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2015 PRE-WEEK REVIEWER ON CRIMINAL LAW

UNIVERSITY OF THE PHILIPPINES LAW CENTER


JUDGE MARLO B.
CAMPANILLA
1. If the marriage is not solemnized in accordance
with Muslim Law, the accused cannot claim criminal
exemption from liability for bigamy on the basis his
religious belief as a Muslim because of the generality
principle. The Code of Personal Muslim Laws, which
exempts Muslim from being prosecuted for bigamy, is not
applicable since the marriage was not made in accordance
with the Muslim law (Nollora, Jr. vs. People, G.R. No.
191425, September 7, 2011).

2. Consular officers are immune from criminal


prosecution of acts performed in the exercise of function
(1967 Convention on Consular Relation). Immunity does
not cover slander or reckless imprudence resulting in
homicide for not being function-related. A Chinese
diplomat, who killed another Chinese diplomat in Cebu, is
immune from criminal prosecution (The Vienna
Convention on Diplomatic Relations). Unlike consular
officers, diplomatic agents are vested with blanket
diplomatic immunity from civil and criminal suits
(Minucher vs. Hon. CA, G.R. No. 142396, February 11,
2003).

3. An incumbent President is immune from criminal


prosecution of act committed in the performance of his
duties (Estrada vs. Desierto, G.R. No. 146710-15, March
2, 2001). President Aquino during the period of his
incumbency cannot be charged with simple negligence
resulting in multiple homicides in connection with the
Mamasapano incident because his decisions concerning
the handling of the police operation leading to the tragic
event are official acts. But a Vice-President is not immune
from criminal prosecution of plunder and corruption
under RA No. 3019 committed while he was a mayor for
not being function related. Moreover, implementation of
penalty of imprisonment for said crimes is not
inconsistent with the constitutional rule on removal
through impeachment since he can function as Vice-
President while serving sentence in prison.

4. Under the Convention on the Law of the Sea, the


flag state of foreign merchant vessel passing through the
territorial sea has jurisdiction over crimes committed
therein. However, the Philippines can exercise
jurisdiction to arrest any person or to conduct any
investigation in connection with any crime committed on
board the ship during its passage in the following cases:
(1) if the consequences of the crime extend to the coastal
State; (2) if the crime is of a kind to disturb the peace of
the country or the good order of the territorial sea; (3) if
the assistance of the local authorities has been requested
by the master of the ship or by a diplomatic agent or
consular officer of the flag State; or (4) if such measures
are necessary for the suppression of illicit traffic in
narcotic drugs or psychotropic substances.

Serious physical injuries committed in a foreign


vessel docks in a Philippine port against a passenger
thereof is within the jurisdiction of the Philippine court
since this crime disturb the peace of the country.

Under the principle of territoriality, the court has


jurisdiction over concubinage involving illicit relationship
maintained in the Philippines; but it has no jurisdiction
over bigamy involving subsequent marriage contracted in
Taiwan. The court has also jurisdiction over crime
committed in Kalayaan Islands or Scarboruogh Shoal
because the Baseline Law (RA No. 9522) declares that the
Philippines exercise sovereignty and jurisdiction over it.

5. Under the flag state rule, the court has jurisdiction


over hijacking of PAL airplane in an American territory
since it its registered in the Philippines; but it has no
jurisdiction over murder committed in vessel registered in
Panama while on high seas although it is owned by a
Filipino. Under the protective principle, the court has
jurisdiction over forgery of Philippine money committed
in Taiwan whether by a Filipino or an alien but not over
forgery of US dollars committed therein. Under the
extraterritoriality rule, the court has jurisdiction over
plunder, direct bribery and falsification of document
committed by a public officer in a Philippines consular
premises stationed in America but not corruption of
public officer and falsification of document committed by
private individual as principal by inducement. Under the
universality principle, the court has jurisdiction over
piracy committed on high seas for being a universal
crime; but it has no jurisdiction over murder qualified by
the circumstance of taking advantage of the calamity
brought about by piracy on high seas. The 12-mile
territorial water of Taiwan or Sabah may be considered as
high seas; hence, piracy committed therein can be
prosecuted in the Philippines (People vs. Tulin, G.R. No.
111709, August 30, 2001).

6. The State shall exercise jurisdiction over


trafficking in person even if committed outside the
Philippines the crime being a continuing offense subject
the following conditions: (1) The trafficking in persons
has been commenced in the Philippines and other
elements have been committed in another country; (2)
The suspect or accused: (a) Is a Filipino citizen; or (b) Is
a permanent resident of the Philippines; or (c) Has
committed the act against a citizen of the Philippines. (3)
A foreign government has not prosecuted or is
prosecuting person for trafficking in person except when
there is an approval of the Secretary of Justice (Section
26-A of RA No. 9208 as amended RA No. 10364).

7. The provisions of the Terrorism Law or Human


Security Law shall apply to individual persons who,
although physically outside the territorial limits of the
Philippines: 1. Conspire or plot to commit terrorism
inside the territorial limits of the Philippines; 2. Commit
any of the crimes involving terrorism on board Philippine
ship or Philippine airship; 3. Commit any of the crimes
involving terrorism within any embassy, consulate, or
diplomatic premises belonging to or occupied by the
Philippine government in an official capacity; 4. Commit
any of the crimes involving terrorism against Philippine
citizens or persons of Philippines descent, where their
citizenship or ethnicity was a factor in the commission of
the crime; 5. Commit any of the crimes involving
terrorism directly against the Philippine government
(Section 58 of RA No. 9372).

8. Law decriminalizing an act shall be given


retroactive effect even if the accused is a habitual
delinquent. Nullum crimen nulla poena sine lege. RA No.
10158 decriminalizes vagrancy under Article 202 of RPC
since vagrants as victims of poverty should be protected
rather than punished. RA No. 10655 decriminalizes
premature marriage under Article 351 of RPC for being
discriminatory and antiquated.

9. Reclusion perpetua, which has duration of 40


years under Article 27 of RPC and 30 years under Article
29 of RPC as amended by RA No. 10592, is a lighter
penalty than life imprisonment, which has no duration.
Hence, amendatory law, which prescribes reclusion
perpetua instead of life imprisonment for a crime
punishable under it, is favorable to the accused; and thus,
it shall be given a retroactive effect (People vs. Morilla,
GR No. 189833, February 05, 2014).

10. Police authorities, who manned a checkpoint


because of information that there are armed rebels on
board a vehicle, have the duty to validate the information,
identify them, and to make a bloodless arrest unless they
were placed in real mortal danger. If they shot the
suspected vehicle, which did not stop after have been
flagged down and killed the occupants therein, who
turned out be unarmed civilians, they are liable for
multiple homicides. The mistake of fact principle is not
applicable since there is negligence or bad faith on their
part (Yapyucu vs. Sandiganbayan, GR No. 120744-46,
June 25, 2012).

9. The accused killed by mistake a thief, who turned


out to be his girlfriend. Invasion of property shall be
considered as an unlawful aggression for purpose of self-
defense because of the right of the owner to resist it in
accordance with the self-help principle (Article 429 of the
Civil Code). However, the means employed, and that is,
killing the mistaken invader, is not reasonable; hence, the
accused is only entitled to the privileged migrating
circumstance of incomplete defense of property (People
vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983; US
vs. Apego, G.R. No. 7929, November 8, 1912).

10. Motive vs. criminal intent - Motive is the moving


power which impels a person to do an act for a definite
result; Intent is the purpose for using a particular means to
bring about a desired result. Motive is not an essential
element of a crime, and, hence, need not be proven for
purposes of conviction. Motive is essential only when
there is doubt as to the identity of the culprit or when the
evidence is circumstantial or inconclusive. Criminal intent
renders an act a felony. It is the general element of all
intentional felony.

11. Mala in se vs. mala prohibita - Mala in se are


inherently wrong or immoral; while mala prohibita are not
inherently wrong; they are only wrong because they are
prohibited by law. In malum in se, good faith or lack of
criminal intent is a defense while in malum prohibitum,
good faith is not a defense. Modifying circumstances can
be appreciated in malum in se. These circumstances are
not appreciable in malum prohibitum unless the special
law that punishes them adopts the technical nomenclature
under the Revised Penal Code. Mala in se are punishable
under the Revised Penal Code or special laws where the
crime punishable therein is wrong in nature. Mala
prohibita is punishable by special laws.

12. RPC is not generally applicable to malum


prohibitum. However, when a special law (such as RA
No. 10591 on illegal possession of loose firearm), which
punishes malum prohibitum, adopts the nomenclature of
the penalties in RPC, the the provisions under this Code
shall apply (People vs. Simon, G.R. No. 93028, July 29,
1994) such as: (1) Article 68 on the privilege mitigating
circumstance of minority (People vs. Montalaba, G.R. No.
186227, July 20, 2011; People vs. Musa, G.R. No.
199735, October 24, 2012); (2) Article 64 on application
of penalty in its minimum period if there is a confession
(Jacaban vs. People, GR No. 184355, March 23, 2015;
Malto vs. People, G.R. No. 164733, September 21, 2007);
and (3) Article 160 on special aggravating circumstance
of quasi-recidivism (People vs. Salazar, G.R. No. 98060,
January 27, 1997).

If the special law (such as RA No. 6235 on hijacking


and RA No. 3019 on corruption) did not adopt the
technical nomenclature of penalties in RPC, the latter
shall not apply. Mitigating circumstance of confession
shall not be appreciated since the penalty not borrowed
from RPC cannot be applied in its minimum period. The
crime has not attempted or frustrated stage since penalty
not borrowed from RPC cannot be graduated one or two
degrees lower.

If the special law has adopted the technical


nomenclature of the penalties of RPC, Article 6 on stages
shall be given a suppletory effect. But if the special law
has not barrowed its penalties from RPC, Article 6 shall
not be given a suppletory effect unless the special law
prescribes a penalty for committing the crime at the
attempted or frustrated stage. For example, RA No. 9165
has not adopted the technical nomenclature of the
penalties of RPC for crimes involving dangerous drugs.
But Section 26 of RA No. 9165 punishes attempted sale
of dangerous drug with the penalty prescribed for
consummated sale of dangerous drug.

13. Proximate cause is the cause which is in the


natural and continuous sequence unbroken by intervening
cause produces death. Intervening cause is an active and
foreign force that breaks the relationship between the
felony and the death.

A inflicted slight physical injuries upon B causing the


latter to run away. While escaping, B was bitten by a dog,
and as a consequence he suffered serious physical
injuries. A is only liable for slight physical injuries. The
crime that he committed is not the proximate cause of the
serious physical injuries sustained by B. The dog bite is
an efficient intervening cause or an active and foreign
force that breaks the relationship between the crime of
slight physical injuries committed by A and the serious
physical injuries suffered by B.

The accused stabbed the victim. After 22 days, the


symptoms of tetanus infection manifested. The next day,
he died. Since the victim immediately died, the infection
is severe. The incubation period of severe tetanus is less
than 14 days. Since the stabbing happened 22 days before
the manifestation of infection and the incubation period of
this infection is less than 14 days, the victim was not
infected at the time of stabbing. Hence, the infection is an
efficient intervening cause. The accused is liable for
physical injuries since the stabbing is not the proximate
cause of the death of victim (Villacorta vs. People, G.R.
No. 186412, September 7, 2011, Justice De Castro). It
would have been different if the victim died due to tetanus
of which he was infected when the accused inflicted
injuries upon him. In such case, the proximate cause of
the death is the infliction of injuries. Hence, he is liable
for homicide (People vs. Cornel, G.R. No. L-204, May
16, 1947).

14. Accused kicked and punched the victim, who


died as a consequence. Circumstance shows lack of intent
to kill. However, accused is liable for homicide because
intent to kill is conclusively presumed. Even if there is no
intent to kill, the penal law holds the aggressor
responsible for all the consequences of his unlawful acts.
However, they are entitled to the mitigating circumstance
of praeter intentionem (Wacoy vs. People, G.R. No.
213792, June 22, 2015).

15. If a person in committing threat, murder, rape or


robbery creates in the mind of the victim an immediate
sense of danger which causes such person to try to
escape, and in so doing he injures himself, the person
who creates such a state of mind is responsible for the
injuries which result (US vs. Valdez, G.R. No. 16486,
March 22, 1921; People vs. Toling, G.R. No. L-27097,
January 17, 1975; People vs. Castromero, G.R. No.
118992, October 9, 1997; People vs. Arpa, G.R. No. L-
26789, April 25, 1969).

16. Under Article 4 of RPC, criminal liability shall


be incurred by any person committing an intentional
felony (such an unjust vexation or assistance to suicide
committed in accordance with suicide pact) although the
wrongful act done be different from that which he
intended. Suicide is not an intentional felony; hence, a
pregnant woman who attempted to commit suicide is not
liable for abortion due to the consequent death of the
infant. Practicing medicine without license is an offense
punishable under special law but not an intentional felony
within the meaning of Article 4. Hence, a quack doctor,
who killed his patient while treating him, is only liable
for reckless imprudence resulting in homicide. The
concept of carnapping is the same as that of theft and
robbery. Although not punishable under RPC, it can be
treated as an intentional felony within the meaning of
Article 4.

17. Stealing check, which was dishonored by the


bank upon presentment for encashment due to
insufficiency of funds, constitutes impossible crime of
theft since there is factually impossibility to accomplish
the crime of qualified theft because the check is unfunded
(Jacinto vs. People, G.R. No. 162540, July 13, 2009).
Firing a gun at the unoccupied bedroom, where the
victim is supposed to be sleeping, constitutes impossible
crime of homicide because it is factually impossible to
kill a victim, who was not in the bedroom (Intod vs.
Court of Appeals, G.R. No. 103119, October 21, 1992).
But throwing grenade at the unoccupied bedroom, where
the victim is supposed to be sleeping, constitutes arson if
the bedroom was burned as a consequence. Kidnapping
for ransom consummates at the precise moment when the
victim was abducted. Receiving ransom payment is not
an element of this crime. What is important is that the
victim was kidnapped for purpose of ransom. Hence,
impossibility to obtain the ransom payment will not
render the crime impossible (People vs. Tan, G.R. No.
95322, March 1, 1993).

18. The intent of the person in committing


preparatory act has not ceased to be equivocal. In sum, his
criminal intent to kill is not clear. Hence, preparatory acts
such as buying poison, conspiring and going to the place
where the crime agreed will be committed are not
constitutive of a felony even at the attempted stage.
However, preparatory acts are punishable if the law
prescribes a penalty for its commission such as conspiracy
to commit rebellion or possession of picklock.

Inflicting non-mortal wound upon the victim by


shooting him constitutes physical injuries if the accused
did not further shoot him to inflict mortal wounds. The
crime is not attempted homicide because failure to shoot
him further shows lack of intent to kill (Pentecostes, Jr.
vs. People, GR No. 167766, April 7, 2010). Moreover,
spontaneous desistance from further shooting to victim to
inflict mortal wounds is a defense in attempted homicide.
But inflicting mortal wound upon the victim constitutes
attempted homicide even if the accused desisted from
further shooting him. The fact that the wounds are mortal
indicates intent to kill. Moreover, spontaneous desistance
from further shooting is not a defense in frustrated
homicide (People vs. Abella, G.R. No. 198400, October
07, 2013).

19. Touching of either labia majora or labia minora


of the pudendum by an erect penis capable of penetration
consummates the crime (People vs. Campuhan, G.R. No.
129433, March 30, 2000; People vs. Butiong, G.R. No.
168932, October 19, 2011). Touching the labia by
instrument or object (such as tongue or finger) also
consummates the crime of rape through sexual assault
(People vs. Bonaagua, GR No. 188897, June 6, 2011). If
there is no touching of the labia, the crime is either
attempted rape or acts of lasciviousness depending upon
the intent the offender. If the intention is to have sexual
intercourse, the crime is attempted rape; otherwise, the
crime is acts of lasciviousness.

Undressing the victim (People vs. Sanico, G.R. No.


208469, August 13, 2014) or touching her vagina by the
hand of the accused (People vs. Banzuela, G.R. No.
202060, December 11, 2013, Justice De Castro) or
rubbing his penis on the mons pubis of the pudendum
(People vs. Abanilla, G.R. Nos. 148673-75, October 17,
2003) is merely acts of lasciviousness because intent to
have sexual intercourse is not clearly shown.

To be held liable of attempted rape, it must be shown


that the erectile penis is in the position to penetrate (Cruz
vs. People, G.R. No. 166441, October 08, 2014) or the
offender actually commenced to force his penis into the
victim's sexual organ (People vs. Banzuela, supra).
Touching her genitalia with his hands and mashing her
breasts are "susceptible of double interpretation." These
circumstances may show that the intention of the accused
is either to commit rape or simple seduction (or acts of
lasciviousness). Since intent to have sexual intercourse is
not clear, accused could not be held liable for attempted
rape. Hence, he is only liable for acts of lasciviousness
(Cruz vs. People, supra; People vs. Lamahang).

20. To exempt himself from criminal liability, a


conspirator must have performed an overt act to dissociate
or detach himself from the conspiracy to commit the
felony and prevent the commission thereof (People vs.
Ebet, G.R. No. 181635 November 15, 2010). Thus, a
conspirator, who dissuades his co-conspirator from
committing the crime agreed upon, or calls the police
authorities to prevent the commission of the crime, or
fails to be present at or ran away from the place of
commission, is not criminally liable since he by his acts
detaches himself from conspiracy.

21. BP Blg. 22 does not expressly proscribe the


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

22. Only public officer can be held criminally liable


for violation of RA No. 3019. However, if there is
conspiracy, the act of the public officer in violating RA
No. 3019 is imputable to the private individual although
there are not similarly situated in relation to the object of
the crime. Moreover, Section 9 provides penalty for
public officer or private person for crime under Section 3.
Hence, a private individual can be prosecuted for
violation of RA No. 3019 (Henry Go vs. The Fifth
Division, Sandiganbayan, G.R. No. 172602, April 13,
2007). Even if the public officer with whom the private
individual allegedly conspired, the latter can still be
prosecuted for violation of RA No. 3019. Death
extinguishes the criminal liability but not the crime.
Hence, if there is proof of the crime and conspiracy of
dead public officer with private individual, the latter can
still be convicted of violation of RA No. 3019 (People vs.
Henry Go, GR No. 168539, March 25, 2014). However, if
the public officer with whom the private individual
allegedly conspired is acquitted, the latter should also be
acquitted (Marcos vs. Sandiganbayan, G.R. No. 126995,
October 6, 1998).

23. But even if there is conspiracy, the act of the wife


in committing parricide or killing her husband by means
of poison is not imputable to a stranger. Since relationship
is personal to the wife, it can only be appreciated against
the person against whom the qualifying circumstance is
attendant because of Article 62 of RPC. Hence, the wife is
liable for parricide qualified by the circumstance of
relationship with ordinary circumstance of by means of
poison, while the stranger is liable for murder qualified by
the circumstance of by means of poison (People vs. Bucsit
G.R. No. 17865, March 15, 1922).
24. Once conspiracy is established between several
accused in the commission of the crime of robbery, they
would all be equally culpable for the rape committed by
anyone of them on the occasion of the robbery, unless
anyone of them proves that he endeavored to prevent the
others from committing rape (People v. Suyu, G.R. No.
170191, August 16, 2006). However, if there is no
evidence that the accused is aware of the commission of
rape, he could not have prevented the rape. Hence, the
accused is only liable for robbery and not robbery with
rape (People v. Canturia, G.R. No. 108490 June 22,
1995). These principles are applicable to kidnapping with
rape (People vs. Anticamaray, GR No. 178771, June 08,
2011).
25. Imminent unlawful aggression means an attack
that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be
merely imaginary, but must be offensive and positively
strong (like aiming a revolver at another with intent to
shoot or opening a knife and making a motion as if to
attack). Imminent unlawful aggression must not be a
mere threatening attitude of the victim, such as pressing
his right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to
throw a pot (People v. Del Castillo, G.R. No. 169084,
January 18, 2012; People vs. Roman, GR No. 198110,
July 31, 2013; People vs. Malicdem, G.R. No. 184601,
November 12, 2012 (Justice De Castro)
26. Retaliation is not the same as self-defense. In
retaliation, the aggression that was begun by the injured
party already ceased when the accused attacked him,
while in self-defense the aggression still existed when the
aggressor was injured by the accused (Belbis, Jr. vs.
People, GR No. 181052, November 14, 2012). Although
the unlawful aggression had ceased when accused shot the
victims, it was nonetheless a grave offense for the
vindication of which accused may be given the benefit of
a mitigating circumstance (David vs. CA, G.R. No.
111168 June 17, 1998).
27. "Battered Woman Syndrome" refers to a
scientifically defined pattern of psychological and
behavioral symptoms found in women living in battering
relationships as a result of cumulative abuse (Section 3 of
RA No. 9262). Each of the phases of the cycle of violence
must be proven to have characterized at least two
battering episodes between the accused and her intimate
partner and such final episode produced in the battered
persons mind an actual fear of an imminent harm from
her batterer and an honest belief that she needed to use
force in order to save her life. (People vs. Genosa, G.R.
No. 135981, January 15, 2004). The three phases of the
Battered Woman Syndrome are: (1) the tension-building
phase; (2) the acute battering incident; and (3) the
tranquil, loving or non-violent phase (People vs. Genosa,
G.R. No. 135981, January 15, 2004; Answer to the 2010
Bar Examination Questions by UP Law Complex). The
essence of this defense of Battered Woman Syndrome
as a defense is that battered woman, who suffers from
physical and psychological or emotional distress, is acting
under an irresistible impulse to defend herself although at
the time of commission of the crime the batterer-victim
had not yet committed unlawful aggression. In Genosa
supra, it was held that it is crucial to the BWS defense is
the state of mind of the battered woman at the time of the
offense. She must have actually feared imminent harm
from her batterer and honestly believed in the need to kill
him in order to save her life. That is why even in the
absence of actual aggression or any other element of
self-defense, a woman, who is found to be suffering from
battered woman syndrome is not criminally liable for
killing her husband.
28. Status offenses refers to offenses which
discriminate only against a child, while an adult does not
suffer any penalty for committing similar acts (Section 3
of RA No. 9344). In sum, a status offense is a crime one
of the elements of which is that the offender must be
child. A child shall not be punished for committing a
status offense (Section 57 of RA No. 9344). Section 57-A
of RA No. 9344 as amended by RA 10630, local
ordinances enacted concerning juvenile status offenses
such as curfew violation shall be for the protection of
children. No penalty shall be imposed on children for said
violations, and they shall instead be brought to their
residence or to any barangay official at the barangay hall
to be released to the custody of their parents. Appropriate
intervention programs shall be provided for in such
ordinances. The child shall also be recorded as a child at
risk and not as a child in conflict with the law.

