection between robbery and
homicide - Essential for conviction of robbery with
homicide is proof of a direct relation, an intimate
connection between the robbery and the killing,
whether the latter be prior or subsequent to the former
or whether both crimes were committed at the same
time (People vs. Buyagan, G.R. No. 187733, February 8,
2012).Homicide is said to have been committed by
reason or on the occasion of robbery if, for instance, it
was committed to (a) facilitate the robbery or the
escape of the culprit; (b) to preserve the possession by
the culprit of the loot; (c) to prevent discovery of the
commission of the robbery; or, (d) to eliminate
witnesses in the commission of the crime. As long as
there is a nexus between the robbery and the
homicide, the latter crime may be committed in a place
other than the situs of the robbery (People vs. Ebet, GR
No. 181635, November 15, 2010,).
h. Claim of ownership - The 10th floor unit of
a building is owned by a corporation and served as the
family residence prior to the death of the parents of X
and A. The unit, including the personal properties
inside, is the subject of estate proceedings pending in
another court and is, therefore, involved in the
disputed claims among the siblings. X armed with a
Board Resolution authorizing him to break open the
door lock system of 10th floor unit of a building and to
install a new door lock system went up to the subject
unit to implement said resolution. According to A, X
brought out from the unit her personal belongings. Is X
liable for robbery?

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

Answer: No. X took property openly and


avowedly under that claim of ownership. The fact that
these properties were taken under claim of ownership
negates the element of intent to gain. One who takes
the property openly and avowedly under claim of title
offered in good faith is not guilty of robbery even
though the claim of ownership is untenable. X should
not be held liable for the alleged unlawful act absent a
felonious intent. Actus non facit reum, nisi mens sit
rea. A crime is not committed if the mind of the person
performing the act complained of is innocent (Sy vs.
Gutierrez, GR No. 171579, November 14, 2012).
i. Robbery with rape - To be convicted of
robbery with rape, the following elements must concur:
(1) the taking of personal property is committed with
violence or intimidation against persons; (2) the
property taken belongs to another; (3) the taking is
characterized by intent to gain or animus lucrandi; and
(4) the robbery is accompanied by rape (People vs.
Evangelio, GR No. 181902, August 31, 2011).
The following circumstantial evidence
presented by the prosecution, when analyzed and
taken together, lead to the inescapable conclusion that
the accused raped AAA: first, while two of the robbers
were stealing, appellant and one of the robbers
brought AAA inside the comfort room; second, inside
the comfort room, AAA was stripped off her clothes and
her panty; third, when AAA resisted and struggled,
appellant and the other robber banged her head
against the wall, causing her to lose
consciousness; fourth, when she regained
consciousness, the culprits were already gone and she
saw her shorts and panty strewn at her side; and fifth,
she suffered pain in her knees, head, stomach and,
most of all, in her vagina which was then bleeding
(People vs. Evangelio, GR No. 181902, August 31,
2011).
UNINHABITED HOUSE - In Marquez vs.
People, G.R. No. 181138, December 3, 2012 - The
records show that the store alleged to have been
robbed by petitioners is not an inhabited house, public
building or building dedicated to religious worship and
their dependencies under Article 299 and as defined
under Article 301. From Valderosas testimony, it can
be deduced that the establishment allegedly robbed
was a store not used as a dwelling. In fact, after the
robbery took place, there was a need to inform
Valderosa of the same as she was obviously not
residing in the store. If the store was not actually
occupied at the time of the robbery and was not used
as a dwelling, since the owner lived in a separate
house, the robbery committed therein is punished
under Article 302. Neither was the place where the
store is located owned by the government. It was
actually just a stall rented by Valderosa from a private
person. Hence, the applicable provision in this case is
Article 302 and not Article 299 of the RPC.

CARNAPPING - Under the Anti-Carnapping


Act, the penalty of reclusion perpetua to death shall be
imposed when the owner or driver of the vehicle is
killed in the course of the commission of the
carnapping or on the occasion thereof. To prove the
special complex crime of carnapping with homicide,
there must be proof not only of the essential elements
of carnapping, but also that it was the original criminal
design of the culprit and the killing was perpetrated "in
the course of the commission of the carnapping or on
the occasion thereof" (People vs. Nocum et. Al., G.R.
No. 179041, April 1, 2013).

Under RA 9346, persons convicted of offenses


punishable with reclusion perpetua or whose sentences
will be reduced to reclusion perpetua by reason of this
law, shall not be eligible for parole.

ARSON
Is it necessary for the prosecution to prove
wrongful intent to burn on the part of the accused to
establish arson? No. Although intent may be an
ingredient of the crime of arson, it may be inferred
from the acts of the accused. There is a presumption
that one intends the natural consequences of his act;
and when it is shown that one has deliberately set fire
to a building, the prosecution is not bound to produce
further evidence of his wrongful intent. If there is an
eyewitness to the crime of arson, he can give in detail
the acts of the accused. When this is done the only
substantial issue is the credibility of the witness
(People vs. De Leon, G. R. No. 180762, March 4, 2009).
What is the crime committed if the offender
burned the building and there is person who died? In
the classification of crimes committed by fire involving
the killing of the victim, attention must be given to the
intention of the author. Main objective of the offender
determines the kind of crime committed. (a) Intent to
burn If the main objective is the burning of the
building or edifice, but death results by reason or on
the occasion of arson, the crime is simply arson
(qualified by dead of the victim), and the resulting
homicide is absorbed. (b) Intent to kill If the main
objective is to kill a particular person who may be in a
building or edifice, when fire is resorted to as the
means to accomplish such goal the crime committed
is murder only. When the Code declares that killing
committed by means of fire is murder, it intends that
fire should be purposely adopted as a means to that
end. There can be no murder without a design to take
life. Murder qualified by means of fire absorbs the
crime of arson since the latter is an inherent means to
commit the former (People vs. Baluntong, G.R. No.
182061, March 15, 2010; People vs. Cedenio, G.R. No.
93485, June 27, 1994) (c) Intent to conceal If the
objective is to kill, and in fact the offender has already
done so, and arson is resorted to as a means to cover
up the killing, the offender may be convicted of two
separate crimes of either homicide or murder, and
arson.
Article 320 of RPC contemplates the malicious
burning of structures, both public and private, hotels,
buildings, edifices, trains, vessels, aircraft, factories
and other military, government or commercial
establishments by any person or group of persons.
Section 3 of PD No. 1613, on the other hand, currently
governs simple arson. P.D. No. 1613 contemplates the
malicious burning of public and private structures,
regardless of size, not included in Article 320 of the
RPC, as amended by Republic Act No. 7659. This law
punishes simple arson with a lesser penalty because
the acts that constitute it have a lesser degree of
perversity and viciousness. Simple arson contemplates
crimes with less significant social, economic, political,
and national security implications than destructive
arson (People vs. Macabando, GR No. 188708, July 31,
2013). Burning of inhabited house or dwelling is simple
arson under Section 3 of P.D. No. 1613, and not
destructive arson under RPC. Burning personal
property is also simple arson under Section 1 of PD No.
1613.

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

The nature of Destructive Arson is


distinguished from Simple Arson by the degree of
perversity or viciousness of the criminal offender. The
acts committed under Art. 320 of The Revised Penal
Code constituting Destructive Arson are characterized
as heinous crimes "for being grievous, odious and
hateful offenses and which, by reason of their inherent
or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the
common standards and norms of decency and morality
in a just, civilized and ordered society." On the other
hand, acts committed under PD 1613 constituting
Simple Arson are crimes with a lesser degree of
perversity and viciousness that the law punishes with a
lesser penalty. In other words, Simple Arson
contemplates crimes with less significant social,
economic, political and national security implications
than Destructive Arson (People vs. Macabando, GR No.
188708, July 31, 2013).
The Information alleged that the appellant set
fire to his own house, and that the fire spread to other
inhabited houses. These allegations were established
by evidence. The accused testified that his burnt twostory house was used as a residence. That the
appellants act affected many families will not convert
the crime to destructive arson, since the appellants
act does not appear to be heinous or represents a
greater degree of perversity and viciousness when
compared to those acts punished under Article 320 of
the RPC. The established evidence only showed that
the appellant intended to burn his own house, but the
conflagration spread to the neighboring houses (People
vs. Macabando, GR No. 188708, July 31, 2013). Note:
Setting fire to his own property under circumstances
which expose to danger the life or property of another
is arson under Section 1 of PD No. 1613.

CRIMES AGAINST LIBERTY AND SECURITY

KIDNAPPING
As for the crime of kidnapping, the following
elements, as provided in Article 267 of the Revised
Penal Code, must be proven: (a) a person has been
deprived of his liberty, (b) the offender is a private
individual, and (c) the detention is unlawful. (People vs.
Jovel, G.R. No. 189820. October 10, 2012).
The crime has the following elements: (1) the
offender is a private individual; (2) he kidnaps or
detains another, or in any manner deprives the latter
of his liberty; (3) the act of detention or kidnapping is
illegal; and (4) in the commission of the offense, any of
the following circumstances is present: (a) the
kidnapping or detention lasts for more than three days;
(b) it is committed by simulating public authority; (c)
any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are
made; or (d) the person kidnapped or detained is a
minor, female or a public official (People vs. Jacalney,
GR No. 168552, October 03, 2011).
The essence of the crime of kidnapping is the
actual deprivation of the victim's liberty, coupled with
the intent of the accused to effect it. It includes not
only the imprisonment of a person but also the
deprivation of his liberty in whatever form and for
whatever length of time. It involves a situation where
the victim cannot go out of the place of confinement or
detention, or is restricted or impeded in his liberty to
move (People vs. Jacalney, GR No. 168552, October 03,
2011).

X dragged A, a minor, to his house after the


latter refused to go with him. Upon reaching the house,
X tied her hands. When A pleaded that she be allowed
to go home, he refused. After more or less one hour, X
released A and instructed her on how she could go
home. What is the crime committed?Answer: The crime
committed is kidnapping and serious illegal detention.
When X tied the hands of A, the former's intention to
deprive the latter of her liberty has been clearly shown.
For there to be kidnapping, it is enough that the victim
is restrained from going home. Because of her tender
age, and because she did not know her way back
home, she was then and there deprived of her liberty.
This is irrespective of the length of time that she
stayed in such a situation. If the victim is a minor, the
duration of his detention is immaterial (People vs.
Jacalney, GR No. 168552, October 03, 2011).
X seized A, 9 years of age, him by twisting his
right arm, pointed a knife at him. X brought A to a in a
place strange and unfamiliar to him. Because of his
tender age, he did not know the way back home. X
called victims mother to inform her that the child is in
his custody and of threatening her that she will no
longer see her son if she failed to show his wife to him.
In a case for kidnapping and serious illegal detention, X
argued s free to go home if he wanted to because he
was not confined, detained or deprived of his liberty. Is
the argument tenable? Answer:No. For kidnapping to
exist, it is not necessary that the offender kept the
victim in an enclosure or treated him harshly. Where
the victim in a kidnapping case is a minor, it becomes
even more irrelevant whether the offender forcibly
restrained the victim. Leaving a child in a place from
which he did not know the way home, even if he had
the freedom to roam around the place of detention,
would still amount to deprivation of liberty. For under
such a situation, the childs freedom remains at the
mercy and control of the abductor (People vs. Baluya,
GR No. 181822, April 13, 2011, ).
In this case, victim, a minor, was not locked up.
However, she was seized and taken from her house
through force and dragged to the mountain. Since
then, she was restrained of her liberty by and kept
under the control of accused. She was prevented from
going back home for a period of about six days.
Accused is guilty of kidnapping and illegally detaining
victim even if she was not lock-up. Under the Spanish
Penal Code, the modes of committing illegal detention
is "Secuestrare" and "Encerrare". "Secuestrare" means
sequestration. To sequester is to separate for a special
purpose, remove or set apart, withdraw from
circulation. It also means to lock-up or imprison.
"Encerrare" is a broader concept than
secuestrare. Encerrare includes not only the
imprisonment of a person but also the deprivation of
his liberty in whatever form and for whatever length of
time (People vs. Baldago, G.R. No. 128106-07, January
24, 2003).
THREATS
What is the difference among grave threats,
light threats and other light threats? In grave threats,
the wrong threatened amounts to a crime which may
or may not be accompanied by a condition. In light
threats, the wrong threatened does not amount to a
crime but is always accompanied by a condition.
In other light threats, the wrong threatened does not
amount to a crime and there is no condition (Calauag
vs. People, (G. R. No. 171511, March 4, 2009).
BLACKMAIL
Blackmailing may constitute: (1) Light threats
under Article 283; (2) Threatening to publish, or

