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PIMENTEL Regional Trial Court, Branch 148, Makati City INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225) WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with reclusion perpetua. (People v. Aquino; GR 125906, Jan. 16, ’98) APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED In the case of People vs. Gabres, the Court has had occasion to so state that — "Under the Indeterminate Sentence Law, the maximum term of the penalty shall be 'that which, in view of the attending circumstances, could be properly imposed' under the Revised Penal Code, and the minimum shall be within the range of the penalty next lower to that prescribed' for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months . . ." (People v. Saley; GR 121179, July 2, ’98) INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES: The final query is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does, since drug offenses are not included in nor has appellant committed any act which would put him within the exceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death, provided, of course, that the penalty as ultimately resolved will exceed one year of imprisonment. The more important aspect, however, is how the indeterminate sentence shall be ascertained. It is true that Section 1 of said law, after providing for indeterminate sentence for an offense under the Revised Penal Code, states that "if the offense is punished by any other 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" We hold that this quoted portion of the section indubitably refers to an offense under a special law wherein the penalty imposed was not taken from and is without reference to the Revised Penal Code, as discussed in the preceding illustrations, such that it may be said that the "offense is punished" under that law. There can be no sensible debate that the aforequoted rule on indeterminate sentence for offenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 71 of the Code, hence there could be no minimum "within the range of the penalty next lower to that prescribed by the Code for the offense," as is the rule for felonies therein. In the illustrative examples of penalties in special laws hereinbefore provided, this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this holding is but an application and is justified under the rule of contemporanea expositio. Republic Act No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the penalties under the Revised Penal Code in their technical terms, hence with their technical signification and effects. In fact, for purposes of determining the maximum of said sentence, we have applied the provisions of the amended Section 20 of said law to arrive at prision correccional and Article 64 of the Code to impose the same in the medium period. Such offense, although provided for in a special law, is now in the effect punished by and under the Revised Penal Code. (People v Martin Simon) WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT APPLICABLE; a. b. c. d. e. f. g. h. exceed one year. i. j. Offenses punished by death or life imprisonment. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason (Art. 115). Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition (Art. 139), or espionage (Art. 117). Those convicted of piracy (Art. 122). Habitual delinquents (Art. 62, par. 5). Those who escaped from confinement or those who evaded sentence. Those granted conditional pardon and who violated the terms of the same (Art. 159). (People v. Corral, 74 Phil. 359). Those whose maximum period of imprisonment does not Those who are already serving final judgment upon the approval of the Indeterminate Sentence Law. those offenses or crimes not punishable by imprisonment such as distierro and suspension.
OF RECLUSION PERPETUA In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that despite the amendment of Article 27 of the Revised Penal Code, reclusion perpetua remained an indivisible penalty. Hence, the penalty does not have any minimum, medium and maximum period. Hence, there is no such penalty of medium period of reclusion perpetua. (People versus Tiburcio Baculi, 246 SCRA) IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime of rape and the accused did not appeal, does the judgment become final and executory? No, such judgment is null and void because it imposed a non-existent penalty. Hence, the court may nevertheless correct the penalty imposed on the accused, that is, reclusion perpetua, it is merely performing a duty inherent in the court. (People versus Nigel Gatward, GR No. 119772-73, February 7, 1997) DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT The penalty of reclusion perpetua is different from life imprisonment. The former carries with it accessory penalties, whereas life imprisonment does not carry with it any accessory penalties; reclusion perpetua is that provided for under the Revised Penal Code and under crimes defined by special laws using the nomenclature under the Revised Penal Code ; life imprisonment is that provided for violations of the Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees while life imprisonment cannot be so reduced. (People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.) WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION PERPETUA Reclusion perpetua has accessory penalties while life imprisonment does not. However, life imprisonment does not have a fixed duration or extent while reclusion perpetua has a duration of from twenty years and one day to forty years. life imprisonment may span the natural life of the convict. (People -versus- Rallagan, 247 SCRA 537)
RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE SENTENCE Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman) NATURE OF PENALTY
RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGED WHEN IMPOSED AS PENALTY Where the law violated provides for the penalty of reclusion perpetua, impose the said penalty and not the penalty of life imprisonment. Where the law imposes the penalty of life imprisonment, do not impose reclusion perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698) THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING INDIVISIBLE There we also said that "if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence." The imputed duration of thirty (30) years of reclusion perpetua, therefore, only serves as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People -vs- Aspolinar Raganas, et al GR No. 101188, October 12, 1999)
his preventive imprisonment because Article 29 of the Revised Penal Code does not distinguish between divisible and indivisible penalties. (People -vs- Rolando Corpuz, 231 SCRA 480) QUALIFIED THEFT QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT INVOLVED IS OVER P22,000.00 Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than another given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of forty (40) years with the accessory penalties of death under Article 40 of the Revised Penal Code. The accused shall not be entitled to pardon before the lapse of forty (40) years. (People -vs- Fernando Canales, 297 SCRA 667)
RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE THE PENALTY BEING LIFE IMPRISONMENT Where the accused committed qualified violation of PD 704 (fishing with the use of explosives), the imposable penalty for which is life imprisonment to death. If the accused is entitled to a mitigating circumstance of voluntary surrender, the court should impose life imprisonment applying, in a suppletory character, Articles 13 and 63 of the Revised Penal Code. (People -vs- Priscilla Balasa, GR No. 106357, September 3, 1998) ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO EITHER FULL OR ¾ OF HIS PREVENTIVE IMPRISONMENT If, during the trial, the accused was detained but, after trial, he was meted the penalty of reclusion perpetua, he is still entitled to the full credit of
THE PROBATION LAW (P.D. 968) and its AMENDMENTS
PROBATION, ITS MEANING: A disposition under which a defendant, after conviction and sentence, is subject to conditions imposed by the Court and under the supervision of a probation officer. PURPOSES OF PROBATION: a. to promote the correction and rehabilitation of an offender by providing him with personalized community based treatment; b. to provide an opportunity for his reformation and reintegration into the community;
Summary hearing will be held for indirect contempt. to prevent the commission of offenses. WHAT HAPPENS? The custodian must be asked to explain why he should not be cited for contempt for failing to produce the probationer when required by the court. SUBMISSION OF PETITION AND TIME OF FILING OFPETITION The petition or application for probation must be filed directly with the Court which sentenced the accused within 15 days from date of promulgation of the decision convicting the accused. WHAT IS A POST SENTENCE INVESTIGATION REPORT? It is a report of the Parole and Probation Officer after conducting post sentence investigation and interviews containing the circumstances surrounding the offense for which the petitioner was convicted. WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSEDPETITIONER? 1. It will also include the psychological and social information regarding the probationer. Likewise. and if custodian cannot produce the petitioner. comply with a program of payment of civil liability to the victim of his heirs. on a recognizance of a responsible member of a community who shall guarantee his appearance whenever required by the court. if he cannot post a bond. a filing of petition for probation still within the period to appeal. police records. the aggrieved party and other persons who may know the petitioner and all other matters material to the petition. when required for that purposes. WHAT ARE THE MANDATORY CONDITIONS OF PROBATION? a. and may include the program for supervision and suggested terms of conditions of probation and a recommendation either to deny or grant the probation. undergo medical. EFFECT OF FILING OF PETITION FOR PROBATION Upon filing of petition for probation. 2. statement of defendants. prior to the promulgation of decision of conviction is out on bail. evaluation of the petitioner. he may be allowed temporary liberty. if he is under detention. refrain from visiting houses of ill-repute. PENDING RESOLUTION OF PETITION. he may be allowed on temporary liberty under his bail filed in said case. To present himself to the probation officer concerned for supervision within 72 hours from receipt of said order and b. abstain from drinking intoxicating beverages to excess. or in short within the period to appeal otherwise the judgment shall become final and the accused shall be deemed to have waived his right to probation. WHAT ARE THE OTHER CONDITIONS OF PROBATION? cooperate with a program of supervision. meet his family responsibilities. the custodian on recognizance shall be held in contempt of court. suitability for probation. nor to explain his failure to produce the petitioner.c. devote himself to a specific employment and not to charge said employment without prior written approval of the probation officer. 4 . upon motion. the court shall suspend the execution of sentence. his potential for rehabilitation. if the accused. psychological or psychiatric examination and treatment and/or enter and remain in a specific institution. pursue a prescribed secular study or vocational training. attend or reside in a facility established for instruction or recreation of persons on probation. IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE. The findings should be drawn from the court records. to report to the probation officer at least once a month during the period of probation. that is within fifteen days from date of promulgation shall be deemed a withdrawal of the appeal. the filing of a petition for probation shall be deemed a waiver of the right to appeal and in case an appeal is made immediately after conviction.
whenever such disclosure may be desirable or helpful to them. WHO ARE DISQUALIFIED TO UNDERGO PROBATION Those sentenced to serve a maximum term of imprisonment of more than six years. and satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. Grant of Probation.permit the probation officer or an authorized social worker to visit his home and place of work. 4. after it shall have convicted and sentenced a defendant. Those convicted of any offense against the security of the state. . as the penalty is probationable. Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one moth and one day and/or a fine of not less than P200.00. the permission of the court must likewise be sought.Subject to the provisions of this Decree. EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION If the accused appeals his conviction for the purpose of totally reversing his conviction. Those convicted of RA 9156. as he believes the penalty is excessive or wrong. not to exceed six years. the probation shall not exceed two years. on motion. If for more than thirty (30) days. In all other cases. 29. AMENDMENT TO SECTION 4 OF PD 968: "Sec. plant trees ( see circular of the SC ) RULES ON OUTSIDE TRAVEL OF PROBATIONER A probationer who desires to travel outside the jurisdiction of the city or provincial probation officer for not more than 30 days. suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. In case the penalty is fine. and the appellate court sustains the accused may still apply for probation. An appeal therefore. m. and upon application by said defendant within the period for perfecting an appeal. Those who have been once on probation under the provisions of this decree. has already been abandoned. the trial court may. An appeal therefore. to overturn the entire decision or only with respect to penalty is a waiver to probation. reside at premises approved by the court and not to change his residence w/o prior written approval. 5 . or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant. Those convicted of violation of election laws. the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. PERIOD OF PROBATION If the probationer has been sentenced to an imprisonment of not more than one year. has already been abandoned. he is deemed to have waived his right to probation. CONFIDENTIALITY OF RECORDS OF PROBATION The investigation report and the supervision and history of a probationer obtained under PD No. Any government office may ask for the records of probation from the court for its official use or from the administrator. aside from the permission of the parole and probation officer. PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS. 968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned the court which granted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer. The rule that if the accused appeals his conviction only with respect to the penalty. MODIFICATION OF CONDITION OR PERIOD OF PROBATION The court. Sec. to overturn the entire decision or only with respect to penalty is a waiver to probation. the permission of the parole and probation officer must be sought. The penalty of imprisonment ranging from six months and one day to six years and a fine ranging from hundred to six thousand pesos shall be imposed upon any person who violates Section 17 hereof. irrespective of its purpose. irrespective of its purpose.
If the decision of conviction has become final and executory. "Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.. vs. 219 SCRA 78) EFFECT OF FILING PETITION FOR PROBATION. Probation is a major step taken by our Government towards the deterrence and minimizing of crime and the humanization of criminal justice. 215 SCRA 526) therefore a petition for probation may be denied by the Court. MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE 6 .S. humanity. In line with the public policy behind probation. Alconcel. this discretion is to be exercised primarily for the benefit of organized society and only incidentally for the benefit of the accused. as the more dangerous type of criminals should be. the first reason given by the respondent judge for his denial of the petition for probation that. REMEDY CERTIORARI Although an order denying probation is not appealable. Reason: it does not involved imprisonment or fine. C. (Tolentino v. C.A. 4/28/83) PROBATION IS NOT A RIGHT BUT A PRIVILEGE Probation is a mere privilege and its grant rests solely upon the discretion of the court. as measured by the penalty imposed.R. a person who was sentenced to destierro cannot apply for probation. ORDER DENYING PROBATION NOT APPEALABLE. as the law so ordains the offender is not such a serious menace to society as to be wrested away therefrom. (Pablo Bernardo v. more than by its nature. That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. However. 4/6/95). Hence.. "probation will depreciate the seriousness of the offense committed" would thus be writing into the law a new ground for disqualifying a first-offender from the benefits of probation. the judgement is not executory until the petition for probation is resolved. It is not served by a harsh and stringent interpretation of the statutory provisions. in the case at bar. Cruz-Pano.Provided.A." Thus. C. and compassion. An application for probation shall be filed with the trial court. As aptly noted in U. (Santos v. the accused is barred from filing a Petition for Probation (Pablo Francisco v. No. The accused must file a Petition for Probation within the period for appeal. WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT A judgment of conviction becomes final when the accused files a petition for probation. Even if a convicted person is not included in the list of offenders disqualified from the benefits of a decree. 63400.. By the relative lightness of the offense. the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. The main criterion laid down by the Probation law in determining who may be granted probation is based on the penalty imposed and not on the nature of the crime. supra). (PD 1990) JURISPRUDENCE MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION. (Yusi v Morales. G. Balagot. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of Francisco Abueg v. 3/18/83). Appeal and probation spring from the same policy considerations of justice. "An order granting or denying probation shall not be appealable. The filing of the application shall be deemed a waiver of the right to appeal. the grant of probation is nevertheless not automatic or ministerial. Durken.A. the right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. 1/17/83) TIMELINESS OF FILING APPLICATION FOR PROBATION UNDERLYING PHILOSOPHY OF PROBATION The underlying philosophy of probation is indeed one of liberality towards the accused.
9 in relation to Art. Court and police records show that a significant number of murders. he was charged with having defamed the four (4) private complainants on four (4) different. separate days. Petitioner is exhorted to conduct himself beyond reproach at all times and to live strictly according to his oath and the Code of Professional Responsibility." while "peddlers of drugs are actually agents of destruction. rapes. 1997. And. (OCA v. which demands of those in its service the highest degree of morality.. A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE PROBATION Drug-pushing. Consequently. The deserve no less than the maximum penalty [of death]. It is not what we might call a 'contained' crime whose consequences are limited to that crime alone. Those sentenced to a maximum term not exceeding six (6) years are not generally considered callous. Bar Matter No. No. modesty or good morals" including "acts of baseness. 968. "often breeds other crimes." The image of the judiciary is tarnished by conduct. vileness. like swindling and bigamy. Hence." and in each of the four (4) informations. (Francisco v. He may seek to reenter government service. Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based on the assumption that those sentenced to higher penalties pose too great a risk to society. has been variously condemned as "an especially vicious crime. and similar offenses have been committed by persons under the influence of dangerous drugs. March 19. peaceful and civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency in moral character and atone for the unfortunate death of Raul I. the law does not intend to sum up the penalties imposed but to take each penalty. an act which. The reform and rehabilitation of the probationer cannot justify his retention in the government service. CA." Indeed nothing is more depraved than for anyone to be a merchant of death by selling prohibited drugs.' While spreading such drugs. the drug-pusher is also abetting. through his agreed and irresponsibility. taking judicial notice of the general tendency of the youth to be rash. The Court is prepared to give him the benefit of the doubt. honesty. "[t]he Court sincerely 7 . separately and distinctly with the others. Camaligan. or while they are 'high. contrary to the accepted rule of right and duty between man and man. The Probation Law. as this Court said in one case. as each prison term imposed on petitioner was probationable. Let it be stressed to herein petitioner that the lawyer's oath is not a mere formality recited for a few minutes in the glare of flashing cameras and before the presence of select witnesses. to paraphrase Mr. he was still eligible for probation. and not necessarily those who have been convicted of multiple offenses in a single proceeding who are deemed to be less perverse. hard core criminals. not just because of their demonstrated capability for serious wrongdoing but because of the gravity and serious consequences of the offense they might further commit. as amended) is to save valuable human material. even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case. temerarious and uncalculating. the commission of other crimes. it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. and thus may avail of probation VIOLATION OF RA 6425. It cannot be repeated too often that a public office is a public trust. While indeed the purpose of the Probation Law (P. the basis of the disqualification is principally the gravity of the offense committed and the concomitant degree of penalty imposed. but only after he has shown that he is fit to serve once again. 25 of The Revised Penal Code. as a crime. or depravity in the private and social duties which a man owes to his fellowmen or to society in general. 8/22/96) PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES Petitioner Arthur M. 712. Librado 260 SCRA 624. they become a grave menace to the safety of law-abiding members of society. Justice Padilla's comment in the sister case of Re: Petition of Al Argosino To Take The Lawyer's Oath." There is no doubt that drug-pushing is a crime which involves moral turpitude and implies "every thing which is done contrary to justice." "one of the most pernicious evils that has ever crept into our society. which involves moral turpitude. 4/16/95) REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT FOR PROBATION. as amended." Evidently. what is worse. Cuevas.D. Jr. as alleged in the information(s).'s discharge from probation without any infraction of the attendant conditions therefor and the various certifications attesting to his righteous." For those who become addicted to it "not only slide into the ranks of the living dead. disqualifies only those who have been convicted of grave felonies as defined in Art.
A "Fence" includes any person. Jr. or shall buy and sell. sell or dispose of. a law was enacted to also punish those who buy stolen properties. keep. BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW Presidential Decree No. AND ITS PENALTIES: ANTI-FENCING LAW OF 1979 (PD NO. the "business" of The person liable is the one buying. 8 The penalty of prision correccional in its minimum and medium periods. shall buy. b.000 pesos. or should be known to him. GR 111426. shall buy receive. WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED "Fencing" is the act of any person who. If the accused violates the condition of the probation before the issuance of said order. possess. Their penalty depends on the value of the goods or items stolen or bought: a. adding one year for each additional 10. with intent to gain for himself or for another. terminating the probation. 1979. conceal. ipso facto. 1/27/98) EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION. to have been derived from the proceeds of the crime of robbery or theft. terminate the probation. The law provide for penalty range for persons convicted of the crime of fencing. the one liable is the president or the manager or the officer who knows or should have know the fact that the offense was committed. With the existence of "ready buyers". . or shall buy and sell. 000 pesos.hopes that" Mr. with intent to gain for himself or for another. or in any manner deal in any article. 1979. or in any other manner deal in any article. possess. the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.000 pesos. People. if the value of the property involved is more than 12. conceal. Martinez. object or anything of value which he knows. sell or dispose of. or to have been derived from the proceeds of the crime of robbery or theft. association corporation or partnership or other organization who/ which commits the act of fencing. In such cases. item. Hence. The penalty of prision mayor. but the total penalty which may be imposed shall not exceed twenty years.. Jr. the penalty provided in this paragraph shall be imposed in its maximum period. 1612) DEFINITION Fencing as defined in Sec. ORDER OF COURT REQUIRED The mere expiration of the period for probation does not. 1612 or commonly known as the AntiFencing Law of 1979 was enacted under the authority of therein President Ferdinand Marcos. keep. if the value of the property involved is more than 200 pesos but not exceeding 6. Probation is not co-terminus with its period. association or firm. 1612 (Anti-Fencing Law) is “the act of any person who. Cuevas.000 pesos but not exceeding 12. The law took effect on March 2. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently formulated and it took effect on June 15. 2 of PD No. acquire.. item. partnership. 181 SCRA 459). (In Re: Cuevas. The penalty of prision correccional in its medium and maximum periods. WHO ARE LIABLE FOR THE CRIME OF FENCING. robbing and stealing have become profitable. For if there are no buyers then the malefactors could not profit from their wrong doings. object or anything of value which he knows or should be known to him. 11 July 94). firm. If the fence is a corporation. As a lawyer he will now be in a better position to render legal and other services to the more unfortunate members of society". (Dizon-Pamintuan vs. THE PURPOSE OF ENACTING PD 1612 The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government and private properties. c. there must be an order from the Court of final discharge. concealing and selling the stolen items. "will continue with the assistance he has been giving to his community.000 pesos but not exceeding 22. if the value of the property robbed or stolen is more than 6. the probation may be revoked by the Court (Manuel Bala v. acquire. keeping. if the value of such property exceeds the latter sum.000 pesos. receive.
3. Failure of which makes the owner or manager liable as a fence. 4.d. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. if necessary. require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition. to submit an initial affidavit within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits once every fifteen (15) days within five (5) days after the period covered. article. Full list of articles to be sold or offered for sale including the time and place of sale c. items. No fee will be charged for the issuance of the clearance/permit. 2. manager or responsible officer in having in stock used secondhand articles. to give effect to the purpose of the law in putting an end to buying and selling stolen items. "Used secondhand article" shall refer to any goods. if the value of the property involved is over 50 but not exceeding 200 pesos. "Station Commander" shall refer to the Station Commander of the Integrated National Police within the territorial limits of the town or city district where the store. DUTIES AND RESPONSIBILIES OF STATION MANAGER AND OWNER OF SECONDHAND STORES 1. which shall contain: a. partnership. complete inventory of such articles including the names and addresses from whom the articles were acquired. WHAT MAYBE REQUIRED BY THE STATION COMMANDER OR OWNER OF SECONDHAND STORES OR DEALERS The Station Commander may. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents. 5. The Station Commander shall require the owner of a store or the President. "Store". The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos. establishment or entity dealing in the buying and selling of used secondhand articles is located. The penalty of arresto mayor in its medium period to prision correccional in its minimum period. object or anything of value obtained from an unlicensed dealer or supplier. f. association or any other entity or establishment not licensed by the government to engage in the business of dealing in or of supplying the articles defined in the preceding paragraph. corporation. as defined in paragraph hereof. shall file an application with the Station Commander concerned. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons. e. Those who wish to secure the permit/clearance. Place where the articles are presently deposited. 2. address and other pertinent circumstances b. firm. "establishment" or "entity" shall be construed to include any individual dealing in the buying and selling used secondhand articles. to show satisfactory proof of the legitimacy of acquisition of the article. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired. DEFINITION OF TERMS The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell used or secondhand items and it provided for the definition of the following terms: 1. subject to the following conditions: 9 . that may result to the cancellation of business license. Failure to secure clearance/permit shall be punished as a fence. Include the receipt or document showing proof of legitimacy of acquisition. regardless of whether the same has actually or in fact been used. name. RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND GOODS The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or permit to sell "used second hand items". which states: a. PROCEDURE FOR SECURING PERMIT/CLEARANCE The Implementing Rules provided for the method of obtaining clearance or permit. b. "Unlicensed dealer/supplier" shall refer to any persons. c. 3.
intent to gain for himself or for another. The accused knows or should have known that the said article. Cebu City. If after 15 days. 11 July 94) DISCUSSION OF THE ELEMENTS. 1. object or anything of value which has been the subject of robbery or thievery. The 10 . the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. Mere possession of any good. at the expense of the one seeking clearance/permit. 3. possessing. on the part of the accused. B. (Dizon-Pamintuan vs People. receiving. If before expiration of the same period for the publication of the notice or its posting. receives. whose decision may be appealed with the Minister (now Secretary) of National Defense. in this case. the crime of robbery or theft should have been committed before crime of fencing can be committed. Court of Appeals. GR 111426. The person committing the crime of robbery or theft. selling or disposing or in any manner deals with stolen items. buying. within seventy-two (72) hours from receipt of the application. or object or anything of value has been derived from the proceeds of the crime of robbery or theft. or buys and sells. establishment or entity is located or. The decision of the Director can still be appealed top the Director-General. As pointed out in the case of People vs. the party seeking the clearance/permit shall. Esguerra. vs.M. concealing. item. A crime of robbery or theft has been committed. item. establishment or other entity seeking the clearance/permit. object or anything of value. the Station Commander shall issue the clearance or permit sought. no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not strong enough to convict him (read this case). 6. stating: > articles acquired from unlicensed dealer or supplier > the names and addresses of the persons from whom they were acquired > that such articles are to be sold or offered for sale to the public at the address of the store. PRIMAFACIE EVIDENCE OF FENCING. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. Juanito Lim stored and kept in his bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims owned by Loui Anton Bond. It is thus illustrated in the case of Lim vs.FENCING LAW. As regards the first element. acquiring. buys. item. However. As in the case of D. The Station Commander shall. If there are no newspapers in general circulation. The accused. upon expiration of the period of publication or of the notice. The accused know or should have known that the goods were stolen.000. act thereon by either issuing the clearance/permit requested or denying the same. Lucero was charged with violation of the Anti-Fencing Law. no claim is made to any of the articles enumerated in the notice. rules and regulations. acquires. within 10 days. Consequently. may or may not be the same person committing the crime of fencing. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of the case and comply with such procedure as may be proper under applicable existing laws. Lucero there was first a snatching incident. keeps. stated that it was not impossible for her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum. the court in convicting Norma Adriatico. 4. Maripaz Bernard Ramolete was snatch in the public market of Carbon. and this should have apprised Norma of the possibility that they were stolen goods. In People vs. ELEMENTS OF VIOLATION OF THE ANTI. A. if the Station Commander is not satisfied with the proof of legitimacy of acquisition. it shall appear that any of the articles in question is stolen property. which decision is final. in a newspaper of general circulation for two consecutive days. firm. or disposes. The second element speaks of the overt act of keeping. where the accused. and 4.a. 2. There is. which has been derived from the proceeds of the said crime. sells. article. possess. C. 5. he shall cause the publication of the notice. where the articles in his possession are to be sold or offered for sale.00 to snatchers Manuel Elardo and Zacarias Pateras. post a notice daily for one week on the bulletin board of the municipal building of the town where the store. conceals. Denial of an application shall be in writing and shall state in brief the reason/s thereof. within 15 days.. Inc. who is not a principal or accomplice in the commission of the crime of robbery or theft. where the bag of Mrs. Adriatico. quantities of phelonic plywood were stolen and the Court held that qualified theft had been committed. 7. in the case of an individual. Articles held in restraint shall kept and disposed of as the circumstances of each case permit. or in any manner deals in any article. Consunji. where she lost a Chinese Gold Necklace and pendant worth some P4. The snatchers sold the items to Manuel Lucero. 8. shall be prima facie evidence of fencing.
