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ANSWERS TO BAR EXAMINATION QUESTIONS IN CRIMINAL LAW (1987-2010)

EDUARDO A. LATIBAG

2010 BAR EXAMINATION

PART 1

An agonizing and protracted trial having come to a close, the judge found A guilty beyond
reasonable doubt of homicide and imposed on him a straight penalty of SIX (6) YEARS and ONE (1)
day of prision mayor.
The public prosecutor objected to the sentence on the ground that the proper penalty should
have been TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal.
The defense counsel chimed in, contending that application of the Indeterminate Sentence
Law should lead to the imposition of a straight penalty of SIX (6) months and ONE (1) day of prision
correccional only. Who of the three is on the right track? Explain (3%)

SUGGESTED ANSWER:

None of the contentions is correct because the Indeterminate Sentence Law (Act 4103,
as amended) has not been followed.
The imposition of penalty for the crime of homicide, which is penalized by
imprisonment exceeding one (1) year and is divisible, is covered by the Indeterminate
Sentence Law. The said law requires that the sentence in this case should reflect a minimum
term for purposes of parole, and a maximum term fixing the limit of the imprisonment.
Imposing a straight penalty is incorrect.

II

A. What is the crime of qualified bribery? (2%)

SUGGESTED ANSWER:

Qualified bribery is a crime committed by a public officer who is entrusted with law
enforcement and who, in consideration of any offer, promise, gift of offer, refrains from
arrestibg or prosecuting an offender who has committed a crime punishable by reclusion
perpetua and/ or death (art. 211-A, RPC)

B. May a judge be charged and prosecuted for such felony? How about a public prosecutor?
A police officer? Explain (5%)

SUGGESTED ANSWER:

No, a judge may not be charged of this felony because his official duty as a public
officer is not law enforcement but the determination of cases already filed in court.
On the other hand, a public prosecutor may be prosecuted for this crime in respect of
the bribery committed, aside from dereliction of duty committed in violation of Art. 208 of
the Revised Penal Code, should be refrain from prosecuting an offender who has committed a
crime punishable by reclusion perpetua and / or death in consideration of any offer, promise,
gift or present.
Meanwhile, a police officer who refrains from arresting such offender for the same
consideration above stated, may be prosecuted for this felony since he is a public officer
entrusted with law enforcement.

III.

May a public officer charged under Section 3(b) of Republic Act No. 3019 [“directly or
indirectly requesting or receiving any gift, present, share, percentage or benefit, for himself of for
any other person, in connection with any contract or transaction between the government and any
other party, wherein the public officer in his official capacity has to intervene under the law”] also be
simultaneously or successively charged with direct bribery under Article 210 of the Revised Penal
Code? Explain. (4%)

SUGGESTED ANSWER:

Yes, a public officer charges under Sec. 3 (b) of Rep. Act 3019 (Anti-Graft and Corrupt
Practices Act) may also be charged simultaneously or successively for the crime of direct
bribery under Art. 210 of the Revised Penal Code, because two crimes are essentially different
and are penalized under distinct legal philosophies. Whereas violation of Sec. (b) of R.A. 3019
is a malum prohibitum, the crime under Art. 210 of the Code is a malum in se.

IV

Because of the barbarity and the hideousness of the acts committed by the suspects/ respondents
in cutting off their victims’ appendages, stuffing their torsos, legs, body parts into oil drums and
bullet-riddled vehicles and later on burying these oil drums, vehicles with the use of backhoes and
other earth-moving machinery, the Commission on Human Rights (CHR) investigating team
recommended to the panel of public prosecutors that all respondents be charged with violation of
the Heinous Crimes Law. The prosecution panel agreed with the CHR. As the chief prosecutor
tasked with approving the filing of the information, how will you pass upon the recommendation?
Explain? (5%)

SUGGESTED ANSWER:

The CHR is correct in describing the crimes committed as “heinous crimes”, as


defined in the preamble of the “Heinous Crimes Law” (Rep. Act No. 7659), despite the passage
of Rep. Act No. 9346 prohibiting the imposition of the death penalty.
However, the “Heinous Crimes Law” does not define crimes; it is only an amendatory
law increasing the penalty for the crimes specified therein as heinous, to a maximum of
death. Thus, the heinous crimes committed shall be prosecuted under the penal law they are
respectively defined and penalized, such as the Revised Penal Code as the case may be. The
circumstances making the crimes heinous may be alleged as qualifying or generic
aggravating, if proper. The crime shall be designated as defined and punished under the penal
law violated and the penalty shall be reclusion perpetua without the benefit of parole or life
imprisonment without the benefit of parole, as the case maybe in lieu of the death penalty.

Arlene is engaged in the buy and sell of used garments, more popularly known as “ukay-
ukay”. Among the items found by the police in a raid of her store in Baguio City were brand – new
Louie Feraud blazers.
Arlene was charged with fencing. Will the charge prosper? Why or why not? (5%)
SUGGESTED ANSWER:

No, a charge of fencing will not prosper. “Fencing” is committed when a person, with
intent to gain for himself or for another, deals in any manner with an article of value which
he knows or should be known to him to have been derived from proceeds of theft or robbery
(Sec. 2. PD 1612). Thus, for a charge of fencing to prosper, it must first be established that a
theft or robbery of the article subject of the alleged “fencing” has been committed – a fact
which is wanting in this case.
It should be noted that the suspect is engaged in the buy and sell of used garments,
which are in the nature of personal property. In civil law, possession of personal or movable
property carries with it a prima facie presumption of ownership. The presumption of ‘fencing’
arises only when the article or item involved is the subject of a robbery or thievery (Sec. 5,
PD 1612).

VI

There being probable cause to believe that certain deposits and investments in a bank are
related to an unlawful activity of smuggling by Alessandro as defined under Republic Act (RA) No.
9160, as amended (Anti- Money Laundering Act) as application for an order to allow inquiry into his
deposit was filed with the Regional Trial Court.
After hearing the application, the court granted the application and issued a freeze order.
Pass upon the correctness of the court’s order. Explain. (3%)

SUGGESTED ANSWER:

The freeze order issued by the Regional Trial Court is not correct, because jurisdiction
to issue said freeze order is now vested with the Court of Appeals under Rep Act 9194,
amending the Anti-Money Laundering Act (Rep. Act No. 9160). The Regional Trial Court is
without jurisdiction to issue a freeze order of the money involved.

VII

A widower of ten years, septuagenarian Canuto felt that he had license to engage in
voyeurism. If not peeping into his neighbors’ rooms through his powerful single-cylinder telescope,
he would trail young, shapely damsels along the hallways of shopping malls. While going up the
escalator, he stayed a step behind a mini-skirted one, and in a moment of excitement, put his hand
on her left hip and massaged it. The damsel screamed and hollered for help. Canuto was
apprehended and brought up on inquest. What charge/s if any, may he be held responsible for?
Explain (5%).

SUGGESTED ANSWER:

Canuto may be held liable only for the milder crime of “unjust vexation” which is a
form of light coercion under Art 287 of the Revised Penal Code, instead of the crime of acts
of lasciviousness although the offender is known for his voyeurism.
Our Revised Penal Code inclines towards milder criminal responsibility, consistent
with the presumption of innocence under our fundamental law and the rule of pro reo
permeating our system of applying penal laws. Holding the hip of a person is not per se
lascivious but undoubtedly annoys, irritates and vexed the young offended party. The attitude
to prosecute the offender for the milder crime of unjust vexation may be proper considering
his age and civil status.

VIII.
A asked financial support from her showbiz friend B who accommodated her by issuing in
her favor a post-dated check in the sum of P90,000.00. Both of them knew that the check would not
be honored because B’s account had just been closed. The two then approached trader C whom they
asked to change the check with cash, even agreeing that the exchange be discounted at P85,000.00
with the assurance that the check shall be funded upon maturity. Upon C’s presentment of the
check for payment on due date, it was dishonored because the account has already been closed.
What action /s may C commence against A and B to hold them to account for the loss of her
P85,000.00? Explain.

SUGGESTED ANSWER:

A criminal action for violation of BP22 may be filed against B who drew the postdated
check against a closed bank account, for value paid by C, and with knowledge at the time he
issued the check that the account thereof is already closed.
A cannot be held liable under BP 22 because he was a mere endorser of B’s check to C
who exchanged the check with cash. BP22 does not apply to endorser of checks. Hence only a
civil action may be filed by C against A to recover the P85,000.00.
Although a simultaneous action for estafa is authorized by law for the issuance of a
worthless check, under the given facts, the check was discounted and thus issued in a credit
transaction for pre-existing indebtedness. Criminal liability for estafa does not arise when a
check has been issued in payment for a pre-existing debt.

IX

Proserfina, an assistant public high school principal, acted to facilitate the release of salary
differentials and election duty per diem of classroom teachers with the agreement that they would
reimburse her for her expenses.
Did Proserfina commit a crime? Explain. (5%)

SUGGESTED ANSWER:

Yes, Proserfina committed violation of Sec. 3(b) of Rep. Act No. 3019 which considers
as corrupt practice, the act of:
“(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection with any contract or
transaction between the Government and any other party, wherein the public officer in his
official capacity has to intervene under the law. “
Being the assistant public high school principal, it is her duty to intervene in the
release of salary differentials and per diem of classroom teachers under her. Her act of doing
so, made a request for a share or benefit therefor constitutes graft or corrupt practice under
Sec 3(b) of Rep. Act No. 3019. Considering that the acts prohibited or punished under this law
are mala prohibita, and thus punishable thereunder, whether done with criminal intent or
not.

ALTERNATIVE ANSWER:

In the case of Jaravata v. Sandiganbayan (G.R. No. 56170, January 31, 1984), which
has identical set of facts as the present case, the Supreme Court ruled that there is no law
which invests an assistant principal with the power to intervene in the payment of the salary
differentials of classroom teachers or anyone for that matter.” Accordingly, since in his
official capacity as the assistant principal he is not required by law to intervene in the
payment of the salary differentials, the assistant principal cannot be said to have violated Sec
3 (b) of Reo. Act No. 3019 although he exerted efforts to facilitate the payment of the salary
differentials.

A, B and C are members of SFC Fraternity. While eating in a seaside restaurant, they were
attacked by X, Y and Z members of a rival fraternity. A rumble ensued in which the above-named
members of the two fraternities assaulted each other in confused and tumultuous manner resulting
in the death of A. As it cannot be ascertained who actually killed A, the members of the two
fraternities who took part in the rumble were charged for death caused in a tumultuous affray. Will
the charge prosper? Explain. (4%)

SUGGESTED ANSWER:

No, the charge of death caused in a tumultuous affray will not prosper. In death
caused by tumultuous affray under Art. 251 of the Revised Penal Code, it is essential that the
persons involved did not compose groups organized for the common purpose of assaulting
and attacking each other reciprocally.
In this case, there is no tumultuous affray since the participants in the rumble belong
to organized fraternities. The killer of A, a member of SFC Fraternity could not be any other
but member of the rival fraternity. Conspiracy is therefore present among the attackers from
the rival fraternity and thus rules out the idea of an affray. The liability of the attackers
should be collective for the crime of homicide or murder as the case may be.

XI

Angeline maintains a website where visitors can give their comments on the posted pictures
of the goods she sells in her exclusive boutique. Bettina posted a comment that the red Birkin bag
shown in Angelina’s website is fake and that Angelina is known to sell counterfeit items. Angelina
wants to file a case against Bettina. She seeks your advice. What advice will you give her? (4%)

SUGGESTED ANSWER:

I will advise Angelina to file a criminal case of libel against Bettina because the
imputations made by Bettina is libelous. Whether the imputation of a defect, status, or
condition is real or imaginary, if it publicly tends to discredit, dishonor or place in contempt
or ridicule a particular person who is identified, the imputation is presumed by law to be
malicious and thus penalized as libel under Art 355 of the Revised Penal Code.
Moreover, if Bettina is engaged in similar line of trade, her statement against the
goods sold by Angelina may constitute a violation of the law on Unfair Competition (Rep. Act
No. 8291.)

PART II

XII

A. Define Money laundering. What are the three (3) stages in money laundering? (3%)

SUGGESTED ANSWER:
Money Laundering is the process by which a person conceals the existence of
unlawfully obtained money and makes it appear to have originated from lawful sources. The
intention behind such a transaction is to hide the beneficial owner of said funds and allows
criminal organizations or criminals to enjoy proceeds of such criminal activities.”

The three (3) stages in money laundering are:


a. Placement/ infusion or the physical disposal of criminal proceeds
b. Layering or the separation of the criminal proceeds from their source by creating
layers of financial transactions to disguise such proceeds as legitimate and avoid audit
trail; and
c. Integration or the provision of apparent legitimacy to the criminal proceeds.

B. What is the doctrine of pro reo? How does it relate to Article 48 of the Revised Penal
Code? (3%)

SUGGESTED ANSWER:

The doctrine of pro reo advocates that penal laws and laws penal in nature are to be
construed and applied in a way lenient or liberal to the offender, consonant to and consistent
with the constitutional guarantee that an accused shall be presumed innocent until his guilt
is established beyond reasonable doubt.
Following the pro reo doctrine, under Art. 48 of the Revised Penal Code, crimes are
complexed and punished with a single penalty (i.e that prescribed for the most serious crime
and to be imposed in its maximum period). The rationale being, that the accused who
commits two crimes with single criminal impulse demonstrates lesser perversity than when
the crimes are committed by different acts and several criminal resolutions. (People v.
Comadre, 431 SCRA 366, 384 [2004}. However, Art. 48 shall be applied only when it would
bring about the imposition of a penalty lesser than the penalties imposable for all the
component crimes if prosecuted separately instead of being complexed.

XIII

While his was on a 2-year scholarship abroad, Romeo was having an affair with his maid
Dulcinea. Realizing that the affair was going nowhere, Dulcinea told Romeo that she was going back
to the province to marry her childhood sweetheart. Clouded by anger and jealousy, Romeo strangled
Dulcinea to death while she was sleeping in the maid’s quarters.
The following day, Romeo was found catatonic inside the maid’s quarters.He was brought to
the National Center for Mental health (NCMH) where he was diagnosed to be mentally unstable.
Charged with murder, Romeo pleaded insanity as a defense.

a. Will Romeo’s defense prosper? Explain. (2%)

SUGGESTED ANSWER:

No, Romeo’s defense of insanity will not prosper because, even assuming that Romeo
was “insane” when diagnosed after he committed the crime, insanity as a defense to the
commission of a crime must have existed and proven to be existing at the precise moment
when the crime was being committed. The facts of the case indicate that Romeo committed
the crime with discernment.

b. What is the effect of the diagnosis of the NCMH on the case (2%)
SUGGESTED ANSWER:

The effect of the diagnosis made by NCMH is possibly a suspension of the proceedings
against Romeo and his commitment to appropriate institution for treatment until he could
already understand the proceedings.

XIV

Paul lives with his long-time girlfriend Joan in a condominium in Makati. For more than a
year, he has been secretly saving money in an envelope under their bed to buy her an engagement
ring. One day, while Joan was cleaning their room, she found the envelope, took the money and left
Paul. As prosecutor, what crime, if any would you charge Joan? Explain (3%)

SUGGESTED ANSWER:

Joan may be charged with qualified theft because she took away personal property
belonging to Paul without the latter’s consent, so obviously with intent to gain and with grave
abuse of confidence.
But Joan may invoke as a defense Art.332 of the Revised Penal Code, under with no
criminal liability but only civil liability shall result from the crime of theft, swindling or
malicious mischief committed by spouses, among others.
The reference to theft under Article embraces both simple theft and qualified theft,
and the reference to spouses includes common-law or live-in relationship (People v
Constantino, 60 O.G. 3603 [1963]}.

XV

Suspecting that her husband of twenty years was having an affair, Leilanie hired a private
investigator to spy on him. After two weeks, the private investigator showed Leilanie a video of her
husband having sexual intercourse with another woman in a room of a five-star hotel. Based on
what she saw on the video, Leilanie accused her husband of concubinage. Will the case of
concubinage prosper? Explain. (3%)

SUGGESTED ANSWER:

No, a case for concubinage will not prosper because said crime may be committed only
by a husband in three (3) ways, viz:
1.) By keeping a mistress in the conjugal dwelling; or
2) By having sexual intercourse with a woman not his wife under scandalous
circumstances; or 3) By cohabiting with a woman not his wife in any other place (Art.
334, RPC).
The facts of the case given do not constitute any of the situations above-stated.

XVI

The president, treasurer, and secretary of ABC Corporation were charged with syndicated
estafa under the following Information: That on or about the 1st week of January 2010 or
subsequent thereto in Cebu City and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and all, of them mutually helping and aiding
one another in a syndicated manner, through a. corporation registered with the Securities and
Exchange Commission (SEC), with intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme, with intent to gain and by means of fraud and deceit, did then and there
willfully, unlawfully, and feloniously defraud Virna, Lana, Deborah and several other persons by
falsely or fraudulently transactions, which they made with complainants and the public in general,
to the effect that they were in a legitimate business of foreign exchange trading successively or
simultaneously operating under the name and style of ABC Corporation and DEF Management
Philippines, Incorporated, induced and succeeded in inducing complainants and several other
persons to give and deliver to said accused the amount of at least P20,000,000.00 on the strength of
said manifestations and representations, the accused knowing fully well that the above-named
corporations registered with the SEC are not licensed nor authorized to engage in foreign exchange
trading and that such manifestations and representations to transact in foreign exchange were false
and fraudulent, that these resulted to the damage and prejudice of the complainants and other
persons, and that the defraudation pertains to funds solicited from the public in general by such
corporations/ associations.
Will the case for syndicated estafa prosper? Explain. (5%)

SUGGESTED ANSWER:

No, a case for syndicated estafa will not prosper because a syndicate for such crime
under Pres. Decree 1689 must be comprised of five (5) or more persons committing the estafa
or other forms of swindling defined in Arts. 315 and 316 of the Revised Penal Code; whereas
the case given involved only three (3) accused who are alleged to have conspired in the
commission of the swindling. But because the amount defrauded exceeds P100,000.00, the
case is still under the same P.D. 1689 with a lower penalty than syndicated estafa.

XVII

A killed his wife and buried her in their backyard. He immediately went into hiding in the
mountains. Three years later, the bones of A's wife were discovered by X, the gardener. Since X had
a standing warrant of arrest, he hid the bones in an old clay jar and kept quiet about it. After two
years, Z, the caretaker, found the bones and reported the matter to the police. After 15 years of
hiding, A left the country but returned three years later to take care of his ailing sibling. Six years
thereafter, he was charged with parricide but raised the defense of prescription.
A. Under the Revised Penal Code, when does the period of prescription of a crime commence
to run? (1%)

SUGGESTED ANSWER:

Generally, the period of prescription of a crime commences to run from the date it
was committed; but if the crime was committed clandestinely, the period of prescription of
the crimes under the Revised Penal Code commence to run from the day on which the crime
was discovered by the offended party, the authorities or their agents (Art 91, RPC).

B. When is it interrupted? (1%)

SUGGESTED ANSWER:

The running of the prescriptive period of the crime is interrupted when "any kind of
investigative proceeding is instituted against the guilty person which may ultimately lead to
his prosecution" (Panaguiton, Jr. v. Dept. of Justice, G.R. No. 167571, Nov. 25, 2008).

C. Is A's defense tenable? Explain. (3%)

SUGGESTED ANSWER:
No, the defense of prescription of the crime is not tenable. The crime committed is
parricide which prescribes in twenty (20) years (Art 90, RPC). It was only when the care-taker,
Z, found the victim's bones and reported the matter to the police that the crime is deemed
legally discovered by the authorities or their agents and thus the prescriptive period of the
crime commenced to run.
When A left the country and returned only after three (3) years, the running of the
prescriptive period of the crime is interrupted and suspended because prescription shall not
run when the offender is absent from the Philippine Archipelago (Art. 91, RPC).
Since- A had been in hiding for 15 years after the commission of the crime and the
prescriptive period started running only after 5 years from such commission when the crime
was discovered, only 10 years lapsed and 3 years thereof should be deducted when the
prescriptive period was interrupted and suspended. Hence, the 3 years when A was out of the
Philippines should be deducted from the 10 years after the prescription starts running.
Adding the 7 years of prescription and the 6 years that lapsed before the case was filed, only
a total of thirteen (13) years of the prescriptive period had lapsed. Hence the crime has not
yet prescribed.

XVIII

On her way home, Eva Marie saw an injured chow chow puppy behind a bush. Since the
puppy did not have a collar, she brought it home so she could have it as a pet. Her son in fact
begged Eva Marie to keep the puppy. The following day, Eva Marie bought a collar for the puppy and
brought it to a veterinarian for treatment.

A. Did Eva Marie incur criminal liability in bringing the puppy home as a pet? Explain.
(2%)

SUGGESTED ANSWER:

Yes, Eva Marie incurred criminal liability for the crime of simple theft. The puppy is
personal property which, is susceptible of taking and has pecuniary value. Obviously, she
took it with intent to own it; hence, with intent to gain.

B. Did she incur civil liability? Explain. (2%)

SUGGESTED ANSWER:

Eva Marie may incur civil liability if the owner of the puppy would incur a loss due to
non-restitution or return thereof to the owner. Finding any property of value, legally regarded
as lost property, would constitute theft if the finder failed to deliver the same to the local
authorities or to its owner (Art 308, par. 1). Once Eva Marie is found guilty of theft, she will
incur civil liability, which consists of restitution or reparation for damage caused and
indemnification for consequential damages, Art. 100 RPC). The general rule is: a person who
is criminally liable is also civilly liable.

XIX

Jack and Jill have been married for seven years. One night, Jack came home drunk. Finding
no food on the table, Jack started hitting Jill only to apologize the following day.
A week later, the same episode occurred - Jack came home drunk and started hitting Jill.
Fearing for her life, Jill left and stayed with her sister. To woo Jill back, Jack sent her floral
arrangements of spotted lilies and confectioneries. Two days later, Jill returned home and decided to
give Jack another chance. After several days, however, Jack again came home drunk. The following
day, he was found dead.
Jill was charged with parricide but raised the defense of "battered woman syndrome."

A. Define "Battered Woman Syndrome? (2%)

SUGGESTED ANSWER:

"Battered Woman Syndrome" refers to a scientifically defined pattern of psychological


and behavioral symptoms found in women living in battering relation-ships as a result of
cumulative abuse (Section 31dj, Rep. Act No. 9262).

B. What are the three phases of the "Battered Woman Syndrome"? (3

SUGGESTED ANSWER:
The three (3) 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 v. Genosa, G.R. No. 135981, January 15, 2004).

C. Would the defense prosper despite the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code? Explain. (2%)

SUGGESTED ANSWER:

Yes. Section 26 of Rep. Act No. 9262 provides that 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.

XX
Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of
possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs
under Section 12 of Republic Act No. 9165.
Matt filed a petition for probation. Jeff appealed his conviction during the pendency of which
he also filed a petition for probation.
The brothers' counsel argued that they being first time offenders, their petitions for
probation should be granted. How would you resolve the brothers' petitions for probation? Explain.
(3%)

SUGGESTED ANSWER:

The brothers' petition for probation should both be denied.


Matt's petition for probation shall be denied because he was convicted for drug-
trafficking. Section 24 of RA 9165 (Comprehensive Dangerous Drug Act of 2002) expressly
provides, "Any person convicted for drug trafficking or pushing under this Act, regardless of
the penalty imposed by the court, cannot avail of the privilege granted by the Probation Law
or Presidential Decree No. 968, as amended." On the other hand, Jeff's application for
probation cannot also be entertained or granted because he has already appealed his
conviction by the trial court (Section 4, P.D. 968, as amended).

XXI
Because peace negotiations on the Spratlys situation had failed, the People's Republic of
China declared war against the Philippines. Myra, a Filipina who lives with her Italian expatriate
boyfriend, discovered e-mail correspondence between him and a certain General Tung Kat Su of
China.
On March 12, 2010, Myra discovered that on even date her boyfriend had sent an e-mail to
General Tung Kat Su, in which he agreed to provide vital information on the military defense of the
Philippines to the Chinese government in exchange for P1 million and his safe return to Italy. Two
weeks later, Myra decided to report the matter to the proper authorities. Did Myra commit a crime?
Explain. (3%)

SUGGESTED ANSWER:
Yes, Myra committed the crime of Misprision of Treason under Art. 116 of the Revised
Penal Code, for failing to report or make known "as soon as possible" to the governor or
provincial fiscal or to the mayor or fiscal of the City where she resides, the conspiracy
between her Italian boyfriend and the Chinese General to commit treason against the
Philippine Government in time of war. She decided to report the matter to the proper
authorities only after two (2) weeks.

XXII

Immediately after murdering Bob, Jake went to his mother to seek refuge. His mother told
him to hide in the maid's quarters until she finds a better place for him to hide. After two days, Jake
transferred to his aunt's house. A week later, Jake was apprehended by the police. Can Jake's
mother and aunt be made criminally liable as accessories to the crime of murder? Explain. (3%)

SUGGESTED ANSWER:
Obviously, Jake's mother was aware of her son's having committed a felony, such that
her act of harboring and concealing him renders her liable as an accessory. But being an
ascendant of Jake, she is exempt from criminal liability by express provision of Article 20 of
the Revised Penal Code.
On the other hand, the criminal liability of Jake's aunt depends on her knowledge of
the felony committed by Jake. If she had knowledge of his commission of the felony, her act
of harboring and concealing Jake would render her criminally liable as accessory to the crime
of murder; otherwise without knowledge of Jake's commission of the felony, she would not be
liable.

XXIII

Christopher, John, Richard, and Luke are fraternity brothers. To protect themselves from
rival fraternities, they all carry guns wherever they go. One night, after attending a party, they
boarded a taxicab, held the driver at gunpoint and took the latter's earnings.

A. What crime, if any, did the four commit? Enumerate the elements of the crime. (2%)

SUGGESTED ANSWER:
The crime committed is robbery by a band since there were four (4) offenders acting in
concert in committing the robbery and all the four were armed.
The elements of this crime are:
1. unlawful taking of personal property belonging to another (the earnings of the taxi-
driver);
2. intent to gain in the taking (of the earnings which belong to the taxi-driver);
3. violence against or intimidation of person or force upon things was employed in the
taking; and
4. there were more than three armed malefactors taking part in the commission of the
robbery (Art. 296 in relation to Art. 294, Revised Penal Code)

B. Would your answer be the same if they killed the driver? Explain. (2%)

SUGGESTED ANSWER:

No, the crime becomes robbery with homicide and all the fraternity brothers are liable.
The existence of a band shall be appreciated only as generic aggravating circumstance. Also,
if the firearms used were unlicensed, the same would only be taken as generic aggravating
circumstance as provided by the Rep. Act No. 8294 (People v. Bolinget, G.R. Nos. 137949-52,
December 11, 2003).

2009 BAR EXAMINATION

PART I

I
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)
[a] Amado, convicted of rape but granted an absolute pardon by the President, and one year
thereafter, convicted of homicide, is a recidivist.

SUGGESTED ANSWER:

True. Rape is now a crime against persons and, like the crime of homicide, is
embraced in the same Title of the Revised Penal Code under which Amado had been
previously convicted by final judgment. The absolute pardon granted him for rape, only
excused him from serving the sentence for rape but did not erase the effects of the
conviction therefore unless expressly remitted by the pardon.

[b] The creditor who resorts to forced labor of a child under the pretext of reimbursing
himself for the debt incurred by the child's father commits the crime of slavery.

SUGGESTED ANSWER:

False. The proper offense is exploitation of child labor (Art. 273, RPC). Exploitation of
child labor is committed by a person, who under the pretext of reimbursing himself of a debt
incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall
against the minor's will, retain him in his services.

[c] The use of an unlicensed firearm in homicide is considered a generic aggravating


circumstance which can be offset by an ordinary mitigating circumstance.

SUGGESTED ANSWER:

False. Offsetting may not take place because the use of an unlicensed firearm in
homicide or murder is a specific aggravating circumstance provided for by Rep. Act No. 8294.
It is not one of the generic aggravating circumstances under Art.14 of the Revised Penal Code
(People v. Avecilla, 351 SCRA 635 [20011).

[d] A person who, on the occasion of a robbery, kills a bystander by accident is liable for two
separate crimes: robbery and reckless imprudence resulting in homicide.
SUGGESTED ANSWER:

False. Only one crime of robbery with homicide is constituted because the Revised
Penal Code punishes the crimes as only one indivisible offense when-a killing, whether
intentional or accidental, was committed by reason or on occasion of a robbery (Art. 294[1],
RPC; People v. Mabasa, 65 Phil. 568 [1938]).

[e] A policeman who, without a judicial order, enters a private house over the owner's
opposition is guilty of trespass to dwelling.

SUGGESTED ANSWER:
False. The crime committed by the policeman in this case is violation of domicile
because the official duties of a policeman carry with it an authority to make searches and
seizure upon judicial order. He is therefore acting under color of his official authority (Art.
128, RPC).

II

Antero Makabayan was convicted of the crime of Rebellion. While serving sentence, he
escaped from jail. Captured, he was charged with, and convicted of, Evasion of Service of Sentence.
Thereafter, the President of the Philippines issued an amnesty proclamation for the offense of
Rebellion. Antero applied for and was granted the benefit of the amnesty proclamation.
Antero then filed a petition for habeas corpus, praying for his immediate release from
confinement. He claims that the amnesty extends to the offense of evasion of Service of Sentence. As
judge, will you grant the petition? Discuss fully. (4%)

SUGGESTED ANSWER:

Yes, I will grant the petition because the sentence that was evaded proceeded from the
crime of Rebellion which has been obliterated by the grant of amnesty to the offender (Art. 89
[3], RPC).
Since the amnesty erased the criminal complexion of the act committed by the
offender as a crime of rebellion and rendered such act as though innocent, the sentence lost
its legal basis. The purported evasion thereof therefore cannot subsist (People v. Patriarca,
341 SCRA 464[2000]).
Amnesty obliterates, not only the basis of conviction, but also all the legal effects
thereof.

III

Rigoberto gate-crashed the 71st birthday party of Judge • Lorenzo. Armed with a piece
of wood commonly known as dos por dos, Rigoberto hit Judge Lorenzo on the back, causing
the latter's hospitalization for 30 days. Upon investigation, it appeared that Rigoberto had a
grudge against Judge Lorenzo who, two years earlier,. had cited Rigoberto in contempt and
ordered his imprisonment for three (3) days.

[a] Is Rigoberto guilty of Direct Assault? Why or why not? (3%)

SUGGESTED ANSWER:

No, Rigoberto is not guilty of Direct Assault because Judge Lorenzo has ceased to be a
judge when he was attacked. He has retired (71 yrs. old) from his position as a person in
authority when he was attacked. Hence, the attack on him cannot be regarded as against a
person in authority anymore.

[b] Would your answer be the same if the reason for the attack was that when Judge Lorenzo
was still a practicing lawyer ten years ago, he prosecuted Rigoberto and succeeded in sending him
to jail for one year? Explain your answer. (3%)

SUGGESTED ANSWER:

Yes. Rigoberto is guilty of Direct Assault because the employment of violence was by
reason of an actual performance of a duty by the offended party acting as a practicing lawyer.
Lawyers are considered persons in authority by virtue of Batas Pambansa Big. 873, which
states that lawyers in the actual performance of their professional duties or on the occasion
of such performance shall be deemed persons in authority. But the crime having been
committed 10 years ago, may have already prescribed because it is punishable by a
correctional penalty.

IV

Charlie hated his classmate, Brad, because the latter was assiduously courting Lily,
Charlie's girlfriend. Charlie went to a veterinarian and asked for some poison on the pretext that it
would be used to kill a very sick, old dog. Actually, Charlie intended to use the poison on Brad.
The veterinarian mistakenly gave Charlie a non-toxic powder which, when mixed with Brad's
food, did not kill Brad.

[a] Did Charlie commit any crime? If so; what and why? If not, why not? (3%)

SUGGESTED ANSWER:

Charlie committed an impossible crime of murder. His act of mixing the non-toxic
powder with Brad's food, done with intent to kill, would have constituted murder which is a
crime against persons, had it not been for the employment of a means which, unknown to
him, is ineffectual (Art.4, par. 2, RPC).

[b] Would your answer be the same if Brad proved to be allergic to the powder, and after
ingesting it with his food, fell ill and was hospitalized for ten (10) days? Explain. (3%)

SUGGESTED ANSWER:

No, the answer would not be the same. Charlie would be, criminally liable for less
serious physical injuries because his act of mixing the powder with Brad's food was done with
felonious intent and was the proximate cause of Brad's illness for 10 days. It cannot
constitute attempted murder, although done with intent to kill, because the means employed
is inherently ineffectual to cause death and the crime committed must be directly linked to
the means employed, not to the intent. Liability for an impossible crime can only arise from a
consummated act.

Ponciano borrowed Ruben's gun, saying that he would use it to kill Freddie. Because Ruben
also resented Freddie, he readily lent his gun, but told Ponciano: "0, pagkabaril mo kay Freddie,
isauli mo kaagad, ha." Later, Ponciano killed Freddie, but used a knife because he did not want
Freddie's neighbors to hear the gunshot.
[a] What, if any, is the liability of Ruben? Explain. (3%)

SUGGESTED ANSWER:

Ruben's liability is that of an accomplice only because he merely cooperated in


Ponciano's determination to kill Freddie. Such cooperation is not indispensable to the killing,
as in fact the killing was carried out without the use of Ruben's gun. Neither may Ruben be
regarded as a co-conspirator since he was not a participant in the decision-making of
Ponciano to kill Freddie; he merely cooperated in carrying out the criminal plan which was
already in place (Art. 18, RPC).

ALTERNATIVE ANSWER:

Ruben cannot be held liable as an accomplice in the killing of Freddie because his act
of lending his gun to Ponciano did not have a relation between the acts done by the latter to
that attributed to Ruben. Even if Ruben did not lend his gun, Poncian.o would have
consummated the act of killing Freddie. In other words, Ruben's act in lending his gun was
not a necessary act to enable Ponciano to consummate the crime.

[b] Would your answer be the same if, instead of Freddie, it was Manuel, a relative of Ruben,
who was killed by Ponciano using Ruben's gun? '- Explain. (3%)

SUGGESTED ANSWER:

No. The answer would not be the same because Ruben lent his gun purposely for the
killing of Freddie only, not for any other killing. Ponciano's using Ruben's gun in killing a
person other than Freddie is beyond Ruben's criminal intent and willing involvement. Only
Ponciano will answer for the crime against Manuel.
It has been ruled that when the owner of the gun knew that it would be used to kill a
particular person, but the offender used it to kill another person, the owner of the gun is not
an accomplice as to the killing of the other person. While there was community of design to
kill Freddie between Ponciano and Ruben, there was none with respect to the killing of
Manuel.

ALTERNATIVE ANSWER:

Yes. The answer would be same because Ruben lent his gun to Ponciano with
knowledge that it would be used in killing a person, thus with knowledge that the gun would
be used to commit a crime. It is of no moment who was killed, so long as Ruben is aware
when he lent the gun that it would be used to commit a crime.

VI

Baldo killed Conrad in a dark corner, at midnight, on January 2, 1960. Dominador


witnessed the entire incident, but he was so scared to tell the authorities about it.

On January 2, 1970, Dominador, bothered by his conscience, reported the matter to


the police. After investigation, the police finally arrested Baldo on January 6, 1980. Charged
in court, Baldo claims that the crime he committed had already prescribed.

Is Baldo's contention correct? Explain. (3%)


SUGGESTED ANSWER:
No, Baldo's contention is not correct because the crime committed has not yet
prescribed. The prescriptive period of the crime committed commenced to run only after it
was reported to the police on January 2, 1970, not on the date it was clandestinely
committed on January 2, 1960. Under the discovery rule, which governs when a crime is not
publicly committed, the prescriptive period of a crime commences to run only from the day
on which the crime is discovered by the offended party, the authorities or their agents: in
this case, from January 2, 1970 when it was made known to the police authorities until
January 6, 1980, when Baldo was arrested and charged. The killing committed, whether it be
homicide or murder, is punishable by an afflictive penalty which prescribes in twenty (20)
years, whereas only around ten (10) years had lapsed from January 2, 1970 (when the
authorities discovered the commission of the crime) to January 6, 1920 (when the accused
was charged in court).

VII

Charina, Clerk of Court of an RTC Branch, promised the plaintiff in a case pending before
the court that she would convince the Presiding Judge to decide the case in plaintiff's favor. In
consideration therefor, the plaintiff gave Charina P20,000.00.
Charina was charged with violation of Section 3 (b) of Republic Act No. 3019, prohibiting any
public officer from directly or indirectly requesting or receiving any gift, present, percentage, or
benefit in connection with any contract or transaction x x x wherein the public officer, in his official
capacity, has to intervene under the law.
While the case was being tried, the Ombudsman filed another information against Charina
for Indirect Bribery under the Revised Penal Code. Charina demurred to the second information,
claiming that she can no longer be charged under the Revised Penal Code having been charged for
the same act under R.A. 3019.

Is Charina correct? Explain. (3%)

SUGGESTED ANSWER:

No, Charina is not correct. Although the charge for violation of Rep. Act No. 3019 and
the charge for Indirect Bribery (Art. 211, RPC) arose from the same act, the elements of the
violation charged under Rep. Act No. 3019 are not the same as the felony charged for Indirect
Bribery under the Rev. Penal Code (Mejia v. Pamaran, 160 SCRA 457 [1988]). Hence, the
crimes charged are separate and distinct from each other, with different penalties. The two
charges do not constitute a ground for a motion to dismiss or motion to quash, as there is no
jeopardy against the accused.

VIII

While Alfredo, Braulio, Ciriaco, and 'Domingo were robbing a bank, policemen arrived.
A firefight ensued between the bank robbers and the responding policemen, and one of the
policemen was killed.

[a] What crime or crimes, if any, had been committed? Explain. (3%)

SUGGESTED ANSWER:

The crimes committed are Robbery with homicide (Art. 294(1], RPC), a single
indivisible offense, and Direct Assault with Multiple Attempted Homicide, a complex crime
(Art. 48, Art. 148 and Art. 249, RPC; People v. Gayrama, 60 Phil. 796 (1934]).
Robbery with Homicide was committed because one of the responding policemen was
killed by reason or on occasion of the robbery being committed. The complex crime of Direct
Assault with Multiple Attempted Homicide was committed in respect of the offender's firing
guns at the responding policemen who are agents of person in authority performing their
duty when fired at to frustrate such performance. (People vs. Ladjaalam, G.R. Nos. 136149-51,
Sept 19, 2000)

[b] Suppose it was Alfredo who was killed by the responding policemen, what charges can be
filed against Braulio, Ciriaco and Domingo? Explain. (2%)

SUGGESTED ANSWER:

The crime of which Braulio, Ciriaco and Domingo can be charged is Robbery with
Homicide (Art.294[1], RPC) because the killing resulted by reason or on the occasion, of the
robbery. It is of no moment that the person killed is one of the robbers. A killing by reason or
on the occasion of the robbery, whether deliberate or accidental, will be a component ofthe
crime of Robbery with Homicide, a single indivisible offense, as long as it is intimately
connected to the robbery.

[c] Suppose in the course of the robbery, before the policemen arrived, Braulio shot and
killed Alfredo following a heated disagreement on who should carry the money bags, what would be
the criminal liability of Braulio, Ciriaco and Domingo? Explain. (2%)

SUGGESTED ANSWER:

Braulio shall be liable for Robbery with Homicide (Art. 294[1], RPC) for killing Alfredo,
since the killing was by reason of the robbery. Ciriaco and Domingo having conspired only in
the commission of the robbery, should incur liability only for the crime conspired upon—the
robbery, unless they were with Braulio during the killing and could have prevented the same
but they did not, in which .case they shall also be liable for Robbery with . Homicide.
It is of no moment that the person killed is one of the robbers and he was killed
during the robbery (People v, Barot, 89 SCRA 16 [19791).

IX

Virgilio, armed with a gun, stopped a van along a major thoroughfare in Manila, pointed the
gun at the driver and shouted: "Tigil! Kidnap ito!"

Terrified, the driver, Juanita, stopped the van and allowed Virgilio to board. Inside the van
were Jeremias, a 6-year-old child, son of a multi-millionaire, and Daday, the child's nanny. Virgilio
told Juanita to drive to a deserted place, and there, ordered the driver to alight. Before Juanita was
allowed to go, Virgilio instructed him to tell Jeremias' parents that unless they give a ransom of P10-
million within two (2) days, Jeremias would be beheaded. Daday was told to remain in the van and
take care of Jeremias until the ransom is paid. Virgilio then drove the van to his safehouse .

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

SUGGESTED ANSWER:

The crime committed against Jeremias, the 6 year-old child, is Kidnapping and
Seribus Illegal Detention under Art 267 (4), RPC. The evident criminal intent of the offender,
Virgilio, is to lock up the child to demand ransom. Whether or not the ransom was eventually
obtained will not affect the crime committed because the demand for ransom is not an
element of the crime; it only qualifies the penalty to death but the imposition of this penalty
is now prohibited by Rep. Act. No. 9346.
As to Daday, the nanny of the child who was told to remain in the van and take care of
the child until the ransom is paid, the crime committed is Serious Illegal Detention because
the offended party deprived of liberty is a female (Art. 267, par. 4, RPC).

As to Juanito, the driver of the van who was seriously intimidated with a gun pointed
at him and directed to stop the van and allow the gun-man to board the same, and thereafter
to drive to a deserted place, the crime committed by Virgilio is Grave Coercion (Art. 286,
RPC) and Slight Illegal Detention (Art. 268, RPC) for holding the driver before he was allowed
to go.