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

offering to prevent the publication of, a libel for


compensation under Article 356; and (3) robbery with
intimidation against person. Example: X, DENR officer,
threatened to confiscate the hot logs from complainant
and prosecute it for illegal logging unless the latter will
give her P100,000. Complainant gave X the amount
demanded. The crime committed is robbery with
intimidation (extortion). In robbery with intimidation of
persons, the intimidation consists in causing or
creating fear in the mind of a person or in bringing in a
sense of mental distress in view of a risk or evil that
may be impending, real or imagined. Such fear of
injury to person or property must continue to operate
in the mind of the victim at the time of the delivery of
the money. In this case, the P100,000.00 "grease
money" was taken by X from complainant through
intimidation. By using her position as the DENR officer,
X succeeded in coercing the complainants to choose
between two alternatives: to part with their money, or
suffer the burden and humiliation of prosecution and
confiscation of the logs (Sazon vs. Sandiganbayan, G.R.
No. 150873, February 10, 2009).
CRIMES AGAINST CIVIL STATUS
A priest, who performed a marriage ceremony
despite knowledge that the couple had no marriage
license, is liable for illegal marriage. The non-filing of a
criminal complaint against the couple does not negate
criminal liability of the petitioner. Article 352 does not
make this an element of the crime.
Bigamy
Even if the first marriage is null and avoid
because of psychological incapacity of either or both
parties (Wiegel v. Sempio-Diy, 143 SCRA 499) or the
absence of a marriage license or of an affidavit of
cohabitation (Lasanas vs. People, G.R. No. 159031,
June 23, 2014), contracting a second marriage
constitutes the crime of bigamy unless a judicial
declaration of the nullity of the first marriage has been
secured beforehand.
However, the principle that one who enters
into a subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy is not
applicable where the parties merely signed the
marriage contract without marriage ceremony
performed by a duly authorized solemnizing
officer. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute
an ostensibly valid marriage for which one might be
held liable for bigamy unless he first secures a judicial
declaration of nullity before he contracts a subsequent
marriage. The law abhors an injustice and the Court is
mandated to liberally construe a penal statute in favor
of an accused and weigh every circumstance in favor
of the presumption of innocence to ensure that justice
is done (Morigo vs. People, G.R. No. 145226, February
06, 2004).
X married A, but during the subsistence of such
marriage X married B. A filed a complaint for bigamy
against X. X filed a petition for the annulment of his
first marriage with A on the ground of psychological
incapacity which was granted. X moved for the
quashal of the information and dismissal of the criminal
complaint alleging that his first marriage had already
been declared void ab initio. (a) Is the argument
tenable?
No. Article 40 of the Family Code has settled
once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of

action or a ground for defense. It has been held in a


number of cases that a judicial declaration of nullity is
required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous
marriage, reprehensible and immoral.
What makes a person criminally liable for
bigamy is when he contracts a second or subsequent
marriage during the subsistence of a valid
marriage. Parties to the marriage should not be
permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of competent
courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is
no such declaration, the presumption is that the
marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the
first marriage assumes the risk of being prosecuted for
bigamy. Otherwise, a person who commits bigamy can
simply evade prosecution by immediately filing a
petition for the declaration of nullity of his earlier
marriage and hope that a favorable decision is
rendered therein before anyone institutes a complaint
against him (People vs. Odtuhan, GR No. 191566, July
17, 2013).
(b) Would your answer be the same if the
declaration of nullity of the first marriage was obtained
before the filing of the complaint for bigamy against X?
Yes. 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 vs.
Odtuhan, GR No. 191566, July 17, 2013, ).
(c) Would your answer be the same if the first
marriage was contracted prior to the Family Code?
Yes. Article 40, which is a rule of procedure,
should be applied retroactively because Article 256 of
the Family Code itself provides that said "Code shall
have retroactive effect insofar as it does not prejudice
or impair vested or acquired rights." The fact that
procedural statutes may somehow affect the litigants'
rights may not preclude their retroactive application to
pending actions. The retroactive application of
procedural laws is not violative of any right of a person
who may feel that he is adversely affected. The reason
is that as a general rule, no vested right may attach to,
nor arise from, procedural laws (Jarillo vs. People, GR
No. 164435, June 29, 2010, ).
(d) Would your answer be the same if the
second marriage was the one declared null and void?
Yes. It is a settled rule that the 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. It is clear then that the crime of bigamy was
committed by X from the time he contracted the
second marriage with B. Thus, the finality of the
judicial declaration of nullity of Xs second marriage
does not impede the filing of a criminal charge for
bigamy against him (Walter vs. People, GR No. 183805,
July 03, 2013, ).
(e) Would your answer be the same if both the
first marriage and the second marriage are declared
null and void?
Yes. The subsequent judicial declaration of
nullity of Xs two marriages cannot be considered a
valid defense in the crime of bigamy. The moment X

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

contracted a second marriage without the previous one


having been judicially declared null and void, the crime
of bigamy was already consummated because at the
time of the celebration of the second marriage, first
marriage, which had not yet been declared null and
void by a court of competent jurisdiction, was deemed
valid and subsisting. Neither would a judicial
declaration of the nullity of second marriage make any
difference. Since a marriage contracted during the
subsistence of a valid marriage is automatically void,
the nullity of this second marriage is not per se an
argument for the avoidance of criminal liability for
bigamy. What the law penalizes is the mere act of
contracting a second or subsequent marriage during
the subsistence of a valid marriage" (Jarillo vs. People,
GR No. 164435, September 29, 2009)

public interest are likewise privileged (Borjal vs. CA,


G.R. No. 126466 January 14, 1999). 2. Conclusive
presumption of lack of malice If the defamatory
statements are an absolute privilege communication,
lack of malice is conclusively presumed. Thus, the
person making defamatory imputation is not
answerable for libel. Absolutely privileged
communications are those which are not actionable
even if the author has acted in bad faith such as
speech or debate in the Congress or in any Committee
thereof (Philippine Journalists, Inc vs. Thoenen, G.R. No.
143372, December 13, 2005) or words uttered or
published in the course of judicial proceedings,
provided the statements are pertinent or relevant to
the case (Malit vs. People, G.R. No. L-58681, May 31,
1982).

Illegal marriage

FAIR COMMENT DOCTRINE - What is the


doctrine of fair comment? Under this doctrine, fair
commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel or slander. The doctrine of fair comment
means that while in general every defamatory and
public imputation is deemed false, and every false
imputation is deemed malicious, nevertheless, when
the defamatory imputation is directed against a public
person in his public capacity, it is not necessarily
actionable. In order that such defamatory imputation
to a public official may be actionable, it must either be
a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of
opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as
long as it might reasonably be inferred from the facts
(Borjal vs. CA, G.R. No. 126466, January 14, 1999).

In Ronulo vs. People, G.R. No. 182438, July 02,


2014 - Article 352 of the RPC, as amended, penalizes
an authorized solemnizing officer who shall perform or
authorize any illegal marriage ceremony. The elements
of this crime are as follows: (1) authority of the
solemnizing officer; and (2) his performance of an
illegal marriage ceremony. The law sets the minimum
requirements constituting a marriage
ceremony: first, there should be the personal
appearance of the contracting parties before a
solemnizing officer; and second, their declaration in the
presence of not less than two witnesses that they take
each other as husband and wife. For purposes of
determining if a marriage ceremony has been
conducted, a marriage certificate is not included in the
requirements.
CRIMES AGAINST HONOR
DEFAMATION
Is truthful defamatory imputation against
private individual and government employee a defense
in libel? Proof of truth of defamatory imputation against
private individual is a defense if it is published with
good motives and for justifiable ends. Proof of the truth
of defamatory imputation against government
employees is a defense: (1) if it is published with good
motives and for justifiable ends; or (2) if the act or
omission imputed constitutes a crime; or (3) if the
imputation not constituting a crime is related to the
discharge of his duties. Truthfulness of imputation of a
crime or a function-related defamatory act against a
public officer is a defense even though he does not
prove that the imputation was published with good
motives and for justifiable ends (Vasquez vs. CA, G.R.
No. 118971, September 15, 1999).
MALICE - What are the different rules on
presumption involving malice as an element of libel or
oral defamation? 1. Disputable presumption of malice Every defamatory imputation is presumed to be
malicious. Presumed malice is also known as malice in
law. However, the following circumstances negate the
presumption of malice in a defamatory statement: (1) if
there is a good intention and justifiable motive for
making it is shown; (2) if the defamatory statements is
a qualified privilege communication such (a) A private
communication made by any person to another in the
performance of any legal, moral or social duty; and (b)
A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or
other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered
in said proceedings, or of any other act performed by
public officers in the exercise of their functions (Article
354 of RPC). The enumeration under Article 354 is not
an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of

What is the difference between fair and true


report, and fair comment as a privilege
communications?(1) In fair and true report, the
accused makes a report on the function-related acts
performed by public officers without any comments or
remarks. On the other hand, in fair comment, the
accused is making a comment on the function-related
acts performed by public officers. (2) In fair and true
report, the prosecution must prove actual malice i.e.,
such as the report was made in bad faith. In fair
comment, the prosecution must actual malice i.e.,
comment was made with knowledge that comment
was false or with reckless disregard of whether it was
false or not (Sulivan vs. Newyork Times doctrine;
Guingguing vs. the Honorable Court of Appeals, G.R.
No. 128959, September 30, 2005) Only false
statements made with the high degree of awareness of
their probable falsity demanded by New York Times
may be the subject of either civil or criminal sanctions
(Flor vs. People, G.R. No. 139987, March 31, 2005). (3)
In fair and true report, the report involving defamatory
statement must be true. In fair comment, the
defamatory imputation in the commentary is not true
but the accused has no knowledge that it is false and
has not recklessly disregarded to know whether it is
false or not.
Is error or misstatement in commentaries on
function related acts of public officer actionable in a
news articles for being libelous? Even assuming that
the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual
malice. Errors or misstatements are inevitable in any
scheme of truly free expression and debate. Consistent
with good faith and reasonable care, the press should
not be held to account, to a point of suppression, for
honest mistakes or imperfections in the choice of
language. There must be some room for misstatement
of fact as well as for misjudgment. Only by giving them
much leeway and tolerance can they courageously and
effectively function as critical agencies in our

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

democracy (Borjal vs. CA, G.R. No. 126466, January 14,


1999).

therein (Diaz v. People, G.R. No. 159787, May 25,


2007).

Brillante implicated JejomarBinay, then the OIC


Mayor of Makati, and Dr. NemesioPrudente, then
President of the Polytechnic University of the
Philippines in a planned assassination of Syjuco as well
as election-related terrorism. Is the doctrine of fair
comment applicable in this libel case? The New York
Times principle is not applicable since the utterances
are unrelated to a public officers performance of his
duties (Brillante vs. CA, G.R. Nos. 118757 & 121571,
October 19, 2004). Obviously, commission of murder
and terrorism is not related to the performance of their
duties as public officers.

INTERNET LIBEL - Under Article 355, a libel


committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar
means. Is the internet used to post a malicious
defamatory imputation through facebook within the
contemplation of the phrase any similar means in
Article 355? Yes. Writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition has a common
characteristic, and that is, their permanent nature as a
means of publication, and this explains the graver
penalty for libel than that prescribed for oral
defamation (People vs. Santiago, G.R. No. L-17663,
May 30, 1962). Hence, the phrase any similar means
should be understood in the lights of the said common
characteristic of the means to commit libel. Since
nature of internet as a means of publication is likewise
permanent, it should be considered as a means to
commit libel.

CristyFermin imputed to Annabelle Rama


Gutierrez an actress the crime of malversation and of
vices or defects for being fugitives from the law and of
being a wastrel. Is the doctrine of fair comment
applicable in this libel case? No. It is unrelated to
public figures work (Fermin vs. People, G.R. No.
157643, March 28, 2008). The defamatory imputation
has nothing to do to with works of Annabelle as a as an
actress.
In his series of articles of Erwin Tulfo, he
targeted one Atty. "Ding" So of the Bureau of Customs
as being involved in criminal activities, and was using
his public position for personal gain. He went even
further than that, and called Atty. So an
embarrassment to his religion, saying
"ikawnayataangpinakagago at
magnanakawsamiyembronito." He accused Atty. So of
stealing from the government with his alleged corrupt
activities. And when Atty. So filed a libel suit against
him, Tulfo wrote another article, challenging Atty. So,
saying, "Nagalititongtarantadongsi Atty. So
dahilbinabantayankosiya at in-expose
angkagaguhanniyasa [Bureau of Customs]." In his
testimony, Tulfo admitted that he did not personally
know Atty. So, and had neither met nor known him
prior to the publication of the subject articles. He also
admitted that he did not conduct a more in-depth
research of his allegations before he published them,
and relied only on his source at the Bureau of Customs.
Is Tulfo liable for Libel? Yes. Journalists bear the burden
of writing responsibly when practicing their profession,
even when writing about public figures or matters of
public interest. The report made by Tulfo cannot be
considered as "fair" and "true" since he did not do
research before making his allegations, and it has been
shown that these allegations were baseless. The
articles are not "fair and true reports," but merely wild
accusations. He had written and published the subject
articles with reckless disregard of whether the same
were false or not (Erwin Tulfo vs. People, G.R. No.
161032, September 16, 2008).
The article in Bander newspaper details the
sexual activities of a certain Miss S and one Philip
Henson who had a romantic liaison. The words used in
the article convey that Miss S is a sexual libertine
with unusually wanton proclivities in the bedroom. Is
the article defamatory and malicious? Is the writer
liable for libel? Yes. In a society such as ours, where
modesty is still highly prized among young ladies, the
behavior attributed to Miss S by the article in
question had besmirched both her character and
reputation. Since on its face the article is defamatory,
there is a presumption that the offender acted with
malice. However, the writer cannot be held liable for
libel. The libelous article, while referring to "Miss S,"
does not give a sufficient description or other
indications which identify "Miss S." In short, the article
fails to show that "Miss S" and complainant are one
and the same person. Although the article is libelous,
complainant could not have been the person defamed

What is the venue for internet libel committed?