29. A child, who are already serving sentence, shall


likewise benefit from the retroactive application of RA
9344 (even if he is a habitual delinquent). They shall be
immediately released if they are exempt from criminal
liability under this law (Section 68 of RA No. 9344;
People vs. Monticalvo, G.R. No. 193507, January 30,
2013).

30. If the child is 15 years of age or below, minority


is an exempting circumstance (Section 6 of RA No.
9344). Lack of discernment is conclusively presumed.

31. If the child is above 12 years of age up to 15


years of age, he is exempt from criminal liability but he
can be considered as a neglected child and be mandatorily
placed in a youth care facility or Bahay Pag-asa in the
following instances: (a) If the child commits serious
crimes such as parricide, murder, infanticide, rape,
kidnapping and serious illegal detention with homicide or
rape, robbery with homicide or rape, destructive arson, or
carnapping where the driver or occupant is killed or raped
or offenses involving dangerous drugs punishable by
more than 12 years of imprisonment; and (b) In case of
repetition of offenses and the child was previously
subjected to a intervention program and his best interest
requires involuntarily commitment.

In case of commission of serious crime, a petition for


involuntarily commitment shall be filed by social worker
in court. In case of repetition of offenses, his parents or
guardians shall execute a written authorization for the
voluntary commitment. However, if the child has no
parents or guardians or if they refuse or fail to execute
such authorization, the proper petition for involuntary
commitment shall be immediately filed social worker in
court; but the child may be subjected to intensive
intervention program supervised by the local social officer
instead of involuntary commitment (Section 20-A and 20-
B of RA 9344 as amended by RA 10630).

32. If the child is above 15 years of age but below 18


years of age, minority is either exempting or privileged
mitigating. If the child acted without discernment, the
circumstance of minority is exempting. If the child acted
with discernment, the circumstance of minority is a
privileged mitigating. This circumstance shall be
appreciated even if minority was not proved during the
trial and that his birth certificate was belatedly presented
on appeal (People vs. Agacer, G.R. No. 177751, January
7, 2013).

Under Section 98 of RA No. 9165, the provisions in


RPC are not applicable unless the accused is a minor. In
such case, the penalty of life imprisonment shall be
considered reclusion perpetua. In sum, if the accused is a
minor, Article 68 of RPC on the privilege mitigating
circumstance of minority shall apply to crime of illegal
possession of dangerous drug even though this is malum
prohibitum punishable by life imprisonment. Hence, the
penalty of life imprisonment for illegal possession of
dangerous drug committed by a minor, which is treated as
reclusion perpetua, shall be graduated to reclusion
temporal because of the privilege mitigating circumstance
of minority (People vs. Montalaba, G.R. No. 186227, July
20, 2011)

33. While Section 38 of RA 9344 (Juvenile Justice


Law) provides that suspension of sentence can still be
applied even if the child in conflict with the law is already
18 years of age or more at the time of the pronouncement
of his guilt, Section 40 of the same law limits the said
suspension of sentence until the child reaches the
maximum age of 21. Hence, the child in conflict with the
law, who reached 21 years at the time of pronouncement
of guilt, cannot avail of privilege of suspension of
sentence (People vs. Mantalba, G.R. No. 186227, July 20,
2011; People vs. Salcedo, GR No. 186523, June 22, 2011;
People vs. Arpon, G.R. No. 183563, December 14, 2011
(Justice De Castro; People vs. Monticalvo, G.R. No.
193507, January 30, 2013).
34. If the accused is an adult, application for
probation must be filed within the period of perfecting an
appeal (Section 4 of PD No. 968 or Probation Law).
However, the accused is a child in conflict with the law,
application for probation may be filed at any time
(Section 42 of RA No. 9344). In sum, it can be filed even
beyond the period of perfecting an appeal and even if the
child has already perfected the appeal from the judgment
of conviction.
Under Section 9 of PD 968, one is sentenced to suffer
a penalty (maximum indeterminate penalty) of more than
6 years is not qualified to apply for probation (e.g. one
who is sentenced to suffer 2 years of prision correccional
as minimum to 6 years and 1 day of prision mayor as
maximum is not entitled to apply for probation).
However, under Section 70 of RA No. 9165 (Dangerous
Drugs Law), a first time minor offender can apply for
probation for the crime of illegal possession or use of
dangerous drug even if the penalty is higher than 6 years
of imprisonment. But Section 70 of RA 9165 is only
applicable if the minor is being charged with possession
or use of dangerous drugs. If the charge is selling
dangerous drugs, the applicable rule is Section 24 of RA
No. 9165, which disqualifies drug traffickers and pushers
for applying for probations. The law considers the users
and possessors of illegal drugs as victims while the drug
traffickers and pushers as predators (Padua vs. People,
G.R. No. 168546, July 23, 2008).

35. The child in conflict with the law may, after


conviction and upon order of the court, be made to serve
his sentence, in lieu of confinement in a regular penal
institution, in an agricultural camp and other training
facilities in accordance with Section 51 of RA No. 9344
(People vs. Mantalba, G.R. No. 186227, July 20, 2011;
People vs. Salcedo, GR No. 186523, June 22, 2011;
People vs. Arpon, G.R. No. 183563, December 14, 2011,
Justice De Castro).

36. Under Article 29 of RPC, a convicted recidivist is


not entitled to a full or 4/5 credit of his preventive
imprisonment. However, if the convict is a child, the
applicable rule for crediting the period of commitment
and detention is not Article 29 of RPC but Section 41, RA
9344. Under the said provision, the full time spent in
actual commitment and detention of juvenile delinquent
shall be credited in the services of his sentence (Atizado
vs. People, G.R. No. 173822, October 13, 2010).

37. In exempting circumstance of minority under


Section 6 of RA No. 9344, what is important is the
chronological age of the accused. If the actual age of the
child is 15 years old or under, he is exempt from criminal
liability. In People vs. Roxas, G.R. No. 200793, June 04,
2014 - In determining age for purposes of exemption from
criminal liability, Section 6 clearly refers to the age as
determined by the anniversary of ones birth date, and not
the mental age.

38. In exempting circumstance of imbecility, what is
important is the mental age of the accused. If the mental
age of the accused is 2 years, he is an idiot; if his mental
age is 7 years old, he is an imbecile (People vs. Butiong,
G.R. No. 168932, October 19, 2011). An idiot or imbecile
is exempt from criminal liability. If the mental age of the
accused is 12 years old, he is feebleminded (People vs.
Butiong, supra). A feebleminded accused is not an
imbecile; hence, he is not exempt from criminal liability
(People vs. Nunez, G.R. NO. 112429-30, July 23, 1997)
but only entitled to mitigating circumstance of mental
illness (People vs. Formigones, G.R. No. L-3246,
November 29, 1950). In People vs. Roxas, supra, the
chronological age of the victim is 18 years while his
mental age is 9 years old. Exempting circumstance of
minority cannot be appreciated since he is not a minor.
His actual age is not below 18 years. Neither can the
exempting circumstance of imbecility be appreciated. He
is not an imbecile since his mental age is not 7 years or
below.

39. There are two tests to determine the insane


condition of the accused: (a) The test of cognition
whether there was a complete deprivation of intelligence
in committing the criminal act (b) The test of volition
whether there was a total deprivation of freedom of the
will. In the Bonoan case, schizophrenic accused, who
acted under irresistible homicidal impulse to kill (volition
test), was acquitted due to insanity. This is not anymore a
good rule. Even if the mental condition of the accused had
passed the volition test, the plea of insanity will not
prosper unless it also passed the cognition test. The
controlling test is cognition (People vs. Opuran, G.R.
Nos. 147674-75, March 17, 2004). Accused will be
convicted if he was not totally deprived of reason and
freedom of will (People vs. Garchitorena, G. R. No.
175605, August 28, 2009 (Justice De Castro). Only
when there is a complete deprivation of intelligence at the
time of the commission of the crime should the exempting
circumstance of insanity be considered (People vs.
Bulagao, G.R. No. 184757, October 05, 201, Justice De
Castro).

If a person (such as sex maniac, homicidal maniac or


kleptomaniac) had merely passed the volition test but not
the cognition test, he will only be given the benefit of
mitigating circumstance of illness. Diminution of freedom
of the will is enough to mitigate the liability of the
offender suffering from illness (See: People vs. Rafanan,
Jr. November 21, 1991, G.R. No. 54135).

40. The absolutory cause of relationship, which


includes step-relationship and in-laws relationship,
applies to theft, swindling and malicious mischief. It does
not apply to theft through falsification or estafa through
falsification. There are two views on whether the death of
wife, which extinguishes marriage with the accused,
dissolves his relationship by affinity with his mother-in-
law for purpose of absolutory cause in swindling. The
first holds that relationship by affinity terminates with the
dissolution of the marriage, while the second maintains
that relationship continues even after the death of the
deceased spouse. The principle of pro reo or rule of lenity
calls for the adoption of the continuing affinity view
because it is more favorable to the accused (Intestate
estate of Gonzales vs. People, G.R. No. 181409, February
11, 2010).

41. Instigation means luring the accused into a crime


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

42. A police officers act of soliciting drugs from


appellant during the buy-bust operation, or what is known
as the "decoy solicitation," is not prohibited by law and
does not invalidate the buy-bust operation. Mere
deception by the police officer will not shield the
perpetrator, if the offense was committed by him free
from the influence or instigation of the police officer
(People vs. Espiritu, supra).

43. Surrender as a mitigating circumstance to be


voluntary must be spontaneous, showing the intent of the
accused to submit himself unconditionally to the
authorities, either because he acknowledges his guilt, or
he wishes to save them the trouble and expense
necessarily incurred in his search and capture. Voluntary
surrender presupposes repentance (People vs. Tabarnero,
G.R. No. 168169, February 24, 2010, Justice De Castro).
The accused surrendered only after having been informed
of the charge of rape against him or about two months
from the commission of the alleged crime. He even
denied the said charge upon his purported surrender. The
alleged surrender, therefore, does not qualify as a
mitigating circumstance (People vs. Salle, G.R. No.
181083, January 21, 2010, Justice De Castro).

44. A plea of guilty made after the prosecution had


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

45. Four days after the victims attempted on the


virtue of his wife, accused killed them. The period of four
days was sufficient enough a time within which accused
could have regained his composure and self-control.
Hence, passion should not be appreciated (People vs.
Rebucan, G.R. No. 182551, July 27, 2011, Justice De
Castro).

In the case of U. S. vs. Hicks (14 Phil., 217), the


accused therein and a woman illicitly lived together.
Afterwards, the woman separated from him and lived
with another man. Defendant, enraged by her conduct
killed her. This Court held that no mitigating
circumstance of passion and obfuscation was present, not
even loss of reason and self-control produced by jealousy
as alleged by the defense, inasmuch as the only causes
which mitigate the criminal responsibility for the loss of
self-control are such as originate from legitimate feelings,
not those which arise from vicious, unworthy and
immoral passions. In sum, to mitigate the liability of the
offender, passion must arise from lawful sentiment.

An employer reprimanded an employee for doing an


immoral act. Such reprimand cannot be a source of
passion, which will mitigate the liability of the employer
in committing a crime against his employer. Passion is not
mitigating if the accused was actuated more by a spirit of
lawlessness and revenge against his employer (People vs.
Caliso, G.R. No. 37271, July 1, 1933 En Banc).

Not illiteracy alone but also lack of sufficient


intelligence and knowledge to fully realize the
consequence of his criminal act are necessary to invoke
the benefit of mitigating circumstance of lack of
instruction and education (People vs. Gorospe, G.R. Nos.
10644-45, February 19, 1959). Where it was established
insufficiency of intelligence on the part of the accused to
fully comprehend the consequence of his crime,
mitigating circumstance of instruction and education shall
be appreciated even if he received instruction or education
in school.
46. It is now a requirement that the aggravating or
qualifying circumstances be expressly and specifically
alleged in the complaint or information. Otherwise, they
cannot be considered by the trial court in its judgment,
even, if they are subsequently proved during trial
(Sombilon, Jr. vs. People, G.R. No. 175528, September
30, 2009, Justice De Castro). This procedural rule has a

retroactive application because of pre reo (People vs.


Dadulla, G. R. No. 172321, February 9, 2011).

47. There is special aggravating circumstance of


exploitation of children if the accused makes use, takes
advantage of, or profits from the use of children, or
abuses his authority over the child or takes advantage of
the vulnerabilities of the child with abuse of confidence or
induce, threaten or instigate the commission of the crime
(Section 20-C of RA No. 9344 as amended by RA 10365).
Exploitation of children for the commission of crimes is a
special aggravating circumstance, where the penalty shall
be applied in its maximum period regardless of the
presence of mitigating circumstances. Under Article 14
(20) of RPC on the ordinary aggravating circumstance of
committing crime with the aid of a minor, the age of the
child must be under 15 years. But in the special
aggravating circumstance of exploitation of child, the age
of the minor must be under 18 years.

48. Abuse of superior strength is present whenever


there is inequality of forces between the victim and the
aggressor, considering that a situation of superiority of
strength is notoriously advantageous for the aggressor and
is selected or taken advantage of by him in the
commission of the crime (People vs. Garchitorena, G. R.
No. 175605, August 28, 2009, Justice De Castro). The
victim need not be completely defenseless in order for the
said aggravating circumstance to be appreciated (People
vs. Paling, G.R. No. 185390 March 16, 2011). If the
victim is completely defenseless, treachery should be
appreciated (People vs. Rebucan, G.R. No. 182551, July
27, 2011). When the circumstance of abuse of superior
strength concurs with treachery, the former is absorbed in
the latter (People vs. Dadao, et.al., G.R. No. 201860,
January 22, 2014, Justice De Castro).

49. The essence of evident premeditation is that the


execution of the criminal act must be preceded by cool
thought and reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to arrive
at a calm judgment (People vs. Alinao, GR No. 191256,
September 18, 2013). If the offender premeditated the
killing of a specific person, evident premeditated will not
be appreciable if he killed another person due to mistake
of blow, or mistake of identity (People vs. Mabug-at, 51
Phil., 967; People us. Dueo, G.R. No. L-31102, May 5,
1979).

50. In aid of armed men, the men act as


accomplices only. They must not be acting in the
commission of the crime under the same purpose as the
principal accused, otherwise they are to be regarded as co-
principals or co-conspirators (People vs. Enoja, GR No.
204894, March 10, 2014). In band, the armed members
thereof, who are at least four, must all be principals by
direct participation who acted together in the execution of
the acts constituting the crime (People vs. Lozano,
September 29, 2003, G.R. Nos. 137370-71).

51. Differences of recidivism, quasi-recidivism,


reiteracion and habitual delinquency:

(a) Recidivism and reiteration are ordinary


aggravating circumstances, the presence of any of which
will require the application of the penalty for the subject
crime in its maximum period unless it is off-set by
mitigating circumstance. Quasi-recidivism is special
aggravating circumstance, the presence of which will
require the application of the penalty for the subject crime
in its maximum period regardless of the presence of
mitigating circumstance. Habitual delinquency is an
extraordinary or special aggravating circumstance, the
presence of which will require the imposition of
additional penalty for the subject crime. This is not
subject to the off-set rule.

(b) In recidivism, the previous crime, and the subject

crime are embraced in the same Title of the RPC. In


quasi-recidivism, the nature of the previous crime and
subject crime is not material. In reiteration, the penalty for
the previous crime is equal or greater than that for the
subject crime or the penalty for the first two previous
crimes is lighter than that for the subject crime. In
habitual delinquency, the previous crimes and subject
crime must be serious or less serious physical injuries,
theft, robbery, estafa or falsification of document.

(c) In recidivism, the accused was being tried of the


subject crime when he was convicted of the previous
crime by final judgment. In quasi-recidivism, the accused
committed the subject crime before beginning to serve or
while serving his sentence for the previous crime. In
reiteration, the accused committed the subject crime after
serving his sentence for previous crime/s. In habitual
delinquency, the accused committed the second crime
within 10 years after conviction or release of the first
crime; then, he committed the third crime within 10 years
after conviction or release of the second crime; and so on
and so forth.

52. If accused claims intoxication as mitigating


circumstance, he must establish that his intoxication was
not habitual or subsequent to the plan to commit the crime
and that he took such quantity of alcoholic beverage, prior
to the commission of the crime, as would blur his reason
(People vs. Fontillas, G.R. No. 184177, December 15,
2010, Justice De Castro). If the prosecution claims
intoxication as aggravating circumstance, it must establish
that the intoxication is habitual or intentional (People vs.
Patelan, G.R. No. 182918, June 6, 2011). To aggravate the
liability of the accused, it is not necessary that degree of
intoxication must have impaired the will power of the
accused (People vs. Ga, G.R. No. 49831, June 27, 1990).
Failure of the prosecution or the accused to do so, the
circumstance of intoxication is neither aggravating nor
mitigating.

53. Light felony is punishable except when the


accused is merely an accessory (Article 16) or when it is
at the attempted or frustrated stage unless it is a crime
against property or person (Article 7).

54. If there is conspiracy, conspirators are liable as


principals regardless of the time and nature of
participation. It is immaterial whether accused acted as a
principal or as an accomplice because the conspiracy and
his participation therein have been established. In
conspiracy, the act of one is the act of all and the
conspirators shall be held equally liable for the crime
(People vs. Siongco, G.R. No. 186472, July 5, 2010). If
there is community of design, the participator, who knows
and concurred in the criminal design of the principal by
direct participation, is liable as accomplice or principal by
indispensable cooperation depending upon the nature of
participation. If the previous or simultaneous participation
consist of supplying material or moral aid in an
efficacious way, he is liable as accomplice. If the
participation is indispensable in the commission of the
crime, he is liable as principal by indispensable
cooperation.

A, B and C were walking when they saw X, mortal


enemy of A. A suddenly shot X. While X is dying, B and
C also shot him. There is no conspiracy in this case since
there is no prior agreement among A, B and C to kill X.
However, even without conspiracy they are liable as
principals by direct participation on the basis of their
independent acts of shooting X.

A for consideration induced B to kill X. Instead of


killing X, B induced C to kill X. C killed X. C is liable for
murder qualified by the circumstance of reward, promise or
consideration as principal by direct participation while B is
liable as principal by inducement. However, A is not
liable as principal by inducement because C killed X not

because of the inducement of A, but by reason of the


inducement of B.

55. Conspirators vs. accomplice Conspirators


agreed and decided to commit the crime; in sum, their
collective responsibility is based on conspiracy.
Accomplices acquire knowledge and concur with the
criminal design of the conspirators after the latter reaches
a decision; in sum, their quasi-collective responsibility is
based on community of design. Conspirators to be held
liable on the basis of collective responsibility must
perform an act in furtherance of conspiracy such as
providing active participation or moral assistance or
exerting moral ascendency. Accomplices must supply
material or moral aid an efficacious way. The nature and
time of participation of conspirators is not important. The
participation of the accomplices must be previous or
simultaneous to the commission of the crime but it must
not be indispensable to the commission thereof;
otherwise, they are liable as principal by indispensable
cooperation.