To secure a release of his brother Willy, a detention prisoner, and his cousin Vincent, who is
serving sentence for homicide, Chito asked the RTC Branch Clerk of Court to issue an Order which
would allow the two prisoners to be brought out of jail. At first, the Clerk refused, but when Chita
gave her P50,000.00, she consented.

She then prepared an Order requiring the appearance in court of Willy and Vincent,
ostensibly as witnesses in a pending case. She forged the judge's signature, and delivered the Order
to the jail warden who, in turn, allowed Willy and Vincent to go out of jail in the company of an
armed escort, Edwin. Chito also gave Edwin P50,000.00 to leave the two inmates unguarded for
three minutes and provide them with an opportunity to escape. Thus, Willy and Vincent were able to
escape.

What crime or crimes, if any, had been committed by Chito, Willy, Vincent, the Branch Clerk
of court, Edwin, and the jail warden? Explain your answer. (5%)

SUGGESTED ANSWER:

The crimes committed in this case are as follows:

a. Chito committed the crimes of -


1. Delivery of Prisoners from Jail (Art. 156, RPC) for working out the escape of
prisoners Willy and Vincent;
2. Two counts of Corruption of Public Officials (Art. 212, RPC); and
3. Falsification of Public Documents, as a principal by inducement (Art. 172 [1],
RPC).

c. Willy committed the crime of Delivery of Prisoners from Jail (Art. 156, RPC) as a
principal by indispensable cooperation if he was aware of the criminal plan of
Chito to have them escape from prison and he did escape pursuant to such
criminal plan; otherwise he would not be liable for said crime if he escaped
pursuant to human instinct only.

d. Vincent, being a prisoner serving sentence by final judgment, committed the crime
of Evasion of Service of Sentence (Art. 157, RPC) for escaping during the term of
his imprisonment.

e. The Branch Clerk of Court committed the crimes of:


1. Direct Bribery (Art. 210, RPC) for accepting the P50,000.00 - in
consideration of the order she issued to enable the prisoners to get out of jail;
2. Falsification of Public Document for forging the judge's signature on said
Order (Art. 171, RPC);
3. Delivery of Prisoners from Jail (Art. 156, RPC), as a co-principal of Chito by
indispensable cooperation for making the false Order and forging the judge's signature
thereon, to enable the prisoners to get out of jail;

4. Evasion of Service of Sentence (Art. 157, RPC); as a co-principal of Vincent by


indispensable cooperation for making the false Order that enabled Vincent to evade service of
his sentence;

e. Edwin, the jail guard who escorted the prisoners in getting out of jail, committed
the crimes of –
1. Infidelity in the Custody of Prisoners, specifically conniving with or
consenting to Evasion for leaving unguarded the prisoners escorted by him and
provide them an opportunity to escape (Art. 223, RPC);
2. Direct Bribery for receiving the P50,000.00 as consideration for leaving the
prisoners unguarded and allowing them the opportunity to escape (Art. 210, RPC);

f. The jail warden did not commit nor incur a crime there being no showing that he
was aware of what his subordinates had done nor of any negligence on his part that would
amount to infidelity in the custody of prisoners.

PART II

XI

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)
[a] Life imprisonment is a penalty more favorable to the convict than reclusion perpetua.

SUGGESTED ANSWER:

False. Life imprisonment is unfavorable to a convict because the penalty is without a


fixed duration, unlike the penalty of reclusion perpetua which has a fixed duration of 40
years and the convict may be eligible for pardon after 30 years of imprisonment (People v.
Penillos, 205 SCRA 546 (1992).

[b] Voluntary surrender is a mitigating circumstance in all acts and omissions punishable
under the Revised Penal Code.

SUGGESTED ANSWER:

False. Voluntary surrender may not be appreciated in cases of criminal negligence


under Art. 365 since in such cases, the courts are authorized to impose a penalty without
considering Art. 62 regarding mitigating and aggravating circumstances.

[c] In a prosecution for fencing under R D. 1612, it is a complete defense for the accused to
prove that he had no knowledge that the goods or articles found in his possession had been the
subject of robbery.

SUGGESTED ANSWER:
False. Fencing is committed if the accused "should have known" that the goods or
articles had been the subject of theft or robbery (P.D. 1612, Sec. 2[a]). Mere possession of the
stolen goods gives rise to the prima facie presumption of fencing.

[d] In the crime of libel, truth is an absolute defense.

SUGGESTED ANSWER:

False. Article 361 of the RPC provides that proof of truth shall be admissible in libel
cases only if the same imputes a crime or is made against a public officer with respect to
facts related to the discharge of their official duties, and moreover must have been published
with good motives and for justifiable ends. Hence, "truth" as a defense, on its own, is not
enough.

[e] For a person who transacts an instrument representing the proceeds of a covered
unlawful activity to be liable under the Anti-Money Laundering Act (R.A. 9160, as amended), it must
be shown that he has knowledge of the identities of the culprits involved in the commission of the
predicate crimes.

SUGGESTED ANSWER:

False. There is nothing in the law which requires that the accused must know the
identities of the culprits involved in the commission of the predicate crimes. To establish
liability under RA 9160, it is sufficient that proceeds of an unlawful activity are transacted,
making them appear to have originated from legitimate sources.

XII

[a] In a conviction for homicide, the trial court appreciated two (2) mitigating circumstances
and one (1) aggravating circumstance. Homicide under Article 249 of the Revised Penal Code is
punishable by reclusion temporal, an imprisonment term of twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence Law, determine the appropriate penalty to
be imposed. Explain. (3%)

SUGGESTED ANSWER:

Under the Indeterminate Sentence Law, the minimum of the sentence shall be
anywhere within the range of 6 years and 1 day to 12 years imprisonment while the
maximum of the sentence shall be anywhere within the range of Reclusion Temporal
minimum i.e., not lower than 12 yrs. and 1 day to not more than 14 yrs. and 8 months.

[b] Will your answer be the same if it is a conviction for illegal possession of drugs under
R.A. 9165 (Dangerous Drugs Act of 2002), the prescribed penalty of which is also imprisonment for
a term of twelve (12) years and one (1) day to twenty (20) years? Why or why not? (3%)

SUGGESTED ANSWER:

No. My answer will not be the same because violations of Rep. Act 9165 are mala
prohibita in which mitigating and aggravating circumstances are not appreciated. Although in
People v. Simon (234 SCRA 555 [1994]), it was held that Art. 64 can be applied if the special
law adopted the nomenclature of penalties provided under the RPC, such pronouncement
cannot be applied in the instant case because the penalties for illegal possession of drugs
under RA 9165 do not follow the technical nomenclature of penalties in the RPC and thus,
cannot be divided into periods. Hence, the existence of mitigating and aggravating
circumstances cannot be appreciated.

XIII

Angelo devised a Ponzi Scheme in which 500 persons were deceived into investing their
money upon a promise of a capital return of 25%, computed monthly, and guaranteed by post-dated
checks. During the first two months following the investment, the investors received their profits,
but thereafter, Angelo vanished.

Angelo was charged with 500 counts of estafa and 2,000 counts of violation of Batas
Pambansa (BP) 22. In his motion to quash, Angelo contends that he committed a continued crime,
or delito continuado, hence, he committed only one count of estafa and one count of violation of BP
22.

[a] What is delito continuado? (1%)

SUGGESTED ANSWER:

Delito continuado refers to a crime constituted by several overt acts committed by the
offender in one place, at about the same time, and all such overt acts violate one and the
same provision of penal law, thus demonstrating that all such acts are the product of a single
indivisible criminal resolution. Hence, all said acts are considered as one crime only.

[b] Is Angelo's contention tenable? Explain. (4%)

SUGGESTED ANSWER:

No. His contention is not tenable. He committed as many counts of estafa against the
500 victims and 2000 counts of violation of BP 22, since each swindling is achieved through
distinct fraudulent machinations contrived at different times or dates, and in different
amounts. Moreover, his drawing separate checks payable to each payee is a separate criminal
resolution, as they must be of different amounts and of different dates. He acted with
separate fraudulent intent against each swindling victim and had distinct criminal intent in
drawing and issuing each check. It cannot be maintained that his acts are the product of one
criminal resolution only.

ALTERNATIVE ANSWER:

Yes. Angelo committed only one count of estafa and one count of violation of BP 22
because his acts were propelled by one and the same intent to defraud (Santiago v.
Garchitorena, 228 SCRA 214 [1993]).

XIV

Following his arrest after a valid buy-bust operation, Tommy was convicted of violation of
Section 5, Republic Act 9165. On appeal, Tommy questioned the admissibility of the evidence
because die police officers who conducted the buy-bust operation failed to observe the requisite
"chain of custody" of the evidence confiscated and/or seized from him.
What is the "chain of custody" requirement in drug offenses? What is its rationale? What is
the effect of failure to observe the requirement? (3%)
SUGGESTED ANSWER:

"Chain of custody" requirement in drug offenses refers to the duly recorded,


authorized movement and custody of seized dangerous drugs, controlled chemicals, plant
sources of dangerous drugs, and laboratory equipment for dangerous drugs from the time of
confiscation/seizure thereof from the offender, to its turn-over and receipt in the forensic
laboratory for examination, to its safekeeping and eventual presentation/offer in court as
evidence of the criminal violation, and for destruction. (Dangerous Drugs Board Regulation
No.1 Series of 2002)

Its rationale is to preserve the authenticity of the corpus delicti or body of the crime
by rendering it improbable that the original item seized/confiscated in the violation has been
exchanged or substituted with another or tampered with or contaminated. It is a method of
authenticating the evidence as would support a finding beyond reasonable doubt that the
matter is what the prosecution claims it to be.

Failure to observe the "chain of custody" requirement renders the evidence


questionable, not trustworthy and insufficient to prove the corpus delicti beyond reasonable
doubt. Hence, Tommy would be acquitted on reasonable doubt.

XV

Joe was 17 years old when he committed homicide in 2005. The crime is punishable by
reclusion temporal. After two years in hiding, he was arrested and appropriately charged in May
2007. Since Republic Act 9344 (Juvenile Justice and Welfare Act of 2006) was already in effect, Joe
moved to avail of the process of intervention or diversion.

[a] What is intervention or diversion? Is Joe entitled to intervention or diversion? Explain. (3%)

SUGGESTED ANSWER:

The two terms are different.

"Intervention" refers to a series of activities which are designed to address issues that
caused the child to commit an offense. It may take the form of an individualized treatment
program which may include counseling, skills training, education, and other activities that
will enhance his/her psychological, emotional and psycho-social well-being. This is available
to a child 15 years old or less at the time of the commission of the crime or although over 15
but below 18 years old at the time of commission of the crime, the child acted without
discernment.

"Diversion" refers to an alternative, child-appropriate process of determining the


responsibility and treatment of a child in conflict with the law on the basis of his/her social,
cultural, economic, psychological or educational background without resorting to formal
court proceedings. This process governs when the child is over 15 years old but below 18 at
the time of the commission of the crime and he acted with discernment.

Yes. Joe is entitled to diversion. Being only 17 years old at the time he committed the
crime of homicide, he is treated as a child in conflict with the law under RA 9344.

[b] Suppose Joe's motion for intervention or diversion was denied, and he was convicted two
(2) years later when Joe was already 21 years old, should the judge apply the suspension of
sentence? Explain. (2%)
SUGGESTED ANSWER:

No. The The judge should not suspend sentence anymore because Joe was already 21
years old. Suspension of sentence is availing under Rep. Act 9344 only until a child reaches
the maximum age of twenty-one (21) years.

[el Suppose Joe was convicted of attempted murder with a special aggravating circumstance
and was denied suspension of sentence, would he be eligible for probation under Presidential Decree
(PD) 968, considering that the death penalty is imposable for the consummated felony? Explain.
(2%)

SUGGESTED ANSWER:

Yes. He would be eligible for probation because the penalty imposable on Joe will not
exceed 6 years imprisonment.

Even if it would be considered that the crime committed was punishable by death, the
penalty as far as Joe is concerned can only be reclusion perpetua because Rep. Act 9344
forbids the imposition of the capital punishment upon offenders thereunder.

The murder being attempted only, the prescribed penalty is two degree lower than
reclusion perpetua; hence, prision mayor. Because Joe was 17 years old when he committed
the crime, the penalty of prision mayor should be lowered further by one degree because his
minority is a privileged mitigating circumstance; hence, prision correccional or
imprisonment within the range of six months and 1 day to 6 years is the imposable.

XVI

Roger and Jessie, Municipal Mayor and Treasurer, respectively, of San Rafael, Leyte, caused
the disbursement of public funds allocated for their local development programs for 2008. Records
show that the amount of P2-million was purportedly used as financial assistance for a rice
production livelihood project. Upon investigation, however, it was found that Roger and Jessie
falsified the disbursement vouchers and supporting documents in order to make it appear that
qualified recipients who, in fact, are non-existent individuals, received the money.

Roger and Jessie are charged with malversation through falsification and violation of Section
3 (e) of R.A. 3019 for causing undue injury to the government. Discuss the propriety of the charges
filed against Roger and Jessie. Explain. (4%)

SUGGESTED ANSWER:

The charge of malversation through falsification is not correct because the


falsifications of several documents were not necessary means to obtain the money that were
malversed. The falsifications were committed to cover up or hide the malversation and
therefore, should be separately treated from malversation. The given facts state that Roger
and Jessie falsified disbursement vouchers and supporting documents "in order to make it
appear" that qualified recipients received the money. Art. 48, RPC on complex crimes is not
applicable.

They should be charged of violation of Section 3(e) of Rep. Act 3019 for the breach of
public trust and undue injury caused to the Government. The violation is a crime malum
prohibitum.
XVII

Wenceslao and Loretta were staying in the same boarding house, occupying different rooms.
One late evening, when everyone in the house was asleep, Wenceslao entered Loretta's room with
the use of a picklock. Then, with force and violence, Wenceslao ravished Loretta. After he had
satisfied his lust, Wenceslao stabbed Loretta to death and, before leaving the room, took her jewelry.

[a] What crime or crimes, if any, did Wenceslao commit? Explain. (4%).

SUGGESTED ANSWER:

Wenceslao committed the following crimes: (1) the special complex crime of rape with
homicide (2) theft and (3) unlawful possession of picklocks and similar tools under Art. 304,
RPC. His act of having carnal knowledge of Loretta against her will and with the use of force
and violence constituted rape, plus the killing of Loretta by reason or on the occasion of the
rape, gave rise to the special complex crime of rape with homicide. Since the taking of the
jewelry was an afterthought as it was done only when he was about to leave the room and
when Loretta was already dead, the same constitutes theft. His possession and use ofthe
picklock "without lawful cause" is by itself punishable under Art. 304, RPC.

[b] Discuss the applicability of the relevant aggravating circumstances of dwelling,


nocturnity and the use of the picklock to enter the room of the victim. (3%)

SUGGESTED ANSWER:

Dwelling is aggravating because the crimes were committed in the privacy of Loretta's
room which in law is considered as her dwelling. It is well settled that "dwelling" includes a
room in a boarding house being occupied by the offended party where she enjoys privacy,
peace of mind and sanctity of an abode.

Nocturnity or nighttime is also aggravating because although it was not purposely or


especially sought for by Wenceslao, nighttime was obviously taken advantaged of by him in
committing the other crimes. Under the objective test, nocturnity is aggravating when taken
advantaged of by the offender during the commission of the crime thus facilitating the same.
The use of a picklock to enter the room of the victim is not an aggravating circumstance
under Art. 14 of the Code but punished as a crime by itself where the offender has no lawful
cause for possessing it. The use of picklocks is equivalent to force upon things in robbery
with force upon things.

[c] Would your answer to [a] be the same if, despite the serious stab wounds she sustained,
Loretta survived? Explain. (3%)

SUGGESTED ANSWER:

No, the answer will be different. In that case, the crimes committed would be four
separate crimes of ( I) rape (2) frustrated homicide or 'murder (3) theft and (4) unlawful
possession and use of picklocks under Art. 304, RPC. The special complex crime of rape with
homicide is constituted only when both the rape and the killing are consummated; when one
or both of them are not consummated, they are to be charged and punished separately. In
any event, the possession of the picklock "without lawful cause", more so its use in an
unlawful entry is punished as a crime by itself.
XVIII

At the Maligaya Disco Club, Leoncio and Evelyn were intimately dancing a very seductive
dance number. While gyrating with their bodies, Leoncio dipped his private parts in Evelyn's
buttocks. Incensed, Evelyn protested, but Leoncio continued and tightly embraced her.

[a] What crime or crimes, if any, did Leoncio commit? Explain. (3%)

SUGGESTED ANSWER:

Leoncio committed the crime of unjust vexation only because the act was done in the
course of dancing. The act of dipping his private parts in Evelyn's buttocks during a very
seductive dance, although offensive to Evelyn, may be viewed as part of a dirty dancing. Lewd
intent cannot simply be presumed from the act of dirty dancing. The fact that the act was
perpetrated in a public place and with an audience, negates lewd designs or lascivious intent,
which is essential in the crime of acts of lasciviousness.

[b] Would your answer be the same if, even after the music had stopped, Leoncio continued
to dance dirty, rubbing his private parts on Evelyn's buttocks? Explain. (3%)

SUGGESTED ANSWER:

The crime would then be acts of lasciviousness. That the music for dancing had
already stopped, puts an end to any pretense of dancing by Leoncio. His continued dirty acts
absent the dancing as there was no music anymore is patently lewd and lascivious. More so,
Evelyn already protested Leoncio's lewd acts in the course of dancing. So where the dance
ended, Leoncio's continued dirty acts cannot be veiled as still part of dancing.

XIX

Delmo learned that his enemy, Oscar, was confined at the Intensive Care Unit (ICU) of the
Philippine Medical Center. Intending to kill Oscar, Delmo disguised himself as a nurse, entered the
ICU, and saw a man lying on the hospital bed with several life-saving tubes attached to the body.
Delmo disconnected the tubes and left. Later, the resident physician doing his rounds entered the
ICU and, seeing the disconnected tubes, replaced them. The patient survived. It turned out that the
patient was Larry, as Oscar had been discharged from the hospital earlier.

Delmo was charged with frustrated murder, qualified by evident premeditation and
treachery as aggravating circumstances. Discuss the propriety of the charge. (4%)

SUGGESTED ANSWER:

Delmo was correctly charged with the crime of frustrated murder qualified by
treachery—not evident premeditation because the victim was different from the one
premeditated against. Delmo has performed all the acts of execution that would produce the
death of the victim but for reasons independent of the will of the perpetrator, the death of
the victim was not accomplished. Treachery qualifies the crime, because the means, manner
and method of committing the intended killing were consciously adopted to insure its
execution without risk that may arise from the defense the victim may make. Evident
primeditation is absorbed in the treachery.

2008 BAR EXAMINATION


I

a) After due hearing on a petition for a writ of amparo founded on the acts of enforced
disappearance and extralegal killing of the son of the complainant allegedly done by the
respondent military officers, the court granted the petition. May the military officers be
criminally charged in court with enforced disappearance and extralegal killing? Explain
fully. (3%)

SUGGESTED ANSWER:
a) No. "Enforced disappearance and extralegal killing" is not per se a criminal offense
although it is wrongful. The grant of a writ of amparo only provides a. relief; it does not
establish a basis for a crime. Unless the writ was issued because of specific overt acts shown
to have been committed by the respondent military officers and such acts are crimes under
penal laws, no criminal charge may be routinely filed just because the petition for the writ
was granted.

b) Are human rights violations considered as crimes in the Philippines? Explain. (3%)

SUGGESTED ANSWER:

B) Not necessarily, since there are human rights violations which do not amount to
criminal offenses. In this country, there can be no crime when there is no law
punishing an act or omission as a crime.

II

While Carlos was approaching his car, he saw it being driven away by Paolo, a thief. Carlos
tried to stop Paolo by shouting at him, but Paolo ignored him. To prevent his car from being
carnapped, Carlos drew his gun, aimed at the rear wheel of the car and fired. The shot blew the tire
which caused the car to veer out of control and collide with an oncoming tricycle, killing the tricycle
driver.

a) What is the criminal liability of Carlos, if any? Explain. (4%)

SUGGESTED ANSWER:

a) Carlos did not incur criminal liability because his act of firing at the rear wheel of
the car to stop the vehicle and prevent Paolo from taking away his (Carlos') car is neither
done with dolo nor culpa. The act does not constitute a crime; it is a reasonable exercise of
his right to prevent or repel an actual unlawful physical invasion or usurpation of his
property pursuant to Art. 429 of the Civil Code.

b) What is the criminal liability of Paolo, if any? Explain. (4%)

SUGGESTED ANSWER:

b) Paolo is criminally liable for (1) carnapping under Rep. Act No. 6539 for driving
away the motor vehicle of Carlos against the latter's will and obviously with intent to gain
and (2) for homicide for the death of the tricycle driver which resulted from the criminal act
deliberately being committed by Paolo (which is the carnapping), The homicide was the result
of praeter intentionem and not a component of the crime of carnapping or a result of reckless
imprudence or of simple negligence.
ANOTHER SUGGESTED ANSWER:

b) Paolo is criminally liable for qualified theft because the object taken is a motor
vehicle (Art. 310, RPC) and the taking was simply without the consent of Carlos, the owner of
the motor vehicle.

Since the death of the tricycle driver was brought about by Paolo's felonious taking of
Carlos' car, Paolo is liable for homicide because his act was the proximate cause thereof.

ANOTHER ALTERNATIVE SUGGESTEDANSWER:


b) Paolo is liable for the complex crime of frustrated robbery, with homicide and
damage to property (tricycle) in trying to rob the car. This resulted in the shooting of the car
by Carlos and the subsequent collision destroying the tricycle and the death of the driver.

III

Olimpio caught a cold and was running a fever. His doctor prescribed paracetamol. Olimpio
went to a drug store with the prescription, and the pharmacist sold him three (3) tablets. Upon
arriving home, he took a tablet. One hour later, he had a seizure and died. The autopsy showed that
the tablet he had taken was not paracetamol but a pill to which he was allergic. The pharmacist was
charged with murder. Is the charge proper? If not, what should it be? Explain. (6%)

SUGGESTED ANSWER:

The pharmacist committed a serious mistake. But the mistake could not characterize
the death as murder because the specific intent to kill the victim was absent. The pharmacist
could not be liable for murder.

The pharmacist should be charged instead with reckless imprudence resulting in


homicide (Art. 365, RPC) because Olimpio's death was the result of the pharmacist's serious
negligence or imprudence as there is no specific intent to kill and no requisite qualifying
circumstance.

IV

Mancolo revealed to his friend Domeng his desire to kill Cece. He likewise confided to
Domeng his desire to borrow his revolver. Domeng lent it. Manolo shot Cece in Manila with
Domeng's revolver. As his gun was used in the killing, Domeng asked Mayor Tan to help him
escape. The mayor gave Domeng P5,000 and told him to proceed to Mindanao to hide. Domeng went
to Mindanao. The mayor was later charged as an accessory to Cece's murder.

a) Can he be held liable for the charge? Explain. (4%)

SUGGESTED ANSWER:

a) Giving Domeng the benefit of a milder criminal responsibility of an accomplice, not


of a co-principal by indispensable cooperation of Manolo, Mayor Tan could not be liable as an
accessory to Cece's murder. To incur criminal liability of an accessory for helping or assisting
in the escape of an offender, he must be a principal of the crime committed. Unless Domeng
would be considered as a co-principal by indispensable cooperation in the commission of the
murder, the Mayor, by assisting him to escape, would be an accessory to the felony.

b) Can he be held liable for any other offense? Explain fully. (3%)
SUGGESTED ANSWER:

b) Although the Mayor may not be held liable as an accessory to the killing of Cece,
he may be held liable for obstruction of justice under Presidential Decree No. 1829 for
assisting Domeng, who was involved in the commission of a crime, to escape from Manila to
Mindanao.

V
Eman, a vagrant, found a bag containing identification cards and a diamond ring along
Roxas Blvd.
Knowing that it was not his, he went to the nearest police station to seek help in finding the
owner of the bag. At the precinct P01 Melvin attended to him. In the investigation Eman proposed to
P01 Melvin, "in case you don't find the owner let's just pawn the ring and split the proceeds fifty-fifty
(50/50)." P01 Melvin then went straight to the pawnshop and pawned the ring for P50,000. Eman
never saw P01 Melvin again.

a) What is the criminal liability of Eman, if any? Explain. (3%)

SUGGESTED ANSWER:

a) Eman has no criminal liability, unless he received part of the proceeds of the
pawned ring. The facts do not state that Eman received any part of the P50,000.00 proceeds
of the ring pledged. The facts state that after turning over the bag to P01 Melvin, Eman never
saw P01 Melvin again. The proposal Eman made to P01 Melvin is not a crime as to bring
about criminal liability.

b) What is the criminal liability of P01 Melvin, if any? Explain. (3%)

SUGGESTED ANSWER:

b) POI Melvin is criminally liable for theft for having pawned the ring, which he does
not own, and appropriating the proceeds thereof without the consent of the owner thus
demonstrating intent to gain.

P01 Melvin is simply substituted to the possession Eman had when the latter, found
the bag containing the ring. He was under a legal obligation to deliver it to its owner and his
failure to do so amounts to a "taking" which would constitute theft when shown to be
motivated by intent to gain (Art. 308, par. 1, RPC; People v. Avila, 44 Phil. 720, 727 [1923]).

VI

Hubert and Eunice were married in the Philippines. Hubert took graduate studies in
New York and met his former girlfriend Eula. They renewed their friendship and finally
decided to get married. The first wife, Eunice, heard about the marriage and secured a copy of
the marriage contract in New York. Eunice filed a case of bigamy against Hubert in the
Philippines.

a) Will the case prosper? Explain. (4%)

SUGGESTED ANSWER:
a) No, a case for bigamy filed in the Philippines will not prosper because the bigamous
marriage appears to have been committed in New York, U.S.A., not in the Philippines. The
governing rule of procedure as to the place where the criminal action is to be instituted
directs that the criminal action should be instituted and tried in the court of the
municipality or territory where the offense was committed, or where any of its essential
ingredients occurred if it were a continuing crime. In criminal cases, the venue where the
action should be instituted is jurisdictional; if this is not complied with, it would render the
prosecution invalid or void.

b) If Eunice gave her consent to the second marriage, what will your answer be? Explain.
(3%)

SUGGESTED ANSWER:

b) The answer would be the same even if the wife by the first marriage, which is
subsisting, gave her consent to the second marriage. Bigamy is a public crime and not subject
to agreement between the victim and the accused. Moreover, the legal obstacle to the
institution of a case for bigamy in the Philippines is jurisdictional and cannot be excused or
waived by the parties affected.

VII

The inter-island vessel M/ V Viva Lines I, while cruising off Batanes, was forced to seek
shelter at the harbor of Kaoshiung, Taiwan because of a strong typhoon. While anchored in said
harbor, Max, Baldo and Bogart arrived in a speedboat, fired a bazooka at the bow of the vessel,
boarded it and divested the passengers of their money and jewelry. A passenger of M/ V Viva Lines
I, Dodong, took advantage of the confusion to settle an old grudge with another passenger, and
killed him. After their apprehension, all four were charged with qualified piracy before a Philippine
court.

a) Was the charge of qualified piracy against the three persons (Max, Baldo and Bogart) who
boarded the inter-island vessel correct? Explain. (4%)

SUGGESTED ANSWER:

a) The charge is correct. Qualified Piracy was committed when the offenders seized
the vessel by firing on or boarding the same. In the problem, they even went further by
divesting the passengers of their money and jewelry. The vessel was anchored in the harbor of
Kaoshiung, Taiwan and it is submitted that the crime was committed within the territorial
jurisdiction of another country. The Supreme Court has ruled that the high seas
contemplated under Art. 122 of the Revised Penal Code includes the three-mile limit of any
state (People v. Lol-lo, et al., 43 Phil. 1911922]). Moreover, piracy is an offense that can be
tried anywhere because it is a crime against the Law of Nations.

ANOTHER SUGGESTED ANSWER:

a) No, because the territoriality principle of criminal law applies. The crime happened
in Taiwan where the vessel was anchored. It was not committed in the high seas or in
Philippine waters.

b) Was Dodong correctly charged before the Philippine court for qualified piracy? Explain.
(3%)
SUGGESTED ANSWER:

b) No, Dodong was not correctly charged with qualified piracy because committing
piracy was never in his mind nor did he have any involvement in the piracy committed. He
merely took advantage of the situation in killing the passenger. He should be charged with
murder since there was evident premeditation and intent to kill.

VIII

Francis and Joan were sweethearts, but their parents had objected to their relationship
because they were first cousins. They forged a pact in writing to commit suicide. The agreement was
to shoot each other in the head which they did. Joan died. Due to medical assistance, Francis
survived. Is Francis criminally liable for the death of Joan? Explain. (5%)

SUGGESTED ANSWER:

Yes, Francis is criminally liable for Joan's death. His act of shooting her, although
done pursuant to a solemn pact, is nevertheless felonious and is the proximate cause of
Joan's death (Art. 4, par. 1, RPC). Moreover, the mere act of giving assistance to a suicide is a
crime (Art. 253, RPC).

IX

Dennis leased his apartment to Myla for P10,000 a month. Myla failed to pay the rent for 3
months. Gabriel, the son of Dennis, prepared a demand letter falsely alleging that his father had
authorized him to collect the unpaid rentals. Myla paid the unpaid rentals to Gabriel who kept the
payment.

a) Did Gabriel commit a crime? Explain. (4%)

SUGGESTED ANSWER:

Yes. Gabriel committed a crime; it was either the crime of falsification of a private
document (if damage or at least intent to cause damage could be proved) or the crime of
swindling only. It could not be both falsification and swindling or a complex crime of estafa
through falsification since the document falsified is a private document. The two crimes
cannot go together.

B. Can Gabriel invoke his relationship with Dennis to avoid criminal liability? Explain. (3%)

SUGGESTED ANSWER:

If Gabriel would be made criminally liable for falsification of a private document, he


cannot invoke his relationship with Dennis, his father, to avoid criminal liability because Art.
332 of the Revised Penal Code provides exemption from criminal liability in crimes against
property only for theft, swindling or malicious mischief but not for falsification of documents.
If he would be made criminally liable for swindling, he can invoke his relationship with
Dennis because this crime cannot be complexed with falsification of a private document. The
charge could, therefore, stand alone. The exemption in Art. 332 will obtain.
X
Upon opening a letter containing 17 money orders, the mail carrier forged the signatures of
the payees on the money orders and encashed them. What crime or crimes did the mail carrier
commit? Explain briefly. (6%)

SUGGESTED ANSWER:

The mail carrier's act of opening the letter containing the 17 money orders and
encashing them constitutes a continued crime of qualified theft, because the object taken is
mail matter and the taking was with evident intent to gain (Art. 310, RPC).
Moreover, the mail carrier's act of forging the signatures of the payees of said money
orders constitutes falsification of commercial documents. It was made to appear that the
payees signed them when in fact they did not. When the mail carrier encashed the money
orders, he defrauded and caused damage to the remitters who gave the cash. The mail carrier
further incurred the crime of estafa through falsification of commercial documents.

XI

Ricky was reviewing for the bar exam when the commander of a vigilante group came to him
and showed him a list of five policemen to be liquidated by them for graft and corruption. He was
further asked if any of them is innocent. After going over the list, Ricky pointed to two of the
policemen as honest. Later, the vigilante group liquidated the three other policemen in the list. The
commander of the vigilante group reported the liquidation to Ricky. Is Ricky criminally liable?
Explain. (7%)

SUGGESTED ANSWER:

No, Ricky is not criminally liable because he has not done any overt act that the law
punishes as a crime. He did not conspire with the vigilante group. Although his act of
pointing out two policemen as honest men may imply his acquiescence to the vigilante's
conclusion that the others were corrupt and deserved to be killed, mere acquiescence to a
crime, absent any criminal participation, does not make one a co-conspirator.

XII

Raissa and Martin are married to each other but had been separated for the last five years.
Raissa decided to wed Juan, her suitor, who had no inkling that she was married. Raissa and Juan
accomplished an application for marriage license which they subscribed and swore to before the
Local Civil Registrar. Raissa declared, in the application, that she is single. The marriage license was
issued. In due time, the couple were married by the mayor. Raissa and Juan had their first sexual
intercourse later in the evening.

What crime or crimes, if any, did Raissa commit? Explain briefly. (7%)

SUGGESTED ANSWER:

Raissa committed the crime ofbigamy for contracting a second marriage while her
marriage to Martin is still subsisting. There was neither judicial declaration of dissolution or
nullity of the first marriage with Martin nor a judicial declaration of legal absence of Martin.
The falsehood she stated in the application for the license which she swore to, although
felonious, should be considered absorbed in the crime ofbigamy since they are routine
incidents in contracting any marriage, including a bigamous marriage. It is absorbed in the
crime of bigamy.
Raissa also committed adultery by having sexual intercourse with Juan, who is not her
husband. She is still legally married to Martin. The intercourse cannot be absorbed in the
bigamous marriage because the crime of bigamy was already consummated when adultery was
committed. It should not be overlooked, however, that adultery is a private crime. It requires
a complaint solely from the offended spouse. A complaint from Martin is indispensable to
prosecute Raissa's adultery.

XIII

Lucas had been the stay-in houseboy of spouses Nestor and Julia for five years. One night,
while Nestor and Julia were out having dinner, Lucas and his friend Pedro gained entry into the
masters' bedroom with the use of a false key.

They found Julia's jewelry box in one of the cabinets, wh was unlocked. Lucas believed that
Julia's jewelry v inside the box. Unknown to Lucas and Pedro, the box v empty. Pedro took the box
and left the bedroom with Luc They were shocked when they saw Nestor in the sz pointing a gun at
them. Nestor ordered them to stop hand over the box. Pedro complied. It turned out that Nes had
just arrived in time to see Lucas and Pedro leaving masters' bedroom with the box.

State with reasons, the crime or crimes, if any, Lu, and Pedro committed. (7%)

SUGGESTED ANSWER:

Lucas committed qualified theft. Pedro commit simple theft only. There was taking of
personal propel the jewelry box, belonging to another (Julia), with int to gain and without the
consent of the owner but with violence, intimidation of persons or force upon thin The use of
a false key is legally considered as a force III things, if used to gain entry to the house or
building not when used enter a locked room inside such house building. Thus, the taking only
constitutes theft.

The crime is qualified theft as to Lucas only, althoi there is evident conspiracy
between him and Pedro, beta the circumstance qualifying the theft is personal only Lucas but
not to Pedro.

The theft is already consummated because offenders had already taken out of the
cabinet Jul jewelry box, which she intended to remain in the cable The asportation was
completed when they succeeded taking out Julia's jewelry box from the cabinet.

ANOTHER SUGGESTED ANSWER:

Lucas and Pedro may be held liable only for impossible crime of theft because what
they had in in in taking the jewelry box was to take Julia's jewelry. However, it turned out to
be empty. The impossibility of committing the crime of theft is factual or physical since
there is no jewelry to steal inside the box.

ANOTHER ALTERNATIVE SUGGESTED ANSWER:

Lucas and Paolo would also be liable for possession of picklocks or similar tools under
Art. 304, in relation to Art. 305 of the Penal Code.

XIV
Eliseo, the deputy sheriff, conducted the execution sale of the property of Andres to satisfy
the judgment against him in favor of ABC Corporation, a government-owned or controlled
corporation with an original charter. However, the representative of the corporation failed to attend
the auction sale. Gonzalo, the winning bidder, purchased the property for P100,000 which he paid
to Eliseo. Instead of remitting the amount to the Clerk of Court as ex-officio Provincial Sheriff, Eliseo
lent the amount to Myrna, his officemate, who promised to repay the amount within two months,
with interest thereon. However, Myrna reneged on her promise. Despite demands of ABC
Corporation, Eliseo failed to remit the said amount.

a) State with reasons, the crime or crimes, if any, committed by Eliseo. (4%)

SUGGESTED ANSWER:

a) The crime committed by Eliseo is malversation since he is a public officer who


received the amount in his official capacity; thus he is accountable for it.

b) Would your answer to the first question be the same if ABC Corporation were a private
corporation? Explain. (3%)

SUGGESTED ANSWER:

b) The crime would still be malversation even if ABC Corporation, in whose favor the
judgment was rendered, were a private corporation. This is because the P100,000.00 came
from the sale of property levied upon or seized upon execution ordered by the court. The
property was in custodia legis. Although not strictly public property, it has become impressed
with the character of public property when Eliseo, in his official capacity, conducted the
execution sale and received it proceeds. As long as Eliseo has not accounted for and turned
over the proceeds officially, he is not relieved of his official accountability.

XV

Roger, the leader of a crime syndicate in Malate, Manila, demanded the payment by Antonio,
the owner of a motel in that area, of P10,000 a month as 'protection money". With the monthly
payments, Roger assured, the syndicate would provide protection to Antonio, his business, and his
employees. Should Antonio refuse, Roger warned, the motel owner would either be killed or his
establishment destroyed. Antonio refused to pay the protection money. Days later, at around 3:00 in
the morning, Mauro, a member of the criminal syndicate, arrived at Antonio's home and hurled a
grenade into an open window of the bedroom where Antonio, his wife and their three year-old
daughter were sleeping. All three of them were killed instantly when the grenade exploded.

State, with reasons, the crime or crimes that had been committed as well as the aggravating
circumstances, if any, attendant thereto. (7%)

SUGGESTED ANSWER:

By demanding "protection money" under threat and intimidation that the


businessman (Antonio) would be killed or his establishment destroyed if he would refuse to
pay the protection money, the crime of grave threats is committed by Roger, the leader of
the crime syndicate.

For killing the businessman, his wife and three year-old daughter, the complex crime
of multiple murder was committed by Mauro, a member of the same crime syndicate. The
killing is qualified by the use of an explosive (hand grenade). The treachery attending the
killing shall be separately appreciated as another aggravating circumstance aside from the
use of explosive as the qualifying circumstance.

Other aggravating circumstances which may be appreciated are:

1. Dwelling, because the killings were committed in the home of the victims who had
not given any provocation;
2. Nocturnity, considering that the offenders carried out the killing at around 3:00
AM, indicative of a deliberate choice of nighttime for the commission of the crime;
3. Treachery, under Art. 14, par. 16, RPC, mentioned above, considering that victims
were all asleep when killed; and
4. The offense was committed by a person who belongs to an organized/syndicated
crime group under the Heinous Crimes Law (Sec. 23 R.A. 7659), amending for this purpose
Art. 62(1) of the Revised Penal Code.

2007 BAR EXAMINATION

1
(10%)

What are the penalties that may be served simultaneously?

SUGGESTED ANSWER:

The penalties that may be served simultaneously are imprisonment/ destierro and:
1. Perpetual absolute disqualification;
2. Perpetual special disqualification;
3. Temporary absolute disqualification;
4. Temporary special disqualification;
5. Suspension from public office, the right to vote and be voted for, and the right to
follow a profession or calling;
6. Fine; and any principal penalty with its accessory penalties.

II
(10%)

Tuburcio asked Anastacio to join their group for a "session". Thinking that it was for a
mahjong session Anastacio agreed. Upon reaching Tiburcio's house, Anastacic discovered that
it was actually a shabu session. At that precise time, the place was raided by the police, and
Anastacio was among those arrested.

What crime can Anastacio be charged with, if any? Explain your answer.

SUGGESTED ANSWER:

Anastacio may not be charged of any crime.

Sec. 7 of Rep. Act. 9165 on the Comprehensive Dangerous Drugs of 2002 punishes
employees and visitors of a den, dive or resort where dangerous drugs are used in any form.
But for a visitor of such place to commit the crime, it is a requisite that he "is aware of the
nature of the place as such and shall knowingly visit the same." These requisites are absent in
the facts given.

III
(10%)

Jervis and Marlon asked their friend, Jonathan, to help them rob a bank. Jervis and Marlon
went inside the bank, but were unable to get any money from the vault because the same was
protected by a time-delay mechanism. They contented themselves with the customers' cellphones•
and a total of P5,000 in cash. After they dashed out of the bank and rushed into the car, Jonathan
pulled the car out of the curb, hitting a pedestrian which resulted in the latter's death.

What crime or crimes did Jervis, Marlon and Jonathan commit? Explain your answer.

SUGGESTED ANSWER:

Jervis and Marlon committed the crime of robbery, while Jonathan committed the
special complex crime of robbery with homicide.
Jervis and Marlon are criminally liable for the robbery only, because that was the
crime conspired upon and actually committed by them, assuming that the taking of the
cellphones and the cash from the bank's customers was effected with intimidation. They will
not incur liability for the death of the pedestrian because they have nothing to do with it.
Only Jonathan will incur liability for the death of the pedestrian, aside from the robbery,
because he alone brought about such death. Although the death caused was not intentional
but accidental, it shall be a component of the special complex crime of robbery with homicide
because it was committed in the course of the commission of the robbery.

ALTERNATIVEANSWER:

Jervis, Marlon and Jonathan committed robbery with homicide, because there was
conspiracy among them to commit the robbery and the death of the pedestrian was caused on
the occasion of the robbery. Even though the death was accidental, it is enough that such
death was caused by any of the robbers' felonious act and on the occasion of the commission
of the robbery (People v. Guiapar, 129 SCRA. 539 [1984]).

IV
( 10%)

Mackv, a security guard, arrived home late one night after rendering overtime. He was
shocked to see Joy, his wife, and Ken, his best friend, in the act of having sexual intercourse.
Macky pulled out his service gun and shot and killed Ken. Macky was charged with murder for
the death of Ken.

The court found that Ken died under exceptional circumstances and exonerated
Macky of murder but sentenced him to destierro, conformably with Article 247 of the Revised
Penal Code. The court also ordered Macky to pay indemnity to the heirs of the victim in the
amount of P50,000.

(a) Did the court correctly order Macky to pay indemnity even though he was exonerated of
murder? Explain your answer.

