You are on page 1of 17

BAR 2016 CRIMINAL LAW

ANSWERS

Explain the application of the Indeterminate Sentence Law (ISL). (5%)

SUGGESTED ANSWER:

Indeterminate Sentence Law (ISLAW): How to determine maximum and


minimum penalties
(Act no 4103 as amended)

The Indeterminate Sentence Law is mandatory in all cases, EXCEPT if the


accused will fall in any of the following exceptions:

1. if sentenced with a penalty of death or life imprisonment


2. if convicted of treason, conspiracy, proposal to commit treason
3. if convicted of misprision of treason, sedition, rebellion or espionage
4. if convicted of piracy
5. if the offender is a habitual delinquent
6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief executive
8. where the maximum term of imprisonment does not exceed 1 year
(important!)
9. if convicted by final judgement at the time of the effectivity of Act No. 4103
10. if penalized with suspension or destierro

If accused fall in any of the foregoing exceptions. DO NOT APPLY ISLAW!

ISLAW applies to offenses punished by Special Law and Revised Penal Code.

Why is ISLAW mandatory?


In the application of the Indeterminate Sentence Law the judge will get the
maximum penalty and likewise the minimum penalty. If the accused was
already able to serve the minimum term of his indeterminate sentence and
upon the approval of the Board, the accused now becomes eligible for parole.
ISLAW is favorable to the accused.

If the accused was granted parole and violated some conditions of the
parole, What will happen?
A warrant of arrest will be issued by the court and the accused will be made to
serve the rest of the remaining or unexpired portion of his sentence. (But in
probation you go back to number 1, serving of sentence will be from the
beginning)

Application of ISLAW:

How to get maximum and minimum penalty in Special Law:


1. The maximum penalty should NOT exceed the maximum provided for by
that law.
2. The minimum penalty should NOT fall below the minimum provided by the
law.

How to get maximum and minimum penalty in Revised Penal Code:


Example: In the crime of homicide, under the Revised Penal Code, the offender
is sentenced to reclusion temporal.
The maximum penalty under the Indeterminate Sentence Law is reclusion
temporal. But reclusion temporal is a divisible penalty consisting of maximum,
medium and minimum periods. Which period will we place the maximum term
of the Indeterminate Sentence?

Guide for determining the maximum penalty:


1. Determine the entire range of the penalty
2. Determine if there is mitigating or aggravating circumstance

Which period will the maximum penalty be placed?


In pursuant to art 64, when there is no mitigating and no aggravating
circumstance, it should be placed at the medium period. Thus, the maximum
penalty for the example above is reclusion temporal in the medium period.

What is the minimum penalty now?


In getting the minimum penalty, the rule is to simply get the penalty one (1)
degree lower from the maximum penalty without taking into account the
mitigating and aggravating circumstance. Thus, the penalty one degree lower
from reclusion temporal, without taking into account any mitigating or
aggravating circumstance, is prision mayor. Prision mayor is now the minimum
penalty for our example.

Important: If your maximum penalty is wrong, it follows that the minimum


penalty will also be wrong.

Again, prision mayor is a divisible penalty. Which period can it be placed?


Under the Indeterminate Sentence Law, it would depend upon the discretion of
the court on which period to place it. Thus, the minimum penalty is prision
mayor in any of its period.

Factors that could affect the imposition of minimum penalty:


1. Age
2. Conduct during trial
3. Mental or physical condition

Suppose in the example above, 1 aggravating circumstance was proven. What


is now the maximum penalty?
It would still be reclusion temporal, but it shall be placed in the maximum
period because of the presence of 1 aggravating circumstance.

How about the minimum penalty?


It would still be 1 degree lower from reclusion temporal, which is prision
mayor. In which period? It shall be discretionary upon the court.

(More examples)

1 mitigating but NO aggravating


maximum penalty: reclusion temporal in the minimum period
minimum penalty: prision mayor in any period

2 mitigating, NO aggravating (privileged mitigating)


maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period
The preceding example is an exception to the rule. If there is a privileged
mitigating circumstance, we take it into account first in order to obtain the
proper maximum penalty. Then, from that maximum penalty, we obtain the
proper minimum penalty by getting the penalty 1 degree lower. Same rule
applies as to the period of the minimum penalty.

Remember: It will never become a privileged mitigating circumstance if there is


an aggravating circumstance present. 8 mitigating and 1 aggravating will never
become privileged mitigating circumstance.

3 mitigating, NO aggravating
maximum penalty: prision mayor in the minimum period
minimum penalty: prision correctional any period
In the preceding example, there are 3 mitigating circumstance present and no
aggravating circumstance. The first two mitigating circumstance shall be a
privileged mitigating circumstance. Thus, the penalty will be reduced by 1
degree from reclusion temporal to prision mayor. The 3rd mitigating
circumstance shall place the penalty in the minimum period.