’’ WHEN POSSESSION UNDER CERTAIN CIRCUMSTANCES SUCH AS DISPLAYING THE SAME IN THE SHELVES IS AN ACT OF FENCING. However. the only inquiry is that. WHEN THERE IS NO PROOF THAT THE ACCUSED BOUGHT OR SOLD ARTICLES KNOWING THE SAME TO BE STOLEN. The Court in convicting Ernesto Dunlao Sr. Since Sec.700. which business is very well exposed to the practice of fencing. item. It follows that the accused is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The court held that there is no proof that the spouses Muere. intent to gain is a mental state. (Dunlao v. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial. INTENT TO GAIN NEED NOT BE PROVEN IN ANTI-FENCING LAW. Intent to gain is a mental state. article.000. the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of ever seeing. Consunji. had knowledge of the fact that the stereo was stolen. (Dunalao. 10/18/94).R. would let go of such opportunities for a clean profit at the expense of innocent owners. Inc. Likewise. as cited in US v. Muere (G. Go Chico. Inc. The presumption does not offend the presumption of innocence enshrined in the fundamental law. owned respectively by Eduardo Ching and the spouses Sy. thus they had no reason to suspect that the said items were products of theft.I. which is a known hardware store in Caloocan. intent is immaterial.12902. 14 Phils. noted that the stolen articles composed of farrowing crates and G. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading. In the case of People v. 11 . 134) When the act is prohibited by law. DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL IN ANTI-FENCING. owned by the spouses Muere. 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D. On the same vein.. object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing”. buying the other articles. 1612 creates a presumption of fencing and prescribes a higher penalty based on the value of the property. Sr. pipes were found displayed on petitioner's shelves inside his compound. as the keeping of stolen items for subsequent selling.approximate total value of the jewelry were held to be at P20.00. the existence if which is demonstrated by the overt acts of the person. The state may thus choose to prosecute him either under the RPC or PD NO. the third element did not exist in the case of D. (supra) MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING. The rule on the subject is that in acts mala prohibita. Makati. intent to gain need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. 5 of PD NO. . 1612 expressly provides that “mere possession of any good. 08/22/96) WHEN THEFT OR ROBBERY AS FIRST ELEMENT WAS NOT PROVEN. the third element was not proven. These actions are not indicative of a conduct of a guilty person. much more. v. As noted by the trial court: ". Consunji. A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612 OR BOTH. 1612 although the preference for the latter would seem inevitable considering that fencing is a malum prohibitum. The store is engaged in buying and selling of second hand merchandise located at Pasay Road. Esguerra. has the law been violated? (in Gatdner v. This requires more than ordinary case and caution in dealing with customers. THUS THE THIRD ELEMENT IS NOT PRESENT. CA) again. It is the act itself which constitutes the offense and not the motive or intent. The court also considered the fact that Norma engage in the business of buying and selling gold and silver. (Consunji v. later found to be in the premises of MC Industrial Sales and Seato trading Company. The said stereo was bought from Wynn's Audio. dolo or deceit is immaterial in crimes punishable by special statute like the Anti-Fencing Law. People. and PD No. and Norma having bought it from Crisilita for only P2. the existence of which is demonstrated by the overt acts of person. an existing establishment. The mental state is presumed from the commission of an unlawful act.M. Human experience belies her allegations as no businessman or woman at that. CA. .M.. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. The crimes punishable by special laws are called "acts mala prohibita". The last element is that there is intent to gain for himself or for another.
which check is subsequently dishonored by the drawee bank for insufficiency of funds. The law on fencing does not require the accused to have participation in the criminal design to commit or to have been in any wise involved in the commission of the crime of robbery or theft. sell or dispose of.. to have been derived from the proceeds of the crime of robbery or theft. Participation of each felon. by means of violence against or intimidation of any person.. or would have been dishonored for the same reason had not the drawee. shall buy. differs in point in time and degree but both invaded one's peaceful dominion for gain. one being the robber or the thief or the actual perpetrators." Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing. or in any other manner deal in any article. any person who makes or draws and issues any check to apply on account or for value. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. SEC. with intent to gain for himself or for another. or using force upon anything. (Dela Torre v. or shall buy and sell. keep. ESSENCE OF VIOLATION OF PD 1612. 12/22/97) PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-FENCING The law does not require proof of purchase of the stolen articles by petitioner. FENCING AS A CRIME INVOLVING MORAL TURPITUDE. Laguna in the last May 8. without any valid reason. for the payment of such check in full upon its presentment. This signifies moral turpitude with moral unfitness. of persons running for elective position -"Sec. CA. and the other as the fence. 12 . or credit. In the case of Dela Torre. GR 128369. DISTINCTION BETWEEN ROBBERY AND FENCING Robbery is the taking of personal property belonging to another. fencing is the act of any person who. (Caoili v. with intent to gain. GR 128369. It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing evidence. 40 of the Local Government Code. (Supra) Both crimes negated the principle of each person's duty to his fellowmen not to appropriate things that they do not own or return something acquired by mistake or with malice. possess. object or anything of value which he knows. ordered the bank to stop payment. (Caoili v CA. as mere possession thereof is enough to give rise to a presumption of fencing. receive. 1995 elections because of the fact of the disqualification under Sec. item. COMELEC 07/05/96) Moral turpitude can be derived from the third element . or shall be known to him. (People v De Guzman.accused knows or should have known that the items were stolen. knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank. 22 BOUNCING CHECKS LAW ACTS PUNISHABLE IN BP 22 a. he was declared disqualified from running the position of Mayor in Cavinti. Section 2 thereof requires that the offender buys or otherwise acquires and then sells or disposes of any object of value which he knows or should he known to him to have been derived from the proceeds of the crime of robbery or theft. 40 Disqualifications . In violation of the Anti-Fencing Law. 12/22/97) BATAS PAMBANSA BLG. conceal. actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. 2 OR ANTI-FENCING PD 1612. On the other hand.(a) Those sentenced by final judgement for an offense involving moral turpitude. acquire. GR 77368).DISTINCTION BETWEEN FENCING AND ROBBERY.
Nevertheless. we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence. for which. the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22. closed his account. CHECKS ISSUED IN PAYMENT OF INSTALLMENT STILL IN VIOLATION OF B. (Gutierrez v Pallatao. delivered or uttered in the Philippines. AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE In the case of People vs Nitafan. AN INDISPENSABLE REQUISITE FOR PROSECUTION Section 3 of BP 22 requires that the holder of the check or the drawee bank. or attached thereto the reason for the drawee’s dishonor or refusal to pay the same. despite this incorrect interpretation of a rule on evidence. CHECK DRAWN AGAINST A DOLLAR ACCOUNT IN FOREIGN COUNTRY IS STILL A VIOLATION OF B. CA) GUARANTEE CHECKS.P. Clearly. be offered in evidence because the gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds. c. must notify the drawer of the check that the same was dishonored. the drawer is liable if the checks were drawn against insufficient funds. and upon notice the drawer has five days within which to make arrangements for the payment of the check or pay the same in full. If the drawee bank fails to do so. prosecution for violation of BP 22 may not prosper. In this regard. even if the same is payable outside of the Philippines (De Villa v. it is indispensable that the checks she issued for which she was subsequently charged. he cannot be held administratively liable. if the check is presented to the bank and the same was dishonored due to insufficiency of funds. as a general rule.P. 22 Checks issued in payment for installment covered by promissory note and said checks bounced. if the same is presented within ninety days from date of issuance. DUTY OF THE BANK AND RULE IN CASE OF DISHONOR 13 . (Caram Resources v. Any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. Any person who issue any check whose account already closed whether the drawee knows that his account is closed or not. upon signing of the promissory note. 215 SCRA. DRAWER IS NOT LIABLE IF THE LESSOR WHO IS RECIPIENT OF GUARANTEE CHECK PULLED OUT OF THE LOANED EQUIPMENT.b. 22 AS LONG AS THE CHECK IS DELIVERED ON THE PHILS. it was error to convict complainant on the basis of her letter alone. Contreras) In this case. Rather. it is at most an error in judgment. shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety days from date appearing thereon. it is dishonored by the drawee bank. 8/8/98) NOTICE. especially that the drawer. A check drawn against a dollar account in a foreign country is still violative of the provisions of BP 22 so long as the check is issued. HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22 To establish her guilt. AND IF IT IS PAYABLE OUTSIDE OF THE PHILS. we do not find the same as sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an unjust decision. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not. for which reason. DUE TO STOP PAYMENT The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. printed or stamped in plain language thereon. the Judge was even held administratively liable. DUTY OF THE DRAWEE BANK The drawee bank has the duty to cause to be written. Said check is still with consideration.
The mere act of issuing a worthless check is punishable. i. 81 Phil. The Information filed herein specifically alleges that the crime was committed in San Fernando Pampanga and therefore within the jurisdiction of the Court below. GR 119000. ordered the bank to stop payment. but which checks is subsequently dishonored. deceit and damage are essential elements of the offense and have to be established with satisfactory proof to warrant conviction. even knowing that he has no funds or insufficient funds in the bank is not liable. G. the elements of deceit and damage are neither essential nor required. DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22 14 .R. Nos. And. as pointed out in the Manzanilla case. 22 are (a) the making. Villar. Accordingly. L-27126. 75217-18. ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IS STILL A VIOLATION OF BP 22. (Uy v Court of Appeals. May 29. drawing and issuance of any check to apply to account or for value. it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds. Paragraph 2 of Section 1 of BP 22 provides: The same penalty shall be imposed upon any person who having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check. if the lessor of the equipment pulled out the loaned equipment. (Lazaro vs CA. 22 IN ISSUING A CHECK WITH SUFFICIENT FUNDS? Yes. December 11.. 1987). Bellosillo. cited in Tuzon vs. 1975. Veridiano. of the proper town of Pampanga). it is dishonored by the drawee bank. the elements of B. No. drawer or issuer knows at the time of issuance that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga (now M. when accused issued a check as warranty deposit for lease of certain equipment. Offender cannot claim good faith for it is malum prohibitum. regardless of the intent of the parties. It is true that the offense is committed by the very fact of its performance (Colmenares vs. The drawer has no obligation to make good the check because there is no more deposit to guaranty. therefore. PREJUDICE OR DAMAGE IS NOT NECESSARRY The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum prohibitum. and that the Bouncing Checks Law penalizes not only the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing check (People vs. The agreement surrounding the issuance of the checks need not be first locked into. The case.P. Hon. which are controlling (Arches vs. et al. However. which is an essential ingredient of the offense is by itself a continuing eventuality. makes the person who issued the check liable.T.R. shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon. 1997) RULES OR JURISDICTION IN RELATION TO THE COURTS WHERE BP 22 CASES MAYBE FILED In respect of the Bouncing checks case. 66 SCRA 235). for which reason. Cruz. (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer. since the law has provided that the mere issuance of any kind of check. the offense also appears to be continuing in nature. Hon.. September 11. 132 SCRA 523). prejudice or damage is not prerequisite for conviction. therefore. People of the Philippines. whether the check is intended merely to serve as guarantee or deposit. Blg. G. GR 105461). 190. could have been filed also in Bulacan.P. (b) the maker. August 28. As held in Que vs. II.e. July 28. jurisdiction or venue is determined by the allegation in the Information. 1970. L-62243. Manzanilla. 33 SCRA 186). In the crime of estafa. Rather.C. No. without valid reason. In prosecutions for violation of BP 22. In the case of Magno vs CA. 1987 "the determinative factor (in determining venue) is the place of the issuance of the check". No. For violation of the Bouncing Checks Law. CAN A PERSON BE HELD LIABLE FOR VIOLATION OF B. whether the accused be within one territory or another (People vs. 66003-04. Nos. L-27410. and. on the other hand.
Manzanilla. (Lim Lao v CA. Blg. shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon. (Ibasco vs CA. however. Moreover. supra. for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition all-embracing. As defined by the statute." The Court of Appeals affirmed this factual finding. reiterated in People vs. There is a prima facie presumption of the existence of this element from the fact of drawing. As to the second error wherein the petitioner asserted that the checks were issued "as a guarantee only for the feeds delivered to him" and that there is no estafa if a check is issued in payment of a pre-existing obligation. is. It is important to stress.P. 167 SCRA 487. at the time the same were issued. it was held in People v. Hon. Rodrigo. the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B. 261 SCRA 572) ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22 Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. . issuing or making a check. Manzanilla. It further stressed that B. Grospe. knowledge. funding of checks was the sole responsibility of the Treasury Department. 2089-R (688). the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No.This ruling was reiterated in the case of Lim vs. In the case at bench it appears that the three (3) checks were deposited in Lucena City. the payment of which was subsequently refused for insufficiency of funds.P. (Lim Lao v CA 274 SCRA 572) LACK OF ADEQUATE NOTICE OF DISHONOR. Under the organizational structure of Premiere Financing Corporation. . knowing at the time issue that he does not have sufficient funds' or having sufficient funds in or credit with the drawee bank . 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. for which reason it is dishonored by the drawee bank. The notice of dishonor may be sent by the offended party or the drawee bank. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only. Blg. supra. 6/20/97) ANTI-GRAFT & CORRUPT PRACTICES ACT (RA NO 3019) 15 . that jurisdiction or venue is determined by the allegations in the information. and even at the time the checks were subsequently dishonored by the drawee bank. this finding is binding on this Court. This being the case. her duties were limited to the marketing department of the Binondo branch. A DEFENSE There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. that as "violation of the bad checks act is committed when one 'makes or draws and issues any check [sic] to apply on account or for value. that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. The scope of petitioner's duties and responsibilities did not encompass the funding of the corporation's checks. The allegation in the information under consideration that the offense was committed in Baguio City is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of Baguio City. we ruled in the same case of People v. a continuing eventuality. (Lim Lao v CA 274 SCRA 572) WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE After a thorough review of the case at bar. by itself. Hon." "knowledge" is an essential ingredient of the offense charge. where it was held: Besides. whether the accused be within one territory or another. The trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress. the Court finds that Petitioner Lina Lim Lao did not have actual knowledge of the insufficiency of funds in the corporate accounts at the time she affixed her signature to the checks involved in this case. Pursuant to prevailing jurisprudence.
Knowingly approving or granting any license. that fact shall be a ground for dismissal or removal. even if he votes against the same or does not participate in the action of the board. or in which he is prohibited by the Constitution or by any law from having any interest. Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. evident bad faith or gross inexcusable negligence. Causing any undue injury to any party. panel or group of which he is a member. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (i) (b) (c) (d) (k) Divulging valuable information of a confidential character. in connection with any contract or transaction between the Government and any other part. for personal gain. privilege or benefit in favor of any person not qualified for or not legally entitled to such license. privilege or advantage. an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. Directly or indirectly requesting or receiving any gift. or allowing himself to be persuaded. including the Government. MEANING OF “CAUSING UNDUE INJURY” (e) ( f ) Neglecting or refusing. for himself or for any other person. induced. after due demand or request. acquired by his office or by him on account of his official position to unauthorized persons. from any person interested in the matter some pecuniary or material benefit or advantage. permit. UNEXPLAINED WEALTH. and which exercises discretion in such approval. or having a material interest in any transaction or act requiring the approval of a board. Directly or indirectly becoming interested. percentage. whether in his name or in the name of other persons. or irregular transaction or acts by the board. present or other pecuniary or material benefit. Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage shall be exempted from the provision of this act.(g) ANTI-GRAFT AND CORRUPT PRACTICES ACT (h) Corrupt practices of public officers. inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful. has secured or obtained. directly or indirectly. without prejudice to Section thirteen of this Act. from any person for whom the public officer. in consideration for the help given or to be given. whether or not the public officer profited or will profit thereby. 16 . MEANING Prima facie evidence of and dismissal due to unexplained wealth. Directly or indirectly requesting or receiving any gift. (a) Persuading. into any contract or transaction manifestly and grossly disadvantageous to the same. or benefit. for himself or for another. or giving any private party any unwarranted benefits. in any manner or capacity. share. any Government permit or license. ( j) Entering. or releasing such information in advance of its authorized release date. panel or group. a public official has been found to have acquired during his incumbency. inequitable. to act within a reasonable time on any matter pending before him for the purpose of obtaining. contract or transaction in connection with which he intervenes or takes part in his official capacity. panel or group to which they belong. or will secure or obtain. without sufficient justification. or of a mere representative or dummy of one who is not so qualified or entitled. wherein the public officer in his official capacity has to intervene under the law. committee. or influenced to commit such violation or offense. permit. advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality. present. on behalf of the Government. Director or indirectly having financing or pecuniary interest in any business. If in accordance with the provisions of RA 1379.
Book II. Corrupt practices of public officers. VIZ: a. the said officer has neglected or has refused to act without sufficient justification after due demand or request has been made upon him. advantage or preference is not an indispensable element of causing any undue injury to any part.In addition to acts or omissions of public officers already penalized by existing law. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting license or permits or other concessions. evident bad faith or gross inexcusable negligence. or giving any private party any unwarranted benefits. et al. WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY. the public officer committed the prohibited act during performance of his official duty or in relation to his public position. advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. the Supreme Court has ruled that the offender in causing undue injury does not refer only to those who are in charge of giving permits. such failure to so act is for the purpose of obtaining directly or indirectly from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party or discriminating against another. or any offense involving fraud upon government or public funds or property is filed in court. LETTER (e) OF RA 3019. Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. 17 . the c. reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him. Causing any undue injury to any party. 3. 3019 MANDATORY BUT COURTS ARE ALLOWED TO DETERMINE WHETHER INFORMATION IS VALID OR NOT It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to suspend any public officer against whom a valid information charging violation of this law. d. and d. the accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them. inexcusable negligence. the offender is a public officer. 151 SCRA 399). advantage or preference to such parties. ELEMENTS OF NEGLECT OF DUTY UNDER SEC. SUSPENSION UNDER R. Coronado v Sandiganbayan. The court trying a case has neither discretion nor duty to determine whether preventive suspension is required to prevent the (e). under the ordinary concept of “public officer” may not come within the term. the public officer acted with manifest partiality evident bad faith or gross.. Title 7 of the RPC. c. EVIDENT BAD FAITH. or gave any party any unwarranted benefit. We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which.A. his action caused undue injury to the government or any private party. including the Government. INCLUDES ALL PUBLIC OFFICERS INCLUDING THOSE THAT DOES NOT ISSUE LICENSE OR PERMIT OR CONCESSION. CAUSING UNDUE INJURY UNDER SEC. (Mejorada v Sandiganbayan. b. . 2 Dec. although there may be instances where both elements concur. 3 OF RA 3019 a. In Mejoroda v Sandiganbayan. 3.The act of giving any private party any unwarranted benefit. (Santiago vs Garchitorena. the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. b. OR INEXCUSABLE NEGLIGENCE Sec. 93). licenses or concessions but all acts of public officers or employees which have caused undue injury to others.
A. it will continue for ninety (90) days. G. No. Monzon. Hon. that the acts imputed to him do not constitute a specific crime (under R. his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case. G. No. (Conducto v. to the extent of cutting off the right to remove him therefor. . or refuse suspension of the latter and dismiss the case. because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties. No. Monzon 291 scra 619) RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY BUT NOT HIS CRIMINAL LIABILITY As early as 18 December 1967 in Ingco v.R. 21 SCRA 1292. Sanchez. No. that "The ruling. e. does not include reelection to office as one of them. 212 SCRA 768. at least insofar as a public officer is concerned. however. RA 3019 It is mandatory for the court to place under preventive suspension a public officer accused before it. L-23220. or correct any part of the proceeding which impairs its validity. Also. (Conducto v. preventive suspension will last for less than ninety (90) days only if the case is decided within that period. the Court held that "as applied to criminal prosecutions under RA 3019. but not the criminal. July 2. otherwise. MTJ-98-1147. 13. even if the alleged unlawful appointment was committed during Maghirang's first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term. 1998) PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC.M. MTJ-98-1147. July 2. (Bolastig vs." (Conducto v. therefore. which enumerates the grounds for extinction of criminal liability. 18 December 1967. This must be the reason why Article 89 of the Revised Penal Code. A.R. Imposition of suspension. therefore. it is only the President who may grant the pardon of a criminal offense. In the case of Rodolfo E. 17 this Court explicitly ruled that the re-election of a public official extinguishes only the administrative. and is injurious not only to a person or group of persons but to the State as a whole. Such a hearing is in accord with the spirit of the law. The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him. that — "when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any" — refers only to an action for removal from office and does not apply to criminal case. and the demands of public interest for a speedy determination of the issues involved in the case. A. The foregoing rule.accused from using his office to intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office. under the Constitution. . it becomes the ministerial duty of 18 . the Court held that "the rule is that a public official cannot be removed for administrative misconduct committed during a prior term since his reelection to office operates as a condonation of the officer's previous misconduct committed during a prior term. thus: The ruling. determined at a pre-suspension hearing. or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case.g. it was specifically declared in the case of Ingco vs. 110503 [August 4. Sanchez." Likewise. liability incurred by him during his previous term of office. Aguinaldo vs. finds no application to criminal cases . considering the serious and far-reaching consequences of a suspension of a public official even before his conviction.In the same case. however. 1998) (see also sec 13) PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM Judge Monzon's contention denying complainant's Motion for Suspension because "offenses committed during the previous term (is) not a cause for removal during the present term" is untenable. A pre-condition thereof is the existence of a valid information. that 'when the people have elected a man to office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any' refers only to an action for removal from office and does not apply to a criminal case" Clearly. 1994]. Luis Santos and Melvin Vargas. Monzon. All that is required is for the court to make a finding that the accused stands charged under a valid information for any of the above-described crimes for the purpose of granting or denying the sought for suspension. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act. But once a proper determination of the validity of the information has been made. Sandiganbayan. is not automatic or self-operative. that he has not been afforded the right to due preliminary investigation.M. 235 SCRA 103).
Mar." (Llorente v. The court has no discretion. to wit: (c) By way of broad guidelines for the lower courts in the exercise of the power of suspension from office of public officers charged under a valid information under the provisions of Republic Act No. the act for which he stands charged do not constitute a violation of the provisions of Republic Act No. July 30. vs. we have set out the guidelines to be followed by the lower courts in the exercise of the power of suspension under Section 13 of the law. Hence. or giving any private party any unwarranted benefits. evident bad faith or gross inexcusable negligence. Sandiganbayan.the court to forthwith issue the order of preventive suspension. 1998) GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES "In the leading case of Luciano. 40 SCRA 187). The mandatory suspension decreed by the act upon determination of the pendency in court or a criminal prosecution for violation of the Anti- Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious. Sandiganbayan. that he has not been afforded the right of due preliminary investigation. such show-cause order of the trial court would no longer be necessary. 1971. then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits. the concurrence of the following elements must be established beyond reasonable doubt by the prosecution: "(1) That the accused is a public officer or a private person charged in conspiracy with the former.' (Segovia v. (3) That he or she causes undue injury to any party. it imputes a dishonest purpose or some moral obliquity and conscious doing of 19 . (Segovia v. pursuant to section 13 of said Act. Mar. et al.. if the trial court. advantage or preference in the discharge of his official. What is indispensable is that the trial court duly hear the parties at a hearing held for determining the validity of the information. GR 122166. whether the government or a private party. 3019 or under the provisions of the Revised Penal Code on bribery. 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. 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. GR 124067. issuing the corresponding order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. and (4) That the public officer has acted with manifest partiality. evident bad faith or gross inexcusable negligence. (L-32950.g. to hold in abeyance the suspension of the accused official on the pretext that the order denying the latter's motion to quash is pending review before the appellate courts. administrative or judicial functions through manifest partiality. 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. 27. 11. (d) No specific rules need be laid down for such presuspension hearing. or he may present a motion to quash the information on any of the grounds provided in Rule 117 of the Rules of Court. finds the ground alleged in the quashal motion not to be indubitable. including the Government. and thereafter hand down its ruling. Sandiganbayan) WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. Mariano." To hold a person liable under this section. et al. say. it may be briefly stated that upon the filing of such information. and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. e. 3(e) of RA 3019 xxx xxx xxx (c) Causing any undue injury to any party. (2) That said public officer commits the prohibited acts during the performance of his or her official duties or in relation to his or her public positions. 1998) MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019 "Bad faith does not simply connote bad judgment or negligence. 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 the cited mandatory provisions of the Act. for instance. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
Thus. Such actions were measures taken by a superior against an erring employee who studiously ignored. directly or indirectly. whether it be for a fixed or indefinite period. Sandiganbayan) SUSPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS On the other hand. 3[f]. the neglect or refusal to act within a reasonable time is the criminal act. or the delay in his acting on them more properly falls under Sec. 8 NE 2nd Series 895. we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him." (Rios v. 2) Said officer has neglected or has refused to act without sufficient justification after due demand or request has been made on him. Neither may this Court convict petitioner under Sec. we find merit in petitioner's second assigned error. if not defied. further disquisition is not proper. Sandiganbayan. 10500. not the causing of undue injury. It contemplates a state of mind affirmatively operating with furtive design or some motive of self interest or ill will for ulterior purposes (Air France v. he refused to approve her sick-leave application because he found out that she did not suffer any illness. he refused to release the complainant's salary because the latter failed to submit her daily time record. 10501. and 4) Such failure to so act is 'for the purpose of obtaining. (Spiegel v Beacon Participations. 1007). evident bad faith was not appreciated because the actions taken by the accused were not entirely without rhyme or reason. 3[f]: "(f) Neglecting or refusing. Sandiganbayan) WHEN OFFENDER IS NOT LIABLE UNDER SEC. and he removed her name from the plantilla because she was moonlighting during office hours. it partakes of the nature of fraud. petitioner is not charged with a violation of Sec. his authority. an approved leave. 26. 18 SCRA 155." However. Accordingly. (f) OF RA 3019 It would appear that petitioner's failure or refusal to act on the complainant's vouchers. Under Section 63 (b) of the Local Government Code. 3) Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him. a breach of sworn duty through some motive or intent or ill will. Carrascoso. directly or indirectly. its elements are: "1) The offender is a public officer. 166-167). or discriminating against another. Evident bad faith connotes a manifest deliberate intent on the part of the accused to do wrong or cause damage. Hence. 10502 and 20 . (Llorente v. Set. after due demand or request. to act within a reasonable time on any matter pending before him for the purpose of obtaining. or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. from any person interested in the matter some pecuniary or material benefit or advantage in favor of an interested party. the informations in Criminal Cases Nos.a wrong. 3(e) BUT UNDER SEC. 1997) APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807). (Doromal v." In Jacinto. without sufficient justification. may be cancelled or shortened at will by the incumbent. 10499. His approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor General. from any person interested in the matter some pecuniary or material benefit or advantage. GR 129913. Sandiganbayan 177 SCRA 354) UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A GROUND TO DISMISS After a careful review of the facts and circumstances of this case. The Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single case filed against him." Here. 3[f] without violating his constitutional right to due process. "any single preventive suspension of local elective officials shall not extend beyond sixty (60) days. (Llorente v. the law's command that he "shall be suspended from office" pendente lite must be obeyed.