SUGGESTED ANSWER:
(a) No, the court did not act correctly in ordering the accused to indemnify the
victim. Since the killing of Ken was committed under the exceptional circumstances in
Article 247, Revised Penal Code, it is the consensus that no crime was committed in the light
of the pronouncement in People v. Cosicor (79 Phil. 672 [1947]) that banishment (destierro) is
intended more for the protection of the offender rather than as a penalty. Since the civil
liability under the Revised Penal Code is the consequence of criminal liability, there would be
no legal basis for the award of indemnity when there is no criminal liability.

ALTERNATIVE ANSWER:

Yes, because the crime punishable by destierro was committed, which is death under
exceptional circumstances under Art. 247 of the Revised Penal Code.

(b) While serving his sentence, Macky entered the prohibited area and had a pot session
with Ivy, (Joy's sister). Is Macky entitled to an indeterminate sentence in case he is.found guilty of
use of prohibited substances? Explain your answer.

SUGGESTED ANSWER:

(b) No, Macky is not entitled to the benefit of the Indeterminate Sentence Law (Act
4103, as amended) for having evaded the sentence which banished or placed him on.
destierrro. Sec. 2 of the said law expressly provides that the law shall not apply to those who
shall have "evaded sentence".

ALTERNATIVE ANSWER:

No, because the penalty for use of any dangerous drug by a first offender is not
imprisonment but rehabilitation in a government center for a minimum period of six (6)
months (Sec. 15, R.A. 91651. The Indeterminate Sentence Law does not apply when the
penalty is imprisonment not exceeding one year.

V
(10%)

a.) Distinguish between an accomplice and a conspirator.

SUGGESTED ANSWER:

(a) The distinctions between an accomplice and a conspirator are:

1. An accomplice incurs criminal liability by merely cooperating in the execution of


the crime without participating as a principal, by prior or simultaneous acts; whereas a
conspirator participates in the commission of a crime as a co-principal.

2. An accomplice incurs criminal liability in an individual capacity by his act alone of


cooperating in the execution of the crime; while a conspirator incurs criminal liability not
only for his individual acts in the execution of the crime but also for the acts of the other
participants in the commission of the crime collectively. The acts of the other participants in
the execution of the crime are considered also as acts of a conspirator for purposes of
collective criminal responsibility.
3. An accomplice participates in the execution of a crime when the criminal design or
plan is already in place; whereas a conspirator participates in the adoption or making of the
criminal design.

4. An accomplice is subjected to a penalty one degree lower than that of a principal;


whereas a conspirator incurs the penalty of a principal.

(b) What are the three (3) classes of offenders in the crime of qualified seduction? Give an
example of each.

SUGGESTED ANSWER:

(b) The three (3) classes of offenders in the crime of qualified seduction are:

1. Those who exercise moral influence over the victim, such as a priest who acts as
spiritual adviser of the victim, or a teacher in the school where the victim is enrolled;

2. A brother or ascendant by consanguinity of the victim, such as her uncle; and


3. Those who are regarded as "domestic" in relation to the victim, enjoying the
confidence and intimacy shared by members of the same household, such as household
helpers and boarders living under the same roof and with same household as the victim.

ALTERNATIVE ANSWER:

The three (3) classes of offenders in the crime of qualified seduction are:

1. Those who abuse their authority. Examples: person in public authority, guardian,
teacher or a person who, in any capacity, is entrusted with the education or custody of the
woman seduced.

2. Those who abuse the confidence reposed on them. Examples: priest, house servant,
domestics.

3. Those who abuse their relationship. Examples: a brother who seduced his sister;
ascendant who seduced his descendant. (Article 337, Revised Penal Code)

VI
(10%)

What are the different acts of inciting to sedition?

SUGGESTED ANSWER:

The different acts which constitute the crime of inciting to sedition are:

1. Inciting others through speeches, writings, banners and other media of


representation to commit acts which constitute sedition;

2. Uttering seditious words, speeches or circulating scurrilous libels against the


Government of the Philippines or any of its duly constituted authorities, which tend to
disturb or obstruct the performance of official functions, or which tend to incite others to
cabal and meet for unlawful purposes;
3. Inciting through the same media of representation rebellious conspiracies or riots;

4. Stirring people to go against lawful authorities, or disturb the peace and public
order of the community or of the Government; or

5. Knowingly concealing any of the aforestated evil practices (Art. 142, Rev. Penal
Code).

VII
(10%)

Eddie brought his son Randy to a local faithhealer known as "Mother Hijnala." He was
diagnosed by the faithhealer as being possessed by an evil spirit. Eddie thereupon authorized the
conduct of a "treatment" calculated to drive the "spirit" from the boy's body. Unfortunately, the
procedure conducted resulted in the boy's death.

The faithhealer and three others who were part of the healing ritual were charged with
murder and convicted by the lower court. If you were the appellate court Justice, would you sustain
the conviction upon appeal? Explain your answer.

SUGGESTED ANSWER:

No, the conviction for murder should not be sustained, because there is no indication
that the accused acted with intent to kill Randy. On the contrary, the facts show that the
accused acted to "treat" the victim in a way of driving the evil spirit which was believed to
have "possessed" him. Considering that proximate cause of the victim's death was the healing
ritual done by the accused which is, not recognized in law as legitimate, the accused are
criminally liable for the victim's death. As they may have overdone the "healing ritual" they
conducted on the victim's body, causing the latter's death, although the intent to kill was
absent, the accused may be held criminally liable for Reckless Imprudence Resulting in
Homicide.

ALTERNATIVE ANSWER:

No, because none of the circumstances qualifying the killing to murder in Art. 248
attended the crime. The faithhealer and his co-accused should only be liable for homicide,
because they are not authorized by law to practice medicine and were therefore acting
illegally although the wrongful act done was different from what they intended.

VIII
(10%)

Fe is the manager of a rice mill in Bulacan. In order to support a gambling debt, Fe made it
appear that the rice mill was earning less than it actually was by writing in a "tuiaa.n." or ledger a
figure lower than what was collected and paid by their customers. Fe then pocketed the difference.
What crime/s did Fe commit, if any? Explain your answer.

SUGGESTED ANSWER:

If the "talaan" or ledger which Fe made to.show a falsehood was a private document, the
only crime that Fe committed was estafa thru abuse of confidence or unfaithfulness. Criminal
liability for falsification of a private document does not arise without damage or at least proof of
intent to cause damage. It cannot co-exist with the crime of estafa which also essentially requires
damage or at least proof of intent to cause damage. Since the "talaan" was falsified to cover-up or
conceal the misappropriation of the amount involved, whatever damage or intent to cause damage
attends the falsification, it will be the same damage or intent to cause damage that will attend the
estafa.

If such " talaan" or ledger was' a commercial document, damage or proof of intent to cause
damage is , not necessary. The falsification alone if done with intent to pervert the truth, would
bring about criminal liability for falsification of a commercial document. Damage or intent to cause
damage, would sustain the estafa independently of the falsification of the commercial document. In
this case, two (2) separate crimes are committed; namely, estafa and falsification of the commercial
document. The falsification should not be complexed with the estafa since it was not committed as a
necessary means to commit the estafa but rather resorted to, to conceal or hide the
misappropriation of the amount she pocketed.

ALTERNATIVE ANSWER:

The crimes committed by Fe are theft and falsification of private document because
Fe’s possession of the proceeds of the rice mill was only physical, not juridical, possession,
and having committed the crimes with grave abuse of confidence, it is qualified theft. The
falsification is a separate crime from the theft because it was not committed as a necessary
means to commit the theft but resorted to only to hide or conceal the unlawful taking.

IX
(10%)

During a concert of Gary V., and in order to prevent the crowd from rushing to the stage,
Rafael Padilla (a security guard) pointed his gun at the onrush of people. When the crowd still
pushed forward, Rafael fired his gun into the air to scare them off. However, the bullet hit one of the
metal roof supports, ricocheted and then hit one of the stage crew members, causing injuries which
resulted in the latter's confinement in a hospital for twelve days.

What crime/ s did Rafael commit? Explain your answer

SUGGESTED ANSWER:

The crime committed by Rafael is Simple Negligence Resulting in Less Serious


Physical Injuries. Rafael is a security guard and was on duty when he discharged the firearm.
The discharge of the firearm was not calculated to cause alarm or danger but simply to ward
off the unruly crowd which persisted in pushing forward, thereby challenging the duty he was
to fulfill there. The discharge of the firearm, therefore, should neither constitute a crime of
Alarms and Scandal under Art. 155 of the Revised Penal Code nor may such discharge amount
to a crime of Illegal Discharge of Firearms under Art. 254 of the Code since it was not
directed towards a particular person when the firearm was discharged.

However, the physical injuries resulting from the discharge of the firearm betrays a
lack of precaution in a situation where the danger to the discharge of the firearm is not
clearly manifest, thus considered as simple imprudence only. The crime committed is Simple
Imprudence Resulting In Less Serious Physical Injuries, since the physical injuries required
only twelve (12) days of medical attention.

ALTERNATIVE ANSWER:
The crime is reckless imprudence resulting in less serious physical injuries, because
the discharge of the firearm was not necessary under the circumstances and therefore, Rafael
should be aware of the possibility of injuries that could result from such discharge of the
firearm.

X
(10%)

Pinky was a lessee of a market stall owned by Giovanni. When Pinky refused to pay her
rental, Giovanni nailed some wooden barricades on one of the sides of the market stall and
posted this warning: "We have closed this portion of the door. Do not open it or else
something may happen to you."

What crime/ s did Giovanni commit, if any? Explain your answer?

SUGGESTED ANSWER:

The crime committed by Giovanni is light coercion under Art. 287 of the Rev. Penal
Code, commonly referred to as unjust vexation. Although what was done by Giovanni could
reasonably be assumed as a retaliation to the lessee's refusal to pay rent, absent any clear
violence in the premises, such would not bring about a case of grave coercion. The situation
should be interpreted liberally in favor of the offender. The rule of pro reo precludes any
finding for grave coercion, because it would be against the offender.

The written warning which states "or else something may happen to you" is so
equivocal that it may not be interpreted as felonious. A crime is never presumed; it is the
contrary that is presumed.

ALTERNATIVE ANSWER:

The crime committed by Giovanni is grave coercion because barricading one of the
sides of the market stall was an act of violence deliberately done. It is not only an act of
unjust vexation or light coercion but of grave coercion.

2006 BAR EXAMINATION


I

Motive is essential in the determination of the commission of a crime and the .liabilities of
the perpetrators. What are the instances where proof of motive is not essential or required to justify
conviction of an accused? Give at least 3 instances. 5%

SUGGESTED ANSWER:

Proof of motive is not required –

a) Where the offender is positively identified or


b) has admitted the commission of the crime (People v. Yurong, 133 SCRA 26 (1984] citing
People v. Realon, et. al., 94 SCRA 422 [1980]);
c) Where the crime committed is a malum prohibitum; or
d) Where the crime is the product of culpa or criminal negligence.

II
1. When can a Filipino citizen residing in this country use an alias legally? Give 3 instances. 2.5%

2. Under what situations may a private person enter any dwelling, residence, or other
establishments without being liable for trespass to dwelling? 2.5%

SUGGESTED ANSWER:

Yes, an alias may be legally used -


a) as a pseudonym in cinema and other entertainment field;
b) as a pen name in literary composition or work;
c) as a pseudonym in television and radio broadcasting (Ursua v. CA, 256 SCRA 147
11986); RA 6085, Secs. 1 & 2;

SUGGESTED ANSWER:

2. A private person may enter a dwelling, residence, or other establishment without being
liable for trespass to dwelling in the following situations:

a) where a person so enters to avoid some serious harm to himself; or


b) he did so to save or help an occupant thereof or some other person from serious
harm;
c) where a person so enters to render service to humanity or to the cause of justice;
and
d) where a person enters establishments which cater to public service while still open
for such patronage (RPC, Art. 280 last par.)
e) if a public officer or person authorized is conducting a valid arrest or valid search
and seizure (Rules on Criminal Procedure, Rule 113).

III

1. What are the 3 ways of committing arbitrary detention? Explain each. 2.5%
2. What are the legal grounds for detention? 2.5%
3. When is an arrest by a peace officer or by a private person considered lawful? Explain. 5%

SUGGESTED ANSWER:

1. Three (3) ways of committing arbitrary detention


are:
a) by detaining or locking up a person without any legal cause or ground
therefor purposely to restrain his liberty (RPC, Art. 124);
b) by delaying delivery to the proper judicial authority of a person lawfully
arrested without a warrant (RPC, Art. 125); and
c) by delaying release of a prisoner whose release has been ordered by
competent authority (RPC, Art. 126).

In all the above-stated ways, the principal offender should be a public officer acting
under color of his authority.

SUGGESTED ANSWER:

2. The legal grounds for detention are;


a) commission of a crime;
b) violent insanity or other ailment requiring compulsory confinement in an
institution established for such purpose.

SUGGESTED ANSWER:

Arrest by a peace officer or by a private person is lawful –

a) when in his presence, the person to be arrested has committed, is actually


committing, or is attempting to commit an offense;
b) when an offense has just been committed and he has probable, cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and
c) when the person to be arrested is a prisoner who has escaped from penal
establishment or place where he is serving sentence or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another (Rules on Criminal Procedure, Rule 113, Sec. 5).

IV

1. Enumerate the differences between pardon and amnesty. 2.5%


2. Under Presidential Proclamation No. 724, amending Presidential Proclamation No.
347, certain crimes are covered by the grant of amnesty. Name at least 5 of these crimes.
2.5%
3. Can former DSWD Secretary Dinky Soliman apply for amnesty? How about
columnist Randy David? (You are supposed to know the crimes or offenses ascribed to them
as published in almost all newspapers for the past several months.) 2.5%
4. General Lim and General Querubin of the Scout Rangers and Philippine Marines,
respectively, were charged with conduct unbecoming an officer and a gentleman under the
Articles of War. Can they apply for amnesty? 2.5%

SUGGESTED ANSWER:

The differences between pardon and amnesty are –

In pardon:

The convict is excused from serving the sentence but the effects of conviction
remain unless expressly remitted by the pardon; hence, for pardon to be valid there
must be a sentence already final and executory at the time the same is granted.
Moreover, the grant is in favor of individual convicted offenders, not to a class of
convicted offenders; and the crimes subject of the grant may be common crimes or
political crimes. Finally, the grant is a private act of the Chief Executive which does
not require the concurrence of any other public officer or office.

In amnesty;

The criminal complexion of the act constituting the crime is erased, as though
such act was innocent when committed; hence, the effects of the conviction are
obliterated. Amnesty is granted is in favor of a class of convicted offenders, not to
individual convicted offenders; and the crimes involved are generally political
offenses, not common crimes. Amnesty is a public act that requires the conformity or
concurrence of the Philippine Senate.
2. Crimes covered by the grant of amnesty, under Presidential Proclamation
No. 724: (at least 5)
a. Rebellion or insurrection
b. Coup d'etat
c. Conspiracy and proposal to commit rebellion, insurrection or coup d'etat
d. Disloyalty' of public officers or employs
e. Inciting to rebellion or insurrection
f. Sedition
g. Conspiracy to commit sedition
h. Inciting to sedition
i. Illegal assembly
j. Illegal association
k. Direct Assault
I. Indirect Assault
m. Resistance and disobedience to a person in authority or agents of such
persons
n. Tumults and other disturbances of public order
o. Unlawful use of means of publication and unlawful utterances
p. Alarms and scandals
q. Illegal poSsession of firearms, ammunitions, and explosives, committed in
furtherance of, incident to, or in connection with the crimes of rebellion and
insurrection
r. Violations of Articles of War:
r.1. Art. 59 (Desertion)
r.2. Art. 62 (Absence without Leave)
r.3. Art. 67 (Mutiny or Sedition)
r.4. Art. 68 (Failure to Suppress Mutiny or Sedition)
r.5. Art. 94 (Various Crimes)
r.6. Art. 96 (Conduct unbecoming an officer and gentleman)
r.7. Art. 97 (General Article)

ANOTHER SUGGESTED ANSWER:

Crimes covered by the grant of amnesty are: (at least 5)


Illegal assembly;
Alarms and scandal;
Illegal association;
Disloyalty by public officers/employees;
Illegal possession of firearms.

SUGGESTED ANSWER:

3. Both Dinky Soliman and Randy David may apply for amnesty because the
crime respectively imputed to them are crimes against public order which are among
the crimes covered by amnesty.

SUGGESTED ANSWER:

Yes. General Lim and General Querubin of the Scout Rangers and Philippine
Marines can apply for amnesty. Violation of conduct unbecoming an officer and a
gentleman under Article 96 of the Articles of War is explicitly enumerated in Section 1
of Presidential Proclamation No 724 as one of the crimes that are covered by the grant
of amnesty.
V
There are at least 7 instances or situations in criminal cases wherein the accused,
either as an adult or as a minor, can apply for and/or be granted a suspended sentence.
Enumerate at least 5 of them. 5%

SUGGESTED ANSWER:

Instances when sentence may be suspended are: (at least 7 instances)


a) where the accused became insane before sentence could be promulgated (Art.
79, RPC);
b) where the offender, upon conviction by the trial court, filed an application
for probation which has been granted (Baclayon v. Mutia, 129 SCRA 148119841);
c) where the offender needs to be confined in a rehabilitation center because of
drug-dependency although convicted of the crime charged;
d) where the offender is a youthful offender under Art. 192, PD 603, otherwise
referred to as the Child and Youth Welfare Code; and
e) where the, crime was committed when the offender is under 18 years of age
and he is found guilty thereof in accordance with Rep. Act 9344, otherwise known as
the "Juvenile Justice and Welfare Act of 2006", but the trial court subjects him to
appropriate disposition measures as prescribed by the Supreme Court in the Rule on
Juveniles in Conflict with the Law.
f) the death sentence shall be suspended upon a woman while she is pregnant
or within one year after delivery. (Art. 83, Revised Penal Code)
g) Section 66 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002)

SECTION 66. Suspension of Sentence of a First-Time Minor Offender. - An


accused who is over fifteen (15) years of age at the time of the commission of the
offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of
age at the time when judgment should have been promulgated after having been found
guilty of said offense, may be given the benefits of a suspended sentence, subject to
the following conditions:

(a) He/she has not been previously convicted of violating any provision of this
Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code;
or of any special penal laws;
(b) He/she has not been previously committed to a Center or to the care of a
DOH-accredited physician; and
(c) The, Board favorably recommends that his/her sentence be suspended xxx"

"SECTION 66. Suspension of Sentence of a First-Time Minor Offender. - An


accused

h) When the sentence is death, its execution may be suspended or postponed


by the Supreme Court, through the issuance of a RO upon the ground of supervening
events (Echegaray v. Secretary of Justice, 301 SCRA 96 [19991).

VI

1. In 1982, the Philippine National Bank (PNB), then a government banking institution,
hired Henry dela Renta, a CPA, as Regional Bank Auditor. In 1992, he resigned and was employed
by the Philippine Deposit Insurance Corporation (FDIC), another government-owned and controlled
corporation. In 1995, after the PNB management unearthed many irregularities and violations of the
bank's rules and regulations, dela Renta was found to have manipulated certain accounts involving
trust funds and time deposits of depositors. After investigation. he was charged with malversation of
public funds before the Sandiganbayan. He filed a motion to dismiss contending he was no longer
an employee of the PNB but of the PDIC.

Is dela Renta's contention tenable? 2.5%

2. After his arraignment, the prosecution filed a motion for his suspension pendente lite, to
which he filed an opposition claiming that he can no longer be suspended as he is no longer an
employee of the PNB but that of the PDIC.

Explain whether he may or may not be suspended. 2.5%

SUGGESTED ANSWER:

1. No, dela Renta's contention is not tenable for these reasons:


a) His contention that he is no longer an employee of PNB but of PDIC has no
merit since both PNB and FDIC are government institutions and the funds thereof
belong to the same Government who suffers from the malversation; (Sec. 4, PD 1606,
as amended).
b) Resignation or separation from office is not a ground for extinguishing
criminal liability under Art. 89 of the Revised Penal Code, for any crime committed
while the offender was connected with the office; and
c) The crime of malversation was discovered only in 1995 and so, the
prescriptive period of the crime only commenced to run from then. Obviously, the
amount misappropriated exceeds P200.00 and so the prescribed penalty is within the
range of prision mayor already. Crimes punishable by prision mayor prescribes in 15
years. From 1995 to the present is only around 11 years. Hence the crime can still be
prosecuted.

SUGGESTED ANSWER:

2. The accused may be validly suspended from office in PDIC because PDIC is a
government-owned and controlled corporation; hence a public office. When the Information
charges the accused with acts of fraud involving Government funds, the suspension of the
accused pendente lite assumes a mandatory character and the court may order the
suspension of the accused regardless of whether the prosecution files a motion for the
preventive suspension of the accused, or the motion is filed by the counsel of the government
agency concerned, with or without the conformity of the public prosecutor (Robles et al., v.
Layosa et al., 436 SCRA 337 12 Aug 04).

VII

1. While SS Nagoya Mani was negotiating the sea route from Hongkong towards Manila, and
while still 300 miles from Aparri, Cagayan, its engine malfunctioned. The Captain ordered the ship
to stop for emergency repairs lasting for almost. 15 hours. Due to exhaustion, the officers and crew
fell asleep. While the ship was anchored, a motorboat manned by renegade Ybanags from Claveria,
Cagayan, passed by and took advantage of the situation. They cut the ship's engines and took away
several heavy crates of electrical equipment and loaded them in their motorboat. Then they left
hurriedly towards Aparri. At daybreak, the crew found that a robbery took place. They radioed the
Aparri Port Authorities resulting in the apprehension of the culprits.

What crime was committed? Explain. 2.5%


2. Supposing that while the robbery was taking place, the culprits stabbed a member of the
crew while sleeping.

What crime was committed? Explain. 2.5%

SUGGESTED ANSWER:

1. The crime committed was piracy under Art. 122, Revised Penal Code, the essence of
which is robbery directed against a vessel and/or its cargoes. The taking of the several heavy
crates of electrical equipment from a vessel at sea, was effected by force and undoubtedly
with intent to gain. It is of no moment that the vessel was anchored when depredated so long
as it was at sea.

SUGGESTED ANSWER:

2. The crime was qualified piracy under Art. 123 of the Revised Penal Code because it
was attended by a killing committed by the same culprits against a member of the crew of the
vessel.

VIII

Commissioner Marian Torres of the Bureau of Internal Revenue (BIR) wrote solicitation letters
addressed to the Filipino-Chinese Chamber of Commerce and Industry and to certain CEOs
ofvarious multinational corporations requesting donations of gifts for her office Christmas party.
She used the Bureau's official stationery. The response was prompt and overwhelming so much so
that Commissioner Torres' office was overcrowded with rice cookers, radio sets, freezers, electric
stoves and toasters. Her staff also received several envelopes containing cash money for the
employees' Christmas luncheon.

Has Commissioner Torres committed any impropriety or irregularity? What laws or


decrees did she violate? 5%

SUGGESTED ANSWER:

Yes, Commissioner Torres committed an impropriety. She violated Sec. 7(d) of Rep. Act
6713 otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and
Employees”. Sec. 7(d) mandates that public officials and employees shall not solicit or accept
directly or indirectly any gift, favor, entertainment, loan or anything of monetary value from
any person in the course of£ her official duties or any transaction which may be affected by
the functions of their office.

ANOTHER SUGGESTED ANSWER:

The solicitation for her office Christmas Party violates Pres. Decree 46 which makes it
punishable for any public official or employee to receive, directly or indirectly, any gift,
present or other valuable thing on any occasion, including Christmas when such gift or
present is given by reason of her official position.

ANOTHER SUGGESTED ANSWER:

Yes, Commissioner Torres committed an impropriety and violated Art. 211 of the
Revised Penal Code on indirect bribery. She accepted gifts by reason of her office.
IX

Eduardo Quintos, a widower for the past 10 years, felt that his retirement at the age of 70 gave
him the opportunity to engage in his favorite pastime - voyeurism. If not using his high-powered
binoculars to peep at his neighbor’s homes and domestic activities, his second choice was to follow
sweet young girls. One day, he trailed a teenage girl up to the LRT station at EDSA-Buendia.

While ascending the stairs, he stayed one step behind her and in a moment of bravado, placed
his hand on her left hip and gently massaged it. She screamed and shouted for help. Eduardo was
arrested and charged with acts of lasciviousness. Is the designation of the crime correct? 5%

SUGGESTED ANSWER:

No, the designation of the crime charged is not correct because the overt act committed
by Eduardo still falls short of the crime of acts of lasciviousness. The nature of the act done
does not manifest sexual desire. It is more appropriate to consider such overt act as mere
annoyance or vexation, constituting a crime of light coercion, commonly referred to as
unjust vexation. The Revised Penal Code favors a milder criminal responsibility.

ANOTHER SUGGESTED ANSWER:

Considering Eduardo’s voyeurism and propensity for lewdness, he may be charged for
acts of lasciviousness as his criminal intent in doing the act is characterized by lewd desire.

ANOTHER SUGGESTED ANSWER:

No. The designation of the crime of acts of lasciviousness is not correct. The crime
committed is Unjust Vexation. Unjust vexation includes any human conduct which, although
not productive of some physical or material harm, unjustly annoys, irritate, vex, torment or
distress the mind of an innocent person. Eduardo has indeed committed the crime of unjust
vexation when he placed his hand on the hip of a teenage girl and gently massaged it.

Jaime, Andy and Jimmy, laborers in the noodles in the noodles factory of Luke Tan, agreed to
kill him due to his arrogance and miserliness. One afternoon, they seized him and loaded him in a
taxi driven by Mario. They told Mario they will only teach Luke a lesson in Christian humility. Mario
drove them to-a fishpond in Navotas where Luke was entrusted to Emil and Louie, the fishpond
caretakers, asking them to hide Luke in their shack because he was running from the NBI. The trio
then left in Mario’s car for Manila where they called up Luke’s family and threatened them to kill
Luke unless they give a ransom within 24 hours. Unknown to them, because of a leak, the
kidnapping was announced over the radio and TV. Emil and Louie heard the broadcast and
panicked, especially when the announcer stated that there is a shoot-to-kill order for the
kidnappers. Emil and Louie took Luke to the seashore of Dagat-dagatan where they smashed his
head with a shovel and buried him in the sand. However, they were seen by a barangay kagawad
who arrested them and brought them to the police station. Upon interrogation they confessed and
pointed to Jaime, Andy, Jimmy and Mario as those responsible for the kidnapping. Later, the 4
were arrested and charged.

What crime or crimes did the 6 suspects commit? 5%

SUGGESTED ANSWER:

The six (6) suspects committed the following crimes:


Jaime, Andy and Jimmy committed the crime of kidnapping for ransom having seized
Luke and causing his detention by Emil and Louie in the latter’s place. Although the
agreement among Jaime, Andy and Jimmy was to kill Luke, the agreement appears to have
been abandoned when they left Luke to Emil and Louie to be kept and detained by the latter,
while they called up Luke’s family and demanded ransom.

Mario, the taxi driver, only cooperated as an accomplice by taking Luke to the
fishpond after having learned of the unlawful purpose disclosed to him by Jaime, Andy and
Jimmy. There was no indication, however, that Mario knew of the demand for ransom.
Hence, he may only be held liable as an accomplice to the crime of slight illegal detention
under Art. 268 of the Code.

Emil and Louie should be liable for serious illegal detention with homicide (Art. 267 last
par., RPC) since the detention was attended by a killing. Their crime would have been slight
illegal detention only under Art. 268 of the Code were it not for the killing of the victim.

ANOTHER SUGGESTED ANSWER:

Jaime, Andy and Jimmy committed the special complex crime of kidnapping for ransom
with homicide because their purpose was to kill Luke when they seized him.

Mario, the taxi driver, does not incur criminal liability for the acts of Jaime, Andy and
Jimmy because he had no participation therein.

Emil and Louie should be liable only for murder for killing Luke in a defenseless
position, but not for keeping Luke since it was not their intention to detain him.

XI

Ana has been a bar girl/GRO at a beer house for more than 2 years. She fell in love with
Oniok, the bartender, who impregnated her. But Ana did not inform him about her condition and.
instead, went to Cebu to conceal her shame

However, her parents drove her away. So, she returned to Manila and stayed with Oniok in his
boarding house. Upon learning of her pregnancy, already in an advanced state, Oniok tried to
persuade her to undergo an abortion, but she refused. Because of their constant and bitter
quarrels, she suffered birth pangs and gave birth prematurely to a live baby girl while Oniok was at
his place of work. Upon coming home and learning what happened, he prevailed upon Ana to
conceal her dishonor. Hence, they placed the infant in a shoe box and threw it into a nearby creek.
However, an inquisitive neighbor saw them and with the help of others, retrieved the infant who
was already dead from drowning. The incident was reported to the police who arrested Ana and
Oniok. The 2 were charged with parricide under Article 246 of the Revised Penal Code. After trial,
they were convicted of the crime charged.

Was the conviction correct? 5%

SUGGESTED ANSWER:

The conviction was incorrect because:


a) Under Art. 46, Civil Code, a newborn with an intra uterine life of less than 7 months
must live for at least 24 hours before it may be considered bom and hence, before it may
acquire personality of its own;

b) The new bom, therefore was still a foetus when killed and was not yet a person.
Hence, the crime in law is abortion. It is legally a foetus who was killed, not a person/child
because legally it has no personality yet;

c) Infanticide and parricide involves a killing where the victim is already a person.

ANOTHER SUGGESTED ANSWER:

The conviction for parricide was correct if the infant was already three (3) days old or
more when killed because Ana and Oniok are the parents of the child. But if the child was
less than 3 days old when killed, the crime of both Ana and Oniok is infanticide and they
should be convicted for infanticide, not parricide.

XII

Judge Red Reyes was appointed by Former President Fidel Ramos as Deputy Ombudsman for
the Visayas for a term of 7 years commencing on July 5, 1995. Six months thereafter, a lady
stenographer filed with the Office of the Ombudsman a complaint for acts of lasciviousness and
with the Supreme Court a petition for disbarment against him. Forthwith, he filed separate motions
to dismiss the complaint for acts of lasciviousness and petition for disbarment, claiming lack of
jurisdiction over his person and office.

Are both motions meritorious? 5%

SUGGESTED ANSWER:

No, the motions filed by Judge Reyes are both without merit. Being only a Deputy
Ombudsman, he is not included among the government officials who may be removed only
by impeachment from office under the Constitution {Office of the Ombudsman v. Court of
Appeals, 452 SCRA 715 [2005]). Hence, he may be charged criminally and administratively
for the acts of lasciviousness complained of before the Office of the Ombudsman, and for
disbarment in a petition with the Supreme Court.

XIII

Dang was a beauty queen in a university. Job, a rich classmate, was so enamored with her
that he persistently wooed and pursued her. Dang, being in love with another man, rejected him.
This angered Job. Sometime in September 2003, while Dang and her sister Lyn were on their way
home, Job and his minor friend Nonoy grabbed them and pushed them inside a white van. They
brought them in an abandoned warehouse where they forced them to dance naked. Thereafter,
they brought them to a hill in a nearby barangay where they took turns raping them. After
satisfying their lust, Job ordered Nonoy to push Dang down a ravine, resulting in her death. Lyn
ran away but Job and Nonoy chased her and pushed her inside the van. Then the duo drove
away. Lyn was never seen again.

1. What crime or crimes were committed by Job and Nonoy? 2.5%


2. What penalties should be imposed on them? 2.5%
3. Will Nonoy’s minority exculpate him? 2.5%
4. Is the non-recovery of Lyn’s body material to the criminal liability of Job and Nonoy? 2.5%

SUGGESTED ANSWER:

1. Job and Nonoy each committed two (2) counts of the special complex crime of rape
with homicide under Art. 266-B for the rapes respectively committed on Dang and on Lyn.
Their felonious acts of grabbing and pushing the victims inside their van and later forcing
them to dance naked may only be appreciated as part of the violence and lewd desires
attending the rape, and are therefore absorbed by the rape.
Although, there is no indication that the same culprits killed Lyn who was never seen
again, it is reasonable to assume from what the culprits did to Dang, and from the acts of
violence they employed on Lyn, that they are answerable also for the presumed death of Lyn
whom the culprits took with them by force and was never seen again. Hence, the rape
committed against her is attended by homicide giying rise to the special complex crime of
rape with homicide also. It would be different if Lyn was not subjected to physical violence.
(R.A. 7659)

Although the penalty for the crime of rape with homicide was death at the time the
accused committed them, and the law (Rep. Act No. 9346) prohibiting the imposition of the
death penalty took effect only this year (2006), said new law should be given retroactive
effect because it is favorable to the culprits who are not habitual delinquents and there being
no provision of law to the contrary. Hence, reclusion perpetua for each count of rape with
homicide. The accessory penalty under Art. 40 of the Revised Penal Code will not follow
because RA 9346
SUGGESTED ANSWER:

2. Because of obvious conspiracy, each of the culprits should be punished not only for
the rape he committed but also for the rape committed by the other; hence, for as many
counts of rape committed by him plus those committed by the other culprit against each of
the victims.

Although the penalty for the crime of rape with homicide was death at the time the
accused committed them, and the law (Rep. Act No. 9346) prohibiting the imposition of the
death penalty took effect only this year (2006), said new law should be given retroactive
effect because it is favorable to the culprits who are not habitual delinquents and there being
no provision of law to the contrary. Hence, reclusion perpetua for each count of rape with
homicide. The accessory penalty under Art. 40 of the Revised Penal Code will not follow
because RA 9346, Sec. 2 does not so provide: it is the accessory penalty for reclusion
perpetua that shall now adhere to the principal penalty.

SUGGESTED ANSWER:

3. Nonoy’s minority will exculpate him under Rep. Act 9344, referred to as the
“Juvenile Justice and Welfare Act of 2006”, if he was 15 years old or less: otherwise he will
be criminally and civilly liable considering that he acted with discernment when he also
raped the victims. At most, his minority will be appreciated as privileged mitigating
circumstance.

4. No. The corpus delicti or fact of commission of the crime is clear. Even the
death of Lyn may be established from the acts of the culprits, without the need of the body
of Lyn being presented.

XIV

In a crime of homicide, the prosecution failed to present any receipt to substantiate the
heirs’ claim for an award of actual damages, such as expenses for the wake and burial.

What kind of damages may the trial court award to them and how much? 5%

SUGGESTED ANSWER:

The damages that the trial court may award are:

a) civil indemnity for the loss of life of the victim which jurisprudence has set at
P50,000.00;

b) Moderate/temperate damages for the expenses incurred for the wake and
burial of the victim as the trial court may consider reasonable; and

c) Moral damages for the sufferings of the family of the victim emotionally and
mentally.

XV

Forest Ranger Jay Velasco was patrolling the Balara Watershed and Reservoir when he
noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and
after a few minutes, he saw Rene and Dante coming out of the gate with some more newly-cut logs.
He apprehended and charged them with the proper offense.

What is that offense? Explain. 2.5%

During the preliminary investigation and up to the trial proper, Rene and Dante contended that if
they were to be held liable, their liability should be limited only to the newly-cut logs found in^their
possession but not to those found outside the gate.

If you were the judge, what will be your ruling? 2.5%

SUGGESTED ANSWER:

1. The offense committed is qualified theft, pursuant to Sec 1 of Pres. Decree No. 330, and
Sec. 68 of Pres. Decree No. 705 defining the offense committed by any person who
directly or indirectly cuts, gathers, removes or smuggles timber or other forest products
in violation of existing laws, rules and regulations, from any public forest reserves, and
other kinds of public forest or even privately owned forest lands.

SUGGESTED ANSWER:

2. If I were the judge and the evidence adduced by the prosecution convincingly show a
clear link between the accused and the cut logs piled outside the gate of the watershed, I
will hold the accused criminally liable not only for the newly cut logs in their possession
but also for those found outside the gate. Circumstantial evidence proving that the
accused and no other persons could have done the cutting of the logs, such as the
manner of cutting the logs, the area where they cut the logs they were carrying, and
other indications pointing to them as the culprits may be considered.

ANOTHER SUGGESTED ANSWER:

2. If I were the judge I will rule in favor of Rene and Dante. The liability of Rene and Dante is
limited only to the newly cut logs found in their possession unless convincingly proved that
were the ones who brought out the logs found outside the gate.

It is fundamental rule in this jurisdiction that the guilt of the accused must be proven
beyond reasonable doubt in order to be convicted for the crime charged.

The facts of the case at bar does not show that Rene and Dante were the ones who
took and brought out the logs found outside the gate. Culpability not having been sufficiently
proved, they should not be held liable.
XVI

After receiving a reliable information that Dante Ong, a notorious drug smuggler, was
arriving on PAL Flight No. PR181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug
agents. When Ong arrived at the airport, the group arrested him and seized his attache case. Upon
inspection inside the Immigration holding ar ea, the attache case yielded 5 plastic bags of heroin
weighing 500 grams. Chief Inspector Gamboa took the attache case and boarded him in an
unmarked car driven by P03 Pepito Lorbes. On the way to Camp Crame and upon nearing White
Plains comer Edsa. Chief Inspector Gamboa ordered P03 Lorbes to stop the car. They brought out
the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight
from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised
him to keep silent and gc home which the latter did. Unknown to them, an NBI team of agents had
been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and P03
Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later
charged

What are their respective criminal liabilities? 5%

SUGGESTED ANSWER:

Chief Inspector Samuel Gamboa and P03 Pepito Lorbes incur criminal liability under
Art. 11, Sec. 4 last par., R.A. No. 9165, otherwise known as the “Comprehensive Dangerous
Drugs Act of 2002”. They acted as “protector/coddler” to the unlawful bringing into the
Philippines of the dangerous drugs. A “protector/ coddler” refers to any person who uses his
power or position in, inter alia, facilitating the escape of any person whom he knows or
believes, has violated the Dangerous Drugs Law, in order to prevent the arrest, prosecution
and conviction of the violator.

The two police officers are criminally liable for violation of Sec. 27,

R.A. 91165 of the same law for misappropriation and failure to account for the confiscated or
seized dangerous drugs.

On the other hand, Dante Ong is criminally liable for the illegal importation or bringing into
the Philippines of the dangerous drugs. (Article 11, Sec. 4, RA 9165.

XVII

Aling Maria received an urgent telephone call from Junior, her eldest son, asking for
P2,000.00 to complete his semestral tuition fees preparatory to his final exams in Commerce.
Distressed and disturbed, she borrowed money from her compadre Mang Juan with the assurance
to pay him within 2 months. Two months lapsed but Aling Maria failed to settle her obligation. Mang
Juan told Aling Maria that she does not have to pay the loan if she will allow her youngest 10-year
old daughter Annie to work as a housemaid in his house for 2 months at PI,000.00 a month.
Despite Aling Maria’s objection, Mang Juan insisted and brought Annie to his house to work as a
maid.

1. Was a crime committed by Mang Juan when he brought Annie to his house as maid lor the
purpose of repaying her mother's loan? 2.5%

2. If Aling Maria herself was made to work as a housemaid in Mang Juan’s household to pay
her loan, did he commit a crime? 2.5%

SUGGESTED ANSWER:
1. Yes, Mang Jnan violated of Rep. Act No. 7610 on child abuse and exploitation, as
amended by Rep. Act 7658 prohibiting employment of children below 15 years of age,
in relation to the crime of Exploitation of Child Labor under Art. 273, Revised Penal
Code. Annie is only 10 years old and under the pretext of reimbursing himself of a
debt owed by Annie’s mother, Mang Juan took Annie to his house to work as a maid
despite her mother's objection. Annie could not have given consent to the exploitation
since she was only ten (10) year’s old and thus could not give any valid consent.

2. If it was against her will that Aling Maria was made to work as a housemaid in Mang
Juan’s household to pay her debt to him, the latter would be committing a crime
under Art. 274 of the Revised Penal Code, which punishes any person who shall
compel a debtor to work for him as a household servant against her will just to enforce
payment of a debt.

2005 BAR EXAMINATION

(1.) Distinguish the following from each other:

a. Complex crime under Article 48 of the Revised Penal Code;

b. Special complex crime; and

c. Delito continuado. (3%)

SUGGESTED ANSWER:

1. a) In a complex crime, the component crimes are defined and penalized under
separate and distinct Articles of the Revised Penal Code but are allowed to be alleged
in one Information as an exception to Sec. 13, Rule 110 of the Rules of Criminal
Procedure, because they are committed under the circumstances provided in Article
48 of same Code, i.e., two or more grave or less grave felonies resulted from a single
act, or one offense was a necessary means for committing the other offense.

b. In a special complex crime, also known as composite crime, the component crimes
constitute a single indivisible offense and are thus penalized as one crime under one
Article of the Revised Penal Code, such as robbery with homicide under Art. 294 of the
Code.

c. Delito continuado, also known as continued crime, is constituted by a series of overt


acts committed by the offender in one place a penal law, and therefore regarded as
impelled by a single, indivisible criminal resolution; hence, punished as one crime
only.

2. Under Article 27 of the Revised Penal Code, as amended by Republic Act (RA) No.
7659, reclusion perpetua shall be from 20 years and 1 day to 40 years. Does this mean
that reclusion perpetua is now a divisible penalty? Explain. (2%)

SUGGESTED ANSWER:

(2) No, reclusion perpetua is still an indivisible penalty although it has been
given a fixed duration by R.A. No. 7659 (an act to impose the Death Penalty on certain
Heinous crimes). In an en banc ruling of the Supreme Court in People v. Conrado Lucas 240
SCRA 66 (1995), it was held that reclusion perpetua has remained an indivisible penalty as
there is no clear legislative intention to make the penalty divisible.

(3) Distinguish pecuniary penalties from pecuniary liabilities. (2%)

SUGGESTED ANSWER:

(3) Pecuniary penalties are those which a convicted offender may be required to
pay in money to the Government. These are:

1. fine; and
2. costs of the proceedings.