As a general rule, the venue of libel cases where the
complainant is a private individual is limited to only
either of two places, namely: 1) where the complainant
actually resides at the time of the commission of the
offense; or 2) where the alleged defamatory article was
printed and first published (Article 360 of
RPC).However, the place where libelous article was
accessed by the offended party in the internet is not
equivalent to the place where the libelous article is
printed and first published. To rule otherwise is to
allow the evil sought to be prevented by the
amendment to Article 360, and that was the
indiscriminate laying of the venue in libel cases in
distant, isolated or far-flung areas, to harass an
accused. At any rate, Article 360 still allow offended
party to file the civil or criminal complaint for internet
libel in their respective places of residence (Bonifacio
vs. RTC, Makati, Branch 149, G.R. No. 184800, May 5,
2010).
Libel is not a constitutionally protected speech
and that the government has an obligation to protect
private individuals from defamation. Indeed, cyber libel
is actually not a new crime since Article 353, in relation
to Article 355 of the penal code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that online
defamation constitutes similar means for committing
libel (Disini vs. Secretary of Justice, G.R. No. 20335,
February 18. 2014).
VENUE - The rules on venue for libel in Article
360 of RPC are as follows: (1) Whether the offended
party is a public official or a private person, the
criminal action may be filed in the Regional Trial Court
of the province or city where the libelous article is
printed and first published; (2) If the offended party is
a private individual, the criminal action may also be
filed in the Regional Trial Court of the province where
he actually resided at the time of the commission of
the offense. (3) If the offended party is a public officer
whose office is in Manila at the time of the commission
of the offense, the action may be filed in the Regional
Trial Court of Manila. (4) If the offended party is a
public officer holding office outside of Manila, the
action may be filed in the Regional Trial Court of the
province or city where he held office at the time of the
commission of the offense (Foz, Jr., vs. People, GR No.
167764, October 09, 2009, ).
Information alleged that the libelous writings
were published in Panay News, a daily publication with
a considerable circulation in the City of Iloilo and that

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

complainant (private individual) is a physician in Iloilo.


Is the Information quashable for improper venue?
Answer: Yes. The allegations in the Information
that "Panay News, a daily publication with a
considerable circulation in the City of Iloilo" only
showed that Iloilo was the place where Panay
News was in considerable circulation but did not
establish that the said publication was printed and first
published in Iloilo City.
The Information failed to allege the residence
of complainant. While the Information alleges that
complainant is a physician in Iloilo City, such allegation
did not clearly and positively indicate that he was
actually residing in Iloilo City at the time of the
commission of the offense. It is possible that
complainant was actually residing in another place
(Foz, Jr., vs. People, GR No. 167764, October 09, 2009).
RECKLESS IMPRUDENCE
Following a vehicular collision in August 2004,
Jason Ivler was charged with reckless imprudence
resulting in slight physical injuries for injuries sustained
by Maria and reckless imprudence resulting in
homicide and damage to property for the death of
Nestor and damage to their vehicle. Court convicted
Jason for the first charged. Should the information for
the second charge be quashed on the basis of the rule
on double jeopardy? Reckless imprudence under Article
365 is a single quasi-offense by itself and not merely a
means to commit other crimes; hence conviction or
acquittal of such quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of
its various consequences. The essence of the quasi
offense of criminal negligence under article 365 of the
Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken
into account to determine the penalty. It does not
qualify the substance of the offense. And, as the
careless act is single, whether the injurious result
should affect one person or several persons, the
offense criminal negligence remains one and the same,
and cannot be split into different crimes and
prosecutions (Ivler vs. Modesto-San Pedro, G.R. No.
172716, November 17, 2010). Note: The principle in
Ivler case has abandoned the principle (Ortega view)
that culpa is just a modality by which a felony may be
committed.
In People vs. Dumayag, G.R. No. 172778, 26
November 2012 - The evidence indubitably shows that
before the collision, the passenger bus was cruising
along its rightful lane when the tricycle coming from
the opposite direction suddenly swerved and
encroached on its lane. The accident would not have
happened had Genayas, the tricycle driver, stayed on
his lane and did not recklessly try to overtake another
vehicle while approaching a blind curve. Section 37 of
R.A. No. 4136 mandates all motorists to drive and
operate vehicles on the right side of the road or
highway. When overtaking another, it should be made
only if the highway is clearly visible and is free from
oncoming vehicle. Overtaking while approaching a
curve in the highway, where the drivers view is
obstructed, is not allowed. Corollarily, drivers of
automobiles, when overtaking another vehicle, are
charged with a high degree of care and diligence to
avoid collision. The obligation rests upon him to see to
it that vehicles coming from the opposite direction are
not taken unaware by his presence on the side of the
road upon which they have the right to pass.

In Sevilla vs. People, G.R. No. 194390, August


13, 2014 - That in answer to the question of whether
there is a pending criminal case against him, accused,
a a municipal councilor marked the box corresponding
to the no answer despite the pendency of a criminal
case against him for direct assault. According to the
accused, the PDS was prepared by his secretary. It was
held that there was a legal obligation on the part of
accused a to disclose in his PDS that there was a
pending case against him. However, accused cannot
be convicted of falsification of public document since
he did not act with malicious intent to falsify the
aforementioned entry in his PDS. However,
considering that accuseds PDS was haphazardly and
recklessly done, which resulted in several false entries
therein, accused was convicted of reckless imprudence
resulting in falsification of document.
In Solidum vs. People, GR No. 192123, March
10, 2014 - The standard of medical care of a prudent
physician must be determined from expert testimony
in most cases; and in the case of a specialist (like an
anesthesiologist), the standard of care by which the
specialist is judged is the care and skillcommonly
possessed and exercised by similar specialists under
similar circumstances. The specialty standard of care
may be higher than that required of the general
practitioner.Here, the Prosecution presented no
witnesses with special medical qualifications in
anesthesia to provide guidance to the trial court on
what standard of care was applicable. It would
consequently be truly difficult, if not impossible, to
determine whether the first three elements of a
negligence and malpractice action were attendant.

VIOLENCE AGAINST WOMAN


Are the acts of attaching the face of his exgirlfriend on a nude body of a woman in a picture,
sending the picture to her through cell phone text
message and threatening to post it in the internet for
all to see that caused substantial emotional and
psychological distress to her constitutive of
psychological violence against woman under Section 5
(h) of RA No. 9262? Yes. Under Section 5 (h) of RA No.
9262 the following conduct that caused substantial
emotional and psychological distress to the woman
with whom the offender has a marital, sexual or dating
relationship is punishable: (1) Stalking (2) Peering in
the window or lingering outside the residence of the
woman or her child; (3) Entering or remaining in the
dwelling against her will; (4) Destroying property and
inflicting harm to animals; and (5) Engaging in any
form of harassment or violence.The acts described
above are considered harassment within the
contemplation of the phrase any form of harassment
in Section 5 (h) (5) (Ang vs. The Honorable CA, G.R. No.
182835, April 20, 2010).
Is habituality an element of violence against
women and their children under Section 5 (h)? No.
Section 3(a) of R.A. 9262 punishes "any act or series of
acts" that constitutes violence against women. This
means that a single act of harassment contemplated in
Section 5 (h), which translates into violence, would be
enough. The object of the law is to protect women and
children. Punishing only violence that is repeatedly
committed would license isolated ones (Ang vs. The
Honorable CA, G.R. No. 182835, April 20, 2010).
HAZING
The night before the commencement of the
rites, the neophytes of AngGaling fraternity were

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JUDGE MARLO B. CAMPANILLA

briefed on what to expect. They were told that there


would be physical beatings, that the whole event would
last for three days, that that they could quit anytime.
A, a neophyte, consented to the initiation ritual,
having asked his parents for permission to join the
fraternity. Even after going through the fraternitys
grueling tradition ritualsmainly being beaten by a
paddle on the arms and legsduring the first day, A
continued and completed the second day of initiation.
As consequence of the hazing, A died. What is the
crime committed by members of the fraternity, who
directly participated in the infliction of harm against
A? The crime committed is hazing. The principle in
Villareal vs. People, G.R. No. 151258, February 1, 2012
finding the accused liable for reckless imprudence
resulting in homicide is not anymore controlling in the
light of RA No. 8049 (Anti-hazing Law).

praeterintentionem is appreciable as a mitigating


circumstance. In hazing, the law expressly disallows
the appreciation of this circumstance. In homicide or
murder, the basis of criminal liability is the actual and
conspiratorial participation of the offender in killing the
victim. In hazing, criminal responsibility is based on (1)
actual participation in inflicting physical harm, (2)
presumed participation (of those who are present
during the hazing), (3) the presence of adviser, (4)
participation in the planning (by officers, former
officers and alumni of the fraternity); (5) knowledge (of
the parent of frat member in the home of whom hazing
occurred, owner of the place commission, and school
authorities).

The crime of hazing is thus committed when


the following essential elements are established: (1) a
person is placed in some embarrassing or humiliating
situation or subjected to physical or psychological
suffering or injury; and (2) these acts were employed
as a prerequisite for the persons admission or entry
into an organization (People vs. Bayabos, G.R. No.
171222, February 18, 2015).

In the case of school authorities and faculty


members who have had no direct participation in the
act, they may nonetheless be charged as accomplices
if it is shown that (1) hazing, as established by the
above elements, occurred; (2) the accused are school
authorities or faculty members; and (3) they consented
to or failed to take preventive action against hazing in
spite actual knowledge thereof (People vs. Bayabos).

Failure to allege that the physical or


psychological harm were employed as a prerequisite
for admission or entry into the organization would
prevent the successful prosecution of the criminal
responsibility of the accused, either as principal or as
accomplice, for the crime of hazing. Plain reference to
a technical term in this case, hazing is insufficient
and incomplete, as it is but a characterization of the
acts allegedly committed and thus a mere conclusion
of law (People vs. Bayabos).

The corresponding responsibilities of the


principal, accomplice, and accessory are distinct from
each other. As long as the commission of the offense
(hazing) can be duly established in evidence, the
determination of the liability of the accomplice or
accessory can proceed independently of that of the
principal (People vs. Bayabos).

Under Section 4 of RA 8049, the officers and


members of the fraternity, sorority or organization who
actually participated in the infliction of physical
harmupon recruit, neophyte or applicant on occasion of
hazing shall be liable as principals for the crime of
hazing. Hazing is an initiation rite or practice as a
prerequisite for admission into membership in a
fraternity, sorority or organization or a requirement for
employment in a corporation by placing the recruit,
neophyte or applicant in some embarrassing or
humiliating situations.
Organization includes but is not limited to
groups, teams, fraternities, sororities, citizen army
training corps, educational institutions, clubs, societies,
cooperatives, companies, partnerships, corporations,
the PNP, and the AFP. The Philippine Merchant Marine
Academy is included in the termorganization within the
meaning of the law(People vs. Bayabos).
What are the differences between hazing and
homicide or murder? The differences of homicide or
murder and hazing are as follows: (a) In homicide or
murder, what is criminal is the killing of person. Hence,
intent to kill is an indispensable element. Death of the
victim consummates the crime. In hazing, what is
prohibited is the infliction of the infliction of physical or
psychological suffering on another in furtherance of the
latters admission or entry into an organization(People
vs. Bayabos).Hence, intent to kill is not material. Death
of the neophyte is only important to determine the
proper imposable penalty. (b) Homicide or murder is
malum in se. Consent of the victim to the infliction of
harm may negate dolo or criminal intent, which would
make the killing punishable as reckless imprudence
(Villareal vs. People, G.R. No. 151258, February 1,
2012). Hazing is malumprohibitum. Consent of the
neophyte is not a defense. (c) In homicide or murder,

The owner of the place commission, and school


authorities are liable for hazing as accomplices.

In hazing, taking action to prevent the


occurrence of hazing is a defense by any offender
except (1) those who actually inflicted physical harm
and (2) those (officers, former officers and alumni of
the fraternity), who planned the hazing.
LOOSE FIREARM
Section 29 of RA No. 10591 provides:

SEC. 29. Use of Loose Firearm in the


Commission of a Crime. The use of a loose firearm,
when inherent in the commission of a crime punishable
under the Revised Penal Code or other special laws,
shall be considered as an aggravating
circumstance: Provided, That if the crime committed
with the use of a loose firearm is penalized by the law
with a maximum penalty which is lower than that
prescribed in the preceding section for illegal
possession of firearm, the penalty for illegal possession
of firearm shall be imposed in lieu of the penalty for
the crime charged:Provided, further, That if the crime
committed with the use of a loose firearm is penalized
by the law with a maximum penalty which is equal to
that imposed under the preceding section for illegal
possession of firearms, the penalty of prision mayor in
its minimum period shall be imposed in addition to the
penalty for the crime punishable under the Revised
Penal Code or other special laws of which he/she is
found guilty.