Thus. 24 the Court rejected the application of the mandatory death penalty to the rape of a 12-year old victim by the common-law husband of the girl's grandmother. relationship as an alternative circumstance under Article 15 of the Revised Penal Code. however. should no longer be applied in view of the amendments introduced by R. (People v. (People v. It may be pointed. (Tatad v. Deleverio) DEATH PENALTY LAW (RA 7659) PROSTITUTES CAN BE A VICTIM OF RAPE As to the suggestion that ANALIZA was a prostitute. Atop.10503 should be dismissed. "home" to him. even for a brief moment. in People v. relationship would still be an aggravating RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER THE PENALTY OF RECLUSION PERPETUA WAS IMPOSED TO SAME OFFENSE. It may not be his house. although the victims were killed while sleeping as guests in the house of another. the father-daughter relationship in rape cases. a retroactive effect. as among those named in the enumeration. Court's must not bring cases within the provision of a law which are not clearly embraced by it. Hence. no person who is not clearly within the terms of a statute can be brought within them. cannot absolve him of his liability for rape. First. the penalty imposable on accused then would not be death. but it is. that alone. Manyuhod. Sandiganbayan) circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). dwelling was appreciated. the penalty imposable upon 21 . prostitutes can be victims of rape. appreciated as an aggravating circumstance. assuming that Relanne's testimony in court would have confirmed what she narrated in her sworn statement (Exhibit "C"). is sheltered by the same roof and protected by the same intimacy of life it affords. The Court said: "It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. In view of the foregoing. Appellant is merely a step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA Since reclusion perpetua is a lighter penalty than life imprisonment. 15 OF THE RPC Clearly then. No act can be pronounced criminal which is not clearly made so by statute. Alfeche) WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. has been treated by Congress in the nature of a special circumstance which makes the imposition of the death penalty mandatory. The dwelling need not be owned by the victim. too." (People v. or between accused and Relanne. Balansit: "[O]ne does not lose his right of privacy where he is offended in the house of another because as [an] invited guest [or a housemaid as in the instant case]. no circumstance then attended the commission of the rape which could bring the crime under any provision of Article 335 which imposes a penalty higher than reclusion perpetua or of reclusion perpetua to death. Any reasonable doubt must be resolved in favor of the accused. Jr." (People v. so. No. 57 If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal Code.A. the stranger. In the recent case of People vs. we find it unnecessary to rule on the other issues raised by petitioner. 7659. even if it be conceded. He is entitled to respect even for that short moment. HE IS NOT CONSIDERED AN ASCENDANT UNDER RA 8353 AND RA 7659 The trial court has thus held incorrectly in considering appellant. as to him. Basa. but merely reclusion perpetua for. who is legally married to Roxan's natural grandmother. he. that without the foregoing amendment. in this case.) WHEN OFFENDER IS STEP GRANDPARENT. and considering the rule that criminal statutes with a favorable effect upon the accused have. Alfeche) REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. As aptly stated in People v.
our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1. Echegaray) WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT "The penalty complained of is neither cruel. civilized and ordered society. and as long as our criminal law provides for its imposition in certain cases. Echegaray) WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH UNDER RA 7659 Under R.A. Veneracion. have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment. (People v. Murder (Sec. is still plain enough". throughout history. Qualified piracy (Sec. religious or secular. while rather awkward. this notwithstanding occasional opposition to the death penalty provisions therein. and the judiciary tries and sentences the criminals in accordance with these laws. It implies there something inhuman and barbarous. The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. is an ancient practice. odious and hateful offenses and which. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. . the crimes punishable by death under this Act are heinous for being grievous. which was a modified version of the Spanish Penal Code of 1870. 5). The Revised Penal Code. the imposition of death as punishment for violation of law or custom..S. by reason of their inherent or manifest wickedness. In Ex-parte Kemmler. 7). Infanticide (Sec. though. but the punishment of death is not cruel. Pursuant to this. the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death. 7659. within the meaning of that word as used in the constitution. 1932. something more than the mere extinguishment of life. 2). Parricide (Sec. Echegaray) DEFINITION OF HEINOUS CRIMES ". Latura) JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY Although its origins seem lost in obscurity." (People v. The language. atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just.the accused should be reclusion perpetua and not life imprisonment. No. if already imposed. it is the duty of judicial officers to respect and apply the law regardless of their private opinions. ." and this we have reiterated in the 1995 case of People v. 6). Echegaray) DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which expressly declares the abolition of the death penalty. 3). 136 U. the executive agencies enforce these laws. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. shall be reduced to reclusion perpetua. Although penologists. (People v. 22 . provided for the death penalty in specified crimes under specific circumstances. As early as 1886. (People v. 436. capital punishment had entered our legal system through the old Penal Code. We do know that our forefathers killed to avenge themselves and their kin and that initially. viciousness. unjust nor excessive. the following crimes are penalized by reclusion perpetua to death: (1) (2) (3) (4) (5) Treason (Sec. the criminal law was used to compensate for a wrong done to a private party or his family. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and. not to punish in the name of the state. as it was originally promulgated. the legislative arm of government enacts criminal laws that define and punish illegal acts that may be committed by its own subjects. (People v.'" “as long as that penalty remains in the statute books.
When the victim is killed or dies as a consequence of the detention or is raped. (f) an arsenal. 10)." (Sec. delivery. 13). (8) Destructive arson if what is burned is (a) one or more buildings or edifice. dive. 8). and (d) if the victim is a minor. (13) Maintenance of den. tortured or subjected to dehumanizing acts "The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the victim or any other person. (14) Manufacture of prohibited drugs (id. he shall suffer the penalty of death. (6) (22) (23) (24) Misappropriation. 8) (3) Destructive arson resulting in death "If as a consequence of the commission of any of the acts penalized under this Article. and Carnapping where the owner. (12) Sale. and (g) a storehouse or factory of explosive materials located in an inhabited place. the mandatory penalty of death shall be imposed. rape or intentional mutilation (Sec. distribution. 11). he shall suffer the penalty for the offense which was not prosecuted. ship or airplane for public use." (Sec. 19). 10) 23 .A. (b) it was committed simulating public authority.). the maximum penalty [of death] shall be imposed. (d) a building or factory in the service of public utilities. (7) Robbery with homicide. (19) Sale. if the arson is perpetrated by two or more persons (Sec.). (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon. driver or occupant of the carnapped motor vehicle is killed or raped (Sec. or resort for users of regulated drugs (Sec. misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec. 4) (2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped. (b) a building where people usually gather. and distribution of regulated drugs (id.) (17) Importation of regulated drugs (Sec. under R. Echegaray) WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH PENALTY UNDER RA 7659 On the other hand. fireworks factory. 12).). transportation. gift or present.). delivery. female or a public officer (Sec. 7659. (c) a train. 20) (People v. promise. Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. even if none of the circumstances above-mentioned were present in the commission of the offense. 9). and (c) the rape is attempted or frustrated and committed with homicide (Sec. death results. or regardless of what is burned.Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a) the victim was detained for more than three days. (11) Importation of prohibited drugs (Sec. If it is the public officer who asks or demands such gift or present. dispensation. (b) the rape is committed by two or more persons. No.). administration. or is subject to torture or dehumanizing acts.). 15). 17). the mandatory penalty of death is imposed in the following crimes: (1) Qualified bribery "If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer. except when the accused is any of the parents." (Sec. (15) Possession or use of prohibited drugs in certain specified amounts (id. dive or resort for users of prohibited drugs (id. 16). (c) serious physical injuries were inflicted on the victim or threats to kill him were made. (20) Maintenance of den. (e) a building for the purpose of concealing or destroying evidence Or a crime. (10) Plunder involving at least P50 million (Sec. (21) Possession or use of regulated drugs in specified amounts (Sec. 14). and transportation of prohibited drugs (id. or government museum. (16) Cultivation of plants which are sources of prohibited drugs (id. administration. (18) Manufacture of regulated drugs (id.
relative by consanguinity or affinity within the third civil degree." (Sec. 7659 in pari materia with the Revised Penal Code. No. rape with homicide and qualified "When by reason or on the occasion of the rape. guardian. an outrage upon decency and dignity that hurts not only the victim but the society itself. confederating or mutually helping one another for purposes of gain in the commission of any crime. any of the children or other relatives within the third degree of consanguinity. At any rate. this court has no doubts as to the innate heinousness of the crime of rape. It causes grave damage that can mark the victim for life. when the rape is committed in full view of the husband. (People v. 6. (People v. It does injury to justice and charity. 23) include those in R. 7659 that justify the imposition of the death. construing R.(People v. the penalty shall be death. 4. 11 ) (5) In all the crimes in RA. Echegaray) WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES The death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry. . 7659 in their qualified form "When in the commission of the crime. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. or the commonlaw spouse of the parent or the victim. Echegaray) (4) Rape with the victim becoming insane. parent. albeit the imposable penalty is reclusion perpetua to death." (People v. Echegaray) The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is a religious or a child below seven (7) years old 5. the victim has suffered permanent physical mutilation. No. advantage was taken by the offender of his public position. and physical and moral integrity to which every person has a right. as we have held in the case of People v. No. when the victim is under the custody of the police or military authorities. the victim has become insane. the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances." (Sec. Rape deeply wounds the respect. freedom. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. Cristobal. It is always an intrinsically evil act . xxx xxx xxx TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA 7659 Thus. ascendant. The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. . 2. they must be permanently prevented from doing so. 7165 24 . Echegaray) WHY RAPE IS A HEINOUS CRIME "Rape is the forcible violation of the sexual intimacy of another person. An organized/syndicated crime group means a group of two or more persons collaborating. step-parent.A. and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government. 3. when by reason or on the occasion of the rape. and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R. when the victim is under eighteen (18) years of age and the offender is a parent.A. death may be imposed when (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty.A.
for compelling reasons involving heinous crimes. robbery with one killing would be treated in the same way that robbery with multiple killings would be. RA 7659. of the first paragraph of Section 19. Timple) ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE. which took effect on December 31/93. While the number of persons killed does not alter the characterization of the offense as robbery with homicide. still. The court. . By Republic Act No. It seems very likely that capital punishment is a . Any death penalty already imposed shall be reduced to reclusion perpetua" (Emphasis supplied) only the penalty of reclusion perpetua could be imposed by the trial court. to apply them. (1) Excessive fines shall not be imposed. Echegaray) RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE TO ACCUSED IT SHOULD BE RETAINED Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July 1990. Hence. finds and so holds that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. PROVISION OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY. if infinitely less repulsive than the acts which invoke it. Lucas) ROBBERY WITH HOMICIDE. the Congress hereafter provides for it. if not in disharmony with the Constitution. 19. In view. Congress re-imposed the death penalty 25 . EFFICACY OR MORALITY OF LAWS It is a well settled rule that the courts are not concerned with the wisdom. And for the guidance of the members of the judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as harsh. That question falls exclusively within the province of the Legislature which enacts them and the Chief Executive who approves or vetoes them. unless. increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. 12/9/97) COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM. . nor cruel. therefore. the multiplicity of the victims slain should have been appreciated as an aggravating circumstance. Veneracion) REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS The imputed duration of thirty (30) years for reclusion perpetua. (People v. if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. 7659 (effective 31 December 1993). Neither shall death penalty be imposed. (People V. however. and may recommend to the authority or department concerned. from the standpoint of the gravity of the offense. as long as said law is in force. necessary. its amendment. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under the RPC and has a higher amount of fine which in accordance with ART 22 of the same code should not be given retroactive effect. unwise or morally wrong." (People v. (PP v Carreon. CASE AT BAR. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. which provides that: "Sec. modification.WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED "Capital punishment ought not to be abolished solely because it is substantially repulsive. therefore. (People v. This would preclude an anomalous situation where. Article III of the 1987 Constitution. degrading or inhuman punishment inflicted. the attended aggravating circumstances in this case had no impact upon the determination of the proper penalty by the trial court. is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. efficacy or morality of laws. The only function of the judiciary is to interpret the laws and. robbery with homicide is punishable by reclusion perpetua to death. or repeal. NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE. amended the provisions of RA 6425. they must apply it and give it effect as decreed by the law-making body. Under Article 294 (1) of the Revised Penal Code. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival.
AN ESSENTIAL ELEMENT OF KIDNAPPING Actual detention or "locking up" is the primary element of kidnapping. however. b. NO. (5) In appropriate instances. that the restraint is not made under authority of a law or in the exercise of any lawful right. hence. the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. (G. 6425). No. be it right or wrong. No.Astorga) ELEMENTS OF GRAVE COERCION Grave Coercion or coaccion grave has three elements: a. pursuant to Section 1 of the 26 . when by reason or on occasion of the robbery. and double or treble the same. prision mayor. that in no case should such graduation of penalties reduce the imposable penalty lower than prision correccional. dated March 24. (Emphasis supplied) Article 294 of the Revised Penal Code.for certain heinous crimes. the Indeterminate Sentence Law shall be applied and considering that R. that the person who restrains the will and liberty of another has no right to do so or. (4) The modifying circumstances in the Revised Penal Code may be appreciated to determine the proper period of the corresponding imposable penalty or even to effect its reduction by one or more degrees. (People -vs.R. as the bases for determining the appropriate component penalty. including robbery with homicide and robbery with rape. either by material force or such a display of it as would produce intimidation and. 6425. in other words. (2) Where the quantity of the dangerous drug involved is less than the quantities stated in the first paragraph of Section 20 of R. Martin Simon y Sunga. There being no actual detention or confinement..A. this Court ruled as follows: (1) Provisions of R. . . That the prevention or compulsion is effected by violence. filed against Astorga contains sufficient allegations constituting grave coercion. 7659. In People vs. By the same statute. provided. decided on 29 July 1994. No.A.e. December 22. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and effects. consequently. The reason is that there is an overlapping error. and not reclusion perpetua. 1997) DANGEROUS DRUGS ACT OF 1972 (R. That any person is prevented by another from doing something not prohibited by law. as the minimum of the penalty where the quantity of the dangerous drugs involved is more than those specified in the first paragraph of the amended Section 20 and also as the maximum of the penalty where the quantity of the dangerous drugs involved is less than those so specified in the first paragraph. in the provisions on the penalty of reclusion perpetua as shown by its dual imposition. or compelled to do something against his or her will. the crime of homicide shall have been committed. The penalty of reclusion perpetua to death. such that the quantity of the drugs enumerated in the second paragraph should then be divided into three. and c. NO. each of the component penalties thereof — prision correccional.Astorga. cannot be applied retroactively in this case. the penalty to be imposed shall range from prision correccional to reclusion temporal. If the evidence does not adequately prove this element. probably through oversight in the drafting. (People v. 1992. No. the accused cannot be held liable for kidnapping. as amended by R. To do so would be to subject the appellant to the death penalty which could not have been constitutionally imposed by the court a quo under the law in effect at the time of the commission of the offenses. and reclusion temporal — shall be considered as a principal imposable penalty depending on the quantity. .Astorga) ACTUAL DETENTION OR LOCKING UP. (People -vs.A.A. the elements of which were sufficiently proved by the prosecution. i. Hence. however. SECTIONS 15 AND 20 THEREOF AS AMENDED BY R. Rule 120 of the 1988 Rules on Criminal Procedure. the appellant may be convicted only of grave coercion. Timple) A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS KIDNAPPING The Information. (People -vs. 7659.A. (3) Considering that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity of the dangerous drugs involved.A. control over the will of the offended party. Article 294 of the Revised Penal Code was amended to read as follows: "Any person guilty of robbery with the use of violence against or intimidation on any person shall suffer: 1. In the present case. 7659 which are favorable to the accused shall be given retroactive effect pursuant to Article 22 of the Revised Penal Code. then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the Revised Penal Code. GGR 110097. with the resulting quotient. a conviction for said crime is appropriate under Section 4. 93028). or when the robbery shall have been accompanied by rape or intentional mutilation or arson.
appellants and their companions purposely gathered together and armed themselves to take advantage of their combined strength to ensure that Reynaldo Danao would be able to kill the victim without any interference from other bystanders. "To appreciate abuse of superior strength as an aggravating circumstance. (STRAY DECISION) In this case.THADEOS ENGUITO Defendant-Appellant.00. introduced by SC Administrative Circular 12-94 is a departure from the old rules which then provided that bail shall be effective and remain in force at all stages of the case until its full determination. Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza. foreclosed. 15. 2000 ) PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS The bail bond that the accused previously posted can only be used during the 15-day period to appeal (Rule 122) and not during the entire period of appeal. We find. RICARDO DELA CRUZ alias Pawid.Ricardo Dela Cruz alias Pawid. Accused-Appellant. what should be considered is not that there were three." This amendment. such amount carries the corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the maximum period. Petitioners.0958 gram. until the promulgation of the judgment of the Regional Trial Court. 23. the penalty prescribed for the offense committed of qualified theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed in its maximum period. unless sooner cancelled.A.Honorable COURT OF APPEALS (Fourth Division and People of the Philippines. Considering that the penalty for qualified theft is two degrees higher than that provided for simple theft. Accused-Appellants. CZ-2932 with sidecar valued at P30. No.000. 128812.CIELITO BULURAN Y RAMIREZ and LEONARDO VALENZUELA Y CASTILLO. WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. ( Aniceto Sabbun Maguddatu and Laureana Sabbun Maguddatu. 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the same upon its expiration. Feb. It is therefore necessary to show that the attackers cooperated in such a way as to secure advantage of their superiority in strength.R. G. as further amended by Section 17 of R. Thus. G. No. Since this value remains undisputed. Moreover.R. -vs." In this case. we accept this amount for the purpose of determining the imposable penalty. four or more assailants of one victim. 28. Applying the Indeterminate Sentence Law. (PP -vs. However. under the present rule. Accused. Feb. for the accused to continue his provisional liberty on the same bail bond during the period to appeal.A. consent of the bondsman is necessary. From the record. 125936 Feb.R. however. the penalty of prision mayor in its minimum and medium periods must be raised by two degrees. G. the accused may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. abuse of superior strength can only be considered as a generic aggravating circumstance. it appears that the bondsman. G. (PP -vs. 2000) USE OF MOTOR CIRCUMSTANCE VEHICLE AS QUALIFYING AGGRAVATING The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means thereof. and thus even during the period of appeal. not having been alleged in the Information. AFISCO Insurance Corporation. With the foregoing as our touchstones. This is consistent with Section 2(a) of Rule 114 which provides that the bail "shall be effective upon approval and remain in force at all stages of the case. No. Manuel dela Cruz alias Pawid. thus. but whether the aggressors took advantage of their combined strength in order to consummate the offense.R. (PP -vs. In simple theft. should be prision correccional. Feb. 23. No. 2000) WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT. 6425. the imposable penalty under the second paragraph of Section 20 of R. and it appearing that the quantity of the shabu recovered from the accused in this case is only 0. No. the indeterminate penalty which may be imposed shall be one whose maximum shall be within the range of the imposable penalty and whose minimum shall be within the range of the penalty next lower in degree to the imposable penalty. that the aggravating circumstance of abuse of superior strength attended the killing. irrespective of whether the case was originally filed in or appealed to it.Indeterminate Sentence Law. 7659. 113940. the stolen property is a Yamaha RS motorcycle bearing plate no. 139599. filed a motion in the trial court on January 06. Respondents. Obtaining the consent of the bondsman was. 2000) ELEMENTS OF EVIDENT PREMEDITATION 27 .
Dec. 2000) WHEN NIGHTTIME IS AGGRAVATING Nighttime as an aggravating circumstance must have specially been sought to consummate the crime.R. however. (b) aggravate a crime. Feb. G. the deceased was already rendered completely helpless and defenseless when he was stabbed by Pedro Lumacang. Thus. G. 1999) TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT There is treachery when the offender commits any of the crimes against the person employing means. (PP -vs. Feb. Thus. 8. 120283. Accused-Appellant.CORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO". facilitate its success or prevent recognition of the felon.JOSE & NESTOR BiñAS.(1) The time when the offender determined to commit the crime. PABLO LUMACANG and DOMINGO LUMACANG. Although he was able to run a short distance. Although Milyn Ruales described the attack having been frontal. No. in effect imposes penalty or deprivation of a right for something which when done was lawful. It cannot be applied retroactively because.R. 114740. to do so. 15. 7659 took effect on 31 December 1993. at this point that inasmuch as treachery has been appreciated as a qualifying circumstance. bent on finishing him off. Accused-Appellants. could not have possibly warded off the blow or run away from her assailant. at the time. is more guilty than he who offends him elsewhere. (2) an act manifestly indicating that the offender had clung to his determination. G. and punishes such an act. when committed. 121630. It should be noted. 17. (PP -vsROGELIO GALAM.R. 1. abuse of superior strength should not have been considered separately inasmuch as it is absorbed in treachery. in order for the death penalty to be imposable. this does not negate treachery since the essence of treachery is the suddenness and unexpectedness of the attack. (e) assuming to regulate civil rights and remedies only. Feb. (c) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. (d) alters the legal rules of evidence. For this reason. AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH (a) makes criminal an act before the passage of the law and which was innocent when done. 1999) EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY Moreover. or makes it greater than it was. methods or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising form the defense which the offended party might make. Isabel Ruales was not prepared for such a violent attack. he had absolutely no means of defending himself from the three brothers who were armed with hunting knives. giving the victim no opportunity to repel it or offer any defense of his person. she was unarmed and was burdened with a large basket filled with about six kilos of corn and dried fish hanging from her shoulders and thus.PEDRO LUMACANG. such as the protection of a former conviction or . No. 132329. and (3) sufficient lapse of time between the determination and the execution to allow the offender to reflect on the consequences of his act. Accused-Appellant. especially considering that. Dec. Accused-Appellants. the said law only applies to crimes defined therein. Accordingly. Milyn Ruales also testified that the knife used by accused was hidden from view. G. The wounded victim had not even so much as a stick or a stone to parry off their blows. He who goes to another's house to slander him. Republic Act No. ETC." (PP -vs. (PP -vs. which were committed after its effectivity. hurt him or do him wrong.R. 7659. No. No.R. No. including rape. would go against the constitutional prohibition on ex post facto laws. it is incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the accused is already covered by Republic Act No. 2000) WHY DWELLING IS AGGRAVATING "The home is a sort of sacred place for its owner. 126097. and (f) 28 deprives person accused of a crime of some lawful protection to which he has become entitled. (PP -vs. As earlier mentioned. 2000) DATE OF EFFECTIVITY OF RA 7659. G. 8.CONSTANCIO MERINO and ARNULFO SIERVO. and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense. we hold that the trial court correctly appreciated the qualifying circumstance of treachery.
president. manager.acquittal. who shall willfully or 29 . Disposition or Possession of Explosives. such as rimfire handgun. "When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives.' 'fire bombs. deal in.000) shall be imposed upon any person who shall unlawfully manufacture. such use of an unlicensed firearm shall be considered as an aggravating circumstance. director or other responsible officer of any public or private firm. company. dispose or possess hand grenade(s). 3. however. or possess any low powered firearm. sedition or attempted coup d'etat. sedition. sedition or attempted coup d'etat. or machinery.22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided.44. "If the violation of this Section is in furtherance of or incident to. president. "If homicide or murder is committed with the use of an unlicensed firearm. and other explosives. . Acquisition. acquire. Section 3 of Presidential Decree No. as amended. is hereby further amended to read as follows: "SECTION 3. who shall willfully or knowingly allow any of the firearms owned by such firm.' 'molotov cocktail bombs. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided. or attempted coup d'etat. company. 1866. (PP -vs. part of firearm. Sale. or attempted coup d'etat. "The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefore. or insurrection. No. manager. "The same penalty shall be imposed upon the owner. or a proclamation of amnesty. "The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30.40." SECTION 2.CHARITO ISUG MAGBANUA. Unlawful Manufacture. Dec.45 and also lesser calibered firearms but considered powerful such as caliber . or in connection with the crime of rebellion or insurrection. including but not limited to 'pillbox. . 1999) ILLEGAL POSSESSION OF FIREARMS (REPUBLIC ACT NO. assemble. ammunition. rifle grenade(s). the use of such explosives. Acquisition. G. which results in the death of any person or persons. company. acquire.41.38 caliber and 9 millimeter such as caliber . such violation shall be absorbed as an element of the crime of rebellion.357 and caliber . or in connection with the crime of rebellion. "The same penalty shall be imposed upon the owner. as amended.R. insurrection.' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. detonation agents or incendiary devices shall be considered as an aggravating circumstance. 1866. deal in.000) shall be imposed upon any person who shall unlawfully manufacture. "If the violation of this Section is in furtherance of.380 or . corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. Unlawful Manufacture. . detonation agents or incendiary devices. insurrection. — The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50. 8294) SECTION 1. such violation shall be absorbed as an element of the crimes of rebellion. — The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15. or incident to. That no other crime was committed.000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than . Section 1 Presidential Decree No. sedition.32 and other firearm of similar firepower. is hereby further amended to read as follows: "SECTION 1. Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. Sale. 128888. . director or other responsible officer of any public or private firm. dispose. corporation or entity. corporation or entity. That no other crime was committed by the person arrested.
the prosecution has the burden of proving the elements thereof. Coverage of the Term Unlicensed Firearm. Repacking or Altering the Composition of Lawfully Manufactured Explosives. is hereby further amended to read as follows: "SECTION 6. 179) To support a conviction. After possession is established by the prosecution. of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same. a malum prohibitum. viz: a. (Supra) PRESENT MEANING OF ILLEGAL POSSESSION OF FIREARM SECTION 5. (People v. The absence of license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 304 SCRA 384) Possession of any firearm becomes unlawful only if the necessary permit or license therefore is not first obtained. the existence of the subject firearm. 1866. deface or erase the serial number of any firearm. Section 5 of Presidential Decree No. — The term unlicensed firearm shall include: 1) firearms with expired license. and b. change. Bansil. two (2) essential elements must be indubitably established. People. Lubo. (People v. 1866. is hereby further amended to read as follows: "SECTION 5. it would only be a matter of course to determine whether the accused has a license to possess the firearm. Khor. Castillo. there must be possession coupled with intent to possess (animus possidendi) the firearm. 344) Illegal possession of firearm is a crime punished by special law. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper.knowingly allow any of the explosives owned by such firm. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm. however." The essence of the crime of illegal possession is the possession. to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs." SECTION 3." (Del Rosario v." SECTION 4. company. Cortez. 307 scra 295) "To convict an accused for illegal possession of firearms and explosives under P. 05/31/01) We stress that the essence of the crime penalized under P. 325 SCRA 613) 30 . (People v. (People v.D. the negative fact of lack or absence of license constitutes an essential ingredient of the offense which the prosecution has the duty not only to allege but also to prove beyond reasonable doubt. and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the subject firearm or explosive. viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation. ammunition or explosive as possession by itself is not prohibited by law. and no malice or intent to commit a crime need be proved. alter or modify the composition of any lawfully manufactured explosives. corporation or entity. RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED MAYBE CONVICTED In crimes involving illegal possession of firearm. (People v. Stated otherwise. 101 Phil. — The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack. as amended. 1866. or 2) unauthorized use of licensed firearm in the commission of the crime. 324 scra 335. of the subject firearm. the fact that the accused who owned or possessed it does not have the license or permit to possess the same.D. Section 6 of Presidential Decree No. whether actual or constructive. as amended. without which there can be no conviction for illegal possession. as amended. Tampering of Firearm's Serial Number.