4 mitigating, NO aggravating
maximum penalty: prision correctional in the medium period (2 privileged
circumstance. Thus we lower by 2 degrees)
minimum penalty: arresto mayor any period

5 mitigating, NO aggravating
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

At most we can only lower by 2 degrees. Thus, if there are 6 mitigating


circumstance and NO aggravating:
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

How is Indeterminate Sentence Law applied in complex crimes (Article


48)?
A complex crime is punished by the most serious offense and shall be imposed
in its maximum period.

Example: Estafa through falsification of public documents.


Under the Revised Penal Code, falsification of public documents (Article 171) is
a more serious offense punished by prision mayor than estafa (Article 315),
punished only by prision correctional.

Thus, applying the Indeterminate Sentence Law, the maximum penalty for
estafa through falsification of public documents shall be prision mayor in the
maximum period. Minimum penalty shall be prision correctional, any period.

Suppose there was 1 mitigating circumstance proven. Maximum penalty would


still be prision mayor in the maximum period. In pursuant to Article 48, even if
there is a mitigating circumstance present, it should still be imposed at the
maximum period.

How about if there are 2 mitigating circumstance and no aggravating?


The rule is, if it is a privileged mitigating circumstance, we lower by the penalty
by one degree but still place it at the maximum period. Thus, the maximum
penalty shall be prision correctional in the maximum period.
4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period

-------------------------------
APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED
In the case of People vs. Gabres , the Court has had occasion to so state that-
Under the Indeterminate Sentence Law, the maximum term of the penalty
shall be that which, in view of the attending circumstances, could be properly
imposed under the Revised Penal Code, and the minimum shall be within the
range of the penalty next lower to that prescribed for the offense. The penalty
next lower should be based on the penalty prescribed by the Code for the
offense,without first considering any modifying circumstance attendant to the
commission of the crime.
The determination of the minimum penalty is left by law to the sound
discretion of the court and it can be anywhere within the range of the penalty
next lower without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered only in the imposition
of the maximum term of the indeterminate sentence.The fact that the amounts
involved in the instant case exceed P22,000.00 should not be considered in the
initial determination of the indeterminate penalty; instead, the matter should
be so taken as analogous to modifying circumstances in the imposition of the
maximum term of the full indeterminate sentence.This interpretation of the law
accords with the rule that penal laws should be construed in favor of the
accused. Since the penalty prescribed by law for the estafa charge against
accused-appellant is prision correccional maximum to prision mayor,
minimum, the penalty next lower would then be prision correccional minimum
to medium .Thus, the minimum term of the indeterminate sentence should be
anywhere within six (6) months and one (1) day to four (4) years and two (2)
months . . .(People v. Saley; GR 121179, July 2, 98)

II

[a] Define malfeasance, misfeasance and nonfeasance. (2.5%)

[b] Differentiate wheel conspiracy and chain conspiracy. (2.5%)

SUGGESTED ANSWER:

A. Malfeasance - Doing of an act which a public officer should not have done

Misfeasance - Improper doing of an act which a person might lawfully do

Nonfeasance - Failure of an agent to perform his undertaking for the principal

B. Wheel conspiracy vs. chain conspiracy

Wheel Conspiracy Chain Conspiracy

There is a single person or group There is successive communication and


(the hub) dealing individually with cooperation in much the same way as with
two or more other persons or legitimate business operations between
groups (the spokes); and manufacturer and wholesaler, then wholesaler
and retailer, and then retailer and consumer.
(Estrada vs. Sandiganbayan)

Usually involves distribution of narcotics or


other contraband.

Shared criminal purpose; the Single conspiracy, wherein each person acts
ringleader or group which deals separately and successively; each person is
with other members or groups is responsible for a distinct act within the overall
called the hub, while the other plan.
parties that maintain the individual
relationship with the hub are the
spokes.

The chain conspiracy is a single conspiracy even


though each member of the conspiracy may not
know every other member or each member may not
be involved in all the activities of the conspiracy.

III

Pedro is married to Tessie. Juan is the first cousin of Tessie. While in the
market, Pedro saw a man stabbing Juan. Seeing the attack on Juan, Pedro
picked up a spade nearby and hit the attacker on his head which caused the
latter's death.

Can Pedro be absolved of the killing on the ground that it is in defense of a


relative? Explain. (5%)

SUGGESTED ANSWER:

No, Pedro cannot be absolved of the killing on the ground of defense of a


relative.

Under the Revised Penal Code, defense of a relative only applies if it is in


defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or his relatives by affinity in
the same degrees.