If the violation of this Act is in furtherance of,


or incident to, or in connection with the crime of
rebellion of insurrection, or attempted coup d
etat,such violation shall be absorbed as an element of

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

the crime of rebellion or insurrection, or


attempted coup d etat.

If the crime is committed by the person without


using the loose firearm, the violation of this Act shall be
considered as a distinct and separate offense.

USE OF LOOSE FIREARM AS AGGRVATING


CIRCUMSTANCE - As a rule, when use of a loose
firearm in committing is inherent in the commission of
other crime, such circumstance shall be considered as
an aggravating circumstance. For example, if a loose
firearm was used in committing homicide, the penalty
of reclusion temporal prescribed for shall be applied in
its maximum period.
However, if the penalty for illegal possession of
loose firearm is graver than that prescribed for other
crime committed, the penalty for the latter shall be
applied. For example, the penalty for simple robbery is
prision correccional in its maximum period to prision
mayor in its medium period while the penalty for illegal
possession of small arm under Section 28 of RA No.
10591 is prision mayor in its medium period. If a loose
firearm classified as small arm is used in committing
simple robbery, the penalty of prision mayor in its
medium period prescribed under RA 10591 shall be
imposed.
Furthermore, if the maximum penalty
prescribed for the other crime is equal to that for illegal
possession of loose firearm, prision mayor in its
minimum period shall be imposed in addition to the
penalty for the other crime. For example, the penalty of
reclusion perpetua is prescribed for homicide and
illegal possession of a Class B light weapon. If a loose
firearm involving a Class B light weapon is used to
commit homicide, the penalty of prision mayor in its
minimum period in addition to reclusion perpetua shall
be imposed.
Lastly, if a loose firearm is used in the
commission of rebellion, sedition or coup d etat, the
latter shall be absorbed in the former.
DISTINCT AND SEPARATE CRIME - If the
crime is committed by the person without using the
loose firearm, the violation of this Act shall be
considered as a distinct and separate offense (RA No.
10591). Conversely, if the crime is committed by the
person with the use of loose firearm, illegal possession
of loose firearm is not a separate offense. In such a
case, the illegal possession of loose firearm shall be
considered as an aggravating circumstance or a special
circumstance that justifies that imposition of graver
penalty or additional penalty, or as a mere element of
rebellion, sedition or coup d etat.

QUASABLE INFORMATION - Prior to RA 8294,


the rules obtaining, if the offender killed a person with
the use of unlicensed firearm, were as follows: (1) use
of unlicensed firearm was not an aggravating
circumstance in murder or homicide under PD 1866;
(2) offender is liable independently for homicide or
murder and illegal possession of firearm.

Under PD 1866 as amended by RA 8294, the


rules, if the offender killed a person with the use of

unlicensed firearm, are as follows: (1) offender is


liable for homicide or murder with aggravating
circumstance of use of unlicensed firearm; and (2) the
crimes of murder or homicide and illegal use or
possession of firearm are integrated into a single
offense.
In People vs. Bergante, G.R. No. 120369-70,
February 27, 1998 - The violation of PD No. 1866
should have been punished separately conformably
with our ruling in the case of Quijada G.R. No. 11500809, July 24, 1996, En Banc. Nevertheless, fortunately
for appellant, PD No. 1866 was recently amended by
RA No. 8294, which provides that if homicide or
murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance. In
short, only one offense should be punished, viz.,
either homicide or murder, and the use of the
unlicensed firearm should only be considered as an
aggravating circumstance.
In Celino vs. CA, G.R. No. 170562, June 29,
2007, the Supreme Court ruled that:
When the other crime involved is one of
those enumerated under RA 8294 (e.g. homicide,
murder, rebellion, sedition or coup d etat) any
information for illegal possession of firearm should be
quashed because the illegal possession of firearm
would have to be tried together with such other
offense, either considered as an aggravating
circumstance in murder or homicide,, or absorbed as
an element of rebellion, insurrection, sedition or
attempted coup detat.
When the other crime involved is not one of
those enumerated under RA 8294, any information for
illegal possession of firearm should not be quashed.
The separate case for illegal possession of firearm
should continue to be prosecuted. Settled is the rule
that an accused cannot be convicted for illegal
possession of firearm if another crime was committed
at the same time. Since accusation is not synonymous
with guilt, it cannot establish outright that other
crime was committed. However, the accused must
be exonerated of illegal possession of firearms if he is
convicted of some other crime.
Considering that under RA No. 10591 use of
loose firearm is not only an aggravating circumstance
in murder or homicide but also in other crime such as
robbery or grave threat, the illegal possession of
firearm should not be considered a separate and
distinct crime if other crime is committed and the use
of loose firearm in inherent therein. Following the
same line of reasoning in the case of Celino, any
information for illegal possession of firearm should be
quashed because the illegal possession of loose
firearm would have to be tried together with such
other offense, either considered as an aggravating
circumstance in murder or homicide,, robbery, grave
threat, alarm and scandal, physical injuries or
absorbed as an element of rebellion, insurrection,
sedition or attempted coup detat.
DANGEROUS DRUGS
POSSESSION OF DRUGS For a prosecution
for illegal possession of a dangerous drug to prosper, it
must be shown that (a) the accused was in possession
of an item or an object identified to be a prohibited or
regulated drug; (b) such possession is not authorized
by law; and (c) the accused was freely and consciously
aware of being in possession of the drug (David vs.
People, Gr No. 181861, October 17, 2011, ).

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

This crime is mala prohibita, and, as such,


criminal intent is not an essential element. However,
the prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual
possession, but also constructive possession. Actual
possession exists when the drug is in the immediate
physical possession or control of the accused. On the
other hand, constructive possession exists when the
drug is under the dominion and control of the accused
or when he has the right to exercise dominion and
control over the place where it is found. Exclusive
possession or control is not necessary. The accused
cannot avoid conviction if his right to exercise control
and dominion over the place where the contraband is
located, is shared with another (Del Castillo vs. People,
GR No. 185128, January 30, 2012, ).
Mere possession of a dangerous drug per
se constitutes prima facie evidence of knowledge
or animus possidendi sufficient to convict an accused
absent a satisfactory explanation of such possession the onus probandi is shifted to the accused, to explain
the absence of knowledge or animus possidendi
(Miclat, Jr. vs. People, GR No. 176077, August 31, 2011,
).
KNOWLEDGE - Is knowledge an element of
dangerous drugs despite this crime is malum
prohibitum? Yes. For illegal possession of dangerous
drugs, the prosecution must establish that the accused
freely and consciously possessed the dangerous drug
without authority. However, mere possession of
dangerous drug constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict
an accused in the absence of any satisfactory
explanation (Asiatico vs. People, G.R. No. 195005,
September 12, 2011).
ATTEMPTED SALE - A, poseur buyer, asked
X if he has available shabu for sale. X answered
in the affirmative and showed to A a plastic sachet
containing shabu. A immediately identified himself as
a policeman, and then, apprehended X and
confiscated the shabu from his pocket. What is the
crime committed by X? X is liable for attempted
sale of shabu punishable under Section 26 of RA
9165. Attempt to sell shabu was shown by the overt
act of appellant therein of showing the substance to
the poseur-buyer. The sale was aborted when the
police officers identified themselves and placed
appellant under arrest (People vs. Figueroa, G.R.
No. 186141, April 11, 2012).
DELIVERY - Is the absence of marked money
as evidence fatal to prosecution of sale and delivery of
dangerous drugs? No. The law defines deliver as a
persons act of knowingly passing a dangerous drug to
another with or without consideration. Considering
that the appellant was charged with the sale and
the delivery of prohibited drugs, the consummation of
the crime of delivery of marijuana may be sufficiently
established even in the absence of the marked money
(People vs. Domingcil, G.R. No. 140679, January 14,
2004).
LACK OF COORDINATION WITH PDEA Silence of the law as to the consequences of the failure
on the part of the law enforcers to seek the prior
authority of the PDEA cannot be interpreted as a
legislative intent to make an arrest without such PDEA
participation illegal or evidence obtained pursuant to
such an arrest inadmissible (People vs. Clarite, G.R.
No. 187157, February 15, 2012). Lack of coordination
with the PDEA will not invalidate a buy-bust
operation. Such coordination is not an indispensable
requirement in buy-bust operations. Neither Section
86 of Republic Act No. 9165 nor its Implementing Rules

and Regulations make PDEAs participation a


condition sine qua non for the conduct of a buy-bust
operation (People vs. Mendosa, G.R. No. 189327,
February 29, 2012)
CONFIRMATORY TEST - In Ambre vs. People,
G.R. No. 191532. August 15, 2012 - In no instance did
accused challenge, at the RTC, the supposed absence
of confirmatory drug test conducted on her. Accused
only questioned the alleged omission when she
appealed her conviction before the CA. It was too late
in the day for her to do so. Well entrenched is the rule
that litigants cannot raise an issue for the first time on
appeal as this would contravene the basic rules of fair
play and justice.
PHOTOGRAPHY AND INVENTORY Under
Section 21 of RA No. 9165, the apprehending team
having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of
the accused or the person/s from whom such items
were confiscated and/or seized, or his/her
representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof;
However, the Implementing rules of RA No. 9165
provides that non-compliance with these requirements
under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody
over said items.
Non-compliance with the requirements of
Section 21 of R.A. No. 9165 will not necessarily render
the items seized or confiscated in a buy-bust operation
inadmissible. Strict compliance with the letter of
Section 21 is not required if there is a clear showing
that the integrity and the evidentiary value of the
seized items have been preserved, i.e., the items being
offered in court as exhibits are, without a specter of
doubt, the very same ones recovered in the buy-bust
operation. Hence, once the possibility of substitution
has been negated by evidence of an unbroken and
cohesive chain of custody over the contraband, such
contraband may be admitted and stand as proof of
the corpus delicti notwithstanding the fact that it was
never made the subject of an inventory or was
photographed pursuant to Section 21 (1) of Republic
Act No. 9165 (David vs. People, Gr No. 181861,
October 17, 2011, ; Marquez vs. People, G.R. No.
197207, March 13, 2013; People vs. Morate, GR No.
201156, January 29, 2014; People vs. Ladip, GR No.
196146, March 12, 2014; People vs. Bis, GR No.
191360, March 10, 2014).

InPeople vs. Gonzales, G.R. No. 182417, April 3,


2013 - By way of exception, Republic Act No. 9165 and
its IRR both state that the non-compliance with the
procedures thereby delineated and set would not
necessarily invalidate the seizure and custody of the
dangerous drugs provided there were justifiable
grounds for the non-compliance, and provided that the
integrity of the evidence of the corpus delicti was
preserved. But the non-compliance with the
procedures, to be excusable, must have to be justified
by the States agents themselves. Considering that
PO1 Dimla tendered no justification in court for the
non-compliance with the procedures, the exception did
not apply herein. The absolution of accused should
then follow, for we cannot deny that the observance of
the chain of custody as defined by the law was the only
assurance to him that his incrimination for the very

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JUDGE MARLO B. CAMPANILLA

serious crime had been legitimate and insulated from


either invention or malice. In this connection, the Court
states that the unexplained non-compliance with the
procedures for preserving the chain of custody of the
dangerous drugs has frequently caused the Court to
absolve those found guilty by the lower courts.
CHAIN OF CUSTODY As a method of
authenticating evidence, 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. These witnesses would then describe the
precautions taken to ensure that there had been no
change in the condition of the item and no opportunity
for someone not in the chain to have possession of the
same (People vs. Constantino, Jr. GR No. 199689, March
12, 2014).
Thus, the following links must be established in
the chain of custody in a buy-bust situation: first, the
seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending
officer; second, the turn over of the illegal drug seized
by the apprehending officer to the investigating
officer; third, the turn over by the investigating officer
of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turn over and submission
of the marked illegal drugs seized from the forensic
chemist to the court (People vs. Constantino, Jr. GR No.
199689, March 12, 2014)

MARKING - Crucial in proving the chain of


custody is the marking of the seized dangerous drugs
or other related items immediately after they are
seized from the accused, for the marking upon seizure
is the starting point in the custodial link that
succeeding handlers of the evidence will use as
reference point. Moreover, the value of marking of the
evidence is to separate the marked evidence from the
corpus of all other similar or related evidence from the
time of seizure from the accused until disposition at
the end of criminal proceedings, obviating switching,
planting or contamination of evidence. A failure to
mark at the time of taking of initial custody imperils
the integrity of the chain of custody that the law
requires (People vs. Constantino, Jr. GR No. 199689,
March 12, 2014)

The rule requires that the marking of the


seized items should be done in the presence of the
apprehended violator and immediately upon
confiscation to ensure that they are the same items
that enter the chain and are eventually the ones
offered in evidence.There are occasions when the chain
of custody rule is relaxed such as when the marking of
the seized items immediately after seizure and
confiscation is allowed to be undertaken at the police
station rather than at the place of arrest for as long as
it is done in the presence of an accused in illegal drugs
cases. However, even a less-than-stringent application
of the requirement would not suffice to sustain the
conviction in this case. There was no categorical
statement from any of the prosecution witnesses that

markings were made, much less immediately upon


confiscation of the seized items. There was also no
showing that markings were made in the presence of
the accused in this case (Lopez vs. People, GR No.
188653, January 29, 2014).