Pecuniary liabilities, on the other hand, are those which a convicted offender is
required to pay in money to the offended party and to the Government. They are:

1. reparation of the damage caused;


2. indemnification of consequential damages;
3. fine; and
4. costs of the proceedings (Art. 38, RPC)

The first two liabilities (nos. 1 and 2) are payable as civil indemnity to the private
parties offended by the crime; while the last two (nos. 3 and 4) are payable to the
Government.

(4) Taking into account the nature and elements of the felonies of coup d’etat and rape,
may one be criminally liable for frustrated coup d'etat or frustrated rape? Explain. (2%)

SUGGESTED ANSWER:

(4) No, a person may not be held liable for frustrated coup d'etat or for frustrated rape because in a
frustrated felony, it is required that all acts of execution that could produce the felony as a
consequence must have been performed by the offender but the felony was not produced by reason of
causes independent of the will of the offender. In the said felonies, however, one cannot perform all the
acts of execution without consummating the felony. The said felonies, therefore, do not admit of the
frustrated stage.

(5) Distinguish malum in se from malum prohibitum.(2%)


SUGGESTED ANSWER:

(5) Malum in se is a crime where the act done is inherently bad, evil and wrong in nature, such
that it is generally condemned. The moral traits of the offender are taken into account in punishing the
crime.

Malum prohibitum is a crime where the act done is not inherently bad, evil or wrong but
prohibited by law for public good and welfare. Anyone who voluntarily commits the prohibited act
incurs the crime.

II

(1) Belle saw Gaston stealing the prized cock of a neighbor and reported him to the police. Thereafter,
Gaston, while driving a car saw Belle crossing the street. Incensed that Belle had reported him, Gaston decided
to scare her by trying to make it appear that he was about to run her over. He rewed the engine of his car and
drove towards her but he applied the brakes. Since the road was slippery at that time, the vehicle skidded and
hit Belle causing her death.

What is the liability of Gaston? Why? (4%)

SUGGESTED ANSWER:

(1)Gaston is criminally liable for homicide in doing the felonious act which caused
Belle’s death, although the penalty therefor shall be mitigated by lack of intention to commit
so grave a wrong as that committed (Art. 13 (3), RPC). The act, having been deliberately done
with malice, is felonious and being the proximate cause of Belle’s death, brings about
criminal liability although the wrong done was different from what was intended (Art. 4, [1],
RPC).

(2) DD was engaged in the warehouse business. Sometime in November he was in dire need of
money. He, thus, sold merchandise deposited in his warehouse to VR for P500.000.00. DD was
charged with theft, as principal, while VR as accessory. The court convicted DD of theft but
acquitted VR on the ground that he purchased the merchandise in good faith. However, the court
ordered VR to return the merchandise to the owner thereof and ordered DD to refund the
P500.000.00 to VR.

DD moved for the reconsideration of the decision insisting that he should be acquitted of theft
because being the depositary, he had juridical possession of the merchandise. VR also moved for
the reconsideration of the decision insisting that since he was acquitted of the crime charged, and
that he purchased the merchandise in good faith, he is not obligated to return the merchandise to
its owner.

Rule on the motions with reasons. (5%)

SUGGESTED ANSWER:

(2) The motion for reconsideration of DD is DENIED.

In this case, there being no proof that title to the goods was transferred to DD, only
physical possession is presumed transferred to and obtained by DD. (U.S. v. De Vera, 43 Phil.
1001 [1921]).
The principal distinction between the two crimes is that in theft the thing is taken while in estafa
the accused received the property and converts it to his own use or benefit. However, there maybe
theft even if the accused has possession of the property, if he was entrusted only with the material or
physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes
theft, but if he has the juridical possession of the thing, his conversion of the same constitutes
embezzlement or estafa. (Santos v. People, 181 SCRA 487 [1990]).

The motion for reconsideration of VR is DENIED. While VR is acquitted of theft, such acquittal
does not of itself negate civil liability of VR to return the property stolen by DD. Civil liability on the
part of VR exists despite his acquittal, since his acquittal is premised on the finding that his liability is
only civil in nature. (De Guzmanv.Alva, 510.G. 1311 [1955]). DD was unlawfully deprived of his personal
property and as owner or possessor he may recover such movables.

III

(1) Harold was convicted of a crime defined and penalized by a special penal law where the imposable
penalty is from 6 months, as minimum, to 3 years, as maximum.

State with reasons whether the court may correctly impose the following penalties:

a) a straight penalty of 10 months;


b) 6 months, as minimum, to 11 months, as maximum;
c) a straight penalty of 2 years. (5%)

SUGGESTED ANSWER:

1. a) The court may validly impose a straight penalty of 10 months imprisonment because the penalty
prescribed by law is imprisonment of 6 months to 3 years, and the Indeterminate Sentence Law
does not apply when the penalty imposed is imprisonment which does not exceed one year.

b) A prison term of 6 months as minimum, to 11 months, as maximum may not be imposed by


the court because the Indeterminate Sentence Law does not apply when the penalty imposed as
maximum of the sentence is imprisonment which does not exceed one (1) year. Obviously the
Indeterminate Sentence Law has been applied where the sentence imposed reflects a minimum and a
maximum.

c) The court may not validly impose a straight penalty of two years because the Indeterminate
Sentence Law requires the court to set a minimum and a maximum of the sentence where the
imprisonment to be imposed already exceeds one (1) year, unless the offender is disqualified from the
benefits of the said Law.

SUGGESTED ALTERNATIVE ANSWER:

(1.) a) Yes, the trial Court may impose a straight penalty of ten months. The Indeterminate Sentence
Law applies to crimes punished either by the Revised Penal Code or by special laws, where the
maximum period of imprisonment exceeds one year.

b) No, because the Indeterminate Sentence Law cannot be applied where the maximum
period of imprisonment imposed, which is eleven months, does not exceed one year.

c) No, because a straight penalty may be imposed only up to a maximum imprisonment


of one (1) year. Here, it is two years. Hence, there is a need to impose an indeterminate sentence, the
minimum term of which shall not be less than 6 months while the maximum term shall not exceed 3
years. (People v. Pena, 80 SCRA 589[1977]).

E and M are convicted of a penal law that imposes a penalty of fine or imprisonment or both fine and
imprisonment. The judge sentenced them to pay the fine, jointly and severally, with subsidiary
imprisonment in case of insolvency.

a) Is the penalty property? Explain.


b) May the judge impose an alternative penalty of fine or imprisonment? Explain. (4%)

SUGGESTED ANSWER:

2. a) Imposing the penalty of fine jointly and severally on the two convicted accused is not proper.
The penalty should be imposed individually on every person accused of the crime. Any of the
convicted accused who is insolvent and unable to pay the fine, shall serve the subsidiary
imprisonment.

b) The judge may not validly impose an alternative penalty. Although the law may prescribe an
alternative penalty for a crime, it does not mean that the court may impose the alternative penalties at
the same time. The sentence must be definite, otherwise the judgment cannot attain finality.

3. The accused was found guilty of 10 counts of rape for having carnal knowledge with the same
woman. In addition to the penalty of imprisonment, he was ordered to pay indemnity in the
amount of P50,000.00 for each count. On appeal, the accused questions the award of civil
indemnity for each count, considering that the victim is the same woman.

How would you rule on the contention of the accused? Explain. (3%)

SUGGESTED ANSWER:

3. The contention of the accused is without merit. Each count of rape*is a violation of the
person of the victim and thus gives rise to corresponding criminal and civil liabilities. The
trial court is correct in imposing a penalty for each rape and awarding corresponding civil
indemnity for each count even though the victim is the same woman. Rape is not a
continued crime.

IV

(1) Maganda was charged with violation of Bouncing Checks Law (BP 22) punishable by
imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not
more than double the amount of the check, which fine shall not exceed P200.000.00, or both. The
court convicted her of the crime and sentenced her to pay a fine of P50.000.00 with subsidiary
imprisonment in case of insolvency, and to pay the private complainant the amount of the check.
Maganda was unable to pay the fine but filed a petition for probation. The court granted the
petition subject to the condition, among others, that she should not change her residence without
the court’s prior approval.

a) What is the proper period of probation?

b) Supposing before the Order of Discharge was issued by the court but after the lapse of the
period of probation, Maganda transferred residence without prior approval of the court. May the
court revoke the Order of Probation and order her to serve the subsidiaiy imprisonment? Explain.
(5%)

SUGGESTED ANSWER:

(1) a) The period of probation shall not be less than the total number of days of
subsidiary imprisonment or more than twice the said number of days as computed at the
rate established under the Revised Penal Code, which is one (1) day imprisonment for every
P8.00 fine but not to exceed six (6) months. (P.D. 968, Sec. 14[b] (establishing a Probation
System) in correlation with Art. 39, RPC)

b) Yes, the court may revoke the Order of Probation and order the convicted
accused to serve the subsidiary imprisonment, because she violated the condition of her
probation before the Order of Discharge was issued by the court. The conditions of probation
are not co-terminous with the period of probation; such conditions continue even after the
period of probation had ended and thus requires faithful compliance or fulfillment, for as
long as the court which placed the convict on probation has not issued the Order of
Discharge that would release her from probation. {Bala v. Martinez, 181 SCRA 459 [1990D

(2) DD purchased a television set for P50,000.00 with the use of a counterfeit credit card.
The owner of the establishment had no inkling that the credit card used by DD was counterfeit.

What crime or crimes did DD commit? Explain. (5%)

SUGGESTED ANSWER:

(2) DD committed estafa, and a violated of Rep. Act No. 8484 referred to as
Access Devices Regulation Act of 1998.

Estafa under Article 315 [2] (a) of the Revised Penal Code is committed because he
defrauded the owner of the establishment by falsely pretending to possess credit with the
credit card company when he used a fake credit card.

DD also violated Section 9(a) of Rep. Act No. 8484 which punishes, among others,
the act of using a counterfeit access device. [Note: Rep. Act No. 8484 is not included in the
coverage of the 2005 Bar examinations]

SUGGESTED ALTERNATIVE ANSWER:

(2) DD committed a complex crime of estafa thru falsification of a commercial


document. As a user of a false or fake credit card, a commercial document, DD is presumed
to have falsified the same; Hence he does not only commit the crime of using a false
document but also the crime of falsification. Since he used such false or fake credit card to
defraud the owner of the store from whom he purchased the television set, the crime of
swindling or estafa was perpetrated thru the falsification of said commercial document. He,
therefore, committed the complex crime of estafa thru falsification of a commercial
document.

Paz Masipag worked as a housemaid and yaya of the one-week old son of the spouses
Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she
asked Martin for a cash advance of PI,000.00 but Martin refused. One morning, Paz gagged the
mouth of Martin's son with stockings; placed the child in a box; sealed it with masking tape and
placed the box in the attic. Later in the afternoon, she demanded P5.000.00 as ransom for the
release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared.

After a couple of days, Martin discovered the box in the attic with his child already dead.
According to the autopsy report, the child died of asphyxiation barely three minutes after the box
was sealed.
What crime or crimes did Paz commit? Explain. (5%)

SUGGESTED ANSWER:

Paz committed a special complex crime of kidnapping for ransom with homicide
and the penalty shall be only one death penalty.

When any individual, in any manner, unlawfully deprives another of his liberty, the
crime is designated as kidnapping and serious illegal detention under Article 267, Revised
Penal Code. The penalty shall be death where the crime was committed for the purpose of
extorting ransom. It is not necessary that the ransom be obtained by the offender: it is
enough that the crime of kidnapping and serious illegal detention be committed for the
purpose of demanding ransom.

Under the same Article of the Code, the death penalty is also prescribed if the
victim of the kidnapping dies as a result of the detention. However, since Paz committed
only one felony, a special complex crime of kidnapping for ransom with homicide, she should
be sentenced to only one death penalty.

SUGGESTED ALTERNATIVE ANSWER:

Paz committed the crime of serious illegal detention because the victim is a minor
and because the victim died as a consequence of the detention, the special complex crime of
serious illegal detention with homicide under the last paragraph of Article 267 of the
Revised Penal Code is committed.

VI

Candido stabbed an innocent bystander who accidentally bumped him. The innocent
bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for
the use of “shabu" at the time he committed the stabbing.

What should be the proper charge against Candido? Explain. (3%)

SUGGESTED ANSWER:

Candido should be charged with murder qualified by treachery because the


suddenness of the stabbing caught the victim by surprise and was totally defenseless. Being
under the influence of dangerous drugs is a qualifying aggravating circumstance in the
commission of a crime (Sec. 25, Rep Act 9165 Comprehensive Dangerous Drug Act of 2002);
hence, the penalty for murder shall be imposed in the maximum.

SUGGESTED ALTERNATIVE ANSWERi

Candido should be charged with homicide only because the incident which gave rise
to the stabbing- occurred accidentally. There is no conscious and deliberate adoption of the
means, method and manner of attack. However, the penalty for homicide shall be imposed in
the maximum period because Candido was under the influence of dangerous drugs when he
committed the crime, which is a qualifying circumstance under Section 25 of Rep. Act 9165.

VII
Jose employed Mario as gardener and Henry as cook. They learned that Jose won
P5000.000.00 in the-lotto, and decided to rob him. Mario positioned himself about 30 meters away
from Jose's house and acted as lookout. For his part. Hemy surreptitiously gained entry into the
house and killed Jose who was then having his dinner. Hemy found the P500.000.00 and took it.
Hemy then took a can of gasoline from the garage and burned the house to conceal the acts. Mario
and Henry fled, but were arrested around 200 meters away from the house by alert barangay
tanods. The tanods recovered the P500,000.00.

Mario and Henry were charged with and convicted of robbery with homicide, with the
aggravating circumstances of arson, dwelling, and nighttime.

Mario moved to reconsider the decision maintaining that he was not at the scene of the
crime and was not aware that Henry killed the victim; hence, he was guilty only of robber, as an
accomplice. Mario also claimed that he conspired with Hemy to commit robbery but not to kill Jose.
Henry, likewise, moved to reconsider the decision, asserting that he is liable only for attempted
robbery with homicide with no aggravating circumstance; dwelling is not aggravating in attempted
robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at
the time he was killed.

Resolve with reasons the respective motions of Mario and Henry. (7%)

SUGGESTED ANSWER:

The motion of Mario contending that he should be liable only as an accompliceis


without merit and therefore should be denied. There was conspiracy to commit the robbery
between him and Henry. There being a conspiracy to commit robbery, the act of one is the
act of all. Since the conspiracy was only to commit robbery, Mario should be liable only for
robbery as a co-principal, not for the'composite crime of robbery with homicide.

Mario, being 30 meters away from the victim's house, could not have known what
Henry was doing inside the victim’s (Jose's) house, so much so that he was not in a position
to stop the same. Mario, therefore, cannot properly be made answerable for what Henry did
inside Jose's house which was not agreed upon. Applying the subjective test to his
participation as a co-conspirator to the robbery, Mario’s criminal liability should be
aggravated by nighttime but not by dwelling or arson.

Henry's motion to reconsider the decisionis, likewise, without merit and should be
denied. He is criminally liable for robbery with homicide. His contention that he is only
liable for attempted robbery with homicide is not correct because the unlawful taking of the
P500,000.00 is deemed complete from the moment he gained control of the money even if
he had no opportunity to dispose of the same.

The killing of Jose, having been committed on the occasion of a robbery, becomes a
component of the robbery, giving rise to the special complex crime of robbery with homicide.
Since Henry alone committed the killing of Jose a fact unknown to Mario, Henry alone
should be convicted for said crime. Dwelling, although not aggravating in robbery with force
upon things where the circumstance is inherent, is aggravating in robbery with violence
against or with intimidation of persons.

The burning of the house or arson accompanying the robbery is only a component of
the robbery under Article 294 (1), Revised Penal Code. Such burning does not constitute a
separate crime from robbery with homicide.
Nighttime is aggravating, applying the subjective test, unless the house of Jose was
indeed well-lighted during the commission of the crime.

SUGGESTED ALTERNATIVE ANSWER:

Mario should be convicted with robbery only, not for robbery with homicide because
he conspired only in the commission of the robbery. As a conspirator in said crime, he is
liable as co-principal and not as an accomplice only. His motion for reconsideration claiming
that he should be liable only for robbery has merit, but not his contention that he should be
liable as an accomplice only.

On the other hand, Henry’s motion for reconsideration should be denied for lack of
merit. His contention that his liability should only be for attempted robbery with homicide
because they did not benefit from the P500,000.00 lacks merit. In robbery, the crime is
consummated the moment the unlawful taking is complete even though the offender was not
able to appropriate or dispose of the personal property taken.

The contention that no aggravating circumstance attended the commission of the


crime is not correct. In robbery with violence or intimidation against person, dwelling is
aggravating to the offender who entered the dwelling of the offended party. Nighttime is not
aggravating because the house of the victim was lighted. The burning of the victim’s house is
not a separate crime of arson but only a component of the robbery under Article 294, RPC.

VIII

Pete, a security guard, arrived home late one night after rendering overtime. He was
shocked to see Flor, his wife, and Benjie, his best friend, completely naked having sexual
intercourse. Pete pulled out his service gun and shot and killed Benjie. Pete was charged with
murder for the death of Benjie. Pete contended that he acted in defense of his honor and that,
therefore, he should be acquitted of the crime.

The court found that Benjie died under exceptional circumstances and exonerated Pete of
the crime, but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code.
The court also ordered Pete to pay indemnity to the heirs of the victim in the amount of
P50,000.00.

a) Is the defense of Pete meritorious? Explain.

b) Under Article 247 of the Revised Penal Code, is destierro a penalty? Explain.

c) Did the court correctly order Pete to pay indemnity despite his exoneration under
Article 247 of the Revised Penal Code? Explain. (5%)

SUGGESTED ANSWER:

a) The defense of Pete lacks merit. He could not have acted in defense of honor,
because there was no unlawful aggression against him. At most, what Benjie did could be
regarded only as sufficient provocation to Pete. The Court correctly ruled that Benjie’s
killing was done under the exceptional circumstances provided for in Article 247 of the
Revised Penal Code.

b) Destierro is one of the principal penalties under Article 25 of the Revised


Penal Code, but under the exceptional circumstances provided for in Article 247 of the Code,
destierro is not intended as a penalty but a means to remove the accused from the vicinity,
for his protection against possible reprisal from the family or relatives of the other spouse or
those of the paramour or mistress. (People v. Coricort 79 Phil 672 [1947]).

c) Yes, the court correctly ordered Pete to pay indemnity, because the legal
consequence of the exceptional circumstance in Article 247 of the Code is that of an
exempting circumstance where generally there is civil liability although there may be no
criminal liability.

SUGGESTED ALTERNATIVE ANSWER:

c) Pete may not be made to pay indemnity because this is part of civil liability
which arises only when there is criminal liability. He is not civilly liable, because he is not
criminally liable.

IX

Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to
his office after a day-long official conference. He alighted from the government car which was
officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office.
Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for
P20.000.00, although the car was worth P800,000.00.

a) What are the respective crimes, if any, committed by Allan, Danny and Jules?
Explain.

b) What, if any, are their respective civil liabilities? Explain. (5%)

SUGGESTED ANSWER:

a) Allan committed the crime of malversation by abandonment or negligence in


leaving the government car assigned to him for his official use and for which he was
accountable, with the ignition key in the car unlocked.

Danny committed the crime of fencing for having bought the car which was the
proceeds of caraapping, a crime in the nature of theft or robbery of motor vehicle. The
presumption of fencing applies to him for he paid a price so inadequate for the value of the
car suggestive that the car was not legitimately acquired by his brother.

Jules committed the crime of catnapping for the unlawful taking, with intent to
gain, of the government's motor vehicle. Unlawful taking of a motor vehicle is now governed
by the Anti-Caraapping Act of 1972, Rep. Act 6539, not by the provisions of the Revised
Penal Code on theft or robbery.

b) Allan, Jules and Danny are all civilly liable for restitution of the car to the
government, or if no longer possible, reparation of the damages caused by payment of the
replacement cost of the car minus allowance for depreciation, and to indemnify
consequential damages.

SUGGESTED ALTERNATIVE ANSWER:


Danny should be liable as an accessory, not as a fence, if the crime charged to Jules
is qualified theft because there is no accessory under the Anti-Caraapping Act of 1972. (Rep
Act No. 6359)

During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of
methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary,
paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the Evidence
Custodian of the PNP Forensic Chemistry Section, the amount of P500.000.00 in consideration for
the destruction by Patrick of the drug. Patrick managed to destroy the drug.

State with reasons whether Patrick committed the following crimes:

a) Direct bribery;

b) Indirect bribery;

c) Section 3(e) of RA 3019 (Anti-Graft and Corrupt Practices Act);

d) Obstruction of Justice under PD 1829; (7%)

SUGGESTED ANSWER:

Patrick committed the crimes of direct bribery under Article 210 of the Revised
Penal Code, Violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act (R.A. 3019),
and Obstruction of Justice under Section 1(b) of PD 1829.

Direct bribery was committed by Patrick when, for a consideration of P500.000.00,


he committed a violation ofPD 1829 by destroying the drugs which were evidence entrusted
to him in his official capacity.

Indirect bribery is not committed, because he received the P500,000.00 as a


consideration for destroying the evidence against the offender, which was under his official
custody as a public officer. The money was not delivered to him simply as a gift or present
by reason of his public office.

Patrick also violated Section 3(e), R.A. 3019 causing undue injury to the
government through evident bad faith, giving unwarranted benefit to the offender by
destroying evidence of a crime.

Obstruction of justice under Section 1 (b) of P.D. 1829 is committed by destroying


evidence intended to be used in official proceedings in criminal case.

XI

On July 1.2004, Jet Matulis, a pedophile, gave PI ,000.00 to Sherly, an orphan and a
prostitute and brought her to a motel. He inserted a rusty and oversized vibrator into her vagina
with such force that she bled profusely. Jet panicked and fled. Sherly was brought to the hospital
and died a few days later because of shock caused by hemorrhage.
a) What crime or crimes did Jet Matulis commit? Explain.
b) If Sherly were a minor when she died, would your answer be the same? Explain. (5%)

SUGGESTED ANSWER:

a) Jet Matulis should be liable only for the crime of homicide for the death of Sherly,
assuming that she was not a minor (in the light of the following question) since the sexual
assault was committed without any of the circumstances mentioned in of Article 266-A (1) of
the Revised Penal Code as rape. It appears that the offender and the offended party went to
the hotel for mutual sexual gratification.

b) If Sherly were a minor when she died, the crimes of homicide and child abuse in
violation of Rep. Act 7610 (Special Protection of Children against abuse, exploitation,
discrimination and for other purposes), are committed by Jet Matulis, provided Sherly is not
less than 12 years old. If Sherly was less than 12 years old then, the crime committed by
Matulis is rape (through sexual assault) with Homicide, a special complex crime under Article
266-B of the Revised Penal Code.

Note: The Committee suggests that credit be given to well-reasoned answers, because there
are so many answers that can be given as to the crime committed.

XII

Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an
account in the Mayor’s name and regularly deposited various amounts ranging from P500,000.00
to PI Million. From this account, the Mayor withdrew and used the money for constructing feeder
roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently
discovered that Don Gabito was actually ajueteng operator and the amounts he deposited were
proceeds from his jueteng operations.

What crime/s were committed? Who are criminally liable? Explain. (6%)

SUGGESTED ANSWER:

On the part of Don Gabito, the crimes committed were:

1) Money laundering under Rep. Act 9160 (Anti- Money Laundering Act of 2001), as
amended by Rep. Act 9194, since the money proceeds from an unlawful activity, i.e., jueteng
are transacted as though coming from a legitimate source;

2) Corruption of public officials under Article 212 of the Revised Penal Code for
having given the amounts that were deposited in an account which he opened in the Mayor’s
name for no reason but the public position or office held by the Mayor;

a jueteng operator.

On the part of the Mayor, the crimes committed were:

1) Money laundering under the same laws above- mentioned if after learning that the
money deposited in his account were proceeds of jueteng, he still continued using said
funds;
2) Indirect Bribery for accepting such moneys deposited in his account by using them
when they were given to him for no other reason except for his public position as a Mayor.

3) Violation of Rep. Act 6713 (Code of Conduct and Ethical Standards for Public
Officials and Employees) for receiving such gift from someone who may be affected by the
functions of his office.

XIII

Obie Juan is suspected to have in his possession an unspecified amount of


methamphetamlne hydrochloride or “shabu". An entrapment operation was conducted by police
officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in
his possession. He was subjected to a drug test and was found positive for the use of marijuana,
another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11,
Article II of RA 9165 for the possession of “shabu" and violation of Section 15, Article II of RA 9165
for the use of marijuana.

a) Are the charges proper? Explain.

b) So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do
so? Why? (5%)

SUGGESTED ANSWER:

a) The charge of possession of shabu is proper as the mere possession of such drug is
punishable, but the charge of use of marijuana is not proper as Section 15 of Rep. Act 9165
(Comprehensive Dangerous Drugs Act of 2002) expressly excludes penalties for “use” of
dangerous drugs when the person tested Mis also found to have in possession such quantity
of any dangerous drug" provided for in Section 11 of such Act.

b) No, because Section 23 of R.A. 9165 expressly provides that "Any person charged
under any provision of this Act regardless of the imposable penalty shall not be allowed to
avail of the provision on plea-bargaining. ” For this reason, Obie Juan cannot be allowed to
plead guilty to a lesser offense.

XIV

Al Chua, a Chinese national, filed a petition under oath for naturalization, with the
Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua;
that he is living with her in Sampaioc, Manila; that he is of good moral character; and that
he has conducted himself in an irreproachable manner during his stay in the Philippines.
However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while
A1 was living with Babes Toh in Manila, with whom he has an amorous relationship. After his
direct testimony, A1 Chua withdrew his petition for naturalization.

What crime or crimes, if any, did A1 Chua commit? Explain. (5%)

SUGGESTED ANSWER:
A1 Chua committed (1) Peijury (Art. 183, RPC) and

(2) Concubinage (Art. 334, RPC).

The crime of Peijury is committed by A1 Chua when he stated under oath that he was
living with Leni Chua in Sampaioc when in fact he was living with his mistress, and Leni
Chua was already living in Cebu at the time of the filing of the petition. It is a false
allegation under oath, on a material matter required by law in naturalization cases.

The withdrawal of the petition did not have the effect of negating the crime
committed. At the time when the petition was filed, A1 Chua was already living with his
mistress Babes Toh in the conjugal dwelling in Manila, thus committing concubinage.

XV

In an interview aired on television, Cindee uttered defamatory statements against Erika, a


successful and reputable businesswoman.

What crime or crimes did Cindee commit? Explain. (3%)

SUGGESTED ANSWER:

Cindee committed libel. Defamation made in a television program is penalized as libel


under Art. 355 of the Revised Penal Code. Televison falls under “similar means" in the
enumeration as “radio phonograph, theatrical exhibition, cinematographic exhibition, or any
similar means" in said Article. [People v. Casten, et al.t CJL G.R. No. 07924 - CR., Dec. 13,
1974)

2004 BAR EXAMINATION

A. RR represented to AA, BB, CC and DD that she could send them to London to work there as
sales ladies and waitresses. She collected and received from them various amounts of money for
recruitment and placement fees totalling P400.000. After their dates of departure were postponed
several times, the four prospects got suspicious and went to POEA (Phil. Overseas Employment
Authority). There they found out that RR was not authorized nor licensed to recruit workers for
employment abroad. They sought refund to no avail.

Is RR guilty of any grave offense? Explain briefly. (5%)

SUGGESTED ANSWER:

A. Yes. RR is guilty of a grave offense, having engaged in illegal recruitment


constituting the offense of economic sabotage which is punishable with life imprisonment
and a fine of P100,000.00.

Economic sabotage is an offense defined in 38(b) of the Labor Code, as amended by


Pres. Decree No. 2018, which is incurred when the illegal recruitment is carried out in large
scale or by a syndicate. It is in a large scale when there are three or more aggrieved parties,
individually or as a group. And it is committed by a syndicate when three or more persons
conspire or cooperate with one another in carrying out the illegal transaction, scheme or
activity.

B. DAN, a private individual, kidnapped CHU, aminor. On the second day, DAN
released CHU even before any criminal information was filed against him. At the trial of his
case, DAN raised the defense that he did not incur any criminal liability since he released
the child before the lapse of the 3-day period and before criminal proceedings for
kidnapping were instituted.

Will DAN’S defense prosper? Reason briefly. (5%)

SUGGESTED ANSWER:

B. No. DAN's defense will not prosper. Voluntary release by the offender of the
offended party in kidnapping is not absolutory. Besides, such release is irrelevant and
immaterial in this case because the victim being a minor, the crime committed is
kidnapping and serious illegal detention under Art. 267, Revised Penal Code, to which such
circumstance does not apply. The circumstance may be appreciated only in the crime of
Slight Illegal Detention in Art. 2681Asistio v. San Diego 10 SCRA 673 [1964D.

II

A. On his way home from office, ZZ rode in a jeepney. Subsequently, XX boarded the same
jeepney. Upon reaching a secluded spot in QC, XX pulled out a grenade from his bag and announced a
hold-up. He told ZZ to surrender his watch, wallet and cellphone. Fearing for his life, ZZ jumped out of
the vehicle. But as he fell, his head hit the pavement, causing his instant death.

Is XX liable for ZZs death? Explain briefly. (5%)

SUGGESTED ANSWER;

A. Yes, XX is liable for ZZ's death because his acts of pulling out a grenade and
announcing a hold-up, coupled with a demand for the watch, wallet and cellphone of ZZ is
felonious, and such felonious act was the proximate cause of ZZ's jumping out of the
jeepney, resulting in the latter's death. Stated otherwise, the death of ZZ was the direct,
natural and logical consequence of XX’s felonious act which created an immediate sense of
danger in the mind of ZZ who tried to avoid such danger by jumping out of the jeepney
(.People v. Arpat 27 SCRA 1037 [1969]).

B. MNO, who is 30 years old, was charged as a drug pusher under the Comprehensive
Dangerous Drugs Act of 2002. During pre-trial, he offered to plead guilty to the lesser
offense concerning use of dangerous drugs.

Should the Judge allow MNO’s plea to the lesser offense? Explain briefly. (5%)

SUGGESTED ANSWER:

B. No, the Judge should not allow MNO’s plea to a lesser offense, because plea-
bargaining in prosecutions of drug-related cases is no longer allowed by Rep. Act No. 9165,
the Comprehensive Dangerous Drugs Act of 2002, regardless of the imposable penalty.

III
A. BB and CC, both armed with knives, attacked FT. The victim’s son, ST, upon seeing the attack,
drew his gun but was prevented from shooting the attackers by AA, who grappled with him for
possession of the gun. FT died from knife wounds. AA, BB and CC were charged with murder.

In his defense, AA invoked the justifying circumstance of avoidance of greater evil or injury,
contending that by preventing ST from shooting BB and CC, he merely avoided a greater evil.

Will AA’s defense prosper? Reason briefly. (5%)

SUGGESTED ANSWER:

A. No, AA’s defense will not prosper because obviously there was a conspiracy among
BB, CC and AA, such that the principle that when there is a conspiracy, the act of one is the
act of all, shail govern. The act of ST, the victim’s son, appears to be a legitimate defense of
relatives; hence, justified as a defense of his father against the unlawful aggression by BB
and CC. ST’s act to defend his father’s life, cannot be regarded as an evil inasmuch as it is,
in the eyes of the law, a lawful act.

What AA did was to stop a lawful defense, not greater evil, to allow BB and CC
achieve their criminal objective of stabbing FT.

B. PX was convicted and sentenced to imprisonment . of thirty days and a fine of one hundred
pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty
days only.

Is PX entitled to probation? Explain briefly. (5%)

SUGGESTED ANSWER:

B. Tes, PX may apply for probation. His previous conviction for another crime with a
penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him
from applying for probation; the penalty for his present conviction does not disqualify him
either from applying for probation, since the imprisonment does not exceed six (6) years
(Sec. 9, Pres. Decree No. 968).

IV

A. OW is a private person engaged in cattle ranching. One night, he saw AM stab CV


treacherously, then throw the dead man’s body into a ravine. For 25 years, CVs body was
never seen nor found; and OW told no one what he had witnessed.

Yesterday after consulting the parish priest, OW decided to tell the authorities what he witnessed, and
revealed that AM had killed CV 25 years ago.

Can AM be prosecuted for murder despite the lapse of 25 years? Reason briefly. (5%)

SUGGESTED ANSWER:

A. Yes, AM can be prosecuted for murder despite the lapse of 25 years, because
the crime has not yet prescribed and legally, its prescriptive period has not even
commenced to run.
The period of prescription of a crime shall commence to run only from the day on
which the crime has been discovered by the offended party, the authorities or their agents
(Art. 91, Revised Penal Code). OW, a private person who saw the killing but never disclosed
it, is not the offended party nor has the crime been discovered by the authorities or their
agents.

B. TRY was sentenced to death by final judgment. But subsequently he was granted
pardon by the President. The pardon was silent on the perpetual disqualification of TRY to hold any
public office.

After his pardon, TRY ran for office as Mayor of APP, his hometown. His opponent sought to
disqualify him. TRY contended he is not disqualified because he was already pardoned by the
President unconditionally.

Is TRY’S contention correct? Reason briefly. (5%)

SUGGESTED ANSWER:

B. No, TRY's contention is not correct. Article 40 of the Revised Penal Code
expressly provides that when the death penalty is not executed by reason of commutation or
pardon, the accessory penalties of perpetual absolute disqualification and civil interdiction
during thirty (30) years from the date of the sentence shall remain as effects thereof, unless
such accessory penalties have been expressly remitted in the pardon. This is because
pardon only excuses the convict from serving the sentence but does not relieve him of the
effects of the conviction unless expressly remitted in the pardon.

A. The death penalty cannot be inflicted under which of the following circumstances:

1. When the guilty person is at least 18 years of age at the time of the commission of the crime.

2. When the guilty person is more than 70 years of age.

3. When, upon appeal to or automatic review by the Supreme Court, the required majority for the
imposition of the death penalty is not obtained.

4. When the person is convicted of a capital crime but before execution becomes insane.

5. When the accused is a woman while she is pregnant or within one year after delivery.

Explain your answer or choice briefly. (5%)

SUGGESTED ANSWER:

A. Understanding the word “inflicted" to mean the imposition of the death


penalty, not its execution, the circumstance in which the death penalty cannot be inflicted
is no. 2: “when the guilty person is more than 70 years of age” (Art. 47, Revised Penal Code).
Instead, the penalty shall be commuted to reclusion perpetua, with the accessory penalties
provided in Article 40, RPC.

In circumstance no. I when the guilty person is at least 18 years of age at the time of
the commission of the crime, the death penalty can be imposed since the offender is already
of legal age when he committed the crime.

Circumstance no. 3 no longer operates, considering the decision of the Supreme


Court in People vs. Etfren Mateo (G.R. 147678-87, July 7, 2004) providing an intermediate
review for such cases where the penalty imposed is death, reclusionperpetua or life
imprisonment before they are elevated to the Supreme Court.

In circumtances nos. 4 & 5, the death penalty can be imposed if prescribed by the
law violated although its execution shall be suspended when the convict becomes insane
before it could be executed and while he is insane.

Likewise, the death penalty can be imposed upon a woman but its execution shall be
suspended during her pregnancy and for one year after her delivery.

ALTERNATIVE ANSWER:

A. The word "INFLICTED" is found only in Art. 83 to the effect that the death
penalty may not be “INFLICTED" upon a pregnant woman, such penalty is to be suspended.

If “INFLICTED" is to be construed as “EXECUTION", then No. 5 is the choice.

B. CBP is legally married to OBM. Without obtaining a marriage license, CBP


contracted a second marriage to RST.

Is CBP liable for bigamy? Reason briefly. (5%)

SUGGESTED ANSWER:

B. Whether CBP could be held liable for bigamy or not, depends on whether the
second marriage is invalid or valid even without a marriage license. Although as a general
rule, marriages solemnized without license are null and void ab initio, there are marriages
exempted from license requirement under Chapter 2, Title 1 of the Family Code, such as in
Article 27 which is a marriage in articulo mortis. If the second marriage was valid even
without a marriage license, then CBP would be liable for bigamy.

Otherwise, CBP is not liable for bigamy but for Illegal Marriage in Art. 350 for the
Revised Penal Code, specifically designated as “Marriage contracted against provisions of
laws."

VI

A. CD is the stepfather of FEL. One day, CD got very mad at FEL for failing in his college courses.
In his fuiy, CD got the leather suitcase of FEL and burned it together with all its contents.

1. What crime was committed by CD?

2. Is CD criminally liable? Explain briefly. (5%)

SUGGESTED ANSWER:

1. The crime committed by CD is arson under Pres. DecreeNo. 1613 (the new
Arson Law) which punishes any person who bums or sets fire to the property of another
(Section 1 of Pres. Decree No. 1613).

2. CD is criminally liable although he is the stepfather of FEL whose property


he burnt, because such relationship is not exempting from criminal liability in the crime of
arson but only in crimes of theft, swindling or estafa, and malicious mischief (Article 332,
Revised Penal Code). The provision (Art. 323) of the Code to the effect that burning property
of small value should be punished as malicious mischief has long been repealed by Pres.
Decree 1613; hence, there is no more legal basis to consider burning property of small value
as malicious mischief.

B. GV was convicted of raping TC, his niece, and he was sentenced to death. It was alleged in
the information that the victim was a minor below seven years old, and her mother testified that she
was only six years and ten months old, which her aunt corroborated on the witness stand. The
information also alleged that the accused was the victim’s uncle, a fact proved by the prosecution.

On automatic review before the Supreme Court, accused- appellant contends that capital
punishment .could not be imposed on him because of the inadequacy of the charges and the
insufficiency of the evidence to prove all the elements of the heinous crime of rape beyond reasonable
doubt.

Is appellant’s contention correct? Reason briefly. (5%)

SUGGESTED ANSWER:

B. Yes, appellant's contention is correct insofar as the age of the victim is concerned.
The age of the victim raped has not been proved beyond reasonable doubt to constitute the
crime as qualified rape and deserving of the death penalty. The guidelines in appreciating
age as a qualifying circumstance in rape cases have not been met, to wit:

a) The primary evidence of the age of the victim is her birth certificate;

b) In the absence of the birth certificate, age of the victim may be proven by
authentic document, such as baptismal certificate and school records;

c) If the aforesaid documents are shown to have been lost or destroyed or


otherwise unavailable, the testimony, if clear and credible of the victim’s mother or any
member of the family, by consanguinity or affinity, 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 but only 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.

d) In the absence of a certificate of live birth, authentic document, or the


testimony of the victim's mother or relatives concerning the victim's age under the
circumstances above-stated, complainant’s sole testimony can suffice, provided that it is
expressly and clearly admitted by the accused (People vs. Pruna, 390 SCRA 577 [2002D.
VII

A. AX was convicted of reckless imprudence resulting in homicide. The trial court sentenced
him to a prison term as well as to pay P150.000 as civil indemnity and damages. While his appeal
was pending, AX met a fatal accident. He left a young widow, 2 children, and a million-peso estate.
What is the effect, if any, of his death on his criminal as well as civil liability? Explain briefly. (5%)

SUGGESTED ANSWER:

A. The death of AX while his appeal from the judgment of the trial court is
pending, extinguishes his criminal liability. The civil liability insofar as it arises from the
crime and recoverable under the Revised Penal Code is also extinguished; but indemnity and
damages may be recovered in a civil action if predicated on a source of obligation under
Art. 1157, Civil Code, such as law, contracts, quasi-contracts and quasi-delicts, but not on
the basis of delicts. (People v. Bayotas, 236SCRA 239 11994B.

Civil indemnity and damages under the Revised Penal Code are recoverable only if
the accused had been convicted with finality before he died.

B. OZ and YO were both courting their co-employee, SUE. Because of their bitter rivalry,
OZ decided to get rid of YO by poisoning him. OZ poured a substance into YO’s coffee thinking it was
arsenic. It turned out that the substance was white sugar substitute known as Equal. Nothing
happened to YO after he drank the coffee.

What criminal liability did OZ incur, If any? Explain briefly. (5%)

SUGGESTED ANSWER:

B. OZ incurred criminal liability for an impossible crime of murder. Criminal


liability shall be incurred by any person performing an act which would be an offense
against persons or property, were it not for the inherent impossibility of its accomplishment
or on account of the employment of inadequate or ineffectual means (Art. 4, par. 2, RPC).

In the problem given, the impossibility of accomplishing the crime of murder, a crime
against persons, was due to the employment of ineffectual means which OZ thought was
poison. The law imputes criminal liability to the offender although no crime resulted, only
to suppress his criminal propensity because subjectively, he is a criminal though objectively,
no crime was committed.

VII

A. PH killed OJ, his political rival in the election campaign for Mayor of their town. The Information
against PH alleged that he used an unlicensed firearm in the killing of the victim, and this was proved
beyond reasonable doubt by the prosecution. The trial court convicted PH of two crimes: murder and
illegal possession of firearms.

Is the conviction correct? Reason briefly. (5%)

SUGGESTED ANSWER:

A. No, the conviction of PH for two crimes, murder and illegal possession of firearm is
not correct. Under the new law on illegal possession of firearms and explosives, Rep. Act No.
8294, a person may only be criminally liable for illegal possession of firearm if no other
crime is committed therewith; if a homicide or murder is committed with the use of an
unlicensed firearm, such use shall be considered as an aggravating circumstance.

PH therefore may only be convicted of murder and the use of an unlicensed firearm in its
commission may only be appreciated as a special aggravating circumstance, provided that
such use is alleged specifically in the information for Murder.