In this case, Juan, as the first cousin of his wife, is not within the same
degrees of affinity as aforementioned. Hence, Pedro cannot avail of the ground
of defense of a relative.

He may, however, invoke the defense on the person or rights of a stranger,


provided that there is unlawful aggression and reasonable necessity of the
means employed to prevent and repel it, and that Pedro is not induced by any
revenge, resentment or other evil motive.

IV

Jojo and Felipa are husband and wife. Believing that his work as a lawyer is
sufficient to provide for the needs of their family, Jojo convinced Felipa to be a
stay-at-home mom and care for their children. One day, Jojo arrived home
earlier than usual and caught Felipa in the act of having sexual intercourse
with their female nanny, Alma, in their matrimonial bed. In a fit of rage, Jojo
retrieved his revolver from inside the bedroom cabinet and shot Alma,
immediately killing her.

[a] Is Art. 247 (death or physical injuries inflicted under exceptional


circumstances) of the Revised Penal Code (RPC) applicable in this case given
that the paramour was of the same gender as the erring spouse? (2.5%)

[b] Is Felipa liable for adultery for having sexual relations with Alma? (2.5%)

SUGGESTED ANSWER:

A. No, Article 247 is not applicable in this case.

Under Article 247 of the Revised Penal Code, any legally married person who
having surprised his spouse in the act of committing sexual intercourse with
another person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro. In this case, Article 247 cannot apply since sexual
intercourse cannot be done by a woman with another woman.

B. No, Felipa is not liable for adultery.

Under the Revised Penal Code, adultery is committed by any married woman
who shall have sexual intercourse with a man not her husband. In this case,
Felipa was caught in the act with another woman, and not with a man. Also,
sexual intercourse cannot be transpire between two people who are both
women.

Governor A was given the amount of PIO million by the Department of


Agriculture for the purpose of buying seedlings to be distributed to the farmers.
Supposedly intending to modernize the farming industry in his province,
Governor A bought farm equipment through direct purchase from XY
Enterprise, owned by his kumpare B, the alleged exclusive distributor of the
said equipment. Upon inquiry, the Ombudsman discovered that B has a
pending patent application for the said farm equipment. Moreover, the
equipment purchased turned out to be overpriced. What crime or crimes, if
any, were committed by Governor A? Explain. (5%)

SUGGESTED ANSWER:

Governor A committed the crime of technical malversation. Under the Revised


Penal Code, technical malversation is committed when the following elements
are present: the offender is a public officer; there are public funds or property
under his administration; such fund or property were appropriated by law or
ordinance for a particular public use; he applies such public fund or property
to any public use other than for which it was appropriated for. In this case, the
P 10 Million given by the Department of Agriculture was appropriated for the
purpose of buying seedlings. Thus, Governor As act of using these funds to
buy farming equipment constitute technical malversation.

Governor A is also liable for violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act (RA 3019). Under said law, the following are the elements
of Section 3(e): that the offender is a public offender; the act was done in the
discharge of the public officers official, administrative or judicial functions; the
act was done through manifest partiality, evident bad faith or gross
inexcusable negligence; and the public officer caused undue injury to any
party, including the Government, or gave any unwarranted benefits, advantage
or preference. In this case, the failure to conduct a public bidding, as well as
the purchase of the overpriced equipment, caused undue damage to the
Government, while giving unwarranted benefits to his kumpare.

VI

Ofelia, engaged in the purchase and sale of jewelry, was charged with violation
of PD 1612, otherwise known as the Anti-Fencing Law, for having been found
in possession of recently stolen jewelry valued at Pl 00,000.00 at her jewelry
shop. Her defense is that she merely bought the same from Antonia and
produced a receipt covering the sale. She presented other receipts given to her
by Antonia representing previous transactions. Convicted of the charge, Ofelia
appealed, arguing that her acquisition of the jewelries resulted from a legal
transaction and that the prosecution failed to prove that she knew or should
have known that the pieces of jewelry which she bought from Antonia were
proceeds of the crime of theft.

[a] What is a "fence" under PD 1612? (2.5%)

[b] Is Ofelia liable under the Anti-Fencing Law? Explain. (2.5%)

SUGGESTED ANSWER:

A. Under P.D. 1612, "fence" includes any person, firm, association corporation
or partnership or other organization who/which commits the act of fencing.
"Fencing" is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or
shall buy and sell, or in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to him, to have
been derived from the proceeds of the crime of robbery or theft.

B. Yes, Ofelia is liable under the Anti-Fencing Law.

Under P.D. 1612, mere possession of any good, article, item, object, or
anything of value which has been the subject of robbery or thievery shall be
prima facie evidence of fencing. In this case, Ofelia was found in possession of
recently stolen jewelry. Hence, she is liable for violation of the Anti-Fencing
Law.

