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2017 BAR REVIEWER BY JUDGE MARLO B.

CAMPANILLA
UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

1. Generality - If the accused attacks the jurisdiction of the court because of


the unique characteristic of his person (e.g. he is a foreigner, military, ambassador,
President), the applicable principle is generality. If the accused attacks the jurisdiction
of the court due to the unique characteristic of the place where the crime was
committed (e.g. foreign vessel, embassy or high sea), the applicable principle is
territoriality.

a. Consular and diplomatic immunity - 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 (Liang vs. People, GR No.
125865, January 28, 2000), 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).

b. Presidential immunity - The presidential immunity is subject the following


conditions: (1) the immunity has been asserted during the period of his incumbency
and tenure; and (2) the act constituting the crime is committed in the performance of
his duties.This immunity will assure the exercise of presidential functions free from
any hindrance, considering that the Chief Executive is a job demands undivided
attention (Estrada vs. Desierto, G.R. No. 146710-15, March 2, 2001).

It is submitted that a Vice-President even during his tenure could not invoke
immunity from criminal prosecution for plunder on the following reasons: (1) plunder
are not his official conducts as Vice-President; (2) the job of the Vice-President unlike
the head of the executive department does not demands undivided attention; (3) and
the implementation principal penalty of imprisonment for plunder is not inconsistent
with the constitutional provision on non-removal of impeachable officer except
through impeachment since he can function as Vice-President while serving sentence
in prison.However, accessory penalty of disqualification, which involved removal from
office, is not implementable since the enforcement thereof will offend the constitutional
provision on non-removal of impeachable officer.

c. Parliamentary immunity - An incumbent Senator is not immune from suit


for being a protector or coddler of trading of dangerous drugs under RA No. 9165.
Legislators immunity is confined to parliamentary privilege from arrest while the
Congress is in session in all offenses punishable by not more than 6 years
imprisonment and parliamentary immunity from prosecution for libel in connection
with any Congressional speech or debate.

2. Territoriality The ground occupied by US embassy is in fact the territory


of the USA to which the premises belong through possession or ownership. A person
who committed a crime within the premises of an embassy will be prosecuted under
the law of Philippines because of the principle of territoriality (Reagan vs. Commission
on Internal Revenue, 30 SCRA 968).

b. Convention of the law of the sea - Under the Convention on the Law of the
Sea, the flag state of foreign merchant vessel passing through the territorial sea of
another state has jurisdiction over crimes committed therein. However, a coastal state
such as the Philippines can exercise jurisdiction over any crime committed on board
such ship in the following cases: (1) if its consequences extend to the coastal State; (2)
if it disturbs the peace of the country or the good order of the territorial sea; (3) if the
ship master or a diplomatic or consular officer of the flag State requested assistance
from the local authorities; or (4) if it is for the suppression of traffic in narcotic drugs
or psychotropic substances.

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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA
UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

Murder or serious physical injuries committed in a foreign vessel anchored 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.

b. Regime of islands - Under the principle of territoriality, 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.

c. Bigamy - 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.

3. Extraterritoriality Under the flag state rule, the Philippines has jurisdiction
over hijacking of PAL airplane in an American territory since it its registered in the
Philippines but not 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 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 not 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. Lol-Lo and Saraw, G.R. No. L-17958,
February 27, 1922).

4. Prospectivity -If the court in trying an accused, who committed a crime prior
to the passage of the law, should give retroactive effect to the law provided that: (1) it
is favorable to the accused and (2) the accused is not a habitual delinquent (Article 22
of RPC). If the law repeals a previous law or provision defining a crime, the applicable
principle is not Article 22 of RPC but nullum crimen poena sine lege. Since the
intention of the new law is to decriminalize an act punishable by the repealed law, the
accused should be acquitted or released if the already convicted, even though he is a
habitual delinquent.

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 if the convict has
undergone preventive imprisonment, is a lighter penalty than life imprisonment, which
has no duration. Amendatory law, which prescribes reclusion perpetua instead of life
imprisonment, shall be given a retroactive effect for being favorable to the accused
(People vs. Morilla, GR No. 189833, February 5, 2014).

If a child in conflict, who is a habitual delinquent, committed the crime prior to RA No.
9344, he is entitled to retroactive application thereof. Section 68 of RA No. 9344 expressly
provides retroactive application of the privileges to a child in conflict with the law (Atizado vs.
People, G.R. No. 173822, October 13, 2010, Bersamin) without condition. On the other
hand, Article 22 of the Revised Penal Code provides retroactive application of the favorable law
subject to the condition of non-habitual delinquency. Since Section 68 of RA No. 9344 is a
specific provision while Article 22 of the Revised Penal Code is a general provision, the latter
yields to the former. Generalia specialibus non derogant. Hence, the retroactive effect of RA No.
9344 is unconditional.

5. Decriminalization - RA No. 10158 has decriminalized vagrancy by omitting


portions of Article 202 of RPC involving this crime. Vagrants are victims of poverty and
that the law on vagrancy serves to oppress the very people that the government sought
to protect. RA No. 10655 has decriminalized premature marriage by repealing Article

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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA
UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

351 of RPC. This provision is discriminatory because it is not applicable to men.


Moreover, Article 351, which was sought to prevent a possible confusion as to who is
the father of the child born within the period of 301 days after the dissolution of the
marriage, is not anymore necessary since paternity and filiation can now be easily
determined through modern technology.

6. Repeal RA No. 10655 has repealed Article 351 of RPC on premature


marriage without reenactment. This is a total repeal in which the intention of the new
law is to decriminalize an act punishable of old law. Atotal repeal deprives the courts
of jurisdiction to punish persons charged with a violation of the old penal law prior to
its repeal (Sindiong and Pastor, 77 Phil. 1000). RA 8353 expressly repealed Article 336
of RPC on rape but re-enacted it redefining this crimeunder Article 266-A. This is a
partial repealin which the intention of the new law is not to decriminalize an act
punishable of old law but to introduce changes. The effect of the new law is
amendatory. This partial repeal of Article 336 does not deprive the courts of
jurisdiction to try and punish offender for rape committed prior to RA No. 8353 (U.S.
vs. Cana, 12 Phil. 241). RA No. 8353 shall be given prospective effect since it is not
favorable to the accused.

7. Mistake of fact - 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).

The accused shot with a firearm and killed by mistake a thief in the toilet, who
turned out to be his girlfriend. Invasion of property is considered as unlawful
aggression under Article 12 of the RPC because of the self-help doctrine under the
Civil Code (People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983). Even though
there is no actual invasion of property, unlawful aggression as an element of defense
of property will be considered as present because of the mistake of fact principle.
However, the means employed by him firing shots through the toilet door is not
reasonable; and hence, he is only entitled to privilege migrating circumstance of
incomplete defense of property (US vs. Apego, G.R. No. L-7929, November 18, 1912).

8. Proximate cause Suicide is not a felony within the meaning of Article 4 of


RPC; hence, a pregnant woman who attempted to commit suicide is not liable for
abortion due to the consequent death of the infant. Vexatious act (e.g. pouring
gasoline) made as part of fun making is not felony within the contemplation of Article
4. The accused is not liable for homicide. However, such act is considered as culpable,
and thus, he is liable for reckless imprudence resulting in homicide (People vs. Pugay,
No 74324, November 17, 1988). Vexatious act made out of hate (such as putting a
robber snake inside the bag of the victim) is unjust vexation, which is a felony within
the contemplation of Article 4. The accused is liable for homicide if the victim died due
to heart attack caused by seeing a snake in his bag.

a. Tetanus - There had been an interval of 22 days between the date of the
stabbing and the date when victim was rushed to hospital, exhibiting symptoms of
tetanus infection. Since infection is severe, he died the next day. The incubation period
of severe tetanus infection is less than 14 days. Hence, he could not have been infected
at the time of the stabbing since that incident occurred 22 days before the symptoms
manifested. The infection was an efficient intervening cause breaking the connection
between the physical injuries and death. Hence, the crime committed is physical
injuries (Villacorta vs. People, G.R. No. 186412, September 7, 2011). If the victim was
infected by tetanus at the time of stabbing, and the infection is the proximate cause of
death, the crime committed is homicide (People vs. Cornel, G.R. No. L-204, May 16,
1947).
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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA
UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

b. Offense punishable under special law - Practicing medicine without license


is an offense punishable under special law but not afelony within the meaning of
Article 4 of RPC. Hence, a quack doctor, who killed his patient while treating him, is
only liable for reckless imprudence resulting in homicide (People vs. Carmen, G.R. No.
137268, March 26, 2001).

If the victim accidentally killed is the owner, driver or occupant of the carnapped
motor vehicle, the crime committed is qualified carnapping or carnapping in the
aggravated form under Section 3 of RA No. 10883. If the victim accidentally killed is
not the owner, driver or occupant of the carnapped motor vehicle, the crimes committed
are simple carnapping and homicide. The concept of carnapping is the same as that of
theft and robbery (People vs. Sia, G.R. No. 137457, Nov. 21, 2001). Although not
punishable under RPC, it can be treated as a felony within the meaning of Article 4 of
RPC (See: Dimat vs. People, G.R. No. 181184, January 25, 2012). Hence, the accused
is liable for homicide, which is the direct and natural consequence of simple
carnapping.

c. Evident premeditation - In case of aberatiu ictus and error in personae, the


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

d. Treachery - If accused employed means to render the victim defenseless,


treachery shall be appreciated even if the killing is due to error in personae (People vs.
Del Castillo, Sr., G.R. No. L-32995, April 30, 1984) or aberratio ictus (People vs.
Mabug-at, G.R. No. 25459, August 10, 1926, En Banc) or with the circumstance of
praeter intentionem (People vs. Cagoco, G.R. No. 38511, October 6, 1933)

e. Sense of danger - 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 resulting injuries or death (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).

9. Impossible crime - The crime committed is impossible crime if the offense


sought to be committed is factually or legally impossible. Killing a dead person is
impossible crime because of legal impossibility. Putting the hand inside an empty
pocket with intention to steal a wallet is impossible crime because of factual
impossibility (Intod vs. Court of Appeals, G.R. No. 103119, October 21, 1992).

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. Since the crime is
already consummated, there is no basis to say that it is impossible to commit this
crime (People vs. Tan, G.R. No. 95322, March 1, 1993). Moreover, kidnapping is a
crime against liberty and not against person or property.

Firing a gun at the unoccupied bedroom with intention to kill a victim


constitutes impossible crime 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

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UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

supposed to be sleeping, constitutes arson if the bedroom was burned as a


consequence.

A discharged shotgun at B from a distance of 300 yards; but because of the


limited range of the firepower of the shotgun, it would be impossible for A to harm
B. A is liable of discharge of firearm and not impossible crime. Where the offender
unlawful entered the house and took a watch that turned out to be his own, he is
liable for trespass to dwelling and not impossible crime (Criminal Law Conspectus by
Justice Florenz Regalado). If the accused administered abortive drugs upon his
girlfriend whom he believed to be pregnant, which turned out not to be true, but the
woman became ill for more than 30 days, the accused will be liable for serious
physical injuries and not impossible crime of abortion (Criminal Law Reviewer by
Gregorio).

a. Gender crime - Gender is an element of all crimes against chastity except


acts of lasciviousness. In seduction and consented acts of lasciviousness, and
abduction, the offender must be a man, while the victim must be a woman. The
offender in adultery must be a married woman, while in concubinage a married man.
If the element of gender is not present in a crime against chastity, it is impossible to
commit this crime (e.g. it is impossible to commit abduction against a person, who is
gay). Despite the impossibility of its commission, the accused is not liable for
impossible crime. To be held liable for impossible crime, the act which is impossible to
commit must constitutes crime against person or property.However, abduction is a
crime against chastity. But the accused may be held liable for illegal detention.

A person, who has sexual intercourse with a woman not knowing that she was
already dead,is liable for impossible crime since rape is now a crime against person.
However, if he is aware that the woman is already dead, he is not liable for impossible
crime since criminal intent or propensity to rape, which is the basis of penalizing
impossible crime, is wanting.

If the gender element in rape through sexual intercourse is not present, the
offender is not liable for impossible crime. Although it is impossible to commit rape
through sexual intercourse where the victim is a gay, such acts constitute acts of
lasciviousness.

b. Unfunded check - If the check is unfunded, stealing the checkand


presenting it for payment with the bank constitute impossible crime. It is factually
impossible to accomplish the crime of qualified theft since the check is
unfunded(Jacinto vs. People, G.R. No. 162540, July 13, 2009). If the check is funded,
stealing the check and presenting it for payment with the bank is not impossible
crime. Even if the accused failed to encash the same due to external cause such as
apprehension by police or stop payment, he will be held liable for consummated theft.
In theft, taking property with intent to gain consummates the crime. Actual gain is not
an element thereof. Thus, failure to gain will not prevent the consummation of the
crime (See: People vs. Seranilla, G.R. No. L-54090, May 9, 1988);

10. Indeterminate offense - Climbing on top of the naked victim, touching her
genitalia and mashing her breastsaresusceptible of double interpretation (People v.
Lamahang). His intention is either to rape or seduce her. Hence, the accused cannot
be held liable for attempted rape because intent to have sex is not clear. He is only
liable for acts of lasciviousness (Cruz vs. People, G.R. No. 166441, October 08, 2014,
Bersamin).

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. Moreover, spontaneous desistance from further shooting to victim to
inflict mortal wounds is a defense in attempted homicide (Pentecostes, Jr. vs. People,
GR No. 167766, April 7, 2010). But inflicting mortal wound upon the victim
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2017 BAR REVIEWER BY JUDGE MARLO B. CAMPANILLA
UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

constitutes frustrated homicide (De Guzman vs. People, G.R. No. 178512, November
26, 2014, Bersamin) 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).

11. Self-defense - Unlawful aggression is of two kinds: (a) actual or material


unlawful aggression; and (b) imminent unlawful aggression. Actual or material
unlawful aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to cause the injury.
Imminent unlawful aggression means an attack that is impending or at the point of
happening; it must not consist in a mere threatening attitude, nor must it be merely
imaginary, but must be offensive and positively strong (like aiming a revolver at
another with intent to shoot or opening a knife and making a motion as if to attack).
Imminent unlawful aggression must not be a mere threatening attitude of the victim,
such as pressing his right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to throw a pot (Rustia vs.
People, G.R. No. 208351, October 05, 2016, Bersamin).

12. Battered woman syndrome -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 battererhad not yet
committed unlawful aggression. That is why Battered Woman Syndrome is a defense
notwithstanding the absence of any of the elements for justifying circumstances of
self-defense such as unlawful aggression (Section 26 of RA No. 9262). This 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).

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). The basis of the
irresistible impulse to make a defense against the batterer is the womans experiencing
two battering episodes.

The elements of Battered Woman Syndrome as a defense are as follows: (1) the
woman is subjected to cumulative abuse by the victim, with whom she has marital,
sexual or dating relationship; and (2) the cumulative abuse or battery is the act of
inflicting physical harm resulting to physical and psychological or emotional distress.
Since the abuse must be cumulative, there must be at least two episodes involving the
infliction of physical harm. If the first episode is infliction of physical harm and the
second episode is verbal abuse, the accused cannot avail Battered Woman Syndrome
as a defense.

13. Imbecility and minority Mental retardation includes (a) idiot, whose
mental age is two-year old; (b) imbecile, whose mental age is seven-year old; (c) moron
or feebleminded, whose mental age is twelve-year old and (d) borderline intelligence
(People vs. Butiong, G.R. No. 168932, October 19, 2011 Bersamin; People vs.
Bayrante, G.R. No. 188978, June 13, 2012).

In rape, there is a difference between actual age and mental age. In statutory
rape, the actual age of the victim must be under 12 years old. In rape against a person
deprived of reason, the mental age of the victim is 2 years old (idiot), 7 years old
(imbecile), 12 years old (feebleminded) or above 12 years old but suffering from
borderline intelligence (People vs. Butiong, supra; People vs. Bayrante, supra).