Thus. dispose. the penalty for possession of any low powered firearm is only prision correccional in its maximum period and a fine of not less than P15. the present penalty that may be imposed is anywhere from two years. (Mario Rabaja v CA. or in connection with the crime of rebellion or insurrection. 1998) ILLEGAL POSSESSION OF FIREARM ONLY SPECIAL AGGRAVATING CIRCUMSTANCE IN CRIMES OF HOMICIDE AND MURDER. "The same penalty shall be imposed upon the owner. ammunition. Quijada : “Neither is the 2nd paragraph of Sec. or possess any low powered firearm. or insurrection. director or other responsible officer of any public or private firm. corporation or entity. 8294. company. July 22. is nonetheless not entirely bereft of relief. may impose a fine consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal.. as minimum.. GR 115835-36. “upon any person who shall unlawfully manufacture. company.” (People v. That could not have been the intention of the lawmaker because the term “penalty” in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. or machinery. such use of an unlicensed firearm shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of or incident to. who shall willfully or knowingly allow any of the firearms owned by such firm. The scope of the term has been expanded in Sec. or attempted coup d'etat. Under an information charging homicide or murder. Applying the Indeterminate Sentence Law. up to anywhere from four years.Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful authority. is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. (Pp.32 and other firearm of similar firepower. two moths and one day to six years of prision correccional in its maximum period.5 of R. should now apply. The enactment and approval on 06 Jun 1997 of RA 8294.” 3.” 4. deal in. July 22. This statutory amendment may have been an offshoot of our remarks in Pp. sedition.A. the unauthorized use of a weapon which has been duly licensed in the name of its owner/possessor may still aggravate the resultant crime.. Under this new law. corporation or entity to be used by any person 31 . of course.00. A law may. manager. V. acquire. to consider such use merely as a qualifying circumstance and not as an offense. Molina. 1998) NEW PENALTY FOR LOW POWERED FIREARM IN ILLEGAL POSSESSION OF FIREARMS Petitioner.380 or . The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime. be enacted making use of an unlicensed firearm as a qualifying circumstance. as maximum. Tac-an and Pp. We explicitly stated in Tac-an : There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Where murder or homicide was committed. V.000. Molina. V. i. the separate penalty for illegal possession shall no longer be meted out since it becomes merely a special aggravating circumstance. .1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm. "If homicide or murder is committed with the use of an unlicensed firearm. or attempted coup d'etat. fortunately for him. their carrying of such weapons outside their residences and their unauthorized use thereof in the killing of the victim may be appreciated as an aggravating circumstance in imposing the proper penalty for murder. being favorable to him. et al. part of firearm. sedition. such violation shall be absorbed as an element of the crime of rebellion. tool or instrument used or intended to be used in the manufacture of any firearm or ammunition” 2. four months and one day to four years and two months of prision correccional in its medium period. Oct 8/97) ACTS PUNISHABLE: 1. In the case at bar. The court in addition. although appellants may have been issued their respective licenses to possess firearms. president. Gr 115835-36. such as rimfire handgun. the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the 2nd offense of homicide or murder to death (or reclusion perpetua under the 1987 Constitution).e.
110 Phil 565). “Any person who shall unlawfully repack.1866 is the possession of firearm without the necessary permit and/or license. A person who finds a firearms and takes it with him to the police station for the purpose of turning it over to the police should be commended. Sayang. 2001) holds that the “gravamen” for the offense of violation of P. discovery by police.D. “The crime is immediately consummated upon mere possession of a firearm devoid of legal authority. de la Rosa. possession must be established beyond reasonable doubt. supra. b.or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. the Supre Court held in People v. 33 SCRA 174) c. i. dispose or possess. It is these acts relative to firearms. G. For purpose of simplicity we will confine our analysis to “possession”. (People v De Gracia.” 5.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under the apparent control and power of the accussed. 1866 as amended by R. 284 SCRA 158 that “mere possession without criminal intent is sufficient on which to render a judgment of conviction”. (People v.2. and in view of the special meaning that “possession” has in criminal law. 7. 1866. in which case good faith and absence of criminal intent are not valid defenses. It is then clear that illegal possession. This is clear from the first two “whereas” clause of P. (People v. although what we will discuss hereunder applies to manufacture. change. de Guzman.1. a. 7/6/94) officers alone of a firearm in the baggage or gloves compartment of a car will not necessarily be sufficient to sustain a conviction of the car owner or driver. since it is assumed that the same is possed with “animus possidendi” Does it then follow that everyone found with the firearm is in “possession” thereof for the purpose of prosecution and conviction under P. The obvious underlying principle is the undesirability of the proliferation of firearms and their free traffic and possession.3. HOWEVER. People v. deface or erase the serial number of any firearm”. is a malum prohibitum. “The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefore” 6. acquiring or disposing as well. “Any person who shall unlawfully tamper. Essential to the legal concept of “possession” in illegal possession cases is animus possidendio. 8294? The results would be patently absurd. (People v.) People v. deal in. rather than prosecuted. 32 . 1. 1. 1. 117952-53 (February 14. That one was in possession of an unlicensed firearms merely for one’s protection without intending harm on anybody is a fruitless defense.A.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surrounding circumstances.D. CRIME OF ILLEGAL POSSESSION OF FIREARM MALUM PROHIBITUM The offense of illegal possession of firearm is a malum prohibitum punished by a special law. a good case for animus possidendi is made. it is not correct to say without qualification that “intent” is immaterial. A person who is stopped at a check-point at which it is discovered that there is firearms – placed either advertently or inadvertently in his baggage compartment without his knowledge . Manufacture. Intention to possess is material. 1. acquire. dealing in. etc. How is animus possidendi established? These must be proved either by direct or circumstantial evidence of the “intent” of the accused to possess. alter or modify the composition of any lawfully manufactured explosives”. Whatever the purpose of the possession may be is consistently immaterial. ii. If the offender was in possession of an unlicensed only on the occasion of the shooting for transitory purpose and for the short moment in connection with the shooting. de la Rosa.cannot be held liable for illegal possession.D. It is the clear doctrine of such cases as People v. Verches.R. Intent as to possession is immaterial. iii. de la Rosa) when it is established that the accused purchased the weapon in question. or to keep the firearm.
The cousin knows fully well that he has no permit or authority to keep the firearm. there is no animus possidendi of an unlicensed firearm. insurrection. 1. then logically. A fortiori. WHEN THERE IS AN ILLEGAL POSSESSION OF FIREARM A firearm is unlicensed when a certification from the “Firearms and Explosives Unit” attests that no license has been issued. Gutierrez.e. (People v. To convict.4 What the prosecution must prove for it to succeed under the law is two-fold: first. A PERSON WHO ACCEPTS A FIREARM FOR SAFEKEEPING MAYBE HELD LIABLE IF HE CARRIES THE SAME. The accused may controvert the presumption of animus possidendi. 1999) the Supreme Court ruled that a U.) An interesting question arises.R. if a police officer leaves with a cousin for safekeeping his firearm. Nunez. The distinguishing features of particularly firearms. furthermore.) To prove the existence of the firearm. on whether it is high-powered or low-powered In People v. The case is obviously different. homicide. Narvasa. 2001) holds that a person may be convicted of simple illegal possession if the illegal possession is proved and the frustrated murder and murder case – involving the use of the illegal possession – has not been sufficiently proved. Rugay. the use of a licensed firearm by one not licensed or permitted to use it would still be illegal possession. caliber can be established by testimony establishing the manner in which the firearm ejected bullets. 1998]). G. It is this proviso in the amendatory law that has visited countless woes on numerous judges and has occasioned not easily reconcilable decisions by the Supreme Court . There will still be a case for illegal possession if one holding a firearm duly licensed carries it 33 . It then appears to be the more reasonable position that where a person is apprehended with an unlicensed weapon.1 It is clear that where there is no other offense except the unlawful possession of a firearm. 281 SCRA 287). It is very well possible that the accused effectively conceals the weapon before his apprehension. G. and prision mayor in its maximum periods for high-powered firearms. it is not absolutely necessary that the object evidence be presented. the court needs proof beyond reasonable doubt of animus possidendi. G. 112092 (March 1. People v. outside his residence when he has no permit to carry it outside his residence (Pastrano v.R. 33 SCRA 522). the existence of the firearm. WHAT THE PROSECUTION MUST PROVE IN CASES OF ILLEGAL POSSESSION OF FIREARMS. Thus in People v. animus possidendi will be disputably presumed.30 was high-powered because it was capable of ejecting more than one bullet in one squeeze. (Cuenco v. second. is committed any of the crimes of murder. If it is the criterion. rebellion. 132878 [November 16. in its simple form. Macasling.R. 237 SCRA 299 that there was no evidence of “animus possidendi”. carbine M1 caliber . G. If he accepts to do this favor. 2001) teaches that “the crime of illegal possession of firearms.iv.R. ILLEGAL POSSESSION BUT IN GOOD FAITH: A security guard employed by a security agency and issued a firearm by the agency has the right to assume that the firearm issued to him is a licensed firearm. 110 Phil 565) ILLEGAL POSSESSION OF FIREARM MAYBE PROVEN Provided no other crime is committed. Sayong. sedition or attempted coup d’etat”. 291 SCRA 692) a. 117033 (February 15. Incontrovertible testimonial evidence may successfully established the existence of the firearm. that may be recited by keen observer sworn in a s witness my identify the firearm as well as it caliber. Court of Appeals. the absence of a license or a permit to possess.it is obviously a case of not only poor but miserable draftsmanship! 2. (People v. b. Avecilla. If it turns out that the firearm is not licensed. i. 132878 (January 18. (People v. however. People. the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its maximum period for low-powered firearms.S. The present law makes penalties depend on the caliber of the firearm. This can be established by a judicious combination of the testimonial evidence of observers abd experts. he is indictable.
2.2. It is also clear that where either homicide or murder is committed with the use of an unlicensed firearm, such use shall constitute an “aggravating circumstances”. It is well known that R.A. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who was then serving sentence for illegal possession. It was therefore meant to be more benevolent, as it is in the penalties it impose. Senator Revilla, however, could not see far enough (and regrettably neither could other legislators) and the effect at least in the case of murder is that it may send the accused to the lethal injection chamber where otherwise he would not be meted out the death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the Chief Justice himself as ponente illustrates the complication the law has introduced. In this case, the accused had been charged with two offenses: robbery with homicide and illegal possession of firearms. During the pendency of the case, the amended law came into force. The court then held that insofar as R.A. 8294 was favorable to the accused in that it spared him from separate prosecution for illegal possession, the charge for illegal possession was dropped. Insofar, however, as it increased the penalty for robbery with homicide, the aggravating circumstances of the use of unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised Rules of Criminal Procedure will apply: As an aggravating circumstances, the use of the unlicensed weapon must be alleged in the information. 2.3 When the violation of the law penalizing unlicensed weapon is “in furtherance of or incident to, or in connection with the crimes of rebellion, insurrection, sedition or attempted coup d’etat” then the violation is absorbed in the main offense. (R.A. 8294, Section 1). 2.4 What happens when an unlicensed weapon is used in the commission of other offenses other that homicide, murder, rebellion, insurrection, sedition or attempted coup d’ etata? People v. Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the distinctively clear language of Justice Panganiban: “The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime was committed by the person arrested’. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.” In brief, where the accused commits a crime other than those enumerated with the use of an unlicensed weapon, no separate charge for such use will be brought against him. Consistent with this is the disposition by the Supreme court decreed: “Accordingly, all pending cases for
illegal possession of firearms should be dismissed if they arose from the commission” of crimes other than those indicated in Section 1 and 3 of R.A. 8294. 2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court has referred the matter to the Congress for another look. One moral lesson can be learned: Laws passed as favor to one’s friend is a poor laws! OWNERSHIP IS NOT AN ESSENTIAL ELEMENT OF ILLEGAL POSSESSION The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one’s control and management. INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL A distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent is sufficient to convict a person for illegal possession of firearms, it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. There is no evidence of animus possedendi if the offender was in possession of an unlicensed firearm only on the occasion of the shooting for a transitory purpose and for the short moment in connection with the shooting. Lack of evidence is an essential element of the crime and that the same must be alleged in the Information and duly proved. (People -vs- Macasling, 237 SCRA 299) Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may be convicted of possession of an unlicensed firearm even if he is not the owner thereof. (People -vs- Reynaldo Cruz, GR No. 76728, August 3, 1988)
Even if the gun is "paltik," there is a need to secure license for the gun, and if found without any license therefor, the offender is liable for violation of PD 1866. (People vs- Filemon Ramos, 222 SCRA 557) If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating circumstances nor a separate offense. Since the law uses the word Homicide or Murder, possession of an unlicensed firearm is not aggravating in Attempted Homicide. (People -vs- Walpan Ladjaamlam, et al., GR No. 136149-51, September 19, 2000) Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime, Republic Act 8294 took effect, the accused should be convicted only of Murder. The use of unlicensed firearm should not be considered as aggravating because the Court will have to impose the death penalty which cannot be allowed because, at the time of the commission of the offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of violation of PD 1866 should continue and if the accused is found guilty, he should be meted the death penalty under Republic Act 8294. (People -vs- Victor Macoy, GR No. 126253, August 16, 2000) Where the prosecution failed to adduce the gun in evidence coupled with the fact that per Certification of the FEU, " no available information regarding the license for the gun and the inconsistency in the evidence of the prosecution, the latter failed to discharge its burden. (People -vs- Ricolito Rugay, et al., 291 SCRA 692) Mere possession without criminal intent is sufficient on which to render a judgment of conviction for violation of PD 1866, as amended. However, there must be animus possedendi or intent to possess without any license or permit. Good faith is not a defense. Neither is lack of criminal intent. (People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158) Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence, stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra)
Possession includes actual physical possession and constructive possession. The animus can be determined from the overt acts of the accused prior to or coetaneous with and other surrounding circumstances of such possession. Hence, where the accused found a gun and was on his way to deliver the gun to the police authority and was arrested, in the process, there is no animus possedendi. (People -vs- Rodolfo Dela Rosa, et al., supra) Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution is burdened to prove that the accused has no license for the gun. (People -vs- Felimon Ramos, et al., 222 SCRA 557) For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a) the existence of the subject firearm; (b) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess the same. (People -vs- Ricolito Rugay, et al., 291 SCRA 692) Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than six (6) years, and a fine of P15,000.00, he should be ordered to undergo subsidiary imprisonment in case of insolvency. (Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290) In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and 14, in relation to Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the Revised Penal Code may now be applied for violation of PD 1866, as amended and Rep[ublic Act 6425, as amended. Even if a person is licensed to possess a firearms but brings out firearm outside of his residence without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as amended. A Mission Order cannot take the place of a license. A Mission Order can only be issued to one licensed to possess a firearm. (Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287) If the accused borrowed a gun from another who is licensed to possess firearm, may the former be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and lends it to another, the latter is liable for violation of PD 1866, as amended. A license to possess a firearm and a permit to carry a licensed firearm outside of his residence is not transferable. (Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of possession of an unlicensed firearm as long as proof was adduced that the acused was in possession of a firearm. (People -vs- Felicisimo Narvasa, GR No. 128618, November 16, 1998) NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose there is no testimony as to the caliber of the gun? Where a security guard was given by his employer, a security agency, a firearm, and the accused assumed that the employer secured the license for the firearm but that it turned out that the employer failed to get any license, the security guard is not criminally liable. The security guard has the right to assume that the security agency secured the license. (Ernesto Cuenca -vs- People, 33 SCRA 522) If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To exculpate himself, the accused must prove absence of animus possidendi. (People -vs- Perlito Soyang, et al., 110 Phil. 565, 583) A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite possession by B of the unlicensed firearm because there was no way to determine when A could pay his account. (People -vs- Cornelio Melgas, 100 Phil. 298) If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a special aggravating circumstance which must be alleged in the Information and cannot be offset by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998) The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been overtaken by Republic Act 8294. Under the amendment, the death penalty may now be imposed if the accused is convicted of Murder with the use of licensed or unlicensed firearms.
As long as the accused is proved to have been in possession of the unlicensed firearm even if the firearm is not adduced in evidence, conviction under the law is proper. (People -vs- Felicisimo Narvasa, supra) Republic Act 8294 took effect on July 6, 1997. If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act 8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither should the possession of an unlicensed firearm be considered as an aggravating circumstance as it will be less favorable to the accused. If the accused used a sumpak to kill the victim, the prosecution must prove that he had no license or permit to possess the sumpak. (People -vs- Cipriano de Vera, G.R. No. 121462-63, June 9, 1999) Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused was convicted of Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide and violation of PD 1866, as amended, and applied the penalty for the crimes under the amendment. In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En Banc declared that where the accused was convicted of said crio,es, by the Trial Court but that during the pendency of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused should only be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating circumstance. Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide (People versus Octavio Mendoza, GR No. 109270-80, January 18,1999) A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting two or three bullets in one squeeze. (People -vs- Eduardo Gutierrez, GR No. 132878, September 1999) It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to apply. It is not enough that there is
Based on the facts of the case. we expounded on this doctrine. said statement by accusedappellant does not prove beyond reasonable doubt the second element of illegal possession of firearm." (emphasis supplied) (PP -vs. Possession of an unlicensed firearm and used in killing is a special aggravating circumstance. (People -vs. (People -vs. GR No. 131592-93. Possession under the law may either be actual physical possession or constructive possession. that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true. verbal or written. "Moreover. From the above principles. is malum prohibitum. 233 SCRA 174). the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense. second. the new law should be retroactively applied in the case at bar. Aside from lowering the penalty for said crime. of itself. No. there must be animus possidendi. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. 1997 by Republic Act 8264. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. the correct denomination for the crime.Felicisimo Narvasa. IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS) P. 1998. In People vs. the same is not punishable under PD 1866.JULIAN CASTILLO Y LUMAYRO. aggravated by homicide as ruled by the trial court. made by a party in the course of the trial or other proceedings in the same case does not require proof. This amendment has two (2) implications: first. to prove guilt. 15. it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission. 8294 also provided that if homicide or murder is committed with the use of an unlicensed firearm. If the possession of an unlicensed gun is merely temporary. although the crime under PD 1866. It was thus error for the trial court to convict the appellant of two (2) separate offenses. and considering that the provisions of the amendatory law are favorable to herein appellant. said admission is extrajudicial in nature.. tending to incriminate the speaker. but not sufficient of itself to establish his guilt. as it is the former offense which aggravates the crime of homicide under the amendatory law.Rolando Verches. although the appellant himself admitted that he had no license for the gun recovered from his possession. However. 1866. EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE. or intent to possess. i. February 27. which codified the laws on illegal possession of firearms." In other words. the crime for which the appellant may be charged is homicide. animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto. the law does not provide for a fixed period of time for one to be deemed in "possession" of an unlicensed firearm. only one penalty shall be imposed on the accused. SUCH ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM Hence. this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. November 18. an admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred.R. 120369.D. insufficient to authorize conviction. and punish him separately for each crime. et. aggravated by illegal possession of firearm. Each factual milieu must be considered.evidence of the existence of the gun which can be established either by testimony or presentation of the gun itself. 128618. however. Prescinding therefrom.. Feb. Solayao. was amended on June 6. Homicide and Illegal Possession of Firearms. but merely as a special aggravating circumstance. incidental or transient. al. it is a statement by defendant of fact or facts pertinent to issues pending. such use shall be considered as a special aggravating circumstance. and not illegal possession of firearm. It does not even establish a prima facie case.A. as only a single crime (homicide or murder with the aggravating circumstance of illegal possession of firearm) is committed under the law. As such. 2000) 37 . 1998) The Decision of the Supreme Court in People versus Rex Bergante. in connection with proof of other facts or circumstances. thus: "x x x by its very nature. However. as amended. "Not being a judicial admission. his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun.e. G. R. however. GR No. but which is. in the case at bar.
shall not be covered by this prohibition. firearm. to tap any wire or cable. No. It is a rule MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE? In the case of an explosive. a permit or license to possess it is usually granted to mining corporations. 1866. or any other such record. disc record. 123918. wire record. JR. No.D. ammunition or explosive as possession by itself is not prohibited by law. or to replay the same for any other person or persons. intercept. Ronaldo Valdez. i. 1866 in view of the amendments introduced by Republic Act No. the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dectaphone or walkietalkie or tape recorder. This explains why no certification or testimony was adduced by the prosecution at the trial to prove that appellant Cortez was not licensed to possess the explosive.e.. viz: (a) the existence of the subject firearm or explosive which may be proved by the presentation of the subject firearm or explosive or by the testimony of witnesses who saw accused in possession of the same. or copies thereof. That the use of such record or any copies thereof as evidence in any civil. 131619-20. Molina and reiterated in the recent case of People vs. LISTENING TO CONVERSATION IN EXTENSION LINE OF TELEPHONE IS NOT WIRE-TAPPING An extension telephone cannot be placed in the same category as a dictaphone. where murder or homicide was committed. 2000) UNDER R. We stress that the essence of the crime penalized under P. not being authorized by all the parties to any private communication or spoken word. G. that in cases where murder or homicide is committed with the use of an unlicensed 38 . it was held in the case of People vs. (PP -vs. or however otherwise described: It shall also be unlawful for any person. 1. either verbally or in writing. to knowingly possess any tape record. Dec.AUGUSTO LORETO RINGOR.. criminal investigation or trial of offenses mentioned in section 3 hereof. be he a participant or not in the act or acts penalized in the next preceding sentence. of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law. G.D. In other words. 1866 as amended.A. 1999) ANTI-WIRE TAPPING LAW (RA 4200) Sec. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED With respect to the conviction of accused-appellant for illegal possession of firearms under P. or by using any other device or arrangement.D. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. Although the hand grenade seized by PO2 Santos from appellant was presented in court. the lack of license or permit of appellant Cortez to possess the hand grenade. dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof cannot be considered as tapping the wire or cable of a telephone line. 9. The failure of the prosecution to adduce this fact is fatal to its cause. It shall be unlawful for any person. No. to secretly overhear. Thereunder. military personnel and other legitimate users. there can be no separate conviction for the crime of illegal possession of firearms under P. and (b) the negative fact that the accused had no license or permit to own or possess the firearm or explosive which fact may be established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the subject firearm or explosive. to any other person: Provided.R. Furthermore. two (2) essential elements must be indubitably established. 1. the records bear that PO2 Santos did not submit the grenade to the PNP Firearms and Explosives Unit for verification. ET AL. the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. the prosecution failed to prove the second element of the crime.R.. (PP -vs. the penalty for illegal possession of firearms shall be imposed provided that no crime is committed. Nos.BERNIE CORTEZ Y NATANIO. or to furnish transcriptions thereof. or to communicate the contents thereof. whether complete or partial.ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS To convict an accused for illegal possession of firearms and explosive under P. In the case at bar. 1866 is primarily the accused's lack of license or permit to carry or possess the firearm. 8294.D. Feb.