VII

Val, a Nigerian, set up a perfume business in the Philippines. The investors


would buy the raw materials at a low price from Val. The raw materials
consisted of powders, which the investors would mix with water and let stand
until a gel was formed. Val made a written commitment to the investors that he
would buy back the gel at a higher price, thus assuring the investors of a neat
profit. When the amounts to be paid by Val to the investors reached millions of
pesos, he sold all the equipment of his perfume business, absconded with the
money, and is nowhere to be found. What crime or crimes were committed, if
any? Explain. (5%)
SUGGESTED ANSWER:

Val committed the crime of estafa under par. 2(a) Article 315 of the Revised
Penal Code. The elements of estafa under said law are as follows: there must be
a false pretense, fraudulent acts or fraudulent means; such false pretense,
fraudulent act or fraudulent means must be made or executed prior to or
simultaneously with the commission of the fraud; the offended party must have
relied on the false pretense, fraudulent act or fraudulent means and was thus
induced to party with his money or property; and as a result thereof, the
offended party suffered damage.

In this case, Val assured the investors that he would buy back the gel at a
higher price, thus inducing the investors to part with their money or property.
Vals act of absconding and non-fulfillment of his promise caused damage to
the investors.

VIII

Charges d'affaires Volvik of Latvia suffers from a psychotic disorder after he


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

SUGGESTED ANSWER:

Volvik committed the crime of homicide and serious physical injuries. However,
he is exempt from criminal liability as an insane person at the time of the
commission of the act. Also, since a charges d affaires is not subject to the
penal laws of the Philippines, he is not criminally liable.

IX

A is the driver of B's Mercedes Benz car. When B was on a trip to Paris, A used
the car for a joy ride with C whom he is courting. Unfortunately, A met an
accident. Upon his return, B came to know about the unauthorized use of the
car and sued A for qualified theft. B alleged that A took and used the car with
intent to gain as he derived some benefit or satisfaction from its use. On the
other hand, A argued that he has no intent of making himself the owner of the
car as he in fact returned it to the garage after the joy ride. What crime or
crimes, if any, were committed? Explain. (5%)

SUGGESTED ANSWER:

A committed a violation of the Anti-Carnapping Law and not qualified theft.


The anti-carnapping law is a special law which particularly addresses the
taking of a motor vehicle. The elements of carnapping are as follows: (1) the
taking of a motor vehicle which belongs to another; (2) the taking is without the
consent of the owner or by means of violence against or intimidation of persons
or by using force upon things; and (3) the taking is done with intent to gain.
The defense of A that he has no intent to make himself the owner is immaterial.
In the given facts, all the elements are present, including intent to gain. Intent
to gain or animus lucrandi is an internal act, presumed from the unlawful
taking of the motor vehicle. Actual gain is irrelevant; the term gain is not
merely limited to pecuniary benefit but also includes the benefit which in any
other sense may be derived or expected from the act which is performed. Thus,
the mere use of the thing which was taken without the owners consent
constitutes gain.

In Villacorta v. Insurance Commission[55] which was reiterated in Association of


Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc.,[56] Justice
Claudio Teehankee (later Chief Justice), interpreting the theft clause of an
insurance policy, explained that, when one takes the motor vehicle of another
without the latters consent even if the motor vehicle is later returned, there is
theft, there being intent to gain as the use of the thing unlawfully taken
constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking was
temporary and for a joy ride, the Court sustains as the better view[57] that which
holds that when a person, either with the object of going to a certain place, or
learning how to drive, or enjoying a free ride, takes possession of a vehicle
belonging to another, without the consent of its owner, he is guilty of theft
because by taking possession of the personal property belonging to another and
using it, his intent to gain is evident since he derives therefrom utility,
satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in his work
Groizard who holds that the use of a thing constitutes gain and Cuello Calon who
calls it hurt de uso. (People vs. Bustinera)

The Royal S.S. Maru, a vessel registered in Panama, was 300 nautical miles
from Aparri, Cagayan when its engines malfunctioned. The Captain ordered his
men to drop anchor and repair the ship. While the officers and crew were
asleep, armed men boarded the vessel and took away several crates containing
valuable items and loaded them in their own motorboat. Before the band left,
they planted an explosive which they detonated from a safe distance. The
explosion damaged the hull of the ship, killed ten (10) crewmen, and injured
fifteen (15) others.

What crime or crimes, if any, were committed? Explain. (5%)

SUGGESTED ANSWER:

The crime committed is qualified piracy. Under the law, there is piracy when
the whole or part of cargo, equipment or personal belongings of a ships
complement or passengers is taken by means of violence against or
intimidation of persons or force upon things. The act was qualified since
homicide was committed on the occasion of the piracy.