56. When there is doubt as to whether accused is


guilty as principal or accomplice, it should be resolved in
favor the "milder form of responsibility." He should be
given the benefit of the doubt and can be regarded only as
an accomplice (People vs. Eusebio, G.R. No. 182152,
February 25, 2013). Accused came to the resort thinking
it was a swimming party. However, she acquired
knowledge of the criminal design of the kidnappers when
she saw victim being guarded in the room. She concurred
with the criminal design of the kidnapper as shown by the
fact that she chose to keep quiet and did not report the
matter to the police authorities. She gave the kidnappers
moral support by spending the night at the cottage. Her
presence and company were not indispensable and
essential to the perpetration of the kidnapping for ransom;
hence, she is only liable as an accomplice. Moreover, in
case of doubt, the participation of the offender will be
considered as that of an accomplice rather than that of a
principal (People vs. Gambao, GR No. 172707, October
01, 2013).

57. The accused owned the safehouse, where the


kidnapped victim was detained and assisted the
kidnappers such as bringing foods to the victim.
Ownership of the safehouse and their participations
reasonably indicate that they were among those who at
the outset planned the kidnapping. Providing a safehouse
is an evidence of conspiracy since the place where the
victim is to be detained is a primary consideration in
planning to commit kidnapping. Although their
participation pertain to those committed by mere
accomplices, they are liable as principals because implied
conspiracy is shown. If there is conspiracy, the extent of
participation is not anymore material (People vs.
Salvador, GR No. 201443, April 10, 2013).

58. In fencing, the property, which the accused


possesses or deals with intent to gain, must be derived
from the proceeds of theft or robbery (Ong vs. People, GR
No. 190475, April 10, 2013). If the property is derived
from the proceeds of other crime such as malversation or
estafa through misappropriation, fencing is not
committed. But the accused can be held liable as an
accessory if he profited or assisted other to profit from
this misappropriated property. However, there is fencing
although the subject property has been derived from the
proceeds of carnapping (Dimat vs. People, G.R. No.
181184, January 25, 2012). The concept of carnapping is
the same as that of theft or robbery (People vs. Sia, G.R.
No. 137457, November 21, 2001). Thus, carnapping can
be considered as within the contemplation of the word
theft or robbery mentioned in PD No. 1612.

59. Actual knowledge that the property has been


derived from the proceeds of theft or robbery is not
required. The accused can still be held liable for fencing if
he should have known that the property is stolen taken
into consideration the attending circumstances such as (1)
the price of the property is so cheap; (2) expensive
jewelry is being offered for sale at midnight in a street; (3)
accused knew that the car he bought was not properly
documented (Dimat vs. People, supra); or (4) new tires
are being peddled in the streets by an unknown seller
(Ong vs. People, GR No. 190475, April 10, 2013).
Furthermore, mere possession of stolen property shall be
prima facie evidence of fencing (Section 6 of PD No.
1612).

60. A person who assists a criminal to escape is liable


as an accessory provided that: (1) the criminal being
assisted must be a principal in the commission of the
crime; (2) the crime committed by the criminal being
assisted is treason, parricide, murder, or an attempt to take
the life of the Chief Executive; if other crime is
committed, it is important that there is abuse of public
position or the criminal is a habitual delinquent; (3) the
accessory and criminal being assisted are not related
because relationship is an exempting circumstance. If any
of the three conditions mentioned is not present, the one
assisting the criminal to escape is not liable as accessory.
But he is liable as principal in the crime of obstruction of
justice under PD No. 1829. To be held liable for
obstruction of justice, what is important is that the
accused assists any person to escape although the
former knows, or has reasonable ground to believe that
the latter has committed any offense. Relationship is not
an exempting circumstance in obstruction of justice.

61. Credit is full if the detention prisoner executed


detainees manifestation, which is defined as a written
declaration of a detained prisoner, with the assistant of a
counsel, stating his refusal to abide by the same
disciplinary rules imposed upon a convicted prisoner for
the purpose of availing the full credit of the period of his
preventive imprisonment. Credit is 4/5 if the detention
prisoner executed detainees waiver, which is defined as a
written declaration of a detained prisoner, with the
assistant of a counsel, stating his refusal to abide by the
same disciplinary rules imposed upon a prisoner
convicted by final judgment. There is no credit if the
accused is recidivist; has been convicted previously twice
or more times of any crime; or has failed to surrender
voluntarily before a court of law upon being summoned
for the execution of his sentence. Credit for preventive
imprisonment for the penalty of reclusion perpetua shall
be deducted from thirty (30) years (Article 29 of RPC as
amended by RA No. 10592 and its implementing rules).

62. If the period of preventive imprisonment is equal


to the imposable maximum imprisonment of the offense
charged, the detention prisoner shall be released
immediately without prejudice to the continuation of the
case, except for the following: 1) recidivist; 2) habitual
delinquent; 3) escapee; and 4) person charged with
heinous crimes. Such period shall include good conduct
time allowance (Article 29 of RPC as amended by RA
No. 10592).

63. If detention or convicted prisoner escapes during


the calamity, and subsequently surrenders within 48 hours
from the time the President announces the passing away
of such calamity, he is entitled to 1/5 special time
allowance for loyalty under Article 98 of RPC as
amended by RA No. 10592; if the convicted prisoner did
not surrender within the period, he is liable for evasion of
sentence under Article 158 of RPC punishable by penalty
equivalent to one-fifth of the time still remaining to be
served under the original sentence, which in no case shall
exceed six months; if the detention prisoner did not
surrender within the period, he is not liable for evasion of
sentence. Only convicted prisoner can commit evasion of
service of sentence because a detention prisoner is not
serving sentence, which he can evade.

In case of the prisoner chose to stay in the place of


his confinement notwithstanding the existence of a
calamity, he is entitled to 2/5 special time allowance for
loyalty (Article 98 of RPC as amended by RA No.
10592). A prisoner who did not escape despite of the
calamity manifests a higher degree of loyalty to the penal
system than those who evaded their sentence but
thereafter gives themselves up upon the passing away of
the calamity. Hence, prisoners, who did not escape, are
entitled to a higher special time allowance.

64. In De Castro vs. People, G.R. No. 171672,


February 02, 2015, the court should prescribe the correct
penalties in complex crimes in strict observance of Article
48 of the Revised Penal Code. In estafa through
falsification of commercial documents, the court should
impose the penalty for the graver offense in the maximum
period. Otherwise, the penalty prescribed is invalid, and
will not attain finality.

65. The indeterminate sentence law is not applicable


to: (1) treason, conspiracy or proposal to commit treason
or misprision of treason; (2) rebellion; (3) sedition; (3)
espionage; (4) piracy; (5) habitual delinquents; (5) those
who have escaped from confinement or evaded sentence;
(6) those who violated the terms of conditional pardon;
(7) penalty of imprisonment the maximum term of which
does not exceed one year; (8) death penalty or life-
imprisonment [Section 2 of Act No. 4103] or reclusion
perpetua [RA No. 9346]; and (9) use of trafficked victim
[Section 11 of RA No. 9208 as amended). Under the
Islaw, in imposing a prison sentence for an offense, the
court shall sentence the accused to an indeterminate
sentence. Hence, Islaw is not applicable in imposing
non-prison sentence such as destierro, disqualification
or rehabilitation for use of dangerous drugs.

The probation law is not applicable to: (1) a penalty,


the maximum term of which is more than more than six
years [Section 9 of PD 968] unless it is imposed to
possession or use of dangerous drugs committed by first
time minor offender [Section 70 of RA No. 9165]; (2)
offense against the security of the State such as treason, or
violation of neutrality; (3) crimes against public disorder
such as rebellion, direct assault or alarm and scandal; (4)
those who have previously been convicted by final
judgment of a light offense; (5) who have been once on
probation [Section 9 of PD 968] and (6) drug trafficking
or pushing (Section 24 of RA No. 9165).

66. Under rules for application of divisible penalties
(Article 64 of RPC), if there are two or more mitigating
circumstances and not aggravating circumstances, the
penalty shall be graduated one degree lower. This is
called as special mitigating circumstance.

Accused was found guilty of parricide punishable by


the penalty of reclusion perpetua to death. Applying
rules for application of indivisible penalties (Article 63),
the lesser penalty of reclusion perpetua shall be applied if
there are two mitigating circumstance. The penalty
cannot be lowered to reclusion temporal, no matter how
many mitigating circumstances are present. The special
mitigating circumstance is found in rules for application
of divisible penalties (Article 64), which is not applicable
because the penalty is not divisible (People vs. Takbobo,
G.R. No. No. 102984, June 30, 1993).

The Takbobo principle is also applicable if the
penalty prescribed by law for the crime committed is a
single indivisible penalty such as reclusion perpetua.
Applying Article 63, the penalty of reclusion perpetua
shall be applied by the court regardless of mitigating or
aggravating circumstances that may have attended the
commission of the deed. The special mitigating
circumstance is found in rules for application of divisible
penalties (Article 64), which is not applicable because the
penalty is not divisible.

If there are three mitigating circumstance and one


aggravating circumstance, special mitigating
circumstance for purpose of graduating the penalty shall
not be appreciated. Although there are two remaining
mitigating circumstances after applying the off-set rule,
the penalty shall not be lowered by one degree because
the appreciation of special mitigating circumstance
requires that there is no aggravating circumstance.

67. For purposes of graduating penalty, the penalty of


death is still the penalty to be reckoned with. RA No.
9346, which prohibits the imposition of death penalty,
does not exclude death penalty in the order of graduation
of penalties. In qualified rape, the penalty for accomplice
is reclusion perpetua, the penalty next lower in degree
than death prescribed for the crime (See: People vs.
Jacinto, G.R. No. 182239, March 16, 2011).
68. If the penalty prescribed by law is reclusion
temporal (e.g. penalty for homicide) and there is one
mitigating circumstance, this penalty shall be imposed in
its minimum period. In such case, the indeterminate
minimum penalty shall be fixed anywhere within the full
range of prision mayor (6 years and 1 day to 12 years),
which is the penalty next lower in degree, while the
indeterminate maximum penalty shall be fixed anywhere
within the range of reclusion temporal in its minimum
period (12 years and 1 day to 14 years and 8 months).
Hence, the court may sentence the accused to suffer an
indeterminate penalty of: 6 years and 1 day of prision
mayor as minimum to 12 years and 1 day of reclusion
temporal as maximum (Sementela vs. People, G.R. No.
107699, March 21, 1997); or 8 years and 1 day of prision
mayor as minimum to 14 years of reclusion temporal as
maximum (People vs. Placer, G.R. No. 181753, October
09, 2013)
If the penalty reduced by degree is prision mayor
(e.g, penalty for homicide committed by minor) and there
is one mitigating circumstance, this penalty shall be
imposed in its minimum period. In such case, the
indeterminate minimum penalty shall be fixed anywhere
within the full range of prision correccional (6 months
and 1 day to 6 years), which is the penalty next lower in
degree, while the indeterminate maximum penalty shall
be fixed anywhere within the range of prision mayor in its
minimum period (6 years and 1 day to 8 years). Hence,
the court may sentence the accused to suffer an
indeterminate penalty of: 6 years of prision correccional
as minimum to 8 years of prision mayor as maximum
(Pado vs. People, G.R. No. 176609, December 18, 2008);
or 4 years, 9 months and 11 days of prision
correccional as minimum to 8 years of prision mayor as
maximum (Veranda vs. People, G.R. No. 58637,
November 16, 1981).

Only ordinary aggravating and mitigating


circumstances are subject to the offset rule. Privileged
mitigating circumstance of minority cannot be offset by
ordinary aggravating circumstance (Aballe vs. People,
G.R. No. L-64086, March 15, 1990). If privileged
mitigating circumstance and ordinary aggravating
circumstance attended the commission of felony, the
former shall be taken into account in graduating penalty;
the latter in applying the graduated penalty in its
maximum period (People vs. Lumandong, GR NO.
132745, March 9, 2000, En Banc). Quasi-recidivism is a
special aggravating circumstance and cannot be offset by
a generic mitigating circumstance (People vs. Macariola,
G.R. No. L-40757 January 24, 1983). The circumstance
of treachery, which qualifies the killing into murder,
cannot be offset by a generic mitigating circumstance
voluntary surrender (People vs. Abletes and Pamero, GR
NO. L-33304, July 31, 1974).
If the penalty for possession of dangerous drugs is 12
years and 1 day to 20 years of imprisonment, the court
shall sentence the accused to an indeterminate sentence
the maximum of which shall not exceed 20 years while

the minimum shall not be less than 12 years and 1 day.


Thus, the court can sentence the accused to suffer 15
years of imprisonment as minimum to 18 years as
maximum. The court cannot impose a straight penalty of
12 years and 1 day since the application of indeterminate
sentence law is mandatory (Asiatico vs. People, G.R. No.
195005, September 12, 2011; Escalante vs. People, G.R.
No. 192727, January 9, 2013).

69. In case of non-payment of fine by reason of


insolvency, the convict shall be subject to a subsidiary
imprisonment at the rate of one day for each amount
equivalent to the highest minimum wage rate prevailing in
the Philippines at the time of the rendition of judgment of
conviction by the trial court (Article 39 of RPC as
amended by RA No. 10159.

70. Article 70 of RPC is to be taken into account not


in the imposition of the penalty but in connection with the
service of the sentence imposed. This provision speaks of
"service" of sentence. Nowhere in the article is anything
mentioned about the "imposition of penalty". It merely
provides that the prisoner cannot be made to serve more
than three times the most severe of these penalties the
maximum of which is forty years (In People vs. Escares,
G.R. No. L-11128-33, December 23, 1957; Mejorada vs.
Sandiganbayan, G.R. No. L-51065-72, June 30, 1987).
Thus, the court cannot dismiss criminal cases in excess of
three on the basis of three-fold rule.

Under the three-fold rule, in serving multiple


sentences the period of imprisonment that convict must
serve must neither be more than 4o years nor exceed
threefold the length of time corresponding to the most
severe of the penalties imposed upon him. Example: A
was convicted of 10 counts of slight physical injuries and
sentence to suffer 30 days of arresto menor for each. He
was also convicted of less serious physical injuries and
sentence to suffer 2 months of arresto mayor. The total
duration of the penalties imposed on him is 1 year. The
most severe penalty imposed on him is 2 months. Thus,
threefold the length of time corresponding to the most
severe of the penalties is 6 months. A will be
imprisoned for 6 months because of the three-fold rule.

71. Reelection to public office is not provided for in


Article 89 of RPC as a mode of extinguishing criminal
liability incurred by a public officer prior to his reelection
(Oliveros vs. Judge Villalulz, G.R. No. L-34636, May 30,
1974, En Banc). But a re-elected public official cannot be
removed for administrative offense committed during a
prior term, since his re-election to office operates as a
condonation of his misconduct to the extent of cutting off
the right to remove him therefor (Aguinaldo vs. Santos,
G.R. No. 94115 August 21, 1992). However, the Supreme
Court in a case involving Makati Mayor Junjun Binay has
recently abandoned the doctrine of condonation of
administrative offense by reason of reelection because of
the constitutional provision on public accountability.

72. Novation is not a mode of extinguishing criminal


liability but it can extinguish the old contract, which may
be the basis of criminal liability. In estafa through
misappropriation, receiving the property in trust is an
element thereof. In sum, contract is an ingredient of this
crime. Novation may convert the contract of trust into
creditor-debtor situation, or put doubt on the true nature
of the original transaction (People vs. Nery, G.R. No. L-
19567, February 5, 1964, En Banc). In these situations,
the accused will be acquitted for failure to prove the
element of receipt of property in trust. Thus, novation is
a defense in estafa through misappropriation where the
contract of agency is converted into sale (Degaos vs.
People, GR No. 162826, October 14, 2013). However,
partial payment and promise to pay the balance of
obligation under contract of agency will not convert it
into sale. There is no novation since the obligation of the
accused in making a partial payment is not incompatible
to the obligation to give the proceeds of sale of the
property under the contract of agency (Degaos vs.
People, supra).

In theft case or estafa through falsification of public


documents, there was no contractual relationship or
bilateral agreement which can be modified or altered by
the parties. Hence, the principle of novation as a defense
is not applicable (People vs. Tanjutco, G.R. No. L-23924,
April 29, 1968; Milla vs. People, G.R. No. 188726,
January 25, 2012).

73. In People v. Bayotas, the Court laid down the


rules in case the accused dies prior to final judgment: 1.
Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil
liability based solely thereon. 2. The claim for civil
liability survives notwithstanding the death of accused, if
the same may also be predicated on a source of obligation
other than crime. 3. Where the civil liability survives, an
action for recovery therefor may be pursued but only by
way of filing a separate civil action, which may be
enforced either against the executor/administrator or the
estate of the accused, depending on the source of
obligation upon which the same is based. 4. The statute of
limitations on the civil liability arising from contract,
quasi-contract, quasi-delict or law is deemed interrupted
during the pendency of the criminal case (People vs.
Amistoso, GR No. 201447, August 28, 2013).

74. Article 91 of RPC provides the rule on


computation of prescription of offenses. Under this
provision, the period of prescription shall commence to
run from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall
be interrupted by the filing of the complaint or
information, and shall commence to run again when such
proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for
any reason not imputable to him. The term of prescription
shall not run when the offender is absent from the
Philippine Archipelago.

Generally, the prescriptive period shall commence to


run on the day when the crime is committed. An
exception to this rule is the "blameless ignorance"
doctrine, under which prescription runs only upon
discovery of the crime by offended party or State through
a person in authority or his agent. In other words, the
courts would decline to apply the statute of limitations
where the state through person in authority or its agent,
and private complainant does not know, or has no
reasonable means of knowing the existence of a crime. In
sum, the State and complainant should not be blame for
failure to institute the case immediately after the
commission of the crime if he is ignorant of such
commission. This principle is incorporated in in Section 2
of Act 3326 and Article 91 of RPC. Considering that
during the Marcos regime, no person would have dared to
assail the legality of the transactions involving cronies
such as behest loan, it would be unreasonable to expect
that the discovery of the unlawful transactions was
possible prior to 1986 (Disini vs. Sandiganbayan, G.R.
No. 169823-24 and 174764-65, September 11, 2013).
Hence, the prescriptive period for violation of RA No.
3019 commenced from the date of its discovery in 1992
after the Committee made an exhaustive investigation
(Presidential Ad hoc fact-finding committee vs. Hon.
Desierto, G.R. No. 135715, April 13, 2011).

Prescription runs only upon discovery of the crime by


offended party or person in authority of his agent. For
purpose of prescription of crime, the offended party
includes the person to whom the offender is civilly liable.
Thus, the widow of the murdered victim is an offended
party (Garcia vs. CA, G.R. No. 119063, January 27,
1997). Discovery of crime by a mere witness, who is not
an offended party, will not cause the prescription to run.

75. In the crime of falsification of a public document


involving a deed of sale, which was registered with the
Registry of Deeds, the rule on constructive notice can be
applied in the construction of Article 91. Hence, the 10-
year prescriptive period of the crime shall have to be
reckoned from the time the notarized deed of sale was
recorded in the Registry of Deeds (People vs. Reyes, G.R.
No. 74226, July 27, 1989). Constructive notice rule is not
applicable to registration of bigamous marriage in the
Office of the Civil Registrar. Furthermore, the law on
registration of document involving real property
specifically provides the rule on constructive notice. On
the other hand, the law on Civil Registry or the Family
Code, which governed registration of marriage do not
provide rule on constructive notice; hence the period of
prescription commences to run on the date of actual
discovery of the bigamous marriage (Sermonia vs. Court
of Appeals, G.R. No. 109454, June 14, 1994).

76. As a rule, period of prescription commence to run


from the date of discovery of its commission. However, if
the crime is not yet actionable at the time of its
commission, period of prescription will commence to run
from the time it becomes actionable. In false testimony,
the period of prescription commences to run from the date
of the finality of judgment of a case in which the offender
testified falsely. Prior to the date of finality, the crime is
not yet actionable (People vs. Maneja, G.R. No. 47684,
June 10, 1941). In violation of BP 22, the four-year period
of prescription for such crime commences to run from the
date of the expiration of the five-day period from receipt
of notice of dishonor by the drawer. Prior to that date, the
crime is not yet actionable (People vs. Pangilinan, G.R.
No. 152662, June 13, 2012). It would be absurd to
consider the prescriptive period for false testimony or
violation of BP Blg. 22 as already running before it
becomes actionable, and yet, the complainant could not
cause its interruption because he is not yet allowed to file
a complaint.

77. The running of prescription for offense under


special law will be interrupted only upon institution of
proceedings. There is institution of executive
proceedings when a complaint for preliminary
investigation is filed with the office of the city prosecutor
or ombudsman. There is institution of judicial proceeding
when a complaint or information is filed in court.