In exempting circumstance, there is a difference between actual age and


mental age. In exempting circumstance of imbecility, what is important is the mental
age of the accused. An idiot, whose mental age is 2 years, and imbecile, whose mental
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UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

age is 7 years old (People vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin)
are exempt from criminal liability. A feebleminded, whose mental age is 12 years old,
is not exempt from criminal liability since he is not an imbecile (People vs. Nunez, G.R.
No. 112429-30, July 23, 1997) but he is entitled to mitigating circumstance of mental
illness (People vs. Formigones, G.R. No. L-3246, November 29, 1950). In exempting
circumstance of minority under Section 6 of RA No. 9344, what is important is the
chronological or actual age of the accused. If the actual age of the accused is 18 years
old and mental age is 9 years old, the exempting circumstance of minority and
imbecility shall not be appreciated (People vs. Roxas, G.R. No. 200793, June 04,
2014).

Under Section 5 (b) of RA No 7610, when the child subjected to sexual abuse is
under 12 years of age, the perpetrators shall be prosecuted for rape and acts of
lasciviousness under RPC. For purpose of Section 5 (b), there is no difference between
actual age and mental age. Hence, the victim whose actual age is 12 years old but her
mental age is 9 years old, is considered as a victim under 12 year of age within the
contemplation of Section 5 (b) (People vs. Pusing, G.R. No. 208009, July 11, 2016),

14. Insanity - The presumption, under Article 800 of the Civil Code, is that
every human is sane. Anyone who pleads the exempting circumstance of insanity
bears the burden of proving it with clear and convincing evidence (People vs. Tibon,
G.R. No. 188320, June 29, 2010). There are two tests (People vs. Formigones, G.R. No.
L-3246, November 29, 1950) to determine whether the mental condition of the accused
is exempting or mitigating:

a. Test of cognition Under the test of cognition, the mental condition of the
accused is an exempting circumstance of insanity if there was a complete deprivation
of intelligence in committing the criminal act (People vs. Bulagao, G.R. No. 184757,
October 05, 2011); or mitigating circumstance of mental illness if there was only a
partial deprivation of intelligence (People vs. Puno, G.R. No. L- 33211, June 29, 1981).
After satisfying his lust, accused threatened the victim. This implies that accused
knew what he was doing, that it was wrong, and wanted to keep it a secret. It also
indicated that the crime was committed during one of his lucid intervals. Accused is
not exempt from liability for failure to pass the cognition test (People vs. Alipio, G.R.
No. 185285, October 5. 2009).

b. Test of volition Under the test of volition, the mental condition of the
accused is a mitigating circumstance of mental illness if there is complete or partial
deprivation of freedom. In sum, if a sex maniac or homicidal maniac 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 is enough to mitigate the
liability of the offender suffering from illness (See: People vs. Rafanan, Jr. November
21, 1991, G.R. No. 54135, November 21, 1991). Thus, kleptomania is a mitigating
circumstance of mental illness.

Irresistible homicidal impulse in People vs. Bonoan G.R. No. 45130, February
17, 1937, which is an exempting circumstance is not anymore controlling. Irresistible
homicidal impulse, which is based on the volition test, is only a mitigating
circumstance. To exempt a person from criminal liability due to insanity, the
controlling rule is cognition testand not the volition test(People vs. Opuran, G.R. Nos.
147674-75, March 17, 2004). In several Supreme Court cases, the pleas of insanity of
accused who are suffering from schizophrenia or psychosis were rejected because of
failure to pass the cognition test. (People vs. Medina, G.R. No. 113691, February 6,
1998; People vs. Pascual, G.R. No. 95029, March 24, 1993).

15. Child in conflict with the law -The rights and privileges of a child in
conflict with the law are as follows:

1. If the accused is 15 years of age or below, minority is an exempting


circumstance (Section 6 of RA No. 9344). Lack of discernment is conclusively
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presumed. If the child is above 15 years of age, minority is an exempting circumstance


if he acted without discernment, or privilege mitigating circumstance if he acted with
discernment. This privilege mitigating 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) and even if
the penalty is reclusion perpetua to death (People vs. Ancajas, G.R. No. 199270,
October 21, 2015).

2. Ifthe accused is 15 years of age or below but above 12 years, shallbe


considered as a neglected child. Neglected child shall 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 repetitionof 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).

3. If the child is found guilty, the court shall place him under suspended
sentence, without need of application instead of pronouncing judgment of conviction
(Section 38 of RA 9344). The law makes no distinction as to the nature of offense by
the child. The Senate debate discloses that the suspension is applicable to heinous
crime (People vs. Jacinto, G.R. No. 182239, March 16, 2011; People vs. Ancajas, G.R.
No. 199270, October 21, 2015).

An accused, who is under 18 years of age at the time of the commission of the
crime, is a child in conflict with the law. He will not be deprived of privileges under the
law even though he reaches age of majority at time of rendition of judgment. Exception:
While Section 38 of RA 9344 provides suspension of sentence can still be applied even
if the child is already 18 years of age at the time of conviction. However, Section 40
limits the suspension of sentence until the child reaches the age of 21 (People vs.
Gambao, GR No. 172707, October 01, 2013; People vs. Ancajas, G.R. No. 199270,
October 21, 2015; Hubilla vs. People, G.R. No. 176102, November 26, 2014,
Bersamin).

3. 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 or even during the pendency of an appeal.

Under Section 9 of PD 968, one, who is sentenced to suffer a penalty (or


maximum indeterminate penalty) of more than 6 years, is not qualified to apply for
probation. However, under Section 70 of RA No. 9165, a first time minor offender can
apply for probation for the crime of possession or use of dangerous drug even if the
penalty is higher than 6 years of imprisonment. But Section 70 of RA 9165 is not
applicable sale of dangerous drugs. Section 24 of RA No. 9165 disqualifies drug
traffickers and pushers for applying for probations although the accused is a minor.
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).
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4. 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. Arpon, G.R. No. 183563, December 14, 2011;
People vs. Ancajas, G.R. No. 199270, October 21, 2015; Hubilla vs. People, G.R. No.
176102, November 26, 2014, Bersamin).

5. A convict is entitled to a full or 4/5 credit of his preventive imprisonment


(Article 29 of RPC). However, if the convict is a child in conflict with the law, he shall
be credited in the services of his sentence the full time spent in actual commitment
and detention (Section 41, RA 9344; Atizado vs. People, G.R. No. 173822, October 13,
2010, Bersamin).

16. Status offense Status offenses such as curfew violationrefers 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
where minority of the offender is an element. A child shall not be punished for
committing a status offense (Section 57). Under Section 57-A, local ordinances on
status offenses shall be for the protection of children. For committing status offense,
children recorded as a child at risk shall be brought to their residence or to any
barangay official at the barangay hall to be released to the custody of their parents
instead of being penalized.

17. Exempting circumstance of relationship - The absolutory cause of


relationship under Article 332 of RPCapplies to theft, swindling and malicious
mischief. It does not apply to theft through falsification or estafa through falsification.
It includes step-relationship and in-laws relationship.There are two viewson whether
death of his wife dissolves the relationship by affinity of the husband with his mother-
in-law for purpose of absolutory cause. The first holds that relationship by affinity
terminates after the death of the deceased spouse, while the second maintains that
relationship continues. The principle of pro reo 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). The term spouses in Article 332
embraces common-law spouses. The basis of this ruling is the rule on co-ownership
over properties by common-law spouses (People vs. Constantino, No. 01897-CR,
September 6, 1963, 60 O.G. 3603).

18. Voluntary confession - A plea of guilty made after the prosecution had
begun presenting its evidence cannot be considered voluntary since it was made only
after the accused realized that the evidence already presented by the prosecution is
enough to cause his conviction (People vs. Montinola, G.R. No. 131856-57, July 9, 2001).

19. Allegation of aggravating circumstances - 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). This procedural rule has a retroactive
application because of pre reo (People vs. Dadulla, G. R. No. 172321, February 9,
2011, Bersamin).

20. Nighttime - 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 e.g. the accused take advantage of the fact that the victims and neighbors
were sleeping (People vs. Ventura and Ventura, G.R. No. 148145-46, July 5, 2004).

21. Band - In robbery, band is a special aggravating circumstance under Article


295 of RPC. In robbery with homicide or rape, band is an ordinary aggravating
circumstance under Article 14.

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22. Exploitation of minor The special aggravating circumstance of


exploitation of minor under RA No. 9344is present 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. The concept of exploitation
of children is comprehensive enough to cover the circumstance of with the aid of
minor under 15 years of age under RPC.

23. Conspiracy - It is immaterial whether appellant acted as a principal or as


an accomplice because the conspiracy and his participation therein have been
established. In conspiracy, the act of one is the act of all and the conspirators shall be
held equally liable for the crime (People vs. Siongco, G.R. No. 186472, July 5, 2010).

a. Disassociation - 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). A conspirator, who ran away from the scene of the crime
prior to the commission of robbery with homicide by his co-conspirator, is not liable
because the former dissociated himself from the conspiracy.

Conspirators are all liable for robbery although not all profited and gained from
the robbery. When a conspirator committed homicide by reason of or on the occasion
of the robbery, his co-conspirators are liable for special complex crime of robbery with
homicide, unless they endeavored to prevent the killing (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) or they cannot prevent the killing since
they are not aware thereof (People vs. Corbes, G.R. No. 113470, March 26, 1997). This
rule is applicable to special complex crime of kidnapping with rape (People vs.
Anticamaray, GR No. 178771, June 08, 2011) or robbery with rape (People v. Suyu,
G.R. No. 170191, August 16, 2006; People v. Canturia, G.R. No. 108490 June 22,
1995).

b. Multiple rapes - If there is conspiracy to commit rape, each of conspirators


is responsible not only for the rape committed personally by him but also for the
rape committed by the other as well (People vs. Lascano, G.R. No. 192180, March 21,
2012).

c. Offense under special law - B.P. Blg. 22 does not expressly proscribe the
supplementary application of the provisions RPC including the rule on
conspiracy. Hence, such rule may be applied supplementarily. Thus, a non-issuer of
bum check can be held liable for violation of BP Blg. 22 on the basis of conspiracy.
(Ladonga vs. People, G.R. No. 141066, February 17, 2005). The principle of conspiracy
may be applied to RA No. 9262. Thus, a person (such as mother-in-law), who has no
marital, sexual or dating relationship with the victim, can be held liable for violence
against woman on the basis of conspiracy (Go-Tan vs. Go, G.R. No. 168852, September
30, 2008)

If there is conspiracy, the act of the public officer in violating RA No. 3019 is
imputable to the private individual although there are not similarly situated in relation
to the object of the crime. Moreover, Section 9 provides penalty for public officer or
private person for crime under Section 3. Hence, a private individual can be
prosecuted for violation of RA No. 3019 (Go vs. The Fifth Division, Sandiganbayan,
G.R. No. 172602, April 13, 2007). Even if the public officer, with whom the private
individual allegedly conspired, died, 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 between the dead public officer and private
individual, the latter can still be convicted of violation of RA No. 3019 (People vs. 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).
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Mayor, treasurer and planning coordinator approved the overpayments in favor


of a private individual for the construction of public market. The public officers caused
undue injury to the government through manifest partiality and evident bad faith in
violation of Section 3 (e) of RA No. 3019. The private individual, who was overpaid, is
also liable on the basis of conspiracy and Go vs. Fifth Division of the Sandiganbayan
(Santillano vs. People, G.R. Nos. 175045-46, March 03, 2010; Uyboco vs. People, G.R.
No. 211703, December 10, 2014).

24. Accomplice - Lending weapon such a gun to a killer for purpose of killing a
specific person such as Pedro is an act of accomplice. But if the killer used the weapon
in killing a different person such as Juan, the lender is not liable as an accomplice. To
be held liable as an accomplice, it is important that that he knows and concurs in the
criminal design of the principal (community of design) and participates before or
during the commission of the crime by supplying moral or material aid in an
efficacious way. In this case, the lender concurred in the killing of Pedro but not Juan.
Hence, he is not liable as an accomplice. If the killer used another weapon such as
knife instead of the gun borrowed in killing Pedro, the lender is not liable as an
accomplice. Although the lender concurred in the killing of Pedro, he did not supply
the killer material or moral aid in an efficacious way since the weapon used is not the
one borrowed from him.

25. Fencing In fencing, the property, which the accused possesses with
intent to gain, must be derived from the proceeds of theft or robbery (Ong vs. People,
GR No. 190475, April 10, 2013). 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 in PD
No. 1612 (Dimat vs. People, G.R. No. 181184, January 25, 2012). If the property is
derived from the proceeds of malversation or estafa, 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.

Actual knowledge that the property is stolen is not required. Fencing is


committed is the accused 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,
supra). Furthermore, mere possession of stolen property shall be prima facie evidence
of fencing (Section 6 of PD No. 1612).

26. Obstruction of justice Obstruction of justice can only be committed by a


person other than the one being investigated or tried in a criminal proceeding.
Although this is not expressly required in PD No. 1829 to make one liable for
obstruction of justice, a principal himself cannot be held liable for obstruction of
justice (Angeles vs. Gaite, G.R No. 165276, November 25, 2009).

The criminal actor, who threwthe body of murdered victim into the river to
destroy the corpus delicti, is liable for murder qualified by the circumstance of
employment of means to afford impunity.The one who assisted in in throwing the body
is liable as an accessory to murder for destroying the body of the crime to prevent its
discovery (People vs. Devaras, G.R. Nos. 100938-39, December 15, 1993)or a principal
in the crime of obstruction of justice for destroying it to impair its availability as
evidence in a criminal proceeding.

The accused cannot be prosecuted both as an accessory for murder and as


principal for obstruction of justice. The penalty prescribed for obstruction of justice
under PD No. 1829 is prision correccional in its maximum period unless other law
prescribed a higher penalty. Thus, the offender may be prosecuted for murder as
accessory with the penalty of prision mayor or for obstruction of justice as principal
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also with the penalty of prision mayor, since this penalty is higher than that
prescribed under PD No. 1829. The intention of the law in prescribing a fixed penalty
or that provided by other law such as RPC, whichever is higher, is not to prosecute the
offender for obstruction of justice and for other crime arising from the same act such
as destroying the body of the crime.

After the discovery of illegal possession of lumber, the accused unlawfully took
the truckused to commit the crime from the authorities. He is not liable as an
accessory since he did not conceal the instrument of the crime for the purpose
of preventing the discovery thereof. Crime was already discovered when the
concealment was made. However, he is liable for obstruction of justice for concealing
the truck to impair its availability as evidence in the criminal proceeding for illegal
possession of lumber (Padiernos vs. People, G.R. No. 181111, August 17, 2015).

To be held liable as an accessory, the person harbored, concealed, or assisted to


escape must be principal of the crime and the crime committed must be treason,
parricide, murder,or an attempt to take the life of the Chief Executive, or other crime
where act was committed with abuse of public function or the principal is a habitual
delinquent. To be held liable as a principal in obstruction of justice, the one harbored,
concealed, or assisted to escape is any person(such as principal or accomplice)and the
crime committed is any offense under existing law.

The exempting circumstance of relationship under Article 20 of RPC can be


appreciated in favor of an accessory to a felony but not in favor of an accused in the
crime of obstruction of justice since he is being prosecuted as principal and not as an
accessory.

Light felony is punishable except when the accused is merely an accessory


(Article 16 of RPC) or when it is at the attempted or frustrated stage unless it is a
crime against property or person (Article 7). However, obstruction of justice can be
committed even though the crime under investigation is a light felony.

An accused can be convicted as an accessory to a felony although the principal


was not convicted because the latter was at large, unidentified or dead (Vino vs.
People, G.R. No. 84163, October 19, 1989). The corresponding responsibilities of the
principal, accomplice, and accessory are distinct from each other. As long as the
commission of the offense 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, G.R. No. 171222, February 18, 2015).