B. DCB, the daughter of MCB, stole the earrings of XYZ, a stranger. MCB pawned the
earrings with TBI Pawnshop as a pledge for P500 loan. During the trial, MCB raised the
defense that being the mother of DCB, she cannot be held liable as an accessory.

Will MCB’s defense prosper? Reason briefly. (5%)

SUGGESTED ANSWER:

B. No, MCB’s defense will not prosper because the exemption from criminal liability of
an accessory by virtue of relationship with the principal does not cover accessories who
themselves profited from or assisted the offender to profit by the effects or proceeds of the
crime. This non-exemption of an accessory, though related to the principal of the crime, is
expressly provided in Art. 20 of the Revised Penal Code.

IX

A. Mrs. MNA was charged of child abuse. It appears from the evidence that she failed to give
immediately the required medical attention to her adopted child, BPO, when he was accidentally
bumped by her car, resulting in his head injuries and impaired vision that could lead to night
blindness. The accused, according to the social worker on the case, used to whip him when he failed
to come home on time from school Also, to punish him for carelessness in washing dishes, she
sometimes sent him to bed without supper.

She moved to quash the charge on the ground that there is no evidence she maltreated her adopted
child habitually. She added that the accident was caused by her driver's negligence. She did punish
her ward for naughtiness or carelessness, but only mildly.

Is her motion meritorious? Reason briefly. (5%)

SUGGESTED ANSWER:

A. No, the motion to quash is not meritorious. It is not necessary that movant's
maltreatment of a child be “habitual" to constitute child abuse. The wrongful acts penalized
as "Child Abuse" under Rep. Act No. 76X0 refers to the maltreatment of the child, "whether
habitual or not": this is expressly stated in Sec. 2(b) of the said Law.

Mrs. MNA should be liable for child abuse.

B. Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of
the windows in her house. After taking her personal properties and as they were about to leave, XA
decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her
bedroom and did nothing to prevent XA from raping OD.

What crime or crimes did XA, YB and ZC commit, and what is the criminal liability of each? Explain
briefly. (5%)
SUGGESTED ANSWER;

B. The crime committed by XA, YB and ZC is the composite crime of Robbery with Rape,
a single, indivisible offense under Art. 294(1) of the Revised Penal Code.

Although the conspiracy among the offenders was only to commit robbery and only XA
raped CD, the other robbers, YB and ZC, were present and aware of the rape being
committed by their co-conspirator. Having done nothing to stop XA from committing the
rape, YB and ZC thereby concurred in the commission of the rape by their co-conspirator XA.

The criminal liability of all, XA, YZ and ZC, shall be the same, as principals in the special
complex crime of robbery with rape which is a single, indivisible offense where the rape
accompanying the robbery is just a component.

Distinguish clearly but briefly: (10%)

(1) Between rebellion and coup d*etat based on their constitutive elements as criminal
offenses.

(2) Between compound and complex crimes as concepts in the Penal Code.

(3) Between justifying and exempting circumstances in criminal law.

(4) Between intent and motive in the commission of an offense.

(5) Between oral defamation and criminal conversation.

SUGGESTED ANSWER:

(1) Rebellion is committed when a multitude of persons rise publicly in arms for the
purpose of overthrowing the duly constituted government, to be replaced by a government of
the rebels. It is carried out by force and violence, but need not be participated in by any
member of the military, national police or any public officer.

Coup d’etat is committed when members of the military, Philippine National Police,
or public officer, acting as principal offenders, launched a swift attack thru strategy,
stealth, threat, violence or intimidation against duly constituted authorities of the Republic
of the Philippines, military camp or installation, communication networks, public facilities
or utilities needed for the exercise and continued possession of governmental powers, for
the purpose of seizing or diminishing state powers.

Unlike rebellion which requires a public uprising, coup d’etat may be carried out
singly or simultaneously and the principal offenders must be members of the military,
national police or public officer, with or without. Civilian support. The criminal objective
need not be to • overthrow the existing government but only to destabilize o^pai^yte the
existing government

(2) Compound crimes result when the offender committed only a single felonious act
from which two or more crimes resulted. This is provided for in modified form in the first
part of Article 48, Revised Penal Code, limiting the resulting crimes to only grave and/or
less grave felonies. Hence, light felonies are excluded even though resulting from the same
single act.

Complex crimes result when the offender has to commit an offense as a necessary means for
committing another offense. Only one Information shall be filed and if proven, the penalty
for the more serious crime shall be imposed.

(3) Justifying circumstance affects the act, not the actor; while exempting
circumstance affects the actor, not the act. In justifying circumstance, no criminal and,
generally, no civil liability is incurred; while in exempting circumstance, civil liability is
generally incurred although there is no criminal liability.

(4) Intent is the purpose for using a particular means to achieve the desired result;
while motive is the moving power which impels a person to act for a definite result. Intent is
an ingredient of dolo or malice and thus an element of deliberate felonies; while motive is
not an element of a crime but only considered when the identity of the offender is in doubt.

(5) Oral defamation, known as slander, is a malicious imputation of any act, omission,
condition or circumstance against a person, done orally in public, tending to cause
dishonor, discredit, contempt, embarassment or ridicule to the latter. This is a crime
against honor penalized in Art. 358 of the Revised Penal Code.

Criminal conversation. The term is used in making a polite reference to sexual


intercourse as in certain crimes, like rape, seduction and adultery. It has no definite
concept as a crime.

2003 BAR EXAMINATION

I.

4%

Distinguish, in their respective concepts and legal implications, between crimes mala in se and
crimes mala prohibita.
SUGGESTED ANSWER:

In concept:

Crimes mala in se are those where the acts or omissions penalized are inherently bad, evil, or
wrong that they are almost universally condemned.

Crimes mala prohibita are those where the acts penalized are not inherently bad, evil, or
wrong but prohibited by law for public good, public welfare or interest and whoever violates
the prohibition are penalized.

In legal implications:

In crimes mala in se, good faith or lack of criminal intent/ negligence is a defense, while in
crimes mala prohibita, good faith or lack of criminal intent or malice is not a defense; it is
enough that the prohibition was voluntarily violated.

Also, criminal liability is generally incurred in crimes mala in se even when the crime is only
attempted or frustrated, while in crimes mala prohibita, criminal liability is generally
incurred only when the crime is consummated.

Also in crimes mala in se, mitigating and aggravating circumstances are appreciated in
imposing the penalties, while in crimes mala prohibita, such circumstances are not
appreciated unless the special law has adopted the scheme or scale of penalties under the
Revised Penal Code.

II.

4%

The accused lived with his family in a neighborhood that often was the scene of frequent
robberies. At one time, past midnight, the accused went downstairs with a loaded gun to investigate
he thought were footsteps of an uninvited guest. After seeing what appeared to him an armed
stranger looking around and out to rob the house, he fired his gun seriously injuring the man.
When the lights were turned on, the unfortunate victim turned out to be a brother-in-law on his way
to the kitchen to get some light snacks. The accused was indicted for serious physical injuries.
Should the accused, given the circumstances, be convicted or acquitted? Why?

SUGGESTED ANSWER:

The accused should be convicted because, even assuming the facts to be true in his
belief, his act of shooting a burglar when there is no unlawful aggression on his person is not
justified. Defense of property or property right does not justify the act of firing a gun at a
burglar unless the life and limb of the accused is already in imminent and immediate danger.
Although the accused acted out of a misapprehension of the facts, he is not absolved from
criminal liability.

ALTERNATIVE ANSWER:

Considering the given circumstances, namely; the frequent robberies in the


neighborhood, the time was past midnight, and the victim appeared to be an armed burglar in
the dark and inside his house, the accused could have entertained an honest belief that his
life and limb or those of his family are already in immediate and imminent danger. Hence, it
may be reasonable to accept that he acted out of an honest mistake of fact and therefore
without criminal intent. An honest mistake of fact negatives criminal intent and thus
absolves the accused from criminal liability.
III.

8%

A and B, both store janitors, planned to kill their employer C at midnight and take the money kept
in the cash register. A and B together drew the sketch of the store, where they knew C would be
sleeping, and planned the sequence of their attack. Shortly before midnight, A and B were ready to
carry out the plan. When A was about to lift C's mosquito net to thrust his dagger, a police car with
sirens blaring passed by. Scared, B ran out of the store and fled, while A went on to stab C to death,
put the money in the bag, and ran outside to look for B. The latter was nowhere in sight. Unknown
to him, B had already left the place. What was the participation and corresponding criminal liability
of each, if any? Reasons.

SUGGESTED ANSWER:

There was an expressed conspiracy between A and B to kill C and take the latter’s
money. The planned killing and taking of the money appears to be intimately related as
component crimes, hence a special complex crime of robbery with homicide. The conspiracy
being expressed, not just implied, A and B are bound as co-conspirators after they have
planned and agreed on the sequence of their attack even before they committed the crime.
Therefore, the principle in law that when there is a conspiracy, the act of one is the act of all,
already governs them, in fact, A and B were already in the store to carry out their criminal
plan.

That B ran out of the store and fled upon hearing the sirens of the police car, is not
spontaneous desistance but flight to evade apprehension. It would be different if B then tried
to stop A from continuing with the commission of the crime; he did not. So the act of A in
pursuing the commission of the crime which both he and B designed, planned, and
commenced to commit, would also be the act of B because of their expressed conspiracy.
Both are liable for the composite crime of robbery with homicide.

ALTERNATIVE ANSWER:

A shall incur full criminal liability for the crime of robbery with homicide, but B shall
not incur criminal liability because he desisted. B’s spontaneous desistance, made before all
acts of execution are performed, is exculpatory. Conspiracy to rob and kill is not perse
punishable.

The desistance need not be actuated by remorse or good motive. It is enough that the
discontinuance comes from the person who has begun the commission of the crime but
before all acts of execution are performed. A person who has began the commission of a crime
but desisted, is absolved from criminal liability as a reward to one, who having set foot on the
verge of crime, heeds the call of his conscience and returns to the path of righteousness.

IV.

8%

(a) State the concept of “implied conspiracy” and give its legal effects.

(b) When would qualifying circumstances be deemed, if at all, elements of a crime?


SUGGESTED ANSWER:

(a) An “implied conspiracy” is one which is only inferred or deduced from the manner
the participants in the commission of crime carried out its execution. Where the offenders
acted in concert in the commission of the crime, meaning that their acts are coordinated or
synchronized in a way indicative that they are pursuing a common criminal objective, they
shall be deemed to be acting in conspiracy and their criminal liability shall be collective, not
individual.

The legal effects of an “implied conspiracy” are:

1) Not all those who are present at the scene of the crime will be considered conspirators;

2) Only those who participated by criminal acts in the commission of the crime will be
considered as coconspirators; and

3) Mere acquiescence to or approval of the commission of the crime, without any act of
criminal participation, shall not render one criminally liable as co-conspirator.

(b) A qualifying circumstance would be deemed an element of a crime when -

1) it changes the nature of the crime, bringing about a more serious crime and a heavier
penalty;

2) it is essential to the crime involved, otherwise some other crime is committed; and

3) it is specifically alleged in the Information and proven during the trial.

ALTERNATIVE ANSWER:

A qualifying circumstance is deemed an element of a crime when it is specifically stated by


law as included in the definition of a crime, like treachery in the crime of murder.

V.

8%

The conduct of wife A aroused the ire of her husband B. Incensed with anger almost beyond
his control, B could not help but inflict physical injuries on A. Moments after B started hitting A
with his fists, A suddenly complained of severe chest pains. B, realizing that A was indeed in serious
trouble, immediately brought her to the hospital. Despite efforts to alleviate A’s pains, she died of
heart attack. It turned out that she had been suffering from a lingering heart ailment. What crime, if
any, could B be held guilty of?

SUGGESTED ANSWER:

B could be held liable for parricide because his act of hitting his wife with fist blows
and therewith inflicting physical injuries on her, is felonious. A person committing a
felonious act incurs criminal liability although the wrongful consequence is different from
what he intended (Art. 4, par. 1, Revised Penal Code).

Although A died of heart attack, the said attack was generated by B’s felonious act of
hitting her with his fists. Such felonious act was the immediate cause of the heart attack,
having materially contributed to and hastened A’s death. Even though B may have acted
without intent to kill his wife, lack of such intent is of no moment when the victim dies.
However, B may be given the mitigating circumstance of having acted without intention to
commit so grave a wrong as that committed (Art. 13, par. 3, Revised Penal Code).

VI.

6%

In a free-for-all brawl that ensued after some customers inside a night club became unruly,
guns were fired by a group, among them A and B, that finally put the customers back to their
senses. Unfortunately, one customer died. Subsequent investigation revealed that A's gunshot had
inflicted on the victim a slight wound that did not cause the deceased’s death nor materially
contribute to it. It was B’s gunshot that inflicted a fatal wound on the deceased. A contended that
his liability should, if at all, be limited to slight physical injury. Would you agree? Why?

SUGGESTED ANSWER:

No. I beg to disagree with A’s contention that his liability should be limited to slight
physical injury only. He should be held liable for attempted homicide because he inflicted
said injury with the use of a firearm which is a lethal weapon. Intent to kill is inherent in the
use of a firearm. (Araneta, Jr. v. Court of Appeals. 187 SCRA 123 [1990])

ALTERNATIVE ANSWER:

Yes, I would agree to A’s contention that his criminal liability should be for slight
physical injury only, because he fired his gun only to pacify the unruly customers of the night
club and therefore, without intent to kill. B’s gunshot that inflicted a fatal wound on the
deceased may not be imputed to A because conspiracy cannot exist when there is a free-for-
all brawl or tumultuous affray. A and B are liable only for their respective act.

VII.

4%

Distinguish fully between entrapment and instigation in Criminal Law. Exemplify each.

SUGGESTED ANSWER:

In entrapment -

1) the criminal design originates from and is already in the mind of the lawbreaker even
before entrapment;

2) the law enforcers resort to ways and means for the purpose of capturing the
lawbreaker in flagrante delicto; and

3) this circumstance is no bar to prosecution and conviction of the lawbreaker.

In instigation -

1) the idea and design to bring about the commission of the crime originated and
developed in the mind of the law enforcers;

2) the law enforcers induce, lure, or incite a person who is not minded to commit a
crime and would not otherwise commit it, into committing the crime; and
3) this circumstance absolves the accused from criminal liability (People v. Dante
Marcos, 185 SCRA154. [1990]).

Example of entrapment:

A, an anti-narcotic agent of the Government acted as a poseur buyer of shabu and negotiated
with B, a suspected drug pusher who is unaware that A is a police officer. A then issued
marked money to B who handed a sachet of shabu to B. Thereupon, A signalled his anti-
narcotic team to close-in and arrest B. This is a case of entrapment because the criminal
mind is in B already when A transacted with him.

Example of instigation:

Because the members of an anti-narcotic team are already known to drug pushers, A, the
team leader, money to be used in buying shabu from C. After C handed the sachet of shabu to
B and the latter handed the marked money to C, the team closed-in and placed B and C under
arrest. Under the facts, B is not criminally liable for his participation in the transaction
because he was acting only under instigation by the law enforcers.

VIII.

8%

(a) A was 2 months below 18 years of age when he committed the crime. He was charged with the
crime 3 months later. He was 23 when he was finally convicted and sentenced. Instead of preparing
to serve a jail term, he sought a suspension of the sentence on the ground that he was a juvenile
offender. Should he be entitled to a suspension of sentence? Reasons.

(b) Can juvenile offenders, who are recidivists, validly ask for suspension of sentence? Explain.

SUGGESTED ANSWER:

(a) No, A is not entitled to a suspension of the sentence because he is no longer a minor at the
time of promulgation of the sentence. For purposes of suspension of sentence, the offender’s
age at the time of promulgation of the sentence is the one considered, not his age when he
committed the crime. So although A was below 18 years old when he committed the crime,
but he was already 23 years old when sentenced, he is no longer eligible for suspension of the
sentence.

(b) Yes, so long as the offender is still a minor at the time of the promulgation of the
sentence. The law establishing Family Courts, Rep. Act 8369, provides to this effect: that if
the minor is found guilty, the court should promulgate the sentence and ascertain any civil
liability which the accused may have incurred. However, the sentence shall be suspended
without the need of application pursuant to PD 603, otherwise known as the “Child and
Youth Welfare Code” (RA 8369, Sec. 5a). It is under PD 603 that an application for suspension
of the sentence is required and thereunder it is one of the conditions for suspension of
sentence that the offender be a first time convict: this has been displaced by RA 8369.

IX.

8%

A learned two days ago that B had received dollar bills amounting to $10,000 from his
daughter working in the United States. With the intention of robbing B of those dollars, A entered
B’s house at midnight, armed with a knife which he used to gain entry, and began quietly searching
the drawers, shelves, and other likely receptacles of the cash. While doing that, B awoke, rushed out
from the bedroom, and grappled with A for the possession of the knife which A was then holding.
After stabbing B to death, A turned over B’s pillow and found the latter’s wallet underneath the
pillow, which was bulging with the dollar bills he was looking for A took the bills and left the house.'
What crime or crimes were committed?

SUGGESTED ANSWER:

The crime committed is robbery with homicide, a composite crime. This is so because
A’s primordial criminal intent is to commit a robbery and in the course of the robbery, the
killing of B took place. Both the robbery and the killing were consummated, thus giving rise
to the special complex crime of robbery with homicide. The primary criminal intent being to
commit a robbery, any killing on the “occasion” of the robbery, though not by reason thereof,
is considered a component of the crime of robbery with homicide as a single indivisible
offense.

X.

6%

(a) Distinguish between an ordinary complex crime and a special complex crime as to their
concepts and as to the imposition of penalties.
(b) Can there be a complex crime of coup d’etat with rebellion?
(c) Can there be a complex crime of coup d'etat with sedition?

SUGGESTED ANSWER:

(a) In concept-

An ordinary complex crime is made up of two or more crimes being punished in distinct
provisions of the Revised Penal Code but alleged in one Information either because they were
brought about by a single felonious act or because one offense is a necessary means for
committing the other offense or offenses. They are alleged in one Information so that only
one penalty shall be imposed.

A special complex crime, on the other hand, is made up of two or more crimes which are
considered only as components of a single indivisible offense being punished in one provision
of the Revised Penal Code.

As to penalties -

In ordinary complex crime, the penalty for the most serious crime shall be imposed and in its
maximum period.

In special complex crime, only one penalty is specifically prescribed for all the component
crimes which are regarded as one indivisible offense. The component crimes are not regarded
as distinct crimes and so the penalty for the most serious crime is not the penalty to be
imposed nor in its maximum period. It is the penalty specifically provided for the special
complex crime that shall be applied according to the rules on imposition of the penalty.

(b) Yes, if there was conspiracy between the offender/ offenders committing the coup d’etat
and the offenders committing the rebellion. By conspiracy, the crime of one would be the
crime of the other and vice versa. This is possible because the offender in coup d'etat may be
any person or persons belonging to the military or the national police or a public officer,
whereas rebellion does not so require. Moreover, the crime of coup d’etat may be committed
singly, whereas rebellion requires a public uprising and taking up arms to overthrow the duly
constituted government. Since the two crimes are essentially different and punished with
distinct penalties, there is no legal impediment to the application of Art. 48 of the Revised
Penal Code.

(c) Yes, coup d’etat can be complexed with sedition because the two crimes are essentially
different and distinctly punished under the Revised Penal Code. Sedition may not be directed
against the Government or non-political in objective, whereas coup d’etat is always political
in objective as it is directed against the Government and led by persons or public officer
holding public office belonging to the military or national police. Art. 48 of the Code may
apply under the conditions therein provided.

ALTERNATIVE ANSWER:

The crime of coup d’etat cannot foe complexed with the crime of rebellion because
both crimes are directed against the Government or for political purposes, although the
principal offenders are different. The essence may be the same and thus constitute only one
crime. In this situation, the two crimes are not distinct and therefore, may not be proper to
apply Article 48 of the Code.

XI.

8%

During a seminar workshop attended by government employees from the Bureau of Customs
and the Bureau of Internal Revenue, A, the speaker, in the course of his lecture, lamented the fact
that a great majority of those serving in said agencies were utterly dishonest and corrupt. The
following morning, the whole group of employees in the two bureaus who attended the seminar, as
complainants, filed a criminal complaint against A for uttering what the group claimed to be
defamatory statements of the lecturer. In court, A filed a motion to quash the information, reciting
fully the above facts, on the ground that no crime were committed. If you were the judge, how would
you resolve the motion?

SUGGESTED ANSWER:

I would grant the motion to quash on the ground that the facts charged do not
constitute an offense, since there is no definite person or persons dishonored. The crime of
libel or slander, is a crime against honor such that the person or persons dishonored must be
identifiable even by innuendoes: otherwise the crime against honor is not committed.
Moreover, A was not making a malicious imputation, but merely stating an opinion; he was
delivering a lecture with no malice at all during a seminar workshop. Malice being inherently
absent in the utterance, the statement is not actionable as defamatory.

XII.

8%
A and B agreed to meet at the latter's house to discuss B’s financial problems. On his way,
one of A’s car tires blew up. Before A left following the meeting, he asked B to lend him (A) money to
buy a new spare tire. B had temporarily exhausted his bank deposits, leaving a zero balance.
Anticipating, however, a replenishment of his account soon, B issued A a postdated check with
which A negotiated for a new tire. When presented, the check bounced for lack of funds. The tire
company filed a criminal case against A and B. What would be the criminal liability, if any, of each
of the two accused? Explain.

SUGGESTED ANSWER:

A, who negotiated the unfunded check of B in buying a new tire for his car may only
be prosecuted for estafa if he was aware at the time of such negotiation that the check has no
sufficient funds in the drawee bank; otherwise, he is not criminally liable.

B who accommodated A with his check may nevertheless be prosecuted under BP 22


for having issued the check, knowing at the time of issuance that it has no funds in the bank
and that A will negotiate it to buy a new tire, i.e., for value. B may not be prosecuted for
estafa because the facts indicate that he is not actuated by intent to defraud in issuing the
check which A negotiated. Obviously, B issued the postdated check only to help A: criminal
intent or dolo is absent.

XIII.

4%

When would the Indeterminate Sentence Law be inapplicable?

SUGGESTED ANSWER:

The Indeterminate Sentence Law is not applicable to:

(1) those persons convicted of offenses punished with death penalty or life-imprisonment
or reclusion perpetua;

(2) those convicted of treason, conspiracy or proposal to commit treason;

(3) those convicted of misprision of treason, rebellion, sedition or espionage;

(4) those convicted of piracy;

(5) those who are habitual delinquents;

(6) those who shall have escaped from confinement or evaded sentence;

(7) those who having been granted conditional pardon by the Chief Executive shall have
violated the terms thereof;

(8) those whose maximum term of imprisonment does not exceed one year;

(9) those already sentenced by final judgment at the time of approval of this Act; and

(10) those whose sentence imposes penalties which do not involve imprisonment, like
distierro.

XIV.
8%

Juan was convicted of the Regional Trial Court of a crime and sentenced to suffer the
penalty of imprisonment for a minimum of eight years. He appealed both his conviction and the
penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan's
conviction but reduced his sentence to a maximum of four years and eight months imprisonment.
Could Juan forthwith file an application for probation? Explain.

SUGGESTED ANSWER:

No, Juan can no longer avail of the probation because he appealed from the judgment
of conviction of the trial court, and therefore, cannot apply for probation anymore. Section 4
of the Probation Law, as amended, mandates that no application for probation shall be
entertained or granted if the accused has perfected an appeal from the judgment of
conviction.

XV.

8%

The Central Bank (Bangko Sentralna Pilipinas), by a resolution of the monetary board, hires
Thereof Sto. Tomas, a retired manager of a leading bank as a consultant. Thereof later receives a
valuable gift from a bank under investigation by the Central Bank. May Thereof be prosecuted
under Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) for accepting such a gift?
Explain.

SUGGESTED ANSWER:

No, Thereof may not be prosecuted under Rep. Act 3019, but may be prosecuted for
violation of Pres. Decree No. 46, under which such act of receiving a valuable gift is punished.

Although Thereof is a “public officer” within the application of the Anti-Graft and
Corrupt Practices Act (RA 3019), yet his act of receiving such gift does not appear to be
included among the punishable acts under Rep. Act 3019), yet his act of receiving such gift
does not appear to be included among the punishable acts under Rep. Act not to intervene in
his official capacity in the investigation of the bank which gave the gift. Penal laws must be
strictly construed against the State. In any case, Thereof is administratively liable.

ALTERNATIVE ANSWER:

Yes, Thereof may be prosecuted under Rep. Act 3019 because he is a “public officer'
within the purview of said law, and Thereof received the valuable gift from a bank which is
under investigation by the Central Bank where he is employed as a “public officer. Receiving
gift, directly or indirectly by a public officer from a party who has a transaction with the
Government is wrong, more so when the gift-giver is under investigation by the government
office to which the public officer is connected.
2002 BAR EXAMINATION

I.

A was invited to a drinking spree by friends. After having had a drink too many, A and B had a
heated argument, during which A stabbed B. Asa result, B suffered serious physical injuries. May
the intoxication of A be considered aggravating or mitigating? (5%)

Answer:

The intoxication of A may be prima facie considered mitigating since it was merely
incidental to the commission of the crime. It may not be considered aggravating as there Is
no clear indication from the facts of the case that it was habitual or intentional on the part
of A. Aggravating circumstances are not to be presumed; they should be proved beyond
reasonable doubt

II.

A asked B to kill C because of a grave injustice done to A by C. A promised B a reward. B was


willing to kill C, not so much because of the reward promised to him but because he also had his
own long-standing grudge against C, who had wronged him in the past. If C is killed by B, would A
be liable as a principal by inducement? (5%)

SUGGESTED ANSWER:

No. A would not be liable as a principal by inducement because the reward he promised S Is
not the sole Impelling reason which made B to kill C. To bring about criminal liability of a co-
principal, the inducement made by the inducer must be the sole consideration which caused
the person induced to commit the crime and without which the crime would not have been
committed. The facts of the case indicate that B, the killer supposedly Induced by A, had his
own reason to kill C out of a long standing grudge.

III.

A. How are the maximum and the minimum terms of the indeterminate sentence for offenses
punishable under the Revised Penal Code determined? (3%)

SUGGESTED ANSWER:

For crimes punished under the Revised Penal Code, the maximum term of the
indeterminate sentence shall be the penalty properly Imposable under the same Code after
considering the attending mitigating and/or aggravating circumstances according to Art.
64 of said Code. The minimum term of the same sentence shall be fixed within the range of
the penalty next lower in degree to that prescribed for the crime under the said Code.

B. Under the law, what is the purpose for fixing the maximum and the minimum terms of the indeterminate
sentence? (2%)

IV.

A. A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one
(1) day in prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum. Prior to his conviction, he had been found guilty of vagrancy and imprisoned for ten (10) days of
arresto manor and fined fifty pesos (P50.00). Is he eligible for probation? Why? (3%)
SUGGESTED ANSWER:

No, he is not The benefits of the Probation Law (PD 968, as amended) does not extend to
those sentenced to serve a maximum term of imprisonment of more than six years (Sec. 9a).

It is of no moment that in his previous conviction A was given a penalty of only ten (10)
days of arresto mayor and a fine of P50.00.

B. May a probationer appeal from the decision revoking the grant of probation or modifying the
terms and conditions thereof?
(2%)

SUGGESTED ANSWER:

No. Under Section 4 of the Probation Law, as amended, an order granting or denying
probation is not appealable.

A vehicular accident occurred on the national highway in Bulacan. Among the first to arrive at
the scene of the accident was A, who found one of the victims already dead and the others
unconscious. Before rescuers could come, A, taking advantage of the helpless condition of the
victims, took their wallets and jewelry. However, the police, who responded to the report of the
accident, caught A. What crime or crimes did A commit? Why? (5%)

SUGGESTED ANSWER:

A committed the crime of qualified theft because he took the wallets and jewelry of the
victims with evident intent to gain and on the occasion of a vehicular accident wherein he
took advantage of the helpless condition of the victims. But only one crime of qualified theft
was committed although there were more than one victim divested of their valuables, because
all the taking of the valuables were made on one and the same occasion, thus constituting a continued
crime.

VI.

A. What is the difference between violation of domicile and trespass to dwelling? (2%)

SUGGESTED ANSWER:

The differences between violation of domicile and trespass to dwelling are:

a. The offender in violation of domicile is a public officer acting under color of authority; in trespass to
dwelling, the offender is a private person or public officer acting in a private capacity.

b. Violation of domicile is committed in 3 different ways: (1) by entering the dwelling of another against
the will of the latter; (2) searching papers and other effects inside the dwelling without the previous
consent of the owner; or (3) refusing to leave the premises which he entered surreptitiously, after being
required to leave the premises.

Trespass to dwelling is committed only in one way; that Is, by entering the dwelling of another
against the express or implied will of the latter.
B. A, a detention prisoner, was taken to a hospital for emergency medical treatment His followers, all of
whom were armed, went to the hospital to take him away or help him escape. The prison guards, seeing that
they were outnumbered and that resistance would endanger the lives of other patients, decided to allow the
prisoner to be taken by his followers. What crime, if any, was committed by As followers? Why? (3%)

SUGGESTED ANSWER:

A’s followers shall be liable as principals in the crime of delivery of prisoner from jail (Art 156,
Revised Penal Code).

The felony is committed not only by removing from any jail or penal establishment
any person confined therein but also by helping in the escape of such person outside of said
establishments by means of violence, intimidation, bribery, or any other means.

VII.

A, a lady professor, was giving an examination. She noticed 8, one of the students, cheating. She
called the student’s attention and confiscated his examination booklet, causing embarrassment to
him. The following day, while the class was going on, the student, B, approached A and, without
any warning, slapped her. B would have inflicted further injuries on A had not C, another student,
come to A’s rescue and prevented B from continuing his attack. B turned his ire on C and ounched
the latter. What crime or crimes, if any, did 8 commit? Why? (5%)

SUGGESTED ANSWER:

B committed two (2) counts of direct assault: one for slapping the professor, A, who was
then conducting classes and thus exercising authority; and another one for the violence on
the student C, who came to the aid of the said professor.

By express provision of Article 152, in relation to Article 148 of the Revised Penal Code,
teachers and professors of public or duly recognized private schools, colleges and
universities in the actual performance of their professional duties or on the occasion of such
performance are deemed persons in authority for purposes of the crimes of direct assault
and of resistance and disobedience in Articles 148 and 151 of said Code. And any person
who comes to the aid of persons in authority shall be deemed an agent of a person in
authority. Accordingly, the attack on C is, in the eyes of the law, an attack on an agent of a
person in authority, not just an attack on a student.

VIII.

A. What other acts are considered rape under the Anti-Rape Law of 1997, amending the Revised Penal
Code? (3%)

SUGGESTED ANSWER:

The other acts considered rape under the Anti-Rape Law of 1997 are:

1. having carnal knowledge of a woman by a man by means of fraudulent machination or


grave abuse of authority;

2. having carnal knowledge of a demented woman by a man even if none of the circumstances
required in rape be present; and
3. committing an act of sexual assault by inserting a person’s penis into the victim’s mouth or
anal orifice, or by inserting any instrument or object, into the genital or anal orifice of another person.

B. The Anti-Rape Law of 1997 reclassified rape from a crime against honor, a private offense, to
that of a crime against persons. Will the subsequent marriage of the offender and the offended party
extinguish the criminal action or the penalty imposed? Explain. (2%)

SUGGESTED ANSWER:

Yes. By express provision of Article 266-C of the Revised Penal Code, as amended, the subsequent
valid marriage between the offender and offended party shall extinguish the criminal action or the
penalty imposed, although rape has been reclassified from a crime against chastity, to that of a crime
against persons.

IX.

A. A, a male, takes B, another male, to a motel and there, through threat and intimidation,
succeeds in inserting his penis into the anus of B. What, if any, is A’s criminal liability? Why?
(3%)

SUGGESTED ANSWER:

A shall be criminally liable for rape by committing an act of sexual assault against B, by
inserting his penis into the anus of the latter.

Even a man may be a victim of rape by sexual assault under par. 2 of Article 268-Aof the
Revised Penal Code, as amended, “when the offender’s penis is inserted into his mouth or
anal orifice.”

S. A, with lewd designs, took a 13-year old girl to a nipa hut in his farm and there had sexual
intercourse with her. The girl did not offer any resistance because she was infatuated with the man,
who was good looking and belonged to a rich and prominent family in the town. What crime, if any,
was committed by A? Why? (2%)

SUGGESTED ANSWER:

A committed the crime of consented abduction under Article 343 of the Revised Penal
Code, as amended.

The said Article punishes the abduction of a virgin over 12 and under 18 years of age,
carried out with her consent and with lewd designs. Although the problem did not indicate
the victim to be virgin, virginity should not be understood in its material sense, as to exclude
a virtuous woman of good reputation, since the essence of the crime is not the Injury to the
woman but the outrage and alarm to her family (Valdepeflas vs. People, 16 SCRA 871 [1966]).

ALTERNATIVE ANSWER:

A committed "Child Abuse” under Rep. Act No. 7610. As defined in said law, "child abuse” includes
sexual abuse or any act which debases, degrades or demeans the intrinsic worth and dignity of a child
as a human being, whose age is below eighteen (18) years.

X.

A. A, a married woman, had sexual intercourse with a man who was not her husband. The man did
not know she was married. What crime, if any, did each of them commit? Why? (2%)

SUGGESTED ANSWER:

A, the married woman, committed the crime of adultery under Article 333 of the
Revised Penal Code, as amended, for having sexual intercourse with a man not her husband
while her marriage is still subsisting. But the man who had carnal knowledge of her, not
knowing her fo be married, shall not be liable for adultery.

B. A is married. He has a paramour with whom he has sexual relations on a more or less regular
basis. They meet at least once a week in hotels, motels and other places where they can be alone. Is
A guilty of any crime? Why? (3%)

SUGGESTED ANSWER:

A is guilty of the crime of concubinage by having sexual intercourse under scandalous


circumstances, with a woman who is not his wife.

Having sexual relations on a more or less regular basis in hotels, motels and other places
may be considered a scandalous circumstance that offends public conscience, giving rise to
criticism and general protest, such acts being Imprudent and wanton and setting a bad
example (People vs. Santos, 86 SCRA 705 [1978]).

ALTERNATIVE ANSWER:

A is not guilty of any crime because a married man does not incur the crime of
concubinage by merely having a paramour, unless under scandalous circumstances, or he
keeps her in the conjugal dwelling as a mistress, or cohabits with her in any other place. His
weekly meetings with his paramour does not per se constitute scandalous circumstance.

XI.

A childless couple, A and B, wanted to have a child they could call their own. C, an unwed
mother, sold her newborn baby to them. Thereafter, A and B caused their names to be stated in the
birth certificate of the child as his parents. This was done in connivance with the doctor who
assisted in the delivery of C. What are the criminal liabilities, if any, of the couple A and B, C and
the doctor?

SUGGESTED ANSWER:

The couple A and B, and the doctor shall be liable for the crime of simulation of birth,
penalized under Article 347 of the Revised Penal Code, as amended. The act of making it
appear in the birth certificate of a child that the persons named therein are the parents of
the child when they are not really the biological parents of said child constitutes the crime
of simulation of birth.

C, the unwed mother is criminally liable for “child trafficking”, a violation of Article IV,
Sec. 7 of Rep. Act No. 7610. The law punishes inter alia the act of buying and selling of a
child.

ALTERNATIVE ANSWER:

The couple A and 8, the unwed mother C, and the doctor being all involved in the simulation
of birth of the newborn child, violate Rep. Act No. 7610. Their acts constitute child
trafficking which are penalized under Article IV of said law.
XII.

A sold a washing machine to 6 on credit, with the understanding that B could return the
appliance within two weeks if, after testing the same, B decided not to buy it. Two weeks
lapsed without B returning the appliance. A found out that B had sold the washing machine
to a third party. Is B liable for estafa? Why? (5%)

SUGGESTED ANSWER:

No, B is not liable for estafa because he is not just an entrustee of the washing machine
which he sold; he is the owner thereof by virtue of the sale of the washing machine to him.
The sale being on credit, B as buyer is only liable for the unpaid price of the washing
machine; his obligation is only a civil obligation. There is no felonious misappropriation that
could constitute estafa.

XIII.

A, a businessman, borrowed P500.000.00 from B, a friend. To pay the loan, A issued a postdated
check to be presented for payment 30 days after the transaction. Two days before the maturity date
of the check, A called up B and told him not to deposit the check on the date stated on the face
thereof, as A had not deposited in the drawee bank the amount needed to cover the check.
Nevertheless, B deposited the check in question and the same was dishonored of insufficiency of
funds. A failed to settle the amount with B in spite of the latter’s demands. Is A guilty of violating
B.P. Big. 22, otherwise known as the Bouncing Checks Law? Explain. (5%)

SUGGESTED ANSWER:

Yes, A is liable for violation of B.P. Big. 22 (Bouncing Checks Law). Although knowledge by
the drawer of insufficiency or lack of funds at the time of the issuance of the check is an
essential element of the violation, the law presumes prima facie such knowledge, unless
within five (5) banking days of notice of dishonor or non-payment, the drawer pays the holder
thereof the amount due thereon or makes arrangements for payment in full by the drawee of
such checks

A mere notice by the drawer A to the payee B before the maturity date of the check will
not defeat the presumption of knowledge created by the law; otherwise, the purpose and
spirit of B.P. 22 will be rendered useless.

XIV.

A. A entered the house of another without employing force or violence upon things. He was
seen by a maid who wanted to scream but was prevented from doing so because A threatened her
with a gun. A then took money and other valuables and left, Is A guilty of theft or of robbery?
Explain. (3%)

SUGGESTED ANSWER:

A is liable for robbery because of the intimidation he employed on the maid before the
taking of the money and other valuables. It is the intimidation of person relative to the
taking that qualifies the crime as robbery, instead of simply theft The non-employment of
force upon things is of no moment because robbery is committed not only by employing
force upon things but also by employing violence against or intimidation of persons.

B. A fire broke out in a department store, A, taking advantage of the confusion, entered the store
and carried away goods which he later sold. What crime, if any, did he commit? Why? (2%)

SUGGESTED ANSWER:

A committed the crime of qualified theft because he took the goods on the occasion of and
taking advantage of the fire which broke out in the department store. The occasion of a
calamity such as fire, when the theft was committed, qualifies the crime under Article 310 of
the Revised Penal Code, as amended.

XV.

A When A arrived home, he found B raping his daughter. Upon seeing A, B ran away. A took his
gun and shot B, killing him. Charged with homicide, A claimed he acted in defense of his daughter's
honor. Is A correct? If not, can A claim the benefit of any mitigating circumstance or
circumstances? (3%)

SUGGESTED ANSWER:

No, A cannot validly invoke defense of his daughter’s honor in having killed B since the rape was
already consummated; moreover, B already ran away, hence, there was no aggression to defend against
and no defense to speak of.

A may, however, invoke the benefit of the mitigating circumstance of having acted in immediate
vindication of a grave offense to a descendant, his daughter, under par. 5, Article 13 of the Revised
Penal Code, as amended.

B. A chanced upon three men who were attacking B with fist blows. C, one of the men, was about
to stab B with a knife. Not knowing that B was actually the aggressor because he had earlier challenged
the three men to a fight, A shot C as the latter was about to stab B. May A invoke the defense of a
stranger as a justifying circumstance in his favor? Why? (2%)

SUGGESTED ANSWER:

Yes. A may invoke the justifying circumstance of defense of stranger since he was not
involved in the fight and he shot C when the latter was about to stab B. There being no
indication that A was induced by revenge, resentment, or any other evil motive in shooting
C, his act is justified under par. 3, Article 11 of the Revised Penal Code, as amended.

XVI

A and B were legally separated. Their child C, a minor, was placed in the custody of A, the mother,
subject to monthly visitations by B, his father. On one occasion, when B had C in his company, B
decided not to return C to his mother. Instead, B took C with him to the United States where he
intended for them to reside permanently. What crime, if any, did B commit? Why? (5%)

SUGGESTED ANSWER:

A was nominated Secretary of a Department in the Executive Branch of the


government. His nomination was thereafter submitted to the Commission on Appointments
for confirmation. While the Commission was considering the nomination, a group of
concerned citizens caused to be published in the newspapers a full-page statement objecting
to A's appointment. They alleged that A was a drug dependent, that he had several
mistresses, and that he was corrupt, having accepted bribes or favors from parties
transacting business in his previous office, and therefore he was unfit for the position to
which he had been nominated. As a result of the publication, the nomination was not
confirmed by the Commission on Appointments. The official sued the concerned citizens and
the newspapers for libel and damages on account of his non-confirmation. How will you
decide the case? (3%)

SUGGESTED ANSWER:

I will acquit the concerned citizens and the newspapers Involved, from the crime of libel,
because obviously they made the denunciation out of a moral or social duty and thus there Is
absence of malice.

Since A was a candidate for a very important public position of a Department Secretary,
his moral, mental and physical fitness for the public trust in such position becomes a public
concern as the interest of the public is at stake. It is pursuant to such concern that the
denunciation was made; hence, bereft of malice.

B. If defamatory imputations are made not by publication in the newspapers but by broadcast
over the radio, do they constitute libel? Why? (2%)

Yes, because libel may be committed by radio broadcast Article 355 of the Revised Penal
Code punishes libel committed by means, among others, of radio broadcast, Inasmuch as the
broadcast made by radio is public and may be defamatoiy.

XVIII.

A. What is hazing as defined by law? (2%)

SUGGESTED ANSWER:

Hazing, as defined by law, Is an initiation rite or practice as a prerequisite for admission


Into membership In a fraternity, sorority or organization by placing the recruit, neophyte or
applicant in some embarrassing or humiliating situations such as forcing him to do menial,
silly, foolish and similar tasks or activities or otherwise subjecting him to physical or
psychological suffering or injury.