If the crime is punishable by a special law, the


proceeding is either executive of judicial (People vs.
Pangilinan, G.R. No. 152662, June 13, 2012). Hence, the
running of the prescription of offense punishable under
special law such as violation of BP No. 22, Revised
Securities Act and the Securities or RA No. 3019 shall be
interrupted upon filling of complaint for preliminary
investigation (Panaguiton vs. Department of Justice, G.R.
No. 167571, November 25, 2008; SEC vs. Interport
Resources Corporation, G.R. No. 135808, October 6,
2008; Disini vs. Sandiganbayan, G.R. No. 169823-24 and
174764-65, September 11, 2013. However, preliminary
investigation for violation of RA No. 3019 by alleged
cronies of Marcos not involving ill-gotten wealth
conducted by PCGG is void ab initio and could not
interrupt the 15-year prescriptive period for violation of
RA No. 3019. The investigatory power of the PCGG
extended only to alleged ill-gotten wealth cases. (People
vs. Romualdez and Sandiganbayan, G.R. No. 166510,
April 29, 2009).

If the crime is punishable by an ordinance, the


proceeding is judicial (Zaldivia v. Reyes, Jr., G.R. No.
102342, July 3, 1992). Hence, the filing of complaint
involving violation of ordinance for preliminary
investigation will not interrupt the running of 2-month
prescription. The provision in the Rules on Criminal
Procedure regarding the interruption of prescription by
institution criminal action is not applicable to violation of
ordinance because case involving this crime is covered by
the Rules on Summary Procedure (Jadewell Parking
Systems Corp. vs. Lidua, Sr., GR No. 169588, October 7,
2013).

78. In seduction, abduction, and acts of


lasciviousness, the marriage of the offender with the
offended party shall extinguish the criminal action or
remit the penalty already imposed upon the offender, co-
principals, accomplices and accessories (Article 334 of
RPC). In rape, subsequent marriage between the offender
and offended party shall extinguish the criminal action or
penalty with respect to the offender (Article 266-C of
RPC as amended by RA 8353). But this rule does not
extend to co-principals, accomplices and accessories.

79. Discharge of accused is not a mode of


extinguishing criminal liability. One of the hallmarks of
the Probation Law is precisely to suspend the execution
of the sentence, and not to replace the original sentence
with another. Compliance with the conditions is not
equivalent to services of sentences. The criminal liability
remains but the sentence will not be served (Villareal vs.
People, G.R. No. 151258, December 01, 2014). The grant
of probation suspends the execution of the principal
penalty of imprisonment and the accessory penalties.
Thus, the probationer is not disqualified from running for
a public office (Villareal vs. People, supra). However,
grant of probation shall not suspend the payment of civil
liability (Budlong, vs. Palisok, GR No. 60151, June 24,
1983). The trial court that convicted and sentenced the
accused has authority to grant probation (Villareal vs.
People, supra).

While accused did not file an appeal before applying


for probation, he assailed the validity of the conviction in
the guise of a petition supposedly assailing the denial of
probation. In so doing, he attempted to circumvent P.D.
No. 968, which seeks to make appeal and probation
mutually exclusive remedies (Almero vs. People, GR No.
188191, March 12, 2014).

The accused, who was convicted by the lower court
of a non-probationable offense of frustrated homicide, but
on appeal was found guilty of a probationable offense of
attempted homicide, may apply for probation upon
remand of the case to the RTC because of the following
reasons: (1) The Probation Law never intended to deny
an accused his right to probation through no fault of his;
(2) If the accused will not be allowed to apply for
probation, he will be made to pay for the trial courts
erroneous judgment; (3) While it is true that probation is
a mere privilege, the accused has the right to apply for
that privilege; (4) Under the law, appealing from
judgment of conviction is a waiver right to appeal. In this
case, the accused did not appeal from the judgment of a
conviction for attempted homicide rendered by the
appellate court (Colinares vs. People, G.R. No. 182748,
December 13, 2011).

Accused was convicted of homicide, a non-


probationable crime, by the trial court. However, the SC
found them liable for reckless imprudence resulting in
homicide, which is a probationable crime, because of
lack of dolo. They can still apply for probation. The SC
reaffirmed the Colinares case in Villareal vs. People, G.R.
No. 151258, December 1, 2014.

The period of probation of a defendant sentenced to


a term of imprisonment of not more than one year shall
not exceed two years, and in all other cases, said period
shall not exceed six years. When the sentence imposes a
fine only and the offender is made to serve subsidiary
imprisonment in case of insolvency, the period of
probation shall not be less than nor to be more than twice
the total number of days of subsidiary imprisonment
(Section 14 of PD No. 968).

80. Where the person kidnapped is killed in the


course of the detention, regardless of whether the killing
was purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be
complexed, nor be treated as separate crimes, but shall be
punished as a special complex crime (People vs.
Mercado, G.R. No. 116239, November 29, 2000; People
vs. Ramos, G.R. No. 118570, October 12, 1998; People
vs. Larranaga, 138874-75, February 3, 2004; People vs.
Montanir, GR No. 187534, April 04, 2011; People vs.
Dionaldo, G.R. No. 207949, July 23, 2014). However,
kidnapping is a crime against liberty. Hence, where there
is no actual detention or intent to deprive liberty, the case
of Mercado will apply. The crime committed is not
kidnapping with homicide but murder. Demand for
ransom will not convert the crime into kidnapping.

In Mercado case, the victim was kidnaped for


purpose of killing him. There is intent to deprive liberty
since he was brought to a safehouse in Tanay before
bringing him in Morong for execution. The crime
committed is kidnapping with homicide. In People vs.
Estacio Jr., G.R. No. 171655, July 22, 2009, the victim
was kidnaped in Quezon City for purpose of killing him.
There is no intent to deprive liberty since he was killed at
the precise moment that he was brought at the locus
criminis in Bulacan. The crime committed is murder
since the deprivation of liberty is just incidental.

81. If kidnapping is a necessary means to commit


frustrated murder, special complex crime of kidnapping
with frustrated homicide is not committed. Homicide as a
component of special complex crime must be at the
consummated stage. In this situation, the crime committed
is complex crime of kidnapping and serious illegal
detention with frustrated murder (See: People vs. Roxas,
GR No. 172604, August 17, 2010)

82. Killing the victim with qualifying circumstance

constitutes murder. But if the accused raped the victim or


inserted toothbrush into her anal orifice while she was
dying, the bestiality shall be considered as ignominy or
cruelty (People vs. Laspardas, G.R. No. L-46146, Oct. 23,
1979; People vs. Bernabe, G.R. No. 185726, October 16,
2009, Justice De Castro). The crime is not rape with
homicide or rape through sexual assault with homicide
since the original design is kill the victim and not to rape
or sexually assault her.

83. Homicide committed on occasion or by reason of


rape is a special complex crime. The phrase by reason of
the rape obviously conveys the notion that the killing
is due to the rape, which is the crime the offender
originally designed to commit. The victim of the rape is
also the victim of the killing. In contrast, the phrase on
the occasion of the rape refers to a killing that occurs
immediately before or after, or during the commission of
rape, where the victim of the homicide may be a person
other than the rape victim for as long as the killing is
linked to the rape, became evident. Thus, killing the first
victim to facilitate the rape of the second victim
constitutes rape with homicide (People vs.
Villaflores, G.R. No. 184926, April 11, 2012). Treachery
will not qualify the killing into murder since there is no
such special complex crime of rape with murder in the
book of statutes. Treachery shall be regarded as ordinary
aggravating circumstance (People vs. Laog, G.R. No.
178321, October 5, 2011).

84. Ordinarily, homicide means killing another


person. In sum, the person responsible for the death of the
victim must be the offender. But in the case of People vs.
Arpa, G.R. No. L-26789, April 25, 1969, the victim
himself, who jumped from boat, is responsible for his
own death, and yet, the SC convicted the accused of
robbery with homicide. In other words, death caused by
the victim himself is considered as homicide, which is a
component of robbery with homicide. Hence, suicide or
death caused by the victim herself can be considered as
homicide as a component of special complex crime of
rape with homicide.

85. Composite crime or special complex crime vs.


complex crime - (1) In a composite crime, the
composition of the offenses is fixed by law; In a complex
or compound crime, the combination of the offenses is not
specified but generalized, that is, grave and/or less grave,
or one offense being the necessary means to commit the
other; (2) For a composite crime, the penalty for the
specified combination of crimes is specific; for a complex
or compound crime, the penalty is that corresponding to
the most serious offense, to be imposed in the maximum
period; and (3) A light felony that accompanies a
composite crime is absorbed; a light felony that
accompanies the commission of a complex or compound
crime may be the subject of a separate information
(People vs. Villaflores, G.R. No. 184926, April 11,
2012).

86. The single act of rolling the hand grenade on the


floor of the gymnasium which resulted in the death of
victims constituted a compound crime of multiple
murders (People vs. Mores, GR No. 189846, June 26,
2013, Justice De Castro). When the killing is perpetrated
with treachery and by means of explosives, the latter shall
be considered as a qualifying circumstance. Since the use
of explosives is the principal mode of attack, reason
dictates that this attendant circumstance should qualify
the offense instead of treachery which will then be
relegated merely as a generic aggravating circumstance
(People vs. Comadre, et al., G.R. No. 153559, June 8,
2004). The single act of running over the victims with a
van constitutes compound crime of multiple murders
(People vs. Punzalan, Jr., G.R. No. 199892, December 10,
2012 (Justice De Castro).

Single act of pressing the trigger of Thompson or


armalite is treated as several acts as many as there are
bullets fired from gun. Because of special mechanism of
Thompson, the single act of pressing its trigger will cause
the continuous firing of bullets. Thus, accused is liable as
many homicides as there are victims (People vs. Desierto,
(C.A.) 45 O.G. 4542; People vs. Sanchez, G.R. No.
131116, August, 27, 1999; People vs. Tabaco, G.R. Nos.
100382-100385 March 19, 1997; People v. Vargas, Jr.,
G.R. No. 86728, April 6, 1990; People vs. Bermas, G.R.
Nos. 76416 and 94312 July 5, 1999).

87. When the elements of both robbery by means of


violence and intimidation and robbery by using force
upon thing are present, the crime is a complex one under
Article 48 of RPC. Hence, the penalty for robbery in
inhabited house shall be imposed in its maximum period
(People vs. Napolis, G.R. No. L-28865, February 28,
1972; People vs. Disney, G.R. No. L-41336, February 18,
1983, En Banc and Fransdilla vs. People, GR No. 197562,
April 20, 2015).

88. The body of the information charged the accused


of compound crime with murder and attempted murder
since two victims were hit by a single shot. The evidence
shows that murder and attempted murder are separate
crimes since the two victims were hit by several shot.
Under the variance rule, if the crime alleged in the
information varies with the crime proven with evidence,
the accused shall be convicted of the crime alleged or
proven whichever the lesser. Thus, accused shall be
convicted of complex crime, which is lesser compared to
two crimes (People vs. Bernardo, GR No. 198789, June
03, 2013).

89. If there are several acts involved in killing several


victims, there is no compound crime, which requires a
single act producing several crimes (People vs. Toling,
G.R. No. L-27097, January 17, 1975). There are two
exceptions: the Lawas principle and Abella principle.

Under the principle in In People vs. Lawas, L-7618-
20, June 30, 1955, if several accused killed several
victims pursuant to a single criminal impulse, they shall
be held liable for compound crime of multiple murders.
The Lawas principle should only be applied in a case
where (1) there is no conspiracy (People vs. Hon. Pineda,
G.R. No. L-26222, July 21, 1967) and (2) it is impossible
to ascertain the number of deaths caused by each accused.
Lawas doctrine is more of an exception than the general
rule (People vs. Remollino, G.R. No. L-14008, September
30, 1960). To apply Article 48 on compound crime, there
must be singularity of criminal act; singularity of criminal
impulse is not written into the law (People vs. Pineda,
G.R. No. L-26222, July 21, 1967). In Lawas case, the SC
was merely forced to apply Article 48 of RPC because of
the impossibility of ascertaining the number of persons
killed by each accused (People vs. Nelmida, G.R. No.
184500. September 11, 2012). Thus, the Lawas doctrine
should not be applied if there is conspiracy since the
number of victims actually killed by each conspirator is
not anymore material if there is conspiracy (People vs.
Elarcosa, G.R. No. 186539, June 29, 2010).
Under People vs. Abella, G.R. No. L-32205 August
31, 1979, if several prisoners killed fellow prisoners
pursuant to a single criminal purpose to take revenge, they
shall be held liable for compound crime of multiple
murders. Conspiracy animates several persons to commit
crimes under a single criminal purpose; The single
purpose rule was adopted in consideration of the plight
of the prisoners; hence, it only applicable if the offenders
committed the crimes in prison against their fellow
prisoners (People vs. Pincalin, G.R. No. L-38755, January
22, 1981; People vs. Nelmida, G.R. No.
184500, September 11, 2012).
The killing of soldiers in the Mamasapano incident
will not constitute compound crime of multiple murders.
Since there is implied conspiracy as shown by the

concerted actions in killing soldiers, the Lawas doctrine,


which treats killings under a single criminal impulse as a
compound crime, is not applicable. Since the killings
were not perpetrated by prisoners against fellow
prisoners, the Abella doctrine, which treats killings under
a single criminal purpose as a compound crime, is not
applicable.
90. If the accused committed robbery, but
thereafter, they detained the victims to forestall their
capture by the police, the crime committed is robbery
only. Robbery absorbs kidnapping and serious illegal
detention. The detention was only incidental to the main
crime of robbery, and although in the course thereof
women and children were also held, that threats to kill
were made, the act should not be considered as a separate
offense (People vs. Astor, G.R. Nos. L-71765-66, 29
April 1987). If the accused committed robbery, but
thereafter, they detained the victims to demand additional
money, and later forestall their capture by the police, the
crime committed is complex crime of robbery through
kidnapping and serious illegal detention. The detention
was availed of as a means of insuring the consummation
of the robbery. The detention was not merely a matter of
restraint to enable the malefactors to escape, but
deliberate as a means of extortion for an additional
amount. Hence, the Astor principle is not applicable
(People vs. Salvilla, G.R. No. 86163 April 26, 1990). If
the accused committed robbery by band, but thereafter,
they took one of the victims and detained him for seven
days in another place for purpose of demanding ransom,
they are liable of separate crimes of robbery by band and
kidnapping for ransom (People vs. Basao, G.R. No.
189820, October 10, 2012, Justice De Castro).

91. If the main objective of the accused is to rape the


victim, the crime committed is rape. Forcible abduction
(People vs. Mejoraday, G.R. No. 102705, July 30, 1993;
People vs. Almanzor, G.R. No. 124916, July 11, 2002) or
illegal detention (People vs. Nuguid, G.R. No. 148991,
January 21, 2004), which is incidental to the commission
of rape, is absorbed. The doctrine of absorption rather
than Article 48 of RPC is applicable since forcible
abduction or illegal detention is an indispensable means to
commit rape.

If forcible abduction is a necessary means to commit


rape, this is a complex crime proper under Article 48 of
RPC. However, if multiple rapes were committed, forcible
abduction will be considered as a necessary means to
commit the first rape but not the subsequent rape. Hence,
with respect to the first rape, the crime committed is rape
though forcible abduction while the subsequent rapes will
be treated as separate crimes (People vs. Jose, G.R. No.
L-28232, February 6, 1971; People vs. Garcia, G.R. No.
141125, February 28, 2002, En Banc; People vs. Amaro,
G.R. No. 199100, July 18, 2014).

As a rule, forcible abduction is an indispensable


means to commit rape; hence, the latter absorbs the
former. However, if the victim was brought in a house or
motel or in a place with considerable distance from the
place where she was abducted, forcible abduction will be
considered as a necessary means to commit rape; hence,
the crime committed is complex crime proper.

If the accused abducted the victim without clear


showing of lewd design, the crime committed is
kidnapping and serious illegal detention since it will
appear that the intention of the accused is to deprive
victim of his liberty. If as a consequence of illegal
detention, the victim was rape, the crime committed is a
special complex crime of kidnapping and serious illegal
detention with rape. This is the crime committed
regardless of the number of rapes. Multiple rapes will be
considered as a component of this special complex crime
(People vs. Mirandilla, Jr., G.R. No. 186417, July 27,
2011; People vs. Anticamaray, G.R. No. 178771, June 8,
2011). If as a consequence of illegal detention, the victim
was rape and then killed, the crime committed is a special
complex crime of kidnapping and serious illegal detention
with homicide and rape. Both the homicide and rape will
be considered as a component of this special complex
crime (People vs. Larranaga, 138874-75, February 3,
2004, En Banc).

The difference between rape through forcible


abduction and kidnapping with rape lies on the criminal
intention of the accused at the precise moment of
abduction. If the abduction is committed with lewd
design, the crime committed is rape through forcible
abduction. On the other hand, if the abduction is
committed without lewd design, the crime committed is
kidnapping and serious illegal detention with rape (People
vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011). Even
if the victim was detained for one week and in the course
thereof, she was rape, the crime committed is rape
through forcible abduction if the abduction is committed
with lewd design (People vs. Amaro, G.R. No. 199100,
July 18, 2014).

If the accused was molesting the victim immediately


upon abduction, that is proof that abduction is committed
with lewd design (People vs. Jose, supra). After eating the
food given by accused, the victim became dizzy and
thereafter, she passed out. When she regained
consciousness, she notices that she and accused are naked
inside a room. She was raped and detained for 6 days. The
crime committed is rape through forcible abduction
(People vs. Amaro, G.R. No. 199100, July 18, 2014).

92. Several acts performed separately during a period


of time under a single criminal intent in violation of penal
provision constitute a continued crime. Thus, several acts
of taking away by force the money and valuables of the
employees working in Energex gasoline station
committed under a single criminal intent to commit
robbery in that place in violation of a single penal
provision (Article 294 of RPC) constitute a continued
crime of robbery (People vs. De Leon, GR No. 179943,
June 26, 2009). Accused inserted his penis thrice into the
private part of victim for purpose of changing
position. The three penetrations motivated by a single
criminal intent to satisfy his lust in violation of single
penal provision (Article 266-A of RPC) constitute a
continued crime of rape (People vs. Aaron, G.R. Nos.
136300-02, September 24, 2002). Accused inserted his
penis thrice into the private part of victim for purpose of
resting for five minutes. He satisfied his lust every time
he would withdraw his penis to rest. Since the three
penetrations were motivated by separate three intents to
satisfy his lust, three separate crimes of rape are
committed (People vs. Lucena, GR No. 190632, February
26, 2014).

If the accused committed the first criminal act


without foreknowledge that he will commit the second,
the acts are not constitutive of a continued crime since the
criminal acts could not be said to have been committed
under a single criminal intent or impulse. X as punong
barangay was angered when he discovered a tap from the
main line of the public water tank. On separate occasions,
X threatened to kill and crack the skulls of A, B,
and C, who suspected to be responsible for the tapping
of water line. There is no continued crime since the three
crimes of grave threat were not committed under a single
criminal impulse. X has no foreknowledge that will
chance upon the second and third victims at the time he
was committing the first threat. Several threats can only
be considered as continued crime if the offender
threatened three individuals at the same place and at the
same time (Paera vs. People, G.R. No. 181626, May 30,
2011).

93. In unlawful arrest, the private individual (or


public officer in its private capacity) arrests or detains the
victim without reasonable ground or legal authority for
purpose of delivering him to the proper judicial authority.
In arbitrary detention, the public officer, who has
authority to make arrest, detains the victim without legal
grounds (People vs. Bringas G.R. No. 189093, April 23,
2010) in pursuit of this authority (People vs. Santiano,
G.R. No. 123979, December 3, 1998). The fact alone
they are police officers would not exempt them from the
criminal liability for kidnapping instead of arbitrary
detention. Taking the prisoner to a secluded place
constitutes illegal detention. Arbitrary detention is not
committed since the accused did not commit the act in
furtherance of official function or in the pursuit of
authority vested in them. In sum, they committed the act
in their purely private capacity (People vs. Santiano,
supra).

94. In evasion of service of sentence, the accused


must be a convicted prisoner and not merely a detention
prisoner. In delivery of prisoner from jail, the person, who
escaped through the help of the accused, is either a
detention prisoner or convicted prisoner. In infidelity in
the custody of prisoner, the person, who escaped in
connivance with or consent of or through negligence of
the accused-custodian, is either a detention prisoner or
convicted prisoner.

Brother of a detention prisoner and convicted


prisoner bribed the clerk of court to falsify release order
and their custodians to release his brothers. Convicted
prisoner but not the detention prisoner is liable for
evasion of service of sentence. Brother and clerk of court
are liable for delivery of prisoner from jail with respect to
the escape of detention prisoner and convicted prisoner.
Custodians are liable for infidelity in the custody of
prisoners with respect to the escape of detention prisoner
and convicted prisoner. Brother is liable for two counts of
corruption of public officer. Clerk of court and custodians
are liable for direct bribery. Clerk of court and brother are
liable for falsification of document as principal by direct
participation and as principal by inducement, respectively.