"2) By any person who. When And How Committed "1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: "a) Through force. she knew. when her legs were being parted to prepare for the sexual act. Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. blackmail or gain some unwarranted advantage over the telephone users. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. or any instrument or object. "Zareen. RAPE AS CRIME AGAINST PERSONS (R. Her lame excuse was that she was half-asleep. even though none of the circumstances mentioned above be present." It is thus obvious that whatever mistake there was could only be attributable to Zareen — and her inexcusable imprudence — and to nobody else. when he finally mounted her she never objected. persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate. hence was 39 . I love you. hence was conscious. when the man was pulling down his briefs to prepare himself likewise for the copulation.A. in order to be punishable must strictly be with the use of the enumerated devices in RA 4200 or others of similar nature. told her. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a kilometer or more. WHEN A WOMAN FAILED TO ASCERTAIN THE IDENTITY OF THE MAN. Silvino never used force on her and was even most possibly encouraged by the fact that when he pulled down her panties she never objected. shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice. Where then was force? Third. the particular clauses and phrases of the statute should not be taken as detached and isolated expressions. under any of the circumstances mentioned in paragraph 1 hereof. into the genital or anal orifice of another person. Our impression is that Silvino had nothing to do with the formulation of this belief. and. In fact. she knew. "c) By means of fraudulent machination or grave abuse of authority. The evidence shows that this mistake was purely a subjective configuration of Zareen's mind — an assumption entirely contrived by her. when her legs were being parted she never objected. he did nothing to mislead or deceive Zareen into thinking that he was Enrico. She had the opportunity to ascertain the identity of the man but she preferred to remain passive and allow things to happen as they did. it's Jun. Silvino precisely. Consequently. WHEN INEXCUSABLE IMPRUDENCE ON PART OF VICTIM AS TO IDENTITY OF OFFENDER IS NOT RAPE. "b) When the offended party is deprived of reason or otherwise unconscious.120) A PERSON CALLING ANOTHER BY PHONE MAY SAFELY PRESUME THAT THE OTHER MAY HAVE AN EXTENSION LINE AND RUNS THE RISK OF BEING HEARD BY A 3RD PARTY. Thuswise it cannot be said that she was deprived of reason or unconscious. and "d) When the offended party is under twelve (12) years of age or is demented. but the whole and every part thereof must be considered in fixing the meaning of any of its parts. when her panties were being pulled down. the fault was hers. or intimidation.in statutory construction that in order to determine the true intent of the legislature. (66 SCRA 113. and confidently. She knew. it's not Ricky. she knew. We are of the view that an extension telephone is not among such devices or arrangements. MERE ACT OF LISTENING TO A TELEPHONE CONVERSATION IN AN EXTENSION LINE IS NOT PUNISHED BY ANTI-WIRE TAPPING LAW It can be readily seen that our lawmakers intended to discourage through punishment. the mere act of listening. hence was conscious. 8353) Rape. threat. Clearly. hence was conscious. However she admitted that in the early morning of 1 May 1994 she woke up to find someone removing her underwear.
the victim was 40 yrs.28. ’98) TEST TO DETERMINE WHETHER A WOMAN VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE OR NOT DUE TO INTIMIDATION Physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to the lust of an accused. 1998) WHEN MORAL ASCENDANCY IS SUSTAINED AS INTIMIDATION IS RAPE. Jr. but must be viewed in the light of the victim’s perception and judgement at the time of the crime. In fine. Where such intimidation existed and the victim was cowed into submission as a result thereof. GR 127569. (People v. The failure of the complainant to state the exact date and time of the commission of the rape is a minor matter. 5 months pregnant. at the time the crime was committed.) NATURE OF INTIMIDATION IN RAPE CASES Intimidation is addressed to the mind of the victim. In the case at bar. unarmed and married to a person older than her by almost 20 yrs. it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. (Pp. Aug. Considering all these circumstances. it would be the height of unreasonableness to expect the victim to resist with all her might and strength. or to act like a mature and experienced woman who would know what to do under the circumstances. appellant was in his 20’s. 1998) DATE OF COMMISSION OF RAPE NOT ESSENTIAL ELEMENT OF SAID CRIME It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. Agbayani.28. Bernaldez. The nearest neighbor of the victim is some 3 kms. July 30. Jurisprudence holds that even though a man lays no hand on a woman. the consummation of unlawful intercourse by the man is rape. old. (Pp. Likewise. GR 125937. we hold that the victim was intimidated to submit to the lustful desire of the appellant. some may faint. in a rape committed by a father against his own daughter. The crime happened in the evening and in a place where help was impossible. V. yet if by array of physical forces he so overpowers her mind that she does not resist or she ceases resistance through fear of greater harm. armed with a gun and purportedly in the company of several NPA members. Even in cases of rape of mature women. as in this case. GR 122770. 1998) CHILD BORN BY REASON OF RAPE 40 . GR 125937. this Court recognized their different and unpredictable reactions. GR 109780. Some may shout. then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. (People v. thereby rendering resistance futile.conscious. It is enough that the intimidation produced fear — fear that if the victim did not yield to the bestial demands of the accused. V. Aug. Accused sent complainant two letters in which he implored her forgiveness and offered to leave his wife so that he could be with her. In contrast. Prades. Mostrales. 1998) EXAMPLE OF VIRTUAL CONFESSION OF FACT AND NOT IN LAW IN CASES OF RAPE It is conceded that after the rape. EDEN could not be expected to act with the equanimity of disposition and with nerves of steel. In any event. Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Mostrales. Since it is addressed to the victim's and is therefore subjective.. It is subjective and its presence cannot be tested by any hard-and-fast rule. and some may be shocked into insensibility. In other words. V. V. something far worse would happen to her at that moment. appellant sealed his own fate by admitting his crime under a seal of virtual confession in fact. Salarza. the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. from their hut. If resistance would nevertheless be futile because of intimidation. when the man mounted her and lusted after her virtue. if not in law. or to have courage and intelligence to disregard the threat. (Pp. 17. (Pp. her urge could not wait for the more appropriate time. Jan. it must not be forgotten that at her tender age of 14 years. while others may openly welcome the intrusion.Aug. Her justification was that she never objected to the sexual act from the start because she thought that the man was her boyfriend with whom she was having sex almost every night for the past three (3) weeks as they were getting married and wanted already to have a baby. 16.
Thus. or whether he used a singlebladed or a double-edged knife. Prades. In other words. Oliva.MUST BE ACKNOWLEDGED BY OFFENDER UPON ORDERS OF THE COURT Furthermore. rape has been committed even in places where people congregate. 1998) MEANING OF DEADLY WEAPON IN CASES OF RAPE A “deadly weapon” is any weapon or instrument made and designed for offensive or defensive purposes. July 30. (People v. GR 124213. (People v. it nevertheless also explicitly stated that Tessie is a “mentally retarded person. since no appropriate pleadings are file wherein such allegations can be made. threats. V. 1998) FORCE AND INTIMIDATION NOT NEEDED IN RAPE OF RETARDATE Although the information alleged “force. or one which. 12/5/97) USE OF FORCE OR INTIMIDATION NOT AN ELEMENT OF STATUTORY RAPE In any event. inside a house where there are other occupants.” We have held in a long line of cases that if the mental age of a woman above 12 years is that of a child below 12 years. (Pp. since ANALIZA begot a child by reason of the rape. Alfeche. (People v. 1/29/98) WHEN SWEETHEART DEFENSE IS TENABLE IN RAPE 41 . 1998) MORAL DAMAGES NEED NOT BE ALLEGED AND PROVED IN CASES OF RAPE Indeed. (People v. Hector Estares. the conventional requirement of allegata et probata in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein. Prades.000. however. V. (Pp. or even if the circumstances of force or intimidation or of the victim being deprived of reason or otherwise unconscious are absent. Article 14(5) of the Revised Penal Code provides that this circumstance aggravates a felony where the crime is committed in the dwelling of the offended party. (Pp. the accused would still be liable for rape under the 3rd circumstance of Art. Prades. GR 127569. In the instant case. GR127569. and even in the same room where other members of the family are also sleeping. July 30. it is not relevant to this case whether appellant slapped or boxed the victim. in parks. including places which to many would appear to be unlikely and high-risk venues for sexual advances. DANTE must acknowledge and support the offspring pursuant to Article 345 of the Revised Penal Code in relation to Article 201 of the Family Code.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws. 17. that the aggravating circumstance of dwelling is attendant in the commission of the crime. 1998) INDEMNITY IN CERTAIN CASES OF RAPE The recent judicial prescription is that the indemnification for the victim shall be in the increased amount of P75. The offense is established upon proof that the accused sexually violated the offended party. if the latter has not given provocation. then it should follow that carnal knowledge of a woman whose mental age is that of a child below 12 years would constitute rape. July 30. and intimidation”. (Pp. Alfeche) DWELLING AS AGGRAVATING CIRCUMSTANCE IN RAPE CASES It is clear. 335. or for the destruction of life or thee infliction of injury. The rationale therefor is that if sexual intercourse with a victim under 12 years of age is rape. along the roadside. Gementiza. GR 127569. In our jurisdiction. Aug. the aforesaid circumstance of dwelling was definitely present in the commission of the crime of rape with the use of a deadly weapon. is calculated or likely to produce death or serious bodily harm. V. even if she voluntarily submitted to the bestial desires of the accused. the use of force or intimidation is not an element of statutory rape. V. it has been held that a knife is a deadly weapon. who was below 12 years of age at the time of the sexual assault. from the manner used. 12/5/97) RAPE CAN BE COMMITTED IN DIFFERENT PLACES EVEN THOSE IN HIGH VENUES It has been emphasized that rape can be committed in many different places. within school premises.
This was confirmed by Emma Macaro. the relationship is either illicit. such is not always the case if the hard fact is that the accused and the supposed victim are in fact intimately related except that. also testified that her "mother-in-law is not legally married to accused-appellant. GR No. As already noted. if credible. "Ignominy is a circumstance pertaining to the moral order.The “sweetheart” defense put up by the accused merits serious consideration. October 16/97) A MEDICAL EXAMINATION OF VICTIM IS NOT ELEMENT OF RAPE A medical examination is not an indispensable element in a prosecution for rape. and he referred to her as his live-in partner. In such instances. the information in Criminal Case Nos. What was alleged was that he is the stepfather of the complainants. and the findings of the medico-legal officer do not disprove the commission of rape. he forfeits all respect as human being and is justly spurned by all. Lenny and Jenny interchangeably referred to accused-appellant as their stepfather. While the theory does not often gain favor with the court. On the otherhand. People v Tabugoca. no young Filipina of decent repute would falsely and publicly admit that she had been ravished and abused considering the social stigma thereof. It is unbelievable that Jacqueline would fabricate a serious criminal charge just to get even with her father and to emphasize with her sister. People v jenelito Escober Y Resuento. "who…. the accused raped his own flesh and blood at such a tender age of eleven. (People vs Rico Jamlan Salem. HENCE DEATH PENALTY CANNOT BE IMPOSED In this case. accused-appellant is not really the stepfather of complainants Lenny and Jenny because accused-appellant and complainants' mother were not legally married but were merely living in common-law relation. mother of the complainants. it is not improbable that when the relationship is uncovered. Although the rape of a person under eighteen (18) years of age by the common-law spouse of the victim's mother is punishable by death. is what happened in this case." Thus. People v Jenelito Escober Y Resuento. "kabit. the information's in Criminal Case Nos." Accused-appellant likewise said on direct and cross-examination that he was not legally married to the mother of the complainants. He thus violated not only he purity and her trust but also the mores of his society which he has scornfully defined." "tiyo. for ignominy to be appreciated as an aggravating circumstance in the instant case. 125334) SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT BE CONSIDERED AS IGNOMINY. For that matter. not least of all. or the parents are against it. "who is the stepfather of the private offended party" by "force." Complainants' sisterin-law." and "tiyuhin. 8945-8946 alleged that accused-appellant. is the stepfather of victim Jenny Macaro" succeeded in having carnal knowledge of the latter. In fact. violence and intimidation" succeeded in having carnal knowledge of the latter when she was then 14 and 13 years old. who was a girl below 12 years old. it must be shown that the sexual assault on Francis Bart was done by accused-appellant to put the former to shame before killing him. The accused may be convicted on the sole basis of complainant’s testimony. 42 . Rosalie Macaro. respectively. This is clearly not the case here for accused-appellant's intention was shown to be the commission of sexual abuse on the victim as an act of revenge for his similar experience as a child. by the fruit of his own loins whose progeny he has forever stained with his shameful and shameless lechery. this penalty cannot be imposed on accused-appellant in these cases because this relationship was not what was alleged in the information's. The sisters would not contrive stories of defloration and charge their own father with rape unless these stories are true. the victim’s parents would take the risk of instituting a criminal action rather than admit to the indiscretion of their daughter. Nov 6/97) HEINOUSNESS OF RAPE OF ONE’S DESCENDANT In the case before us. WHEN THE INFORMATIONS ON RAPE CASES FAILED TO ALLEGE ACTUAL RELATIONSHIP ETC. And this." "live-in partner ng Mama ko. as is true in most cases. which adds disgrace and obliloquy to the material injury caused by the crime. Nov 6/97) MERE DISCIPLINARY CHASTISEMENT IS NOT ENOUGH TO DOUBT CREDIBILITY OF RAPE VICTIM WHO IS A DESCENDANT Mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would only bring shame and humiliation upon them and their own family and make them the object of gossip among their classmates and friends. as the records reveal. contrary to these allegations. 8899-8900 alleged that accused-appellant. By inflicting his animal greed on her in a disgusting coercion of incestuous lust.
. 2000) This Court has also ruled that a medical examination is not indispensable to the prosecution of rape as long as the evidence on hand convinces the court that a conviction of rape is proper. 115191. No. In Criminal Case No. violence and intimidation by the accused-appellant. 335 of the Revised Penal Code. (PP -vs. Dec. 8900 where he committed the rape after threatening the victim. Nos. It is abuse of superior numbers or employment of means to weaken the defense. reclusion perpetua. or when the woman is under twelve years of age or is demented. HENCE." This circumstance must however be alleged in the information because it is also in the nature of a qualifying circumstance which increases the range of the penalty to include death.800 grams of marijuana. IF ONE IS CHARGE WITH RAPE AND IS NT PROVEN. it cannot be appreciated as a qualifying circumstance. WHEN CARNAL KNOWLEDGE IS CONSUMATED It is worth mentioning that in rape cases. G.. with a knife. alias "DODONG" G. ET AL. ACCUSED CANNOT BE HELD GUILTY OF SIMPLE SEDUCTION. when a deadly weapon is used to make the victim submit to the will of the offender. 14. or mere introduction of the male organ into the labia of the pudendum constitutes carnal knowledge. we cannot convict the accusedappellant of the crime of simple seduction without offense to the constitutional rights of the accused-appellant to due process and to be informed the accusation against him.R.e.DIOLO BARITA Y SACPA. Under Art. The charge of rape does not include simple seduction.e. the whole specimen must be tested considering that Republic Act 7659 imposes a penalty dependent on the amount or the quantity of drugs seized or taken. in this case.R. (PP -vs.INFORMATION IN RAPE CASES WITH USE OF DEADLY WEAPON MUST BE ALLEGED OTHERWISE DEATH PENALTY. EXAMINATIONS NECESSARY OF ALL SPECIMENS IN DRUG CASES NOT We are not persuaded by the claim of accused-appellants that in order for them to be convicted of selling 2. Feb.. 2000) MEANING OF TAKING ADVANTAGE OF SUPERIOR STRENGTH IN RAPE CASES Taking advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked. while complainant Lenny testified that accused-appellant raped her after threatening her with a knife. the penalty is ”reclusion perpetua to death. 123541. the accused-appellant should be sentenced to the penalty of reclusion perpetua. Accordingly. G. The same can only be treated as generic aggravating circumstance which. even if the same was prove. 134130-33. the "use of a deadly weapon" in the commission of the crime was not alleged in the information. (PP -vs. (PP -vs LOLITO MORENO Y LANCION alias "LOLOY" G. 1999) THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE SEDUCTION." i.FELIXBERTO FRAGA Y BAYLON. cannot affect the penalty to be impose. the prosecution is not required to establish penile penetration because even the slightest touching of the female genitalia. No. simple rape is punishable by "reclusion perpetua. Therefore. 8900. the accused-appellant should be sentenced to the penalty of reclusion perpetua for each of the four counts of rape. i. April 12.R. Dec. 21. 8. Lenny Macaro." When the rape is committed "with the use of a deadly weapon. 126954.FERNANDO CALANG MACOSTA. (2) that such act is accomplished by using force or intimidation. This circumstance is always considered whenever MEDICAL EXAMINATION NOT REQUIRED IN RAPE CASES 43 .R. Accordingly. Even as the prosecution failed to proved the use of force. This Court has ruled that a sample from one of the packages is logically presumed to be representative of the entire contents of the package unless proven otherwise by accused-appellant. or when the woman is deprived of reason or otherwise unconscious. CANNOT BE IMPOSED Neither can accused-appellant be meted the death penalty in Criminal Case No. No. 1999) WHAT ARE THE ELEMENTS OF RAPE? The elements of rape are: (1) that the offender had carnal knowledge of a woman.
To properly appreciate it. It would be a denial of the right of the accused to be informed of the charge against him and consequently. 1999 CONCURRENCE OF MINORITY OF VICTIM AND RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT DEATH PENALTY MAYBE IMPOSED The concurrence of the minority of the victim and her relationship to the offender should be specifically alleged in the information conformably with the accused's right to be informed of the accusation against him. the death penalty cannot Neither is the absence of spermatozoa in Delia's genitalia fatal to the prosecution's case. like the crime of parricide by a husband on his wife. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accusedappellant insofar as the other sixteen rapes charged are concerned.CHARITO ISUG MAGBANUA. if he is charged with simple rape and will be convicted of its qualified form punishable by death although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment under which he was arraigned. 10. it is necessary to evaluate not only the physical condition of the parties and the arms or objects employed but the incidents in the total development of the case as well. Dec. 2000) IMPORTANT CONSIDERATION IN RAPE WHEN TESTIMONY OF VICTIM IS OVERLY GENERALIZED IN CRIME OF RAPE Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. 1999) be imposed because these qualifying circumstances were not specified in the information. the accused-appellant can only be convicted of simple rape because he cannot be punished for a graver offense that that with which he was charged. assuming a situation of superiority notoriously advantageous for the aggressor deliberately chosen by him in the commission of the crime. 2000) 44 . although the minority of Poblica and her relationship with appellant were established by the prosecution beyond doubt. Procedurally. So much of such indefinite imputations of rape. (PP -vs. 128436. 131843. 3. (PP -vs.EDGARDO DE LEON Y SANTOS. It is generally accepted that under normal circumstances a man who commits rape on a woman is physically stronger than the latter. It would be a denial of the right of the appellant to be informed of the charges against him and consequently. Dec. Accordingly.there is notorious inequality of forces between the victim and the aggressor.R. then. G. G. this Court succinctly observed that: xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the guilt of appellant therefor with the required quantum of evidence.R. Feb. 134939. DECENA. G. No. No. (PP -vs. the imposable penalty is reclusion perpetua.R. a denial of due process if he is charged with simple rape and convicted of its qualified form punishable by death although the attendant circumstances qualifying the offense and resulting in capital punishment were not set forth in the indictment on which he was arraigned. the attendance of any of which mandates the single indivisible penalty of death are in the nature of qualifying circumstances which cannot be proved as such unless alleged with particularity in the information unlike ordinary aggravating circumstances which affect only the period of the penalty and which may be proven even if not alleged in the information. The presence or absence of spermatozoa is immaterial in a prosecution for rape. No. In People vs. Garcia. while the minority of Renelyn and her relationship to the accused-appellant were established during the trial. Moreover. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed. G. 3. (PP -vs. which are uncorroborated by any other evidence fall within this category. No 130985. Dec. a denial of due process.EDMUNDO DE LEON Y JESUS.EDWIN R. The important consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.RODOLFO BATO alias 'RUDY BATO.R. In this case. 16.R. abuse of superior strength Is inherent in rape. (PP -vs. No. 1999) QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE IMPOSED This Court has ruled in a long line of cases that the circumstance under the amendatory provisions of Section 11 of Republic Act 7659." G. May 31. 128888.
the serious discrepancy between the two sworn statements executed a day apart by the complainant in this case. it opted to stand or fall on the uncorroborated and implausible testimony of the private complainant. The deportment of the private complainant after the alleged rape accentuates the dubiety of her testimony. No.. (PP -vsTOMAS CLAUDIO Y MENIJIE. 1999) NATURE OF INCESTUOUS RAPE Incestuous rape of a daughter by a father has heretofore been bitterly and vehemently denounced by this Court as more than just a shameful and shameless crime. ONE FOR ATTEMPTED RAPE AND ANOTHER FOR CONSUMMATED RAPE AND ARE INCONSISTENT WITH EACH OTHER. True. In People vs. G. granting arguendo that the accused and the victim were really lovers this Court has reiterated time and again that "A sweetheart cannot be forced to have sex against her will. Second. Indeed this attitude runs counter to logic and common sense. (PP -vs. the gravamen of the offense is sexual intercourse with a woman against her will or without her consent. However. 125125-27. whether the offense was consummated or merely attempted. Ablaneda. Rape in itself is a nauseating crime that deserves the condemnation of all decent persons who recognize that a woman's cherished chastity is hers alone to surrender at her own free will.R.R. this Court held that the general rule does not apply when the complainant completely changed the nature of her accusation. 133694. to say the least. But the act becomes doubly repulsive where the outrage is perpetrated on one's own flesh and blood for the culprit is further reduced to a level lower than the lowly animal and forfeits all respect otherwise due him as a human. Variance as to the time and date of the rape. Definitely. The prosecution failed to substantiated any of its allegations. Although he was holding her wrist tightly. Nos. To compound matters. but it is too unnatural for an intended rape victim. Feb. women react differently in similar situations.R. 21. The general rule is that variance between an extrajudicial sworn statement of the complainant and here testimony in court does not impair the complainant's credibility when the said variance does not alter the essential fact that the complainant was raped. (PP -vs. a man cannot demand sexual 45 . the number of times it was committed or the garments which the accused or the complainant wore at the time of the incident do not generally diminish the complainant's credibility. Finally.MELANDRO NICOLAS Y FAVELLA. not to make even feeble attempt to free herself despite a myriad of opportunities to do so. 29. and whoever violates this norm descends to the level of the odious beast. 4. The mere assertion of a "love relationship" would not necessarily rule out the use of force to consummate the crime. she went with him to the house of his sister and there they slept together. i. After the alleged rape. Instead. she could have easily extricated herself form him on several occasions: (a) while they were inside the bus bound for Quiapo. No. G. Truly.e. It is elementary in our rules of evidence that a party must prove the affirmative of his allegations. it took her four (4) days to inform her parents about this agonizing episode in her life. this fact alone will not extricate him from his predicament. and especially so. Feb. Surely private complainant would not risk a second molestation and undergo a reprise of the harrowing experience. (b) when they alighted form the bus and roamed the sidestreets of Quiapo. Her demeanor was simply inconsistent with that of the ordinary Filipina whose instinct dictates that the summon every ounce of her strength and courage to thwart any attempt to besmirch her honor and blemish her purity. Dec. The contradiction does not concern a trivial or inconsequential detail but involves the essential fact of the consummation of the rape. is very substantial because it pertains to the essential nature of the offense. 2000) LOVE RELATIONSHIP DO NOT RULE OUT RAPE Even assuming ex gratia argumenti that accused-appellant and private complainant were indeed sweethearts as he claims.ALBERT ERNEST WILSON. Thus. Accused-appellant was unarmed and his tight grip could not have prevented private complainant from at least shouting for help. CONVICTION CANNOT BE HAD It is true that affidavits are generally subordinated in importance to open court declarations. It must be stressed that in rape case. G. she did not leave immediately but even refused to be separated from her supposed defiler despite the prodding of the latter.WHEN RAPE IS NOT COMMITTED AND SWEETHEART THEORY GIVEN CREDENCE First. (c) when they entered the hotel and finally the room where the alleged rape took place. 135915. as in this case. Private complainant never objected or showed any resistance when accused-appellant allegedly dragged her forcibly across the pedestrian overpass and brought her to an undisclosed place at Quiapo. bearing on a material fact. Worse. her insouciance is very disturbing. wherein a housewife executed a sworn statement for attempted rape and later changed the accusation to consummated rape without a rational explanation. 2000) WHEN TWO AFFIDAVITS ARE EXECUTED BY THE COMPLAINANT IN A RAPE CASE.
within school premises. (PP -vsFEDERICO LUSTRE Y ENCINAS. along the roadside. Furthermore. DEATH PENALTY CANNOT BE IMPOSED WHEN INFORMATION FAILED TO INDICATE THE AGE OF THE VICTIM AND HER CORRECT RELATIONSHIP WITH THE ACCUSED The penalty of death cannot be properly imposed since the indictment has failed to indicate the age of the victim and her correct relationship with appellant. G.VICENTE BALORA Y DELANTAR.DANTE CEPEDA Y SAPOTALO. when a rape victim becomes paralyzed with fear.000. G. Prades. appellant is not a "parent.R. inside a house where there are other occupants. step-parent. Feb. G. "Complainant cannot be faulted for not taking any action inasmuch as different people react differently to a given type of situation. 2000) RAPE MAY BE COMMITTED IN ALMOST ALL PLACES Appellant considers it quite improbable for rape to be committed at a place within a well-lighted and fairly well-populated neighborhood. 124832. Garcia this Court succinctly observed that: xxx the indefinite testimonial evidence that complainant was raped every week is decidedly inadequate and grossly insufficient to establish the 46 . April 6. ascendant. and its presence could not be tested by any hard-and-fast rule but must be viewed in light of the victim's perception and judgment at the time of the crime." we cannot but agree with the trial court that nighttime was purposely sought by accused-appellants "for the more successful consummation may be perpetrated unmolested or so that they could escape more thoroughly.00. 1." (PP -vs.R. |An overpowering wicked urge has been shown not to be deterred by circumstances of time or place. Victor." (PP -vs. precisely to maximize the advantage of darkness. we have rule in People vs.ANTONIO MAGAT Y LONDONIO. G. May 31. No. Feb. she cannot be expected to think and act coherently. herself acknowledges that appellant has just for a time been her common-law husband. No.R. The victim's testimony was overly generalized and lacked specific details on how each of the alleged sixteen rapes was committed.FELIMON ALIPAYO Y TEJADA. 2000) EACH AND EVERY RAPE ALLEGED MUST BE PROVEN Each and every charge of rape is a separate and distinct crime so that each of the sixteen other rapes charged should be proven beyond reasonable doubt. No. Love is not a license for lust." (PP -vs. Remedios Lustre. that "if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law. or the common-law spouse of the parent of the victim.R. G. worse. 2000) NATURE OF INTIMIDATION IN CASE OF RAPE In People vs. which was later reaffirmed in People vs." (PP -vs. essential in the imposition of that penalty. 124976. the Court held that intimidation was addressed to the mind of the victim and therefore subjective. her failure to immediately take advantage of the early opportunity to escape does not automatically vitiate the credibility of her account. No. No. 2000) Considering that the place where the crime took place was "notorious for hold-ups done at night. concurrent qualifying circumstances. Her bare statement that she was raped so many times on certain weeks is clearly inadequate and grossly insufficient to establish the guilt of accusedappellant insofar as the other sixteen rapes charged are concerned." The latter's grandmother. guardian. the indemnity of the victim shall be in the increased amount of not less than P75.gratification from a fiancée.R. startling or frightful experience.. Rape can be commi9tted even in places where people congregate. and even in the same room in the presence of other members of the family. This argument does not hold water. Thus. 134562. In People vs. May 31. 122979. employ violence upon her on the pretext of love. Luzorata. 2. ET AL. in parks. 2000) COMPENSATORY DAMAGES IN CASES OF QUALIFIED RAPE PLACES NOTORIOUS FOR HOLD-UPS DONE CONSIDERED AGGRAVATING AS NIGHT TIME AT NIGHT IS With regard to the award of compensatory damages. there being no standard form of human behavioral response when one is confronted with a strange. 130026. relative by consanguinity or affinity within the third civil degree.