XI

Angelino, a Filipino, is a transgender who underwent gender reassignment and


had implants in different parts of her body. She changed her name to Angelina
and was a finalist in the Miss Gay International. She came back to the
Philippines and while she was walking outside her home, she was abducted by
Max and Razzy who took her to a house in the province. She was then placed
in a room and Razzy forced her to have sex with him at knife's point. After the
act, it dawned upon Razzy that Angelina is actually a male. Incensed, Razzy
called Max to help him beat Angelina. The beatings that Angelina received
eventually caused her death. What crime or crimes, if any, were committed?
Explain. (5%)

SUGGESTED ANSWER:

The crime commited by Max and Razzy as conspirators is murder. There is


intent to kill, and the killing was attended by the aggravating circumstance of
treachery.

There is no rape in this case since rape under paragraph 1 of the Revised Penal
Code can only be committed against a woman. There is likewise no rape under
paragraph 2 by sexual assault since the same is only committed by a person by
inserting his penis into another persons mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person.

XII

Arnold, 25 years of age, was sitting on a bench in Luneta Park watching the
statue of Jose Rizal when, without his permission, Leilani, 17 years of age, sat
beside him and asked for financial assistance, allegedly for payment of her
tuition fee, in exchange for sex. While they were conversing, police operatives
arrested and charged him with violation of Section l0 of RA 7610 (Special
Protection of Children against Child Abuse, Exploitation and Discrimination
Act), accusing him of having in his company a minor, who is not related to him,
in a public place. It was established that Arnold was not in the performance of
a social, moral and legal duty at that time.

Is Arnold liable for the charge? Explain. (5%)

SUGGESTED ANSWER:

No, Arnold is not liable for the charge. Section 10 (b) of RA 7610 provides that:

(b) Any person who shall keep or have in his company a minor, twelve (12)
years or under or who in ten (10) years or more his junior in any public or
private place, hotel, motel, beer joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or other tourist resort or similar places
shall suffer the penalty of prision mayor in its maximum period and a fine of
not less than Fifty thousand pesos (P50,000): Provided, That this provision
shall not apply to any person who is related within the fourth degree of
consanguinity or affinity or any bond recognized by law, local custom and
tradition or acts in the performance of a social, moral or legal duty.

This law punishes a person who shall keep in his company a minor, 12 years
or under or in ten years or more his junior. In this case, Arnold is 25 years of
age while Leilani is 17. Neither is she 12 years or under. Thus, Leilani is only 8
years younger than Arnold. Hence, Arnold cannot commit this act against
Leilani.

XIII
Domingo is the caretaker of two (2) cows and two (2) horses owned by
Hannibal. Hannibal told Domingo to lend the cows to Tristan on the condition
that the latter will give a goat to the former when the cows are returned.
Instead, Tristan sold the cows and pocketed the money. Due to the neglect of
Domingo, one of the horses was stolen. Knowing that he will be blamed for the
loss, Domingo slaughtered the other horse, got the meat, and sold it to Pastor.
He later reported to Hannibal that the two horses were stolen.

[a] What crime or crimes, if any, did Tristan commit? Explain. (2.5%)

[b] What crime or crimes, if any, were committed by Domingo? Explain. (2.5%)

SUGGESTED ANSWER:

A. Tristan committed the crime of estafa with unfaithfulness or abuse of


confidence. Under this provision of the Revised Penal Code, the following
are the elements: money, goods or other personal property is received by
the offender in trust, or on commission, or for administration, or under
any other obligation involving the duty to make delivery of, or to return,
the same; there is misappropriation or conversion of such money or
property by the offender, or denial on his part of such receipt; such
misappropriation or conversion or denial is to the prejudice of another.
Tristans act of selling the cows and pocketing the money shows that the
elements of estafa under this article are present.

B. Domingo also committed the crime of estafa with unfaithfulness or abuse


of confidence. Under this provision of the Revised Penal Code, the
following are the elements: money, goods or other personal property is
received by the offender in trust, or on commission, or for
administration, or under any other obligation involving the duty to make
delivery of, or to return, the same; there is misappropriation or
conversion of such money or property by the offender, or denial on his
part of such receipt; such misappropriation or conversion or denial is to
the prejudice of another. Domingos act of selling the horse shows that
the elements of estafa under this article are present.