95. The elements of Infidelity in the Custody of


Documents under Article 226 of the RPC are: (1) The
offender must be a public officer; (2) There must be a
document removed, destroyed or concealed; (3) The
document destroyed or removed must be entrusted to such
public officer by reason of his office; and (4) Damage or
prejudice to the public interest or to that of a third person
must be caused by the removal, destruction or
concealment of such document (Zapanta vs. People, GR
No. 192698-99, April 22, 2015). Differences between
infidelity in the custody of document and estafa under
Article 315 (3) (c) of RPC: (1) In both crimes, the
offender removed, concealed or destroyed document; (2)
in infidelity of the custody of document, the offender is a
public officer entrusted with the document; while in
estafa, the offender is a private individual; (3) In estafa,
intent to defraud is an element; but this is not element of
infidelity in the custody of document.
96. Simple assault (such as punching) upon an agent
of a person in authority (e.g. police officer) while
engaged in the performance of duty constitutes simple
resistance. The crime committed is not direct assault since
intent to defy the law and its representative at all hazard,
which is an indispensable element thereof, is lacking
(U.S. vs. Tabiana, G.R. No. 11847, February 1, 1918; U.S.
vs. Agustin, G.R. No. 13083, December 11, 1917; People
vs. Lapitan, G.R. No. 38226, November 17, 1933). But
serious assault upon agent of a person in authority while
engaged in the performance of duty constitutes direct
assault (U.S. vs. Cox, G.R. No. 1406, January 6, 1904;
U.S. vs. Samonte, G.R. No. 5649, September 6, 1910).

Simple assault (such as punching) upon a person in


authority (e.g. mayor or chief of police) while engaged in
the performance of duty constitutes qualified direct
assault. Laying of hands upon a person in authority is a
qualifying circumstance in Article 148 of RPC. The law
does not distinguish between serious and simple laying
of hands upon a person in authority as a qualifying
circumstance. Hence, a simple laying of hands upon a
person in authority constitutes qualified direct assault.
The Tabiana principle is only applicable if the victim is an
agent of a person in authority (U.S. vs. Gumban, G.R. No.
13658, November 9, 1918).

If the person in authority or his agent is engaged in


the actual performance of duties at the time of the assault,
the motive for the assault is immaterial. Direct assault is
committed even on the assumption that the motive for the
offense (such as non-payment of loan) was a dispute
totally foreign to victims official function (Sarcepuedes
vs. People, G.R. No. L-3857, October 22, 1951).

The phraseology "on occasion of such performance"


used in Art. 148 of RPC signifies "because" or "by
reason" of the past performance of official duty even if at
the very time of the assault no official duty was being
discharged because the purpose of the law is to allow
them to discharge their official duties without fear of
being assaulted or injured by reason thereof (People vs.
Renegado, G.R. No. L-27031, May 31, 1974). Attacking a
judge on the street by reason of past performance of duty
(such as citing the accused in contempt) constitutes
qualified direct assault (U.S. vs. vs. Garcia, G.R. No.
6820, October 16, 1911). But attacking a retired judge by
reason of past performance of duty is not direct assault
since he is not anymore a person in authority at the time
of the assault. Note: The mandatory retirement age of a
judge is 70 year.

BP Blg. 873, which was enacted in 1985, has


amended Article 152 of RPC by making a lawyer a person
in authority while in the actual performance of their
professional duties or on the occasion of such
performance. The intention of the lawmakers is that their
status as persons in authority remains even the assault is
committed outside the court room as long as it is
perpetrated by reason of the performance of their
professional duties. (see: Records of the Batasan, Volume
Four, 1984-1985).

Attacking a third person who comes to the aid of a


person in authority, who is a victim of direct assault, is
liable for direct assault upon an agent of a person in
authority. Attacking a third person who comes to the aid
of an agent of person in authority, who is a victim of
direct assault, is liable for indirect direct assault.
Attacking a third person who comes to the aid of an agent
of person in authority, who is a victim of simple
resistance, is liable for physical injuries.

97. Making untruthful statement is the actus reus in


perjury and falsification. The difference however lies on
the nature of document. If the document is an affidavit
where the law requires oath such as affidavit of complaint
or verified petition, making an untruthful statement is
perjury. If the document is one where there is an implied
or express obligation to disclose the truth such as
community tax certificate, PDS, or contract of sale,
making an untruthful statement constitutes falsification.

Making untruthful statement (failure to disclose


previous criminal conviction) in a sworn application for
the patrolman examination constitutes perjury (People vs.
Cruz, 108 Phil. 255). Making untruthful statement (failure
to disclose pending criminal case) in unsworn PDS
constitutes falsification of document (Sevilla vs. People,
G.R. No. 194390, August 13, 2014). If there are several
mistakes in the PDS including those which are not
important, accused cannot be convicted of falsification of
document since it appears that failure to disclose pending
criminal case is not deliberate. Hence, accused is only
liable for reckless imprudence resulting in falsification
(Sevilla vs. People, supra).

Making it appears that a person participated in an act


or proceeding where in fact he did not is not the actus reus
in perjury. Hence, a mayor, who made it appear that
affiants swore and signed the affidavit before him where
in fact they did not, is liable of falsification of document
and not perjury (Lonzanida vs. People, G.R. Nos. 160243-
52, July 20, 2009, Justice De Castro).

Person cannot be held liable for perjury involving a


complaint affidavit for theft based on the execution of
affidavit of desistance. There is no perjury solely on the
basis of two contradictory statements. There must be
further evidence that will show which of the two sworn
statements is false (U.S. vs. Capistrano 40 Phil. 902).

In a verified answer, accused denied the allegation in


the complaint for collection on his loan obligation. He is
not liable for perjury since verification is not required in
answer in a civil case. He cannot be prosecuted for
perjury on the basis of an alleged falsehood made in a
verified pleading, which is not mandated by law to be
verified (Saavedra, Jr. vs. Department of Justice, G.R. No.
93178, September 15, 1993; Flordelis vs. Himalaloan,
G.R. No. L-48088, July 31, 1978).

The fact that subornation of perjury is not expressly


penalized in the Revised Penal Code does not mean that
the direct induction of a person by another to commit
perjury has ceased to be a crime, because said crime is
fully within the scope of provision on principal by
inducement (People vs. Pudol, G.R. No. 45618, October
18, 1938).

98. When the offender commits falsification of


public, official or commercial document as a necessary
means to commit malversation (People vs. Barbas, G.R.
No. L-41265, July 27, 1934), estafa (Ilumin vs.
Sandiganbayan, G.R. No. 85667, February 23, 1995;

Intestate Estate of Gonzales vs. People, G.R. No. 181409,


February 11, 2010; Ambito vs. People, G.R. No. 127327,
February 13, 2009, Justice De castro, Tanenggee vs.
People, G.R. No. 179448, June 26, 2013) or theft (People
vs. Salonga, G.R. No. 131131, June 21, 2001), the crime
committed is complex crime proper under Article 48 of
RPC. If the public officer is an accountable officer,
misappropriation of public funds is malversation (People
vs. Barbas). If the public officer is not an accountable
officer, misappropriation of funds is estafa (Ilumin vs.
Sandiganbayan). Using a falsified check to defraud the
bank is estafa through falsification of commercial
document (Tanengee vs. People). Using a stolen and
falsified check to defraud the bank is theft through
falsification of commercial document (People vs.
Salonga).

When the offender commits falsification of public,


official or commercial document as a means to conceal
malversation (People vs. Sendaydiego, G.R. Nos. L-
33252-54, January 20, 1978; People vs. Villanueva, G.R.
No. 39047, October 31, 1933, En Banc), estafa (People
vs. Monteverde, G.R. No. 139610, August 12, 2002;
People vs. Benito, G.R. No. 36979, November 23, 1932)
or theft, the crimes are separate. This is not complex
crime proper since one is not a necessary means to
commit another. Other view: If falsification is committed
for purpose of enabling the accused to commit
malversation (People vs. Silvanna, G.R. No. L-43120,
July 27, 1935; Zafra vs. People, G.R. No. 176317, July
23, 2014) or estafa (People vs. Go, G.R. No. 191015,
August 06, 20140) with less risk of being detected, the
accused is liable for complex crime proper.

Under the doctrine of common element, an element


used to complete one crime cannot be legally re-used to
complete the requisites of a subsequent crime (Regalado).
The common element of estafa or malversation and
falsification is damage to the victim. Thus, falsification of
private document and estafa cannot co-exist. The use of
damage as an element in falsification of private document
precludes the re-use thereof to complete the elements of
estafa, and vice versa.

If the falsification of a private document is


committed as a means to commit estafa, the proper crime
to be charged is falsification. If the estafa can be
committed without the necessity of falsifying a private
document, the proper crime to be charged is estafa
(Batulanon vs. People, G.R. NO. 139857, September 15,
2006). If the offender commits falsification of private
document as a means to commit estafa, he is liable for
falsification only. Falsification absorbs estafa. (See: U.S.
vs Chan Tiao, G.R. No. 12609, October 30, 1917; People
vs. Reyes, G.R. No. L-34516, November 10, 1931). If a
person commits falsification of private document to
conceal malversation or estafa, the crime is malversation
or estafa only. Falsification of private document is not
committed because: (a) the use of damage as an element
in estafa precludes the re-use thereof to complete the
elements of falsification; and (b) the damage to third
person is not caused by the falsity in the document but by
the commission of estafa (See: People vs. Beng, 40 O.G.
1913).

If falsification of private document was used as a


means to commit estafa, the former was committed ahead
of the latter; hence, falsification absorbs the element of
damage of estafa. If falsification of private document was
used as a means to conceal estafa, the latter was
committed ahead of the former; hence, estafa absorbs the
element of damage of falsification.

99. In Ruzol vs. Sandiganbayan, GR Nos. 186739-


960, April 17, 2013 There is no showing that mayor
possessed that criminal mind when he issued the subject
permits transport salvaged forest products to regulate and
monitor this products in order to avert the occurrence of
illegal logging in the area. He is not liable for usurpation
of function of the DENR because of good faith.
100. For purpose of malversation, national officer
shall be considered as an accountable officer if he has
custody or control of public property by reason of the
duties of his office (Government Auditing Code of the
Philippines) such as a principal of a public high school
entrusted with public funds (Torres vs. People, GR No.
175074, August 31, 2011). However, the Local
Government Code expanded the concept of accountable
local officer. Local officer shall be considered as an
accountable officer if he has possession or custody of
local government funds because of the nature of their
functions or has participated in the use or application of
thereof (Constantino vs. Sandiganbayan, G.R. No.
185224, July 29, 2015). Mayor and treasurer have duty to
participate in the release of funds. Their signatures are
needed to disburse municipal funds. No payment can be
effected without their signatures. They had control and
responsibility over the funds; hence, they are accountable
officer (Evangelista vs. Hon. Sandiganbayan, G.R. No.
158413, February 08, 2012). However, a non-accountable
officer or private individual can be held liable for
malversation if he conspires with an accountable officer
in committing the crime (People vs. Pajaro, G.R. Nos.
167860-65, June 17, 2008). Moreover, private individuals
can be held liable for malversation if he in any capacity
whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any
administrator or depository of funds or property attached,
seized or deposited by public authority, even if such
property belongs to a private individual (Article 222).
101. To sustain a charge of malversation, there
must either be criminal intent or criminal negligence
(Torres vs. People, GR No. 175074, August 31, 2011). If
the accused is charged of intentional malversation, but
evidence shows that the crime is committed through
negligence, he can be convicted of culpable malversation

because of the variance rule. Dolo or culpa is just a mode


of committing malversation. Even if the mode charged
differs from mode proved, accused can still be convicted
of malversation (Torres vs. People, GR No. 175074,
August 31, 2011).

102. In the crime of malversation, all that is


necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he did
not have them in his possession when demand therefor
was made, and that he could not satisfactorily explain his
failure to do so (Icdang vs. Sandiganbayan, G.R. No.
185960, January 25, 2012). Failure of an accountable
public officer to explain the missing funds shall be prima
facie evidence of misappropriation. However this
presumption is disputable by evidence showing that he
had fully accounted for the alleged cash shortage
(Legrama vs. Sandiganbayan, G.R. No. 178626, June 13,
2012).

Private property, which is under custodia legis, is


impressed with the character of public property. Hence,
misappropriation of garnished property by a sheriff, or
sequestered property by PCGG officer constitutes
malversation.

The grant of loans through the "vale" system is a


clear case of an accountable officer consenting to the
improper or unauthorized use of public funds by other
persons, which is punishable by the law. To tolerate a
such practice is to give a license to every disbursing
officer to conduct a lending operation with the use of
public funds. There is no law or regulation allowing
accountable officers to extend loans to anyone against
"vales" or chits given in exchange by the borrowers. On
the other hand, the the Commission on Audit time and
again, through repeated office memoranda and rulings had
warned against the acceptance of "vales" or chits by any
disbursing officer because such transactions are really
forms of loans (Meneses vs. Sandiganbayan, G.R. No.
100625 May 20, 1994).

103. The elements of failure to render accounting


under Article 218 of RPC are: (1) that the offender is a
public officer, whether in the service or separated
therefrom; (2) that he must be an accountable officer for
public funds or property; (3) that he is required by law or
regulation to render accounts to the Commission on
Audit, or to a provincial auditor; and (4) that he fails to do
so for a period of two months after such accounts should
be rendered. Demand before an accountable officer is held
liable for this crime is not required. Article 218 merely
provides that the public officer be required by law and
regulation to render account (People vs. Lumauig, G.R.
No.166680, July 7, 2014).

104. To commit the offense of knowingly rendering


an unjust judgment, the offender must be a judge who is
adequately shown to have rendered an unjust judgment,
not one who merely committed an error of judgment or
taken the unpopular side of a controversial point of law
(Re: Verified Complaint for Disbarment of AMA LAnd
Inc. against CA Association Justice Bueser et.al., OCA IPI
No. 12-204-CA-J, March 11, 2014).

105. In parricide, if the victim is his father, mother, or


child, the relationship can either be legitimate or
illegitimate; if the victim is the spouse, other ascendant
such as grandparent or other descendant such as
grandchild, the relationship must be legitimate (People vs.
Gamez, GR No. 202847, October 23, 2013).

106. The elements of death caused in a tumultuous


affray are as follows: (a) that there be several persons; (b)
that they did not compose groups organized for the
common purpose of assaulting and attacking each other
reciprocally (Note: If there is conspiracy, this element is
not present; conspirators are liable for homicide or

murder; People vs. Corpuz, G.R. No. L-36234 February


10, 1981); (c) that these several persons quarrelled and
assaulted one another in a confused and tumultuous
manner; (d) that someone was killed in the course of the
affray; (e) that it cannot be ascertained who actually killed
the deceased (Not: If the killers are identified, this
element is not present; since they are identified, they are
liable for homicide or murder; Wacoy vs. People, G.R.
No. 213792, June 22, 2015); and (f) that the person or
persons who inflicted serious physical injuries or who
used violence can be identified.

Husband, who killed his wife due to the circumstance


that will indicate that she had just finished having sexual
intercourse with another man, is liable for parricide. This
is not death under exceptional circumstance in Article 247
of RPC since he did not surprise his spouse in the act of
committing sexual intercourse. If a wife, who killed her
husband after having surprised him in the act of
sodomizing a gay, is liable for parricide. This is not death
under exceptional circumstance since sodomizing or
homosexual intercourse is not within the contemplation
of the term sexual intercourse in Article 247.

Any legally married person who, having surprised his


spouse in the act of committing sexual intercourse with
another person, shall kill any of them or both of them in
the act or immediately thereafter.

X killed his wife in the act of having sexual with a


man. It turned out that the man was raping his wife. X is
not liable for parricide. The act of X would have produce
death under exceptional circumstance had the facts that
the wife was voluntarily having sexual intercourse with a
man been as the accused believed to be. Because of
mistake of fact, X should be sentenced to suffer destierro
prescribed for death under exceptional circumstance.

X was declared presumptively death by the court. His

wife A married B. NX suddenly went home and surprised


A in the act of having sexual intercourse with her new
husband B. X is not liable for parricide. This is a case of
death under exceptional circumstance. In determining
whether X is liable for parricide or death under
exceptional circumstance, his criminal mind should be
considered. As far as the mind of X is concerned, A is his
wife and she surprised her in the act of infidelity. Hence,
he should be held liable for death under exceptional
circumstance only.

107. Among the amendments of the law on rape


introduced under RA No. 8353 is Section 266-D, which
provides Any physical overt act manifesting resistance
against the act of rape in any degree from the offended
party, or where the offended party is so situated as to
render her/him incapable of giving valid consent, may be
accepted as evidence in the prosecution rape (People vs.
Sabadlab, G.R. No. 175924, March 14, 2012). The
legislators agreed that Article 266-D is intended to soften
the jurisprudence on tenacious resistance (People vs.
Dulay, G.R. Nos. 144344-68, July 23, 2002, En banc).
Failure to shout should not be taken against the victim
(People vs. Rivera, GR No. 200508, September 04, 2013;
see: People vs. Rubio, G.R. No. 195239, March 7, 2012;
People vs. Penilla, GR No. 189324, March 20, 2013). It
necessary for the victim to sustain physical injuries. She
need not kick, bite, hit or scratch the offender with her
fingernails to prove that she had been defensive (People
vs. Torres, G.R. No. 134766, January 16, 2004).

108. In incestuous rape of a minor, actual force or


intimidation need not even be employed where the
overpowering moral influence of appellant, who is private
complainants father, would suffice (People vs. Samandre,
G.R. No. 181497, February 22, 2012) In rape committed
by a father, his moral ascendancy and influence over the
victim substitute for the requisite force, threat, and
intimidation, and strengthen the fear which compels the
victim to conceal her dishonor (People vs. Ortega, G.R.
No. 186235, January 25, 2012; People vs. Broca, GR No.
201447, January 09, 2013 People vs. Candellada, G.R.
No. 189293, July 10, 2013, Justice De Castro; People vs.
Osma, G.R. No. 187734, August 29, 2012, Justice De
Castro).
109. The sweetheart theory, as a defense, necessarily
admits carnal knowledge, the first element of rape. This
admission makes the sweetheart theory more difficult to
defend, for it is not only an affirmative defense that needs
convincing proof; after the prosecution has successfully
established a prima facie case, the burden of evidence is
shifted to the accused, who has to adduce evidence that
the intercourse was consensual (People vs. Deligero, GR
No. 189280, April 17, 2013).

110. The term statutory rape should only be confined


to situations where the victim of rape is a person less than
12 years of age. If the victim of rape is a person with
mental abnormality, deficiency, or retardation, the crime
committed is simple rape committed against a person
"deprived of reason" (People vs. Dalan, G.R. No. 203086,
June 11, 2014). In rape, the phrase "deprived of reason"
refers to mental abnormality, deficiency or retardation,
which includes (a) idiot (equivalent to two-year old
child); (b) imbecile (seven-year old child); (c) moron or
feebleminded (twelve-year old child) and (d) borderline
intelligence. A person is guilty of rape when he had
sexual intercourse with a female who was suffering from
a "borderline mental deficiency (People vs. Butiong, G.R.
No. 168932, October 19, 2011; G.R. No. 140209,
December 27, 2002, People vs. Bayrante, G.R. No.
188978, June 13, 2012, Justice De Castro);

The term demented refers to a person who has


dementia (schizophrenia) or insanity. On the other hand,
the phrase deprived of reason includes those suffering
from mental retardation. Accused was charged in the
Information with rape of a demented person. Evidence
however shows that the victim is not demented but
mentally retarded. Mistake in the information will not
exonerate the accused he failed to raise this as an
objection (People vs. Ventura, Sr. GR. No. 205230, March
12, 2014) or there is an allegation in the information that
his mental age is below 7 years old (People vs. Caoile,
GR No. 203041, June 05, 2013, Justice De Castro).

111. RPC punishes the rape of a mentally disabled


person regardless of the perpetrators awareness of his
victims mental condition. However, the perpetrators
knowledge of the victims mental disability, at the time he
committed the rape, qualifies the crime (People vs.
Caoile, GR No. 203041, June 05, 2013). Since knowledge
is an element of this qualifying circumstance, it must be
formally alleged in the information and duly proved by
the prosecution (People vs. Obogne, GR No. 199740,
March 24, 2014).

In qualifying circumstances of minority and


relationship in rape and special aggravating circumstance
under Section 31(c) of RA No. 7610 in sexual abuse
under Section 5, the guardian must be a person who has
legal relationship with his ward. He must be legally
appointed was first (People vs. Flores G.R. No.
188315, August 25, 2010). The common law husband of
the mother of the minor-victim is not her guardian. If the
information alleged that the accused is the guardian of the
victim and not the common law spouse of her mother,
rape is not qualified (People vs. Garcia, G.R. No. 120093,
November 6, 1997).