27. Credit of preventive imprisonment Credit for preventive imprisonment is


full if the detention prisoner executed detainees manifestation, which is a written
declaration of a detained prisoner, with the assistant of a counsel, stating his
willingness 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 for preventive imprisonment is 4/5 if the detention prisoner executed


detainees waiver, which is 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 (Article 29 of RPC as
amended by RA No. 10592).

If the offender 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, which
provides that the full time spent in actual commitment and detention of juvenile
delinquent shall be credited in the services of his sentence.
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28. Immediate release 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).

29. Special time allowance for loyalty (STAL) If detention prisoner 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 (STAL) 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 STAL (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.

However, prisoner is not entitled to STAL if he has committed other offense or


any act in violation of the law.

30. Special complex crime Raping the victim or inserting instrument in her
anal orifice after treacherously inflicting mortal wounds is not a special complex crime
of rape with homicide because the original design of the victim is kill and not to rape
the victim. The crime committed is murder qualified by treachery and rape shall be
regarded either as ignominy or cruelty (People vs. Laspardas, G.R. No. L-46146, Oct.
23, 1979) or sexual assault shall be treated as cruelty (People vs. Bernabe, G.R. No.
185726, October 16, 2009).

a. Special rule for kidnapping with homicide - 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 accused is liable for a special complex
crime of kidnapping with homicide (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, if the derivation of
liberty is just incidental to the transportation of the victim to the place where he will be
executed, the crime is murder. Kidnapping with homicide is not committed because of
lack of intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655, July 22,
2009).

b. Doctrine of absorption - In robbery with homicide, all other felonies such


as rape, intentional mutilation, usurpation of authority, or direct assault with
attempted homicide are integrated into this special complex crime. This special
complex crime is committed as long as death results by reason or on occasion or
robbery without reference or distinction as to the circumstances, causes or modes or
persons intervening in the commission of the crime(People vs. De Leon, GR No.
179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05, 2016).

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c. Homicide component - In robbery with homicide, it is immaterial that the


victim of homicide is a bystander (People vs. Barut, G.R. No. L-42666 March 13,
1979), a responding police (People vs. Pelagio, G.R. No. L-16177, May 24, 1967) or one
of the robbers (People vs. De Leon, GR No. 179943, June 26, 2009;People vs. Jugueta,
G.R. No. 202124, April 05, 2016).

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 as shown by Senate deliberations refers to a killing that occurs
immediately before or after,or during the commission itself of the rape, where the
victim of the homicide may be a person other than the rape victim (People vs.
Villaflores, G.R. No. 184926, April 11, 2012, Bersamin; People vs. Laog, G.R. No.
178321, October 5, 2011).

In robbery with homicide, it is immaterial that victim is killed by the responding


police and not by the robber (People vs. Ombao, G.R. No. L-30492, February 26,
1981). But in attempted robbery with homicide, the offender must be guilty of both
crimes. Hence, attempted robbery with homicide is not committed where the victim
was killed by a co-passenger and not by the robber (People vs. Manalili, G.R. No.
121671, August 14, 1998).

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.

d. Violence or intimidation in taking the property - If the taking of property


is not committed by means of violence or intimidation, Article 294 of RPC is not
applicable. Taking without violence or intimidation constitutes theft. If after the taking
of property by means of violence or intimidation, the robber killed a responding police
officer, the former is liable for robbery with homicide (People vs. Pelagio, G.R. No. L-
16177, May 24, 1967). If after the taking of the roasters without violence or
intimidation, the thief killed responding police officer, he is liable for theft and direct
assault with homicide (People vs. Jaranilla, G.R. No. L-28547, February 22, 1974). If
after the snatching of the complainants bag without violence or intimidation, a co-
robber crashed the getaway motorcycle and died, the accused is only liable for theft
(People vs. Concepcion, G.R. No. 200922, July 18, 2012).

e. Direct connection - After consummation of robbery, passengers reported


the matter to the police authorities. During the manhunt operation, one of the police
officers was killed by a robbery. The crime committed is not robbery with homicide
since the connection between the two crimes was not a direct connection" (People vs.
Quemeggen, G.R. No. 178205, July 27, 2009).

f. Occupation of real property - 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.

g. Robbery by using force upon thing - Breaking the window of a house and
taking property inside without entering constitutes theft. Breaking the window is not a
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circumstance that will qualify the taking into robbery by using force upon thins since
this crime requires that the breaking of window is a means to enter the building
(People vs. Adorno, CA 40 O.G. 567; People vs. Jaranilla. G.R. No. L-28547, February
22, 1974). Breaking the window to commit theft is an ordinary aggravating
circumstance.

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 a lockedfurniture (US
vs. Macamay, G.R. No. 11952, September 25, 1917). Entrusted key is not a false key
in robbery by using force upon thing.

h. Complex crime of two robberies - In Sebastian case, when the elements


of both robbery by means of violence and intimidation and robbery by using force upon
thing are present, the accused shall be held liable of the former since the controlling
qualification is the violence and intimidation. However, the penalty for robbery in
inhabited house if the robber is armed is graver than simple robbery. Hence, by
hurting the victim, the offender shall be penalized with a lighter penalty. Since
Sebastian principle defies logic and reason, People vs. Napolis, G.R. No. L-28865,
February 28, 1972 abandoned it. Under the present rule, 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 said Code. Hence, the
penalty for robbery in inhabited house shall be imposed in its maximum period (People
vs. Disney, G.R. No. L-41336, February 18, 1983; Fransdilla vs. People, GR No.
197562, April 20, 2015, Bersamin). If the entry into the dwelling is without force upon
thing, and the property was taken by means of violence or intimidation, the crime
committed is robbery by means of violence or intimidation with aggravating
circumstance of disregard of dwelling (People vs. Tejero, G.R. No. 128892 June 21,
1999; People vs. Evangelio, G.R. No. 181902, August 31, 2011). When the elements of
both robbery with homicide and robbery by using force upon thing (unlawful entry) are
present, the former shall absorb the latter. In sum, robbery by using force upon thing
committed on occasion of robbery by means of violence or intimidation shall be
integrated into the special complex crime of robbery with homicide (People vs. De
Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No. 202124, April 05,
2016). But aggravating circumstances of disregard of dwelling and unlawful entry
shall be both appreciated (People vs. Lamosa, G.R. No. 74291-93, May 23, 1989).

31. Compound crime - 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).
Wherethe use of grenade render the victim defenseless, use of explosives shall be
considered as a qualifying circumstance because this is the principal mode of attack.
Thus, treachery will 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).

a. Single act treated as several acts - 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).

b. Variance rule - 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
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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).

c. Several acts - Several acts in killing several victims do not constitute a


compound crime. Article 48 requires a single act constituting two or more crimes
(People vs. Toling, G.R. No. L-27097, January 17, 1975). Exceptions: Several acts in
killing several victims under a single criminal impulse (People vs. Lawas, L-7618-20,
June 30, 1955) or under single criminal purpose (People vs. Abella, G.R. No. L-32205
August 31, 1979) shall be considered as a single act. Hence, it is a compound crime.

The single criminal impulse rule under the Lawas doctrine is more of an
exception than the general rule (People vs. Remollino, G.R. No. L-14008, September
30, 1960). Article 48 on compound crime speaks of single act, but not single criminal
impulse (People vs. Pineda, G.R. No. L-26222, July 21, 1967). In Lawas case, the SC
was merely forced to apply Article 48 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).

The single criminal purpose rule under the Abella case was adopted in
consideration of the plight of the prisoners; hence, it is only applicable if killings were
commit by prisoners 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

32. Complex crime proper - Stabbing after the rape is a separate crime of
frustrated homicide. This is not a complex crime proper since the latter is not
necessary to commit the former (People vs. Isla, G.R. No. 199875, November 21, 2012).

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

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 complex crime of 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. Buhos, G.R. No. L-40995, June 25, 1980; People vs. Tami, G.R.
Nos. 101801-03, May 02, 1995; 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 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 with rape. This is
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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 with homicide. 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 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).

b. Complex crime and special complex crime - In a composite crime, the


composition of the offenses is fixed by law, but 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. In a composite
crime, the penalty for the specified combination of crimes is specific, but in a complex
or compound crime the penalty is that corresponding to the most serious offense, to
be imposed in the maximum period. A light felony that accompanies the commission
of a complex or compound crime may be made the subject of a separate information,
but a light felony that accompanies a composite crime is absorbed (People vs. Esugon,
G.R. No. 195244, June 22, 2015, Bersamin).

33. Doctrine of absorption - 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).

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

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incidents in Lovedioro case, and Solongan case happened after RA No. 6968, and yet,
the SC is still applying the doctrine of absorption.

a. Sedition - 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.

b. Incidental deprivation of liberty - If the principal intention of the offenders


is to rob the victims, and the deprivation of their liberty is just incidental to the
prevention of the responding police officers from arresting them, the crime committed
is robbery, which absorbed kidnapping and serious illegal detention (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).

34. Delito continuado - In order that continuous crime may exist, there
should be: (1) plurality of acts performed separately during a period of time; (2) unity
of criminal intent and purpose and (3) unity of penal provision infringed upon or
violated (Santiago vs. Garchitorena , GR NO. 109266, December 2, 1993). The
following are delito continuado: (1) several acts of taking roasters owned by different
owner under a single criminal impulse to take them all in violation of a single penal
provision, and that is Article 308 of RPC (Note: This is also called single larceny rule;
People vs. Jaranilla, G.R. No. L-28547, February 22, 1974); and (2)several acts of
taking away by force the 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, and that is Article 294 of RPC (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 criminal
impulse to satisfy his lust, three separate crimes of rape are committed (People vs.
Lucena, GR No. 190632, February 26, 2014).

Foreknowledge doctrine - There is no delito continuado where the accused


when he committed the first threat against the victim has no foreknowledge that he
will chance upon the second and third victims to commit the second and third threat.
Without such foreknowledge, three threats could not be said to have been committed
under a single criminal impulse, which is the basis of applying delito continuado
principle. 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).

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35. Incorrect penalty 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 (De Castro vs. People, G.R. No.
171672, February 02, 2015, Bersamin).

In Fransdilla vs. People, GR No. 197562, April 20, 2015, Bersamin, the trial
judge fixed the indeterminate sentence at "imprisonment of 12 years and 1 day to 14
years and 8 months of reclusion temporal as minimum to 17 years, 4 months and 1
day to 20 years of reclusion temporal as maximum". This is a patent elementary error.
Considering that the clear objective of the ISLAW is to have the convict serve the
minimum penalty before becoming eligible for release on parole, both the minimum
and the maximum penalties must be definite, not ranging. This objective cannot be
achieved otherwise, for determining when the convict would be eligible for release on
parole would be nearly impossible if the minimum and the maximum were
as indefinite as the RTC fixed the indeterminate sentence. Indeed, that the sentence is
an indeterminate one relates only to the fact that such imposition would leave the
period between the minimum and the maximum penalties indeterminate "in the sense
that he may, under the conditions set out in said Act, be released from serving said
period in whole or in part."

In People vs. Fontanilla, G.R. No. 177743, January 25, 2012, Bersamin - The
trial court sentenced the accused to suffer reclusion perpetua to death for murder.
This is erroneous. Reclusion perpetua and death should not be imposed as a
compound, alternative or successive penalty for a single felony. In short, the
imposition of one precluded the imposition of the other.

Article 64 of RPC provides the rules on application of divisible penalty. Under


this provision, the penalty prescribed for a felony shall be applied in its proper
imposable period based on the presence of modifying circumstances.

Under Article 349 of RPC, the penalty for bigamy is prision mayor. In the
absence of modifying circumstances, prision mayor pursuant to Article 64 shall be
applied in its medium period, which ranges from 8 years and 1 day to 10 years.
Applying the Islaw, the minimum of the indeterminate sentence should be within the
range of prision correccional, the penalty next lower than that prescribed for the
offense, which is from 6 months and 1 day to 6 years. Accordingly, the indeterminate
sentence of 2 years and 4 months of prision correccional, as minimum, to 8 years and
1 day of prision mayor as maximum is proper (Lasanas vs. People, G.R. No. 159031,
June 23, 2014, Bersamin).

Under Article 249 of RPC, the penalty for homicide is reclusion temporal. In the
absence of any modifying circumstances, reclusion temporal shall be applied in its
medium period, which ranges from 14 years, 8 months and 1 day to 17 years and 4
months. Applying Article 64, within the limits of the medium period of reclusion
temporal, the courts shall determine the extent of the penalty according to the
number and nature of the aggravating and mitigating circumstances and the greater or
lesser extent of the evil produced by the crime. Thus, the court could not impose the
highest penalty of the medium period of reclusion temporal, and that, is 17 years and
4 months without specifying the justification for so imposing. Without proper
justification, the court should impose the lowest penalty of the medium period of
reclusion temporal, and that is, 14 years, 8 months. Since ISLAW is applicable, 14
years, 8 months shall be considered as the maximum penalty while the minimum
penalty shall be fixed within the limits of prision mayor, which ranges from 6 years
and 1 day to 12 years. Hence, the accused is sentenced to suffer 10 years of prision
mayor as minimum indeterminate penalty to 14 years, 8 months of reclusion
temporal as maximum penalty (Ladines vs. People, G.R. No. 167333, January 11,
2016, Bersamin).

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36. Four indivisible penalty - There are four kinds of divisible penalty, which
are governed by Article 64, to wit: (1) penalty composed of three periods fixed in
accordance with Article 76; (2) penalty not composed of three periods computed in
accordance with Article 65; (3) complex penalty under Article 77, par. 1; and (4)
penalty without specific legal form under Article 77, par. 2.

a. Penalty containing three periods Article 76 of RPC expressly fixed the


range of the period for reclusion temporal, prision mayor, temporary disqualification,
prision correccional, destierro, suspension, arresto mayor, and arresto menor. To find
the range of the periods of any of the afore-said penalties, one will simply read Article
76. If the crime committed is homicide and there is one mitigating circumstance of
confession, the prescribed penalty of reclusion temporal shall be applied in its
minimum period because of Article 64. Article 76 expressly states that the range of the
minimum period of reclusion temporal is from 12 years and 1 day to 14 years and 8
months. Within the range of this period, the maximum indeterminate penalty shall be
fixed.

The range of the minimum, medium and maximum periods fixed in accordance
with Article 76 is one-third equal portion of the respective penalties except arresto
mayor. Under Article 76, the minimum period of arresto mayor ranges from 1 month
and 1 day to 2 months; medium period ranges from 2 month and 1 day to 4 months;
and maximum period ranges from 4 months and 1 day to 6 months. Hence, the time
included in the duration of the minimum period of arresto mayor is only one month
while that of the medium and maximum is two months.

b. Penalty not composed of three periods - Penalties with divisible duration,


the periods of which are not expressly mentioned in Article 76 are called penalties not
composed of three periods; since Article 76 has not fixed the duration of their periods,
they must be computed in accordance with Article 65. Under this provision, the time
included in the duration of penalty shall be divided into three equal portions and
periods shall be formed from each portion.

The penalty for malversation under paragraph 2 of Article 217 of RPC is prision
mayor in its minimum and medium period. The range of this penalty is not found in
Article 76. Considering that this penalty is not composed of three periods, the time
included in the penalty prescribed should be divided into three equal portions, which
each portion forming one period, pursuant to Article 65 (Zafra vs. People, G.R. No.
176317, July 23, 2014, Bersamin).

The duration of prision mayor in its minimum and medium period is 6 years
and 1 day to 10 years. To determine the time included in the duration, deduct one
day and the lower limit of the prescribed penalty from its upper limit.

10 years -------------------upper limit


- 6 years and 1 day ------- lower limit
- 1 day
--------------------------
4 years ------- time included in the duration of penalty

Four years, which is the time included in the duration, shall be divided into
three equal portions.

4 years
3
-------------------------
1 year and 4 months --------- one third portion of the penalty

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The minimum, medium and maximum periods shall be formed out the 3 equal
portions of the penalty. The time included in the duration of each period is 1 year and
4 months.