XIV

Dimas was arrested after a valid buy-bust operation. Macario, the policeman
who acted as poseur-buyer, inventoried and photographed ten (10) sachets of
shabu in the presence of a barangay tanod. The inventory was signed by
Macario and the tanod, but Dimas refused to sign. As Macario was stricken
with flu the day after, he was able to surrender the sachets to the PNP Crime
Laboratory only after four (4) days. During pre-trial, the counsel de oficio of
Dimas stipulated that the substance contained in the sachets examined by the
forensic chemist is in fact methamphetamine hydrochloride or shabu. Dimas
was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned
the admissibility of the evidence because Macario failed to observe the requisite
"chain of custody" of the alleged "shabu" seized from him. On behalf of the
State, the Solicitor General claimed that despite non-compliance with some
requirements, the prosecution was able to show that the integrity of the
substance was preserved. Moreover, even with some deviations from the
requirements, the counsel of Dimas stipulated that the substance seized from
Dimas was shabu so that the conviction should be affirmed.

[a] What is the "chain of custody" requirement in drug offenses? (2.5%)


[b] Rule on the contention of the State. (2.5%)

SUGGESTED ANSWER:

A. "Chain of Custody" means the duly recorded authorized movements and


custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. Such record of movements and
custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of safekeeping
and use in court as evidence, and the final disposition.

B. The contention of the State is not tenable. As held in the case of People
vs. Sali:

Given the flagrant procedural lapses the police committed in handling the
seized shabu and the obvious evidentiary gaps in the chain of its custody, a
presumption of regularity in the performance of duties cannot be made in this
case. A presumption of regularity in the performance of official duty is made in
the context of an existing rule of law or statute authorizing the performance of
an act or duty or prescribing a procedure in the performance thereof. The
presumption applies when nothing in the record suggests that the law
enforcers deviated from the standard conduct of official duty required by law;
where the official act is irregular on its face, the presumption cannot arise. In
light of the flagrant lapses we noted, the lower courts were obviously wrong
when they relied on the presumption of regularity in the performance of official
duty.With the chain of custody in serious question, the Court cannot gloss over
the argument of the accused regarding the weight of the seized drug. The
standard procedure is that after the confiscation of the dangerous substance, it
is brought to the crime laboratory for a series of tests. The result thereof
becomes one of the bases of the charge to be filed.

XV

Pedro, Pablito, Juan and Julio, all armed with bolos, robbed the house where
Antonio, his wife, and three (3) daughters were residing. While the four were
ransacking Antonio's house, Julio noticed that one of Antonio's daughters was
trying to escape. He chased and caught up with her at a thicket somewhat
distant from the house, but before bringing her back, raped her.

[a] What crime or crimes, if any, did Pedro, Pablito, Juan and Julio commit?
Explain. (2.5%)

[b] Suppose, after the robbery, the four took turns in raping the three
daughters inside the house, and, to prevent identification, killed the whole
family just before they left. What crime or crimes, if any, did the four
malefactors commit? (2.5%)

SUGGESTED ANSWER:
A. Pedro, Pablito, Juan and Julio, committed a special complex crime of
robbery with rape. In People vs. Suyu, it was ruled that once conspiracy is
established between several accused in the commission of the crime of robbery,
they would all be equally culpable for the rape committed by anyone of them on
the occasion of the robbery, unless anyone of them proves that he endeavoured
to prevent the others from committing the rape. (People vs. Gallo, GR 181902)

B. In this case, the four conspirators committed a special complex crime of


robbery with homicide, with rape as an aggravating circumstance. The special
complex crime of robbery with homicide is committed when as in this case,
homicide results or was committed on the occasion of the robbery. (People vs.
Hipona)

XVI

A is the president of the corporate publisher of the daily tabloid, Bulgar; B is


the managing editor; and C is the author/writer. In his column, Direct Hit, C
wrote about X, the head examiner of the BIR-RDO Manila as follows:

"Itong si X ay talagang BUWAYA kaya ang logo ng Lacoste T shirt niya ay


napaka suwapang na buwaya.Ang nickname niya ay si Atty. Buwaya. Ang PR
niya ay 90% sa bayad ng taxpayer at ang para sa RP ay 10% lang. Kaya ang
baba ng collection ng RDO niya. Masyadong magnanakaw si X at dapat
tanggalin itong bundat na bundat na buwaya na ito at napakalaki na ng
kurakot."

A, B and C were charged with libel before the RTC of Manila. The three (3)
defendants argued that the article is within the ambit of qualified privileged
communication; that there is no malice in law and in fact; and, that
defamatory comments on the acts of public officials which are related to the
discharge of their official duties do not constitute libel.

Was the crime of libel committed? If so, are A, B, and C all liable for the crime?
Explain. (5%)

SUGGESTED ANSWER:

Yes, the crime of libel was committed, as the following elements of libel are
present: there must be an imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status or circumstance; the
imputation must be made publicly; it must be malicious; the imputation is
directed at a natural person; and such imputation tends to cause the
dishonour, discredit or contempt of the person defamed.

A, B, and C are all liable for the crime.