112. Husband can be held liable for marital rape.


Article 266-A of RPC uses the term man in defining
rape. Rape can be committed without regard to the rapists
legal relationship with his victim. Under Article 266-C of
RPC as amended by RA No. 8353, in case it is the legal
husband who is the offender, the subsequent forgiveness
by the wife as the offended party shall extinguish the
criminal action or the penalty. RA No. 8353 has
eradicated the archaic notion that marital rape cannot exist
because a husband has absolute proprietary rights over his
wifes body and thus her consent to every act of sexual
intimacy with him is always obligatory or at least,
presumed (People vs. Jumawan, G.R. No. 187495, April
21, 2014),

113. Rape through sexual assault committed by


inserting his penis into another persons mouth or anal
orifice, or any instrument or object into the genital or anal
orifice of another person. If the offender used instrument
or object in committing a crime, the crime is called
instrument or object rape. In rape through sexual assault,
the gender of the offender and the victim is not material.
That is why this crime is called gender-free rape. Rape
though sexual intercourse is committed by a man by
having carnal knowledge with a woman. This crime is
also called organ rape or penile rape. This is not a gender
free crime since the offender must be a man while the
victim must be a woman.

114. If the accused commits rape and acts of


lasciviousness, the latter is absorbed by the former
(People vs. Dy, G.R. Nos. 115236-37, January 29, 2002).
But the doctrine of absorption is not applicable to rape
through sexual assault. Inserting lighted cigarette into the
genital orifice and anal orifice of the victim and raping
her constitutes two counts of rape by sexual assault and
rape through sexual intercourse (People vs. Crisostomo,
GR No. 196435, January 29, 2014). Inserting the penis
into the mouth of the victim and into her genital orifice
constitutes rape through sexual assault and organ rape (In
People vs. Espera, G.R. No. 202868, October 02, 2013 -
Justice De Castro).

115. If the crime charged is rape, but the crime


proven is acts of lasciviousness, the accused will be
convicted of the latter because of the variance rule. Acts
of lasciviousness is necessarily included in the charge of
rape. If the crime charged is rape through sexual
intercourse, but the crime proven is rape through sexual
assault, the accused cannot be convicted of the latter. The
variance rule is not applicable since rape through sexual
assault is not necessarily included in the charge of rape
through sexual intercourse. The elements of these two
crimes are materially and substantially different. In such
case, the accused will be convicted of acts of
lasciviousness, which is necessarily included in the charge
of rape through sexual intercourse (People vs. Pareja, GR
No. 202122, January 15, 2014, Justice De Castro; People
vs. Cuaycong, G.R. No. 196051, October 02, 2013,
Justice De Castro; People vs. CA, G.R. No. 183652,
February 25, 2015).

116. Having sexual intercourse or lascivious conduct


with a child constitutes child prostitution if committed for
money, profit, or any other consideration (People vs.
Jalosjos, G.R. Nos. 132875-76, November 16, 2001); or
sexual abuse is committed under coercion or influence of
any adult, syndicate or group. In child prostitution, the
victim is called child exploited in prostitution while in
sexual abuse the victim is called child subjected to other
abuse (Section 5 of RA No 7610). Coercion is either
physical or psychological. Taking advantage of
ascendency as a swimming instructor over student is
psychological coercion (People vs. Larin, G.R. No.
128777, October, 7 1998). The assurance of love,
guarantee that she would not get pregnant by using the
"withdrawal method" and the promise of marriage were
classified as "psychological coercion" and "influence"
within the purview of Section 5 of RA 7610. Hence,
accused is guilty of sexual abuse (Caballo vs. People, GR
No. 198732, June 10, 2013).

117. If the victim is 12 years old and above, and


having sexual intercourse (or lascivious conduct) with her
constitutes rape (or acts of lasciviousness) under RPC and
sexual abuse under RA No. 7610, the offender can be
prosecuted for either. He cannot be charged with both
crimes for the same act because his right against double
jeopardy will be prejudiced. Both crimes are of the same
nature since the essence of both is having sex without
consent. Consent of the child is not recognized by law.
Likewise, rape cannot be complexed with sexual abuse.
Under Section 48 of RPC, a felony cannot be complexed
with an offense penalized by a special law (People v.
Abay, G.R. No. 177752, February 24, 2009; People vs.
Pangilinan, G.R. No. 183090, Nov. 14, 2011, People v.
Dahilig, G.R. No. 187083, June 13, 2011, People v.
Matias, G.R. No. 186469, June 13, 2012 and Alberto vs.
Hon. Court of Appeals, G.R. No. 182130, June 19, 2013).

If the victim is under 12 years old, and having sexual


intercourse with her constitutes:
(a) Rape and sexual abuse - The offender can be
prosecuted for rape (Section 5 of RA No. 7610);

(b) Acts of lasciviousness and sexual abuse - The


offender can be prosecuted for acts of lasciviousness
under RPC with the penalty of reclusion temporal in its
medium prescribed by Section 5 of RA No. 7610.

(c) Rape through sexual assault and sexual abuse -


The offender can be prosecuted for rape with the penalty
of prision mayor prescribed by RPC. However, this rule is
unfair. One who commits acts of lasciviousness in relation
to RA No. 7610 suffers the more severe penalty of
reclusion temporal in its medium period than the one who
commits rape through sexual assault, which is merely
punishable by prision mayor. To prevent unfairness, the
penalty of reclusion temporal in its medium period shall
be imposed to sexual assault committed against a child
subjected to sexual abuse. In People vs. Chingh, G.R. No.
178323, March 16, 2011, the SC stated To be sure, it was
not the intention of the framers of RA No. 8353, to have

disallowed the applicability of RA No. 7610 to sexual


abuses committed to children. Despite the passage of RA
No. 8353, R.A. No. 7610 is still good law, which must be
applied when the victims are children.

(d) Qualified rape through sexual assault and sexual


abuse - The offender can be prosecuted for rape with the
penalty of reclusion temporal prescribed by RPC. In
People vs. Bonaagua, G.R. No. 188897, June 6, 2011,
since the crime committed is rape through sexual assault
with qualifying circumstance of minority and relationship,
the rationale of unfairness to the child victim that Chingh
case wanted to correct is absent because RPC as amended
by RA No. 8353 already prescribes the penalty of
reclusion temporal for this crime. Hence, there is no more
need to apply the penalty prescribed by RA No. 7610 for
sexual abuse. The penalty under RPC should be imposed.

118. Accompanying a child and offering her sexual
services in exchange for money constitutes child
prostitution. The accused who offered the victim to the
one who raped her is not liable for rape as principal
indispensable cooperation since bringing the victim to the
rapist is not indispensable to the commission of the crime
of rape (People vs. Dulay, GR No. 193854, September 24,
2012). If the accused is regularly offering the sexual
service of the child in exchange for money, the crime
committed is not anymore child prostitution. Maintaining
or hiring the child as purpose of prostitution constitutes
qualified trafficking in person because the former took
advantage of vulnerability of the latter as a child and as
one who need money. Minority is qualifying circumstance
(People vs. Casio, G.R. No. 211465, December 03, 2014).
Recruiting without license a person, child or adult, to
work as a prostitute abroad constitutes the crime of
trafficking in person and illegal recruitment. Syndicate is
qualifying circumstance in both crimes. Even if the
accused is less than three, but the allegation and evidence
shows that there are at least three traffickers and
recruiters, syndicated can be appreciated as qualifying
circumstance (People vs. Lalli, G.R. No. 195419, October
12, 2011; People vs. Hashim, G.R. No. 194255, June 13,
2012).

119. The Family Code has expressly banned the


infliction of corporal punishment by a school
administrator, teacher or individual engaged in child care
exercising special parental authority. A schoolteacher in
employing unnecessary violence on her minor student,
who even fainted from the violence suffered at her hands,
is liable for child abuse under Section 10 of RA No. 7610
(Rosaldes vs. People, G.R. No. 173988, October 08,
2014). Accused saw the victim and his companions
hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his
face. Since the accused committed the act at the spur of
the moment, they are perpetrated without intent to debase
his "intrinsic worth and dignity" as a human being, or to
humiliate or embarrass him. Without such intent, the
crime committed is not child abuse under RA 7610 but
merely slight physical injuries (Bongalon vs. People, G.R.
No. 169533, March 20, 2013).

120. In order to constitute estafa through issuance of


bouncing check, the postdating or issuing a check must be
the efficient cause of the defraudation. In sum, the
offender must be able to obtain money or property from
the offended party by reason of the issuance of the check,
whether dated or postdated (People vs. Reyes, GR No.
157943, September 04, 2013). Issuance of bouncing
check to cover pre-existing obligation is not estafa.

To be guilty of this crime the accused must have used


the check in order to defraud the complainant. What the
law punishes is the fraud or deceit, not the mere issuance
of the worthless check. However, prima facie evidence of
deceit exists by law upon proof that the drawer of the
check failed to deposit the amount necessary to cover his
check within three days from receipt of the notice of
dishonor (People vs. Reyes, GR No. 157943, September
04, 2013). However, receipt of notice of dishonor is not
an element of this crime.

121. Estafa through false pretense vs. other deceit - In


estafa under Article 315, the false representation is
committed by using fictitious name, or falsely pretending
to possess power, influence, qualifications, property,
credit, agency, business or imaginary transactions, or by
means of other similar deceits. Following the principle of
ejusdem generis, other deceit as a means to commit estafa
must be similar to pretending to possess power, imaginary
transaction etc. If the deceit is not similar to pretending to
possess power or imaginary transaction, the crime
committed is other deceit under Article 318. In Guinhawa
vs. People, G.R. No. 162822 August 25, 2005 () -
Fraudulent representation of the seller that the van to be
sold is brand new constitutes other deceit under Article
318. On the other hand, in People vs. Rubaton, C.A., 65
O.G. 5048, issue of May 19, 1069, false representation
that accused has a palay by reason of which the victim
parted his money in consideration of the palay constitutes
estafa under Article 315. Unlike in the Guinhawa case,
the transaction in Rubaton case is imaginary.

The false pretense made by accused that Primelink


was authorized to sell membership shares is estafa. False
pretense of qualification to sell securities is within the
contemplation of the provision on estafa (Lopez vs.
People, GR No. 199294, July 31, 2013)

122. In other forms of swindling under Article 316,


(1) and (2) of RPC, offender perpetrates false
representation involving real property and act of
ownership such as selling it, which causes damage to third
person. In paragraph 1, the accused represents that he
owned the property, while in paragraph 2, he expressly
represents in the deed of conveyance that the property is
free from encumbrance (Estrellado-Mainar vs. People,
G.R. No. 184320, July 29, 2015).

123. A project manager, who took construction


materials from the project site, is liable for qualified theft
since the stolen properties are accessible to him (Zapanta
vs. People, G.R. No. 170863, March 20, 2013). If the
accused as an employee had no physical access to, or
material possession of, the stolen goods owned by his
employer, the qualifying circumstance of abuse of
confidence cannot be appreciated (Viray vs. People, GR
No. 205180, November 11, 2013). Breaking the main
door because accused was denied access to complainants
house means the latter has no confidence on the former.
Qualified theft with abuse of confidence is not committed
(Viray vs. People, GR No. 205180, November 11, 2013).
The crime committed is robbery by using force upon
thing.

124. If the subject matter of a crime against property


was money, identity of the offended party in the
information is indispensable for the proper identification
of the offense charged. Since money is generic, it can only
be identified connecting it to the offended party. Thus, the
erroneous designation of the offended party is fatal to the
prosecution of the crime. If the subject matter of a crime
against property is specific, identity of the offended party
in the information is not indispensable for the proper
identification of the offense charged. Since property is
specific, it can be identified even without connecting it to
the offended party (Senador vs. People, GR No. 201620,
March 06, 2013).

125. Refusal to remit rentals for properties owned by


corporation to corporate officers, who are not validly
elected, does not constitutes estafa through
misappropriation (People vs. Arambulo, G.R. No.
186597, June 17, 2015). In a prosecution for estafa
through misappropriation, demand is not necessary where
there is evidence of misappropriation or conversion
(People vs. Arambulo, supra);

126. Misappropriation of personal property in


possession of the accused may constitute estafa or theft
depending upon the nature of possession. If his possession
of the property is physical or de facto, misappropriation
thereof is constitutive of theft. If the possession is
juridical or legal, misappropriation thereof is estafa
through misappropriation. But if the accused acquired not
merely possession but also ownership over the property,
his liability in connection with the property is merely
civil.

If there is a contract of agency, the possession of the


agent over the property owned by principal is juridical.
Under the Civil Code, an agent can even assert, as against
his own principal, an independent, autonomous, right to
retain money or goods received in consequence of the
agency; as when the principal fails to reimburse him for
advances he has made, and indemnify him for damages
suffered without his fault (Guzman v. Court of
Appeals, 99 Phil. 703). Thus, failure of the agent to return
the money or property to the principal is estafa
(Carganillo vs. People, G.R. No. 182424, September 22,
2014; Tria vs. People, G.R. No. 204755, September 17,
2014).

In Velayo vs. People, G.R. No. 204025, November


26, 2014 Accused induced to complainant to entrust to
her the funds for the taxes because she knew someone at
the BIR who could help her facilitate the remittance, and
even reduce the amounts due. She received the money for
remit the same to the BIR with full freedom and
discretion. Thus, she had juridical possession of money.
The crime committed is estafa.

Driver of jeepney under boundary arrangement, who


did not return the vehicle to the owner-operator, is liable

for carnapping. The law prohibits operator of motor


vehicle from leasing it. In the eye of the law the driver
was only an employee of the owner rather than a lessee.
For being an employee, his possession of the jeepney is
physical (People v. Isaac G.R. No. L-7561, April 30,
1955), and thus, misappropriation thereof is carnapping
(People vs. Bustinera, G. R. No. 148233, June 8, 2004)

As a rule, the possession of the employee is only


physical possession. Hence, misappropriation of property
is considered as theft. If the property is accessible to the
employee because of his function as such, the qualifying
circumstance of abuse of confidence can be appreciated.
The following employees were convicted of qualified
theft for misappropriating the property of their employer:
(a) bank teller (People v. Locson, G.R. No. L-35681,
October 18, 1932), (b) collector (Matrido vs. People, G.R.
No. 179061, July 13, 2009; Benabaye vs. People, G.R.
No. 203466, February 25, 2015) and (c) cash custodian
(Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000;
Balerta vs. People, G.R. No. 205144, November 26,
2014).

However, there are instances where the possession of


the employee is considered as juridical. 1. In Aigle vs.
People, G.R. No. 174181, June 27, 2012 - A corporate
officer received the property to be utilized in the
fabrication of bending machines in trust from the
corporation and he has absolute option on how to use
them without the participation of the corporation. Upon
demand, the officer failed to account the property. Since
the corporate officer received the property in trust with
absolute option on how to use them without the
participation of the corporation, he acquired not only
physical possession but also juridical possession over the
equipment. He is liable for estafa through
misappropriation. 2. In People vs. Go, G.R. No. 191015,
August 6, 2014 The President of the Bank is holding the
banks fund in trust or for administration for the banks
benefit. His possession is juridical. Hence,
misappropriating the funds by making fictitious loan is
estafa. 3. In Gamboa vs. People, G.R. No. 188052, April
21, 2014 - Accused employed as Liaison Officer of a
pawnshop received money in trust to secure or renew
licenses and permits. His possession is juridical. Hence,
misappropriating the money is estafa.

126. The term "personal property" in the Revised
Penal Code should be interpreted in the context of the
Civil Code. Consequently, any personal property, tangible
or intangible, corporeal or incorporeal, capable of
appropriation can be the object of theft. Business may be
appropriated under Bulk Sales Law. Thus, the business of
providing telecommunication and the telephone service is
a personal property (Laurel vs. Abrogar, G.R. No.
155076, January 13, 2009).

128. If the bulky goods are taken by the accused


inside a compound (such as SM), theft is consummated
even if the accused failed to bring out the stolen goods
from the compound, which makes him unable to freely
dispose it. Unlawful taking is deemed complete from the
moment the offender gains possession of the thing, even if
he has no opportunity to dispose of the same. Inability to
dispose the stolen property is not an element of theft.
Unlawful taking is the element which produces the felony
in its consummated stage. Without unlawful taking, the
offense could only be attempted theft, if at all. Thus, theft
cannot have a frustrated stage (Valenzuela vs. People, G.
R. No. 160188, June 21, 2007). Thus, taking tire inside
the yard without consent of the owner with intent to gain
consummates the crime of theft even if the same was not
brought out of the yard.

If the accused is charged with frustrated theft, he


could not be convicted of the crime charged because theft
has no frustrated stage. Neither could he be convicted of
consummated theft since it was not alleged in the
information. But he could be convicted of attempted theft
because this crime is necessarily included in the charge of
frustrated theft (Canceran vs. People, G.R. No. 206442,
July 01, 2015).

129. The only requirement for a personal property to


be the object of theft under the penal code is that it be
capable of appropriation. It need not be capable of
"asportation," which is defined as "carrying away."
Jurisprudence is settled that to "take" under the theft
provision of the penal code does not require asportation or
carrying away (Medina vs. People, G.R. No. 182648,
June 17, 2015);

Any person who, having found lost property, shall


fail to deliver the same to the local authorities or to its
owner, is liable for theft. If the finder surrenders the
property found to a policeman, who fails to deliver it the
owner, the policeman is liable for theft. He acquired the
position occupied by the actual finder. Appropriating the
property is of the same character of that made by one who
originally found the same (People vs. Avila, G.R. No. L-
19786, March 31, 1923).

130. It is immaterial that the death would supervene


by mere accident; or that the victim of homicide is other
than the victim of robbery, or that two or more persons are
killed or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by
reason or on the occasion of the crime. Likewise
immaterial is the fact that the victim of homicide is one of
the robbers; the felony would still
be robbery with homicide. Once a homicide is committed
by or on the occasion of the robbery, the felony
committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery
are integrated into one and indivisible felony
of robbery with homicide. The word homicide is used
in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide. It is only the result obtained,
without reference or distinction as to the circumstances,
causes or modes or persons intervening in the commission
of the crime that has to be taken into consideration. There
is no such felony of robbery with homicide through
reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery and
homicide, must be consummated (People vs. Laog, G.R.
No. 178321, October 5, 2011; (People vs. Ebet, GR No.
181635, November 15, 2010; People vs. De Leon, GR
No. 179943, June 26, 2009; People vs. Diu, GR No.
201449, April 03, 2013, Justice De Castro).
In People vs. Concepcion, G.R. No. 200922, July 18,
2012 - Accused snatched victims shoulder bag which was
hanging on her left shoulder. No violence, intimidation or
force was used in snatching her shoulder bag. Given the
facts, the snatching of shoulder bag constitutes the crime
of theft, not robbery. Accuseds co-conspirator, who was
driving the motorcycle, died because he lost control of the
motorcycle and crashed in front of a taxi. Since accused
as passenger in the motorcycle, did not perform or
execute any act that caused the death of his companion,
he cannot be held liable for homicide.

There was no law providing for the additional rape/s


or homicide/s for that matter to be considered as
aggravating circumstance in robbery with homicide or
rape. The aggravating circumstances under Article 14 of
RPC are exclusive, unlike in Art. 13 of the same Code
which enumerates the mitigating circumstances where
analogous circumstances may be considered, hence, the
remedy lies with the legislature. Consequently, unless and
until a law is passed providing that the additional rape/s or
homicide/s may be considered aggravating, the Court
must construe the penal law in favor of the offender as no
person may be brought within its terms if he is not clearly
made so by the statute (People vs, Sultan, G.R. No.
132470, April 27, 2000; People vs. Regala, G.R. No.
130508, April 5, 2000, En Banc; People vs. Gano, G.R.
No. 134373, February 28, 2001, En Banc; People vs.
Larranaga, 138874-75, February 3, 2004, En Banc).

In robbery with violence and intimidation against


persons, dwelling is aggravating because in this class of
robbery, the crime may be committed without the
necessity of trespassing the sanctity of the offended
party's house (People vs. Evangelio, G.R. No. 181902,
August 31, 2011). Band or uninhabited place is a special
aggravating circumstance in robbery. If this circumstance
is present, the crime committed is robbery by band or in
an uninhabited place under Article 295 of RPC. But if the
crime committed is robbery with rape, band and
uninhabited place shall be considered an ordinary
aggravating circumstance. Article 295 is not applicable to
robbery with rape. Nighttime is aggravating if the accused
took advantage of the darkness of the night (People vs.
Banhaon, G.R. No. 131117, June 15, 2004) or silence of
the night or the circumstance that the victims and
neighbors were sleeping (People vs. Ventura and Ventura,
G.R. No. 148145-46, July 5, 2004).