6 years
+1 year and 4 months
----------------------------
7 years and 4 months
+ 1 year and 4 months
----------------------------
8 years and 8 months
+1 year and 4 months
-----------------------------
10 years

Thus, the minimum period of the prescribed penalty of prision mayor in its
minimum and medium periods ranges from 6 years and 1 day to 7 years and 4
months; its medium period ranges from 7 years, 4 months and 1 day to 8 years and 8
months; its maximum period rages from 8 years, 8 months and 1 day to 10 years
(Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin).

c. Complex penalty Complex penalty is composed of three distinct penalties.


The periods of complex penalty is formed in accordance with Article 77, par. 1.
Applying this provision, each of the components of the complex penalty shall form a
period; the lightest of them shall be the minimum, the next the medium, and the most
severe the maximum period.

Reclusion temporal to death prescribed for treason committed by resident alien


under Article 114 of RPC is a complex penalty. This penalty is composed to three
distinct penalties, namely: reclusion temporal, reclusion perpetua and death penalty.
Out of these three components, periods shall be formed in accordance with Article 77,
par. 1. Thus, reclusion temporal, which is the lightest of the three, shall be minimum
period of penalty of reclusion temporal to death; reclusion perpetua, which is the next
penalty, shall be the medium period; death penalty, which is the most severe, shall be
the maximum period. Thus, in the absence of modifying circumstances, reclusion
temporal to death prescribed for treason shall be applied in its medium period, and
that is, reclusion perpetua.

Prision correccional in its maximum period to prision mayor in its medium period
prescribed for simple robbery under Article 294 of RPC is a complex penalty under
since it composed of three distinct penalties. Thus, prision correccional in its maximum
period, which is the lightest of the three, shall be minimum period of this prescribed
penalty. Prision mayor in its minimum period, which is the next penalty, shall be the
medium period. Prision mayor in its medium period, which is the most severe, shall be
the maximum period. In sum, prision correccional in its maximum period to prision
mayor in its medium period prescribed for robbery shall be broken down as follows:

Minimum: Prision correccional in its maximum period


(4 years, 2 months and 1 day to 6 years)
Medium: Prision mayor in its minimum period
(6 years and 1 day to 8 years)
Maximum: Prision mayor in its medium period

(8 years and 1 day to 10 years)

See: People vs. Dela Cruz, G.R. No. 168173, December 24, 2008, En Banc, People vs.
Barrientos, G.R. No. 119835, January 28, 1998, En Banc, People vs. Castillo, G.R. No.
L-11793, May 19, 1961, En Banc, People vs. Diamante, G.R. No. 180992, September
04, 2009, and People vs. Lumiwan, G.R. Nos. 122753-56, September 07, 1998.
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Reclusion temporal in its medium period to reclusion perpetua prescribed


for sexual abuse under Section 5 (b) of RA No. 7610 is a complex penalty since
it composed of three distinct penalties. Applying Article 77, par. 1, this
complex penalty can be broken down as follows:

Minimum: Reclusion temporal in its medium period


(14 years, 8 months and 1 day to 17 years and 4 months)
Medium: Reclusion temporal in its maximum period
(17 years, 4 months and 1 day to 20 years)
Maximum: Reclusion perpetua

See: People vs. Morante, G.R. No. 187732, November 28, 2012

d. Penalty without specific legal form Reclusion temporal to reclusion


perpetua prescribed for mutilation under Article 262 is a penalty without a specific
form (People vs. Romero, G. R. No. 112985, April 21, 1999). The duration of its periods
is not fixed by Article 76. This penalty cannot be divided into three equal portions in
accordance with Article 65 since it has an indivisible component, and that, is
reclusion perpetua. It is not a complex penalty under Article 77, par. 1 since it merely
composed of two distinct penalties. Thus, its periods shall be determined in
accordance with Article 77, par. 2, which provides that the periods shall be
distributed, applying for analogy the prescribed rules. Applying Article 77, par. 1 by
analogy, the maximum period shall be formed out of the most severe penalty, and that
is, reclusion perpetua. Applying Article 65 by analogy, the duration of reclusion
temporal shall be divided into two equal portions and minimum and medium periods
shall be formed from each portion. Applying Article 77, par. 2, reclusion temporal to
reclusion perpetua is broken down as follows:

Minimum: Lower half of reclusion temporal


12 years and 1 day to 16 years
Medium: Higher half of reclusion temporal
16 years and 1 day to 20 years
Maximum: Reclusion perpetua

See: People vs. Macabando, G.R. No. 188708, July 31, 2013; People vs.
Romero, G. R. No. 112985, April 21, 1999; Gonzales vs. People, G.R. No.
159950, February 12, 2007; and People vs. Oliva, G.R. No. 122110, September
26, 2000

Reclusion temporal in its maximum period to reclusion perpetua prescribed


for malversation under Article 217 is a penalty without specific form. The
duration of its periods is not fixed by Article 76. This penalty cannot be divided
into three equal portions in accordance with Article 65 since reclusion perpetua
component is not divisible. It is not a complex penalty under Article 77, par. 1
since it merely composed of two distinct penalties. Thus, its periods shall be
determined in accordance with Article 77, par. 2. Applying this provision, the
maximum period shall be formed out of the most severe penalty, and that is,
reclusion perpetua. The duration of reclusion temporal in its maximum period
shall be divided into two equal portions, and minimum and medium periods
shall be formed from each portion. In sum, reclusion temporal in its maximum
period to reclusion perpetua is broken down as follows:

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Minimum: Lower half of reclusion temporal in its maximum period


17 years, 4 months and 1 day to 18 years and 8 months
Medium: higher half of reclusion temporal in its maximum period
18 years, 8 months and 1 day to 20 years
Maximum: Reclusion perpetua

See: Estepa vs. Sandiganbayan, G.R. No. 59670, February 15, 1990, Torres vs. People,
GR No. 175074, August 31, 2011, Cabarlo vs. People, G.R. NO. 172274, November 16,
2006; Mesina vs. People, G.R. No. 162489, June 17, 2015, Bersamin.

37. 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.

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.

38. Off set rule - 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).

39. Penalty of offense under special law - The penalty for possession of
dangerous drugs is 12 years and 1 day to 20 years of imprisonment. The court cannot
impose a straight penalty of 12 years and 1 day since the application of indeterminate
sentence law is mandatory (unless the accused deserves a lenient penalty by
confessing pursuant to the Nang Kay principle). Applying the Islaw, the minimum
indeterminate penalty shall not be less than 12 years and 1 day while the maximum
shall not exceed 20 years. Thus, the court can sentence the accused to suffer 15 years
of imprisonment as minimum to 18 years as maximum (Asiatico vs. People, G.R. No.
195005, September 12, 2011; Escalante vs. People, G.R. No. 192727, January 9,
2013).

Under Section 9 of RA 3019, the penalty for violation of Section 3 (e) of RA 3019
is imprisonment for not less than 6 years and 1 month and not more than 15 years.
Applying the Islaw, the minimum indeterminate penalty shall not be less than 6 years
and 1 month while the maximum shall not exceed 15 years. Thus, the court can
sentence the accused to suffer 6 years and 1 month of imprisonment as minimum to
10 years as maximum (People vs. Reyes, G.R. No. 177105-06, August 12, 2010,
Bersamin).
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40. Mandatory application of the Islaw - The application of the Indeterminate


Sentence Law is mandatory to both the Revised Penal Code and the special laws
(Romero vs. People, G.R. No. 171644, November 23, 2011). However, the Supreme
Court, in People vs. Nang Kay, G. R. No. L-3565, April 20, 1951, has provided an
exception. In this case, the accused pleaded guilty to offense where the law prescribed
a penalty of 5 to 10 years imprisonment. The court sentenced the accused to suffer 5
years of imprisonment. The Supreme Court sustained the penalty. Fixing the penalty
at the minimum limit without applying Act No. 4103 is favorable to the accused since
the accused shall be automatically released upon serving 5 years of imprisonment.
Applying Act No. 4103 would lengthen the penalty because the indeterminate
maximum penalty must be necessarily more than 5 years (People vs. Arroyo, G.R. No.
L-35584-85, February 13, 1982). However, the Nang Kay principle is not applicable
where the crime is punishable under the Revised Penal Code. The application of
ISLAW is always mandatory if the penalty is prescribed by RPC since it is favorable to
the accused. It is favorable to the accused since in fixing the minimum penalty, the
prescribed penalty under the Code shall be lowered by one degree. On the other hand,
in fixing the minimum penalty for offense under special law involved in the Nang Kay
case, the prescribed penalty shall not be lowered (People vs. Judge Lee, Jr, G.R. No.
66859, September 12, 1984). The Nang Kay principle is not also applicable where the
accused does not deserve a lenient penalty. In Batistis vs. People, G.R. No. 181571,
December 16, 2009, the SC through Justice Bersamin said the Nang Kay exception is
not applicable where there is no justification for lenity towards the accused since he
did not voluntarily plead guilty, and the crime committed is a grave economic offense
because of the large number of fake Fundador confiscated.

41. Adoption of the technical nomenclature of the Spanish penalty - RPC is


not generally applicable to malum prohibitum. However, when a special law, which
punishes malum prohibitum, adopts the technical nomenclature of the penalties in
RPC, 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; (2) Article 64 on application of penalty in its minimum period if there is a
confession; and (3) Article 160 on special aggravating circumstance of quasi-
recidivism.

RA No. 7080 and RA No. 10591 adopt the nomenclature of the penalties in RPC.
Hence, minority, confession (Jacaban vs. People, GR No. 184355, March 23, 2015;
Malto vs. People, G.R. No. 164733, September 21, 2007) or quasi-recidivisim shall be
considered in plunder and illegal possession of loose firearm.

Under Section 98 of RA No. 9165, the provisions of RPC shall not apply except
in the case of minor offenders. Hence, if the accused is a minor, privilege mitigating
circumstance of minority (People vs. Montalaba, G.R. No. 186227, July 20, 2011;
People vs. Musa, G.R. No. 199735, October 24, 2012Asiatico vs. People, G.R. No.
195005, September 12, 2011), confession or quasi-recidivisim (People vs. Salazar, G.R.
No. 98060, January 27, 1997) shall be considered in crime involving dangerous drugs.
In this case, life imprisonment shall be considered as reclusion perpetua. If the
accused is an adult, these circumstances shall not be appreciated.

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.

Mitigating circumstance of old age can only be appreciated if the accused is


over 70 years old at the time of the commission of the crime under RA No. 3019 and
not at the time of promulgation of judgement (People vs. Reyes, G.R. No. 177105-06,
August 12, 2010, Bersamin). Moreover, this the mitigating circumstance of old age
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cannot be appreciated in crime punishable by RA No. 3019 since this law did not
adopt the technical nomenclature of the penalties of the Revised Penal Code.

42. Subsidiary penalty - If the convict has no property with which to meet the
fine, he shall be subject to a subsidiary personal liability at the rate of one day for
each amount equivalent to the highest minimum wage rate prevailing in the
Philippines at the time of the rendition of judgment of conviction by the trial court
(Article 39 of RPC as amended by RA No. 10159).

43. Multiple sentences - When the culprit has to serve two or more penalties,
he shall serve them simultaneously if the nature of the penalties will so permit. Thus,
convict could serve simultaneously arresto mayor and fine, prision correccional and
perpetual absolute disqualification, or reclusion perpetua and civil interdiction. In
sum, while lingering in prison, convict could pay fine, return the property confiscated,
be disallowed to cast his vote or to act function as a public officer.

When the culprit has to serve two or more penalties, he shall serve them
successively if the nature of the penalties will not permit simultaneous service.
Convict must serve multiple penalties successively: (1) where the penalties to be
served are destierro and imprisonment; and (2) where the penalties to be served are
imprisonment. However, the successive service of sentences is subject to the three-fold
rule and 40-year limitation rule.

44. Three-fold rule - The three fold rule is to be taken into account not in the
imposition of the penalty but in connection with the service of the sentence imposed
(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.

45. Modes of criminal extinction The modes of extinguishing criminal


liability are: death of the offender; service of the sentence; amnesty or absolute
pardon; prescription of crime, or penalty; marriage between the offender and the
offended in crimes against chastity (Article 89 of RPC) or in rape; or forgiveness in
marital rape (Article 266-C); and probation (PD No. 968 as amended by RA No. 10707.

a. Reelection - 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. Villalulz, G.R. No. L-34636, May 30, 1974). But a re-elected
public official could not 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 doctrine of condonation of administrative
offense by reason of reelection has been abandoned for being inconsistent to Section 1,
Article X1 of the 1987 Constitution on public office is a public trust and public
accountability (Morales vs. CA and Binay, GR No. 217126-27, November 10, 2015).

b. Novation - 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). 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, Bersamin). 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).
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Novation cannot be used as a defense in case where the existence of contract is


not an element. In theft case, there was no contractual relationship or bilateral
agreement which can be modified or altered by the parties (People vs. Tanjutco, G.R.
No. L-23924, April 29, 1968, En Banc).In estafa through falsification of public
documents, the liability of the offender cannot be extinguished by mere novation (Milla
vs. People, G.R. No. 188726, January 25, 2012).

c. Death - Death of an accused pending appeal shall extinguish his criminal


liability and civil liability arising from crime (Article 89 of RPC); but not his civil
liability arising from a source other than crime (e.g. quasi-delict, contract, quasi-
contract or law). Civil liability arising from a source other than crime is not deemed
included in the institution of criminal action. Hence, the private complainant must file
a separate civil action against either the executor or administrator, or the estate of the
accused. During the pendency of the criminal case, the statute of limitations on this
surviving civil liability is deemed interrupted (People vs. Bayotas, G.R. No. 102007,
September 2, 1994). However, in violation of BP Blg. 22, civil liability arising from a
source other than crimeis mandatorily included in the institution of criminal action.
Hence, the court, despite the death of the accused pending appeal, must determine his
civil liability arising from contract (Bernardo vs. People, G.R. No. 182210, October 05,
2015). In sum, the private complainant is not required to file a separate civil action
based on contract involving a dishonored check.

d. Pardon - Person, who was pardoned for the crime punishable by reclusion
perpetua, cannot run in the Senatorial race if the terms of the pardon has not
expressly restored his right to hold public office (Article 36 of RPC) or expressly
remitted the accessory penalty of perpetual absolute disqualification (Article 41). GMA
pardoned President Estrada with express restoration of his civil and political rights.
Hence, he is eligible to run as Mayor (Risos-vidal vs. Lim, G.R. No. 206666, January
21, 2015).

e. Blameless ignorance doctrine - The State and private complainant should


not be blame for failure to institute the case immediately after the commission of the
crime if they are ignorant or has no reasonable means of knowing the existence of a
crime. Under "blameless ignorance" doctrine (Section 2 of Act 3326 and Article 91 of
RPC), the prescription runs only upon discovery of the crime by offended party or
State through a person in authority or his agent. 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).

d. Discovery by a witness - Prescription runs only upon discovery of the crime


by offended party or person in authority or 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 commence the running of prescription.

e. Constructive notice rule - The 10-year prescriptive period for falsification of


document shall commence to run on the date of recording of the falsified deed of sale
in the Registry of Deeds because of the constructive notice rule under the Torren
system (People vs. Reyes, G.R. No. 74226, July 27, 1989). The 15-year prescriptive
period for bigamy shall commence to run on the date of actual discovery of the
bigamous marriage and not from the registration of bigamous marriage in the Office of
the Civil Registrar. The law on Civil Registry and the Family Code, which governed

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registration of marriage, do not provide a rule on constructive notice (Sermonia vs.