The defense of qualified privileged is not available. In order that the publication
of a report of an official proceeding may be considered privileged, the following
conditions must exist:

(a) That it is a fair and true report of a judicial, legislative, or other


official proceedings which are not of confidential nature, or of a statement,
report or speech delivered in said proceedings, or of any other act performed by
a public officer in the exercise of his functions;
(b) That it is made in good faith; and
(c) That it is without any comments or remarks. (Tulfo vs. People, GR
161032)

The articles in this case are not fair and true reports contemplated by the
provision. They provide no details of the acts committed by X.

To determine whether the defamatory statement was made with actual malice,
the test applied is the reckless disregard test. Under this test, it is determined
whether the offender had in fact written and published the subject articles with
reckless disregard of whether the same were false or not. In this case, A, B and
C did not present evidence to show that the accusations were true. Thus, they
fail to meet the test.

As to the allegation that there is no libel since the defamatory comments on the
acts of public officials which are related to the discharge of their official duties,
this only holds true if the accused proves the truth of the imputation. However,
in this case, the accused did not show proof as to the truth of their imputation.
p. 310 UST Reviewer

XVII

Braulio invited Lulu, his 11-year old stepdaughter, inside the master bedroom.
He pulled out a knife and threatened her with harm unless she submitted to
his desires. He was touching her chest and sex organ when his wife caught him
in the act. The prosecutor is unsure whether to charge Braulio for acts of
lasciviousness under Art. 336 of the RPC; for lascivious conduct under RA
7610 (Special Protection against Child Abuse, Exploitation and Discrimination
Act); or for rape under Art.266-A of the RPC. What is the crime committed?
Explain. (5%)

SUGGESTED ANSWER:

Braulio committed acts of lasciviousness under the Revised Penal Code.

Under Article 336 of the Revised Penal Code on acts of lasciviousness, the
following elements must be present: (1) that the offender commits any act of
lasciviousness or lewdness; and (2) that it is done under any of the following
circumstances: (a) by using force or intimidation; (b) when the offended woman
is deprived of reason or otherwise unconscious; or (c) when the offended party
is under twelve (12) years of age.

In the case of Amployo v. People,[13] the Court expounded on the definition of the
term lewd, thus:

The term lewd is commonly defined as something indecent or obscene; it is


characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out such intention, i.e.,
by conduct that can only be interpreted as lewd or lascivious. The presence or
absence of lewd designs is inferred from the nature of the acts themselves and
the environmental circumstances. What is or what is not lewd conduct, by its
very nature, cannot be pigeonholed into a precise definition. As early as U.S. v.
Gomez we had already lamented that It would be somewhat difficult to lay
down any rule specifically establishing just what conduct makes one amenable
to the provisions of article 439 of the Penal Code. What constitutes lewd or
lascivious conduct must be determined from the circumstances of each case. It
may be quite easy to determine in a particular case that certain acts are lewd
and lascivious, and it may be extremely difficult in another case to say just
where the line of demarcation lies between such conduct and the amorous
advances of an ardent lover.

Section 5(b) of Republic Act 7610 states that: Those who commit the act of
sexual intercourse of lascivious conduct with a child exploited in prostitution
or subject to other sexual abuse; Provided, That when the victims is under
twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised
Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of
age shall be reclusion temporal in its medium period. Thus, the accused in
this case should be prosecuted under the Revised Penal Code.

The elements of rape under Art. 266-A are not present in this case: : (1) that
the accused had carnal knowledge of the victim; and (2) that said act was
accomplished (a) through the use of force or intimidation, or (b) when the
victim is deprived of reason or otherwise unconscious, or (c) when the victim is
under 12 years of age or is demented. Based on the given facts, there was no
carnal knowledge.

XVIII

Lina worked as a housemaid and yaya of the one-week old son of the spouses
John and Joana. When Lina learned that her 70-year old mother was seriously
ill, she asked John for a cash advance of P20,000.00, but the latter refused. In
anger, Lina gagged the mouth of the child with stockings, placed him in a box,
sealed it with masking tape, and placed the box in the attic. Lina then left the
house and asked her friend Fely to demand a P20,000.00 ransom for the
release of the spouses' child to be paid within twenty-four hours. The spouses
did not pay the ransom. After a couple of days, John discovered the box in the
attic with his child already dead. According to the autopsy report, the child
died of asphyxiation barely minutes after the box was sealed.

What crime or crimes, if any, did Lina and Fely commit? Explain. (5%)

SUGGESTED ANSWER:

Lina liable as principal in the special complex crime of 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 special complex crime aforementioned is applicable.