A. What does the law require before initiation rites may be performed? (3%)

SUGGESTED ANSWER:

Section 2 of Rep. Act No. 8049 (Anti-Hazing Law) requires that before hazing or initiation rites
may be performed, notice to the school authorities or head of organizations shall be given seven (7)
days before the conduct of such rites. The written notice shall indicate (a) the period of the initiation
activities, not exceeding three (3) days; (b) the names of those to be subjected to such activities, and
(c) an undertaking that no physical violence shall be employed by anybody during such initiation
rites.

XIX.

A. If a group of persons belonging to the armed forces makes a swift attack, accompanied by
violence, intimidation and threat against a vital military installation for the purpose of seizing power
and taking over such installation, what crime or crimes are they guilty of? (3%)

SUGGESTED ANSWER:

The perpetrators, being persons belonging to the Armed Forces, would be guilty of the
crime of coup d’etat, under Article 134-A of the Revised Penal Code, as amended, because
their attack was against vital military installations which are essential to the continued
possession and exercise of governmental powers, and their purpose is to seize power by
taking over such installations.

B. If the attack is quelled but the leader is unknown, who shall be deemed the leader
thereof? (2%)

SUGGESTED ANSWER:

The leader being unknown, any person who in fact directed the others, spoke for them,
signed receipts and other documents issued in their name, or performed similar acts, on
behalf of the group shall be deemed the leader of said coup d'etat (Art 135, R.P.C.)

XX

A and his fiancee B were walking in the plaza when they met a group of policemen who had
earlier been tipped off that A was in possession of prohibited drugs. Upon seeing the policemen and
sensing that they were after him, A handed a sachet containing shabu to his fiancee B, telling her to
hide it in her handbag. The policemen saw B placing the sachet inside her handbag. If B was
unaware that A was a drug user or pusher or that what was inside the sachet given to her was
shabu, is she nonetheless liable under the Dangerous Drugs Act? (5%)

SUGGESTED ANSWER:

No. B will not be criminally liable because she is unaware that A was a drug user or pusher
or of the content of the sachet handed to her by A, and therefore the criminal intent to
possess the drug in violation of the Dangerous Drugs Act is absent There would be no basis to
impute criminal liability to her In the absence of animus possidendi.
2001 BAR EXAMINATION

Luis Cruz was deeply hurt when his offer of love was rejected by his girlfriend Marivella one
afternoon when he visited her. When he left her house, he walked as if he was sleepwalking so
much so that a teenage snatcher was able to grab his cellphone and flee without being chased by
Luis. At the next LRT station, he boarded one of the coaches bound for Baclaran. While seated, he
happened to read a newspaper left on the seat and noticed that the headlines were about the
sinking of the Super Ferry while on its way to Cebu. He went over the list of missing passengers
who were presumed dead and came across the name of his grandfather who had raised him from
childhood after he was orphaned. He was shocked and his mind went blank for a few minutes, after
which he ran amuck and, using his balisong, started stabbing at the passengers who then
scampered away, with three of them jumping out of the train and landing on the road below. All the
three passengers died later of their injuries at the hospital.

Is Luis liable for the death of the three passengers who jumped out of the moving train? State
your reasons. (5%)

SUGGESTED ANSWER:

Yes, Luis is liable for their deaths because he was committing a felony when he started
stabbing at the passengers and such wrongful act was the proximate cause of said
passengers’jumping out of the train; hence their deaths.

Under Article 4, Revised Penal Code, any person committing a felony shall incur
criminal liability although the wrongful act done be different from that which he intended.

In this case, the death of the three passengers was the direct, natural and logical consequence of
Luis felonious act which created an immediate sense of danger in the minds of said passengers who
tried to avoid or escape from it by jumping out of the train. (People vs. Arpa, 27 SCRA 1037; U.S. vs.
Valdez, 41 Phil. 497)

II

Maryjane had two suitors - Felipe and Cesar. She did not openly show her preference but on two
occasions, accepted Cesar’s invitation to concerts by Regine and Pops. Felipe was a working student and could
only ask Maiy to see a movie which was declined. Felipe felt insulted and made plans to get even with Cesar by
scaring him off somehow. One day, he entered Cesar’s room in their boarding house and placed a rubber snake
which appeared to be real in Cesar’s backpack. Because Cesar had a weak heart, he suffered a heart attack
upon opening his backpack and seeing the snake. Cesar died without regaining consciousness. The police
investigation resulted in pinpointing Felipe as the culprit and he was charged with Homicide for Cesar’s death.
In his defense, Felipe claimed that he did not know about Cesar’s weak heart and that he only intended to play
a practical joke on Cesar.

Is Felipe liable for the death of Cesar or will his defense prosper? Why? (5%)

SUGGESTED ANSWER:
Yes, Felipe is liable for the death of Cesar but he shall be given the benefit of the mitigating
circumstance that he did not intend to commit so grave a wrong as that which was committed (Art. 13,
par. 3, RPC).

When Felipe intruded into Cesar’s room without the letter's consent and took liberty with the
letter's backpack where he placed the rubber snake, Felipe was already committing a felony. And any
act done by him while committing a felony is no less wrongful, considering that they were part of
"plans to get even with Cesar1'.

Felipe's claim that he intended only "to play a practical joke on Cesar" does not persuade, considering that
they are not friends but in fact rivals in courting Maryjane. This case is parallel to the case of People vs.
Pugay, et al.

ALTERNATIVE ANSWER:

No, Felipe is not liable because the act of frightening another is not a crime. What he did may be wrong,
but not all wrongs amount to a crime. Because the act which caused the death of Cesar is not a crime, no
criminal liability may arise therefrom.

III

Juan de Castro already had three (3) previous convictions by final judgment for theft when he
was found guilty of Robbery with Homicide. In the last case, the trial judge considered against the
accused both recidivism and habitual delinquency. The accused appealed and contended that in
his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of
habitual delinquency. Is the appeal meritorious? Explain. (5%)

SUGGESTED ANSWER:

No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly
considered in this case because the basis of recidivism is different from that of habitual
delinquency.

Juan is a recidivist because he had been previously convicted by final judgment for
theft and again found guilty for Robbery with Homicide, which are both crimes against
property, embraced under the same Title (Title Ten, Book Two) of the Revised Penal Code.
The implication is that he is specializing in the commission of crimes against property,
hence aggravating in the conviction for Robbery with Homicide.

Habitual delinquency, which brings about an additional penalty when an offender is convicted a
third time or more for specified crimes, is correctly considered because Juan had already three (3)
previous convictions by final judgment for theft and again convicted for Robbery With Homicide. And
the crimes specified as baste for habitual delinquency includes, inter alia, theft and robbery.

IV

Accused Juan Santos, a deputy sheriff in a Regional Trial Court, levied on the personal properties
of a defendant in a civil case before said court, pursuant to a writ of execution duly issued by the
court. Among the properties levied upon and deposited inside the "evidence room" of the Clerk of
Court for Multiple KIC Salas were a refrigerator, a stock of cassette tapes, a dining table set of
chairs and several lampshades. Upon the defendant’s paying off the judgment creditor, he tried to
claim his properties but found out that several items were missing, such as the cassette tapes,
chairs and lampshades. After due and diligent sleuthing by the police detectives assigned to the
case, these missing items were found in the house of accused Santos, who reasoned out that he
only borrowed them temporarily.

If you were the fiscal/prosecutor, what would be the nature of the information to be filed
against the accused? Why? (5%)

SUGGESTED ANSWER:

If I were the fiscal/prosecutor, I would file an Information for Malversation against Juan Santos for
the cassette tapes, chairs and lampshades which he, as deputy sheriff, levied upon and thus under his
accountability as a public officer. Said properties being under levy, are in eustodia legis and thus
impressed with the character of public property, misappropriation of which constitutes the crime of
malversation although said properties belonged to a private individual (Art. 222, RPC).

Juan Santos misappropriated such properties when, in breach of trust, he applied them to his own
private use and benefit. His allegation that he only borrowed such properties is a lame excuse, devoid of
merit as there is no one from whom he borrowed the same. The fact that it was only "after due and
diligent sleuthing by the police detectives assigned to the case", that the missing items were found in
the house of Santos, negates his pretension.

ALTERNATIVE ANSWER:

An Information for Theft may be filed, considering that the sheriff had already deposited the
properties levied upon in the "evidence room" of the Clerk of Court and may have already been relieved
of his accountability therefor.

If Juan Santos was no longer the public officer who should be accountable for the properties levied
upon and found In his house, his taking of such properties would no longer constitute Malversation but
Theft, as there was taking with intent to gain, of personal property of another without the consent of
the latter.

Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In
1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging
that they constitute “ill-gotten wealth" of the Marcos family. Upon their application, Reyes and Santos were
appointed as fiscal agents of the sequestered firm and they were given custody and possession of the
sequestered building and its contents, including various vehicles used in the firm's operations. After a few
months, an inventory was conducted and it was discovered that two (2) delivery vans were missing. After
demand was made upon them, Reyes and Santos failed to give any satisfactory explanation why the
vans were missing or to turn them over to the PCGG; hence, they were charged with Malversation of
Public Property. During the trial, the two accused claimed that they are not public accountable
officers and, if any crime was committed, it should only be Estafa under Art. 315, par. 1(b) of the
Revised Penal Code.

What is the proper offense committed? State the reason(s) for your answer. (5%)

SUGGESTED ANSWER:

The proper offense committed was Malversation of Public Property, not estafa, considering that
Reyes and Santos, upon their application, were constituted as,lfiscal agents" of the sequestered firm
and were "given custody and possession" of the sequestered properties, including the delivery vans
which later they could not account for. They were thus made the depositary and administrator of
properties deposited by public authority and hence, by the duties of their office/position, they are
accountable for such properties. Such properties, having been sequestered by the Government through
the PCGG, are in custodia Iegis and therefore impressed with the character of public property, even
though the properties belong to a private individual (Art. 222, RPC).

The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is
prima facie evidence that they had put the same to their personal use.

VI

Mang Jose, a septuagenarian, was walking with his ten- year old grandson along Paseo de
Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding
CKV Honda van and were sent sprawling on the pavement, a meter apart. The driver, a Chinese
mestizo stopped his car after hitting the two victims but then reversed his gears and ran over Mang
Jose’s prostrate body anew and third time by advancing his car forward. The grandson suffered
broken legs only and survived but Mang Jose suffered multiple fractures and broken ribs, causing
his instant death. The driver was arrested and charged with Murder for the death of Mang Jose and
Serious Physical Injuries through Reckless Imprudence with respect to the grandson.

Are the charges correct? Explain. (5%}

SUGGESTED ANSWER:

Yes, the charges are correct.

For deliberately running over Mang Jose's prostrate body after having bumped him and his
grandson, the driver indeed committed Murder, qualified by treachery. Said driveris deliberate intent to
kill Mang Jose was demonstrated by his running over the latteris body twice, by up the van and
driving it forward, whereas the
victim was helpless and not in a position to defend himself or to retaliate.

As to the serious physical injuries sustained by Mang Jose's 10-year old grandson, as a result of
having been hit by the speeding vehicle of said driver, the same were the result of reckless imprudence
which is punishable as a quasi-offense in Article 365 of the Revised Penal Code. The charge of Reckless
Imprudence Resulting to Serious Physical Injuries is correct. The penalty next higher in degree to what
ordinarily should be imposed is called for, since the driver did not lend help on the spot, which help he
could have given to the victims.

VII

After trial. Judge Juan Laya of the Manila RTC found Benjamin Garcia guilty of Murder, the victim
having sustained several bullet wounds In his body so that he died despite medical assistance given
in the Ospital ng Maynlla Because the weapon usfed by Benjamin was unlicensed and the
qualifying circumstance of treachery was found to be present, Judge Laya rendered his decision
convicting Benjamin and sentencing him to "reclusion perpetua or life imprisonment".

Are "reclusion perpetua" and life imprisonment the same and can be imposed
interchangeably as in the foregoing sentence? Or are they totally different? State your reasons. (3%)

b) Briefly state what essentially distinguishes a crime


mala prohlbka from a crime mala in se. (2%)

SUGGESTED ANSWER:
a) The penalty of reclusion perpetua and the penalty of life Imprisonment are totally different
from each other and therefore, should not he used Interchangeably.
Reclusion perpetua Is a penalty prescribed by the Revised Penal Code, with a fixed duration of
Imprisonment from 20 years and 1 day to 40 years, and carries it with accessory penalties.

Life imprisonment, on the other hand, is a penalty prescribed by special laws, with no fixed
duration of imprisonment and without any accessory penalty.

b) Crimes mala prohibita are distinguished from crimes mala insets follows, to wit:

In crimes mala prohibita, the acts are not by nature wrong, evil or bad. They are punished
only because there is a law prohibiting them for public good, and thus good faith or lack of
criminal intent in doing the prohibited act is not a defense.

In crimes mala in se, the acts are by nature wrong, evil or bad, and so generally condemned.
The moral trait of the offender is involved; thus, good faith or lack of criminal intent on the part
of the offender is a defense, unless the crime is the result of criminal negligence. Correspondingly,
modifying circumstances are considered in punishing the offender.

VIII

Police Sgt. Diego Chan, being a member of the Theft and Robbery Division of the Western
Police District and assigned to the South Harbor, Manila, was privy to and more or less familiar
with the schedules, routes and hours of the movements of container vans, as well as the mobile
police patrols, from the pier area to the different export processing zones outside Metro Manila.
From time to time, he gave valuable and detailed information on these matters to a group interested
in those shipments in said container vans. On several instances, using the said information as their
basis, the gang hijacked and pilfered the contents of the vans. Prior to their sale to “fences” in
Banawe, Ouezon City and Bangkal, Makati City, the gang informs Sgt. Chan who then inspects the
pilfered goods, makes his choice of the valuable items and disposes of them through his own
sources or “fences”. When the highjackers were traced on one occasion and arrested, upon
custodial investigation, they implicated Sgt. Chan and the fiscal charged them all, including Sgt.
Chan as co-principals. Sgt. Chan, in his defense, claimed that he should not be charged as a
principal but only as an accessory after the fact under P.D. 532, otherwise known as the Anti-
Piracy and Anti-Highway Robbery Act of 1972.

Is the contention of Sgt. Chan valid and tenable? Explain. (5%)

SUGGESTED ANSWER:

No, the contention of Sgt. Chan Is not valid or tenable because by express provision of P.D. 532,
Section 4, a person who knowingly and in any manner, aids or protects highway robbers/brigands, such
as giving them information about the movement of police officers or acquires or receives property
taken by brigands, or who directly or indirectly abets the commission of highway robbeiy/brigandage,
shall be considered as accomplice of the principal offenders and punished in accordance with the rules
in the Revised Penal Code.

ALTERNATIVE ANSWER:

No, the contention of Sgt. Chan that he should be charged only as accessory after the fact is not
tenable because he was a principal participant in the commission of the crime and in pursuing the
criminal design.

An accessory after the fact involves himself in the commission of a crime only after the crime had
already been consummated, not before. For his criminal participation in the execution of the
highjacking of the contalnervans, Sgt. Chan is a co-principal by indispensable cooperation.
IX

Francis Garcia, a Jollibee waiter, found a gold bracelet in front of his working place in Makati and, upon
inspecting it, saw the name and address of the owner engraved on the inside. Remembering his
parents’admonition that he should not take anything which does not belong to him, he delivered the bracelet to
PO1 Jesus Reyes of the Makati Quad precinct with the instruction to locate the owner and return it to him. POl
Reyes, instead, sold the bracelet and misappropriated the proceeds. Subsequent events brought out the fact
that the bracelet was dropped by a snatcher who had grabbed it from the owner a block away from where
Francis had found it and further investigation traced the last possessor as POl Reyes. Charged with
theft, POl Reyes reasoned out that he had not committed any crime because it was not he who had
found the bracelet and, moreover, it turned out to have been stolen.

Resolve the case with reasons. (10%)

SUGGESTED ANSWER:

Charged with theft, POl Reyes is criminally liable. His contention that he has not committed any
crime because he was not the one who found the bracelet and it turned out to be stolen also, is devoid
of merit. It is enough that the bracelet belonged to another and the failure to restore the same to its
owner is characterized by intent to gain.

The act of POl Reyes of selling the bracelet which does not belong to him and which he only held
to be delivered to its owner, is furtive misappropriation with intent to gain.

Where a finder of lost or mislaid property entrusts it to another for delivery to the owner, the
person to whom such property is entrusted and who accepts the same, assumes the relation of the
finder to the owner as if he was the actual finder: if he would misappropriate it, he is guilty of theft
(People vs. Avila, 44 Phil. 720).

Deputy Sheriff Ben Rivas received from the RTC Clerk of Court a Writ of Execution in the case of
Ejectment filed by Mrs. Maria Estrada vs. Luis Ablan. The judgment being in favor of Estrada, Rivas
went to her lawyer’s office where he was given the necessary amounts constituting the sheriffs fees
and expenses for execution in the total amount of P550.00, aside from P2.000.00 in consideration
of prompt enforcement of the writ from Estrada and her lawyer. The writ was successfully enforced.

a) What crime, if any, did the sheriff commit? (3%)


b) Was there any crime committed by Estrada and her lawyer and If so, what crime? (2%)

SUGGESTED ANSWER:

a) The sheriff committed the crime of Direct Bribery under the second paragraph of Article
210, Revised Penal Code, since the P2,000.00was received by him "in consideration" of the prompt
enforcement of the writ of execution which is an official duty of the sheriff to do.

ALTERNATIVE ANSWER:

a) On the premise that even without the P2,000.00, Sheriff Ben Rivas had to carry out the writ of
execution and not that he would be implementing the writ only because of the P2,000.00, the receipt of
the amount by said sheriff may be regarded as a gift received by reason of his office and not as a
"consideration" for the performance of an official duty; hence, only Indirect Bribery would be
committed by said sheriff.
b) On the part of the plaintiff and her lawyer as giver of the bribe-money, the crime is Corruption
of Public Officials under Article 212, Revised Penal Code.

XI

At a birthday party in Bogo, Cebu, A got intoxicated and started quarrelling with B and C. At the
height of their arguments, Aleft and took a bolo from his house, after which he returned to the party
and threatened to stab everybody. B got scared and ran towards the seashore, with A chasing him.
B ran up a steep incline along the shore and was cornered on top of a cliff. Out of fear. B jumped
from the cliff into the sea. A returned to the scene of their confrontation and seeing that nobody was
there, went home to sleep. The next day, B’s wife reported to the police station that her husband
had not yet come home. A search was conducted by the residents of the barangay but after almost
two days, B or his body could not be located and his disappearance continued for the next few days.
Based on the testimony of C and other guests, who had seen A and B on top of the cliff, A was
arrested and charged with Murder. In his defense, he claimed that since B’s body has not been
found, there was no evidence of "corpus delicti' and therefore, he should be acquitted.

Is the defense of A tenable or not? State the reason(s) for your answer. (5%)

SUGGESTED ANSWER:

The defense of Ais not tenable. "Corpus delicti' does not refer to the body of the purported
victim which had not been found. Even without the body of the purported victim being found, the
offender can be convicted when the facts and circumstances of a crime, the body of the crime or
"corpus delicti' is established.

In other words, the non-recovery of the body of the victim is not a bar to the prosecution of A for
Murder, but the fact of death and identity of the victim must be established beyond reasonable doubt.

XII

Robert Sy, a well-known businessman and a founding member of the Makati Business Club,
aside from being a classmate of the newly-elected President of the Philippines, had investments
consisting of shares of stocks in the Urban Bank, the PNB, the Rural Bank of Caloocan City and his
privately-owned corporation, the RS Builders Corporation and Trans-Paciflc Air. After the President
had taken his oath and assumed his office, he appointed Robert as Honorary Consul to the Republic of
Vietnam. Robert took his oath before the President and after furnishing the Department of Foreign Affairs with
his appointment papers, flew to Saigon, now Ho Chi Min City, where he organized his staff, put up an office and
stayed there for three months attending to trade opportunities and relations with local businessman. On the
fourth month, he returned to the Philippines to make his report to the President. However, the Anti-Graft
League of the Philippines filed a complaint against Robert for (1) failing to file his Statement of Assets and
Liabilities within thirty (30) days from assumption of office; (2) failing to resign from his businesses, and (3)
failing to divest his shares and investments in the banks and corporations owned by him, as required by the
Code of Conduct and Ethical Standards for Public Officials and Employees.

Will the complaint prosper? Explain. (5%)

SUGGESTED ANSWER:

The complaint will not prosper because the Code of Conduct and Ethical Standards for Public
Officials and Employees (Rep. Act. No. 6713), expressly exempts those who serve the Government in an
honorary capacity from filing Statements of Assets and Liabilities, and from resigning and divesting
themselves of interest from any private enterprise (Secs. 8A and 9).
ALTERNATIVE ANSWER:

Yes, the complaint will prosper under Sec. 7 of the Anti-Graft and Corrupt Practices Act (Rep. Act
No. 3019, as amended), which requires all public officers within 30 days from assuming public office to
file a true, detailed sworn statement of assets and liabilities. Violations of inis law are mala prohibita
which admits of no excuses.

XIII

A and B are husband and wife. A is employed as a security guard at Landmark, his shift being
from 11 :00 p.m. to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home
around midnight after getting permission from his duty officer. Upon reaching the front yard of his
home, he noticed that the light in the master bedroom was on and that the bedroom window was
open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom.
He opened the door very carefully and peeped inside where he saw his wife B having sexual
intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest
himself free and jumped out of the window. A followed suit and managed to catch C again and after
a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom
where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and
rendered her unconscious. The police arrived after being summoned by their neighbors and
arrested A who was detained, inquested and charged for the death of C and serious physical
injuries of B.

a. Is A liable for C’s death? Why? (5%)


b. Is A liable for B's injuries? Why? (5%)

SUGGESTED ANSWER:

a) Yes, A is liable for C's death but under the exceptional circumstances in Article 247
of the Revised Penal Code, where only destierro is prescribed. Article 247 governs since A
surprised his wife B in the act of having sexual intercourse with C, and the killing of C was
"immediately thereafter" as the discovery, escape, pursuit arid killing of C form one
continuous act. (U.S. vs. Vargas, 2 Phil. 194)

b) Likewise, A is liable for the serious physical injuries he inflicted on his wife B but
under the same exceptional circumstances in Article 247 of the Revised Penal Code, for the
same reasons.

XIV

A and B are neighbors in Barangay Nuevo I, Silang, Cavite. A is a barangay Kagawad and known to be a
bully, while B is reputed to be gay but noted for his industry and economic savvy which allowed him to amass
wealth in leaps and bounds, including registered and unregistered lands in several barangays. Resenting B’s
riches and relying on his political influence, A decided to harass and intimidate B into sharing with him some of
his lands, considering that the latter was single and living alone. One night. A broke into B's house, forced him
to bring out some titles and after picking out a title covering 200 square meters in their barangay, compelled B
to type out a Deed of Sale conveying the said lot to him for PI.00 and other valuable considerations. All the
while, A carried a paltik caliber .45 in full view of B, who signed the deed out of fear. When A later on tried to
register the deed, B summoned enough courage and had A arrested and charged in court after preliminary
investigation.

What charge or charges should be filed against A? Explain. (5%)

SUGGESTED ANSWER:
The charge for Robbery under Article 298 of the Revised Penal Code should be filed against A. Said
Article provides that any person who, with Intent to defraud another, by means of violence or
intimidation, shall compel him to sign, execute and deliver any public instrument or document shall be
held guilty of robbery.

The paltik caliber .45 firearm carried by A was obviously intended to intimidate B and thus, used
in the commission of the robbery. If it could be established that A had no license or permit to possess
and carry such firearm, it should be taken only as special aggravating circumstance to the crime of
robbery, not subject of a separate prosecution.

ALTERNATIVE ANSWER:

On the premise that the Deed of Sale which A compelled B to sign, had not attained the
character of a "public" instrument or document, A should be charged for the crime of
Qualified Trespass to Dwelling under Article 280 of the Revised Penal Code for having
intruded into Bis house, and for the crime of Grave Coercion under Article 286 of same Code,
for compelling B to sign such deed of sale against his will.

XV

A, a teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the
latter’s throwing paper clips at his classmates, twisted his right ear. X went out of the classroom
crying and proceeded home located at the back of the school. He reported to his parents Y and Z
what A had done to him. Y and Z immediately proceeded to the school building and because they
were running and talking in loud voices, they were seen by the barangay chairman, B, who followed
them as he suspected that an untoward incident might happen. Upon seeing A inside the
classroom, X pointed him out to his father, Y, who administered a fist blow' on A, causing him to
fail down. When Y was about to kick A, B rushed towards Y and pinned both of the latter’s arms.
Seeing his father being held by B, X went near and punched B on the face, which caused him to
lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband,
and also threatened to slap A. Some security guards of the school arrived, intervened and
surrounded X, Y and Z so that they could be investigated in the principal’s office. Before leaving, Z
passed near A and threw a small flower pot at him but it was deflected by B.

a. What, if any, are the respective criminal liability of X, Y and Z? (6%)

b. Would your answer be the same if B were a barangay tanod only? (4%)

SUGGESTED ANSWER:

a) X is liable for Direct Assault only, assuming the physical injuries inflicted on B, the Barangay
Chairman, to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is
a person in authority (Art. 152, RPC) and in this case, was performing his duty of maintaining peace
and order when attacked.

T is liable for the complex crimes of Direct Assault With Less Serious Physical Injuries for the
fistblow on A, the teacher, which caused the latter to fall down. For purposes of the crimes in Arts. 148
and 151 of the Revised Penal Code, a.teacher is considered a person in authority, and having been
attacked by Y by reason of his performance of official duty, direct assault is committed with the
resulting less serious physical injuries completed.

Z, the mother of X and wife of Y may only be liable as an accomplice to the complex crimes of
direct assault with less serious physical injuries committed by Y. Her participation should not be
considered as that of a coprincipal, since her reactions were only incited by her relationship to X and Y,
as the mother of X and the wife of Y.

b) If B were a Barangay Tanod only, the act of X of laying hand on him, being an agent of a person
in authority only, would constitute the crime of Resistance and Disobedience under Article 151, since
X, a high school pupil, could not be considered as having acted out of contempt for authority but more
of helping his father get free from the grip of B. Laying hand on an agent of a person in authority is not
ipso facto direct assault, while it would always be direct assault if done to a person in authority in
defiance to the latteris exercise of authority.

XVI

On June 1,1988, a complaint for concubinage committed in Februaiy 1987 was filed against
Roberto in the Municipal Trial Court of Tanza, Cavite for purposes of preliminary investigation. For
various reasons, it was only on July 3, 1998 when the Judge of said court decided the case by
dismissing it for lack of jurisdiction since the crime was committed in Manila. The case was
subsequently filed with the City Fiscal of Manila but it was dismissed on the ground that the crime
had already prescribed. The law provides that the crime of concubinage prescribes in ten (10)
years.

Was the dismissal by the fiscal correct? Explain. (5%)

SUGGESTED ANSWER:

No, the Fiscals dismissal of the case on alleged prescription is not correct. The filing of the
complaint with the Municipal Trial Court, although only for preliminary investigation, interrupted and
suspended the period of prescription in as much as the jurisdiction of a court in a criminal case is
determined by the allegations in the complaint or information, not by the result of proof. (People vs.
Galano, 75 SCRA 193)

XVII

A, a subdivision developer, was convicted by the RTC of Makati for failure to issue the
subdivision title to a lot buyer despite full payment of the lot, and sentenced to suffer one year
imprisonment. A appealed the decision of the RTC to the Court of Appeals but his appeal was
dismissed. May A still apply for probation? Explain. (5%)

SUGGESTED ANSWER:

No. A is no longer qualified to apply for probation after he appealed from the judgment of
conviction by the RTC. The probation law (PD 968. as amended by PD1990) now provides that no
application for probation shall be entertained or granted if the accused has perfected an appeal from the
judgment of conviction (Sec. 4. PD 968).
2000 BAR EXAMINATION

After drinking one (1) case of San Miguel beer and taking two plates of “pulutan", Binoy, a
Filipino seaman, stabbed to death Sio My, a Singaporean seaman, aboard M/V “Princess of the
Pacific", an overseas vessel which was sailing in the South China Sea. The vessel, although
Panamanian registered, isownedbyLucioSy, a rich Filipino businessman. When M /V “Princess of
the Pacific" reached a Philippine Port at Cebu City, the Captain of the vessel turned over the
assailant Binoy to the Philippine authorities. An Information for homicide was filed against Binoy in
the Regional Trial Court of Cebu City. He moved to quash the Information for lack of jurisdiction. If
you were the Judge, will you grant the motion? Why? (5%)

SUGGESTED ANSWER:

Yes, the Motion to Quash the Information should be granted. The Philippine court has
no jurisdiction over the crime committed since it was committed on the high seas or outside
of Philippine territory and on board a vessel not registered or licensed in the Philippines (US
vs. Fowler, 1 PhiL 614)

It is the registration of the vessel in accordance with the laws of the Philippines, not the
citizenship of her owner, which makes it a Philippine ship. The vessel being registered in Panama,
the laws of Panama govern while it is in the high seas.

II

Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut
beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her
husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man,
who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said
“Salamat Osang" as he turned to leave. Only then did Osang realize that the man was not her husband.
Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang
claimed defense of honor. Should the claim be sustained? Why? (5%)

SUGGESTED ANSWER:

No, Osang's claim of defense of honor should not be sustained because the aggression on her
honor had ceased when she stabbed the aggressor. In defense of rights under paragraph 1, Art. 11 of the
RPC, it is required inter alia that there be (1) unlawful aggression, and (2) reasonable necessity of the
means employed to prevent or repel it. The unlawful aggression must be continuing when the aggressor
was injured or disabled by the person making a defense.

But if the aggression that was begun by the injured or disabled party already ceased to exist when
the accused attacked him, as in the case at bar, the attack made is a retaliation, and not a defense.
Paragraph 1, Article 11 of the Code does not govern.

Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not
defense of honor but an immediate vindication of a grave offense committed against her, which is only
mitigating.
III.

Sunshine, a beauteous “colegiala” but a shoplifter, went to the Ever Department Store and proceeded
to the women’s wear section. The saleslady was of the impression that she brought to the fitting room three (3)
pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces
to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by
the detective before she could leave the store and brought to the office of the store manager. The detective and
the manager searched her and found her wearing the third swimsuit under her blouse and pants.
Was the theft of the swimsuit consummated, frustrated or attempted? Explain. (5%)

SUGGESTED ANSWER:

The theft was consummated because the taking or asportation was complete. The
asportation is complete when the offender acquired exclusive control of the personal
property being taken; in this case, when Sunshine wore the swimsuit under her blouse and
pants and was on her way out of the store. With evident intent to gain the taking constitutes
theft and being complete, it is consummated. It is not necessary that the offender is in a
position to dispose of the property.

ALTERNATIVE ANSWER:

The crime of theft was only frustrated because Sunshine has not yet left the store when
the offense was opportunely discovered and the article seized from her. She does not have
yet the freedom to dispose of the swimsuit she was taking (People vs. Dino, CA 45 O.G.
3446). Moreover, in case of doubt as to whether it is consummated or frustrated, the doubt
must be resolved in favor of the milder criminal responsibility.

IV

While they were standing in line awaiting their vaccination at the school clinic, Pomping
repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in
Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at
Pomping with a ballpen. The top of the ballpen hit the right eye of Pomping which bled profusely.
Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she
freely admitted to the school principal that she was responsible for the injury to Pomping's eye.
After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping
lost his right eye.

b) Discuss the attendant circumstances and effects thereof. (2%)

SUGGESTED ANSWER:

a) No, Katreena is not criminally liable although she is civilly liable. Being a minor less than
fifteen (15) years old although over nine (9) years of age, she is generally exempt from criminal liability.
The exception is where the prosecution proved that the act was committed with discernment The
burden is upon the prosecution to prove that the accused acted with discernment.

The presumption is that such minor acted without discernment and this is strengthened by the
fact that Katreena only reacted with a ballpen which she must be using in class at the time, and only to
stop Pomping’s vexatious act of repeatedly pulling her ponytail. In other words, the injury was
accidental.

b) The attendant circumstances which may be considered are:


1. Minority of the accused as an exempting circumstance under Article 12, paragraph 3, Rev.
Penal Code, where she shall be exempt from criminal liability, unless it was proved that she acted with
discernment She is however civilly liable;

2. if found criminally liable, the minority of the accused as a privileged mitigating circumstance.
A discretionary penalty lower by at least two (2) degrees than that prescribed for the crime committed
shall be imposed in accordance with Article 68, paragraph 1, Rev. Penal Code. The sentence, however,
should automatically be suspended in accordance with Section 5(a) of Rep. Act No. 8369otherwise
known as the “Family Courts Act of 1997";

3. Also if found criminally liable, the ordinary mitigating circumstance of not intending to
commit so grave a wrong as that committed, under Article 13, paragraph 3, Rev. Penal Code; and

4. The ordinary mitigating circumstance of sufficient provocation on the part of the


offended party immediately preceded the act.

For defrauding Loma, Alma was charged before the Municipal Trial Court of Malolos, Bulacan.
After a protracted trial, Alma was convicted. While the case was pending appeal in the Regional Trial
Court of the same province, Loma who was then suffering from breast cancer, died. Alma manifested
to the court that with Loma's death, her (Alma's) criminal and civil liabilities are now extinguished.
Is Alma’s contention correct? What if it were Alma who died, would it affect her criminal and civil
liabilities? Explain. (3%)

a. Name at least two exceptions to the general rule that in case of acquittal of the accused in a
criminal case, his civil liability is likewise extinguished. (2%)

SUGGESTED ANSWER:

a) No. Alma's contention is not correct. The death of the offended party does not
extinguish the criminal liability of the offender, because the offense is committed against the
State (People vs. Misola, 87 Phil. 830, 833). Hence, it follows that the civil liability of Alma
based on the offense committed by her is not extinguished. The estate of Loma can continue
the case.

On the other hand, if it were Alma who died pending appeal of her conviction, her
criminal liability shall be extinguished and therewith the civil liability under the Revised
Penal Code (Art. 89, par. 1, RPC). However, the claim for civil indemnity may be instituted
under the Civil Code (Art. 1157) if predicated on a source of obligation other than delict,
such as law, contracts, quasi-contracts and quasidelicts (People vs. Bayotas 236 SCRA 239,
G.R. 152007, September 2, 1994).

b. Exceptions to the rule that acquittal from a criminal case extinguishes civil liability,
are:

1. When the civil action is based on obligations not arising from the act complained of as a
felony;

2. When acquittal is based on reasonable doubt or acquittal is on the ground that guilt has
not been proven beyond reasonable doubt (Art. 29, New Civil Code);

3. Acquittal due to an exempting circumstance, like insanity;


4. Where the court states in its judgment that the case merely involves a civil obligation;
5. Where there was a proper reservation forthe filing of a separate civil action;
6. In cases of independent civil actions provided for in Arts. 31,32,33 and 34 of the New Civil
Code;
7. When the judgment of acquittal includes a declaration that the fact from which the civil
liability might arise did not exist (Saplera vs. CA. 314 SCRA370);

8. Where the civil liability is not derived or based on the criminal act of which the accused is
acquitted (Saplera vs. CA, 314 SCRA 370).

Note : Only two (2) exceptions are asked.

VI

Lucresia, a store owner, was robbed Of her bracelet in her home. The following day, at
about 5 o'clock in the afternoon, a neighbor. 22-year old Jun-Jun, who had an unsavory
reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around
the right arm of Jun-Jun. As soon as the latter left, Lucresia went to a nearby police station and
sought the help of a policeman on duty. Pat. Willie Reyes. He went with Lucresia to the house of
Jun- Jun to confront the latter. Pat Reyes introduced himself as a policeman and tried to get hold
of Jun-Jun who resisted and ran away. Pat Reyes chased him and fired two warning shots In the
air. Jun-Jun continued to run and when he was about 7 meters away, Pat. Reyes shot him in the
right leg. Jun-Jun was hit and he fell down but he crawled towards a fence, intending to pass
through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot
at Jun-Jun hitting him at the right lower hip. Pat. Reyes brought Jun-Jun to the hospital, but
because of profuse bleeding, he eventually died. Pat Reyes was subsequently charged with
homicide. During the trial, Pat Reyes raised the defense, by way of exoneration, that he acted in the
fulfillment of a duty. Is the defense tenable? Explain. (3%)

a) Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival
group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the Regional Trial Court in
Binan, Laguna. During the trial, the prosecution was able to prove that the killing was committed
by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge,
with what crime will you convict Pocholo? Explain. (2%)

SUGGESTED ANSWER:
a) No, the defense of Pat. Reyes is not tenable. The defense of having acted in the
fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed
be the unavoidable or necessary consequence of the due performance of the duty (People us.
Oanis, etaL, 74PhiL 257). It is not enough that the accused acted in fulfillment of a duty.

After Jun-Jun was shot in the right leg and was already crawling, there was no need for
Pat. Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which
brought about the cause of death of the victim.

b. Pocholo should be convicted of the crime of homicide only because the aggravating
circumstances which should qualify the crime to murder were not alleged in the
information.

The circumstances of using poison, in consideration of a promise or reward, and cruelty which
attended the killing of Rico could only be appreciated as generic aggravating circumstances since none
of them have been alleged in the Information to qualify the killing to murder. A qualifying circumstance
must be alleged in the Information and proven beyond reasonable doubt during the trial tc be
appreciated as such.
VII

One fateful night in January 1990, while 5-year old Albert was urinating at the back of their house, he
heard a strange noise coming from the kitchen of their neighbor and playmate, Ara. When he peeped inside, he
saw Mina, Ara’s stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina carry the
dead body of Ara, place it inside the trunk of her car and drive away. The dead body of Ara was never found.
Mina spread the news in the neighborhood that Ara went to live with her grandparents in Ormoc City. For fear
of his life, Albert did not tell anyone, even his parents and relatives, about what he witnessed. Twenty and a half
(20 & 1/2) years after the incident, and right after his graduation in Criminology, Albert reported the crime to
NBI authorities. The crime of homicide prescribes in 20 years. Can the state still prosecute Mina for the death of
Ara despite the lapse of 20 & 1/2 years? Explain. (5%)

SUGGESTED ANSWER:

Yes, the State can still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years.
Under Article 91. RPC, the period of prescription commences to run from the day on which the crime is
discovered by the offended party, the authorities or their agents. In the case at bar, the commission of
the crime was known only to Albert, who was not the offended party nor an authority or an agent of an
authority. It was discovered by the NBI authorities only when Albert revealed to them the commission
of the crime. Hence, the period of prescription of 20years for homicide commenced to run only from
the time Albert revealed the same to the NBI authorities.

a) Who are deemed to be persons in authority and agents of persons in authority? (3%)

b) Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in
Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the
dance. While A was delivering his speech, B, one of the guests, went to the middle of the
dance floor making obscene dance movements, brandishing a knife and challenging
everyone present to a fight. A approached B and admonished him to keep quiet and not
to disturb the dance and peace of the occasion. B, instead of heeding the advice of A,
stabbed the latter at his back twice when A turned his back to proceed to the
microphone to continue his speech. A fell to the ground and died. At the time of the
incident A was not armed. What crime was committed? Explain. (2%)

SUGGESTED ANSWER:

a) Persons in authority are persons directly vested with jurisdiction, whether as an


individual or as a member of some court or government corporation, board, or
commission. Barrio captains and barangay chairmen are also deemed persons in
authority. (Article 152, RPC)

Agents of persons in authority are persons who by direct provision of law or by election
or by appointment by competent authority, are charged with maintenance of public order,
the protection and security of life and property, such as barrio councilman, barrio
policeman, barangay leader and any person who comes to the aid of persons in authority
(Art.. 152, RPC).

In applying the provisions of Articles 148 and 151 of the Rev Penal Code, teachers,
professors and persons charged with the supervision of public or duly recognized private
schools, colleges and universities, and lawyers in the actual performance of their
professional duties or on the occasion on such performance, shall be deemed persons in authority.
(P.D. No. 299, and Batas Pambansa Big. 873).
a) The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a
person in authority and was acting in an official capacity when he tried to maintain peace and order
during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance
and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in
contempt and lawless defiance of authority constituting the crime of direct assault, which
characterized the stabbing of A And since A was stabbed at the back when he was not in a position to
defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such
stabbing was murder and having been committed with direct assault a complex crime of direct assault
with murder was committed by B.

IX

A was a 17-year old working student who was earning his keep as a cigarette vendor. B was driving a car
along busy Espana Street at about 7:00 p.m. Beside B was C. The car stopped at an intersection because of the
red signal of the traffic light While waiting for the green signal, C beckoned A to buy some cigarettes. A
approached the car and handed two sticks of cigarettes to C. While the transaction was taking place, the traffic
light changed to green and the car immediately sped off. As the car continued to speed towards Qulapo, A
clung to the window of the car but lost his grip and fell down on the pavement. The car did not stop. A suffered
serious injuries which eventually caused his death. C was charged with ROBBERY with HOMICIDE. In the
end, the Court was not convinced with moral certainty that the guilt of C has been established beyond
reasonable doubt and, thus, acquitted him on the ground of reasonable doubt.

Can the family of the victim still recover civil damages in view of the acquittal of C? Explain. (5%)

SUGGESTED ANSWER:

Yes, as against C, A's family can still recover civil damages despite C's acquittal. When
the accused in a criminal prosecution is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for damages for the same act or omission may
be instituted. Such action requires only a preponderance of evidence (Art. 29, CC).

If A’s family can prove the negligence of B by preponderance of evidence, the civil
action for damages against B will prosper based on quasi-delict. Whoever by act or omission
causes damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, about pre-existing contractual relation between the parties, is
called a quasi-delict (Art. 2176, CC). This is entirely separate and distinct from civil liability
arising from negligence under the Penal Code (Arts. 31, 2176. 2177, CC).