Court of Appeals, G.R. No. 109454, June 14, 1994).

f. Non-actionable crime - 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 Blg. 22, the
crime is consummated upon the dishonor of the check by the drawee bank (Bautista
vs. Court of Appeals, G.R. No. 143375, July 6, 2001). However, 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.

h. Filing of complaint for preliminary investigation - If the crime is


punishable by the Revised Penal Code or a special law, the institution of judicial
proceeding(e.g. filing of complaint or information in court) or executive proceeding (e.g.
filing of complaint for preliminary investigation) interrupts the running of prescription
such as the filing of complaint: (1) for violation of BP Blg. 22 in the prosecutors office
- People vs. Pangilinan, G.R. No. 152662, June 13, 2012;Panaguiton vs. Department of
Justice, G.R. No. 167571, November 25, 2008; (2) for violation of Revised Securities
Act in Securities and Exchange Commission - SEC vs. Interport Resources
Corporation, G.R. No. 135808, October 6, 2008; or (3) violation of RA No. 3019 in the
Ombudsman - Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65,
September 11, 2013.

The PCGG has no power to investigate cronies of Marcos for violation of RA No.
3019 not involving ill-gotten wealth. Such investigation for being voidab initiowould not
interrupt the running of prescription (People vs. Romualdez and Sandiganbayan, G.R.
No. 166510, April 29, 2009).

Ifthe crime is punishable by an ordinance, only the institution of judicial


proceeding shall interrupt itstwo-month prescriptive period. 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 it is covered by the
Rules on Summary Procedure. Hence, the filing of complaint involving violation of
ordinance for preliminary investigation will not interrupt the running of the
prescription (Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, October
7, 2013).

47. Probation -Probation shall suspend the execution of principal penalty of


imprisonment, and accessory penalty of disqualification (Villareal vs. People, G.R. No.
151258, December 01, 2014) but not the implementation of the civil aspect of the
judgment (Budlong, vs. Palisok, GR No. 60151, June 24, 1983).

When a judgment of conviction imposing a non-probationable penalty is


appealed or reviewed, and such judgment is modified through the imposition of a
probationable penalty, the defendant shall be allowed to apply for probation based on
the modified decision before such decision becomes final. This notwithstanding, the
accused shall lose the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty (Section 4 of PD 968 as
amended by RA No. 10707). In Colinares vs. People, G.R. No. 182748, December 13,
2011, 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
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offense of attempted homicide, may apply for probation. In Villareal vs. People, G.R.
No. 151258, December 1, 2014, accused was convicted of homicide, a non-
probationable crime, by the trial court. However, the SC found them liable for reckless
imprudence resulting in homicide, which is a probationable crime, because of lack of
dolo. They can still apply for probation.

Under PD No. 968 as amended, crimes against public disorder are non-
probationable. However, under RA No. 10707, crimes against public disorder such as
alarm and scandal and direct assault are now probationable.

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).

48. Direct assault 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 and not direct assault because there is no intent to defy
the law and its representative at all hazard, which is an element thereof (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. 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 if the motive (such as non-payment of loan) was totally
foreign to victims official function (Sarcepuedes vs. People, G.R. No. L-3857, October
22, 1951).

The phrase "on occasion of such performance" used in Article 148 of RPC means
"by reasonof the past performance of official duty because the purpose of the law is to
allow them to discharge their duties without fear of being assaulted 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.

The status of lawyer 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 (Records of the Batasan, Volume Four, 1984-
1985 of BP Blg. 873, which amended Article 152 of RPC).

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.
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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.

49. Evasion - 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. Evasion in the service
of sentence and delivery of prisoner from jail are committed by means of dolo.
Infidelity in the custody or prisoner is committed by means of dolo or culpa; if this
crime is committed by means of dolo, it is called conniving with or consenting to
evasion; if committed by means of culpa, it is called evasion through negligence.

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.

50. Bribery - Plaintiff gave money to the judge, who in consideration thereof
subsequently rendered an unjust decision in favor of the former. The judge is liable of
direct bribery and rendering unjust decision, while the plaintiff is liable of corruption
of public officer. But if the plaintiff gave money to the judge, who subsequently
rendered a decision against the former, the crime committed by the judge is indirect
bribery while the plaintiff is liable of corruption of public officer. The judge is not liable
of direct bribery since rendering a decision against the corruptor indicates that the
former did not receive the money in consideration of rendering a decision in favor of
the latter. It seems that the plaintiff merely gave the money to the judge by reason of
his position as such.

51. Abortion and infanticide If the fetus is killed inside the womb of his
mother, the crime is abortion regardless of whether he is viable or not (People vs.
Paycana, Jr. G.R. No. 179035, April 16, 2008; People vs. Salufrania, G.R. No. L-
50884, March 30, 1988). If the victim is killed outside the womb of the mother, the
crime is: (1) abortion if the victim is not viable e.g. intrauterine life is only 6 months
(People vs. Detablan, 40 O.G. No. 9, p. 30; People vs. Paycana, Jr. G.R. No. 179035,
April 16, 2008); or (2) infanticide, if the victim is viable e.g. his intrauterine life is more
than 6 months and his life is less than 3 day old; or (3) murder if the victim is viable
and his life is 3 day old or more.

If the accused maltreated his wife and as a consequence, his wife and unborn
child died, the crime committed is compound crime of parricide and unintentional
abortion (People vs. Robinos, G.R. No. 138453, May 29, 2002; People vs. Villanueva,
G.R. No. 95851, March 01, 1995). If the accused maltreated his pregnant wife and as
a consequence, his wife died, and his child was expelled, and died thereafter within 3
days, the crime committed is compound crime of parricide and infanticide. If the
accused maltreated his pregnant wife and as a consequence, his wife died, and his
child was expelled, and died thereafter on the third day, the crime committed is
compound crime of double parricides.

In abortion and infanticide, concealment of dishonor is a special mitigating


circumstance that can be appreciated in favor of the mother and maternal
grandparents but not in favor of the father or fraternal grandparents.

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52. Parricide - In parricide, if the victim is his parent or child, the relationship
can either be legitimate or illegitimate; if the victim is the spouse, grandparent or
grandchild, the relationship must be legitimate (People vs. Gamez, GR No. 202847,
October 23, 2013). Relationship in parricide is by blood except where the victim is
spouse (Regalado). The qualifying circumstance of relationship in parricide is personal.
Hence, it can be appreciated against the wife but not against a co-conspirator, who is
not related to her husband, the victim (People vs. Bucsit G.R. No. 17865, March 15,
1922).

53. Death under exceptional circumstance -Death under exceptional


circumstance is a not crime but a defense (People vs. Puedan, G.R. No. 139576,
September 2, 2002), or an absolutory cause (People vs. Talisic, G.R. No. 97961,
September 05, 1997) since instead of imposing the penalty for parricide, murder or
homicide, the accused shall only suffer destierro, which is just a measure designed to
protect accused from acts of reprisal principally by relatives of the victim (People vs.
Araquel, G.R. No. L-12629, December 9, 1959). Hence, death under exceptional
circumstance is not a felony within the contemplation of Article 4 (People vs. Abarca,
G.R. No. 74433, September 14, 1987) and aggression under exceptional circumstance
is not an unlawful aggression within the contemplation of self-defense (US vs. Merced,
G.R. No. 14170, November 23, 1918).

Killing his wife after surprising her in the act of committing homosexual
intercourse with another woman is not death under exceptional circumstance. Sexual
intercourse mentioned in Article 247 is different from homosexual intercourse. Killing
his mistress after surprising in the act of committing sexual intercourse with a man is
not death under exceptional circumstance(U.S. vs. Versola, G.R. No. 10759, January
25, 1916). The offender in Article 247 must be a legally married person. Killing his
wife under the circumstance indicating that she had just finished having sexual
intercourse with another man is not death under exceptional circumstance. He did not
catch his wife in the very act of sexual intercourse, but after such act (People vs.
Gonzales, G.R. No. 46310, October 31, 1939).

54. Death in a tumultuous affray -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.

55. Rape 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, Bersamin). 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). Failure to shout should not be taken against the
victim (People vs. Rivera, GR No. 200508, September 04, 2013; People vs. Rubio, G.R.
No. 195239, March 7, 2012; People vs. Penilla, GR No. 189324, March 20, 2013). It is
not 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).

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a. Qualifying circumstance - If the relationship between the accused and the


victim of rape is uncle and niece, the Information must alleged that the offender is a
relative by consanguinity or affinity within the third civil degree because there are
niece-uncle relationships which are beyond the third civil degree. However, a sister-
brother relationship is obviously in the second civil degree. Consequently, it is not
necessary that the Information should specifically state that the accused is a relative
by consanguinity within the third civil degree of the victim (People vs. Ceredon, G.R.
No. 167179, January 28, 2008).

Knowledge of the mental disability of the victim is not an element of rape


(People vs. Caoile, GR No. 203041, June 5, 2013) but it is an ingredient of the
qualifying circumstance of mental disability, which must be alleged in the information
(People vs. Obogne, GR No. 199740, March 24, 2014; People vs. Lascano, G.R. No.
192180, March 21, 2012).

In qualifying circumstances of minority and relationship in rape and special


aggravating circumstance in sexual abuse under RA No. 7610, 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 Pruna guidelines in appreciating age, either as an element of the crime or


as a qualifying circumstance, are as follows.

1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such


as baptismal certificate and school records which show the date of birth of the victim
would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been


lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victims mother or a member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the exact age or date of
birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence
shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to


be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to


be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought


to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the


testimony of the victims mother or relatives concerning the victims age, the
complainants testimony will suffice provided that it is expressly and clearly admitted
by the accused.

5. It is the prosecution that has the burden of proving the age of the offended
party. The failure of the accused to object to the testimonial evidence regarding age
shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the
victim (People vs. Lupac, G .R. No. 182230, September 19, 2012, Bersamin).

b. Absorption rule - 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,
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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).

c. Variance rule - If the crime charged is rape, but the crime proven is acts of
lasciviousness, the accused will be convicted of the latter because of the variance rule.
Acts of lasciviousness is a lesser crime, which 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;
People vs. Cuaycong, G.R. No. 196051, October 02, 2013; People vs. CA, G.R. No.
183652, February 25, 2015).

d. Marital rape - Husband can be held liable for marital rape. Article 266-A of
RPC uses the term man in defining rape without regard to the rapists legal
relationship with his victim. Under Article 266-C of RPC, 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. 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),

e. Public crime - Rape is no longer considered a private crime or that which


cannot be prosecuted, except upon a complaint filed by the aggrieved party. Hence,
pardon by the offended party of the offender in the crime of rape will not extinguish
the offender's criminal liability (People vs. Bonaagua, GR No. 188897, June 06, 2011).

f. Statutory rape - 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, Bersamin).

h. Criminal touching - Touching of either labia majora or labia minora of the


pudendum of the victim by an erect penis of the accused 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, Bersamin). 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).

In People vs. Nuyok, G.R. No. 195424, June 15, 2015, Bersamin, the
commission of rape can be established by circumstantial evidence even if the victim,
being the sole witness, was rendered unconscious during its commission. Accused
slapped victim and punched her in the stomach. She was rendered unconscious.
When she regained consciousness, she found blood in her panties, and felt pain in her
vagina. Accused was convicted of rape.

In People vs. Belgar, G.R. No. 182794, September 08, 2014, Bersamin, the
accused had injected an unknown substance into her belly that had then rendered her
unconscious. Upon waking up, she had found herself lying naked on the ground; she
had felt pain in her vagina, which held a red and white substance in it; and he had
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been the only person last seen by her before she had passed out. The lack of direct
evidence against him notwithstanding, these circumstances sufficed to prove his guilt
beyond reasonable doubt because they formed an unbroken chain that unerringly
showed Belgar, and no other, had committed the rape against her.

If the offender touches the body of the victim through force, without touching
the labia of her pudendum but with clear intention to have sexual intercourse, the
crime committed is attempted rape. Intent to have sexual intercourse is present if is
shown that the erectile penis of the accused is in the position to penetrate (Cruz vs.
People, G.R. No. 166441, October 08, 2014, Bersamin) or the accused actually
commenced to force his penis into the victim's sexual organ (People vs. Banzuela, G.R.
No. 202060, December 11, 2013).

For there to be an attempted rape, the accused must have commenced the act
of penetrating his sexual organ to the vagina of the victim but for some cause or
accident other than his own spontaneous desistance, the penetration, however, slight,
is not completed (People vs. Bandril, G.R. No. 212205, July 06, 2015).

If the offender touches the body of the victim through force, with lewd design
but without clear intention to have sexual intercourse, the crime committed is acts of
lasciviousness. Kissing and 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), touching the breast and thighs of
victim and kissing her (People vs. Victor, G.R. No. 127904, December 05, 2002); 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, but lewd design is established.

In People vs. Dadulla, G. R. No. 172321, February 9, 2011, Bersamin, the


accused's act of opening the zipper and buttons of AAA's shorts, touching her, and
trying to pull her from under the bed manifested lewd designs, not intent to lie with
her. The evidence to prove that a definite intent to lie with AAA motivated the accused
was plainly wanting, therefore, rendering him guilty only of acts of lasciviousness

In Cruz vs. People, G.R. No. 166441, October 08, 2014, Bersamin, 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.

If the offender touches the body of the victim without lewd design or without
clear intention to satisfy lust, the crime committed is unjust vexation.

In People vs. Balbar, G.R. Nos. L-20216 & L-20217, November 29, 1967,
accused kissed and embraced his co-teacher while the latter was conducting her class.
The factual setting, i.e., a schoolroom in the presence of complainant's students and
within hearing distance of her co-teachers, rules out a conclusion that the accused
was actuated by a lustful design. The crime committed is merely unjust vexation.

In People vs. Sumingwa, G.R. No. 183619, October 13, 2009, embracing,
dragging and kissing in front of her friend constitute unjust vexation.

56. Perjury - 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).

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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 RPC 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).

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 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).

57. Falsification - Falsification of a public document is consummated upon the


execution of the false document. What is punished in falsification of public document
is principally the undermining of the public faith and the destruction of truth as
solemnly proclaimed therein. The fact that accused did not benefit from, or that the
public was not prejudiced by the falsified resolution is not a defense (Goma vs. CA,
G.R. No. 168437, January 08, 2009).

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, 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.

In De Castro vs. People, G.R. No. 171672, February 02, 2015, Bersamin, as a
bank teller, she took advantage of the bank depositors who had trusted in her enough
to leave their passbooks with her upon her instruction. Without their knowledge,
however, she filled out withdrawal slips that she signed, and misrepresented to her
fellow bank employees that the signatures had been verified in due course. Her
misrepresentation to her co-employees enabled her to receive the amounts stated in
the withdrawal slips. She thereby committed two crimes, namely: estafa, by
defrauding the bank, her employer, in the various sums withdrawn from the bank
accounts of depositors; and falsification of a commercial document, by forging the
signatures of depositor in the withdrawal slips to make it appear that the depositor
concerned had signed the respective slips in order to enable her to withdraw the
amounts. Such offenses were complex crimes, because the estafa would not have been
consummated without the falsification of the withdrawal slips.

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,
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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.

Distinction should be made as to when the crimes of Estafa and Falsification


will constitute as one complex crime and when they are considered as two separate
offenses. The complex crime of estafa through falsification of documents is committed
when one has to falsify certain documents to be able to obtain money or goods from
another person. In other words, the falsification is a necessary means of committing
estafa. If the falsification is committed to conceal the misappropriation, two separate
offenses of estafa and falsification are committed. In the instant case, when accused
collected payments from the customers, said collection which was in her possession
was at her disposal. The falsified or erroneous entries which she made on the
duplicate copies of the receipts were contrived to conceal some amount of her
collection which she did not remit to the company. Hence, the accused is liable for
separate crimes of estafa and falsification of document (Patula vs. People, G.R. No.
164457, April 11, 2012, Bersamin).

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, Bersamin) 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.

In Zafra vs. People, G.R. No. 176317, July 23, 2014, Bersamin, there is a big
disparity between the amount covered by receipts issued to the taxpayer, and the
amount for the same receipts in the tax collection reports indicating the falsification
resorted to by the accused in the official reports he filed, thereby remitting less than
what was collected from taxpayers concerned, resulting to the loss of revenue for the
government as unearthed by the auditors. Thus, the accused is liable for complex
crime of malversation through falsification of documents.