Fely is liable as accessory in the special complex crime of Kidnapping with


Homicide. Under the Revised Penal Code, an accessory is one who, having
knowledge of the commission of the crime, and without having participated
therein either as principals or accomplices, take part subsequent to its
commission by profiting themselves or assisting the offender to profit by the
effects of the crime. Felys act of soliciting ransom is an assistance to help Lina
profit from the effects of the crime. She is not liable as principal or accomplice
since the demand for ransom is not necessary to consummate the offense. P.
243, UST Reviewer.

XIX
Romeo and Julia have been married for twelve (12) years and had two (2)
children. The first few years of their marriage went along smoothly. However,
on the fifth year onwards, they would often quarrel when Romeo comes home
drunk. The quarrels became increasingly violent, marked by quiet periods
when Julia would leave the conjugal dwelling. During these times of quiet,
Romeo would "court" Julia with flowers and chocolate and convince her to
return home, telling her that he could not live without her; or Romeo would ask
Julia to forgive him, which she did, believing that if she humbled herself,
Romeo would change. After a month of marital bliss, Romeo would return to
his drinking habit and the quarrel would start again, verbally at first, until it
would escalate to physical violence.

One night, Romeo came home drunk and went straight to bed. Fearing the
onset of another violent fight, Julia stabbed Romeo while he was asleep. A week
later, their neighbors discovered Romeo's rotting corpse on the marital bed.
Julia and the children were nowhere to be found. Julia was charged with
parricide. She asserted "battered woman's syndrome" as her defense.

[a] Explain the "cycle of violence." (2.5%)

[b] Is Julia's "battered woman's syndrome" defense meritorious? Explain.


(2.5%)

SUGGESTED ANSWER:

A. The cycle of violence characterizes the Battered Woman Syndrome. It has


three phases:

1. tension building phase this is when the minor battering occurs. It could be
verbal or slight physical abuse or another form of hostile behavior. The woman
usually tries to pacify the batterer through a show of kind, nurturing behavior,
or by simply staying out of the way.

2. acute battering incident characterized by brutality, destructiveness, and


sometimes, death. The battered woman deems this incident as unpredictable,
yet also inevitable. During this phase, she has no control; only the batterer
may put an end to the violence.

3. tranquil phase the couple experience profound relief. On the one hand, the
batterer may show a tender and nurturing behavior towards his partner. He
knows that he has been viciously cruel and tries to make up for it, begging for
her forgiveness and promising to never beat her again.

To be classified as a battered woman, the couple must go through the battering


cycle at least twice.

B. Yes, the defense of Julia is meritorious.

Under the Anti-Violence Against Women and Children, victim-survivors who


are found by the courts to be suffering from battered woman syndrome do not
incur any criminal and civil liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under the Revised Penal
Code.
In this case, the facts show that Julia is a battered woman, having gone
through the cycle of violence at least twice: with the presence of the tension
building phase, acute battering incident and tranquil phase.

XX

A, an OFW, worked in Kuwait for several years as a chief accountant,


religiously sending to his wife, B, 80% of all his earnings. After his stint
abroad, he was shocked to know that B became the paramour of a married
man, C, and that all the monies he sent to B were given by her to C. To avenge
his honor, A hired X, Y and Z and told them to kidnap C and his wife, D, so
that he can inflict injuries on C to make him suffer, and humiliate him in front
of his wife. X, Y and Z were paid P20,000.00 each and were promised a reward
of P50,000.00 each once the job is done.

At midnight, A, with the fully armed X, Y and Z, forcibly opened the door and
gained entrance to the house of C and D. C put up a struggle before he was
subdued by A's group. They boarded C and D in a van and brought the two to a
small hut in a farm outside Metro Manila. Both hands of C and D were tied.
With the help of X, Y and Z, A raped D in front of C. X, Y and Z then took turns
in raping D, and subjected C to torture until he was black and blue and
bleeding profusely from several stab wounds. A and his group set the hut on
fire before leaving, killing both C and D. X, Y and Z were paid their reward.
Bothered by his conscience, A surrendered the next day to the police, admitting
the crimes he committed.

As the RTC judge, decide what crime or crimes were committed by A, X, Y and
Z, and what mitigating and aggravating circumstances will be applied in
imposing the penalty. Explain. (5%)

SUGGESTED ANSWER:

The crime committed is a special complex crime of Kidnapping with Homicide,


with the aggravating circumstance of rape. A is liable as principal by
inducement and X, Y, and Z as principals by direct participation.

The following aggravating circumstances are present: that the crime be


committed in consideration of a price, reward or promise, since promised a
reward once the job is done; that the wrong done in the commission of the
crime be deliberately augmented by causing other wrong not necessary for its
commission, which is shown by the torture that the accused did to C; that the
act is committed with treachery; evident premeditation; uninhabited place.

A can avail of the mitigating circumstance of voluntary surrender.

---ooo0ooo---