Drug peddling in schools is prevalent; the


scenario attending this case is likely to be repeated
many times. To impose on school personnel the
observance of the same procedure required of law
enforces (like marking) processes that are unfamiliar
to them is to set a dangerous precedent that may
eventually lead to the acquittal of many drug peddlers.
To our mind, the evidentiary value of the seized
specimen remains intact as long as the school
personnel who had initial contact with the drug/s was
able to establish that the evidence had not been
tampered with when he handed it to the police
(Marquez vs. People, G.R. No. 197207, March 13, 2013)

PARAPHERNALIA WITH TRACES OF SHABU


In People vs. Matinez, G.R. No. 191366, December 13,
2010 - This Court notes the practice of law enforcers of
filing charges under Sec. 11 in cases where the
presence of dangerous drugs as basis for possession is
only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11. Although not
incorrect, it would be more in keeping with the intent of
the law to file charges under Sec. 15 instead in order to
rehabilitate first time offenders of drug use, provided
that there is a positive confirmatory test result as
required under Sec. 15. The minimum penalty under
the last paragraph of Sec. 11 for the possession of
residue is imprisonment of twelve years and one day,
while the penalty under Sec. 15 for first time offenders
of drug use is a minimum of six months rehabilitation
in a government center. To file charges under Sec. 11
on the basis of residue alone would frustrate the
objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a
second chance at life.

In order to effectively fulfill the intent of the


law to rehabilitate drug users, this Court thus calls on
law enforcers and prosecutors in dangerous drugs
cases to exercise proper discretion in filing charges
when the presence of dangerous drugs is only and
solely in the form of residue and the confirmatory test
required under Sec. 15 is positive for use of dangerous
drugs. In such cases, to afford the accused a chance to
be rehabilitated, the filing of charges for or involving
possession of dangerous drugs should only be done
when another separate quantity of dangerous drugs,
other than mere residue, is found in the possession of
the accused as provided for in Sec. 15.

PENALTY FOR POSSESSION OF MARIJUANA


AND SHABU - Possession of different kinds of
dangerous drugs in a single occasion constitutes a
single offense of possession of dangerous drugs (David
vs. People, G.R. No. 181861, October 17, 2011).

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JUDGE MARLO B. CAMPANILLA

PLANTING OF EVIDENCE - As a general rule,


planting of evidence to incriminate an innocent
person constitutes the crime of incriminating an
innocent person under Article 363 of RPC. However, if
the incriminatory evidence planted is dangerous drugs
or unauthorized explosives, loose firearm, the crime
committed is planting of evidence under RA 9165 for
the dangerous drug, PD 1866 as amended by RA 9516
for the explosive and RA No. 10591.
PLEA BARGAINING - Section 23 of RA No.
9165, any person charged under any crime involving
dangerous drugs regardless of the imposable penalty
shall not be allowed to avail of the provision on pleabargaining.
TRAFFICKING IN PERSON
Can accused be convicted of illegal recruitment
and trafficking in person for the same of act of
recruiting a person for prostitution without violating the
rule on double jeopardy? Yes. When an act or acts
violate two or more different laws and constitute two
different offenses, a prosecution under one will not bar
a prosecution under the other. The constitutional right
against double jeopardy only applies to risk of
punishment twice for the same offense, or for an act
punished by a law and an ordinance. The prohibition on
double jeopardy does not apply to an act or series of
acts constituting different offenses (People vs. Lalli,
G.R. No. 195419, October 12, 2011).
Is trafficking in persons limited to
transportation of victims? No. Trafficking in Persons
under Sections 3(a) and 4 of RA 9208 is not only
limited to transportation of victims, but also includes
the act of recruitment of victims for trafficking (People
vs. Lalli, G.R. No. 195419, October 12, 2011).
Is recruitment of the victim for prostitution with
her consent or knowledge constitutive of the crime of
trafficking in person? Yes. The crime of Trafficking in
Persons can exist even with the victims consent or
knowledge (People vs. Lalli, G.R. No. 195419, October
12, 2011).
In People vs. Casio, G.R. No. 211465, December
03, 2014 - Accused took advantage of AAAs
vulnerability as a child and as one who need money.
The victims consent is rendered meaningless due to
the coercive, abusive, or deceptive means employed
by perpetrators of human trafficking. Even without the
use of coercive, abusive, or deceptive means, a minors
consent is not given out of his or her own free will.
If the accused sell the child to another for purpose
of prostitution on a single occasion, the crime
committed is child prostitution under Section 5 (a) of
RA No 7610 (People vs. Dulay, GR No. 193854,
September 24, 2012). If the accused maintained the
child for prostitution, the crime committed is qualified
trafficking in person under Section 4 and 6 of RA No.
9208 (People vs. Casio).
ILLEGAL RECRUITMENT
It is well-established in jurisprudence that a
person may be charged and convicted for both illegal
recruitment and estafa. The reason therefor is not hard
to discern: illegal recruitment is malum prohibitum,
while estafa is mala in se. In the first, the criminal
intent of the accused is not necessary for conviction. In
the second, such intent is imperative (People vs. Chua,
G. R. No. 187052, September 13, 2012).

BP BLG. 22
What Batas Pambansa Blg. 22 punished was
the mere act of issuing a worthless check. The law did
not look either at the actual ownership of the check or
of the account against which it was made, drawn, or
issued, or at the intention of the drawee, maker or
issuer. Also, that the check was not intended to be
deposited was really of no consequence to her
incurring criminal liability under Batas Pambansa Blg.
22 (Resterio vs. People, G.R. No. 177438. September
24, 2012).
The giving of the written notice of dishonor
does not only supply the proof for the second element
arising from the presumption of knowledge the law
puts up but also affords the offender due process. The
law thereby allows the offender to avoid prosecution if
she pays the holder of the check the amount due
thereon, or makes arrangements for the payment in
full of the check by the drawee within five banking
days from receipt of the written notice that the check
had not been paid. The Court cannot permit a
deprivation of the offender of this statutory right by not
giving the proper notice of dishonor (Resterio vs.
People, G.R. No. 177438. September 24, 2012).
Where the check is drawn by a corporation,
company or entity, the person or persons who actually
signed the check in behalf of such drawer shall be
liable under this Act." This provision recognizes the
reality that a corporation can only act through its
officers. Hence, its wording is unequivocal and
mandatory that the person who actually signed the
corporate check shall be held liable for a violation of BP
22. This provision does not contain any condition,
qualification or limitation (Mitra Vs. People and Tarcelo,
G.R. No. 191404. July 5, 2010)
NOTICE OF DISHONOR IN ESTAFA CASE The essential elements of the felony are: (1) a check
is postdated or issued in payment of an obligation
contracted at the time it is issued; (2) lack or
insufficiency of funds to cover the check; and (3)
damage to the payee thereof. It is criminal fraud or
deceit in the issuance of a check which is made
punishable under the RPC, and not the non-payment
of a debt. The postdating or issuing of a check in
payment of an obligation when the offender had no
funds in the bank or his funds deposited therein are
not sufficient to cover the amount of the check is a
false pretense or a fraudulent act. However deceit is
presumed if the drawer of the check fails to deposit
the amount needed to cover his check
within three days from receipt of notice of dishonor.
a. No notice of dishonor - If there is no
notice of dishonor, the prosecution can still prove the
existence of deceit such as in a case where the
accused knows that his checking account is closed.
The receipt by the drawer of the notice of dishonor is
not an element of the estafa through bouncing check.
b. With notice of dishonor - If there is
notice of dishonor, the presumption of deceit can still
be rebutted by: (1) proof that the check is issued in
payment of a pre-existing obligation or (1) evidence of
good faith, a defense in estafa by postdating a check.
Good faith may be demonstrated, for instance, by a
debtors offer to arrange a payment scheme with his
creditor or making full payment of the entire amount
of the dishonored checks. However, simply empty
promise to pay complainant the value of the bum
checks issued in order to induce her to part with her
property in favor of accused is not an evidence of
good faith that will rebut the presumption of deceit.
(See: People vs. Ojeda, G.R. Nos. 104238-58, June 3,
2004, Corona; Lopez vs. People, G.R. No. 166810, June

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26, 2008, De Castro; Recuerdo vs. People, G.R. No.


168217, June 27, 2006, )
NOTICE OF DISHONOR IN BP BLG. 22 Notice of dishonor of a check to the maker in BP Blg.
22 must be in writing. A mere oral notice to the
drawer or maker of the dishonor of his check is not
enough. If the maker or drawer pays, or makes
arrangements with the drawee bank for the payment
of the amount due within the five-day period from
notice of the dishonor given to the drawer, it is a
complete defense; the accused may no longer be
indicted for violation of Section 1, B.P. Blg. 22. If he is
so indicted, he may set up the payment of the amount
due as a complete defense. Assuming that the
accused had knowledge that he had insufficient funds
in the drawee bank when he issued the questioned
checks, he could still have paid the checks or made
arrangements with the drawee bank for the payment
of the said checks if he had been duly notified of their
dishonor. In not sending a notice or letter of dishonor
to the petitioner as required by law, the complaint
deprived the accused of his right to avoid prosecution
for violation of B.P. Blg. 22 (Sia vs. G.R. No.
149695, April 28, 2004).

In San Mateo vs. People, G.R. No. 200090,


March 6, 2013 - Complainant tried to serve the notice
of dishonor to the accused two times. On the first
occasion, complainants counsel sent a demand letter
to accuseds residence at Greenhills, San Juan which
the security guard refused to accept. Thus, the liaison
officer left the letter with the security guard with the
instruction to hand it to accused. But the prosecution
failed to show that the letter ever reached accused. On
the second occasion, counsel sent a demand letter to
accused by registered mail which was returned with
the notation "N/S Party Out 12/12/05" and that accused
did not claim it despite three notices to her. Since there
is insufficient proof that accused actually received the
notice of dishonor, the presumption that she knew of
the insufficiency of her funds cannot arise. For this
reason, the Court cannot convict her with moral
certainty of violation of B.P. 22.

Nevertheless, accuseds acquittal does not


entail the extinguishment of her civil liability for the
dishonored checks. An acquittal based on lack of proof
beyond reasonable doubt does not preclude the award
of civil damages. For this reason, the trial courts
directive for San Mateo to pay the civil liability in the
amount representing the total value of the checks plus
12% interest per annum from the time the said sum
became due and demandable until fully paid, stands.

In Campos vs. People. G.R. No. 187401,


September 17, 2014 - Exerting efforts to reach an
amicable settlement with her creditor after the checks
which she issued were dishonored by the drawee
bankis a circumstantial evidence of receipt of notice of
dishonor.Accused would not have entered into the
alleged arrangements if she had not received a notice
of dishonor from her creditor, and had no knowledge of

the insufficiency of her funds with the bank and the


dishonor of her checks.

Lopez vs. People, G.R. No. 166810, June 26,


2008, Justice De Castro-Under Section 114(d) of the
Negotiable Instruments Law, notice of dishonor is not
required to be given to the drawer in either of the
following cases where the drawer has no right to
expect or require that the drawee or acceptor will
honor the check. Since petitioner's bank account was
already closed even before the issuance of the subject
check, he had no right to expect or require the drawee
bank to honor his check. By virtue of the aforequoted
provision of law, petitioner is not entitled to be given a
notice of dishonor.
The crime involved in Lopez vs. People is estafa
through issuance of bouncing check. However, it is
submitted the Lopez principle can be applied to
violation of BP 22.

PAYMENT - In Lim vs. People, G.R. No. 190834,


November 26, 2014 - The fact that the issuer of the
check had already paid the value of the dishonored
check after having received the subpoena from the
Office of the Prosecutor should have forestalled the
filing of the Information in court. The spirit of the law
which, for B.P. Big. 22, is the protection of the
credibility and stability of the banking system, would
not be served by penalizing people who have evidently
made amends for their mistakes and made restitution
for damages even before charges have been filed
against them. In effect, the payment of the checks
before the filing of the informations has already
attained the purpose of the law.

It should be emphasized as well that payment


of the value of the bounced check after the information
has been filed in court would no longer have the effect
of exonerating the accused from possible conviction for
violation of B.P. Big. 22. Since from the commencement
of the criminal proceedings in court, there is no
circumstance whatsoever to show that the accused
had every intention to mitigate or totally alleviate the
ill effects of his issuance of the unfunded check, then
there is no equitable and compelling reason to
preclude his prosecution. In such a case, the letter of
the law should be applied to its full extent.