If the falsification of a private document (demand letter, letter of guarantee) is


committed as a means to commit estafa, the crime committed is falsification only.
Under the common element doctrine, the use of damage as an element in falsification
of private document precludes the re-use thereof to complete the elements of estafa.
Hence, estafa is not committed because the element of damage is not
present(Batulanon vs. People, G.R. No. 139857, September 15, 2006); U.S. vs Chan
Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No. L-34516,
November 10, 1931). There is no complex crime of estafa through falsification of
private document.

If a person commits falsification of private document to conceal malversation or


estafa, the crime is estafa only. Under the common element doctrine, the use of
damage as an element in estafa precludes the re-use thereof to complete the elements
of falsification. Hence, estafa is not committed because the element of damage is not
present (See: People vs. Beng, 40 O.G. 1913).

58. Malversation - 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. 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 such a treasure or has
participated in the use or application of thereof (Zoleta vs. Sandiganbayan, G.R. No.
185224, July 29, 2015) such as a mayor, whose signature is needed to disburse
municipal funds (Manuel vs. Hon. Sandiganbayan, G.R. No. 158413, February 08,
2012).

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Malversation is committed either intentionally or by negligence. The dolo or


the culpa is only a modality in the perpetration of the felony. Even if the mode charged
differs from the mode proved, the same offense of malversation is still committed
(Mesina vs. People, G.R. No. 162489, June 17, 2015, Bersamin).

59. Estafa In offenses against property (theft or estafa), if the subject matter of
the offense is generic and not identifiable (e.g. money), an error in the designation of
the offended party is fatal. However, if the subject matter of the offense is specific and
identifiable (e.g. check or jewelry), an error in the designation of the offended party is
immaterial (Senador vs. People, G.R. No. 201620, March 06, 2013). In oral defamation,
a crime against honor, the identity of the person against whom the defamatory words
were directed is a material element. Thus, an erroneous designation of the person
injured is material (People vs. Uba, 106 Phil. 332).

Demand is not an element of estafa through misappropriation. Demand is only


important if there is no direct evidence of misappropriation because failure to account
for the property in trust upon demand is circumstantial evidence of misappropriation.
In this connection, verbally inquired about the money entrusted to the accused is
tantamount to a demand (Asejo vs. People, G.R. No. 157433, July 24, 2007). On the
other hand, demand is not necessary where there is direct evidence of
misappropriation (People vs. Arambulo, G.R. No. 186597, June 17, 2015). This rule on
demand is applicable to malversation (Munib vs. People, G.R. Nos. 163957-58, April
07, 2009).

Where the borrower is importers acquiring goods for resale, goods sold in retail
are often within his custody until they are purchased. This is covered by trust receipt
agreement. Failure to return the unsold good or deliver the proceeds of sale to the
bank is estafa in relation to PD No. 115 (Trust Receipt Law). Where the borrower is
engaged in construction, the materials are often placed under custody of his clients,
who can only be compelled to return the materials if they fail to pay. Since the bank
and the contractor know that the return of the materials is not possible, this is not
covered by trust receipt agreement. This transaction becomes a mere loan, where the
borrower is obligated to pay the bank the amount spent for the purchase of the goods.
The accused is not liable for estafa because of the constitutional provision of non-
imprisonment for nonpayment of debts (Yang vs. People, G.R. No. 195117, August 14,
2013).

In other forms of swindling under Article 316, (1) and (2) of RPC, offender made
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) or "como libre". These words "como libre" in the
Spanish Penal Code are deemed incorporated in the RPC (Naya vs. Abing, G.R. No.
146770, February 27, 2003).

60. Theft - To "take" under theft the Revised Penal Code does not require
asportation or carrying away (Medina vs. People, G.R. No. 182648, June 17, 2015). It
is not an indispensable requisite of theft that a pickpocket should carry, more or less
far away, a wallet taken from its owner (People vs. Mercado, G.R. Nos. L-45471 and L-
45472, June 15, 1938).

The term "personal property" in RPC 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). Since asportation is not an element of
theft, a personal property can to be the object of theft as along as it is capable of
appropriation although it is not capable of "asportation" (Medina vs. People, G.R. No.
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182648, June 17, 2015). Intangible property is not capable of asportation, and yet, it
can be an object of theft since is capable of asportation.

If the property is tangible, taking is deemed complete from the moment the
offender gains possession over the thing, even if he has no opportunity to dispose of
the same (People vs. Bustinera, G. R. No. 148233, June 8, 2004). If the property is
intangible, taking includes controlling the destination of this property stolen to deprive
the owner of the property (e.g. the use of a meter tampering, use of a device to
fraudulently obtain gas, and the use of a jumper to divert electricity). Using device to
control the destination of international telephone call under the telecommunication
system of PLDT without its consent to earn by charging user of the phone at the
expense of PLDT is taking the property of PLDT of providing telecommunication service
(Laurel vs. Abrogar, supra).

a. No frustrated theft - 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.
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). 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 is a lesser crime, which is necessarily
included in the charge of frustrated theft (Canceran vs. People, G.R. No. 206442, July
01, 2015).

b. Theft through misappropriation - Misappropriation of personal property


received by the accused with consent of the owner is theft or carnapping or cattle
rustling if his possession is physical or de facto, or estafa through misappropriation if
it is legal or de jure.

If the accused received the car from the owner for repair the possession is
physical, and thus, misappropriation thereof is carnapping (Santos vs. People, G.R.
No. 77429 January 29, 1990).If the accused received the property to bring it to a
goldsmith for examination and to immediately return it back to the owner, his
possession is physical, and thus, misappropriation thereof is theft (U.S. v. De Vera,
G.R. No. L-16961, September 19, 1921). If the accused received the property with
authority to sell it (Guzman vs. CA, 99 Phil. 703), or money with authority to use it to
buy palays (Carganillo vs. People, G.R. No. 182424, September 22, 2014), or with full
freedom and discretion on how to use it to facilitate its remittance to BIR as payment
of tax and reduce the amount due (Velayo vs. People, G.R. No. 204025, November 26,
2014), his possession is juridical. Thus, failure of the agent to return it is estafa
(Guzman v. Court of Appeals, 99 Phil. 703; Tria vs. People, G.R. No. 204755,
September 17, 2014).

A franchise holder must personally operate the motor vehicle. That is the
reason why government regulation prohibits operator of motor vehicle from leasing it.
In the eye of the law the driver of taxi or passenger jeepneyunder boundary
arrangement 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 such as bank teller, collector or cash
custodian is only physical possession. Hence, misappropriation of property is qualified
theft. Abuse of confidence is present since the property is accessible to the employee
(People v. Locson, G.R. No. L-35681, October 18, 1932; Matrido vs. People, G.R. No.
179061, July 13, 2009; Benabaye vs. People, G.R. No. 203466, February 25, 2015;
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Chua-Burce vs. CA, G.R. No. 109595, April 27, 2000; Balerta vs. People, G.R. No.
205144, November 26, 2014). However, if the employee is an officer of the
companywith discretion on how to use property or fund of the company,his possession
is juridical; hence, misappropriation thereof is estafa. Thus, the following officers are
liable for estafa through misappropriation (1) a corporate officer with discretion option
on how to use bending machine without the participation of the corporation(Aigle vs.
People, G.R. No. 174181, June 27, 2012); (2) bank President with discretion on how to
administer fund (People vs. Go, G.R. No. 191015, August 6, 2014), and (3) Liaison
Officer of a pawnshop with discretion on how to secure or renew licenses and permits
(Gamboa vs. People, G.R. No. 188052, April 21, 2014).

In robbery with intimidation of persons, the intimidation consists in creating


fear in the mind of a person in view of a risk or evil that may be impending, real or
imagined. Such fear of injury to person or property must continue to operate in the
mind of the victim at the time of the delivery of the money. Threat of prosecution and
confiscation of the logs by DENR officers is an intimidation within the meaning of
robbery (Sazon vs. Sandiganbayan, G.R. No. 150873, February 10, 2009).

c. Lost property - 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).

d. Qualified theft - If the property is not accessible to the employee, taking it is


simple theft (Viray vs. People, G.R. No. 205180, November 11, 2013). On the other
hand, if the property is accessible to the employee, taking it is qualified theft because
of the circumstance of abuse of confidence (Yongco vs. People,G.R. No. 209373, July
30, 2014).

61. Arson Destructive arson is characterized as heinous crime; while simple


arson under PD No. 1613 is a crime manifesting a lesser degree of perversity. Simple
arson contemplates the malicious burning of property not included in Article 320 of the
RPC (People vs. Macabando, GR No. 188708, July 31, 2013). Burning of inhabited
house or dwelling or personal property is simple arson under Section 3 of P.D. No.
1613 because it is not included in Article 320 of RPC.

If the main objective is to kill the victim in a building, and fire is resorted to as
the means to accomplish such goal, the crime committed is murder only. Murder
qualified by means of fire absorbs arson since the latter is an inherent means to
commit the former (People vs. Cedenio, G.R. No. 93485, June 27, 1994). Single act of
burning the building to kill two persons constitutes compound crime of double
murders (People vs. Gaffud, G.R. No. 168050, September 19, 2008).

One has deliberately set fire to a building is presumed to have intended to burn
the building (People vs. De Leon, G. R. No. 180762, March 4, 2009). Since intent to
burn is presumed, intent to kill must be established beyond reasonable doubt. Failure
to show intent to kill, the accused shall be convicted of arson with homicide and not
murder (People vs. Baluntong, G.R. No. 182061, March 15, 2010).

If the main objective is to burn the building, 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).

If the objective is to kill, and in fact the offender has already done so, and arson
is resorted to as a means to cover up the killing, the offender may be convicted of two
separate crimes of either homicide or murder, and arson (People vs. Cedenio, G.R. No.
93485, June 27, 1994).

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62. Bigamy After the consummation of the crime of bigamy, declaration of


nullity of first marriage and/or second marriage is not a defense on the following
grounds:

First ground - After the consummation of bigamy, subsequent declaration of


nullity of the first and/or the second marriage is not a defense since it is not a mode of
extinguishing criminal liability listed in Article 89 (Jarillo vs. People, GR No. 164435,
September 29, 2009).

Bigamy is consummated upon contracting second marriage despite the


subsistence of the first marriage consummates. Once the crime consummates,
criminal liability will attach to the accused and will not be extinguished except
through a mode mentioned in Article 89 of RPC as death, pardon etc. After the
consummation of bigamy or celebration of the second marriage, the criminal liability
shall not be extinguished by subsequent events such as declaration of nullity of
marriage not mentioned in Article 89 of RPC.

Second ground - To make declaration of nullity of first marriage and/or second


marriage after the consummation of the crime of bigamy as a defense 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 liability for bigamy (Tenebro vs. The Honorable Court of Appeals, G.R. No.
150758, February 18, 2004; Walter vs. People, GR No. 183805, July 03, 2013).

Third ground - To avoid criminal liability, the declaration of nullity of the first
marriage must be made previous to the consummation of bigamy, which is required by
Article 40 of the Family Code that provides: The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void. A declaration of the absolute nullity of the first
marriage is now explicitly required either as a cause of action or a ground for defense
in bigamy (People vs. Teves, G.R. No. 188775, August 24, 2011). Even though the first
marriage was contracted prior to the Family Code, the rule is the same since Article
40, which is a rule of procedure, should be applied retroactively. The reason is that as
a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo
vs. People, G.R. No. 164435, June 29, 2010).

Article 40 of the Family Code is only applicable if what is involved is declaration


of nullity of the first marriage. Hence, if what is involved is post-bigamy declaration of
nullity of the first marriage, this is not a defense because of the first, second and third
grounds. If what is involved is post-bigamy declaration of nullity of the second
marriage, this is not a defense because of the first and second grounds.

Post-bigamy declaration of nullity of the first or second marriage is not a


defense whether the ground for nullity is psychological incapacity (Mercado vs. Tan,
G.R. No. 137110, August 1, 2000) or lack of license and affidavit of cohabitation
(Lasanas vs. People, G.R. No. 159031, June 23, 2014, Bersamin) or even though the
declaration is obtained before the filing of the complaint for bigamy (People vs.
Odtuhan, GR No. 191566, July 17, 2013).

Exceptions:

1. In People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079, the


second marriage was celebrated one day before the issuance of the marriage license.
In this situation, the accused can use the voidness of the second marriage as a
defense in bigamy. The accused did not cause the falsification of public documents in
order to contract a second marriage. He did not fraudulently secure a Certificate of
Marriage, and later used this criminal act as basis for seeking her exculpation. The
crime committed is not bigamy under Article 349 (Santiago vs. People, G.R. No.
200233, July 15, 2015) but marriage contracted against the provisions of the law
under Article 350 (People vs. Peralta, CA-GR No. 13130-R, June 30, 1955).
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The De Lara principle is only applicable if the two requisites are applicable: (1)
the accused did not did not cause the falsification of public documents in order to
contract a second marriage. As a rule, the accused cannot use the voidness of the
second marriage as a defense in bigamy because she fraudulently secured a certificate
of marriage, and that is presenting a falsified affidavit of cohabitation instead of
marriage license (Santiago vs. People, G.R. No. 200233, July 15, 2015); and (2) the
second marriage is null and void for lack of marriage license; if the first marriage is
declared null and void due to lack of marriage license or affidavit of cohabitation, this
is not a defense because Article 40 of the Family Code required declaration of nullity
before the celebration of second marriage (Lasanas vs. People, G.R. No. 159031, June
23, 2014, Bersamin).

2. 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).

3. 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 because the first was existing when the contracted the second.

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.

X is not liable for bigamy involving the third marriage on the basis of the second
marriage since the second is null and void for being a bigamous marriage.

Other view: X is liable for bigamy involving the third marriage on the basis of
the second marriage. Although the second is null and void for being a bigamous
marriage, X should have first caused the declaration of nullity of the second marriage
for being bigamous before contracting a third marriage.

63. Illegal marriage A priest, who performed a marriage ceremony despite


knowledge that the couple had no marriage license, is liable for illegal marriage. 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 (Ronulo vs. People, G.R. No. 182438,
July 02, 2014).

64. Libel - Under Article 360 of the RPC, the publisher, and editor of
newspaper, shall be responsible for the defamations contained therein to the same
extent as if he were the author thereof. The publisher and editors cannot disclaim
liability for libelous articles that appear on their paper by simply saying they had no
participation in the preparation of the same. They cannot say that Tulfo was all alone
in the publication of Remate, on which the defamatory articles appeared. It is not a
matter of whether or not they conspired in preparing and publishing the subject
articles, because the law simply so states that they are liable as if they were the
author (Tulfo vs. People, G.R. No. 161032, September 16, 2008).

Comment is not fair if there is reckless disregard of knowing whether the


defamatory imputation is false or not. Hence, the accused cannot use the fair
comment principle as a defense. In Erwin Tulfo vs. People, G.R. No. 161032,
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September 16, 2008 - 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.

65. Incriminating an innocent person - 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 or ammunition, 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.

66. Imprudence or negligence 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, Bersamin).

There are two views on whether culpa is a crime or just a mode of committing a
crime.

First view: Culpa under Article 3 of the Revised Penal Code is not a crime but
just a mode of committing a crime. Applying this rule, there are three crimes
committed, to wit: (1) reckless imprudence resulting in homicide, (2) reckless
imprudence resulting in damage to property and (3) reckless imprudence resulting in
slight physical injuries. However, single reckless act resulting in homicide and damage
to property is a complex crime (Angeles vs. Jose, G.R. No. L-6494, November. 24,
1954). But the slight physical injuries that resulted from the same recklessness shall
be treated as a separate crime. Since this is a light felony, it cannot be made a
component of a complex crime (Lontoc, Jr. vs. Gorgonio, L37396, April 30, 1979;
People vs. Turla, G.R. No. L-26388, February 14, 1927; Gonzaga vs. People, G.R. No.
195671, Jan. 21, 2015; 1983, 2011, and 2012 Bar Exams).