before they could reach the upper floor. 17 or 18 years after she had been allegedly ravished for the first time by her father. first on the wall. since it was clearly proven beyond reasonable doubt that he raped Amy de Guzman and thereafter robbed her and Ana Marinay of valuables totaling P16.CONRADO CABANA @ RANDY. the herein accused-appelant. Villalobos. and the fear can last for quit a while. (PP -vs. he committed rape. He then proceeded upstairs where he took as well the jewelry box containing other valuables belonging to his victim's employer. CONVICTION FOR RAPE CANNOT BE HAD "Complainant could have been raped the first time accused-appelant had carnal knowledge of her. appellant cannot be convicted of the special complex crime of robbery with rape. but it was not by reason of force or intimidation. which are uncorroborated by any other evidence fall within this category. G. 3. and even inviting friends and relatives to the feasts. However. May 9. their relationship might be incestuous. Leaving Amy for dead after repeatedly banging her head. 1995 when accused-appellant had sexual intercourse with complainant. G.R. a case involving an eighteen-year old woman "intellectually weak and gullible. poked a knife at the left side of her neck. At this point. BUT SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT THE REALTIONSHIP. For their part.R. (People v.guilt of appellant therefor with the required quantum of evidence. CASES WHEREIN THE SCANDAL RESULTING FROM RELATIONS OF COMPLAINANT AND ACCUSED IMPELS THE COMPLAINANT OR HER RELATIVES TO FILE COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID NOT PROSPER Thus in People vs." prompting them to cry "rape. No. when she was 13 years old. then he freely ransacked the place. Domogoy. strangled her. During the said period of 17 or 18 years. In People vs. Under these circumstance. "for complainant to have 47 . choosing the baptismal sponsors for their children. and gained carnal knowledge of her against her will and consent. he suddenly pulled Amy down and started mauling her until she lost consciousness. private complainant was seen having sexual intercourse in the school premises with appellant therein by the latter's coaccused. neither complainant nor her parents denounced accused-appellant despite the fact that he continued to have sexual relation allegedly without the consent of complainant. 130985. ring and wristwatch. pulled her towards the kitchen where he forced her to undress. Coloma (222 SCRA 255) we have even considered an 8-year delay in reporting the long history of rape by the victim's father as understandable and so not enough to render incredible the complaint of a 13-year old daughter. saying he was not leaving her alive. accepting thereby all the stigma it leaves. The relationship was known to neighbors. he committed two separate offenses -rape with the use of deadly weapon and simple robbery with force and intimidation against persons. 127124. while in the beginning complainant's mother and sisters may have disapproved of the relationship. in the end. is not a prosecution for such rape. Thus. When she complained of having been raped in this case. he took her bracelet. we cannot say that on September 19. Lamarroza. four children were born to complainant and accused-appellant. In People vs. 134294. she was already 30 or 31 years old.000. accused-appellant suddenly jumped over the counter. There is also the natural reluctance of a woman to admit her sullied chastity. Dec.EDMUNDO DE LEON Y JESUS. (PP -vs. Thereafter. ALTHOUGH INCESTOUS. to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. 1999) AT THE START THERE MUST BE RAPE. MALAGAR "Vacillation in the filing of complaint by rape victim is not an uncommon phenomenon. appellant conceived the idea of robbery because." The Court acquitted the accused." the Court found that the alleged victim's family was "obviously scandalized and embarrassed by (the victim) Elena's 'unexplained' pregnancy. No. During this period. 2000) WHEN THERE IS A SEPARATE CRIME OF RAPE AND ROBBERY IS COMMITTED As related by Private Complainant Amy de Guzman. This crime is normally accompanied by the rapist's threat on the victim's life. so he could bring her out.R." the Court held. and to then expose herself to the morbid curiosity of the public whom she may likely perceived rightly or wrongly. then on the toilet bowl. he ordered her to proceed upstairs to get some clothes. Complainant and accused-appellant practically cohabited. G. Given these facts. "It is thus not farfetched. it would appear that subsequently they just turned a blind eye on the whole affair.00. So much of such indefinite imputations of rape. AS HELD IN LTHE CASE OF PEOPLE VS. This however. 05/21/2001) THE DELAY AND INITIAL RELUCTANCE OF A RAPE VICTIM TO MAKE PUBLIC THE ASSAULT ON HER VIRTUE IS NEITHER UNKNOWN OR UNCOMMON.
in People vs. employee. That complainant's parents were against their relationship. Ilocos Norte. demands. No. having authority. the complainant was caught in flagrante by her sister-in-law engaging in sexual intercourse with the accused. request or requirement for submission is accepted by the object of said Act. Godoy also involved an adulterous relationship between the accused. such is not always the case if the hard fact is that the accused and the supposed victim are. professor. Nos. as evidenced in one of her letters. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice.R. regardless of whether the demand. manager. 8. WHEN SEXUAL HARASSMENT IS COMMITTED: Work. what more of her acquiescence to have sexual intercourse on a stage near the vicinity where the JS program was being held and prying eyes and ears abound. the Court held: The Court takes judicial cognizance of the fact that in rural areas in the Philippines. intimately related except that. In acquitting the accused. influence or moral ascendancy over another in a work or training or education environment. the alleged victim or her parents for that matter would take the risk of instituting a criminal action in the hope that the court would take the cudgels for them than for the woman to admit her own acts of indiscretion. judges must look at a rape charge without those proclivities and deal and with it with extreme caution and circumspection." People vs. 48 . agent of the employer. 1999) JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF EVERY WOMAN IN RAPE CASES. 9. in truth. Work. rather than have reputation sullied in the community by being bruited around and stigmatized as an adulterous woman. the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused quite a tempest in the otherwise serene community of Vintar. the Court considered the complainant's agreement to engage in pre-marital sexual intercourse "already a disgrace to her family. Dec. THEY MUST LOOK AT THE CHARGE WITH EXTREME CAUTION AND CIRCUSMPECTION Rape is a very emotional word.R. It could precisely be that complainant's mother wanted to save face in the community where everybody knows everyone else. supervisor. Here. and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community. 1999) SEXUAL HARASSMENT LAW (RA 7877) WORK. being interpreters of the law and dispensers of justice. as is usual in most cases. education or training-related sexual harassment is committed by an employer. (PP -vs." In People vs. Any breath of scandal which brings dishonor to their character humiliates their entire families. instructor. or any other person who. requests or otherwise requires any sexual favor from the other. agent of the employer. teacher. EDUCATION OR TRAINING-RELATED SEXUAL HARASSMENT DEFINED. young ladies are strictly required to act with circumspection and prudence. It is not improbable that in some instances. Bawar. and condemnation of the rapist. (PP -vs. and his seventeen-year old student. manager. Education or Training-related Sexual Harassment Defined Work.EDWIN LADRILLO. supervisor. she had to weave the scenario of this rape drama. a neighbor.ERWIN AGRESOR. makes it more likely that the charges of rape were instigated to salvage the complainant's and her family's honor. G. The Court gathered from the complainant's testimony that "she filed the case because she thought it would be better to cry 'rape' and bring suit to salvage and redeem her honor. 124342. trainor. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused and demanding punishment for the abuser. employee. Dec. 119837-39. Great caution is observed so that their reputations shall remain untainted. judges should equally bear in mind that their responsibility is to render justice based on the law. and the natural human reactions to it are categorical: sympathy for the victim and admiration for her in publicly seeking retribution for her outrageous misfortune." Similarly. who was married. either the relationship is illicit or the victim's parents are against it.instituted the complainant for rape against the three to avoid being bruited around as a woman of loose morals. However. G. While the "sweetheart theory" does not often gain favor with this Court. coach. education or training-related sexual harassment is committed by an employer. Castillon. when the relationship is uncovered.
Any person who directs or induces another to commit any act of sexual harassment as herein defined. or who cooperates in the commission thereof by another without which it would not have been committed. In work-related or employment environment: (1) The sexual favor is made as a condition in the hiring or in the employment. or offensive environment for the employee. Any violation of this article shall be punishable by an imprisonment of not more than one year or by a fine of not more than two thousand pesos. or the refusal to grant the sexual favor results in limiting. deprive or diminish employment opportunities or otherwise adversely affect said employee. city and municipal jail shall provide quarters for youthful offenders separate from other detainees. shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided. conditions. VIOLATION OF PD 603 BY A CHILD Prohibited Acts: It shall be unlawful for any child to leave the person or institution to which he has been judicially or voluntarily committed or the person under whose custody he has been placed in accordance with the next preceding article. influence or moral ascendancy over another in a work or training or education environment. That if the violation is committed by a foreigner. if unable to furnish bail. custody or supervision of the offender. except in case of grave physical or moral danger. trainee or apprentice. or both such fine and imprisonment at the discretion of the court: Provided. his parents or guardian shall thereafter exercise no authority over him except upon such conditions as the court may impose. or in granting said individual favorable compensation. or The above acts would result in an intimidating. upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court. The above acts would impair the employee's rights or privileges under existing labor laws. having authority. re-employment or continued employment of said individual. instructor.teacher. Against one whose education. or any other person who. demands. request or requirement for submission is accepted by the object of said Act. or the granting of honors and scholarships or the payment of a stipend. or When the sexual advances result in an intimidating. hostile. to the child. in its discretion. privileges. allowance or other benefits. The court may. subject to the requirements of the Constitution and existing laws. CHILD AND YOUTH WELFARE CODE ( PD 603 with Amendments) RELIGIOUS INSTRUCTION (4) 49 . he shall also be subject to deportation. That in the absence of any such center or agency within a reasonable distance from the venue of the trial. or considerations. coach. apprenticeship or tutorship is entrusted to the offender. promotions. professor. regardless of whether the demand. segregating or classifying the employee which in any way would discriminate. release a youthful (2) (3) In an education or training environment: (1) (2) (3) Against one who is under the care. shall also be held liable under this Act. trainor. CARE OF YOUTHFUL OFFENDER HELD FOR EXAMINATION OR TRIAL A youthful offender held for physical and mental examination or trial or pending appeal. When the sexual favor is made a condition to the giving of a passing grade. The religious education of children in all public and private schools is a legitimate concern of the Church to which the students belong. All churches may offer religious instruction in public and private elementary and secondary schools. or privileges. terms. requests or otherwise requires any sexual favor from the other. actual or imminent. training. hostile or offensive environment for the student. or for any person to induce him to leave such person or institution. the provincial. TERMINATION OF RIGHTS OF PARENTS When a child shall have been committed to the Department of Social Welfare or any duly licensed child placement agency or individual pursuant to an order of the court.
in its discretion upon recommendation of the Department of Social Services & Development or other agency or agencies50authorized by the CouRt. the court." 50 . of Social Services and Development or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required: Provided. the court upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby. or for a shorter period as the court may deem proper. The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the Court may designate subject to such conditions as it may prescribe. or duly licensed agencies or any other responsible person. Upon receipt of the application of the youthful offender for suspension of his sentence. rElease a youthFul offender on50recognizance. However. the court should find that the youthful offender has committed the acts charged against him the court shall determine the imposable penalty. after considering the reports and recommendations of the Department of Social Services and Development or the government training institution or responsible person under whose care he has been committed. after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. PD 1210 ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER AMENDED TO READ AS FOLLOWS: "Art. the court may require the Department of Social Services and Development to prepare and submit to the court a social case study report over the offender and his family. shall from the time of his arrest be committed to the care of the Dept. if unable to furnish bail. PD 1179 APPEAL The order of the court denying an application for suspension of sentence under the provisions of Article 192 above shall not be appealable. for a shorter period as the court may deem proper.offender on recognizance. Suspension of sentence and Commitment of Youthful Offender. SUSPENSION OF SENTENCE AND COMMITMENT OF YOUTHFUL OFFENDER If after hearing the evidence in the proper proceedings. However. instead of pronouncing judgment of conviction. . may suspend all further proceedings and commit such minor to the custody or care of the Department of Social Services and Development or to any training institution operated by the government or any other responsible person until he shall have reached twenty one years of age. that in the absence of any such center or agency within a reasonable distance from the venue of the trial. the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare. 192. the court should find that the youthful offender has committed the acts charged against him. the provincial. including any civil liability chargeable against him.A youthful offender held for physical and mental examination or trial or pending appeal. However. or to any training institution operated by the government. shall determine the imposable penalty. The Youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Services & Development or government training institution as the court may designate subject to such conditions as it may prescribe. they may be committed at any military detention or rehAbilitation center.If after hearing the evidence in the proper proceedings. city and municipal jail shall provide quarters for youthful offenders separate from other detainees. to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required. Care of Youthful Offender Held for Examination or Trial. The court may. . PD 1210 ARTICLE 191 OF PD 603 IS HEREBY AMENDED TO READ AS FOLLOWS "Article 101. The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals. in the case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals. until he shall have reached twenty-one years of age or. to the custody of his parents or other suitable persoN who shall be responsible for his appearance whenever required. including any civil liability chargeable against him. instead of pronouncing judgment of conviction.
as amended. indulge in sexual intercourse or lascivious conduct. massage clinic. or any other consideration or due to the coercion or influence of any adult. an inn. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote. who for money. the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention effected under the provisions of this Chapter. motel.RETURN OF THE YOUTHFUL OFFENDER TO THE COURT Whenever the youthful offender has been found incorrigible or has wilfully failed to comply with the conditions of his rehabilitation programs. disco. vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse. the following: (1) Acting as a procurer of a child prostitute. There is also an attempt to commit child prostitution. 3815. or of the sauna. When the youthful offender has reached the age of twenty-one while in commitment. but are not limited to. ATTEMPT TO COMMIT CHILD PROSTITUTION RA 7610 CHILD ABUSE LAW CHILD PROSTITUTION AND OTHER SEXUAL ABUSE Children. (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means. the Revised Penal Code. In any case covered by this article. That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall reclusion temporal in its medium period. not being a relative of a child. place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. pension house. the convicted offender may apply for probation under the provisions of Presidential Decree Numbered Nine Hundred and Sixty-Eight. the perpetrators shall be prosecuted under Article 335. for rape and Article 336 of Act No. profit. is found alone with the said child inside the room or cubicle of a house. facilitate or induce child prostitution which include. (4) Threatening or using violence towards a child to engage him as a prostitute. resort. There is an attempt to commit child prostitution under Section 5." (3) Taking advantage of influence or relationship to procure a child as prostitute. Provided. hotel. That when the victims is under twelve (12) years of age. vessel. whether male or female. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse. the court shall determine whether to dismiss the case in accordance with the extent preceding article or to pronounce the judgment conviction. paragraph (a) hereof when any person who. for rape or lascivious conduct. are deemed to be children exploited in prostitution and other sexual abuse. and (c) Those who derive profit or advantage therefrom. in the proper case. or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. bar. syndicate or group. paragraph 3. under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath. whether as manager or owner of the establishment where the prostitution takes place. CHILD TRAFFICKING 51 . In the latter case. apartelle or other similar establishments. he shall be returned to the committing court for the pronouncement of judgment. A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act. or should his continued stay in the training institution be inadvisable. or. as the case may be: Provided. health club and other similar establishments. under the Revised Penal Code.
A penalty lower two (2) degrees than that prescribed for the consummated felony under Section 7 hereof shall be imposed upon the principals of the attempt to commit child trafficking under this Act. however. persuade. or (c) When doctor. pension house. The penalty shall be imposed in its maximum period when the victim under twelve (12) years of age. motel. nurseries. (b) When a person. local civil registrar or any other person simulates birth for the purpose of child trafficking. moral or legal duty. shall suffer the penalty of reclusion temporal to reclusion perpetua. scene. or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period. clinics.000). day-care centers. induce or coerce a child to perform in obscene exhibitions and indecent shows. (d) Any person. hospitals. deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph shall suffer the penalty of prision mayor in its medium period and a fine of not less than Forty thousand pesos (P40.000): Provided. and the loss of parental authority over the minor. the penalty shall be imposed in its maximum period. act. the act of buying and selling of a child for money. OTHER ACTS OF NEGLECT. or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play. use. subject or seller/distributor is below twelve (12) years of age. hotel. If the child used as a performer. Any ascendant.000). That should the perpetrator be an ascendant. stepparent or guardian of the minor. nurse. 603. food. as amended. or for any other consideration. shall suffer the penalty of prision mayor in its minimum period. cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. including residential places. (c) Any person who shall induce. guardian. That this provision shall not apply to any person who is related within the fourth degree of consanguinity or affinity or any bond recognized by law. who allows any person to take along with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period 52 . sauna or massage parlor. OBSCENE PUBLICATIONS AND INDECENT SHOWS Any person who shall hire. owner. employ.Any person who shall engage in trading and dealing with children including. agency. hospital or clinic official or employee. local custom and tradition or acts in the performance of a social. or other child-during institutions who can be offered for the purpose of child trafficking. (d) When a person engages in the act of finding children among low-income families. drink or otherwise. ATTEMPT TO COMMIT CHILD TRAFFICKING There is an attempt to commit child trafficking under Section 7 of this Act: (a) When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian. midwife. the penalty to be imposed shall be prision mayor in its maximum period. or barter. beer joint. but not limited to. CRUELTY OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE CHILD’S DEVELOPMENT (a) Any person who shall commit any other acts of child abuse. but not covered by the Revised Penal Code. twelve (12) years or under or who in ten (10) years or more his junior in any public or private place. Provided. as amended. movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. establishment or child-caring institution recruits women or couples to bear a children for the purpose of child trafficking. a fine of not less than Fifty thousand pesos (P50. ABUSE. cabaret. whether for occupancy. discotheque. whether live or in video. manager or one entrusted with the operation of may public or private place of accommodation. beach and/or other tourist resort or similar places shall suffer the penalty of prision mayor in its maximum period and a fine of not less than Fifty thousand pesos (P50. (b) Any person who shall keep or have in his company a minor.
assault. (d) The safety and protection of those who provide services including those involved in fact-finding missions from both government and non-government institutions shall be ensured. detachments. for a shorter period as the court may deem proper. primary health and emergency relief services shall be kept unhampered. or duly-licensed agencies or any other responsible person. couriers. courier. and (f) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated due to armed conflict. (b) Children shall not be recruited to become members of the Armed Forces of the Philippines of its civilian units or other armed groups. (e) Any person who shall use. They shall not be subjected to undue harassment in the performance of their work. The penalty for the commission of acts punishable under Article 337. homicide. the Revised Penal Code. the following policies shall be observed. until he has had reached eighteen (18) years of age or. (b) Immediate free legal assistance. To attain this objective. and white slave trade. other intentional mutilation. for the crimes of qualified seduction. If after hearing the evidence in the proper proceedings the court should find that the aforesaid child committed the acts charged against him. the Revised Penal Code. respectively. acts of lasciviousness with the consent of the offended party. the court shall suspend all further proceedings and shall commit such child to the custody or care of the Department of Social Welfare and Development or to any training institution operated by the Government. 262. and supply depots. torture or other cruel. for the crimes of murder. the court shall determine the imposable penalty. as amended. after considering the reports and recommendations of the Department of Social Welfare and Development or the agency or responsible individual under whose care he has been committed. or spies. shall be reclusion perpetua when the victim is under twelve (12) years of age. corruption of minors. CHILDREN AS ZONES OF PEACE Children are hereby declared as Zones of Peace. (a) Separate detention from adults except where families are accommodated as family units. nor be allowed to take part in the fighting. It shall be the responsibility of the State and all other sectors concerned to resolve armed conflicts in order to promote the goal of children as zones of peace. (c) Immediate notice of such arrest to the parents or guardians of the child. guide or spy is entitled to the following units. instead of pronouncing judgment of conviction. 340 and 341 of Act No. and serious physical injuries. For purposes of this Act. RIGHTS OF CHILDREN ARRESTED FOR REASONS RELATED TO ARMED CONFLICT Any child who has been arrested for reasons related to armed conflict. or Conduct any illegal activities. or used as guides. including any civil liability chargeable against him. shall bE53One ( dEgree higher tHan that53imposed by law when the victim is under twelve (12) years age. hospitals and rural health units shall not be utilized for military purposes such as command posts. the penalty for the commission of acts punishable under Articles 248. The victim of the acts committed under this section shall be entrusted to the care of the department of Social Welfare and Development. 3815. 53 . (a) Children shall not be the object of attack and shall be entitled to special respect. paragraph 2. barracks. as amended.000). either as combatant. 249. Act as conduit or middlemen in drug trafficking or pushing. respectively. shall suffer the penalty of prision correccional in its medium period to reclusion perpetua.and a fine of not less than Fifty thousand pesos (P50. They shall be protected from any form of threat. force or intimidate a street child or any other child to : (1) (2) (3) Beg or use begging as a means of living. inhumane or degrading treatment. and the loss of the license to operate such a place or establishment. paragraph 1 of Act No. (c) Delivery of basic social services such as education. and 263. and (d) Release of the child on recognizance within twenty-four (24) hours to the custody of the Department of Social Welfare and Development or any responsible member of the community as determined by the court. (e) Public infrastructure such as schools. 339. 3815. coerce. However.
Thus. SUBJECT TO JUDICIAL REVIEW It is not the responsibility of this Court to order the release of accused Ricky Galit without the benefit of a review of the recommendation of the Department of Social Welfare by the trial court. to cause undue and sensationalized publicity of any case of violation of this Act which results in the moral degradation and suffering of the offended party. RA 7658 EMPLOYMENT OF CHILDREN Children below fifteen (15) years of age shall not be employed except: 1) When a child works directly under the sole responsibility of his parents or legal guardian and where only members of the employer's family are employed: Provided. morals and normal development of the child. That the following requirements in all instances are strictly complied with: (a) The employer shall ensure the protection. The Court. the employer shall first secure. does not show that he filed with the trial court an application for suspension of sentence so as to put into operation the benevolent provisions of Presidential Decree No. That the parent or legal guardian shall provide the said minor child with the prescribed primary and/or secondary education. Art 196 of PD 603 provides: "Art. there is no doubt in our mind that he was sane during his two-year confinement in the center. health and morals. Provided. 603. safety. 192 The record. a work permit from the Department of Labor and Employment which shall ensure observance of the child. and the duration and arrangement of working time.The aforesaid child shall subject to visitation and supervision Development or any duly-licensed agency such other officer as the court may designate subject to such conditions as it may prescribe. Dismissal of the case. he was not diagnosed as insane but was suffering from pedophilia. health. and the approval of the Department of Labor and Employment: and Provided. theater. The employment contract is concluded by the child's parents or legal guardian. or 2) Where a child's employment or participation in public entertainment or information through cinema. That his employment neither endangers his life. The Department of Labor and Employment shall promulgate rules and regulations necessary for the effective implementation of this Section. unfortunately for accused-appellant Buena. It shall be unlawful for any editor. and reporter or columnist in case of printed materials. announcer or producer in case of television and radio broadcasting. has behaved properly and has shown his capability to be a useful member of 54 . pedophilia being dissimilar to insanity. publisher. 196. if possible. CONFIDENTIALITY At the instance of the offended party. (b) The employer shall institute measures to prevent the child's exploitation or discrimination taking into account the system and level of remuneration. safety. radio or television is essential: Provided. PEDOPHILIA IS NOT INSANITY When accused-appellant was committed to the National Center for Mental Health. THE COURT CANNOT MOTU PROPIO GIVE HIM THE BENEFITS OF ART. In the above exceptional cases where any such child may be employed." IF MINOR DO NOT APPLY FOR SUSPENSION OF SENTENCE IT IS DEEMED WAIVED. — If it is shown to the satisfaction of the court that the youthful offender whose sentence has been suspended. with the express agreement of the child concerned. The aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner as appeals in criminal cases. subject to the approval and supervision of competent authorities. his name may be withheld from the public until the court acquires jurisdiction over the case. however. before engaging such child. and (c) The employer shall formulate and implement. further. has no other choice but to deny him this privilege. a continuing program for training and skills acquisition of the requirements. producer and director of the film in case of the movie industry. DISCHARGE. therefore. nor impairs his normal development. REPORT AND ECOMMENDATION OF THE DEPARTMENT OF SOCIAL WELFARE.