Furthermore, to avoid any confusion, the


Court's ruling in this case should be well differentiated
from cases where the accused is charged with estafa
under Article 315, par. 2(d) of the Revised Penal Code,
where the fraud is perpetuated by postdating a check,
or issuing a check in payment of an obligation when
the offender had no funds in the bank, or his funds
deposited therein were not sufficient to cover the
amount of the check. In said case of estafa, damage
and deceit are the essential elements of the offense,
and the check is merely the accused's tool in

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committing fraud. In such a case, paying the value of


the dishonored check will not free the accused from
criminal liability. It will merely satisfy the civil liability of
the crime but not the criminal liability.

SUSPENSION OF PAYMENT - X in his capacity


as officer of Z corporation issued a corporate check in
favor of A. The check bounced due to DAIF. Notice of
dishonor was received by X. After three months, SEC
issued order creating the Management Committee and
ordering the suspension of all pending actions for
claims against Z corporation. (a) Is X liable for
violation of BP Blg. 22?

Answer: Yes. X was formally notified of the


dishonor of the checks. Yet, it was only more than
three months after, that the SEC issued order for the
suspension of all pending actions for claims against Z
corporation. Thus, X was not precluded from making
good the checks during that three-month gap when he
received the letter and when the SEC issued the order
(Tiong Rosario vs. Co, G.R. No. 133608, August 26,
2008)

(b) Would your answer be the same if the order


of suspension was issued before the presentment for
payment of the check when the drawee bank and the
sending of notice of dishonor?
Answer: No. X is not liable for violation of BP
Blg. 22. Considering that there was a lawful Order from
the SEC, the contract is deemed suspended. When a
contract is suspended, it temporarily ceases to be
operative; and it again becomes operative when a
condition occurs - or a situation arises - warranting the
termination of the suspension of the contract.When a
contract is subject to a suspensive condition, its birth
takes place or its effectivity commences only if and
when the event that constitutes the condition happens
or is fulfilled. Thus, at the time A presented the check
for encashment, it had no right to do so, as there was
yet no obligation due from X (Gidwani vs. People, GR
No. 195064, January 15, 2014).

ANTI-GRAFT AND CORRUPT PRACTICES LAW


RA NO. 3019
Conspiracy Only public officer can be held
criminally liable for violation of RA No. 3019. However,
if there is conspiracy, the act of the public officer in
violating RA No. 3019 is imputable to the private
individual although there are not similarly situated in
relation to the object of the crime. Moreover, Section 9
provides penalty for public officer or private person for
crime under Section 3. Hence, a private individual can
be prosecuted for violation of RA No. 3019 (Go vs. The
Fifth Division, Sandiganbayan, G.R. No. 172602, April
13, 2007). Even if the public officer with whom the
private individual allegedly conspired, the latter can
still be prosecuted for violation of RA No. 3019. Death
extinguishes the criminal liability but not the crime.
Hence, if there is proof of the crime and conspiracy of
dead public officer with private individual, the latter
can still be convicted of violation of RA No. 3019

(People vs. Go, GR NO. 168539, March 25,


2014).However, the public officer with whom the
private individual allegedly conspired is acquitted, the
latter should also be acquitted (Marcos vs.
Sandiganbayan, G.R. No. 126995, October 6, 1998).
SECTION 3 (a) - The elements of Section 3(a)
of Republic Act No. 3019 are: 1. The offender is public
officer; 2. The offender persuades, induces or
influences another public officer to perform an act or
the offender allows himself to be persuaded, induced,
or influenced to commit an act; 3. That the act
performed by the other public officer or committed by
another constitutes a violation of ruled and regulations
duly promulgated by competent authority or an offense
in connection with the official duty of the latter (Ampil
vs. Hon. Ombudsman, G.R. No. 192685, July 31, 2013.
In Baviera vs. Zoleta, G.R. No. 169098, Oct. 12,
2006 - The Supreme Court considered the Senate
deliberation of Section 3 (a) of RA No. 3019 in resolving
the case. According to Senator Tolentino, if there is no
proof of the consideration in the use of the influence,
the offense is not committed under the bill. Because
the logic and intention of the sponsor (Senator
TOLENTINO) of the aforecited provision, the SC said
that Acting Secretary of Justice did not commit a
violation of the same as there is no proof that she
received consideration in exchange for her decision to
allow Mr. Raman to travel abroad despite the Hold
Departure Order issued by the Secretary of Justice.
SECTION 3 (b) - The elements of the crime
under Section 3 (b) of RA No. 3019 are: (1) the offender
is a public officer; (2) he requested or received a gift,
present, share, percentage or benefit; (3) he made the
request or receipt on behalf of the offender or any
other person; (4) the request or receipt was made in
connection with a contract or transaction with the
government and (5) he has the right to intervene, in an
official capacity under the law, in connection with a
contract or transaction has the right to intervene
(Merencillo vs. People, G.R. Nos. 142369-70, April 13,
2007).
Section 3 (b) of RA No. 3019, directly or
indirectly requesting or receiving any gift, present,
share, percentage, or benefit, for himself or for any
other person, in connection with any contract or
transaction between the Government and any other
party, wherein the public officer in his official capacity
has to intervene under the law is punishable. Section 3
(b) is limited only to contracts or transactions involving
monetary consideration where the public officer has
the authority to intervene under the law.Preliminary
investigation is not a contract or transaction is not a
contract or transaction within the contemplated of
Section 3 (b). Hence, requesting or receiving money in
connection with a preliminary investigation is not a
violation of this provision (Soriano, Jr. vs.
Sandiganbayan, G.R. No. 65952, July 31, 1984; People
vs. Sandiganbayan. and Justice Secretary Perez).
SECTION 3 (e) - In Dela Cuersta vs.
Sandiganbayan, G.R. Nos. 164068-69, November 19,
2013 - The informations alleged that accused as
members of the Philippine Coconut Authority, acting in
conspiracy with each other and with evident bad faith
and manifest partiality, gave financial assistance to
COCOFED, a private entity, without an appropriate
budget, giving unwarranted benefit to the same and
causing undue injury to the Government.
The element in the crime of technical
malversation that public fund be appropriated for a
public use requires an earmarking of the fund or
property for a specific project. For instance there is no
earmarking if money was part of the municipalitys

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JUDGE MARLO B. CAMPANILLA

general fund, intended by internal arrangement for


use in paving a particular road but applied instead to
the payrolls of different barangay workers in the
municipality. That portion of the general fund was not
considered appropriated since it had not been
earmarked by law or ordinance for a specific
expenditure. Here, there is no allegation in the
informations that the P2 million and P6 million grants
to COCOFED had been earmarked for some specific
expenditures.
What is more, the informations do not allege
that the subject P2 million and P6 million were applied
to a public use other than that for which such sums
had been appropriated. Quite the contrary, those
informations allege that those sums were unlawfully
donated to a private entity, not applied to some
public use. Clearly, the constitutional right of the
accused to be informed of the crimes with which they
are charged would be violated if they are tried for
technical malversation under criminal informations for
violation of Section 3(e) of R.A. 3019 filed against
them.
This crime has the following essential
elements: 1. The accused must be a public officer
discharging administrative, judicial or official
functions;2. He must have acted with manifest
partiality, evident bad faith or gross inexcusable
negligence; and 3. His action caused any undue injury
to any party, including the government, or gave any
private party unwarranted benefits, advantage or
preference in the discharge of his functions (People vs.
Atienza, GR No. 171671, June 18, 2012).
First element - The accused must be a public
officer discharging administrative, judicial or official
functions. In Consigna vs. People, G.R. no. 175750,
April 2, 2014 Petitioner, a municipal treasurer, is
considered a public officer discharging official functions
when she misused such position to be able to take out
a loan from complainant, who was misled into the
belief that former, as municipal treasurer, was acting
on behalf of the municipality. The petitioner
misrepresented that the loan is to be used to pay for
the salaries of the employees of the municipality and
to construct the municipal gymnasium. The victim
could have been the Municipality of General Luna since
the checks signed by the mayor was issued to the
complainant. It was just fortunate that the mayor
instructed the bank to stop payment of the checks
issued by petitioner. Thus, the municipal treasurer can
be held liable for violation of Section 3 (e) of RA No.
3019 for causing damage to complainant.
Mejorada principle - In Stilgrove vs. Sabas,
A.M. No. P-06-2257, March 28, 2008 Admittedly, the
Court made a statement in Zoomzat that for one to be
held liable under Section 3 (e), he must be an officer or
employee of offices or government corporations
charged with the grant of licenses or permits or other
concessions. The earlier case of Mejorada however,
squarely addressed the issue on the proper
interpretation of Section 3 (e). Mejorada was decided
by the Court en banc. Following the constitutional
mandate that no doctrine or principle of law laid down
by the Court in a decision rendered en banc or in
division may be modified or reversed except by the
Court sitting en banc, the case of Zoomzat cannot
reverse the pronouncement in Mejorada, the former
case having been decided by a Division of the Court.
In Consigna vs. People, G.R. No. 175750, April 2, 2014,
the SC re-affirmed the principle in Mejorada.
Second element - The accused must have
acted with manifest partiality, evident bad faith or
gross inexcusable negligence.Section 3(e) of RA 3019
may be committed either by dolo, as when the accused

acted with evident bad faith or manifest partiality, or


by culpa, as when the accused committed gross
inexcusable negligence (Plameras vs. People, GR No.
187268, September 04, 2013).
Arias principle - In Arias v. Sandiganbayan,
G.R. Nos. 81563 & 82512, 19 December 1989 - All
heads of offices have to rely to a reasonable extent on
their subordinates and on the good faith of those who
prepare bids, purchase supplies, or enter into
negotiations. If a department secretary entertains
important visitors, the auditor is not ordinarily
expected to call the restaurant about the amount of
the bill, question each guest whether he was present at
the luncheon, inquire whether the correct amount of
food was served, and otherwise personally look into
the reimbursement voucher's accuracy, propriety, and
sufficiency. There has to be some added reason why he
should examine each voucher in such detail. Any
executive head of even small government agencies or
commissions can attest to the volume of papers that
must be signed. There are hundreds of documents,
letters, memoranda, vouchers, and supporting papers
that routinely pass through his hands. The number in
bigger offices or departments is even more appalling.
There should be other grounds than the mere signature
or approval appearing on a voucher to sustain a
conspiracy charge and conviction.
Non-applicability of the Arias principle
The principle of Arias case where reliance on the
subordinate was considered as a defense in case of
violation of Section 3 (e) RA No. 3019 is not applicable:
(1) Where the accused has foreknowledge of
existing anomaly - e.g. mayor signed the inspection
report and the disbursement voucher despite the fact
that he had foreknowledge that the materials delivered
by Guadines have already been confiscated by the
DENR (Escara vs. People, G.R. No. 164921, July 8,
2005);
(2) Where there is deviation from ordinary
procedure e.g. mayor issued and encashed municipal
checks despite the facts that the disbursement
vouchers were in the name of Kelly Lumber but the
checks were not payable to the supplier, Kelly Lumber
and that checks were payable upon his order (Cruz vs.
The Hon. Sandiganbayan, G.R. No. 134493, August 16,
2005).
(3) Where the public official invoking the Arias
principle is not acting in his capacity as head of office,
who is relying on his subordinate e.g. head of the office
of the city administrator relied on the acts of the heads
of the Office of the City Treasurer, the Office of the City
Accountant in granting cash advance to a paymaster
(Jaca vs. People, G.R. No. 166967, January 28, 2013).
4. Rivera vs. People, G.R. No. 156577,
December 03, 2014 - In the case at bench, Perez
should have placed himself on guard when the
documents and vouchers given to him by his
subordinates did not indicate the retention money
required by P.D. No. 1594. Moreover, when he
personally inspected the construction site of PAL Boat,
he should have noticed the financial weakness of the
contractor and the defective works. Deplorably, Perez
kept mum and chose to continue causing undue injury
to the government. No other conclusion can be inferred
other than his manifest partiality towards PAL Boat
Conspiracy of silence or inaction - As a
rule, the principle of conspiracy as a mode of
committing a crime or for purpose of applying the
collective responsibility rule is only applicable to
intentional felony. The concept of conspiracy, the
elements of which are agreement and decision to

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JUDGE MARLO B. CAMPANILLA

commit a crime, are not consistent with culpable


felony. Persons cannot definitely agree and decide to
commit a culpable crime.
Exception:
Public officers can incur collective criminal
responsibility through a conspiracy for violation of
Section 3(e) of RA No. 3019 through gross and
inexcusable negligence, and of incurring. This is called
conspiracy of silence and inaction arising from gross
inexcusable negligence. To establish this kind of
conspiracy, it is essential to prove the breach of duty
borders on malice and is characterized by flagrant,
palpable and willful indifference to consequences
insofar as other persons may be affected. Conspiracy
of silence or inaction would almost always be inferred
only from the surrounding circumstances and the
parties' acts or omissions that, taken together, indicate
a common understanding and concurrence of
sentiments respecting the commission of the offense.
The duties and responsibilities that the occupancy of a
public office carry and the degree of relationship of
interdependence of the different offices involved here
determine the existence of conspiracy where gross
inexcusable negligence was the mode or commission
of the offense (Jaca vs. People, G.R. No. 166967,
January 28, 2013).
In Jaca vs. People, supra - A paymaster
obtained cash advances despite the fact that she has
previous unliquidated cash advances. The cash
advance remained unliquidated to the damage of the
city. The City Treasurer certified that the cash advances
are necessary, lawful and incurred under my direct
supervision. The City Accountant certified that the
expenditures are supported by documents and
previous cash advances are liquidated and accounted
for. The City Administrator approved the voucher and
countersigned the check. The paymaster is liable for
violation of Section 3 (e) of RA No. 3019. The City
Treasurer, City Accountant and City administrator are
liable because of conspiracy of silence or inaction.
According to SC, the petitioners are all heads or their
respective offices that perform interdependent
functions in the processing of cash advances. The
petitioners' attitude of buck-passing in the face of the
irregularities in the voucher and the absence of
supporting documents and their indifference to their
individual and collective duties to ensure that laws and
regulations are observed in the disbursement of the
funds of the local government of Cebu can only lead to
a finding of conspiracy of silence and inaction.