Under this view, the motion to quash shall be denied because reckless
imprudence resulting in slight physical injuries and the complex crime of reckless
imprudence resulting in homicide and damage to property are separate crimes, and

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hence, the conviction of the first is not a bar to the continued prosecution of the
second.

Second view: 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. Thus the law penalizes 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;
Quizon vs. Hon. Justice of Peace, July 28, 1955, GR N L-6641; People vs. Buan, L-
25366, March 29, 1968; 1952, 1959, 1961 and 2013 Bar Exams).

Under this view, the motion to quash shall be granted because reckless
imprudence resulting in homicide, damage to property and slight physical injuries
constitute a single crime, and hence, the conviction of culpable felony involving slight
physical injuries is a bar to the continued prosecution of the same culpable felony
involving homicide and damage to property.

67. BP 22 Settled is the rule that estafa will not lie when the parties waive the
negotiable character of a check, and instead treat the same as proof of an obligation.
For instance, when there is an agreement between the parties at the time of the
issuance and postdating of the checks that the obligee shall not encash or present the
same to the bank, the obligor cannot be prosecuted for estafa because the element of
deceit is lacking (People vs. Villanueva, G.R. No. 163662, February 25, 2015,
Bersamin). In BP Blg. 22, the fact that the check is not intended to be encashed or
deposited in a bank is not a defense. This check produces the same effect as ordinary
check. What the law punishes is the issuance of a rubber check itself and not the
purpose for which the check was issued nor the terms and conditions relating to its
issuance (Cueme vs. People, G.R. No. 133325, June 30, 2000).

a. Knowledge of the payee - When the payee was informed that the checks are
not covered by adequate funds, bad faith or estafa shall not arise People vs.
Villanueva, G.R. No. 163662, February 25, 2015, Bersamin). In BP Blg. 22, the facts
that the payee had knowledge that he had insufficient funds at the time he issued the
check is immaterial as deceit is not an essential element of the offense under this
law. The gravamen of the offense under BP Blg. 22 is the issuance of a bad check;
hence, malice and intent in the issuance thereof are inconsequential (Rigor vs. People,
G.R. No. 144887, November 17, 2004).

b. No account with the bank - According to the accused, she did not own the
check that she issued to complainant as collateral. He merely borrowed it from a
friend. What BP Blg. 22 punished was the mere act of issuing a worthless check. The
law did not look either at the actual ownership of the check. The law penalizes a
person who indulges in the making and issuing of unfunded check on an account
belonging to another with the latters consent. Also, that the check was not intended
to be deposited was really of no consequence to her incurring criminal liability
under BP 22 (Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin).

c. Pre-existing obligation - 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 property from the offended
party by reason of the issuance of the check (People vs. Reyes, GR No. 157943,
September 4, 2013). Thus, In estafa, the fact that check was issued in payment of pre-
existing obligation is a valid defense (People vs. Reyes, G.R. No. 154159, March 31,
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2005). But in BP Blg. 22, it is not a valid defense (Ngo vs. People, G.R. No. 155815,
July 14, 2004). In BP Blg. 22, the check involved must be issued to apply on account
or for value. Deliberations in the Batasan Pambansa indicate that account refers to
pre-existing obligations; while for value means an obligation incurred simultaneously
with the issuance of the check.

e. Notice of dishonor To be guilty of this crime the accused must have


used the check in order to defraud the complainant. 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, supra). But receipt of
notice of dishonor is not an element of estafa through issuance of bouncing
check.

The giving of the written notice of dishonor does not only supply the proof for
the second element of violation of BP Blg. 22 arising from the presumption of
knowledge the law puts up but also affords the offender due process. The law thereby
allows the offender to avoid prosecution if she pays the holder of the check the amount
due thereon, or makes arrangements for the payment in full of the check by the
drawee within five banking days from receipt of the written notice that the check had
not been paid. The Court cannot permit a deprivation of the offender of this statutory
right by not giving the proper notice of dishonor (Resterio vs. People, G.R. No. 177438,
September 24, 2012, Bersamin).

Demand letter was given with the security guard without proof that it reached
accused and through registered mail which was returned with the notation "N/S Party
Out 12/12/05". Since there is proof that accused received the notice of dishonor, he
was acquitted. However he is still civilly liable (San Mateo vs. People, G.R. No. 200090,
March 6, 2013).

The mere presentment of the two registry return receipts was not sufficient to
establish the fact that written notices of dishonor had been sent to or served on the
petitioner as the issuer of the check. Considering that the sending of the written
notices of dishonor had been done by registered mail, the registry return receipts by
themselves were not proof of the service on the accused without being accompanied by
the authenticating affidavit of the person who had actually mailed the written notices
of dishonor, or without the testimony in court of the mailer on the fact of mailing
(Resterio vs. People, G.R. No. 177438, September 24, 2012, Bersamin).

For notice by mail, it must appear that the same was served on the addressee
or a duly authorized agent of the addressee. In fact, the registry return receipt itself
provides that [a] registered article must not be delivered to anyone but the addressee,
or upon the addressees written order, in which case the authorized agent must write
the addressees name on the proper space and then affix legibly his own signature
below it. In the case at bar, no effort was made to show that the demand letter was
received by petitioners or their agent. All that we have on record is an illegible
signature on the registry receipt as evidence that someone received the letter. As to
whether this signature is that of one of the petitioners or of their authorized agent
remains a mystery (Resterio vs. People, G.R. No. 177438, September 24, 2012,
Bersamin).

The wife of complainant verbally informed the accused that the check had
bounced did not satisfy the requirement of showing that written notices of dishonor
had been made to and received by the petitioner. The verbal notices of dishonor were
not effective because it is already settled that a notice of dishonor must be in writing
(Resterio vs. People, G.R. No. 177438. September 24, 2012, Bersamin).

Under the Negotiable Instruments Law, notice of dishonor is not required where
the drawer has no right to expect that the bank will honor the check. Since bank
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account of accused was already closed even before the issuance of the subject check,
he had no right to expect the drawee bank to honor his check. Hence, he is not
entitled to be given a notice of dishonor (Lopez vs. People, G.R. No. 166810, June 26,
2008, ).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.

f. Payment - Payment of check before the filing of information is a defense. The


spirit of B.P. Big 22, which is to protect the stability of the banking system, would not
be served by penalizing people who have 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. Payment of check after the filing of informationis not a defense.
Since there is no showing of intention to mitigate the bad effects of his issuance of the
unfunded check, then there is no equitable 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, G.R. No. 190834, November 26, 2014).

The essence of estafa through issuance of bouncing check is to punish fraud


and not to protect the integrity of the check. Damage and deceit are elements of estafa,
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 (Lim vs. People, supra).

g. Suspension of payment - Suspension of payment order issued by SEC


before the check was presented for payment is a defense in BP Blg. 22. Considering
that there was a lawful Order from the SEC, the contract is deemed suspended. Thus,
the accused has no obligation to fund the check and the complainant has no right to
present it for payment (Gidwani vs. People, GR No. 195064, January 15, 2014).
Suspension of payment order issued by SEC after three months from receipt of notice
of dishonor is not a defense in BP Blg. 22. The accused has the obligation to make
good of the check after he received the letter prior to the issuance of suspension order
(Rosario vs. Co, G.R. No. 133608, August 26, 2008).

68. RA No. 7610 - The Family Code prohibits the infliction of corporal
punishment by teacher. A schoolteacher in employing unnecessary violence on her
minor student, who even fainted, is liable for child abuse under RA No. 7610 (Rosaldes
vs. People, G.R. No. 173988, October 08, 2014, Bersamin). 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, Bersamin).

a. Sexual abuse - 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).

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If the child is 12 years old and above, and the acts of the accused constitute
sexual abuse under RA No. 7610 and rape through sexual assault or acts of
lasciviousness, he shall be prosecuted under RA No. 7610 since this law prescribed a
grave penalty (Dimakuta vs. People, G.R. No. 206513, October 20, 2015). However, if
the acts constitute sexual abuse and rape through sexual intercourse, he shall be
prosecuted under RPC since this law prescribed a graver penalty. He cannot be
prosecuted for compound crime of rape and sexual abuse because the latter is
punishable under special law. He cannot be prosecuted for both rape and sexual
abuse because of the rule on double jeopardy (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 child is under 12 years old, and the acts of the accused constitute sexual
abuse and rape or acts of lasciviousness, the latter shall be prosecuted penalized as
follows: (1) rape through sexual intercourse; (2) acts of lasciviousness with the penalty
of reclusion temporal in its medium period (Section 5 of RA No. 7610).Prior to RA No.
8353 (Rape Law), inserting finger into genital orifice is acts of lasciviousness. Hence,
reclusion temporal in its medium period under RA No. 7610 should be imposed. Under
RA No. 8353, inserting finger into genital orifice is rape through sexual assault where
the penalty is prision mayor. To impose the lighter penalty under RPC as amended by
RA 8353 is unfair to the victim. It is not the intention of RA No. 8353 to disallow the
imposition of penalty under RA No. 7610 if the victim is child subjected to sexual
abuse, who isunder 12 years of age (People vs. Chingh, G.R. No. 178323, March 16,
2011). If the crime is qualified rape through sexual assault, the Chingcase is not
applicable since RA No. 8353 prescribed a grave penalty of reclusion temporal for it
(People vs. Bonaagua, G.R. No. 188897, June 6, 2011).

69. Terrorism - 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 e.g. demand by Al Queda against the
US not to interfere with the affairs of the Muslim (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.

70. Trafficking in person - 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; People vs. Hirang, G.R. No. 223528, January 11, 2017,
Bersamin). 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).

71. Illegal recruitment - An employee may be held liable with his employer, if
the former actively and consciously participated in illegal recruitment. The employee
cannot escape liability by claiming that she was not aware that before working for her
employer in the recruitment agency, she should first be registered with the POEA.
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Illegal recruitment in large scale is malum prohibitum, not malum in se. Good faith is
not a defense (People vs. Valenciano, G.R. No. 180926, December 10, 2008).

72. RA No. 9165 - Accused were caught by police authorities on board a


speedboat carrying shabu. 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 (People vs. Chan Liu, G.R. No.
189272, January 21, 2015).

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).

For illegal possession of dangerous drugs, the prosecution must establish that
the accused freely and consciously possessed the dangerous drug without authority.
However, mere possession of dangerous drug constitutes prima facie evidence of
knowledge or animus possidendi sufficient to convict an accused in the absence of any
satisfactory explanation (Asiatico vs. People, G.R. No. 195005, September 12, 2011).

a. Use of dangerous drugs - Where residue of dangerous drugs is found and


there is a positive confirmatory test result, the accused should be charged with use
rather than possession of dangerous drugs. This would be in keeping with the intent
of the law 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).

Positive confirmatory test is an element of use of dangerous drugs. However, the


absence of such test cannot be raised as an issue for the first time on appeal (Ambre
vs. People, G.R. No. 191532. August 15, 2012).

b. Attempted sale - Poseur-buyer showed shabu for sale to poseur buyer. The
sale was aborted when the police officers immediately placed accused under arrest.
The crime committed is attempted sale (People vs. Figueroa, G.R. No. 186141, April
11, 2012).

c. Coordination with PDEA - Lack of coordination with the PDEA will not
invalidate a buy-bust operation. Such coordination is not an indispensable
requirement in buy-bust operations (People vs. Mendosa, G.R. No. 189327, February
29, 2012)

e. Seizure and custody - Although non-compliance with the prescribed


procedural requirements would not automatically render the seizure and custody of
the contraband invalid, that is true only when there is a justifiable ground for such
non-compliance, and the integrity and evidentiary value of the seized items are
properly preserved. Any departure from the prescribed procedure must then still be
reasonably justified, and must further be shown not to have affected the integrity and
evidentiary value of the confiscated contraband (People vs. Barte, G.R. No. 179749,
March 30, 2017, Bersamin).

g. Chain of custody - 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).

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h. Plea bargaining - Section 23 of RA No. 9165, any person charged under any
crime involving dangerous drugs regardless of the imposable penalty shall not be
allowed to avail of the provision on plea-bargaining.

73. RA No. 3019 In Giangan vs. People, G.R. No. 169385, August 26, 2015,
Bersamin -Giangan as the barangay chairman acted upon the honest and sincere
belief that he was then summarily abating the nuisance that a regular user of the
obstructed road had just reported to him. A further indication of the good faith of
Giangan was the turning over of the wooden posts to the police station, manifesting
that the accused were acting within the scope of their authority. Good faith means
honest, lawful intent; the condition of acting without knowledge of fraud, and without
intent to assist in a fraudulent or otherwise unlawful scheme. Also, the act
complained of was rendered inconsistent with the manifest partiality and bad faith
that the law punished. He was acquitted of violation of Section 3 (e) of RA No. 3019
because the element of evident bad faith is not present.

In People vs. Reyes, G.R. No. 177105-06, August 12, 2010, Bersamin, the
Court of Appeals (CA) rendered a decision reinstating the title of the complainant.
Provincial Adjudicator despite knowledge of the CA decision still rendered his decision
in a DARAB Case that completely contradicted the CA decision by invalidating title of
the complainant. He displayed evident bad faith and manifest partiality by his
arrogant refusal to recognize and obey the CA decision causing undue injury to the
complainant and giving unawaarnted benefits to private individuals in violation of
Section 3 (e) of RA No. 3019.

In usurpation of judicial function, the accused, who is not a judge, attempts to


perform an act the authority for which the law has vested only in a judge. However, the
petitioner's task as Provincial Adjudicator when he rendered judgment in a DARAB
case to adjudicate the claims of the opposing parties. As such, he performed a quasi-
judicial function, closely akin to the function of a judge of a court of law. He could not
be held liable for usurpation of judicial function were.

a. Arias principle - To apply the Arias rule for purposes of exonerating an


accused or respondent, the following requisites must be present: (1) that the public
officer in approving the release of public fund must be relying to a reasonable extent
on his subordinates (Jaca vs. People, G.R. No. 166967, January 28, 2013); (2) that the
documents involving the release of funds must be so voluminous so as to preclude
him from studying each one carefully (Santillano vs. People, G.R. Nos. 175045-46,
March 03, 2010); (3) that the public officer has no foreknowledge of existing anomaly
(Escara vs. People, G.R. No. 164921, July 8, 2005); and that there is not deviation
from ordinary procedure in the release of fund, which necessitate further investigation
(Cruz vs. The Hon. Sandiganbayan, G.R. No. 134493, August 16, 2005; Rivera vs.
People, G.R. No. 156577, December 03, 2014).

City treasurer, city accountant and city administrator allowed the release of
cash advance in favor of a paymaster despite the fact that she has previous
unliquidated cash advances. They 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 of causing undue injury to the government through gross inexcusable
negligence. This is called conspiracy by silence (Jaca vs. People, G.R. No. 166967,
January 28, 2013).

b. Inducement by means of money - Under Section 3 (a) of RA No. 3019, a


public officer, who persuades, induces or influences another public officer to perform
an act constituting a violation of rules and regulations or an offense in connection
with the official duties of the latter, shall be punished for corruption. However, 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
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regulations by means of consideration, reward, payment or remuneration (Baviera vs.


Zoleta, G.R. No. 169098, Oct. 12, 2006).

c. Transaction or contract - Section 3 (b) of RA No. 3019 is limited only to


contracts or transactions involving monetary consideration where the public officer
has the authority to intervene under the law. Preliminary investigation is not a
contract or transaction within the contemplated of Section 3 (b). Hence, requesting or
receiving money in connection with a preliminary investigation is not a violation of this
provision (Soriano, Jr. vs. Sandiganbayan, G.R. No. 65952, July 31, 1984; People vs.
Sandiganbayan. and Justice Secretary Perez, G.R. No. 188165, December 11, 2013,
Bersamin).

d. SALN - Failure to file SALN as required by law is a violation of Section 8 of


RA No. 6713 and Section 7 of RA No. 3019 (Concerned Taxpayer vs. Doblada, A.M. No.
P-99-1342, June 8, 2005). Since both laws provide a penalty for failure to file SALN,
the offender should only be prosecuted and punished either under one or the other.