Flordeluna boarded a taxi on her way home to Quezon City which was driven by Roger.
Flordeluna noticed that Roger was always placing his car freshener in front of the car aircon
ventilation but did not bother asking Roger why. Suddenly. Flordeluna felt dizzy and became
unconscious. Instead of bringing her to Quezon City, Roger brought Flordeluna to his house in
Cavite where she was detained for two (2) weeks. She was raped for the entire duration of her
detention. May Roger be charged and convicted of the crime of rape with serious illegal detention?
Explain. (5%)

SUGGESTED ANSWER:

No, Roger may not be charged and convicted of the crime of rape with serious illegal
detention. Roger may be charged and convicted of multiple rapes. Each rape is a distinct
offense and should be punished separately. Evidently, his principal intention was to abuse
Flordeluna; the detention was only incidental to the rape.
ALTERNATIVE ANSWER:

No, Roger may not be charged and convicted of the crime of rape with serious illegal detention,
since the detention was incurred in raping the victim during the days she was held. At most, Roger may
be prosecuted for forcible abduction for taking Flordeluna to Cavite against the latter’s will and with
lewd designs. The forcible abduction shoulu be complexed with one ofthe multiple rapes committed,
and the other rapes should be prosecuted and punished separately, in as many rapes were charged and
proved.

XI

A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is
being used by B as abankfor coins from Inside their locked cabinetusing their common key. Forthwith, A broke
the coconut shell outside of their home In the presence of his friends.

What is the criminal liability of A, if any? Explain. (3%)

Is A exempted from criminal liability under Article 332 of the Revised Penal Code for being a brother of B?
Explain. (2%)

SUGGESTED ANSWER:

a) A is criminally liable for Robbery with force upon things, because the coconut shell with the
coins inside, was taken with Intent to gain and broken outside of their home. (Art 299 (b) (2). RPC).

b) No, A Is not exempt from criminal liability under Art 332 because said Article applies only to
theft, swindling or malicious mischief. Here, the crime committed is robbery.

XII

A month after the arraignment of Brad Kit Commissioner of the Housing and Land Use Regulatory
Board, who was charged with violation of Section 3 (h) of Republic Act 3019 (Anti-Graft and Corrupt
Practices Act) before the Sandiganbayan, the Office of the Special Prosecutor filed a Motion to
Suspend Accused Pendente Lite pursuant to Section 13 of the Anti-Graft Law. The Court granted
the motion and suspended accused Brad Kit for a period of 90 days. Accused assailed the
constitutional validity of the suspension order on the ground that it partakes of a penalty before
judgment of conviction is reached and is thus violative of his constitutional right to be presumed
innocent. He also claimed that this provision of the law on suspension pendente lite applies only to
electiye officials and not to appointed ones like him. Rule with reasons. (5%)

SUGGESTED ANSWER:

The suspension order does not partake of a penalty and is thus not violative of Brad
Kit's constitutional right to be presumed innocent. Under the law, the accused public officers
shall be suspended from office while the criminal prosecution is pending in court (Sec. 13,
R.A. 3019). Such preventive suspension is mandatory to prevent the accused from hampering
the normal course of the investigation (Rios vs. Sandiganbayan, 279SCRA 581J1997): Bunye
vs. Escareal 226 SCRA 332 [19931).

Neither is there merit in Brad Kit's claim that the provision on suspension pendente lite
applies only to elective officials and not to appointed ones like him. It applies to all public
officials indicted upon a valid information under R. A. No. 3019, whether they be appointive
or elective officials; or permanent or temporary employees, or pertaining to the career or
non-career service (Segovia vs. Sandiganbayan, 288 SCRA 328 [1998]).

XIII

A has long been wanted by the police authorities for various crimes committed by him. Acting on an
information by a tipster, the police proceeded to an apartment where A was often seen. The tipster also warned
the policemen that A was always armed. At the given address, a lady who introduced herself as the elder sister
of A, opened the door and let the policemen in. Inside, the team found A sleeping on the floor. Immediately
beside him was a clutch bag which, when opened, contained a .38 caliber paltik revolver and a hand grenade.
After verification, the authorities discovered that A was not a licensed holder of the .38 caliber paltik revolver. As
for the hand grenade, it was established that only military personnel are authorized to carry hand grenades.
Subsequently, A was charged with the crime of Illegal Possession of Firearms and Ammunition. During trial, A
maintained that the bag containing the unlicensed firearm and hand grenade belonged to A, his friend, and
that he was not in actual possession thereof at the time he was arrested. Are the allegations meritorious?
Explain. (3%)

b. At about 9 o'clock in the morning, a Narcom Group laid a plan to entrap and apprehend A, along suspected
drug dealer, through a “buy-bust" operation. At the appointed time, the poseur-buyer approached A who was
then with B. A marked P100 bill was handed over to A who in turn, gave the poseur-buyer one (1) tea bag of
marijuana leaves. The members of the team, who were then positioned behind thick leaves, closed in but
evidently were not swift enough since A and B were able to run away. Two days later, A was arrested in
connection with another incident. It appears that during the operations, the police officers were not able to seize
the marked money but were able to get possessionof the marijuana tea bag. A was subsequently prosecuted for
violation of Section 4. Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act. During
the trial, the marked money was not presented. Can A be held liable? Explain. (2%)

SUGGESTED ANSWER:

a) As allegations are not meritorious. Ownership is not an essential element of the crime of
illegal possession of firearms and ammunition. What the law requires is merely possession, which
includes not only actual physical possession but also constructive possession where the firearm and
explosive are subject to one’s control and management. [People us. De Grecia, 233 SCRA 716; U.S. vs.
Juan, 23 Phil, 105; People vs. Soyag, 110 Phil. 565).

b) Yes. A can be held liable. The absence of the marked money will not create a hiatus
in the prosecution’s evidence as long as the sale of the dangerous drugs is adequately proven
and the drug subject of the transaction is presented before the court. There was a perfected
contract of sale of the drug (People vs. Ong Co, 245 SCRA 733; People vs. Zervoulakos, 241
SCRA 625).

XIV

Despite the massive advertising campaign in media against firecrackers and gun-firing during
the New Year's celebrations. Jonas and Jaja bought ten boxes of super lolo and pla-pla in Bocaue,
Bulacan. Before midnight of December 31,1999, Jonas and Jaja started their celebration by having
a drinking spree at Jona's place by exploding their high-powered firecrackers in their neighborhood.
In the course of their conversation, Jonas confided to Jaja that he has been keeping a long-time
grudge against his neighbor Jepoy in view of the tatter's refusal to lend him some money. While
under the influence of liquor, Jonas started throwing lighted super lolos inside Jepoy's fence to
irritate him and the same exploded inside the tatter's yard. Upon knowing that the throwing of the
super lolo was deliberate, Jepoy became furious and sternly warned Jonas to stop his malicious act
or he would get what he wanted. A heated argument between Jonas and Jepoy ensued but Jaja
tried to calm down his friend. At midnight, Jonas convinced Jaja to lend him his .45 caliber pistol
so that he could use it to knock down Jepoy and to end his arrogance. Jonas thought that after all,
explosions were everywhere and nobody would know who shot Jepoy. After Jaja lent his firearm to
Jonas, the latter again started started throwing lighted super lolos and pla-plas at Jepoy’s yard in
order to provoke him so that he would come out of his house. When Jepoy came out, Jonas
immediately shot him with Jaja’s .45 caliber gun but missed his target. Instead, the bullet hit
Jepoy's five year old son who was following behind him, killing the boy instantaneously.

a) What crime or crimes can Jonas and Jaja be charged with? Explain. (2%)
b) If you were Jonas' and Jaja’s lawyer, what possible defenses would you set up in favor of your clients?
Explain. (2%)
c) If you were the judge, how would you decide the case? Explain. (1%)

SUGGESTED ANSWER:

a) Jonas and Jaja, can be charged with the complex crime of attempted murder with homicide
because a single act caused a less grave and a grave felony (Art. 48, RPC).

Attempted murder is a less grave felony, while consummated homicide is a grave felony: both are
punishable by afflictive penalties.

b) If I were Jonas' and Jaja's lawyer, I will use the following defenses:

(1) That the accused had no Intention to commit so grave a wrong as that committed as they
merely Intended to frighten Jepoy;

(2) That Jonas committed the crime In a state of intoxication thereby impairing his will power or
capacity to understand the wrongfulness of his act. Non-intentional intoxication is a mitigating
circumstance [People us. Forttch, 281 SCRA 600 [1997]: Art 15, RFC).

c) I would convict Jonas as principal by direct participation and Jaja as co-principal by


indispensable cooperation for the complex crime of murder with homicide. Jaja should be held liable as
co-principal and not only as an accomplice because he knew of Jonas' criminal design even before he
lent his firearm to Jonas and still he concurred in that criminal design by providing the firearm.

XV

a) Distinguish Highway Robbery under Presidential Decree No. 532 from Robbery committed on a highway.
(3%)

b) A, B, C, D and E were In a beerhouse along MacArthur Highway having a drinking spree. At


about 1 o’clock In the morning, they decided to leave and so asked for the bill. They pooled their
money together but they were still short of P2.Q00.00. E then orchestrated a plan whereby A, B,
C and D would go out, flag a taxicab and rob the taxi driver of all his money while E would wait
for them in the beerhouse. A, B, C and D agreed. All armed with balisongs, A* B, C and D
hailed the first taxicab they encountered. After robbing X, the driver, of his earnings, which
amounted to PI,000.00 only, they needed P1,000.00 more to meet their bill. So, they decided to
hail another taxicab and they again robbed driver Y of his hard-eamed money amounting to
PI,000.00. On their way back to the beerhouse, they were apprehended by a police team upon
the complaint of X, the driver of the first cab. They pointed to E as the mastermind. What crime
or crimes, if any, did A, B, C, D and E commit? Explain fully. (3%)

SUGGESTED ANSWER:

a) Highway Robbery under Pres. Decree 53z aiders from ordinary Robbery committed
on a highway in these respects:
1) In Highway Robbery under PD 532, the robbery is committed indiscriminately
against persons who commute in such highways, regarxiless of the potentiality
they offer; while in ordinary Robbery committed on a highway, the robbery is
committed only against predetermined victims;

2) It is Highway Robbery under PD 532, when the offender is a brigand or one who
roams in public highways and carries out his robbery in public highways as venue,
whenever the opportunity to do so arises. It is ordinary Robbery under the
Revised Penal Code when the commission thereof in a public highway is only
incidental and the offender is not a brigand; and
3) In Highway Robbery under PD 532, there is frequency in the commission of the
robbery in public highways and against persons travelling thereat; whereas
ordinary Robbery In public highways is only occasional against a predetermined
victim, without frequency in public highways.

b) A, B, C, D and E are liable for two (2) counts of robbery under Article 294 of the Rev. Penal
Code; not for highway Robbery under PD 532. The offenders are not brigands but only committed the
robbery to raise money to pay their bill because it happened that they were short of money to pay the
same.

XVI

Mr. Carlos Gabisi, a customs guard, and Mr. Rico Yto, a private individual, went to the office of
Mr. Diether Ocuarto, a customs broker, and represented themselves as agents of Moonglow
Commercial Trading, an importer of children’s clothes and toys. Mr. Gabisi and Mr. Yto engaged Mr.
Ocuarto to prepare and file with the Bureau of Customs the necessary Import Entiy and Internal
Revenue Declaration covering Moonglow’s shipment Mr. Gabisi and Mr. Yto submitted to Mr.
Ocuarto a packing list, a commercial invoice, a bill of lading and a Sworn Import Duty Declaration
which declared the shipment as children’s toys, the taxes and duties of which were computed at
P60,000,00. Mr. Ocuarto filed the aforementioned documents with the Manila International
Container Port However, before the shipment was released, a spot check was conducted by
Customs Senior Agent James Bandldo, who discovered that the contents of the van (shipment) were
not children’s toys as declared in the shipping documents but 1.000 units of video cassette
recorders with taxes and duties computed at P600,000.00. A hold order and warrant of seizure and
detention were then issued by the District Collector of Customs. Further investigation showed that
Moonglow is non-existent. Consequently, Mr. Gabisi and Mr. Yto were charged with and convicted
for violation of Section 3(e) of RA. 3019 which makes it unlawful among others, for public officers to
cause any undue injuiy to any party, including the Government, in the discharge of official
functions through manifest partiality, evident bad faith or gross inexcusable negligence. In their
motion for reconsideration, the accused alleged that the decision was erroneous because the crime
was not consummated but was only at an attempted stage, and that in fact the Government did not
suffer any undue injury.

a) Is the contention of both accused correct? Explain.(3%)

b) Assuming that the attempted or frustrated stage of the violation charged is not
punishable, may the accused be nevertheless convicted for an offense punished by the Revised
Penal Code under the facts of the case? Explain. (3%)

SUGGESTED ANSWER:

a) Yes, the contention of the accused that the crime was not consummated is correct.
R.A. 3019 is a special law punishing acts malaprohibita. As a rule, attempted violation of a
special law is not punished. Actual injury is required.

b) Yes, both are liable for attempted estafa thru falsification of commercial
documents, a complex crime. They tried to defraud the Government with the use of false
commercial and public documents. Damage is not necessary.

XVII

a) What is an impossible crime? (2%)

b) Is an impossible crime really a crime? (2%)

c) A, B, C and D, all armed with armalites, proceeded to the house of X. Y, a neighbor of X,


who happened to be passing by, pointed to the four culprits the room that X occupied. The four
culprits peppered the room with bullets. Unsatisfied, A even threw a hand grenade that totally
destroyed X's room. However, unknown to the four culprits, X was not inside the room and nobody
was hit or injured during the incident. Are A, B, C and D liable for any crime? Explain. (3%)

d) Carla, 4 years old, was kidnapped by Enrique, the tricycle driver paid by her parents to bring and
fetch her to and from school. Enrique wrote a ransom note demanding * P500.000.00 from Carla's parents
in exchange for Carla's freedom. Enrique sent the ransom note by mail. However, before the ransom note
was received by Carla's parents, Enrique's hideout was discovered by the police. Carla was rescued while
Enrique was arrested and incarcerated. Considering that the ransom note was not received by Carla’s
parents, the investigating prosecutor merely filed a case of ’‘Impossible Crime to Commit Kidnapping"
against Enrique. Is the prosecutor correct? Why? (3%)

SUGGESTED ANSWER:
An impossible crime is an act which would be an offense against person or property, were if not
for the inherent impossibility of its accomplishment or on account of the employment of
inadequate or ineffectual means (Art. 4, par. 2, RPC).

a. No. an impossible crime is not really a crime. It is only so-called because the act gives rise
to criminal liability. But actually, no felony is committed. The accused is to be punished for
his criminal tendency or propensity although no crime was committed.

b. Yes, A, B, C and D are liable for destructive arson because of the destruction of the room of
X with the use of an explosive, the hand grenade. Liability for an impossible crime is to be
imposed only if the act committed would not constitute any other crime under the Revised
Penal Code. Although the facts involved are parallel to the case of Intod vs. Court of Appeals
(215 SCRA 52). where it was ruled that the liability of the offender was for an impossible
crime, no hand grenade was used in said case, which constitutes a more serious crime
though different from what was intended.

c. No, the prosecutor is not correct in filing a case for “impossible crime to commit
kidnapping" against Enrique. Impossible crimes are limited only to acts which when
performed would be a crime against persons or property.

As kidnapping is a crime against personal security and not against persons or property,
Enrique could not have incurred an “impossible crime" to commit kidnapping. There is thus
no impossible crime of kidnapping.

XVIII
a) Define “corpus delicti". (2%)

b) What are the elements of "corpus delicti"? (3%)

c) One early evening, there was a fight between Eddie Gutierrez and Mario Cortez. Later that
evening, at about 11 o’clock, Eddie passed by the house of Mario carrying a plastic bag containing
gasoline, threw the bag at the house of Mario who was inside the house watching television, and
then lit it. The front wall of the house started blazing and some neighbors yelled and shouted.
Forthwith, Mario poured water on the burning portion of the house. Neighbors also rushed in to
help put the fire under control before any great damage could be inflicted and before the flames
have extensively spread. Only a portion of the house was burned. Discuss Eddie’s liability. (3%)

SUGGESTED ANSWER:

a) Corpus Delicti literally means “the body or substance of the crime" or the fact that a
crime has been committed, but does not include the identity of the person who committed
it. (People vs. Pascual, 44 OG 2789).

b) Elements of corpus delicti:

The actual commission by someone of the particular crime charged. It is a compound


fact made up of two things:

1) the existence of a certain act or result forming the basis of the criminal
charge; and

2) the existence of a criminal agency as the cause of the act or result

The identity of the ofifender is not a necessary element of corpus delicti

c) Eddie is liable for destructive arson in the consummated stage. It is destructive arson
because fire was resorted to in destroying the house of Mario which is an inhabited house or dwelling.
The-arson is consummated because the house was in fact already burned although not totally. In arson,
it is not required that the premises be totally burned for the crime to be consummated. It is enough
that the premises suffer destruction by burning.
1999 BAR EXAMINATION

When is surrender by an accused considered volun- taiy, and constitutive of the mitigating
circumstance of voluntary surrender? (3%)

SUGGESTED ANSWER:

A surrender by an offender is considered voluntary when it is spontaneous, indicative of


an intent to submit unconditionally to the authorities.

To be mitigating, the surrender must be:

(a) spontaneous, i.e., indicative of acknowledgment of guilt and not for convenience nor
conditional;

(b) made before the government incurs expenses, time and effort in tracking down the
offender's whereabouts; and

(c) made to a person in authority or the letter's agents.

II

During the robbery in a dwelling house, one of the culprits happened to fire his gun upward in
the ceiling without meaning to kill anyone. The owner of the house who was hiding thereat was hit
and killed as a result.

The defense theorized that the killing was a mere accident and was not perpetrated in
connection with, or for purposes of, the robbeiy.

Will you sustain the defense? Why? (4%)

SUGGESTED ANSWER:

No, I will not sustain the defense. The act being felonious and the proximate cause of the
victim's death, the offender is liable therefor although it may not be intended or different from what he
intended.

The offender shall be prosecuted for the composite crime of robbery with homicide, whether
the killing was intentional or accidental, as long as the killing was on occasion of the robbery.
III

(a) Distinguish coercion from illegal detention. (3%)

(b) Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the
law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw from him a
confession which was their intention to obtain through the employment of such means.

What crime was committed by the agents of the law? Explain your answer. (3%)

SUGGESTED ANSWER:

(a) Coercion may be distinguished from illegal detention as follows: in coercion, the basis
of criminal liability is the employment of violence or serious intimidation approximating violence,
without authority of law, to prevent a person from doing something not prohibited by law or to compel
him to do something against his will, whether it be right or wrong; while in illegal detention, the basis of
liability is the actual restraint or locking up of a person, thereby depriving him of his liberty without
authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of
illegal detention is not committed.

(b) Evidently, the person tortured and maltreated by the agents of the law is a
suspect and may have been detained by them. If so and he had already been booked and put
in jail, the crime is maltreatment of prisoner and the fact that the suspect was subjected to
torture to extort a confession would bring about a higher penalty, in addition to the offender's
liability for the physical injuries inflicted.

But if the suspect was forcibly brought to the police headquarters to make him admit
the crime and tortured/ maltreated to make him confess to such crime, but later released
because the agents failed to draw such confession, the crime is grave coercion because of the
violence employed to compel such confession without the offended party being confined in
jail. (US vs. Cusi, 10 Phil 143)

It is noted that the offended party was merely “brought” to the police headquarters and
is thus not a detention prisoner. Had he been validly arrested, the crime committed would be
maltreatment of prisoners.

IV

a. Distinguish “ mala in se” from “malaprohibita “motive” from “intent”. (3%)

b. When is motive relevant to prove a case? When is it not necessary to be established?


Explain. (3%)

SUGGESTED ANSWER:

a. In “mala in se”, the acts constituting the crimes are inherently evil, bad or wrong, and
hence involves the moral traits of the offender; while in “ mala prohibita”, the acts constituting the
crimes are not inherently bad, evil or wrong but prohibited and made punishable only for public good.
And because the moral trait of the offender is involved in “mala in se”, modifying circumstances, the
offender's extent of participation in the crime, and the degree of accomplishment of the crime are
taken into account in imposing the penalty: these are not so in “mala prohibita" where criminal
liability arises only when the acts are consummated.
“Motive” is the moving power which impels a person to do an act for a definite result; while
“intent” is the purpose for using a particular means to bring about a desired result. Motive is not an
element of a crime but intent is an element of intentional crimes. Motive, if attending a crime, always
precede the intent.

b. Motive is relevant to prove a case when there is doubt as to the identity of the offender or
when the act committed gives rise to variant crimes and there is the need to determine the proper
crime to be imputed to the offender.

It is not necessary to prove motive when the offender is positively identified or the criminal act
did not give rise to variant crimes.

Define murder. What are the elements of the crime?


(3%)

The accused, not intending to kill the victim, treacherously shot the victim while the victim was turning
his back to him. He aimed at and hit the victim only on the leg. The victim, however, died because of loss of
blood. Can the accused be liable for homicide or murder, considering that treachery was clearly involved but
there was no attempt to kill? Explain your answer. (3%)

SUGGESTED ANSWER:

(a) Murder is the unlawful killing of a person which otherwise would constitute only homicide, had
it not been attended by any of the following circumstances:

1. With treachery or taking advantage of superior strength, or with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford
impunity;

2. In consideration of a price, reward or promise;

3. By means or on the occasion of inundation, fire, poison, explosion, shipwreck,


stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by
means of motor vehicles, or with the use of any other means involving great waste
and ruin;

4. On occasion of an earthquake, eruption of a volcano, destructive cyclone,


epidemic or other public calamity;

5. With evident premeditation;

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the


victim, or outraging or scoffing at his person or corpse.

(b) The elements of murder are: (1) that a person was unlawfully killed; (2) that such a
killing was attended by any of the above-mentioned circumstances; (3) that the
killing is not parricide nor infanticide; and (4) that the accused killed the victim.

The accused is liable for the death of the victim even though he merely aimed and fired
at the latter's leg, “not intending to kill the victim", considering that the gunshot was
felonious and was the proximate cause of death. An offender is liable for all the direct,
natural, and logical consequences of his felonious act although different from what he
intended.

However, since specific intent to kill is absent, the crime for said death is only homicide
and not murder (People vs. Pugay and Samson, 167 SCRA 439)

ALTERNATIVE ANSWER:

The accused is liable for the death of the victim in as much as his act of shooting the
victim at the leg is felonious and is the proximate cause of death. A person performing a
felonious act is 0x100108117 liable for all the direct, natural, and logical consequences of
such act although different from what he intended. And since such death was attended by
treachery, the same will constitute murder but the accused should be given the benefit of the
mitigating circumstance that he did not intend to commit so grave a wrong as that which
was comxnitted (Art. 13(3), RPC)

VI

What do you understand by aberratio ictus: error in personae; and praeter intentionem?
Do they alter the criminal liability of an accused? Explain. (4%)

SUGGESTED ANSWER:

Aberratio ictus or mistake in the blow occurs when the offender delivered the blow at
his intended victim but missed, and instead such blow landed on an unintended victim. The
situation generally brings about complex crimes where from a single act, two or more grave
or less grave felonies resulted, namely the attempt against the intended victim and the
consequence on the unintended victim. As complex crimes, the penalty for the more serious
crime shall be the one imposed and in the maximum period. It is only when the resulting
felonies are only light that complex crimes do not result and the penalties are to be imposed
distinctly for each resulting crime.

Error in personae or mistake in identity occurs when the offender actually hit the
person to whom the blow was directed but turned out to be different from and not the victim
intended. The criminal liability of the offender is not affected, unless the mistake in identity
resulted to a crime different from what the offender intended to commit, in which case the
lesser penalty between the crime intended and the crime committed shall be imposed but in
the maximum period (Art. 49. RPC).

Praeter intentionem or where the consequence went beyond that intended or expected.
This is a mitigating circumstance (Art. 13, par. 3, RPC) when there is a notorious disparity
between the act or means employed by the offender and the resulting felony, i.e., the
resulting felony could not be reasonably anticipated or foreseen by the offender from the act
or means employed by him.

VII

(a) Who are public officers? (2%)

(b) A public officer was accused before the Sandigan- bayan of a violation of Section 3 (e) of RA
No. 3019, the Anti- Graft and Corrupt Practices Act. Just after arraignment and even before
evidence was presented, the Sandiganbayan issued an order for his suspension pendente
lite. The accused questioned the said Order contending that it is violative of the
constitutional provision against an ex post facto law. Will you sustain the objection of the
accused? Why? (2%)

(c) What pre-conditions are necessary to be met or satisfied before preventive suspension may
be ordered? (2%)

SUGGESTED ANSWER:

(a) Public Officers are persons who, by direct provision of the law, popular election or
appointment by competent authority, takes part in the performance of public functions in
the Government of the Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class (Art. 203,
RPC)

(b) No, I will not sustain the objection of the accused. Suspension of the accused
pendente lite is not violative of the constitutional provision against ex-post facto
law. Ex-post facto law means making an innocent act a crime before it is made
punishable.

(c) The pre-conditions necessary to be met or satisfied before a suspension may be


ordered are: (1) there must be proper notice requiring the accused to show cause
at a specific date of hearing why he should not be ordered suspended from office
pursuant to RA 3019, as amended; and (2) there must be a determination of a valid
information against the accused that warrants his suspension.

VIII

Andres is charged with an offense defined by a special law. The penalty prescribed for the
offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon
arraignment, he entered a plea of guilty. In the imposition of the proper penalty, should the
Indeterminate Sentence Law be applied? If you were the judge trying the case, what penalty would
you impose on Andres? (4%)

SUGGESTED ANSWER:

Yes, the Indeterminate Sentence Law should be applied because the minimum
imprisonment is more than one (I) year.

If I were the Judge, I will impose an indeterminate sentence, the maximum of which
shall not exceed the maximum fixed by law and the minimum shall not be less than the
minimum penalty prescribed by the same. I have the discretion to impose the penalty within
the said minimum and maximum.

IX

(a) Name the four (4) kinds of aggravating circumstances and state their effect on the
penalty of crimes and nature thereof. (3%)

(b) D istinguish generic aggravating circumstance from qualifying aggravating circumstance.

(c) The charge against the accused was raised to murder on the basis of the allegation in
the Information of the qualifying circumstances of treachery and evident premeditation
both of which circumstances were supported by evidence. Murder was proved during
the trial but the accused proved the mitigating circumstance of voluntary surrender.

Should the accused be entitled to the minimum of the penalty for murder? (3%)
SUGGESTED ANSWER:

(a) The four (4) kinds of aggravating circumstances are:

1. Generic aggravating or those that can generally apply to all crimes, and can be offset
by mitigating circumstances, but if not offset, would affect only the maximum of the
penalty prescribed by law;

2. Specific aggravating or those that apply only to particular crimes and cannot be
offset by mitigating circumstances;

3. Qualifying circumstances or those that change the nature of the crime to a graver
one, or brings about a penalty next higher in degree, and cannot be offset by mitigating
circumstances;

4. Inherent aggravating or those that essentially accompany the commission of the crime
and does not affect the penalty whatsoever.

(b) Generic aggravating circumstances:

1. affects the nature of the crime or brings about a penalty higher in degree
than that ordinarily prescribed.
2. canbe offset by ordinary mitigating circumstances;

3. need not be alleged in the Information as long as proven during the trial,
the same shall be considered in imposing the sentence.

Qualifying circumstances:

1. must be alleged In the Information and proven during trial;

2. cannot be offset by mitigating circumstances;

3. affects the nature of the crime or brings about a penalty higher in degree than
that ordinarily prescribed.

a. In order that the plea of guilty may be mitigating, what requisites must be complied
with? (2%

b. An accused charged with the crime of homicide pleaded “not guilty" during the
preliminary investigation before the Municipal Court. Upon the elevation of the case to
the Regional Trial Court the Court of competent jurisdiction, he pleaded guilty freely and
voluntarily upon arraignment. Can his plea of guilty before the RIC be considered
spontaneous and thus entitle him to the mitigating circumstance of spontaneous plea of
guilty under Art. 13(7), RPC? (3%)

SUGGESTED ANSWER:

(a) For plea of guilty to be mitigating, the requisites are:

1. That the accused spontaneously pleaded guilty to the crime charged;

2. That such plea was made before the court competent to try the case and
render judgment; and
3. That such plea was made prior to the presentation of evidence for the
prosecution.

(b) Yes, his plea of guilty before the Regional Trial Court can be considered
spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty. His
plea of not guilty before the Municipal Court is immaterial as it was made during preliminary
investigation only and before a court not competent to render judgment.

XI

What constitutes the crime of malversation of public funds or property? (2%)

How is malversation distinguished from estafa?

A Municipal Treasurer, accountable for public funds or property, encashed with public funds
private checks drawn in favor of his wife. The checks bounced, the drawer not having enough cash
in the drawee bank. The Municipal Treasurer, in encashing private checks from public funds,
violated regulations of his office.

Notwithstanding restitution of the amount of the checks, can the Municipal Treasurer
nevertheless be criminally liable? What crime did he commit? Explain. (2%).

SUGGESTED ANSWER:

Malversation of public funds or property is committed by any public officer who, by


reason of the duties of his office, is accountable for public funds or property, shall take or
misappropriate or shall consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly or partially, or shall otherwise
be guilty of the mlsappro-* priation or malversation of such funds or property. (Art. 217,
RPC)

Malversation differs from estafa in that malversation Is committed by an


accountable public officer involving public funds or property under his custody and
accountability; while estafa is committed by non-ac- countable public officer or private
individual involving funds or property for which he is not accountable to the government.

Tes, notwithstanding the restitution of the amount of the check, the Municipal
Treasurer will be criminally liable as restitution does not negate criminal liability although
it may be considered as a mitigating circumstance similar or analogous to voluntary
surrender. (People vs. Velasquez, 73 Phil 98). He will be criminally liable for malversation.
However, if the restitution was made immediately, under vehement protest against an
imputation of malversation and without leaving the office, he may not be criminally liable.

XII

Under what circumstances is the Indeterminate Sentence Law not applicable? (2%)

A was convicted of illegal possession of grease guns and two Thompson sub-machine guns
punishable under the old law (RA No.4) with imprisonment of from five (5) to ten (10) years. The
trial court sentenced the accused to suffer imprisonment of five (5) years and one (1) day.

Is the penalty thus imposed correct? Explain. (3%)

SUGGESTED ANSWER:
Indeterminate Sentence Law does not apply to:
1. Persons convicted of offenses punished with death penalty or life
imprisonment*
2. Those convicted of treason, conspiracy or proposal to commit treason;
3. Those convicted of misprision of treason, rebellion, sedition or espionage;
4. Those convicted of piracy;
5. Those who are habitual delinquents;
6. Those who shall have escaped from confinement or evaded sentence;
7. Those who violated the terms of conditional pardon granted to them by the
Chief Executive;
8. Those whose maximum term of imprisonment does not exceed one year;
9. Those who, upon the approval of the law (December 5, 1933), had been
sentenced by final judgment;
10. Those sentenced to the penalty of destierro or suspension.

The penalty imposed, being only a straight penalty, is not correct because it does
not comply with the Indeterminate Sentence Law which applies to this case. Said law
requires that if the offense is punished by any law other than the Revised Penal Code, the
court shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum penalty fixed by the law and the minimum shall not
be less than the minimum prescribed by the same.

XIII

(a) How are “forging” and “falsification” committed? (3%)

(b) Is mere possession of false money bills punishable under Article 168 of the Revised Penal
Code? Explain. (3%)

(c) The accused was caught in possession of 100 counterfeit P20 bills. He could not explain
how and why he possessed the said bills. Neither could he explain what he intended to do with the
fake bills. Can he be held criminally liable for such possession? Decide. (3%)

(d) A falsified official or public document was found in the possession of the accused. No
evidence was introduced to show that the accused was the author of the falsification. As a matter of
fact, the trial court convicted the accused of falsification of official or public document mainly on the
proposition that “the only person who could have made the erasures and the superimposition
mentioned is the one who will be benefited by the alterations thus made” and that “he alone could
have the motive for making such alterations”.

Was the conviction of the accused proper although the conviction was premised merely on the
aforesaid ratiocination? Explain your answer. (3%)

SUGGESTED ANSWER:

(a) Forging or forgery is committed by giving to a treasury or bank note or any


instrument payable to bearer or to order the appearance of a true and genuine document; or
by erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or
signs contained therein.

Falsification, on the other hand, is committed by:


1. Counterfeiting or imitating any handwriting, signature or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements


other than those in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which changes its


meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an original


document when no such original exists, or including in such copy a statement contrary to, or
different from, that of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol,


registry, or official book.

(b) No. Possession of false treasury or bank note alone without an intent to use it, is not
punishable. But the circumstances of such possession may indicate intent to utter, sufficient
to consummate the crime of illegal possession of false notes.

(c) Yes. Knowledge that the note is counterfeit and intent to use it may be shown by the
conduct of the accused. So, possession of 100 false bills reveal: (a) knowledge that the bills
are fake; and (b) intent to utter the same.

(d) Yes, the conviction is proper because there is a presumption in law that the possessor
and user of a falsified document is the one who falsified the same.

XIV

(a) Is there such a crime as estafa through negligence? Explain. (2%)

(b) Aurelia introduced Rosa to Victoria, a dealer in jewelry who does business in Timog,
Quezon City. Rosa, a resident of Cebu City, agreed to sell a diamond ring and bracelet to
Victoria on a commission basis, on condition that, if these items can not be sold, they may
be returned to Victoria forthwith.

Unable to sell the ring and bracelet, Rosa delivered both items to Aurelia in Cebu City with
the understanding that Aurelia shall, in turn, return the items to Victoria in Timog. Quezon City.
Aurelia dutifully returned the bracelet to Victoria but sold the ring, kept the cash proceeds thereof
to herself, and issued a check to Victoria which bounced. Victoria sued Rosa for estafa under
Article 315, R.P.C., Victoria insisting that delivery to a third person of the thing held in trust is not
a defense in estafa.

Is Rosa criminally liable for estafa under the circumstances? Explain. (4%)

SUGGESTED ANSWER:

a) There is no such crime as estafa through negligence. In estafa, the profit or gain
must be obtained by the accused personally, through his own acts, and his mere
negligence in allowing another to take advantage of or benefit from the entrusted
chattel cannot constitute estafa. (People v. Nepomuceno, CA, 460G 6135

b) No, Rosa cannot be held criminally liable for estafa. Although she received the jewelry
from Victoria Bookman Old Style under an obligation to return the same or deliver
the proceeds thereof, she did not misappropriate it. In fact, she gave them to Aurelia
specifically to be returned to Victoria. The misappropriation was done by Aurelia, and
absent the showing of any conspiracy between Aurelia and Rosa, the latter cannot be
held criminally liable for Aurelia's acts. Furthermore, as explained above, Rosa's
negligence which may have allowed Aurelia to misappropriate the jewelry does not
make her criminally liable for estafa.

XV

(a) A, actuated by malice and with the use of a fully automatic M-14 sub-machine gun, shot a
group of persons who were seated in a cockpit with one burst of successive, continuous, automatic
fire. Four (4) persons were killed thereby, each having hit by different bullets coming from the sub-
machine gun of A. Four (4) cases of murder were filed against A.

The trial court ruled that there was only one crime committed by A for the reason that, since
A performed only one act, he having pressed the trigger of his gun only once, the crime committed
was murder. Consequently, the trial judge sentenced A to just one penalty of reclusion perpetua.

Was the decision of the trial judge correct? Explain. (4%)


(b) What constitutes a complex crime? How many crimes maybe involved in a complex crime?
What is the penalty therefor? (4%)

SUGGESTED ANSWER:

The decision of the trial judge is not correct. When the offender made use of an
automatic firearm, the acts committed are determined by the number of bullets discharged
inasmuch as the firearm being automatic, the offender need only press the trigger once and
it would fire continually. For each death caused by a distinct and separate bullet, the
accused incurs distinct criminal liability. Hence, it is not the act of pressing the trigger
which should be considered as producing the several felonies, but the number of bullets
which actually produced them.

(a) A complex crime is constituted when a single act caused two or more grave or less
grave felonies or when an offense is committed as a necessary means to commit another
offense (Art. 48, RPC).

At least two (2) crimes are involved in a complex crime; either two or more grave or less
grave felonies resulted from a single act, or an offense is committed as a necessary means for
committing another.

The penalty for the more serious crime shall be imposed and in its maximum period.
(Art. 48, RPC)

XVI

Who may be guilty of the crime of parricide? (3%)

A killed: (1) a woman with whom he lived without benefit of clergy, (2) their child who was only
two days old, (3) their daughter, and (4) their adopted son.
What crime or crimes did A commit? (3%)

SUGGESTED ANSWER:

(a) Any person who kills his father, mother, or child, whether legitimate or illegitimate,
or his ascendants or descendants, or spouse, shall be guilty of parricide. (Art. 246, RPC)

(b) A committed the following crimes:


1. Homicide or murder as the case may be, for the killing of his common-law wife
who is not legally considered a “spouse”

2. Infanticide for the killing of the child as said child is less than three (3) days
old. (Art. 255, RPC) However, the penalty corresponding to parricide shall be imposed
since A is related to the child within the degree defined in the crime of parricide.

3. Parricide for the killing of their daughter, whether legitimate or illegitimate, as


long as she is not less than three (3) days old at the time of the killing.

4. Murder for the killing of their adopted son as the relationship between A and
the said son must be by blood in order for parricide to arise.

XVII

Two young men, A and B, conspired to rob a residential house of things of value. They
succeeded in the commission of their original plan to simply rob. A, however, was sexually aroused
when he saw the lady owner of the house and so, raped her.

The lady victim testified that B did not in any way participate in the rape but B watched the
happening from a window and did nothing to stop the rape.

Is B as criminally liable as A for robbery with rape? Explain. (4%)

SUGGESTED ANSWER:

Yes, B is as criminally liable as A for the composite crime of robbery with rape under Art.
294 (1). Although the conspiracy of A and B was only to rob, B was present when the rape was
being committed which gave rise to a composite crime, a single indivisible offense of robbery
with rape. B would not have been liable had he endeavored to prevent the commission of the
rape. But since he did not when he could have done so, he in effect acquiesced with the rape
as a component of the robbery and so he is also liable for robbery with rape.
1998 BAR EXAMINATION

I.
What are the three cardinal features or main characteristics of Philippine Criminal Law? [5%]

Answer:
The three main characteristics of Philippine criminal law are:

1) Generality or its being binding to all persons who live or sojourn in Philippine
territory subject to certain exceptions;

2) Territoriality or its having force and effect only within Philippine territory, subject to
certain exceptions also;

3) Irretrospectivity or its application only to acts and omissions committed/incurred


after the effectivity of the law.

II.
Isagani lost his gold necklace bearing his initials. He saw Roy wearing the said necklace.
Isagani asked Roy to return to him the necklace as it belongs to him, but Roy refused. Isagani then
drew his gun and told Roy, “If you will not give back the necklace to me, I will kill you!" Out of fear
for his life and against his will, Roy gave the necklace to Isagani.

What offense did Isagani commit? [5%]

Answer:

Isagani committed the crime of grave coercion (Art. 286, RPC) for compelling Roy, by
means of serious threats or intimidation, to do something against the hitter's will, whether it
be right or wrong. Serious threats or intimidation approximating violence constitute grave
coercion, not grave threats. Such is the nature of the threat in this case because it was
committed with a gun, is a deadly weapon.

The crime is not robbery because intent to gain, which is an essential element of
robbery, is absent since the necklace belongs to Isagani.
II.
On May 5, 1992, at about 6:00 a.m., while Governor Alegre of Laguna was on board his car
traveling along the National Highway of Laguna, Joselito and Vicente shot him on the head
resulting in his instant death. At that time, Joselito and Vicente were members of the liquidation
squad of the New People's Army and they killed the governor upon orders of their senior officer.
Commander Tiago. According to Joselito and Vicente, they were ordered to kill Governor Alegre
because of his corrupt practices.

If you were the prosecutor, what crime will you charge Joselito and Vicente? [5%]

Answer:
If I were the prosecutor, I would charge Joselito and Vicente with the crime of rebellion,
considering that the killers were members of the liquidation squad of the New People's Army
and the killing was upon orders of their commander; hence, politically-motivated. This was
the ruling in People vs. Avila, 207 SCRA 1568, involving identical facts which is a movement
taken judicial notice of as engaged in rebellion against the Government.

Alternative Answer:
If I were the prosecutor, I would charge Joselito and Vicente for the crime of murder as
the purpose of the killing was because of his “corrupt practices”, which does not appear to
be politically motivated. There is no indication as to how the killing would promote or
further the objective of the New Peoples Army. The killing is murder because it was
committed with treachery.

Alternative Answer:

The crime should be rebellion with murder considering that Art. 135 of the Revised
Penal Code has already been amended by Rep. Act No. 6968, deleting from said Article,
common crimes which used to be punished as part and parcel of the crime of rebellion.
The ruling in People us. Hernandez, 99 Phil. 515 (1994). that rebellion may not be
completed with common crimes committed in furtherance thereof, was because the
common crimes were then penalized in Art. 135 together with the rebellion, with one
penalty and Art. 48 of the Rev. Penal Code cannot be applied. Art. 135 of said Code
remained exactly the same when the case of Entile us. Salazar. 186 SCRA 217 (1990) was
resolved. Precisely for the reason that Art. 48 cannot apply because the common crimes
were punished as part of rebellion in Ant. 135. that this Article was amended, deleting the
common crimes therefrom. That the common crimes were deleted from said Article,
demonstrates a clear legislative intention to treat the common crimes as distinct from
rebellion and remove the legal impediment to the application of Art. 48.