Cordo~a. Paragraph (a). it shall dismiss the case and order his final discharge.) FAILURE OF DEFENSE TO ASK FOR SUSPENSION OF ARRAIGNMENT NEGATES INSANITY Appellant Eduardo Cordova did not even ask for the suspension of his arraignment on the ground that he was suffering from insanity. even if he was indeed a co-conspirator or an accessory.D. V.) There is a further obstacle that stands in the way of Estorque's conviction. The inQuiry is not a CriminaL prosecution but is ratheR limited to the determination of the offender's55proper education and rehabilitation during his commitment in the Training Center and his moral and social fitness to re-join the community." It is therefore clear that in cases where the DSWD recommends the discharge of a youthful offender. (Pp. And even if we are to consider the allegations that he had committed the imputed acts "with intent to kill" as sufficient compLiance — As we hAve in the past — he wou. GR 97432.d still not be held liable as no proof was offered during trial that he had so acted with discernment. shall be suspended. 603. V. 4. TO BE CRIMINALLY LIABLE. The last paragraph of section 2 of Presidential Decree No. Sec. emphasis supplied) (Pp. 1210. The benefits of suspension of sentence are not available where the youthful offender has been convicted of an offense punishable by life imprisonment or death. Eduardo Cordova even took the witness stand to testify. GR 83373-74.D. he would still be exempt from criminal liability." (Par. MUST ACT WITH DISCERNMENT 55 . 1210. even before reaching the age of majority. it is the trial court before whom the report and recommendation is subject to judicial review. there are no allegations in both informations that Estorque had acted with discernment. (Pp. Rule 116 of the Revised Rules of Court provides that the arraignment of an accused who appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. 1179. provides: "The benefits of this article shall not apply to a youthful offender who has once enjoyed suspension of sentence under its provisions or to one who is convicted of an offense punishable by death or life imprisonment or to one who is convicted for an offense by the Military Tribunals. P. supra. accused Ricky Galit and Raquel Tagalog did not appeal from the judgment of the trial court. Galit.D. material and relevant facts to confirm that the youthful offender has indeed been reformed and is ready to re-enter society as a productive and law-abiding citizen. V.) CHILD & YOUTH WELFARE CODE. NOT APPLICABLE TO DEATH OR YOUTHFUL OFFENDER. (Pp. as amended by P. is given to the trial court. Since insanity is in the nature of a confession and avoidance. While it has been proven that he was only thirteen years old at the time of the incident. it musT be proven beyond reasonaBle doubt. the trial judge must not base his judgment on mere conclusions but should seek out concrete. 3/1/94) SUSPENSION OF SENTENCE NOT APPLICABLE IF PENALTY IS RECLUSION PERPETUA.the community. LIFE IMPRISONMENT OR DEATH As aforesaid. Caution. Cordova. Galit. To begin with. The quantUm of eviDence required to overthrow the presumption of sanity is proof beyond reasonable doubt. Moreover. v. (Pp. A 13 YEAR OLD. ACCUSED. 7/5/93) EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF COMMISSION OF THE CRIME The law presumes all acts to be voluntary. supra. the youthful offender is not to be tried inew for the same act for which he was charged. however. however. Cordova. upon recommendation of the Department of Social Welfare. supra. 2. v. In reviewing the DSWD's recommendation. Recommendation alone is not sufficient to warrant the release of a youthful offender. No. Section 12. In the case at bar. No. which amended certain provisions of P. and that it is improper To presume that acts were done uNconsciously. Neither did the People question the suspension of their sentence. an accused is presumed to have been sane at the time of the commission of the crime in the absence of pOsitive evidence to show that he had lost his reason or was demented priOr to or during the Perpetration of the crime. Accordingly.
when he was sentenced on JuLy 30. 603. 68. In56Plain and siMpLe language. prompting the State to regulate the same. Peña. 5/30/83) case and order the final discharge56of said offender.) REPUBLIC ACT NO. V. supra. code. CANNOT BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS OLD AT THE TIME56OF PROMULGATION OF HIS SENTENCE It is true that Venancio Villanueva was a youthful offendez as defined by Art. the law imposes duties both to the access device issuer and holder. or "card issuer. 1975. 603 MAY BE GIVEN RETROACTIVE EFFECT Where P. (Villanueva v. personal identification number. good. 19 because he was under 21 years56oF AGe when he coMmitteD the oFfense on February 22. 80 SCRA 589. services or any other thing of value or to initiate transfer of funds (other than transfer originated solely by paper instrument) is now subject to regulation. 192 (as well as Art. otherwise known as The Access Devices Regulation Act of 1998. 12/15/82) WHEN PRESIDENTIAL DECREE NO. DEFINED The civil liability for damages referred to is apparently that obligation cReated by or arIsing from the crime. December 20. 603. and penalize certain acts deemed unlawful for being detrimental to either the issuer or holder. 107 and 345(1) of the Revised Penal Code. 603 is more favorable to the accused in that the sentence against them may he suspended. plate. prohibiting fraudulent acts committed relative thereto. (Pp. or both. hence.D. 599) and is based upon a finding of the guilt of the accused. or other means of account access t hat can be used to obtain money. 1998. said Decree may be given retroactive effect. The law mandates an access device issuer. GR L-45280-81. 8484. on February 3. equipment. 104(3). as amended by Presidential Decree N. hut also in the light of the provisions of Article 22 of the Revised Penal Code. 8484 (The Access Device Regulation) An act regulating the issuance and use of access devices. These are: (1) to dismiss the 56 . electronic serial number. Mendez. He is entitled to a two-degree reduction of the penalty (Art. RPC). GR L-48131. The issuance and use of access devices are ought to regulate in order to protect the rights and define the liabilities of parties in commercial transactions involving them. L-36434. The recent advances in modern technology have led to the extensive use of certain devices in commercial transactions. or instrumental identifier.RECLUSION PERPETUA SENTENCE The Child and Youth Welfare Code does not apply to those convicted of offenses punishable by death. not only with the end in view of giving force and effect to the laudable policies for which the P. ALTERNATIVE COURSES OF ACTION OF THE COURT WHEN YOUTHFUL OFFENDER IS RETURNED AFTER REACHING THE AGE OF MAJORITY The trial court has two alternative courses of action with respect to a youthful offender whose sentence it had suspended and who is returned to the court upon his reaching the age of majority. The fact is Bolioc is now twenty-three years old. otherwise known as ex delicto the imposition of which is mandated by56Articles 100. 197) he was no longer entitled to suspension of sentence. Garcia. otherwise known as the Child and Youth Welfare Code was promulgated. providing penalties and for other purposes. (People vs. GR L-45798. or other telecommunication service. or reclusion perpetua (Presidential Decree No. as amended by Presidential Decree Nos. (Pp.D. Congress enacted Republic Act Number 8484.) CIVIL LIABILITY OF YOUTHFUL OFFENDER. V. (People v. (Pp. V. 1179 and 1210). account number. or (2) to prOnounce the judgment of conviction. Termed as "access devices" by RA No. any card. Garcia. Essentially. 1977. supra. Garcia. However. he was over 21 years old and under the terms of Art. CFI. 6/11/81) PRESIDENTIAL DECREE NO. He is not entitled to a suspended sentence. 603." to disclose either in writing or orally in any application or solicitation to open a SUSPENSION OF SENTENCE. It is either dismIssal or sENtence. 1974.
the above omission is made punishable if the following elements occur. and 5)) over the limit fee. may suffer from constitutional infirmities. b) a counterfeit access device. 1988) Supreme Court turned down the argument of private respondent grounded on the adhesion principle saying indeed. the use. It is quite surprising. 8484 to think that it was already in effect when the resolution was promulgated. or d) any genuine access device. 4) cash advance fee. Moreover. Thus. purchases made thereafter should not accrue on the part of the holder. there are certain exceptions for the above requirement of disclosure not to apply. without informing the credit card company of the place where he could actually be found. the computation used in order to arrive at such charges and fees required. the law provides for presumptions of Intent to defraud on the basis of mere possession. in a contract of adhesion the maker of the contract has all the advantages. but in no event later than the date of the delivery of the card. not in the name of the possessor.credit card account the following: 1) annual percentage rate. and that the consumer is not obligated to accept the card or account and the consumer will not be obligated to pay any fees or charges disclosed unless the consumer accepts the card or account by using the card. the one to whom it is offered has the absolute prerogative to accept or deny the same. in this case decided in 1999. Thus. and inducing. 1999). if the same should include terms difficult to interpret as to hide the true intent to the detriment of the holder. In one case (Ermitano v. This is when application or solicitation is made through telephone. control or custody of: a) an access device without lawful authority. or any form of false pretense or misrepresentation. fictitious identities and addresses. to be explained in detail and a clear illustration of the manner by which it is made to apply is also necessary. possession. Nonetheless. Nonetheless. November 9. Inc. The credit cards holder contended that the credit card company should be blamed for the charges the same being unwarranted by the contract. and that a clear disclosure of the information enumerated in the preceding paragraph is made in writing within thirty (30) after the consumer requests for the card. GR No. At first glance. However. false information. and fee in connection with telephone solicitation unless the customer signifies acceptance by using the card. contracts which provide for ambiguous terms of payment. The constitution provides that a person shall not be held to answer to a criminal offense without due process 57 . the Court was concerned about an access device issuer's vulnerability to abuse the provisions of the contract. when applied in real cases. c) an access device or medium on which an access device is written not in the ordinary course of the possessor's business. enticing or in any manner allowing one to use access device fraudulently applied for are considered unlawful. trafficking in. and third. 2) annual and other fees. that the Court did not make reference to RA No. An access device fraudulently applied for means any access device that was applied for or issued on account of the use of falsified document. 70766. April 21. 127246. The Court said notwithstanding the fact that the contract of the parties is a contract of adhesion the same is valid. A card holder who abandons or surreptitiously leaves the place of employment. Failure on the part of the issuer to fulfill the above requirements will result in the suspension or cancellation of its authority to issue credit cards. The element of fraud is indispensable for this provision of RA 8484 to apply. Second. vs. One. after due notice and hearing. It is a condition sine qua non before one may be charged with the defined offense. an access device holder may be penalized when he or she fraudulently applied for such device. the Securities and Exchange Commission and such other government agencies. the Supreme Court had the occasion to rule on the validity of contracts involving credit cards. shall be prima facie presumed to have used his credit card with intent to defraud.000. however..00). the outstanding and unpaid balance is past due for at least ninety (90) days and is more than ten thousand pesos (P10. there is an application or solicitation. Thus. if at the time of such abandonment or surreptitious leaving. As stipulated. IAC (GR NO. in American Express International Co. business or residence stated in his application for credit card. Clearly. failure on the part of the issuer to disclose such information. by the Banko Sentral ng Pilipinas. any device making or altering equipment. the above presumptions. such application or solicitation should include the information required by law. 3) and balance calculation method. to the extent practicable. however. imposition of charges and fees may be held void invoking the principle of the contract of adhesion. On the other hand. provided that the issuer does not impose any annual fee. holding it void requires no hesitation. once a lost card has been reported. In sum therefore.
fraudulently misrepresents himself by giving wrong identity. The contract stipulated that in case of lost. The Court in this case held the issuer in breach of the contract. and shall include packaging. the issuer still charged the purchases against the former. The credit card holder lost his credit card which he immediately reported to the card issuer. In this case. 9165) DEFINITIONS OF TERMS Chemical Diversion – the sale. The two other stages of felony. it may be argued that such presumptions are rebuttable ones. through or out of the country under the supervision of any unauthorized officer. In which case. supply or transport of legitimately imported.000. relabeling or concealment of such transaction through fraud. the accused shall suffer imprisonment of not less than twelve (12) years and not more than twenty (20) years. especially credit cards. misdeclaration. 58 . two employees of the Asian-Pacific Broadcasting Co. or property believed to be derived directly or indirectly from any offense. equipment or paraphernalia. a holder or mere possessor of a counterfeit fraudulently applied for access device may be convicted and be made to suffer imprisonment and fine. Fraud may be committed by the issuer by making false or vague information in the application or solicitation to open credit card accounts.00 from petitioner. it is not the courts which impose such sanctions but administrative agencies such as the Bangko Sentral and the Securities and Exchange Commission. to pass into. 1995) which shows how credit card applicants through false representation were able to amass in simple terms P790. the same should be reported immediately. Take the case for instance of Citibank v. possession of or trafficking in unauthorized or counterfeit access devices. Gatchalian (GR No.A. attempted and frustrated are meted out with the penalties of imprisonment and fine albeit only in fractions of the above penalties.000. On the other hand. in-transit. to any person or entity engaged in the manufacture of any dangerous drug. despite the prompt reporting of the holder. on the other hand. Eermitano v. labeling.. mixtures or in concentrated form. use. which may be considered as mere administrative sanctions. this case involves an illegal dismissal case where a Citibank employee was found guilty of gross negligence for effecting the delivery of the credit cards. DANGEROUS DRUG ACT OF 2002 (Republic Acts No. In fact. (ABCI) applied for nineteen (19( credit cards with Citibank using different names other than their real names. C. repackaging. The law provides for sixteen (16) prohibited acts which refer to the production. or to facilitate prosecution of that offense. as defined by the Revised Penal Code is also made punishable. manufactured or procured controlled precursors and essential chemicals. A credit card company may only be meted out the penalty of cancellation or suspension. The Citibank approved the applications and the credit cards were delivered to them for use. Insofar as access device issuers are concerned. In this case..of law. The applicant or holder. The penalties provided for by RA 8484 are imprisonment and fine. otherwise purchases made shall be charged to the holder. Her dismissal was affirmed in this case. However. the danger lies in the shifting of the burden of proof from the prosecution to the defense. with a view to gathering evidence to identify any person involved in any dangerous drug related offense. distribution. use of front companies or mail fraud. the law basically seeks to address the issue of fraud in the issuance and use of access devices.00) or twice the value of the offense. or bloated income. Thus. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions using access devices. Imprisonment is from six (6) years to ten (10) years and fine ranges from ten thousand pesos (10. fraudulent use of permits. 8484 may seem to favor the issuer. In the final analysis. The penalties are increased in case the offender has a similar previous conviction. destruction of documents. January 18. However. Controlled Delivery – The investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical. in diluted. R. meaning if he was previously found violating RA 8484. Inc.A. Obtaining money or anything of value through the use of an access device with intent to defraud or gain. may be a case in point. 111222. false profession or employment. and fleeing thereafter. whichever is higher.
or has reasonable ground to believe on or suspects.) Importation of any dangerous drug. 3. transportation. in violation of this Act. or its any other name which refers to the drugs having such chemical composition. Protector/Coddler – Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence. adopting partially the penalties in R. trades. In planting evidence any person now maybe held liable. Under this Act there is no more distinction between prohibited drug and regulated drugs and/or controlled precursors and essential chemicals enumerated in Tables I and II of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The penalties provided by R. which is an integral part of this Act.) Importation of any dangerous drug and/or controlled precursor and essential chemical through the use of a diplomatic passport. administration.) Organizing. the provisions of the Revised Penal Code have no suppletory effect except for minors who may be sentenced to reclusion perpatua. has violated the provision of this Act in order to prevent the arrest. placing. 2.A. prosecution and conviction of the violator. or levels of use. 9165. 6425 that have been changed? 1. Drug Dependence – As based on the World Health Organization definition. Drug Syndicate – Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act.A.) Importation of any controlled precursor and essential chemical. in which the use of psychoactive drug takes on a high priority thereby involving. or distributes.A. 7659 was changed . effects or in the immediate vicinity of an innocent individual for the purpose of implicating. including any and all species of opium poppy or any part thereof or substances derived thereform even for floral. house. dispensation. it is a cluster of physiological. gamma hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and their derivatives. without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirement.A. 5. importation. and possession of any dangerous drug and/or controlled precursor and essential chemical. 6425. culture. dispenses. 4. termination. What are the significant Provisions in R. managing. Pusher – Any person who sells. delivery. administers. screening or facilitating the escape of any person he/she knows. among others. regardless of the quantity and purity involved. or acting as a “financier” of any of the illegal activities penalized under Section 4 of the Law. on any terms whatsoever. incriminating. decorative and culinary purposes. 9165? Methylenedioxymethamphetamine (MDMA) or commonly known as “Ecstasy”. trading. exportation. through any overt or covert act whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person. manufacture. Planting of evidence – the willful act by any person of maliciously and surreptitiously inserting. harboring. delivers. ACTS PUNISHABLE UNDER THE LAW 1. 2. or gives away to another. sale. Paramethoxyamphetamine (PMA). 59 . power or position in shielding. 4. including any of its isomers or derivatives in any form. Illegal Trafficking – The illegal cultivation. as determined and promulgated by the Board in accordance to Section 93. a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance-taking behavior in terms of its onset. lysergic acid diethylamine (LSD). diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry. or imputing the commission of any violation of this Act. adding or attaching directly or indirectly. behavioral and cognitive phenomena of variable intensity. distribution.) Acting as “protector/coddler” of anyone who violates Section 4 of the Law.A. dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transaction. What are the new kinds of drugs that are included in R.Controlled Precursor and Essential Chemicals – Includes those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex. 3. Art XI of this Act of R. Before. only law enforcement agents. Trimethoxyamphetamine (TMA).
association or juridical entity to which they are affiliated. seized or surrendered drugs. association or any juridical entity. 8. any alien who violates such provisions of the Law.) Possession of Drug. regardless of quantity and purity involved. and transportation of any dangerous drug and/or controlled precursor and essential chemical. Instrument. or Resort 14.27). tolerates. estate administrator. Instrument. administration.) Sale. vessel. 22. Apparatus and Other Paraphernalia for Dangerous Drugs during Parties.000. 2. president. couriers and messengers. trading.) Employees and Visitors of a Den. 8 16. In addition to the penalties prescribed in the unlawful act committed.) Unlawful Prescription of Dangerous Drugs 27. Any government official or employee found guilty of the unlawful acts punished under the Law shall be imposed the maximum 60 . distribution. shall be deported immediately without further proceedings. 2. dispensation. estate administrator. instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts punished under the Law shall be penalized with life imprisonment to death and a fine ranging fromP500.) Maintenance and keeping of Original Records of Transaction on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals 25. trustee. or in any other capacity directly connected to the trade of dangerous drugs and/or controlled precursor and chemicals.00 to P10. manager. Social Gathering or Meetings.) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of any dangerous drugs and/or controlled precursor and essential chemical.) Sale. Dive or Resort where any controlled precursors and essential chemical is used or sold in any form. if such vehicle. administration.) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources thereof. trading. ASSOCIATIONS.) Possession of equipment.) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals 15. president. (b) Sale. equipment or other facility as an instrument in the importation. plant sources of dangerous drugs.6. or officer who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal. 10. OR OTHER JURIDIUCAL ENTITIES 1. 18. 19. aircraft.00 and with perpetual disqualification from any public office (Sec. dive. administration. after service of sentences. dispensation. Dive. CRIMINAL LIABILITY OF ALIENS.) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals.000. or acting as a broker in any of such transactions. equipment or other instrument is owned by or under the control or supervision of the partnership. 5. and Other Paraphernalia for Dangerous Drugs 20. or Resort 13. the partner. OFFICERS OF PARTNERSHIP. dispensation. 23. administration. Apparatus. (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical. transportation. aircraft. The penalty provided for the offense under the Law shall be imposed upon the partner. Any public officer or employee who (1) misappropriates. manager. delivery. (c) Maintenance of a den. Dive or Resort where any dangerous drug is used or sold in any form. 7.) Acting as “protector/coddler” of a maintainer of a Den. trading. or resort where dangerous drugs is used in any form. distribution and transportation of any controlled precursor and essential chemical.) Acting as a protector/coddler of any violator of the provision of Sec. CORPORATION. Apparatus. Drive. 21.) Manufacture or Delivery of Equipment. (2) misapplies or (3) fails to account for confiscated. delivery. or chemical diversion.000.) Acting as a protector or coddler of any violator of Sec. 9. distribution. distribution and transportation of dangerous drugs. or officer who knowingly authorizes.) Use of Dangerous Drugs. 12. sale. director. Social Gathering or Meetings.) Possession of Equipment. trustee. 3. director. and (e) Cultivation or culture of plants which are sources of dangerous drugs. 11. unless the penalty is death. corporation. corporation. CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES 1. 17. trading. dispensation. In case the violation of the Law is committed by a partnership. controlled precursors and essential chemicals. or manufacture of dangerous drugs.) Possession of Dangerous Drugs During Parties. and other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. Unnecessary Prescription of Dangerous Drugs 26.) Maintenance of a Den.) Maintenance of a Den.) Use by drug pushers of minors or mentally incapacitated individuals as runners. or acting as a broker in such transaction. 24. or consents to the use of a vehicle. Instrument.
regardless of quantity and purity. chemical engineer. administration. but not limited to.) The drug pusher use minors or mentally incapacitated individuals as runners. 1.) The victim of the offense is a minor or mentally incapacitated individual.000.) Any employment of a practitioner. subdivisions. 29). diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same 2.) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s b. church or school premises. 29). including government-owned or controlled corporations (\sec.000. the rights to dispose of such property by any act or any conveyance inter vivos. rights shall also be suspended during the pendency of an appeal from such conviction (Sec. the right to vote and be voted for. or should a dangerous drug and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of death of a victim. Any elective local or national official found to have (1) benefited from the proceeds of the trafficking of dangerous drugs as prescribed in the Law. shall be punished with death. (Sec.27) CRIMINALLIABILITY OF PRIVATE INDIVIDUAL 2. (Sec.) The sale trading. regardless of quantity and purity. and political rights such as but not limited to.00 to P50. Any person violating any regulation issued by the Dangerous Drug Board shall be punished with imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10.A. dispensation. 3.) Any clandestine laboratory was concealed with legitimate business operations.) In case the clandestine laboratory is undertaken or established under the following circumstances: a. 28). public official or foreigner. and intermediaries. 4.A. shall suffer the penalty of death. Any person found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical. distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpired within one hundred (100) meters from the school 3. delivery. e.) Any clandestine laboratory was secured or protected with booby traps. 7659). or has (2) received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drug as prescribed in the law.00 in addition to the administrative sanction which may be imposed by the Board (Sec.) Any phase of manufacturing process was established or undertaken within one hundred (100) meters of a residential. or in any other capacity directly connected to the dangerous drug and/or controlled precursor and essential chemical trade.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled precursor and essential chemicals was done through the use of diplomatic passport. either as to the person or property of any ward. (Sec. c. Such 61 . 32) CRIMINAL LIABILITY FOR PLANTING OF EVIDENCE Any person who is found guilty of planting nay dangerous drug and/ or controlled precursor and essential chemicals.penalties provided for the offense and shall be absolutely perpetually disqualified from holding any public office. but the one who gave must be convicted first by final judgment. Previosly. couriers and messenger. 5. the right of parental authority or guardianship.35) AGGRAVATING CIRCUMSTANCES DRUG RELATED CASES 1. its divisions.9165) shall be disqualified to exercise his/her civil rights such as. shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government. d. ACCESORY PENALTIES Any person convicted under this Law (R. CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS FROM DRUG TRAFFICKING – whether or not he know that it came from drugs. business. only law enforcement agent maybe held liable (R.
TERMINATION OF THE GRANT OF IMMUNITY The immunity above-granted shall not attach should it turn out subsequently that the information and/or testimony is false. 6981 or the Witness Protection. 14. 968. apparatus and other paraphernalia use for dangerous drugs. any condition or undertaking. injecting. and when lawfully obliges to do so. malicious. or made only for the purpose of harassing. or in the proximate company of at least two (2) person. 7.) Possession or having under his/her control any equipment. ingesting or introducing any dangerous drug into the body. identities and arrest of all or any of the members thereof. except minors who are first-time offenders. In case the informant or witness under the Law fails or refuse to testify without just cause. No.) Such information and testimony can be corroborated on its material points. Provide. 12.D. social gatherings or meetings.) Such information are not yet in the possession of the State. 2. That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given. who voluntarily gives information about any violation of Section 4. In such case. 4.Rights to Self-incrimination do not refer to giving blood. the informant or witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under the Law or any other law. that there is no direct evidence available for the State except for the information and testimony of the said informant or witness. 5. finally. 15 and 19. during parties. 8. 6. 3. Article II of this Act. regardless of the penalty imposed by the Court.) The informant or witness has not been previously convicted of a crime involving moral turpitude. Article II of this Act as well as any violation of the offenses mentioned if committed by drug syndicate. apparatus and other paraphernalia fit of intended for smoking. any person who has violated Sections 7. administering.) The information and testimony are necessary for the conviction of the person described above.) In case the person uses a minor or a mentally incapacitated individual to deliver equipment. reduced into writing. or of any information leading to the whereabouts. decree or order shall be deemed terminated. or a social gathering or meeting. or should he/she violate any condition accompanying such immunity as provided 62 . 2. lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. molesting or in any way prejudicing the persons described in Section 33 against whom such information or testimony is directed. cannot avail of the privilege granted by the Probation Law of P. or in the proximate company of at least two (2) person WHAT ARE THE PRIVILEGE NOT AVAILABLE TO VIOLATOR OF THIS ACT? 1. consuming.) Any person found possessing any dangerous drug during a party. Security and Benefits Act of 1991. IMMUNITY FROM PROSECUTION AND PUNISHMENT Immunity from Prosecution and punishment – Notwithstanding the provision of Section 17. Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. further. as amended. Provided.Pendency of appeal suspend the right of the accused . 8. that the following condition concur: 1. Note:. shall be exempted from the prosecution or punishment for the offense with reference to which his/her information of testimony in bar of such prosecution.) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.6. and 5.11.) Any person convicted for drug trafficking or pushing under this Act. 13 and 16. Provided. and who willingly testifies against such persons as described above. instrument. except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness. instrument.) The informant or witness shall strictly and faithfully comply without delay.
including confinement in a Center. That all persons who by the nature of their profession carry firearms shall undergo drug testing. other than the confidential record to be retained by the DOJ relating to the case. shall be subjected to undergo a random drug test as contained in the company’s work unless and regulation. the court. which shall be borne by the employer. his/her immunity shall be removed and he/she shall be likewise be subjected to contempt and/or criminal prosecution. c.) Officers and members of the military. Such an order. shall be forwarded to the court and their use shall be determined by the court.) Applicants for driver’s license – no driver’s license shall be issued or renewed to nay person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs. Provided. for purposes of reducing the risk in the workplace.above. shall discharge the accused and dismiss all proceedings. shall be covered by Section 60 of this Act (R.) Applicants for firearm’s license and permit to carry firearms outside of residence. the record of a drug dependant who was not rehabilitated. Any officer or employee found positive for the sue of dangerous drug shall be dealt with administratively which shall be a ground for suspension or termination. (Sec 34. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof him for any purpose (Sec. police and other law enforcement agencies. Function The Dangerous Drug Board shall be the policy-making and strategy formulating body in the planning and formulation of policies and programs on drug prevention and control. subject to the provision Article 282 of the Labor Code and pertinent provisions of the Civil Service Law. such individual cannot avail of the provision under Article VIII of the Law. – Officers and employees of public and private offices. However. the court shall enter an order to expunge all official records. (Sec.) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. 9165). taking into consideration public interest and the welfare of the drug dependant (Sec. 63 .) Officers and employees of public and private offices.) In case the informant or witness referred to under the Law falls under the applicability of Section 34.A. decree or order shall be deemed terminated. – All applicants for firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs. e. 77) a. or who escaped but did not surrender himself/herself within the prescribed period. which shall be kept confidential. 64) DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER If the accused first time minor offender under suspended sentence complies with the applicable rules and regulation of the Board. b.) All persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have undergo a mandatory drug test. as the case may be and the enjoyment of all rights and benefits previously accorded him under the Law or in any other law. CONFIDENTIALITY OF RECORDS UNDER THE COMPULSARY SUBMISSION PROGRAM The records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program. police and other law enforcement agencies shall undergo an annual mandatory drug test. – Officers and members of the military. shall restore the accused to his/her status prior to the case. d. upon a favorable recommendation of the Board for a final discharge of the accused. 67) THE DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY The Dangerous Drug Board A. PERSON/S WHO ARE SUBJECT TO THE MANDATORY DRUG TESTING f. Upon the dismissal of the proceedings against the accused. whether domestic or overseas. or who was charged for violation of Section 15 of this Act.