In simple robbery under Article 294 of RPC, violence


and intimidation is employed to take property. In
occupation of real property under Article 312, violence or
intimidation is employed to occupy the real property. If
the accused has already occupied the house of the
complainant, and he used violence or intimidation to
prevent the said owner from reoccupying the property, the
crime committed is not occupation of real property. The
accused may be held liable of grave threat, grave coercion
or discharge of firearm depending upon the circumstance
of the case.

131. Committing robbery in a store, which is not used


as a dwelling, is robbery in a private building (Marquez
vs. People, G.R. No. 181138, December 3, 2012). Where
the accused broke the show-window of the Bombay
Palace Bazar at Rizal Avenue, Manila and removed forty
watches therefrom, the crime was theft and not robbery
because he did not enter the building. The show-window
was outside the store (People vs. Adorno, CA 40 O. G.
567; People vs. Jaranilla. G.R. No. L-28547, February 22,
1974). In robbery by using force upon thing, using
picklock, usurpation of property etc are modes of entering
the building to take property therein.

Using picklock to open a locked cabinet and taking


property therein is not robbery by using force upon thing.
To constitute robbery by using force upon thing, the
picklock must be used to open the building and not
merely the locked receptacle. Entrusted key is not a false
key in robbery by using force upon thing.

132. There is qualified carnapping or carnapping in


the aggravated form when the owner or driver of the
vehicle is killed in the course of the commission of the
carnapping or on the occasion thereof. To prove this
special complex crime, it is important to show that
original criminal design of the culprit is to commit
carnapping (People vs. Nocum, G.R. No. 179041, April 1,
2013).

133. If the main objective is to kill a particular person


who may be in a building or edifice, when fire is resorted
to as the means to accomplish such goal the crime
committed is murder only. When the Code declares that
killing committed by means of fire is murder, it intends
that fire should be purposely adopted as a means to that
end. There can be no murder without a design to take life.
Murder qualified by means of fire absorbs the crime of
arson since the latter is an inherent means to commit the
former (People vs. Baluntong, G.R. No. 182061, March
15, 2010). Single act of burning the building to kill to two
victims constitutes compound crime of double murders
(People vs. Gaffud, G.R. No. 168050, September 19,
2008).

If the main objective is the burning of the building or


edifice, but death results by reason or on the occasion of
arson, the crime is arson with homicide, and the resulting
homicide is absorbed (People vs. Villacorta, 172468,
October 15, 2008, Leonardo-De Castro).

If the objective is to kill, and in fact the offender has


already done so, and arson is resorted to as a means to
cover up the killing, the offender may be convicted of two
separate crimes of homicide or murder, and arson (People
vs. Cedenio, G.R. No. 93485, June 27, 1994).
134. Article 320 of RPC contemplates the malicious
burning of structures, both public and private, hotels,
buildings, edifices, trains, vessels, aircraft, factories and
other military, government or commercial establishments
by any person or group of persons. Section 3 of PD No.
1613, on the other hand, currently governs simple arson.
P.D. No. 1613 contemplates the malicious burning of
public and private structures, regardless of size, not
included in Article 320 of the RPC. This law punishes
simple arson with a lesser penalty because the acts that
constitute it have a lesser degree of perversity and
viciousness. Simple arson contemplates crimes with less
significant social, economic, political, and national
security implications than destructive arson (People vs.
Macabando, GR No. 188708, July 31, 2013). Burning of
inhabited house or personal property is simple arson
under Section 3 of P.D. No. 1613, and not destructive
arson under RPC.

The accused set fire to his house, and that the fire
spread to other inhabited houses. The fact that his act
affected many families will not convert the crime to
destructive arson because he did not manifest a high
degree of perversity since his intention is merely to burn
his house. Crime committed is simple arson under PD No.
532 (People vs. Macabando, supra). Note: Setting fire to

his own property under circumstances which expose to


danger the life or property of another is arson under
Section 1 of PD No. 1613.

The accused set fire to her house knowing that houses


of her neighbors may likewise be burned. She even stated
Damay-damay na tayo diyan, huwag ninyo nang patayin
ang sunog. As a consequence, adjacent houses were
burned and an occupant of one house died. She is liable
for destructive arson with homicide (People vs. Villacorta,
G.R. No 172468, October 15, 2008, Leonardo-De
Castro).

135. Even if the second marriage is null and avoid


because of psychological incapacity, contracting such
marriage is bigamy. To hold otherwise would render the
States penal laws on bigamy completely nugatory, and
allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages (Tenebro
vs. The Honorable Court of Appeals, G.R. No. 150758,
February 18, 2004; Walter vs. People, GR No. 183805,
July 03, 2013). Note: Article 40 of the Family Code is not
applicable since the provision contemplates a situation
where first marriage and not the second marriage is null
and void.

Even if the first marriage is null and avoid because of


psychological incapacity (Wiegel v. Sempio-Diy, 143
SCRA 499) or the absence of a marriage license or of an
affidavit of cohabitation (Lasanas vs. People, G.R. No.
159031, June 23, 2014), contracting a second marriage
constitutes the crime of bigamy unless a judicial
declaration of the nullity of the first marriage has been
secured beforehand. Because of Article 40 of the Family
Code, a declaration of the absolute nullity of a marriage is
now explicitly required either as a cause of action or a
ground for defense (Lasanas vs. People, supra).

Contracting second marriage without previous


judicial declaration of nullity of the first marriage
consummates the crime of bigamy. One the crime
consummates, criminal liability will attach to the accused.
The following subsequent developments will not
extinguish his criminal liability for bigamy: (a)
Subsequent declaration of nullity of the first marriage
obtained before the filing of the complaint for bigamy
(People vs. Odtuhan, GR No. 191566, July 17, 2013); (b)
Subsequent declaration of nullity of the first marriage and
second marriage (Jarillo vs. People, GR No. 164435,
September 29, 2009).

Even if the first marriage was contracted prior to the


Family Code, this is not a defense. Article 40, which is a
rule of procedure, should be applied retroactively.
The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is
adversely affected. The reason is that as a general rule, no
vested right may attach to, nor arise from, procedural laws
(Jarillo vs. People, GR No. 164435, June 29, 2010).

However, the principle that one who enters into a


subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy is not applicable where
the parties merely signed the marriage contract without
marriage ceremony performed by a duly authorized
solemnizing officer. The mere private act of signing a
marriage contract bears no semblance to a valid marriage
and thus, needs no judicial declaration of nullity. Hence,
bigamy is not committed (Morigo vs. People, G.R. No.
145226, February 06, 2004).

X contracted three marriages. His first wife is already


dead when X contracted his third marriage. X is liable for
bigamy involving the second marriage on the basis of his
first marriage. X is not liable for bigamy involving the
third marriage on the basis of the first marriage since the
first has already been extinguished by reason of death of
the first wife when he contracted the third. He is not liable
for bigamy involving the third marriage on the basis of
the second marriage since the latter is null and void for
being a bigamous marriage.

136. A priest, who performed a marriage ceremony


despite knowledge that the couple had no marriage
license, is liable for illegal marriage. The non-filing of a
criminal complaint against the couple does not negate
criminal liability of the priest. Article 352 does not make
this an element of the crime. The law sets the minimum
requirements constituting a marriage
ceremony: first, there should be the personal appearance
of the contracting parties before a solemnizing officer;
and second, their declaration in the presence of not less
than two witnesses that they take each other as husband
and wife. For purposes of determining if a marriage
ceremony has been conducted, a marriage certificate is
not included in the requirements (Ronulo vs. People, G.R.
No. 182438, July 02, 2014).

137. Under this doctrine, fair commentaries on


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

What is the difference between fair and true report,

and fair comment as a privilege communications? (1) In


fair and true report, the accused makes a report on the
function-related acts performed by public officers without
any comments or remarks. On the other hand, in fair
comment, the accused is making a comment on the
function-related acts performed by public officers. (2) In
fair and true report, the prosecution must prove actual
malice i.e., such as the report was made in bad faith. In
fair comment, the prosecution must actual malice i.e.,
comment was made with knowledge that comment was
false or with reckless disregard of whether it was false or
not (Sulivan vs. Newyork Times doctrine; Guingguing vs.
the Honorable Court of Appeals, G.R. No. 128959,
September 30, 2005) Only false statements made with the
high degree of awareness of their probable falsity
demanded by New York Times may be the subject of either
civil or criminal sanctions (Flor vs. People, G.R. No.
139987, March 31, 2005). (3) In fair and true report, the
report involving defamatory statement must be true. In
fair comment, the defamatory imputation in the
commentary is not true but the accused has no knowledge
that it is false and has not recklessly disregarded to know
whether it is false or not.

Journalists bear the burden of writing responsibly


when practicing their profession, even when writing about
public figures or matters of public interest. The report
made by Tulfo describing a lawyer in the Bureau of
Customs as corrupt cannot be considered as "fair" and
"true" since he did not do research before making his
allegations, and it has been shown that these allegations
were baseless. The articles are not "fair and true reports,"
but merely wild accusations. He had written and
published the subject articles with reckless disregard of
whether the same were false or not (Erwin Tulfo vs.
People, G.R. No. 161032, September 16, 2008).

138. Libel is not a constitutionally protected speech


and that the government has an obligation to protect
private individuals from defamation. Indeed, cyber libel is
actually not a new crime since Article 353, in relation to
Article 355 of the penal code, already punishes it. Online
defamation constitutes similar means for committing
libel (Disini vs. Secretary of Justice, G.R. No. 20335,
February 18. 2014). The place where libelous article was
accessed by the offended party in the internet is not
equivalent to the place where the libelous article is
printed and first published. To rule otherwise is to
allow the evil sought to be prevented by the amendment
to Article 360, and that was the indiscriminate laying of
the venue in libel cases in distant, isolated or far-flung
areas, to harass an accused. At any rate, Article 360 still
allow offended party to file the civil or criminal complaint
for internet libel in their respective places of residence
(Bonifacio vs. RTC, Makati, Branch 149, G.R. No.
184800, May 5, 2010).

139. Reckless imprudence under Article 365 is a


single quasi-offense by itself and not merely a means to
commit other crimes; hence conviction or acquittal of
such quasi-offense bars subsequent prosecution for the
same quasi-offense, regardless of its various
consequences. The essence of the quasi offense of
criminal negligence under article 365 of the Revised
Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be
punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account to
determine the penalty. It does not qualify the substance of
the offense. And, as the careless act is single, whether the
injurious result should affect one person or several
persons, the offense criminal negligence remains one and
the same, and cannot be split into different crimes and
prosecutions (Ivler vs. Modesto-San Pedro, G.R. No.
172716, November 17, 2010).

140. To make a doctor liable for reckless imprudence


resulting to homicide, it must be shown that he did not
treat his patient in accordance with the standard of care
and skill commonly possessed and exercised by similar
specialists under similar circumstances. Failure to present
specialist as witness to testify on this standard is fatal to
the prosecution of the case (Solidum vs. People, GR No.
192123, March 10, 2014).

141. MMDA officer is extorting money from a driver


of a vehicle, who committed trafficking violation along
Edsa. The officer threatened the driver that he will
confiscate her drivers license unless she will give him
P500.00. However, MMDA officer is not aware that his
act of extorting money is being video-recorder by a
passenger. The passenger violated the Anti-Wire Tapping
Law. The recording of private conversations without the
consent of the parties contravenes the provisions of RA
No. 4200 (Anti-Wire Tapping Law). The law covers even
those recorded by persons privy to the private
communications. The law is applicable even if the
conversation being recorder pertains to criminal extortion
(Mamba vs. Garcia, A.M. No. MTJ-96-1110, June 25,
2001). Passenger is criminally liable for violating law. On
the other hand, MMDA officer is liable for attempted
robbery. However, in proving attempted robbery, the
driver cannot use the recording since the same is not
admissible in evidence.

142. A, a mayor used the money acquired through


the commission of plunder in buying a mansion
somewhere in Batangas. To hide ownership over the
mansion, the property was registered in the name B.
C, a lawyer, prepared the documents to make it appear
that the property is owned by B. A is liable for money
laundering under RA No. 9160 as amended by RA No.
10365 because he transacted monetary instrument
connected with an unlawful activity, and that is plunder.
B is liable for money laundering since he concealed or
disguised the true nature, or ownership of the property
connected with plunder. C is liable for money
laundering since he counseled the commission of the
money laundering offenses.

Unlawful activity includes piracy, murder, distructive


arson, kidnapping for ransom, crimes involving dangerous
drugs; hijacking, carnapping, fencing, robbery, qualified
theft, and estafa; bribery and corruption of public officers,
frauds and Illegal exactions, malversation, graft and
corruption, and plunder etc.

143. The acts of attaching the face of his ex-girlfriend


on a nude body of a woman in a picture, sending the
picture to her through cell phone text message and
threatening to post it in the internet for all to see that
caused substantial emotional and psychological distress to
her constitute of psychological violence against woman
under Section 5 (h) of RA No. 9262 (Ang vs. The
Honorable CA, G.R. No. 182835, April 20, 2010).

144. In Villareal vs. People, G.R. No. 151258,


February 1, 2012, the accused was liable for reckless
imprudence resulting in homicide involving the death of
Lenny Villa during hazing rite. This is not anymore
controlling. The crime committed if a neophyte died
during hazing rite is hazing punishable by RA No. 8049.
The crime of hazing is thus committed when the
following essential elements are established: (1) a person
is placed in some embarrassing or humiliating situation or
subjected to physical or psychological suffering or injury;
and (2) these acts were employed as a prerequisite for the
persons admission or entry into an organization (People
vs. Bayabos, G.R. No. 171222, February 18, 2015). The
Philippine Merchant Marine Academy is included in the
term organization within the meaning of the law (People
vs. Bayabos).

Failure to allege that the physical or psychological


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

In homicide or murder, what is criminal is the killing


of person. Hence, intent to kill is an indispensable
element. Death of the victim consummates the crime. In
hazing, what is prohibited is the infliction of the infliction
of physical or psychological suffering on another in
furtherance of the latters admission or entry into an
organization (People vs. Bayabos). Hence, intent to kill is
not material.

Homicide or murder is malum in se. Consent of the


victim to the infliction of harm may negate dolo or
criminal intent, which would make the killing punishable
as reckless imprudence (Villareal vs. People, G.R. No.
151258, February 1, 2012). Hazing is malum prohibitum.
Consent of the neophyte is not a defense (Senate
deliberation).

In hazing, criminal responsibility is based on (1)


actual participation in inflicting physical harm, (2)
presumed participation (of those who are present during
the hazing), (3) the presence of adviser, (4) participation
in the planning (by officers, former officers and alumni of
the fraternity); (5) knowledge (of the parent of frat
member in the home of whom hazing occurred, owner of
the place commission, and school authorities).

The owner of the place commission, and school


authorities are liable for hazing as accomplices.

In the case of school authorities and faculty members


who have had no direct participation in the act, they may

nonetheless be charged as accomplices if it is shown that


(1) hazing, as established by the above elements,
occurred; (2) the accused are school authorities or faculty
members; and (3) they consented to or failed to take
preventive action against hazing in spite actual knowledge
thereof (People vs. Bayabos).

The corresponding responsibilities of the principal,


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

145. Illegal possession of loose firearm is absorbed in


rebellion or attempted coup detat. As a rule, when use of
a loose firearm is inherent in the commission of other
crime, such circumstance shall be considered as an
aggravating circumstance. For example, if a loose firearm
was used in committing homicide, the penalty of
reclusion temporal prescribed for shall be applied in its
maximum period.

However, if the penalty for illegal possession of loose


firearm is graver than that prescribed for other crime
committed, the penalty for the latter shall be applied. For
example, the penalty for alarm and scandal is arresto
menor while the penalty for illegal possession of small
arm under Section 28 of RA No. 10591 is prision mayor
in its medium period. If a loose firearm is used in
committing alarm and scandal, the accused shall be
prosecuted for alarm and scandal but the penalty
imposable is prision mayor in its medium period
prescribed for possession of loose firearm.

146. In People vs. Chan Liu, G.R. No. 189272,


January 21, 2015, accused were caught by police
authorities on board a speedboat carrying shabu. They

were charged with importation of dangerous drugs.


However, since it was not proven that the drugs came
from China or foreign country they were convicted of
possession of dangerous drugs, which is necessarily
included in the charge of importation.

147. Silence of the law as to the consequences of the


failure on the part of the law enforcers to seek the prior
authority of the PDEA cannot be interpreted as a
legislative intent to make an arrest without such PDEA
participation illegal or evidence obtained pursuant to such
an arrest inadmissible (People vs. Clarite, G.R.
No. 187157, February 15, 2012). Lack of coordination
with the PDEA will not invalidate a buy-bust
operation. Such coordination is not an indispensable
requirement in buy-bust operations. Neither Section 86 of
Republic Act No. 9165 nor its Implementing Rules and
Regulations make PDEAs participation a condition sine
qua non for the conduct of a buy-bust operation (People
vs. Mendosa, G.R. No. 189327, February 29, 2012)

148. In Ambre vs. People, G.R. No. 191532. August


15, 2012 - In no instance did accused challenge, at the
RTC, the supposed absence of confirmatory drug test
conducted on her. Accused only questioned the alleged
omission when she appealed her conviction before the
CA. It was too late in the day for her to do so. Well
entrenched is the rule that litigants cannot raise an issue
for the first time on appeal as this would contravene the
basic rules of fair play and justice.

149. Under Section 21 of RA No. 9165, the


apprehending team having initial custody and control of
the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused, his representative or
counsel, media and DOJ, and any elected public official.
Non-compliance with the requirements of Section 21 of
R.A. No. 9165 will not necessarily render the items seized
or confiscated in a buy-bust operation inadmissible. Strict
compliance with the letter of Section 21 is not required if
there is a clear showing that the integrity and the
evidentiary value of the seized items have been preserved
(David vs. People, Gr No. 181861, October 17, 2011, ;
Marquez vs. People, G.R. No. 197207, March 13, 2013;
People vs. Morate, GR No. 201156, January 29, 2014;
People vs. Ladip, GR No. 196146, March 12, 2014;
People vs. Bis, GR No. 191360, March 10, 2014).

150. Thus, the following links must be established in


the chain of custody in a buy-bust situation: first, the
seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending
officer; second, the turn over of the illegal drug seized by
the apprehending officer to the investigating officer; third,
the turn over by the investigating officer of the illegal
drug to the forensic chemist for laboratory examination;
and fourth, the turn over and submission of the marked
illegal drugs seized from the forensic chemist to the court
(People vs. Constantino, Jr. GR No. 199689, March 12,
2014)

151. Where the presence of dangerous drugs as basis


for possession is only in the form of residue and there is a
positive confirmatory test result, the accused should be
charged with use of dangerous drugs rather than
possession of dangerous drugs. This would be in keeping
with the intent of the law to file charges of use of
dangerous drugs in order to rehabilitate first time
offenders of drug use and provide them with an
opportunity to recover for a second chance at life (People
vs. Matinez, G.R. No. 191366, December 13, 2010).

152. Possession of different kinds of dangerous drugs


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

153. As a general rule, planting of evidence to


incriminate an innocent person constitutes the crime of
incriminating an innocent person under Article 363 of
RPC. However, if the incriminatory evidence planted is
dangerous drugs or unauthorized explosives, loose
firearm, the crime committed is planting of evidence
under RA 9165 for the dangerous drug, PD 1866 as
amended by RA 9516 for the explosive and RA No.
10591 for loose firearm.

If unlawful arrest is committed to plant incriminatory


evidence, the crime committed is complex crime of
incriminating innocent person through unlawful arrest
(People vs. Alagao, G.R. No. L-20721, April 30, 1966).
If incriminatory evidence is planted to justify an unlawful
arrest, the crime committed is complex crime of unlawful
arrest through incriminating an innocent person. But if
the incriminatory evidence is dangerous drugs, explosive
or loose firearm, unlawful arrest and planting of evidence
are separate crimes. Complex crime is not committed
since planting of evidence, which is punishable under
special law, cannot be made a component of a complex
crime.

Stealing property and planting the stolen property to


impute to the victim the crime of theft constitutes
complex crime of incriminating an innocent person
through theft.

Planting of live bullet by NAIA personnel to extort


money from a passenger of an airline constitutes separate
crime of planting of evidence and consummated or
attempted robbery.

154. Section 23 of RA No. 9165, any person charged


under any crime involving dangerous drugs regardless of
the imposable penalty shall not be allowed to avail of the
provision on plea-bargaining.

155. Demand letter was given with the security


guard with the instruction to hand it to accused. But there
is no showing that the letter ever reached accused.
Counsel sent a demand letter to accused by registered
mail which was returned with the notation "N/S Party
Out 12/12/05" and that accused did not claim it despite
three notices to her. Since there is insufficient proof that
accused actually received the notice of dishonor, the
presumption that she knew of the insufficiency of her
funds cannot arise. Accused was acquitted. However, he
is still civilly liable (San Mateo vs. People, G.R. No.
200090, March 6, 2013).