The concept of "undue injury," in the context of


Section 3(e) RA No. 3019 is the same as the civil law
concept of "actual damage." It is required that undue
injury must be specified, quantified and proven to the
point of moral certainty. Speculative or incidental injury
is not sufficient. The damages suffered cannot be
based on flimsy and non-substantial evidence or upon
speculation, conjecture or guesswork but must depend
on competent proof and on the best evidence
obtainable regarding specific facts which could afford
some basis for measuring compensatory or actual
damage (M.A. Jimenez Inc. vs. The Hon. Ombudsman,
G.R. No. 155307, June 06, 2011).
In Braza vs. the Hon. Sandiganbayan, G.R. No.
195032, February 20, 2013 - There are two (2) ways by
which a public official violates Section 3(e) of R.A.
No. 3019 in the performance of his functions, namely:
(1) by causing undue injury to any party, including the
Government; or (2) by giving any private party any
unwarranted benefit, advantage or preference. The
accused may be charged under either mode or under
both. The disjunctive term or connotes that either act
qualifies as a violation of Section 3(e) of R.A. No.
3019.] In other words, the presence of one would
suffice for conviction. "To be found guilty under the
second mode, it suffices that the accused has given
unjustified favor or benefit to another, in the exercise
of his official, administrative and judicial
functions." The element of damage is not required for
violation of Section 3 (e) under the second mode.
Private party - In Ambil vs. Sandiganbayan,
G.R. No. 175457, July 06, 2011 - In drafting the AntiGraft Law, the lawmakers opted to use "private party"
rather than "private person" to describe the recipient
of the unwarranted benefits, advantage or preference
for a reason. The term "party" is a technical word
having a precise meaning in legal parlance as
distinguished from "person" which, in general usage,
refers to a human being. Thus, a private person simply
pertains to one who is not a public officer. While a
private party is more comprehensive in scope to mean
either a private person or a public officer acting in a
private capacity to protect his personal interest. In the
present case, when petitioners transferred Mayor
Adalim from the provincial jail and detained him at
petitioner Ambil, Jr.'s residence, they accorded such
privilege to Adalim, not in his official capacity as a
mayor, but as a detainee charged with murder. Thus,
for purposes of applying the provisions of Section 3(e),
R.A. No. 3019, Adalim was a private party.

Erroneous interpretation of the law - An


erroneous interpretation of a provision of law regarding
the entitlement of a government employee who was
wrongfylly removed to RATA, absent any showing of
some dishonest or wrongful purpose, does not
constitute and does not necessarily amount to bad
faith (Ysidoro vs. Hon. Leonardo-De Castro, G.R. No.
171513, February 06, 2012).

SECTION 3 (g) In Braza vs. the Hon.


Sandiganbayan, G.R. No. 195032, February 20, 2013 For conviction of violation of Sec. 3(g), the prosecution
must establish the following elements: 1. The offender
is a public officer; 2. He entered into a contract or
transaction in behalf of the government; and 3. The
contract or transaction is manifestly and grossly
disadvantageous to the government.

Third element - His action caused undue


injury to any party, including the government or gave
any private party unwarranted benefits, advantage or
preference in the discharge of his functions.

On the other hand, an accused may be held


criminally liable of violation of Section 3 (e) of R.A.
No. 3019, provided that the following elements are
present: 1. The accused must be a public officer
discharging administrative, judicial or official functions;
2. The accused must have acted with manifest
partiality, evident bad faith or gross inexcusable
negligence; and 3. His action caused undue injury to
any party, including the government or gave any
private party unwarranted benefits, advantage or
preference in the discharge of his functions.

There are two ways by which a public official


violates Section 3(e) of RA No. 3019 in the performance
of his functions, namely: (1) by causing undue injury to
any party, including the Government; or (2) by giving
any private party any unwarranted benefit, advantage
or preference. The accused may be charged under
either mode or both. The disjunctive term or
connotes that either act qualifies as a violation of
Section 3(e) (Rivera vs. People, G.R. No. 156577,
December 03, 2014).

Although violation of Sec. 3 (g) of R.A. No.


3019 and violation of Sec. 3(e) of the same law share a
common element, the accused being a public officer,

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the latter is not inclusive of the former. The essential


elements of each are not included among or do not
form part of those enumerated in the other. For double
jeopardy to exist, the elements of one offense should
ideally encompass or include those of the other. What
the rule on double jeopardy prohibits refers to identity
of elements in the two offenses.
Overpricing In Sajul vs. Sandiganbayan,
supra - To substantiate the assertion that the price of
Bato-Bato Enterprises was exorbitant, the prosecution
presented a quotation from Zodiac Trading which
states that a fire extinguisher of the same make and
kind would allegedly cost only about P1,500 which was
P1,000 less of Bato-Batos price. It was held that: The
comparison of prices between Bato-bato Enterprises
with that of Zodiac Trading is rather unacceptable. In
the first place, Zodiac trading was not properly
identified as a company dealing with fire extinguishers
or a leading company selling fire extinguishers, for that
matter. Nobody from the company appeared in court
to testify about its company or its product. The
components of its fire extinguishers were not actually
proven to be the same as that of Bato-Bato
Enterprises. The quotation of Zodiac Trading was
merely solicited. The veracity of such quotation was
not proven. Considering all these circumstances, it is
rather unfair to compare the prices of Bato-Bato
Enterprises with that of Zodiac Trading when the basis
of the comparison has not been established. It could
not be concluded that there was an overpricing of the
fire extinguishers when the prosecution single out only
one company, which apparently quoted a lower price
than that of Bato-Bato Enterprises.
In order to show that there was an overpricing
in the subject transaction, a canvass of different
suppliers with their corresponding prices should have
been procured which could readily show the
differences in the price quotations. Absent this
competent evidence, it is rather unfair to conclude that
the price of Bato-Bato Enterprises was exorbitant on
the basis alone of a submitted quotation of one
company and to further rule that the contract was
grossly injurious to the government. The contract
entered into by the petitioner would not cause obvious
or glaring injury to the government when petitioner
merely continued the purchase from a regular supplier,
which he had authority to do so even without the
benefit of bidding.
In Caunan vs. People, G.R. Nos. 181999 &
182001-04 and Marquez vs. Sandiganbayan, Fourth
Division, G.R. Nos. 182020-24, September 2, 2009
The evidence of the prosecution did not include a
signed price quotation from the walis tingting suppliers
of Paraaque City. In fact, even the walis tingting
furnished the audit team by petitioners and the other
accused was different from the walis tingting actually
utilized by the Paraaque City street sweepers at the
time of ocular inspection by the audit team. At the
barest minimum, the evidence presented by the
prosecution, in order to substantiate the allegation of
overpricing, should have been identical to the walis
tingting purchased in 1996-1998. Only then could it be
concluded that the walis tingting purchases were
disadvantageous to the government because only then
could a determination have been made to show that
the disadvantage was so manifest and gross as to
make a public official liable under Section 3(g) of R.A.
No. 3019.
SECTION 4 (a) - In Disini vs. Sandiganbayan,
G.R. No. 169823-24 and 174764-65, September 11,
2013 The elements of the offense under Section 4 (a)
of R.A. No. 3019 are: (1) That the offender has family or
close personal relation with a public official; (2) That he
capitalizes or exploits or takes advantage of such

family or close personal relation by directly or indirectly


requesting or receiving any present, gift, material or
pecuniary advantage from any person having some
business, transaction, application, request, or contract
with the government; (3) That the public official with
whom the offender has family or close personal
relation has to intervene in the business transaction,
application, request, or contract with the government.
The allegations in the information charging the
violation of Section 4(a) of R.A. No. 3019, if
hypothetically admitted, would establish the elements
of the offense, considering that: (1) Disini, being the
husband of Paciencia Escolin-Disini, the first cousin of
First Lady Imelda Romualdez-Marcos, and at the same
time the family physician of the Marcoses, had close
personal relations and intimacy with and free access to
President Marcos, a public official; (2) Disini, taking
advantage of such family and close personal relations,
requested and received $1,000,000.00 from Burns &
Roe and $17,000,000.00 from Westinghouse, the
entities then having business, transaction, and
application with the Government in connection with the
PNPPP; (3) President Marcos, the public officer with
whom Disini had family or close personal relations,
intervened to secure and obtain for Burns & Roe the
engineering and architectural contract, and for
Westinghouse the construction of the PNPPP.

SECTION 7 Section 7 of RA No. 3019


provides: Section 7. Statement of assets and
liabilities. Every public officer, within thirty days after
the approval of this Act or after assuming office, and
within the month of January of every other year
thereafter, as well as upon the expiration of his term of
office, or upon his resignation or separation from
office, shall prepare and file with the office of the
corresponding Department Head, or in the case of a
Head of Department or chief of an independent office,
with the Office of the President, or in the case of
members of the Congress and the officials and
employees thereof, with the Office of the Secretary of
the corresponding House, a true detailed and sworn
statement of assets and liabilities, including a
statement of the amounts and sources of his income,
the amounts of his personal and family expenses and
the amount of income taxes paid for the next
preceding calendar year: Provided, That public officers
assuming office less than two months before the end
of the calendar year, may file their statements in the
following months of January.

On the other hand, Section 8 of RA No. 6713


provides: SECTION 8. Statements and Disclosure.
Public officials and employees have an obligation to
accomplish and submit declarations under oath of, and
the public has the right to know, their assets, liabilities,
net worth and financial and business interests
including those of their spouses and of unmarried
children under eighteen (18) years of age living in their
households. (A) Statements of Assets and Liabilities
and Financial Disclosure. All public officials and
employees, except those who serve in an honorary
capacity, laborers and casual or temporary workers,

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shall file under oath their Statement of Assets,


Liabilities and Net Worth and a Disclosure of Business
Interests and Financial Connections and those of their
spouses and unmarried children under eighteen (18)
years of age living in their households. XXXXXX The
documents must be filed: (a) within thirty (30) days
after assumption of office; (b) on or before April 30, of
every year thereafter; and (c) within thirty (30) days
after separation from the service.

The rule directing full disclosure of wealth in


the SALN is a means of preventing said evil and is
aimed particularly at minimizing if not altogether
curtailing the opportunities for official corruption and
maintaining a standard of honesty in the public service.
By the SALN, the public is able to monitor movement in
the fortune of a public official; it serves as a valid
check and balance mechanism to verify undisclosed
properties and wealth (Gupilan-Aguilar vs. Office of the
Umbudsman, G.R. No. 197307, February 26, 2014).

It is imperative that every public official or


government employee must make and submit a
complete disclosure of his assets, liabilities and net
worth in order to suppress any questionable
accumulation of wealth. This serves as the basis of the
government and the people in monitoring the income
and lifestyle of public officials and employees in
compliance with the constitutional policy to eradicate
corruption, to promote transparency in government,
and to ensure that all government employees and
officials lead just and modest lives, with the end in
view of curtailing and minimizing the opportunities for
official corruption and maintaining a standard of
honesty in the public service (OCA vs. Usman, A.M. No.
SCC-08-12, October 19, 2011). In fact, filing SALN is a
constitutional duty. Article 11, Section 17 of the 1987
Constitution provides: Section 17. A public officer or
employee shall, upon assumption of office and as often
thereafter as may be required by law, submit a
declaration under oath of his assets, liabilities, and net
worth.
Failure to file SALN as required by law is a
violation of Section 8 of RA No. 6713 and Section 7 of
RA No. 3019 (Concerned Taxpayer vs. Doblada, A.M.
No. P-99-1342, June 8, 2005). Since both laws provide a
penalty for failure to file SALN, the offender should only
be prosecuted and punished either under one or the
other.