(5) Secretary of the Department of Labor and Employment or his/her representative. R. 9165) B.) Powers and Duties a. Thereafter.) Administer oath. R. The other twelve (12) members who shall be ex officio members of the Board are the following: (1) Secretary of the Department of Justice or his/her representative. (9) Secretary of the Department of Education or his/her representative. Under Section 78 of R. (3) Secretary of the Department of National Defense or his/her representative. who shall possess At least seven-year training and experience in the field of dangerous drugs and in any of the following fields: in law. 6424 as amended.A. criminology. and (b) The chairman or president of a non. Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose rank shall in no case be lower than undersecretary. Composition Under R.A. the person appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified. The Agency shall served as the implementing arm of the Dangerous Drug Board. and the remaining two (2) shall be regular members. shall be appointed by the President of the Philippines.A. 8. 82). (f) The Minister of Social Service and Development or his representative. three (3) of which are permanent members. and (g) The Minister of Local Government or his representative (Sec. d. The Philippine Drug Enforcement Agency (PDEA) Carry out the provision of the Dangerous Drug act of 2002. medicine. the effects or proceeds of the crime as provided by law and take custody thereof.chairman or president of a nonchairman or president of a non-government organization involved in dangerous drug campaign to be appointed by the President of the Philippines. and shall be responsible for the efficient and effective law enforcement of all provisions of any dangerous drug and/or controlled precursor and essential chemicals as provided for in the Law. The existing Secretariat of the National Drug Law Enforcement and Prevention Coordinating Center as created by Executive Order No. (11) Chairman of the National Youth Commission. (e) The Minister of Finance or his representative. (10) Chairman of the Commission of Higher Education or his/her representative. Of the two (2) other members. one (1) shall serve for four (4) and the other for two (2) years.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use. 83. (Sec. 6424) The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of Investigation shall be the permanent consultant of the Board. 35 Art. 61 is hereby modified and absorbed by the PDEA (Sec. abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Decree No. The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the Philippines.A.) Arrest and apprehend as well as search all violators and seize or confiscate. The President shall designate a Chairman. (8) Secretary of the Department of Foreign Affairs or his/her representative. who shall have the rank of undersecretary. the membership of the Dangerous Drugs Board was expanded to seventeen (17) members. (c) The Minister of National Defense or his representative. for this purpose the prosecutors and enforcement 64 . issue subpoena and subpoena duces tecum relative to the conduct of investigation involving violation of this Act. the Dangerous Drug board was composed of seven ex officio members as follows: (a) The Minister of Health or his representative. (2) Secretary of the Department of Health or his/her representative. (4) Secretary of the Department of Finance or his/her representative.B. who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. and (12) Director General of the Philippine Drug Enforcement Agency. (6) Secretary of the Department of Interior and Local Government or his/her representative. twelve (12) shall be in ex officio capacity. b. (b) the Minister of Justice or his representative. 1619. (d) The Minister of Education and Culture or his representative.) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement. The three (3) permanent members. psychology or social work. control and prevention campaign with the assistance of concerned government agencies. c. 9165. (7) Secretary of the Department of Social Welfare and Development or his/her representative.
) r. Provided. inspect all air cargo packages. city. wherein members of the said unit shall possess suitable and adequate o. in the anti-illegal drugs drive. j. in coordination with the Philippine Postal Office and the Bureau of Customs. and Submit an annual and periodic report to the Board as may be required form time to time. l.) Create and maintain an efficient special enforcement unit to conduct an investigation. other government agencies/offices and local government units that will assist in its apprehension of big time drug lords. 65 .) p. k. support and coordinate with other government agencies for the proper and effective prosecution of the same. which may include the use of their respective personnel. i. provincial or local law enforcement agency. or instrumentality of the government. and other similar controlled substance. facilities.)Establish and maintain a national drug intelligence system in cooperation with law enforcement agencies. municipality and barangay with active and direct participation of all such local government units and non-governmental organizations.)Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seized or confiscated drugs. cooperation and linkages with international drug control and administration agencies and organization and implement the applicable provisions of international conventions and agreement related to dangerous drugs to which the Philippines is a signatory.) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized.A. through on-line or cyber shops via the internet or cyberspace. and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.)Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted. h. dentists and other practitioners to submit a report to it.) Established and maintain close coordination. clinics. e. which appear from the packages and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals. doctors. m. agency. Require all government and private hospitals. subject to the provisions of previously formulated programs of action against dangerous drugs. confiscated or surrendered to any national. thereby hastening its destruction without delay. 9165 which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or the causing of the filing of appropriate criminal cases for violation of the Law. where it may enlist the assistance of any department.agents are authorized to possess firearms. parcels and mails in the central post office.) q. The DOJ shall designate special prosecutor to exclusively handle cases involving violations of this Act. in accordance with the existing laws. file charges and transmit evidence to the proper court. The number of courts designated in each judicial region shall be based in their respective jurisdiction. if no longer needed for purposes of evidence in court.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of laws on dangerous drugs. JURISDICTION OVER DRUG RELATED CASES The Supreme Court shall designate special court from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. and assist. Initiate and undertake a national campaign for drug prevention and drug control programs. including the citizenry. That no previous special permit for such possession shall be required. Coordinate with the Board for the facilitation of the issuance of necessary guidelines. rules and regulations for the proper implementation of this Act.) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money Laundering Act of 2002. in coordination with the Board. f. Note: There are however certain power and duties of the PDEA enumerated under Section 84 of R.) firearms for their protection in connection with the performance of their duties. controlled precursors and essential chemicals. about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes. n. office. and (2) filing of charges and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules and Regulation that may be issued by the DDB and the PDEA later. and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers. bureau.)Monitor and if warranted by circumstances. g.) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse in every province. including government-owned and/or controlled corporations.
the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income. sale.PRELIMINARY INVESTIGATION OF DANGEROUS DRUG CASES The preliminary investigation of cases filed under this Act shall be terminated within the period of thirty (30) days from the date of their filing When the preliminary investigation is conducted by a public prosecutor and probable cause is established. the same 2. shall carry with it the confiscation and forfeiture. a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender. however. The PDEA shall take charge and have custody of all dangerous drugs. seized and/or surrendered. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs. and the possession of any equipment. the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. CUSTODY AND DISPOSITION OF CONFISCATED. 90) The Department of Justice shall designate special prosecutors to exclusively handle cases involving violations of the Dangerous Drug Act of 2002 (Sec. custody and maintenance of the property pending disposition. Provided. and the instruments or tools with which the particular unlawful act was committed. but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act. for proper disposition in the following manner: 1. (Sec. including. During the pendency of the case in the Regional Trial Court. no property. or income derived thereform. unless they are the property of a third person not liable for the unlawful act. the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case. controlled precursors and essential chemicals. 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. the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. of all the proceeds and properties derived from unlawful act. forfeiture. After conviction in the Regional Trial Court in the appropriate criminal case filed. controlled precursors and essential chemicals. which may be confiscated and forfeited. The proceeds of any sale or disposition of any property confiscated under this section. trading. That if the forfeited property is a vehicle. as well as instruments/paraphernalia and/or laboratory equipment. but not limited to. including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals Every penalty imposed for the unlawful importation. plant sources of dangerous drugs. administration. 66 . the cultivation or culture of plants which are sources of dangerous drugs. money and other assets obtained thereby. The apprehending team having initial custody and control of the drugs shall. transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical. as well as instruments/paraphernalia and/or laboratory equipment that was confiscated. and the application of the penalty provided for in the Revised Penal Code shall be applicable (Sec. SEIZED AND/OR SURRENDERED DANGEROUS DRUGS. apparatus and other paraphernalia for dangerous drugs including other laboratory equipment. plant sources of dangerous drugs. shall be disposed. delivery. in favor of the government. 90) Notwithstanding the provision of any law to the contrary. ETC. 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. instrument. as well as the expense for publication and court costs. If the preliminary investigation is conducted by a judge and a probable cause is found to exist. 25) Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act. dispensation. distribution. alienated or transferred and the same shall be in custodio legis and no bond shall be admitted for the release of the same. or his/her representative or counsel. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs. immediately after seizure and confiscation.
6. and burning of seized or surrendered dangerous drugs provided under this Section shall be implemented by the DOH (Sec. and Transitory Provision: a. a partial laboratory examination report shall be provisionally by the forensic laboratory: Provided. used or recycled for legitimate purposes.A. further. duly weighed and recorded. plant sources of dangerous drugs. including the instruments/paraphernalia and/or laboratory equipment.A. SUSPENSION OF SENTENCE OF FIRST-TIME MINOR OFFENDER An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of R. and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same. be burned or destroyed.) Pending the organization of the PDEA. Provided. shall be donated. as amended. b. that when the volume of dangerous drugs. After the filing of the criminal case. A certification of the forensic laboratory examination results. in the presence of the accused or the person/s from which such items were confiscated and/or seized. 9165). 3. The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. 9165 but not more that eighteen (18) years of age at the time when the judgment should have been promulgated after having been found guilty of said offense. conduct an ocular inspection of the confiscated. or of the Revised Penal Code. 9165) 8. a representative from the media and the DOJ. the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former. and controlled precursors and essential chemicals does not allow the completion of testing within the time frame. Department of Health (DOH) and the accused and/or his/her counsel.) Within twenty-four hours from the effectivity of this Act (R. the Court shall within seventytwo (72) hours. with leave of court. subject to the following conditions: a. however. may be given the benefits of a suspended sentence. or any special penal laws. or of the Dangerous Drugs Act of 1972. the custody. that a final certification on the same within the next twenty-four (24) hours. and c. 21.) The Board favorably recommends that his/her sentence be suspended. dangerous drugs defined herein which are presently in possession of law enforcement agencies shall. DOJ. 2. civil society group and any elected public official. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the evidence in question.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician. R. or his/her representative or counsel. as determined by the Board.A. 7. and b. shall be issued within twenty-four (24) hours after the receipt of the subject items/s: Provided.) He/She has not been previously convicted of violating any provision of this Act. in the presence of representative of the Court. The Board shall then issue a sworn statement as to the fact of destruction or burning of the subject item/s together with the representative sample/s shall be kept to a minimum quantity as determined by the Board. disposition. Provided.shall be submitted to the PDEA Forensic Laboratory for a qualitative examination. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender. the trial prosecutor shall inform the Board of the final termination of the case and in turn. That those item/s of lawful commerce. 4. seized and/or surrendered dangerous drugs. Art. and controlled precursor and essential chemicals. 67 . which shall be under oath by the forensic laboratory examiner. That a representative sample. After the promulgation of judgment in the criminal case wherein the representative sample/s was presented as evidence in court. is retained. shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-foru (24) hours from receipt of the same. PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR OFFENDER The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a first-time offender over fifteen (15) years of 5.
who through patent laxity. If the sentence promulgated by the court require imprisonment. The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than ten thousand (P10. even if the sentence provided under this Act is higher than that provided under existing law on probation.000. including the rules and regulations of the Center should confinement be required. ( Sec. unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases. the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer. should he/she fails to notify the court of such order to transfer or re-assign. the court may. The court in its discretion may require extension of the community service or order a final discharge. to appear as a witness for the prosecution in any proceedings. (Sec. the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration.000. perpetual absolute disqualification from public office. time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. 68) PROMULAGATION OF SENTENCE FOR FIRST-TIME OFFENDER If the accused first-time minor offender violates any of the conditions of his/her suspended sentence. In case of probation. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court.000. DELAY ANF BUNGLING IN THE PROSECUTION OF DRUG CASES Any government officer employee tasked with the prosecution of drugrelated cases under this Act. that his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1)day but not more than six (6) years and a fine of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand (P10. that his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign. place the accused under probation. However.age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated.00) and in addition. in its discretion.00) but not more than Fifty thousand (P50.000. or impose community service in lieu of imprisonment. the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him. the period spent in the Center by the accused shall be deducted from the sentence to be served. fails or refuse intentionally or negligently. the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reason: Provided. 69) PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT Upon promulgation of the sentence. without any valid reason shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred thousand pesos (P500. (Sec.00) and in addition.00) but not more than Fifty thousand pesos (P50. Thereafter. in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. shall suffer the penalty of imprisonment 68 .00). the Board shall render a report on the manner of compliance of said community service. The community service shall be complied with under conditions. 70) WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW ENFORCEMENT AGENCIES AND OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS PROSECUTION WITNESSES IN DANGEROUS DRUG CASES? Any member of law enforcement agencies or any other government official and employee who.000. whereupon the court shall issue such an order. Upon compliance with the conditions of the probation. perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned the former does not exert reasonable effort to present the latter to the court The member of the law enforcement agency or any other government employee mentioned in the proceeding paragraphs shall not be transferred or re-assigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. after due notice. within twenty-four (24) hours from its approval: Provided further. the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. involving violation of this Act. inexcusable neglect.
spouse or guardian who. SPOUSE OR GUARDIAN WHO REFUSE TO COOPERATE WITH THE BOARD OR ANY CONCERNED AGENCY Any parent. having official custody of or access to the confidential records of any drug dependent under voluntary submission programs. the provisions of the Revised Penal Code (Act. when the offender is a government official or employee. without valid reason parent.000. 74) LIMITED APPLICABILITY OF THE REVISED PENAL CODE Notwithstanding any law. or in any manner. BUT DIFFICULT TO PROVE Frame-up. the evidence 69 . the penalty for acts punishable by life imprisonment to death provided therein shall be reclusion perpetua to death. prevents or delay the after-care. (Sec. 3814) as amended.00). may be cited in contempt by the court. 72) LIABILITY OF A PARENTS.000. shall not apply to the provision of this Act. The maximum penalty shall be imposed. (People v. rule or regulation to the contrary. without valid reason. spouse or guardian who. having gained possession of said records. FRAME UP IS EASY TO FABRICATE. 1/27/93) LIKE ALIBI. except in the case of minor offenders. like alibi. which may be used as evidence in the trial of the case. An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping. follow-up or other programs for the welfare of the accused drug defendant. such as blackmail of the drug defendant of the members of his/her family.ranging from twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the pertinent provision of the Revised Penal Code. (Sec. 71) LIABILITY OF A PERSON WHO VIUOLATES THE CONFIDENTIALITY OF RECORDS The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine ranging from One thousand pesos (P1. or any one who. guardian or any relative within the fourth degree of consanguinity of any person who is confined under the voluntary submission program or compulsory submission program shall be charged a certain percentage of the cost of his/her treatment and rehabilitation. the guidelines of which shall be formulated by the DSWD taking into consideration the economic status of the family of the person confined. The guidelines therein formulated shall be implemented by a social worker of the local government unit. RECORDS TO BE KEPT BY THE DEPARTMENT OF JUSTICE The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time offender. COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT The parents. refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a drug defendant who is a minor. GR 96177. spouse. in addition to the absolute perpetual disqualification from any public office. Should the records be used for unlawful purposes. In order for that defense to prosper. (Sec. (Sec. is a defense that has been viewed by courts with disfavor for it can just as easily be connected and is a common and standard line of defense in most prosecution arising from violations of the Dangerous Drugs Act. Where the offender is a minor. reveals their content to any person other than those charged with the prosecution of the offense under this Act and its implementation. 98) EXCEPTION TO NECESSITY OF A SEARCH WARRANT There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a search upon the person arrested. the penalty imposed for the crime of violation of confidentiality shall be in addition to whatever crime he/she convicted of. shall be imposed upon any person who. Musa. whether lawfully or not. whether under voluntary submission program or compulsory submission program.00) to Six thousand pesos (P6.
(People v. were brought to the police station for investigation and subsequent prosecution. opened the tin can loaded in the appellants' vehicle and found eight (8) bundles. July 10. GR 107327. page 631). And when Faller opened one of the bundles. commutation of sentence. if one is made. like every right. 2/1/95) BUY-BUST OPERATION (People v. ’98) Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the act of the commission of the offense. when they entered a plea of not guilty upon arraignment and by participating in the trial. Correa. the accused must not solely rely on the pardon as a basis for the release of the accused from confinement. not a judicial one. 30. the agencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certification issued by the trial court or the appellate court. Again. We have ruled in a long line of cases that: "When one voluntarily submits to a search or consents to have it made on his person or premises.adduced must be clear and convincing. Moreover. the appellants did not raise any protest when they. Girang. Jan. the prosecutor is tasked to ascertain whether there is sufficient ground to engender a well-founded belief that an offense has been committed and that the accused is probably guilty thereof. informants are generally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. whether full or conditional. Any application therefor. (People v. The appellants never protested when SPO3 Jesus Faller. GENERALLY NEED NOT TESTIFY The testimony of the poseur-buyer or of the confidential informant is no longer material considering that accused-appellant’s drug pushing was positively attested to.. I. The NBI later confirmed the eight (8) bundles to be positive for marijuana. it smelled of marijuana. should not be acted upon or the process toward its grant should not be begun unless the appeal is withdrawn. (People v. Maquilan) RULE AS TO WHO SHOULD BE CRIMINALLY CHARGED The settled rule is that the determination of who should be criminally charged in court is essentially an executive function. be waived and such waiver may be made either expressly or impliedly. Basilgo. or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordingly. The right to be secure from unreasonable search may. VII OF THE CONSTITUTION ON GRANT OF PARDON The "conviction by final judgment" limitation under Section 19. as the case may be The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal. 8th ed. those in custody of 70 . (People v." The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court. GR 119246. (People v. Accordingly. to an accused during the pendency of his appeal from his conviction by the trial court. As the officer authorized to direct and control the prosecution of all criminal actions. together with their cargo of drugs and their vehicle. GR 27949. 2/1/95) EFFECT OF LIMITATION UNDER SECTION 19. Entrapment has received judicial sanction as long as it is carried out with due regard to constitutional and legal safeguards. Girang. he is precluded from later complaining thereof (Cooley. Article VII of the present Constitution prohibits the grant of pardon. vol. GR 120034. Esparas. after identifying himself as a police officer. 8/5/94) POSEUR-BUYER. and the release of an accused by virtue of a pardon. ART. Constitutional Limitations. GR 97949. 1998) WHEN THERE IS A WAIVER OF WARRANTLESS ARREST The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily submitted to it as shown by their actuation during the search and seizure.
Aruta. 4. Tangliben was acting suspiciously. Fourth. GR 120915. ’98) CASES WHEN SEARCH WITHOUT A WARRANT WAS VALID In People v. Bagista. The Court held that in light of such circumstances. Article II of Republic Act No. In present case. Malmstedt. however. More significantly. was searched while about to cross a street. the NARCOM officers had probable cause to stop and search all vehicles coming from the north to Acop. hence. (c) the evidence must be immediately apparent. the policemen knew that the Victory Liner compound is being used by drug traffickers as their "business address". 6. Benguet in view of the confidential information they received from their regular 71 . In instant case. There was no reasonable time to obtain a search warrant. Rule 126 of the Rules of Court and by prevailing jurisprudence. Aruta's identity was priorly ascertained. and Exigent and Emergency Circumstances. Customs search. 7. They likewise received information that a Caucasian coming from Sagada had prohibited drugs on his person. 13. Menguin. At 9:30 in the evening. and (d) "plain view" justified mere seizure of evidence without further search. His actuations and surrounding circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. there is no single indication that Aruta was acting suspiciously. police officers conducted a surveillance at the Victory Liner Terminal compound in San Fernando. the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity. That a motor vehicle was used in committing the crime is merely incidental to the act of transporting prohibited drugs. Warrantless search incidental to a lawful arrest recognized under Section 12. on the other hand. as amended. punishable under Section 4. Inside the bag were marijuana leaves wrapped in a plastic wrapper. Highly regulated by the government. 6425. such use is not an aggravating circumstance. to the detriment of society. In People v. Stop and Frisk. the glaring differences of Malmstedt to the instant case. the apprehending officers already had prior knowledge from their informant regarding Aruta's alleged activities. In People v. acting on information supplied by informers. Moreover. Tublay. (People v. The use of a motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission thereof. the police officers had reasonable time within which to secure a search warrant. the policemen noticed a person carrying a red travelling bag who was acting suspiciously. Note. Pampanga against persons who may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. He acceded later on when the policemen identified themselves. Malmstedt was searched aboard a moving vehicle. 2. 5. including a search without a warrant. the Narcom agents received reports that vehicles coming from Sagada were transporting marijuana. Consented warrantless search. His actuations also aroused the suspicion of the officers conducting the operation. Seizure of evidence in "plain view. In Tangliben policemen were confronted with an on-the-spot tip. In instant case. Third. (People v. Apr. 3. to deprive the agents of the ability and facility to act promptly. (b) the evidence was inadvertently discovered by the police who had the right to be where they are.WHEN USE OF MOTOR VEHICLE IN DRUG CASES OR ANY OTHER CASE IS NOT AGGRAVATING Simply stated. especially since the identity of the suspect could not be readily ascertained. Second. Correa) CASES WHEN WARRANTLESS SEARCH IS ALLOWED 1. would be to sanction impotence and ineffectiveness in law enforcement. Tangliben. the motor vehicle which was used to transport prohibited drugs was not purposely sought to facilitate the commission of the crime since such act of transporting constitutes the crime itself." the elements of which are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties. a legally accepted exception to the warrant requirement. The police officers only knew of the activities of Tangliben on the night of his arrest. Aruta was not acting suspiciously. Search of a moving vehicle. They confronted him and requested him to open his bag but he refused.
Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. Clearly. Since there was a valid warrantless search by the NARCOM agents.informant that a woman having the same appearance as that of accusedappellant would be bringing marijuana from up north. they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. there was no legal basis for the NARCOM agents to effect a warrantless search of accused-appellant's bag. the lawmen could have applied for a warrant even after court hours. they proceeded to apprehend Aminnudin. applied the stop and frisk principle which has been adopted in Posadas v. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime. Upon reaching the place. Instead of securing a warrant first. there was no reason whatsoever for them to suspect that accused-appellant was committing a crime. is wanting in the instant case making the warrantless arrest unjustified and illegal. In Manalili v. hence any item seized from Aminnudin could not be used against him. indeed. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. It was only when the informant pointed to accused-appellant and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. as expounded above in detail. it contained marijuana. there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. he tried to resist. Another recent case is People v. On the contrary. Moreover. coupled with the fact that based on information. This Court held that in accordance with Administrative Circular No. this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. as clearly illustrated by the evidence on record. From the information they had received. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. the search which accompanied the warrantless arrest was likewise unjustified and illegal. The NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the informant because. This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. Solayao. Unlike in the abovementioned cases. the police could have persuaded a judge that there was probable cause. accused-appellant was merely crossing the street when apprehended. 19. to justify the issuance of a warrant. People v. Court of Appeals. His name was known. the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. Solayao attempted to flee when he and his companions were accosted by government agents. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right. Thus. there being no 72 . the arrest was held to be illegal. When the case was brought before this Court. When he showed his wallet. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations. the vehicle was identified and the date of arrival was certain. all the articles seized from the accused-appellant could not be used as evidence against her. When approached and asked what he was holding in his hands. Neither was she about to commit one nor had she just committed a crime. They likewise had probable cause to search accused-appellant's belongings since she fitted the description given by the NARCOM informant. This intelligence information regarding the culprit's identity. 13 and Circular No. In the instant case. accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Both are exceptions to the requirements of a search warrant. any evidence obtained in the course of said search is admissible against accused-appellant. He was observed to have reddish eyes and to be walking in a swaying manner. this area was a haven for drug addicts. Accordingly. he appeared to be trying to avoid the policemen. Again. In said case. To reiterate. Menguin) WHEN SEARCH IS NOT VALID Accused-appellant Aruta cannot be said to be committing a crime. Consequently. series of 1987. In said case. (People v. except for the pointing finger of the informant. the most essential element of probable cause. Court of Appeals and People.
probable cause and the accused-appellant not having been lawfully arrested. ’98) MEANING OF “TO TRANSPORT” IN DRUG CASES As a general rule. The arrest being illegal ab initio. It is immaterial whether or not the place of destination was reached.ZENAIDA BOLASA Y NAKOBOAN. the arrest being incipiently illegal. Valdez. as used under the Dangerous Drugs Act to mean "to carry or convey from one place to another" . or a stop and frisk. the accompanying search was likewise illegal. the warrantless search made inside the appellant's house became unlawful since the police operatives were not armed with a search warrant. it cannot even fall under exigent and emergency circumstances. (People v. The instant case is similar to People v. Dec. After conducting the surveillance and determining the existence of probable cause for arresting accused-appellants. ET AL. the operative words being "to carry or to convey". GR 120431. Encinada. papers or effects of any individual. 22. it indicates that the apprehending officers should have conducted first a surveillance considering that the identities and address of the suspected culprits were already ascertained. they should have secured a search warrant prior to effecting a valid arrest and seizure. their acquittal must follow in faithful obeisance to the fundamental law. Menguin) WHEN SEARCH IS NOT ALLOWED AFTER AN ARREST IS MADE In the case of People v. for the evidence at hand is bereft of any such showing. therefore. (People v. hence. it logically follows that the subsequent search was similarly illegal. In like manner. the Court defined the term "transport". house. (PP -vs. Every evidence thus obtained during the illegal search cannot be used against accused-appellants. As such. In the case at bar.A. In People v.. Such search cannot fall under "search made incidental to a lawful arrest. appellant was admittedly outside his house when he was arrested. x x x “Lawmen cannot be allowed to violate the very law they are expected to enforce. 3(2) of the Constitution. Menguin) In People vs. a consented warrantless search. Sec. 1999) SEARCH AND SEIZURE WITHOUT THE WARRANT IS ILLEGAL AND VOID AB INITIO REQUISITE JUDICIAL WHEN VOLUNTARY SUBMISSION TO SEARCH IS INAPPLICABLE Aside from the inapplicability of the abovecited case. While initially the arrest as well as the body search was lawful. this Court held: "As regards the brick of marijuana found inside the appellant's house. the act of herein accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. a customs search. it can hardly be said that the inner portion of his house was within his reach or control." the same being limited to body search and to that point within reach or control of the person arrested. 125754. THE SAME IS ILLEGAL The police officers intentionally peeped first through the window before they saw and ascertained the activities of accused-appellants inside the room. the search cannot be categorized as a search of a moving vehicle. the trial court correctly ignored it apparently in view of its inadmissibility. (Espano v. the articles seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree" and. the court ruled that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio. April 1. The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed. Hence. Lua. On the contrary. Stated otherwise. No. or that which may furnish him with the means of committing violence or of escaping. Lo Ho Wing. it being not incidental to a lawful arrest. must be rejected. G. the procurement of a search warrant is required before law enforcer may validly search or seize the person. C. pursuant to Article III. The constitutional guarantee against unreasonable search and seizure must perforce operate in favor of accused-appellant..R.” The Court is not unmindful of the difficulties of law enforcement 73 . Latura) WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. (People v.
However. or the immediate seizure of the marijuana plants.agencies in suppressing the illegal traffic of dangerous drugs. the prosecution’s evidence clearly established that the police conducted a search of accused’s backyard garden without warrant. In this case. There was no showing of urgency or necessity for the warrantless search. We need not underscore that the protection against illegal search and seizures is constitutionally mandated and only under specific instances are seizures allowed without warrants. they had sufficient time to obtain a search warrant. (People vs. quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights”. they failed to secure one. Alberto Pasudag) 74 .
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