74. Money laundering - Money laundering is committed by any person who,


knowing that any monetary instrument or property represents, involves, or relates to
the proceeds of any unlawful activity:(a) transacts said monetary instrument or
property;(b) converts, transfers, disposes of, moves, acquires, possesses or uses said
monetary instrument or property;(c) conceals or disguises the true nature, source,
location, disposition, movement or ownership of or rights with respect to said
monetary instrument or property;(d) attempts or conspires to commit money
laundering offenses referred to in paragraphs (a), (b) or (c);(e) aids, abets, assists in or
counsels the commission of the money laundering offenses referred to in paragraphs
(a), (b) or (c) above; and(f) performs or fails to perform any act as a result of which he
facilitates the offense of money laundering referred to in paragraphs (a), (b) or (c)
above. Money laundering is also committed by any covered person who, knowing that
a covered or suspicious transaction is required under this Act to be reported to the
Anti-Money Laundering Council (AMLC), fails to do so (Section 4 of RA No. 9160 as
amended by RA No. 10365).

Unlawful activity refers to any act or omission or series or combination thereof


involving or having direct relation to the following: (1) piracy, murder, distructive
arson, kidnapping for ransom, crimes involving dangerous drugs; (2) hijacking,
carnapping, fencing, robbery, qualified theft, and estafa; (3) bribery and corruption of
public officers, frauds and Illegal exactions, malversation, graft and corruption, and
plunder; (4) forgeries and counterfeiting; and (5) child pornography, photo-video
voyeurism, child abuse, crimes involving explosives and unlicensed firearm, trafficking
in person, illegal recruitment, terrorism and conspiracy to commit terrorism, and
financing of terrorism and; smuggling, and illegal gambling.

75. Plunder - The elements of plunder are:

First - 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.

Second - That he amassed, accumulated or acquired ill-gotten wealth through a


combination or series of the following overt or criminal acts:

1. 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

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funds or fraud disposition of government asset to P100 million by diverting the


construction of road leading to his farm instead of the poblacion).

Can the Senator use the defense in malversation that he is not responsible for
the misuse of his PDAP since it is the duty of the appropriate implementing agency of
the government to check that the recipient of the fund is not bogus? No. Assuming
that the duty to check that the recipient of the Senators PDAP is not bogus belongs to
the appropriate agency of the government, the Senator is still liable since malversation
can be committed through culpa.

2. 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).

3. 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);

4. 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;

5. 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

6. 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).

Third - 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).

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.

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
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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.

There are two structures of multiple conspiracies, namely: wheel or circle


conspiracy and chain conpiracy. Under the wheel or circle conspiracy, there is a single
person or group (the "hub") dealing individually with two or more other persons or
groups (the "spokes"). Under the chain conspiracy, usually involving the distribution of
narcotics or other contraband, in which there is successive communication and
cooperation in much the same way as with legitimate business operations between
manufacturer and wholesaler, then wholesaler and retailer, and then retailer and
consumer (Fernan, Jr. vs. People, G.R. No. 145927, August 24, 2007). An illustration
of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy
alleged in the information for plunder filed against former President Estrada and his
co-conspirators. Former President Estrada was the hub while the spokes were all the
other accused individuals. The rim that enclosed the spokes was the common goal in
the overall conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten
wealth (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin).

In case of several individuals are charged with plunder, the law requires that
there must be a main plunderer and her co-conspirators, who may be members of her
family, relatives by affinity or consanguinity, business associates, subordinates or
other persons (GMA vs. People, G.R. No. 220598, July 19, 2016, Bersamin). In the
Enrile vs. People, G.R. No. 213455, August 11, 2015, if the allegation is true, the main
plunder is Senator Enrile. In People vs. Estrada, the main plunderer is the hub or
President Estrada.

If the main plunderer is unidentified, the total amount allegedly acquired by


several accused shall be divided for purposes of determining if the P50 million
threshold had been reached. In GMA vs. People, G.R. No. 220598, July 19, 2016, ten
persons, where charged of amassing, accumulating and acquiring ill-gotten wealth
aggregating to P365,997,915.00 without identifying the main plunderer. As such, each
of the 10 accused would account for the aliquot amount of only P36,599,791.50, or
exactly 1/10 of the alleged aggregate ill-gotten wealth, which is far below the threshold
value of ill-gotten wealth required for plunder. In this situation, plunder is not
committed.

If the main plunderer is identified, the total amount acquired by him and his co-
conspirators shall be considered in determining if the P50 million threshold had been
reached. For example, if GMA was identified as a main plunder, her acts and that of
the other conspirators in amassing, accumulating and acquiring ill-gotten wealth
aggregating to P365,997,915.00 shall be considered for purposes of determining if the
P50 million threshold had been reached. In this situation, plunder is committed.

In Enrile vs. People, G.R. No. 213455, August 11, 2015, it was stated that in
the crime of plunder, the amount of ill-gotten wealth acquired by Senator, his
assistant, and a private individuals in a conspiracy is immaterial for as long as the
total amount amassed, acquired or accumulated by them is at least P50 million.

67. Wire-tapping - 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. The law covers even those recorded by persons privy to the private
communications. The law is applicable even if the conversation being recorder pertains
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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.

66. Hazing - Prior to RA No. 8049, the consent of the victim to hazing and lack
of intent to kill will negate dolo. Hence, the crime committed only reckless imprudence
resulting in homicide (Villareal vs. People, G.R. No. 151258, February 1, 2012).
Congress instead of amending RPC created a special law (RA No. 8049) to make
hazing malum prohibitum, where consent of the victim and lack of intent to kill is not a
defense and the mitigating circumstance of praeter intentionem shall not be
appreciated (Dungo vs. People, G.R. No. 209464, July 01, 2015).

The elements of the crime of hazing are: (1) That there is an initiation rite or
practice as a prerequisite for admission into membership in a fraternity, sorority or
organization; (2) That there must be a recruit, neophyte or applicant of the fraternity,
sorority or organization; and (3) That the recruit, neophyte or applicant is placed in
some embarrassing or humiliating situations such as forcing him to do menial, silly,
foolish and other similar tasks or activities or otherwise subjecting him to physical or
psychological suffering or injury (Dungo vs. People, supra; People vs. Bayabos, G.R. No.
171222, February 18, 2015). Organization includes companies, PNP, AFP (People vs.
Bayabos). Even the president, manager, director or other responsible officer of a
corporation engaged in hazing as a requirement for employment are covered by the law
(Dungo vs. People, supra).

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 hazing, criminal responsibility is based on (1) actual participation in


inflicting physical harm and inducement, (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).

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).

The accused claim that the information avers a criminal charge of hazing by
actual participation, but the only offense proved during the trial was hazing by
inducement. The information alleged that the accused during a planned initiation rite
and being then officers of APO fraternity used personal violence upon a neophyte
resulting to his death. The "planned initiation rite" as stated in the information
included the act of inducing victim to attend it. Accused not only induced victim to be
present at the resort, but they actually brought him there. The hazing would not have
been accomplished were it not for the acts of the petitioners that induced the victim to
be present (Dungo vs. People, supra).
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67. Cybercrime - The following constitute cybercrime offenses: (1) Offenses


against the confidentiality, integrity and availability of computer data and systems; (2)
Computer-related offenses; and (3) content-related offenses (cyber libel, cybersex and
cyber child pornography).

68. Confidentiality of computer system - Offenses against the confidentiality,


integrity and availability of computer data and systems are cybercrime under Section
4 of RA No. 10175.

Computer data refers to any representation of facts, information, or concepts in


a form suitable for processing in a computer system including a program suitable to
cause a computer system to perform a function and includes electronic documents
and/or electronic data messages whether stored in local computer systems or online.

Computer system refers to any device or group of interconnected or related


devices, one or more of which, pursuant to a program, performs automated processing
of data. It covers any type of device with data processing capabilities including, but
not limited to, computers and mobile phones. The device consisting of hardware and
software may include input, output and storage components which may stand alone
or be connected in a network or other similar devices. It also includes computer data
storage devices or media.

Offenses against the confidentiality, integrity and availability of computer data


and systems are:

a. Illegal Access Illegal access refer is committed by any person, who shall
access to the whole or any part of a computer system without right. Ethical hackers
are professionals who employ tools and techniques used by criminal hackers but
would neither damage the target systems nor steal information. Since the ethical
hacker does his job with prior permission from the client, such permission would
insulate him from the coverage cybercrime law on illegal access (Disini vs. Secretary of
Justice, G.R. No. 203335, February 11, 2014).

b. Illegal Interception Illegal interception is committed by any person, who


shall intercept by technical means without right of any non-public transmission of
computer data to, from, or within a computer system including electromagnetic
emissions from a computer system carrying such computer data.

c. Data Interference Data interference is committed by any person, who shall


intentionally, or recklessly alter, damage, delete or deteriorate computer data,
electronic document, or electronic data message, without right, including the
introduction or transmission of viruses. This is considered as cyber vandalism.

d. System Interference System interference is committed by any person, who


shall intentionally alter or recklessly hinder or interfere with the functioning of a
computer or computer network by inputting, transmitting, damaging, deleting,
deteriorating, altering or suppressing computer data or program, electronic document,
or electronic data message, without right or authority, including the introduction or
transmission of viruses.

e. Misuse of Devices Misuse of devise is committed by any person, who shall


use, produce, sell, procure, import, distribute, or otherwise make available, or
possession with intent to use, without right any of the following: (1) a device, including
a computer program, designed or adapted primarily for the purpose of committing any
cybercrime; or (2) a computer password, access code, or similar data by which the
whole or any part of a computer system is capable of being accessed with intent that it
be used for the purpose of committing any cybercrime;

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f. Cyber-squatting Cyber-squatting is committed by any person, who shall


acquire a domain name over the internet in bad faith to profit, mislead, destroy
reputation, and deprive others from registering the same, if such a domain name is: (a)
similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration; (b)
identical or in any way similar with the name of a person other than the registrant, in
case of a personal name; and (c) acquired without right or with intellectual property
interests in it.

69. Computer-related offense - The following are computer-related offenses:

a. Computer-related forgery - Computer-related forgery is committed by any


person, who shall input, alter, or delete any computer data without right resulting in
inauthentic data with the intent that it be considered or acted upon for legal purposes
as if it were authentic, regardless whether or not the data is directly readable and
intelligible; or who shall knowingly use computer data which is the product of
computer-related forgery for the purpose of perpetuating a fraudulent or dishonest
design.

b. Computer-related Fraud - Computer-related fraud is committed by any


person, who without authority shall input, alter, or delete computer data or program
or interfere in the functioning of a computer system with fraudulent intent causing
damage thereby. The penalty is lower if no damage has yet been caused.

c. Computer-related identity theft - Computer-related identity theft is


committed by any person, who shall intentionally acquire, use, misuse, transfer,
posses, alter or delete identifying information belonging to another, whether natural or
juridical, without right. The penalty is lower if no damage has yet been caused.

Using the name of another person and his pictures in opening a facebook
account without authority constitutes cybercrime offense.

71. Content-related offenses - Content-related offenses includes cyber libel,


cybersex and cyber child pornography. A prosecution for cybercrime offenses shall be
without prejudice to any liability for violation of any provision of the Revised Penal
Code or special laws (Section 7). Despite of Section 7, the offender cannot be
prosecuted for cyber libel or cyber child pornography under RA No. 10175 in addition
to libel under RPC or child pornography under RA No. 9775 since this will offend the
constitutional rule on double jeopardy (Disini vs. Secretary of Justice, G.R. No.
203335, February 11, 2014).

a. Cyber libel 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 Revised 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).

Cyber libel is an unlawful or prohibited act of libel as defined in Article 355 of


RPC committed through a computer system or any other similar means which may be
devised in the future. In case libel is committed through use of information and
communications technologies, the penalty for libel under Article 355 of RPC shall be
increased one degree higher pursuant to Section 6 of RA No. 10175.

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
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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).

b. Cybersex Cybersex under RA No. 10175 is committed by any person, who


shall wilfully engage, maintain, control, or operate, directly or indirectly, any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.

The element of "engaging in a business" is necessary to constitute the illegal


cybersex. The law actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and
pornography, i.e., by webcam. The deliberations of the Bicameral Committee of
Congress show a lack of intent to penalize a "private obscene showing between two
private persons although. (Disini vs. Secretary of Justice, G.R. No. 203335, February
11, 2014).

If the commission of cybersex involves lascivious exhibition of sexual organs or


sexual activity of a child, the offender may be prosecuted for child pornography under
RA No. 9775 qualified by the circumstance of using computer system under RA No.
10175. However, the offender cannot be prosecuted for both cybersex and qualified
(or cyber) child pornography because of the rule on double jeopardy (Disini vs.
Secretary of Justice, G.R. No. 203335, February 11, 2014).

If the commission of cybersex involves the maintenance of trafficked victim, the


offender may be prosecuted for trafficking in person under RA No. 9208.

c. Cyber child pornography - In RA No. 9208 child pornography is


committed by electronic, mechanical, digital, optical, magnetic or any other
means, responsible persons are liable for child pornography under RA No.
9775. RA No. 9775 is comprehensive enough to include cyber pornography by
requiring a child to show her private parts to a client through the internet. If
child pornography is committed through a computer system, the crime committed
is cyber child pornography under RA No. 10175 and the penalty is one degree higher.

72. SPAM - Unsolicited commercial communications is committed by any


person, who shall transmit commercial electronic communication with the use of
computer system which seeks to advertise, sell, or offer for sale products and services.
Transmission of unsolicited commercial communications is also known as "spam." In
Disini case, the provision of RA No. 10175 prohibiting spam is declared
unconstitutional. It was held that to prohibit the transmission of unsolicited ads
would deny a person the right to read his emails, even unsolicited commercial ads
addressed to him. The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.

73. Other cybercrime offense - Other cybercrime offense is also committed by


any person who shall wilfully abet or aid in the commission of any of the cybercrime
offenses or any person who wilfully attempts to commit any of the cybercrime offenses
(Section 5).

The provision on aiding or abetting cybercrime in relation to cyber libel, child


pornography and unsolicited commercial communication was declared
unconstitutional in the Disini case. The terms "aiding or abetting" constitute broad
sweep that generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages. Hence, this provision that punishes
"aiding or abetting" libel on the cyberspace is a nullity since it encroaches upon
freedom of speech on grounds of overbreadth or vagueness of the statute.
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UP, LAW CENTER, UST, Villasis Law Center, CPRS, Magnificus Review, Power house

A blogger who originally posted a libellous or child pornographic message is


liable for cybercrime. But netizens, who merely reacted to the defamatory or child
pornographic message on the Facebook by clicking button for "Like," "Comment" or
"Share" or on a Tweeter account by retweeting it, are not liable for aiding or abetting
cybercrime.

But the provision on aiding or abetting cybercrime in relation to other


cybercrimes such as illegal access, illegal interception, data interference etc. is
declared constitutional.

74. Qualifying circumstance of use of information technology - Use of


information and communications technologies in committing felony or offense under
special law is a qualifying circumstance under Section 6 of RA No. 10175.

Under Section 6 of RA No. 10175, the penalty for crimes punishable under
special laws committed through and with the use of information and communication
technologies shall be one degree higher than that provided the law. However, this
provision requires the application of the rules on graduation of penalties under the
Revised Penal Code. Hence, Section 6 finds application only if special law involved has
adopted the technical nomenclature of the penalties of Revised Penal Code.

For more updated discussions, insights and latest jurisprudence, please


buy the 2017 Edition Criminal Law Reviewer by Judge Marlo Bermejo
Campanilla. Available at Rex Bookstore

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