However, it is submitted that Section 7 of RA


No. 3019 has been modified by Section 8 of RA No.
6713. The court takes judicial notice of the fact that
public officers are now submitting SALN in compliance
with Rules Implementing the Code of Conduct and
Ethical Standards for Public Officials and
Employees issued by the Civil Service Commission.
They are required to file the SALN on or before April
30, of every year as required under RA No. 6713 and
not within the month of January of every other year
as mandated under RA No. 3019.

Section 8 of RA No. 6713 excludes public


officials and employees, who serve in an honorary
capacity, laborers and casual or temporary workers
from the requirement of filling SALN. If these public
officers are excused from filling SALN under RA 6713, it
would be absurd to criminally make them responsible
under RA No. 3019 for failure to file it. By parity of
reasoning, if a public officer filed a SALN in April of a
certain year in compliance of RA No. 6713 he should
not be made criminally liable under RA No. 3019 which
requires that the SALN should be filed within the month
of January.

RA No. 3019 is enacted in 1960 or prior to the


1987 Constitution, while RA No.6713 is passed
precisely to implement the constitutional provision on
SALN. Section 8 of RA No. 6713 is the latest legislative
expression that gives spirit and substance to State
policy of transparency and public accountability.
Hence, the time regulation and the exclusionary rule
under RA No. 6713 regarding the filing of SALN is
controlling even if the accused is charged for failure to
file SALN under Section 7 of RA No. 3019.

SECTION 13 - Any incumbent public officer


against whom any criminal prosecution under a valid
information for crime of corruption under RA 3019,
crimes committed by public officer under RPC or for
any offense involving fraud upon government or public
funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode
of participation, is pending in court, shall be suspended
from office. Usurpation of public authority (Miranda vs.
Hon. Sandiganbayan, G.R. NO. 154098, July 27, 2005,
En Banc) and election offense(Juan vs. People, G.R. No.
132378, January 18, 2000) are offenses involving fraud
upon the government. Falsification of document
(voucher) is offense involving fraud upon public funds
or property (Bustillo vs. Sandiganbayan, G.R. No.
146217, April 7, 2006).

Presumption of innocence - The preventive


suspension under Section 13 of RA No. 3019 is not
penalty. Thus, suspension, which is being ordered
before a judgment of conviction is reached, is not
violation of constitutional right to be presumed
innocent (Bunye vs. Escareal, G.R. No. 110216,
September 10, 1993). The suspended accused, whose
culpability remains to be proven, are still entitled to the
constitutional presumption of innocence (Juan vs.
People, G.R. No. 132378, January 18, 2000).

Ex post facto law - Article 24 (3) of the


Revised Penal Code clearly states that suspension from
the employment or public office during the trial or in
order to institute proceedings shall not be considered
as penalty. It is not a penalty because it is not imposed
as a result of judicial proceedings. In fact, if acquitted,

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the official concerned shall be entitled to reinstatement


and to the salaries and benefits, which he failed to
receive during suspension. This is merely preventive
measures before final judgment. Not being a penal
provision, therefore, the suspension from office,
pending trial, of the public officer charged with crimes
mentioned in the amendatory provision committed
before its effectivity does not violate the constitutional
provision on ex post facto law (Bayot vs.
Sandiganbayan, G.R. No. L-61776 to L-61861, March
23, 1984).

Pre-suspension hearing - While the


suspension of a public officer under this provision is
mandatory, the suspension requires a prior hearing to
determine the validity of the information filed against
him, taking into account the serious and far reaching
consequences of a suspension of an elective public
official even before his conviction. The accused public
officials right to challenge the validity of the
information before a suspension order may be issued
includes the right to challenge the (i) validity of the
criminal proceeding leading to the filing of an
information against him, and (ii) propriety of his
prosecution on the ground that the acts charged do not
constitute a violation of R.A. No. 3019 or of the
provisions on bribery of the Revised Penal Code (Miguel
vs. Hon. Sandiganbayan, G.R. No. 172035, July 04,
2012).

In Luciano vs. Mariano, G.R. N L-32950, July 30,


1971 Where the preliminary investigation was for
falsification, the office of the prosecutor could not
validly charged the petitioner with the graver crime of
violation of RA No. 3019. Thus, he is entitled to a new
preliminary investigation. The ruling on the validity of
the information is to be held in abeyance until after the
outcome of the preliminary investigation of violation of
RA No. 3019, and hence no suspension order can issue.
Should the fiscal find no case, he will then so inform
the trial court and move to dismiss the case. In the
contrary case, respondent court will then have to hear
and decide petitioners' pending motion to quash before
it, which squarely raises question that the facts
charged do not constitute an offense and are not
punishable under section 3 (a) and (e) of Republic Act
No. 3019, contrary to the information's averment.

Procedure - Upon the filing of such


information, the trial court should issue an order with
proper notice requiring the accused officer to show
cause at a specific date of hearing why he should not
be ordered suspended from office pursuant to 13 of RA
No. 3019. Where either the prosecution seasonably
files a motion for an order of suspension or the accused
in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order
of the trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the
parties at a hearing held for determining the validity of
the information, and thereafter hand down its ruling,

issuing the corresponding order of suspension should it


uphold the validity of the information or withholding
such suspension in the contrary case.

No specific rules need be laid down for such


pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate
opportunity to challenge the validity of the criminal
proceedings against him, e.g. that he has not been
afforded the right of due preliminary investigation; that
the acts for which he stands charged do not constitute
a violation of the provisions of Republic Act No. 3019 or
of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from
office under section 13 of the Act; or he may present a
motion to quash the information on any of the grounds
provided in Rule 117 of the Rules of Court (Miguel vs.
Hon. Sandiganbayan, G.R. No. 172035, July 04, 2012)

Period of preventive suspension- Even


though the law is silent on the duration of the
preventive suspension, the suspension should not be
indefinite. Section 13 of RA No. 3019 does not provide
the period of preventive suspension. Hence, the
duration of suspension under the Administrative Code,
which provides that the suspension may not exceed 90
days (Layus M.D. vs. Sandiganbayan, G.R. No. 134272,
December 8, 1999) may be adopted in fixing the
duration of suspension under RA 3019. The said 90-day
maximum period for suspension shall apply to all those
who are validly charged under RA 3019, whether
elective or appointive officer or employee (Gonzaga vs.
Sandiganbayan, G.R. No. 96131, September 6, 1991).

SPEEDY DISOPOSITION OF CASES - In


People vs. Hon. Sandiganbayan, and Perez, G.R. No.
188165, December 11, 2013 - There was really no
sufficient justification tendered by the State for the
long delay of more than five years in bringing the
charges against the respondents before the proper
court. On the charge of robbery, the preliminary
investigation would not require more than five years to
ascertain the relevant factual and legal matters. The
basic elements of the offense, that is, the intimidation
or pressure allegedly exerted on Cong. Jimenez, the
manner by which the money extorted had been
delivered, and the respondents had been identified as
the perpetrators, had been adequately bared before
the Office of the Ombudsman. The obtention of the
bank documents was not indispensable to establish
probable cause to charge them with the offense. In
fine, the Office of the Ombudsman transgressed the
respondents right to due process as well as their right
to the speedy disposition of their case. Because of the
inordinate delay in resolving the criminal complaint by
the Ombudsman against respondent, the cases against
respondent were dismissed.
PLUNDER
RA No. 7080
1. The elements of plunder are:
(1) That the offender is a public officer who
acts by himself or in connivance with members of his

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

family, relatives by affinity or consanguinity, business


associates, subordinates or other persons;
(2) That he amassed, accumulated or acquired
ill-gotten wealth through a combination or series of the
following overt or criminal acts:
(a) through misappropriation,
conversion, misuse, or malversation of
public funds or raids on the public treasury;
(b) by receiving, directly or indirectly,
any commission, gift, share, percentage,
kickback or any other form of pecuniary
benefits from any person and/or entity in
connection with any government contract or
project or by reason of the office or position of
the public officer;
(c) by the illegal or fraudulent
conveyance or disposition of assets belonging
to the National Government or any of its
subdivisions, agencies or instrumentalities of
Government owned or controlled corporations
or their subsidiaries;
(d) by obtaining, receiving or accepting
directly or indirectly any shares of stock, equity
or any other form of interest or participation
including the promise of future employment in
any business enterprise or undertaking;
(e) by establishing agricultural,
industrial or commercial monopolies or other
combinations and/or implementation of
decrees and orders intended to benefit
particular persons or special interests; or
(f) by taking advantage of official
position, authority, relationship, connection or
influence to unjustly enrich himself or
themselves at the expense and to the damage
and prejudice of the Filipino people and the
Republic of the Philippines; and,
(3) That the aggregate amount or total value of
the ill-gotten wealth amassed, accumulated or
acquired is at least P50,000,000.00 (Joseph Ejercito
Estrada vs. Sandiganbayan, G.R. No. 148560,
November 19, 2001).
2. A Senator on three occasions identified
Napoles bogus non-governmental as recipient of his
PDAP in the total amount of 100 million. Instead of
using the fund for legitimate purpose, the Senator and
Napoles divided the money on the basis of 40-60
sharing. Napoles got the lions share. Did they commit
plunder?
No. The Senator as a public officer did not
amassed, accumulated or acquired ill-gotten wealth
through series of misuse or malversation of public
funds in the aggregate amount of at least
P50,000,000.00. The Senator merely acquired 40
million pesos in this modus operandi. On the other
hand, Napoles on her private capacity cannot commit
plunder.
3. Would you answer be the same if the
Senator got the lions share of 60%?
Yes. The Senator, who acquired 60 million
pesos, is liable for plunder. Under RA 7080, plunder can
be committed by a public officer who acts by himself or
in connivance other persons
Napoles is likewise liable on the basis of
conspiracy. Because of conspiracy, the acts of plunder

committed by the Senator, a public officer, is


attributable to Napoles, a private individual, although
they are not similarly situated in relation to the object
of the crime.
4. Can the Senator use the defense in
malversation that he is not responsible for the misuse
of his PDAP since it is the duty of the appropriate
implementing agency of the government to check that
the recipient of the fund is not bogus?
No. Assuming that the duty to check that the
recipient of the Senators PDAP is not bogus belongs
to the appropriate agency of the government, the
Senator is still liable since malversation can be
committed through culpa.

CYBERLIBEL

Writing, printing, lithography, engraving, radio,


phonograph, painting, theatrical exhibition,
cinematographic exhibition are means of publication in
libel (2002 Bar Examination). They have a common
characteristic, and that is, their permanent nature as a
means of publication and this explains the graver
penalty for libel than that prescribed for oral
defamation. Hence, the phrase any similar means
should be understood in the lights of the said common
characteristic of the means to commit libel. Thus,
defamation thorough amplifier constitutes slander
under Article 358 and not libel since its nature as
means of publication is not permanent, and thus, it is
not similar to radio or other means mentioned in Article
355 since (People vs. Santiago, G.R. No. L-17663, May
30, 1962). On the other hand, television though not
expressly mentioned in Article 355 easily qualifies
under the general provision or any similar means
(People vs. Casten, CA-G.R. No. 07924-CR, December
13, 1974; 2005 Bar Examination). Since nature of
internet as a means of publication is permanent, it
should be considered as a means to commit libel. In
Disini, the Supreme Court ruled:

The Court agrees with the Solicitor


General that libel is not a constitutionally
protected speech and that the government has
an obligation to protect private individuals
from defamation. Indeed, cyberlibel is actually
not a new crime since Article 353, in relation to
Article 355 of the Penal Code, already punishes
it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes
"similar means" for committing libel.

Venue of cyber libel - As a general rule, the


venue of libel cases where the complainant is a private
individual is limited to only either of two places,
namely: 1) where the complainant actually resides at
the time of the commission of the offense; or 2) where
the alleged defamatory article was printed and first
published (Article 360 of the Revised Penal Code).

2015 BAR REVIEWER ON CRIMINAL LAW


UNIVERSITY OF THE PHILIPPINES LAW CENTER
JUDGE MARLO B. CAMPANILLA

However, the place where libelous article


was accessed by the offended party in the internet is
not equivalent to the place where the libelous article
is printed and first published within the contemplation
of the rule on venue under Article 360 of the Revised
Penal Code.

To rule otherwise is to allow the evil sought to


be prevented by the amendment to Article 360, and
that was the indiscriminate or arbitrary laying of the
venue in libel cases in distant, isolated or far-flung
areas, meant to accomplish nothing more than harass
or intimidate an accused. The disparity or unevenness
of the situation becomes even more acute where the
offended party is a person of sufficient means or
possesses influence, and is motivated by spite or the
need for revenge.

To equate the first access to the defamatory


article on website with "printing and first publication
of the article" would spawn the very ills that the
amendment to Article 360 of the RPC sought to
discourage and prevent. It hardly requires much
imagination to see the chaos that would ensue in
situations where the websites author or writer, a
blogger or anyone who posts messages therein could
be sued for libel anywhere in the Philippines that the
private complainant may have allegedly accessed the
offending website.

At any rate, Article 360 still allow offended


party to file the civil or criminal complaint for internet
libel in their respective places of residence (Bonifacio
vs. RTC, Makati, Branch 149,G.R. No. 184800, May 5,
2010)