156. Exerting efforts to reach an amicable settlement


with her creditor after the checks which she issued were
dishonored by the drawee bank is a circumstantial
evidence of receipt of notice of dishonor. Accused would
not have entered into the alleged arrangements if she had
not received a notice of dishonor from her creditor, and
had no knowledge of the insufficiency of her funds with
the bank and the dishonor of her checks (Campos vs.
People. G.R. No. 187401, September 17, 2014).

157. Under Section 114(d) of the Negotiable


Instruments Law, notice of dishonor is not required to be
given to the drawer in either of the following cases where
the drawer has no right to expect or require that the
drawee or acceptor will honor the check. Since
petitioner's bank account was already closed even before
the issuance of the subject check, he had no right to
expect or require the drawee bank to honor his check. By
virtue of the aforequoted provision of law, petitioner is
not entitled to be given a notice of dishonor (Lopez vs.
People, G.R. No. 166810, June 26, 2008, Justice De
Castro). The crime involved in Lopez vs. People is estafa
through issuance of bouncing check. However, it is
submitted the Lopez principle can be applied to violation
of BP 22.
158. Payment of check before the filing of
information is a defense. The spirit of B.P. Big 22, which
is the protection of the credibility and stability of the
banking system, would not be served by penalizing
people who have evidently corrected their mistakes and
restituted damages even before charges have been filed
against them. In sum, by making payment of the check
before the filing of the information, the purpose of the law
has already been attained. 1. Payment after receiving
subpoena from the office of city prosecutor (Lim vs.
People, G.R. No. 190834, November 26, 2014) 2.
Payment through notarial foreclosure two years before the
filling of cases (Griffith vs. Hon. CA, G.R. No. 129764,
March 12, 2002) 3. Payment six (6) months before the
filing of case (Cruz vs. Cruz, G.R. No. 154128, February
8, 2007)

Payment of check after the filing of information is


not a defense. Since there is no showing of intention to
mitigate or totally alleviate the ill effects of his issuance
of the unfunded check, then there is no equitable and
compelling reason to preclude the prosecution of accused.
In such a case, the letter of the law should be applied to its
full extent (Lim vs. People, supra). In estafa, damage and
deceit are the essential elements of the offense, and the
check is merely the accused's tool in committing fraud. In
such a case, paying the value of the dishonored check will
not free the accused from criminal liability. It will merely
satisfy the civil liability of the crime but not the criminal
liability (Lim vs. People, supra). Note: The essence of
estafa is to punish fraud and not to protect the integrity of
the check.

159. Considering that there was a lawful Order from


the SEC, the contract is deemed suspended. When a
contract is suspended, it temporarily ceases to be
operative; and it again becomes operative when a
condition occurs - or a situation arises - warranting the
termination of the suspension of the contract. When a
contract is subject to a suspensive condition, its birth
takes place or its effectivity commences only if and when
the event that constitutes the condition happens or is
fulfilled. Thus, at the time complainant presented the
check for encashment, it had no right to do so, as there
was yet no obligation due from accused. Thus, accused is
not liable for violation of BP Blg. 22 (Gidwani vs. People,
GR No. 195064, January 15, 2014).
160. The deliberation in the Senate regarding the bill
on anti-graft shows that the mode of committing the crime
under Section 3 (a) is persuading, inducing or influencing
a public officer by another public officer to commit an
offense or to violate rules and regulations by means of
consideration, reward, payment or remuneration (See:
Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006).
Hence, Grace Poe is not committing this crime since she
is not inducing Secretary De Lima to commit an offense
or violate rules in connection with the criminal complaint
against INC officers by means of consideration, reward,
payment or remuneration.

161. Section 3 (b) of RA No. 3019, directly or


indirectly requesting or receiving any gift, present, or
benefit in connection with any contract or transaction
involving monetary consideration where the public officer
has the authority to intervene under the law. Preliminary
investigation is not a contract or transaction. Hence,
requesting or receiving money in connection with a
preliminary investigation is not a violation of this
provision (Soriano, Jr. vs. Sandiganbayan, G.R. No.
65952, July 31, 1984; People vs. Sandiganbayan. and
Justice Secretary Perez, G.R. No. 188165, December 11,
2013).

162. A paymaster obtained cash advances despite the


fact that she has previous unliquidated cash advances. The
City Treasurer certified that the cash advances are
necessary and lawful. The City Accountant certified that
the expenditures are supported by documents and
previous cash advances are liquidated and accounted for.
The City Administrator approved the voucher and
countersigned the check. The paymaster is liable for
violation of Section 3 (e) of RA No. 3019. The City
Treasurer, City Accountant and City administrator are
liable because of conspiracy of silence or inaction. Public
officers omissions to question irregularities indicate a
common understanding and concurrence of sentiments
respecting the commission of the offense (Jaca vs. People,
G.R. No. 166967, January 28, 2013).

163. The property bought by the City is overpriced.


Accused was charged with violation of Section 3 (e) of
RA No. 3019 for causing damage to the government
through manifest partiality and evident bad faiths. The
only evidence presented by the prosecution is his on the
voucher. He was acquitted. Accused cannot be convicted
on grounds than the mere signature or approval appearing
on a voucher. Heads of offices can rely to a reasonable
extent on their subordinates on preparation of bids,
purchase of supplies, or negotiations (Arias v.
Sandiganbayan, G.R. Nos. 81563 & 82512, 19 December
1989).

However, the principle in the Arias case where is not


applicable where circumstances other than signature of
the voucher shows evident bad faith, manifest partiality or
gross inexcusable negligence such as: (1) Where the
accused has foreknowledge of existing anomaly - e.g.
mayor signed the inspection report and the disbursement
voucher despite the fact that he had foreknowledge that
the materials delivered by Guadines have already been
confiscated by the DENR (Escara vs. People, G.R. No.
164921, July 8, 2005); (2) Where there is deviation from
ordinary procedure e.g. mayor issued and encashed
municipal checks despite the facts that the disbursement
vouchers were in the name of Kelly Lumber but the
checks were payable to the accused and not to Kelly
Lumber (Cruz vs. The Hon. Sandiganbayan, G.R. No.
134493, August 16, 2005); and (3) Where accused
approved the voucher without indication of the retention
money required by law, and he even inspected the
construction site of PAL Boat, in which he should have
noticed the financial weakness of the contractor and the
defective works (Rivera vs. People, G.R. No. 156577,
December 03, 2014).
Arias principle is not applicable if the public officer
acting in his capacity as head of office has not relied on
his subordinates but on officers of equal rank such as
heads of the Office of the City Treasurer and , the Office
of the City Accountant (Jaca vs. People, G.R. No.
166967, January 28, 2013)

164. There are two ways by which a public official


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

165. Section 3 (3) of RA No. 3019 is not applicable


exclusively to public officers charged with the duty of
granting licenses or permits or other concessions. It may
apply to other public officers (Mejorada vs.
Sandiganbayan, G.R. No. L-51065-72, June 30, 1987;
Consigna vs. People, G.R. No. 175750, April 2, 2014).

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


Section 3(e) of RA No. 3019 is the same as the civil law
concept of "actual damage." It is required that undue
injury must be specified and quantified (M.A. Jimenez
Inc. vs. The Hon. Ombudsman, G.R. No. 155307, June
06, 2011). The inconvenience suffered by reason of the
long period of time that her salaries were withheld is

not constitutive of undue injury (Domingo vs.


Sandiganbayan, G.R. No. 149406, October 25, 2005).

167. In the first mode of committing the crime, the


undue injury is caused to any party including the
government. In the second mode, the unwarranted
benefits, advantage or preference is given to private party.
Giving unwarranted benefits, advantage or preference to
the government or public official is not constitutive of the
crime under Section 3 (e). The term "private party" may
be used to refer to persons other than those holding public
office (Bautista vs. Sandiganbayan, G.R. No. 136082,
May 12, 2000) or public officer acting in a private
capacity to protect his personal interest (Ambil vs.
Sandiganbayan, G.R. No. 175457, July 06, 2011). Giving
unwarranted benefit to the mayor transferring him from
the provincial jail and detained him at a residence is a
violation of Section 3 (e). Such privilege was accorded to
the mayor not in his official capacity, but as a detainee
charged with murder. Thus, for purposes of applying the
provisions of Section 3(e), the mayor was a private party
(Ambil vs. Sandiganbayan, supra).

168. There was really no sufficient justification


tendered by the State for the long delay of more than five
years in bringing the charges against the respondents
before the proper court. On the charge of robbery, the
preliminary investigation would not require more than
five years to ascertain the relevant factual and legal
matters. Because of the inordinate delay in resolving the
criminal complaint by the Ombudsman against
respondent, the cases against respondent were dismissed
(People vs. Hon. Sandiganbayan, and Perez, G.R. No.
188165, December 11, 2013).

169. There are three requisites of preventive


suspension of a public officer under Section 13 of RA No.
3019, to wit: (1) a public officer is charged with violation
of RA No. 3019; crimes committed by public officer
under RPC such malversation or direct bribery or (3)
offense involving fraud upon government or public funds
or property; (2) the public officer is being criminally
prosecuted under valid information; and (3) pre-
suspension hearing is conducted.

170. Usurpation of public authority (Miranda vs.


Hon. Sandiganbayan, G.R. NO. 154098, July 27, 2005) or
election offense (Juan vs. People, G.R. No. 132378,
January 18, 2000) is an offense an offense involving fraud
against the government. Falsification of document
(vouchers) is an offense involving fraud upon public
funds (Bustillo vs. Sandiganbayan, G.R. No. 146217,
April 7, 2006).
171. Information for violation of RA No. 3019 is not
valid where the complaint filed for preliminary
investigation charged the accused with the lesser crime of
falsification of document (Luciano vs. Mariano, G.R. N
L-32950, July 30, 1971) or where no preliminary
investigation was conducted (People vs. Albano, GR No.
L-45376, July 26, 1988).
172. The imposition of the preventive suspension is
not automatic or self-operative. There must first be a valid
information, determined at a pre-suspension hearing
(Layus M.D. vs. Sandiganbayan, G.R. No. 134272,
December 8, 1999). Upon the filing of such information,
the trial court should issue an order with proper notice
requiring the accused officer to show cause at a specific
date of hearing why he should not be ordered suspended
from office. Where either the prosecution seasonably files
a motion for an order of suspension, or the accused in turn
files a motion to quash the information or challenges the
validity thereof, such show-cause order of the trial court
would no longer be necessary (Miguel vs. Hon.
Sandiganbayan, G.R. No. 172035, July 04, 2012).
173. The court during the pre-suspension hearing is
required to ascertain whether or not (1) the accused had
been afforded due preliminary investigation prior to the
filing of the information against him, (2) the acts for
which he was charged constitute a violation of the
provisions of RA No. 3019 or crimes committed by public
officers under Title 7, Book II of RPC, or offense
involving fraud upon government or public funds or
property, (3) the information against him can be quashed,
under any of the grounds provided in Section 2, Rule 117
of the Rules of Court (Aguinaldo vs. Sandiganbayan, G.R.
No. 124471, November 28, 1996).
174. The preventive suspension is mandatory once
the validity of the information is determined in a pre-
suspension hearing, and there are no "ifs" and "buts"
about it (Libanan vs. Sandiganbayan, G.R. No. 112386,
June 14, 1994; Bunye vs. Escareal, G.R. No. 110216,
September 10, 1993).
175. Even though the law is silent on the duration of
the preventive suspension, the suspension should not be
indefinite. Section 13 of RA No. 3019 does not provide
the period of preventive suspension. Hence, the duration
of suspension under the Administrative Code, or the
Local Government Code may be adopted in fixing the
duration of suspension. Thus, the period of preventive
suspension for national officers, elective or appointive,
shall not exceed 90 days pursuant to Administrative Code
(Gonzaga vs. Sandiganbayan, G.R. No. 96131, September
6, 1991; Deloso vs. Sandiganbayan, G.R. No. 86899, May
15, 1989). On the other hand, the period of preventive
suspension for local elective officers shall not exceed 60
days in accordance with the Local Government Code
(Nicart, Jr. vs. Hon. Sandiganbayan, Third Division, G.R.
No. 147272, July 14, 2006).

176. The word office, from which the public officer


charged shall be preventively suspended under Section 13
of RA No. 3019, could apply to any office, which he
might currently be holding and not necessarily the
particular office under which he was charged. The
preventive suspension of the following public officers was
sustained: (1) a mayor, who was charged with acts
committed as a government auditor of the Commission on
Audit (Bayot vs. Sandiganbayan, G.R. No. L-61776 to L-
61861, March 23, 1984); (2) governor, who was charged
with acts committed as municipal mayor (Deloso vs.
Sandiganbayan, G.R. No. 86899, May 15, 1989); and (3)
a Vice-Governor, whose suspension is predicated on his
acts supposedly committed while still a member of the
Sangguniang Bayan (Libanan vs. Sandiganbayan, G.R.
No. 112386, June 14, 1994).

177. Preventive suspension cannot amount to a


deprivation of property without due process of law. Public
office is "a public agency or trust," and it is not the
properly envisioned by the Constitutional provision
(Libanan vs. Sandiganbayan, G.R. No. 112386, June 14,
1994).

178. The preventive suspension under Section 13 of


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

179. 1. The elements of plunder are:

(1) That the offender is a public officer who acts by


himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons; (Note: Senator Pogi can be
held liable for plunder even if the principal offender, who
masterminded the plunder of pork barrel, is a private
individual, the Pork-barrel Queen. What is important is
that Senator Pogi in connivance with Pork-barrel Queen
acquired ill-gotten wealth). On the other hand, Pork-barrel
Queen can be held liable for plunder on the basis of
conspiracy.

(2) That he amassed, accumulated or acquired ill-


gotten wealth through a combination or series of the
following overt or criminal acts:

(a) through misappropriation, conversion,


misuse, or malversation of public funds or raids on
the public treasury; (Example: Misuse of funds in the
amount P10 million by awarding contract to a close
relative, who is not the lowest bidder; Misuse of
funds or fraud disposition of government asset to
P100 million by diverting the construction of road
leading to his farm instead of the poblacion

(b) by receiving, directly or indirectly, any


commission, gift, share, percentage, kickback or any
other form of pecuniary benefits from any person
and/or entity in connection with any government
contract or project or by reason of the office or
position of the public officer; (Example: Collecting
or receiving commission from the sales of Belle
Shares in the amount of P189,700,000.00 which was
deposited in the Jose Velarde account and receiving
bi-monthly collections from jueteng, a form of
illegal gamblingin the aggregate amount of
P545,291,000.00 of which was deposited in the Erap
Muslim Youth Foundation (People vs. Joseph
Estrada, Criminal Case No. 26558, September 12,
2007).

(c) by the illegal or fraudulent conveyance or


disposition of assets belonging to government
(Example: Ordering the GSIS and the SSS by
President Estrada to purchase shares of stock of Belle
Corporation (People vs. Joseph Estrada, Criminal
Case No. 26558, September 12, 2007);

(d) by obtaining, receiving or accepting directly


or indirectly any shares of stock, equity or any other

form of interest or participation including the promise


of future employment in any business enterprise or
undertaking;

(e) by establishing agricultural, industrial or


commercial monopolies or other combinations and/or
implementation of decrees and orders intended to
benefit particular persons or special interests; or

(f) by taking advantage of official position,


authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino
people and the Republic of the Philippines;

Note: The word combination means at least


two different predicate crimes; while the term
series means at least two predicate crimes of the
same kind (Ejercito vs. Sandiganbayan, G.R. Nos.
157294-95, November 30, 2006). Thus, a single
predicate crime amounting to 50 million pesos is not
plunder. The intention of the lawmakers is that if
there is only one predicate crime, the offender has to
be prosecuted under the particular crime, which is
already covered by existing laws. What is punishable
under the law is "acts of plunder", which means that
there should be at least, two or more, predicate
crimes (See deliberation of the Bicameral Committee
on Justice, May 7, 1991).

(3) That the aggregate amount or total value of the


ill-gotten wealth amassed, accumulated or acquired is at
least P50,000,000.00 (Joseph Ejercito Estrada vs.
Sandiganbayan, G.R. No. 148560, November 19, 2001).

If a Senator, his assistant and private individuals


conspires in acquiring ille-gotten wealth by
misappropriating the pork barrel amounting to P172
million of the former, the total amount of ill-gotten wealth

acquired by the conspirators including the private


individuals shall be considered for purpose of determining
if plunder has been committed (Enrile vs. People, G.R.
No. 213455, August 11, 2015).
The damages suffered by the government in diverting
the road from the poblacion to the farm of the accused
shall not be considered in determining if plunder is
committed. What is important is the amount of ill-gotten
wealth acquired by the public officer and not the amount
of damage suffered by the government.

180. Section 4 of RA No. 7080 provides a rule of


evidence. Under this provision, for purposes of
establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused
in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth. Establishing
beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy is sufficient to prove plunder. However,
pattern of overt acts is not an element of plunder. Section
4 merely provides a rule on evidence (Joseph Ejercito
Estrada vs. Sandiganbayan, G.R. No. 148560, November
19, 2001).

To illustrate, supposing that the accused is charged in


an Information for plunder with having committed fifty
(50) raids on the public treasury. The prosecution need
not prove all these fifty (50) raids, it being sufficient
to prove by pattern at least two (2) of the raids beyond
reasonable doubt provided only that they amounted to at
least P50,000,000.00 (Joseph Ejercito Estrada vs.
Sandiganbayan, supra).

In People vs. Joseph Estrada, Criminal Case No.


26558, September 12, 2007 - One of the predicate crimes
alleged in the information is misappropriation of the
excise tax share of Ilocos Sur. This was not proven

beyond reasonable doubt. However, the following


predicate crimes were alleged and proven by evidence (1)
series of acts of receiving collections from "jueteng" in
the aggregate amount of P545,291,000.00; and (2) series
consisting of two acts of ordering the GSIS and the SSS
to purchase shares of stock of Belle Corporation and
collecting or receiving commission from the sales of Belle
Shares in the amount of P189,700,000.00. This pattern of
criminal acts indicates an overall unlawful scheme or
conspiracy to amass ill-gotten wealth in the amount of
more than P50 million. Estrada was convicted of plunder.

181. Terrorism is committing a predicate crime which


creates a condition of widespread and extraordinary fear
and panic among populace in order to coerce the
government to give in to an unlawful (Section of RA No.
9372). The predicate crimes of terrorism are: Piracy,
highway robbery, hijacking, rebellion, coup etat, murder,
kidnapping and serious illegal detention, crimes involving
destruction, arson, unlicensed firearm and explosives,
violation of Toxic Substances and Hazardous and Nuclear
Waste Control Act and violation of Atomic Energy
Regulatory and Liability Act. Demand by Al Quada
against the US not to interfere with the affairs of the
Muslim is an example of the element "in order to coerce
the government to give in to an unlawful demand."

182. If murder, kidnapping or arson committed in


furtherance of rebellion, they will be divested of their
character as common crimes and will assume the political
complexion of rebellion. Hence, rebellion absorbs these
crimes (People vs. Geronimo, G.R. No. L-8936, October
23, 1956; People vs. Hernandez, G.R. Nos. L-6025-26,
July 18, 1956; Enrile vs. Salazar, G.R. No. 92163 June 5,
1990). Doctrine of absorption is applicable to coup detat
for being a political crime because the purpose of coup
plotter is to seize or diminish state power (Gonzales vs.
Abaya, G.R. No. 164007, August 8, 2006, concurring
opinion by Justice Callejo).

Membership in CPP-NPA alone will not establish


political motivation behind the killing for purpose of
convicting the killers for rebellion (People vs. Lovedioro,
G.R. No. 112235, November 29, 1995; People vs.
Solongan, G.R. NO. 137182, April 24, 2003). But
membership in a liquidation squad and killing a
government officer is sufficient to establish political
motivation (People v. Dasig, G.R. No. 100231. April 28,
1993).

Doctrine of absorption is not applicable to sedition.


There is neither law nor jurisprudence which can allow
the absorption of murder and kidnapping by sedition. The
absorption principle in the cases of Hernandez and
Geronimo cannot properly be invoked as authority since
those two cases involved rebellion and not sedition
(People vs. Hadji, G.R. No. L-12686, October 24, 1963).
Moreover, public and tumultuous uprising for political or
social purpose, which is the essence of sedition, does not
require killings, burning of properties and extortions.

RA No. 6968 eliminated the phrases "engaging in


war against the forces of the government", "committing
serious violence" and destroying property in Article
135 of RPC. These modes of committing rebellion
deleted by RA No. 6968 were used by the SC in
justifying the doctrine of absorption. The amendment of
Article 135 does not affect the accepted concept of
rebellion and these overt acts of violence are deemed
subsumed in the provision on public and armed
uprising, which is an element of rebellion in Article 134
(Regalado). Hence, the doctrine of absorption is still
good. The incidents in Lovedioro case, and Solongan
case happened after RA No. 6968, and yet, the SC is still
applying the doctrine of absorption.

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