It is noteworthy that in Enrile vs. Salazar (supra) the Supreme Court said these:

"There is an apparent need to restructure the lau> on rebellion, either to


raise the penalty therefor or to clearly define and delimit the other offenses to
be considered as absorbed thereby, so that if cannot be conveniently utilized as
the umbrellafor every sort of illegal activity undertaken in its name. The Court
has no power to effect such change, for it can only interpret the law as it
stands at any given time, and what is needed lies beyond interpretation.
Hopefully, Congress will perceive the need for promptly seizing the initiative in
this matter, which is purely within its province."

And significantly the said amendment to Art. 135 of the Rev. Penal Code was made at
around the time the ruling in Salazar was handled down, obviously to neutralize the
Hernandez and the Salazar rulings. The amendment was sort of a rider to the coup d'etat
law, Rep. Act No. 6968.

IV
1. Distinguish between justifying and exempting circumstances. [3%]

2. John, an eight-year old boy, is fond of watching the television program "Zeo Rangers." One
evening while he was engrossed watching his favorite television show. Petra, a maid changed the
channel to enable her to watch “Home Along the Riles." This enraged John who got his father's
revolver, and without warning, shot Petra at the back of her head causing her instantaneous death.
is John criminally liable? (2%1

Answer:

1. In justifying circumstances:

a) The circumstance affects the act, not the actor;


b) The act is done within legal bounds, hence considered as not a crime;
c) Since the act is not a crime, there is no criminal;
d) There being no crime nor criminal, there is no criminal nor civil liability.

Whereas, in an exempting circumstances:

a) The circumstance affects the actor, not the act;


b) The act is felonious and hence a crime but the actor acted without voluntariness;
c) Although there is a crime, there is no criminal because the actor is regarded only as
an instrument of the crime;
d) There being a wrong done but no criminal, there is civil liability but no criminal
liability.

2. No, John is not criminally liable for killing Petra because he is only 8 years old when
he committed the killing. A minor below nine (9) years old is absolutely exempt from criminal
liability although not from civil liability. (Art. 12, par. 2, RPC).

V.

1. How is the crime of coup d’etat committed? [3%]

2. Supposing a public school teacher participated in a coup d’etat using an unlicensed


firearm. What crime or crimes did he commit? [2%]

Answer:

1. The crime of coup d'etat is committed by a swift attack, accompanied by violence,


intimidation, threat, strategy or stealth against the duly constituted authorities of the
Republic of the Philippines, military camps and installations, communication networks,
public utilities and facilities needed for the exercise and continued possession of power,
carried out singly or simultaneously anywhere in the Philippines by persons belonging to the
military or police or holding public office, with or without civilian support or participation,
for the purpose of seizing or diminishing state power. (Art. 134-A, RPC).

2. The public school teacher committed only coup d'etat for his participation therein.
His use of an unlicensed firearm is absorbed in the coup d'etat under the hew firearms law
(Rep. Act No. 8294). A prosecution for illegal possession of firearm under the new law Is
allowed only if the unlicensed firearm was not used in the commission of another crime.

VI.

Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One
evening, Raul rode on the sidecar, poked a knife at Samuel and instructed him to go near the
bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel
several times until he was dead. Raul fled from the scene taking the motorcycle with him.
What crime or crimes did Raul commit? (5%)

Answer:

Raul committed the composite crime of Carnapping with homicide under Sec. 14 of Rep.
Act No. 6539, as amended, considering that the killing “in the course of” or “on the occasion
or a carnapping (People vs. De la Cruz, et al, 183 SCRA 763). A motorcycle is included in the
definition of a “motor vehicle" in said Rep. Act, also known as the ‘Anti-Camapping Act of
1972*. There is no apparent motive for the killing of the tricycle driver but for Raul to be
able to take the motorcycle. The fact that the tricycle driver was killed brings about the
penalty of reclusion perpetua to death.

Alternative Answer:
The crime committed by Raul is carnapping, punished by Section 14 of Rep. Act No.
6539. The killing of Samuel is not a separate crime but only an aggravating circumstance.

VII.
King went to the house of Laura who was alone. Laura offered him a drink and after
consuming three bottles of beer. King made advances to her and with force and violence, ravished
her. Then King killed Laura and took her jewelry.

Doming, King's adopted brother, learned about the incident. He went to Laura's house, hid her
body, cleaned everything and washed the bloodstains inside the room.

Later, King gave Jose, his legitimate brother, one piece of jewelry belonging to Laura. Jose
knew that the jewelry was taken from Laura but nonetheless he sold it for P2.000.

What crime or crimes did King, Doming and Jose commit? Discuss their criminal liabilities.
(10%]

Answer:
King committed the composite crime of Rape with homicide as a single indivisible
offense, not a complex crime, and Theft. The taking of Laura's jewelry when she Is already
dead is only theft.

Doming's acts, having been done with knowledge of the commission of the crime and
obviously to conceal the body of the crime to prevent its discovery, makes him an accessory
to the crime of rape with homicide under Art. 19, par. 2 of the Rev. Penal Code, but he Is
exempt from criminal liability therefor under Article 20 of the Code, being an adopted
brother of the principal.

Jose incurs criminal liability either as an accessory to the crime of theft committed by
King, or as fence. Although he is a legitimate brother of King, the exemption under Article
20 does not include the participation he did, because he profited from the effects of such
theft by selling the jewelry knowing that the same was taken from Laura. Or Jose may be
prosecuted for fencing under the Anti-Fencing Law of 1979 (PD No. 1612) since the jewelry
was the proceeds of theft and with intent to gain, he received it from King and sold it.

Alternative Answer:
King committed two distinct crimes. Rape and Theft. The killing of Laura will only be
an aggravating circumstance raising the penalty to death. The theft is a separate crime since
it was committed after the rape.

Doming, although an accessory, is exempt from criminal liability for being an adopted
brother of the accused pursuant to Article 20 of the Revised Penal Code.
Jose may be held liable for fencing under P.D. No. 1612, or as accessory to the theft
committed by King, notwithstanding that he is a brother of King because he profited or
assisted Jose to profit from the effect of the crime.

VIII
1. What is the doctrine of implied conspiracy? [3%]
2. Distinguish between recidivism and quasi-recidi- vism. (2%)

Answer:

1. The doctrine of conspiracy holds two or more persons participating in the commission of
a crime collectively responsible and liable as co-conspirators although absent any agreement
to that effect, when they act in concert, demonstrating unity of criminal intent and a
common purpose or objective. The existence of a conspiracy shall be inferred or deduced
from their criminal participation in pursuing the crime and thus the act of one shall be
deemed the act of all.

2. In recidivism -
a) The convictions of the offender are for crimes embraced in the same Title of the
Revised Penal Code; and

b) This circumstance is generic aggravating and therefore can be offset by an ordinary


mitigating circumstance.

Whereas in quasi-recidivism -
a) The convictions are not for crimes embraced in the same Title of the Revised Penal
Code, provided that it is a felony that was committed by the offender before serving sentence
by final judgment for another crime or while serving sentence for another crime; and

b) This circumstance is a special aggravating circumstance which cannot be offset by


any mitigating circumstance.

IX.
Superintendent A1 Santiago. Chief of the Narcotics Division, Western Police District, received
information that a certain Lee Lay of No. 8 Tindalo Street. Tondo. Manila is a member of the 14K
Gang selling shabu and marijuana. SPOL Lorenzo and SP03 Peralta were instructed to conduct
surveillance and buy-bust operations against Lay. Their informant contacted Lay and a meeting
was arranged at T. Pinpin Restaurant at 2:00 in the afternoon on February 14, 1993. SPOl Lorenzo
and SP03 Peralta, acting as poseur- buyers, purchased from Lay 10 sticks of marijuana and paid
P500. Later, Lay agreed to sell to them one 0 kilo of dried marijuana fruiting tops which he gave
them at his residence.

The policemen arrested Lay and a search was conducted. Found were 356 grams of marijuana
seeds. 932 grams of marijuana fruiting tops and 50 sticks of marijuana cigarettes.

What offense or offenses did Lay commit? [5%]

Answer:

Lay committed the offenses of illegal selling of dangerous drugs and illegal possession of
dangerous drugs which should be made subject of separate informations.

The crime of illegal selling of dangerous drugs is committed as regards the 10 sticks of
marijuana and as regards the one (1) kilo of dried marijuana fruiting tops, which should be
subject of two (2) separate informations because the acts were committed at different times
and in different places.

The crime of illegal possession of dangerous drugs is committed as regards the


marijuana seeds, marijuana fruiting tops and marijuana cigarettes which are not the subject
of the sale. Another information shall be filed for this.

X.
Manny killed his wife under exceptional circumstances and was sentenced by the Regional
Trial Court of Dagupan City to suffer the penalty of destierro during which he was not to enter the
city.

While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was
arrested in Manila.

1. Did Manny commit any crime? [3%]

2. If so, where should he be prosecuted? [2%]

Answer:

1. Yes, Manny committed the crime of evasion of service of sentence when he went to
Dagupan City, which he was prohibited from entering under his sentence of destierro.

A sentence imposing the penalty of destierro is evaded when the convict enters any
of the place/places he is prohibited from entering under the sentence or come within the
prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a
deprivation of liberty. (People vs. Abilong, 82 Phil. 172).

2. Manny maybe prosecuted in Dagupan City or in Manila where he was arrested. This
is so because evasion of service of sentence is a continuing offense, as the convict is a
fugitive from justice in sueh case. (Parulan vs. Dir. of Prisons, L-28519, 17 Feb. 668)

XI.

Guy, while driving a passenger jeepney owned and operated by Max. bumped Demy, a
pedestrian crossing the street. Demy sustained injuries, which required medical attendance for
three months. Guy was charged with reckless imprudence resulting to physical injuries. Convicted
by the Metropolitan Trial Court, Guy was sentenced to suffer a straight penalty of three months of
arresto mayor and ordered to indemnify Demy in the sum of P5.000 and to pay PI,000 as
attorney's fees.

Upon finality of the decision, a writ of execution was served upon Guy, but was returned
unsatisfied due to his insolvency. Demy moved for a subsidiary writ of execution against Max. The
latter opposed the motion on the ground that the decision made no mention of his subsidiaiy
liability and that he was not impleaded in the case.

How will you resolve the motion? [5%]

Answer:

The motion is to be granted. Max as an employer of Guy and engaged in an industry


(transportation business) where said employee is utilized, is subsidiarily civilly liable under
Article 103 of the Revised Penal Code. Even though the decision made no mention of his
subsidiary liability, the law violated (Revised Penal Code) itself mandates for such liability
and Max is deemed to know it because ignorance of the law is never excused. And since his
liability Is not primary but only subsidiary in case his employee cannot pay, he need not be
impleaded in the in the criminal case. It suffices that he was duly notified of the motion for
issuance of a subsidiary writ of execution and thus given the opportunity to be heard.

XII
Divina, Is the owner of a 500-square meter residential lot in Makati City covered by TCT No.
1998. As her son needed money for his trip abroad, Divina mortgaged her lot to her neighbor Dino
for PI,000,000. Later Divina sold the same lot to Angel for P2,000,000. In the Deed of Sale, she
expressly stated that the property is free from any lien or encumbrance.

What crime, if any, did Divina commit? (5%)

Answer:

Divina committed estafa or swindling under Art. 316, par. 2 of the Revised Penal Code
because, knowing that the real property being sold is encumbered, she still made a
misrepresentation in the Deed of Sale that the same is free from any lien ox encumbrance.
There is thus a deceit or fraud causing damage to the buyer of the lot.

XIII
1. Under Article 47 of RA. 7659, the death penalty shall be imposed in all cases in which it
must be imposed under existing laws. What are the exceptions to the imposition of the
death penalty? [3%]

2. Edgardo was charged with importation of prohibited drugs in an information filed with the
Regional Trial Court of Kalookan City on June 4, 1994. The offense is punishable by
reclusion perpetua to death. Can Edgardo avail of plea-bargaining? (2%]

Answer:

1. The death penalty shall not be imposed although prescribed under existing laws:

(1) When the accused is less than 18 years of age at the time of the commission of
the offense;

(2) When the accused is more than 70 years of age already;

(3) When upon appeal or automatic review of the case by the Supreme Court, the
required majority vote for the imposition of the death penalty is not obtained.

2. No, Edgardo cannot avail of plea-bargaining because the imposable penalty for his
violation of the Dangerous Drugs Act (R.A- No. 6425, as amended) is reclusion perpetua to
death. Section 20-A expressly provides that plea-bargaining shall not be allowed where the
imposable penalty for the violation of said law is reclusion perpetua to death. (Sec. 20-A,
R.A. No. 6425, as amended).

XIV.

Buddy always resented his classmate, Jun. One day. Buddy planned to kill Jun by mixing
poison in his lunch. Not knowing where he can get poison, he approached another classmate. Jeny
to whom he disclosed his evil plan. Because he himself harbored resentment towards Jun, Jerry
gave Buddy a poison, which Buddy placed on Jun's food. However, Jun did not die because,
unknown to both Buddy and Jerry, the poison was actually powdered milk

1. What crime or crimes, if any, did Jerry and Buddy commit? [3%J
2. Suppose that, because of his severe allergy to powdered milk, Jun had to be hospitalized
for 10 days for ingesting it. Would your answer to the first question be the same? [2%]

Answer:

1. Jerry and Buddy are liable for the so-called “impossible crime” because, with intent to
kill, they tried to poison Jun and thus perpetrate Murder, a crime against persons. Jun was
not poisoned only because the would-be killers were unaware that what they mixed with the
food of Jun was powdered milk, not poison. In short, the act done with criminal intent by
Jerry and Buddy, would have constituted a crime against persons were it not for the inherent
inefficacy of the means employed.

Criminal liability is incurred by them although no crime resulted, because their act of
trying to poison Jun is criminal,

2. No, the answer would not be the same as above. Jerry and Buddy would be liable instead
for less serious physical injuries for causing the hospitalization and medical attendance for
10 days to Jun. Their act of mixing with the food eaten by Jun the matter which required
such medical attendance, committed with criminal intent, renders them liable for the
resulting injury.

XV.

One night, Lina, a young married woman, was sound asleep in her bedroom when she felt a
man on top of her. Thinking it was her husband Tito, who came home a day early from his business
trip, Una let him have sex with her. After the act, the man said, “I hope you enjoyed it as much as I
did." Not recognizing the voice, it dawned upon Lina that the man was not Tito, her husband.
Furious. Una took out Tito's gun and shot the man. Charged with homicide Una denies culpability
on the ground of defense of honor. Is her claim tenable? 15%I

Answer:

No, Lina's claim that she acted in defense of honor, is not tenable because the
unlawful aggression on her honor had already ceased. Defense of honor as included in self-
defense, must have been done to prevent or repel an unlawful aggression. There is no defense
to speak of where the unlawful aggression no longer exists.

XVI.

Juan and Arturo devised a plan to murder Joel. In a narrow alley near Joel's house, Juan
will hide behind the big lamppost and shoot Joel wheri the latter passes through on his way to
work. Arturo will come from the other end of the alley and simultaneously shoot Joel from behind.
On the appointed day, Arturo was apprehended by the authorities before reaching the alley. When
Juan shot Joel as planned, he was unaware that Arturo was arrested earlier. Discuss the criminal
liability of Arturo, if any. 15%]

Answer:

Arturo, being one of the two who devised the plan to murder Joel, thereby becomes a
co-principal by direct conspiracy. What is needed only is an overt act and both will incur
criminal liability. Arturo's liability as a conspirator arose from his participation in jointly
devising the criminal plan with Juan, to kill Jose. And it was pursuant to that conspiracy
that Juan killed Joel. The conspiracy here is actual, not by inference only. The overt act was
done pursuant to that conspiracy whereof Arturo is co-conspirator. There being a conspiracy,
the act of one is the act of all. Arturo, therefore, should be liable as a co-conspirator but the
penalty on him may be that of an accomplice only (People vs. Nierra, 96 SCRA1; People vs.
Medrano, 114 SCRA 335) because he was not able to actually participate in the shooting of
Joel, having been apprehended before reaching the place where the crime was committed.

Alternative Answer:

Arturo is not liable because he was not able to participate in the killing of Joel.
Conspiracy itself is not punishable unless expressly provided by law and this is not true in
the case of Murder. A co-conspirator must perform an overt act pursuant to the conspiracy.

XVII.

In the jewelry section of a big department store, Julia snatched a couple of bracelets and put
these in her purse. At the store's exit, however, she was arrested by the guard after being radioed
by the store personnel who caught the act in the store's moving* camera. Is the crime
consummated, frustrated, or attempted? (5%)

Answer:

The crime Is consummated theft because the taking of the bracelets was complete after
Julia succeeded in putting them in her purse. Julia acquired complete control of the
bracelets after putting them in her purse; hence, the taking with intent to gain is complete
and thus the crime is consummated.

XVIII.

A, B, C and D all armed, robbed a bank, and when they were about to get out of the bank,
policemen came and ordered them to surrender but they fired on the police officers who fired back and
shot it out with them.

1. Suppose a bank employee was killed and the bullet which killed him came from the firearm of
the police officers, with what crime shall you charge A, B, C and D? [3%]

2. Suppose it was robber D who was killed by the policemen and the prosecutor charged A. B and
C with Robbery and Homicide. They demurred arguing that they (A, B and C) were not the ones who
killed robber D, hence, the charge should only be Robbery. How would you resolve their argument? (2%)

ANSWER:

1. A, B. C and D should be charged with the crime of robbery with homicide


because the death of the bank employee was brought about by the acts of said offenders on
the occasion of the robbery. They shot it out with the policeman, thereby causing such death
by reason or on the occasion of a robbery; hence, the composite crime of robbery with
homicide.

2. The argument Is valid, considering that a separate charge for Homicide was
filed. Itwould be different if the charge filed was for the composite crime of robbery with
homicide, which is a single, indivisible offense.

Alternative Answer:
2. The argument raised by A. B and C is not correct because their liability is not only
for Robbery but for the special complex crime of Robbery with homicide. But the facts stated
impresses that separate crimes of Robbery “and" Homicide were charged, which is not
correct. What was committed was a single indivisible offense of Robbery with homicide, not
two crimes.

XIX
Mario found a watch in a jeep he was riding, and since it did not belong to him, he approached
policeman P and delivered the watch with instruction to return the same to whoever may be found
to be the owner.

P failed to return the watch to the owner and, instead, sold it and appropriated for himself the
proceeds of the sale.

Charged with theft, P reasoned out that he cannot be found guilty because it was not he who
found the watch and, moreover, the watch turned out to be stolen property.

Is P's defense valid? [5%]


Answer:

No, P's defense is not valid. In a charge for theft, it is enough that the personal property
subject thereof belongs to another and not to the offender (P). It is irrelevant whether the
person deprived of the possession of the watch has or has no right to the watch. Theft is
committed by one who, with intent to gain, appropriates property of another without the
consent of its owner. And the crime is committed even when the offender receives property
of another but acquires only physical possession to hold the same.

1997 BAR EXAMINATION

Question No.l:
Distinguish between crimes mala in se and crimes mala prohibita. May an act be malum in se and be, at the
same time, malum prohibitum?

Answer:
Crimes mala in se are felonious acts committed by dolo or culpa as defined in the Revised Penal
Code. Lack of criminal intent is a valid defense, except when the crime results from criminal
negligence. On the other hand, crimes malaprohibttaare those considered wrong only because they are
prohibited by statute. They constitute violations of mere rules of convenience designed to secure a
more orderly regulation of the affairs of society.

Yes, an act may be malum in se and malum prohibitum at the same time. In People v. Sunico, etaL, (CA
50 OG 5880) it was held that the omission or failure of election inspectors and poll clerks to include a
voter's name in the registry list of voters is wrong perse because it disenfranchises a voter of his right
to vote. In this regard it is considered as malum in se. Since it is punished under a special law (Sec. 101
and 103, Revised Election Code), it is considered malum prohibitum.

Question No. 2:
While the crew of a steamer prepared to raise anchor at the Pasig River, A, evidently Impatient with the
progress of work, began to use abusive language against the men. B, one of the members of the crew,
remonstrated saying that they could work best if they were not insulted. A took B's attitude as a display of
insubordination and, rising in a rage, moved towards B wielding a big knife and threatening to stab B. At the
instant when A was only a few feet from B, the latter, apparently believing himself to be in great and immediate
peril, threw himself into the water, disappeared beneath the surface, and drowned.

May A be held criminally liable for the death of B?

Answer:
Yes, A can be held criminally liable for the death of B. Article 4 of the Revised Penal
Code provides in part that criminal liability shall be incurred by any person committing a
felony although the wrongful act done be different from that which he intended. In U.S. vs.
Valdez, 41 Phil. 497, where the victim who was threatened by the accused with a knife,
jumped into the river but because of the strong current or because he did not know how to
swim, he drowned, the Supreme Court affirmed the conviction for homicide of the accused
because, if a person against whom a criminal assault is directed believes himself to be in
danger of death or great bodily harm and in order to escape jumps into the water, impelled
by the instinct of self-preservation, the assailant is responsible for the homicide in case
death results by drowning.

Question No. 3:
The accused and the victim occupied adjacent apartments, each being a separate dwelling
unit of one big house. The accused suspected his wife of having an illicit relation with the victim.
One afternoon, he saw the victim and his wife together on board a vehicle. In the evening of that
day, the accused went to bed early and tried to sleep, but being so annoyed over the suspected
relation between his wife and the victim, he could not sleep. Later in the night, he resolved to kill
the victim. He rose from bed and took hold of a knife. He entered the apartment of the victim
through an unlocked window. Inside, he saw the victim soundly asleep. He thereupon stabbed the
victim, inflicting several wounds, which caused his death within a few hours.

Would you say that the killing was attended by the qualifying or aggravating circumstances of
evident premeditation, treachery, nighttime and unlawful entry?

Answer:
1. Evident premeditation cannot be considered against the accused because he
resolved to kill the victim 'later in the night" and there was no sufficient lapse of time
between the determination and execution, to allow his conscience to overcome the
resolution of his will.

2. Treachery may be present because the accused stabbed the victim while the latter was sound
asleep. Accordingly, he employed means and methods which directly and specially insured the
execution of the act without risk himself arising from the defense which the victim might have made
(People us. Dequifto. 60 Phil. 279 People vs. Miranda, et aL, 90 Phil. 91).

3. Nighttime cannot be appreciated because there Is no showing that the accused deliberately
sought or availed of nighttime to insure the success of his act The Intention to commit the crime was
conceived shortly before its commission (People vs. Pardo. 79 Phil. 568). Moreover, nighttime is absorbed
in treachery.

4. Unlawfulentry may be appreciated as an aggravating circumstance, Inasmuch as the accused


entered the room of the victim through the window, which is not the proper place for entrance into the
house (Art. 14, par. 18, Revised Penal Code. People vs. Baruga. 61 Phil. 318).

Question No. 4:
A had a grudge against F. Deciding to kill F, A and his friends, B, C, and D, armed themselves with knives
and proceeded to the house of F, taking a taxicab for the purpose. About 20 meters from their destination, the
group alighted and after instructing B, the driver, to wait, traveled on foot to the house of F. B positioned
himself at a distance as the group's lookout. C and D stood guard outside the house. Before A could enter the
house, D left the scene withdut the knowledge of the others. A stealthily entered the house and stabbed F. F
ran to the street but was blocked by C, forcing him to flee towards another direction. Immediate^ after A had
stabbed F.Aalso stabbed G who was visiting F. Thereafter, A exited from the house and, together with B and C,
returned to the waiting taxicab and motored away.

G died, F survived.
Who are liable for the death of G and the physical injuries of F?

Answer:
A alone should be held liable for the death of G. The object of the conspiracy of A B, C, and D was
to kill F only.

Since B, C, and D did not know of the stabbing of G by A, they cannot be held
criminally therefor E. the driver, cannot be • also held liable for the death of G since the
former was completely unaware of said killing.

For the physical injuries ofF. A, BandC, should be held liable therefore. Even if it was
only A who actually stabbed and caused physical injuries to G, B and C are nonetheless
liable for conspiring with A and for contributing positive acts which led to the realization
of a common criminal intent. B positioned himself as a lookout, while C blocked F's
escape. D, however, although part of the conspiracy, cannot be held liable because he left
the scene before A could enter the house where the stabbing occurred. Although he was
earlier part of the conspiracy, he did not personally participate in the execution of the
crime by acts which directly tended toward the same end (People vs. Tamaro. et al, 44
Phil. 38).

In the same breath, E, the driver, cannot be also held liable for the infliction of
physical injuries upon F because there is no showing that he had knowledge of the plan to
kill F.

Question No. 5:
After killing the victim, the accused absconded. He succeeded in eluding the police until he
surfaced and surrendered to the authorities about two years later. Charged with murder, he
pleaded not guilty but, after the prosecution had presented two witnesses implicating him to the
crime, he changed his plea to that of guilty.

Should the mitigating circumstances of voluntary surrender and plea of guilty be


considered in favor of the accused?

Answer:
1. Voluntary surrender should be considered as a mitigating circumstance. After two
years, the police were still unaware of the whereabouts of the accused and the latter could
have continued to elude arrest. Accordingly, the surrender of the accused should be
considered mitigating because it was done spontaneously, indicative of the remorse or
repentance on the part of said accused and therefore, by his surrender, the accused saved
the Government expenses, efforts, and time.

Alternative Answer:

Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a time
to consider the surrender as spontaneous (People vs, Ablao, 183 SCRA658). For sure the government had
already incurred considerable efforts and expenses in looking for the accused.

2. Plea of guilty can no longer be appreciated as a mitigating circumstance because the


prosecution had already started with the presentation of its evidence (Art. 13, par. 7, Revised
Penal Code).
NOTE ON QUESTIONS VI, VII and VIII

In answering the three succeeding problems below, you may need to recall the following ranges of
penalty:

DEATH

Reclusion Perpetua

Reclusion Temporal: 12 years and 1 day to 20 years


Minimum 12 years and 1 day to 14 years and
8 months
Medium 14 years, 8 months and 1 day to 17
years and 4 months Maximum 17 years, 4 months and 1 day to 20
years

Prision Mayor: 6 years and 1 day to 12 years


Minimum 6 years and 1 day to 8 years
Medium 8 years and 1 day to 10 years
Maximum 10 years and 1 day to 12 years

Prision Correcional: 6 months and 1 day to 6 years


Minimum 6 months and 1 day to 2 years and 4 months
Medium 2 years, 4 months and 1 day to 4 years and 2 months
Maximum 4 years, 2 months and 1 day to 6 years

Arresto Mayor: 1 month and 1 day to 6 months


Minimum 1 month and 1 day to 2 months
Medium 2 months and 1 day to 4 months
Maximum 4 months and 1 day to 6 months

Question No, 6:
A and B pleaded guilty to the crime of parricide. The court found three mitigating
circumstances, namely, plea of guilty, lack of instruction and lack of intent to commit so grave a
wrong as that committed. The prescribed penalty for parricide is reclusion perpetua to death.

Impose the proper principal penalty.

Answer:

The proper penalty is reclusion perpetua. Even if there are two or more mitigating
circumstances, a court cannot lower the penalty by one degree (Art. 63. par. 3, Revised Penal
Code; People vs. Formigones, 87 Phil. 685). In U.S. vs. Relador, 60 Phil. 593, where the crime
committed was parricide with the two (2) mitigating circumstances of illiteracy and lack of
intention to commit so grave a wrong, and with no aggravating circumstance, the Supreme
Court held that the proper penalty to be imposed is reclusion perpetua.

Question No. 7;

A was convicted of the complex crime of death through falsification of public document. Since
the amount involved did not exceed P200.00, the penalty prescribed by law for estafa is arresto
mayor in its medium and maximum periods. The penalty prescribed by law for falsification of public
document is prision mayor plus fine not to exceed P5.000.00.

Impose the proper prison penalty.

Answer:

The proper penalty is ANY RANGE WITHIN prision correccional (six (6) months and
one (1) day to six (6) years) as MINIMUM, to ANY RANGE within prision mayor maximum (ten
(10) years and one (1) day to twelve (12) years) as MAXIMUM. This is in accordance with
People vs. Gonzales, 73 Phil. 549. where it was ruled that for the purpose of determining the
penalty next lower in degree, the penalty that should be considered as a starting point is the
whole of prision mayor, it being the penalty prescribed by law, and not prision mayor in its
maximum period, which is only the penalty actually applied because of Article 48 of the
Revised Penal Code. The penalty next lower in degree therefor Is priskm. correctional and it Is within
the range of this penalty that the minimum should be taken.

Question No. 8:
Assume In the preceding problem that there were two mitigating circumstances and no aggravating
circumstance. Impose the proper prison penalty.

Answer:
There being two (2) mitigating circumstances without any aggravating circumstance, the proper
prison penalty Is arresto mayor (in any of Its periods, le. ranging from one (1) month and one (1) day to
six (6) months) as MINIMUM to priskm correctional Inlts maximum period four (4) years, two (2) months,
and one (1) day to six (6) years as MAXIMUM. Under Art. 64, par. 5 of the Revised Penal Code, when a
penalty contains three periods, each one of which forms a period In accordance with Article 76 and 77
of the same Code, and there are two or more mitigating circumstances and no aggravating
circumstances, the penalty next lower in degree should be Imposed. For purposes of the Indeterminate
Sentence Law, the penalty next lower In degree should be determined without regard as to whether the
basic penalty provided by the Revised Penal Code should be applied In its maximum or minimum
period as circumstances modifying liability may require. The penalty next lower In degree to priskm
correctional Therefore, as previously stated, the minimum should be within the range of arresto mayor
and the maximum Is within die range of prision correcckmaltnits maximum period.

Question No. 9:
The accused was found guilty of grave oral defamation in sixteen (16) Informations which were tried jointly
and was sentenced in one decision to suffer In each case a prison term of one (1) year and one (1) day to one (1)
year and eight (8) months of prision correccioncd. Within the period to appeal, he filed an application for probation
under the Probation Law of 1976, as amended. Could he possibly qualify for probation?

Answer:

Yes. In Francisco vs. Court of Appeals, 243 SCRA 384, the Supreme Court held that in
case of one decision imposing multiple prison terms, the totality of the prison terms should
not be taken into account for the purposes of determining the eligibility of the accused for
the probation. The law uses the word "maximum term", and not total term. It is enough that
each of the prison terms does not exceed six years. The number of offenses is immaterial for
as long as the penalties imposed, when taken individually and separately, are within the
probationable period.

Question No. 10:


(a) What do you understand by the so-called heinous crimes?

(b) What are the instances when the death penalty could not be imposed, although it
should otherwise ordinarily be meted out?

Answer:
(a) Heinous crimes are those grievous, odious, and hateful offenses and which by
reason of their inherent or manifest wickedness, viciousness, atrocity, and perversity, are
repugnant and outrageous to the common standards and norms of decency and morality in a
j ust, civilized and ordered society. They are punishable by reclusion perpetua or life
imprisonment to death. (WHEREAS CLAUSE, RA 7659)

(b) 1. When the guilty party is below 18 years of age


at the time of the commission of the crime or when the offender is more than
70 years of age.

2. When upon appeal or automatic review of the case by the Supreme Court, the
required majorityvoteisnot obtained for the imposition of the penalty, in which
case the penalty shall be reclusion perpetua.

Question No. 11:


During a town fiesta. A, the chief of police, permitted B, a detention prisoner and his
compadre, to leave the munici pal jail and entertain visitors in his house from 10:00 a.m. to 8:00 p.m. B
returned to the municipal jail at 8:30 p.m.

Was there any crime committed by A?


Answer:
Yes, A committed the crime of infidelity in the custody of a prisoner. Since B is a detention
prisoner. As Chief of Police, A has custody over B. Even if B returned to the municipal jail at 8:30 p.m.
A, as custodian of the prisoner, has maliciously failed to perform the duties of his office, and when he
permits said prisoner to obtain a relaxation of his imprisonment, he consents to the prisoner escaping
the punishment of being deprived of his liberty which can be considered real and actual evasion of
service under Article 223 of the Revised Penal Code (People vs. Leon Bandino, 29 Phil 459).

Alternative Answer:
No crime was committed by the Chief of Police. It was only an act of leniency or laxity in the
performance of his duty and not in excess of his duty (People vs. Evangelista (CA) 38
O.G. 158).

QuestionNo. 12:
A was charged in an information with the crime of grave oral defamation but after trial, the court found
him guilty only of the offense of simple slander. He filed a motion for reconsideration contending that, under the
law, the crime of simple slander would have prescribed in two months from commission, and since the
information against him was filed more than four months after the alleged commission of the crime, the same
had already prescribed.

The Solicitor General opposed the motion on two grounds: first, in determining the prescriptive period, the
nature of the offense charged in the information should be considered, not the crime proved; second, assuming
that the offense had already prescribed, the defense was waived by the failure of A to raise it in a motion to
quash.

Resolve the motion for reconsideration.

Answer:

The motion for reconsideration should be granted.


a) The accused cannot be convicted of the offense of simple slander although it is
necessarily included in the offense of grave slander charged in the information, because, the
lesser offense had already prescribed at the time the information was filed (People vs.
Rarang, (CA) 62 O.G. 6468; Francisco vs. CA, 122 SCRA 538; Magat vs. People, 201SCRA 21)
otherwise prosecutors can easily circumvent the rule of prescription in light offenses by the
simple expediment of filing a graver offense which includes such light offense.

b) While the general rule is the failure of an accused to file a motion to quash before he
pleads to the complaint or information, shall be deemed a waiver of the grounds of a motion
to quash, the exceptions to this are: (1) no offense was charged in the complaint or
information; (2) lack ofj urisdiction;
(2) extinction of the offense or penalty; and (4) double jeopardy. Since the ground invoked
by the accused in his motion for reconsideration is extinction of the offense, then it can be
raised even after plea. In fact, it may even be invoked on appeal (People vs. Balagtas)

Question No. 13:


The accused opened a saving account with Bank A with an initial deposit of P2.000.00. A few
days later, he deposited in the savings account a Bank B check for PI0,000.00 drawn and endorsed
purportedly by C. Ten days later, he withdrew P 10,000.00 from his savings account. C complained
to Bank B when the check was deducted from his account. Two days thereafter, the accused
deposited another Bank B check of P 10,000.00 signed and endorsed allegedly by C. A week later,
the accused went to Bank A to withdraw P 10,000.00. While withdrawing the amount, he was
arrested.

Convicted under two informations of estafa and attempted estafa both through falsification of
commercial documents, he set up the defenses that, except for the showing that the signature of C
had been forged, no further evidence was presented to establish (a) that he was the forger of the
signature of C nor (b), that as to the second charge, C suffered any damage.

Rule on the defense

Answer:

The defense Is not tenable; (a) the possessor of a falsified document Is presumed to be the author
of the falsification [People vs. Sendaydiego, 81 SCRA 120; KohTlek vs. People, et aL. Dec. 21, 19901; (b) In
estafa. a mere disturbance of property rights, even if temporary, would be sufficient to cause damage.
Moreover, in a crime of falsification of a commercial document, damage or intent to cause damage is
not necessary because the principal thing punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed.

Question No. 14:


A, a government emptoyee, was administratively charged with immorality for having an affair with B, a co-
employee in the same office who believed him to be single. To exculpate himself. A testified that he was single
and was willing to manyB. He induced C to testify and C did testify that B was single. The truth, however, was
that Ahad earlier married D, now a neighbor of C.

Is A guilty of perjury? Are A and C guilty of subordination of perjury?

Answer:
No. A is not guilty of penury because the willful falsehood asserted by him is not material to the
charge of immorality. Whether A is single or married, the charge of immorality against him as a
government employee could proceed or prosper. In other words, A's civil status is not a defense to the
charge of immorality, hence, not a material matter that could influence the charge.

There is no crime of subornation of perjury. The crime is now treated as plain perjury with the one
inducing another as the principal inducement, and the latter, as principal by direct participation {People
us. PodoL 66 Phil. 365). Since in this case A cannot be held liable for perjury, the matter that he
testified to being immaterial, he cannot therefore be held responsible as a principal by inducement
when he induced C to testify on his status. Consequently. C is not liable as principal by direct
participation in perjury having testified on matters not material to an administrative case.

Question No. 15:

A and B, conspiring with each other, kidnapped C and detained him. The duo then called up
C's wife informing her that they had her husband and would release him only if she paid a ransom
in the amount of P10,000,000.00, and that, if she were to fail, they would kill him. The next day, C,
who had just recovered from an illness had a relapse. Fearing he might die if not treated at once by
a doctor, A and B released C during the early morning of the third day of detention.

Charged with kidnapping and serious illegal detention provided in Article 267, RPC, A andB
filed a petition for bail. They contended that since they had voluntarily released C within three days
from commencement of the detention, without having been paid any amount of the ransom
demanded and before the institution of criminal proceedings against them, the crime committed
was only slight illegal detention prescribed in Article 268, RPC.

After hearing, the trial court found the evidence of guilt to be strong and therefore denied the
petition for bail.

On appeal, the only issue was: Was the crime committed kidnapping and serious detention or
slight illegal detention?

Decide.
Answer:
The crime committed by A and B is kidnapping and serious illegal detention because
they made a demand for ransom and threatened to kill C if the latter's wife did not pay the
same. Without the demand for ransom, the crime could have been slight illegal detention
only.

The contention of A and B that they had voluntary released C within three days from
the commencement of the detention is immaterial as they are charged with a crime where
the penalty prescribed is death (Asis to vs. San Diego, 10 SCRA 673).

They were properly denied bail because the trial court found that the evidence of guilt
in the information for kidnapping and serious illegal detention is strong.

Question No, 16:

A, who is the private complainant in a murder case pending before a Regional Trial Court judge, gave a
judge a Christmas gift, consisting of big basket of assorted canned goods and bottles of expensive wines, easily
worth P10.000.00. The judge accepted the gift knowing it came from A.

What crime or crimes, if any, were committed?

Answer:

The judge committed the crime of indirect bribery under Art. 211 of the Revised Penal Code. The
gift was offered to the judge by reason of his office. In addition, the judge will be liable for the violation
ofP.D. 46 which punishes the receiving of gifts by pubic officials and employees on occasions like
Christmas.

Question No, 17:


A, a young housewife, and B, her paramour, conspired to kill C, her husband, to whom she was lawfully
married. A and B bought pancit and mixed it with poison. A gave the food with poison to C, but before C could
eat it, D, her illegitimate father, and E, her legitimate son. arrtved. C, D and E shared the food In the presence
of A who merely watched them eating. C, D and E died because of having partaken of the poisoned food.

What crime or crimes did A and B commit?


Answer:
A committed the crime of multiple parricide for the killing of C. her lawful husband, D, her
illegitimate father, and E, her legitimate son. All these killings constitute parricide under Article246of
the Revised Penal Code because of her relationship with the victims.

B committed the crime of murder as a co-conspirator of A in the killing of C because the killing
was carried out by means of poison (Art 248, par. 3, Revised Penal Code). But for feloniously causing
the death of D and E. B committed two counts of homicide. The plan was only to kill C.

Question No. 18:


During a town fiesta, a free-for-all fight erupted in the public plaza. As a result of the
tumultuous affray, A sustained one fatal and three superficial stab wounds. He died a day after. B.
C. D and E were proven to be participants in the "rumble", each using a knife against A, but it
could not be ascertained who. among them, inflicted the mortal injury.

Who shall be held criminally liable for the death of A and


for what?

Answer:

B, C. D. and E being participants in the tumultuous affray and having been proven to
have inflicted serious physical injuries, or at least, employed violence upon A. are criminally
liable for the latter's death. And because it cannot be ascertained who among them inflicted
the mortal injury on A, there being a free-for-all fight or tumultuous affray, B, C, D. and E
are all liable for the crime of death caused in a tumultuous affray under Article 251 of the
Revised Penal Code.

Question No. 19:

After raping the complainant in her house, the accused struck a match to smoke a cigarette
before departing from the scene. The brief light from the match allowed him to notice a watch in
her wrist. He demanded that she hand over the watch. When she refused, he forcibly grabbed it
from her. The accused was charged with and convicted of the special complex crime of robbery with
rape.

Was the court correct?

Answer:

No, the court erred in convicting the accused of the special complex crime of robbery
with rape. The accused should instead be held liable for two (2) separate crimes of robbery
and rape, since the primary intent or objective of the accused was only to rape the
complainant, and his commission of the robbery was merely an afterthought. The robbery
must precede the rape, in order to give rise to the special complex crime for which the court
convicted the accused.

Question No. 20:

A Is charged with the crime defined in Section 3(e) erf the Anti-Graft and Corrupt Practices Act m an
information that reads:

"That from 01 to 30 January 1995, in the City of Pasig and within the jurisdiction of this Honorable Court,
the accused, being then employed in the Office of the District Engineer, Department of Public Works and
Highways and in the discharge of his official administrative functions, did then and there willfully and
unlawfully work for and facilitate the approval of B’s claim for the payment of the price of his land which the
government had expropriated, and after the claim was approved, the accused gave B only PI,000.00 of the
approved claim ofP5,000.00and willfully and unlawfully appropriated for himself the balance of P4,000.00, thus
causing undue injury to B and the Government."

A has filed a motion to quash the information, contending that it does not charge an offense. Is he
correct?

Answer;
Yes, the contention of A is correct. The information failed to allege that the undue lnj ury to B and
the government was caused by the accused's manifest partiality, evident bad faith, or gross inexcusable
negligence, which are necessary elements of the offense charged, i.e., violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act. The accused is employed in the Office of the District Engineer of
the DPWH, which has nothing to do with the determination and fixing of the price of the land
expropriated, and forwhtch expropriated land the Government is legally obligated to pay. There is no
allegation in the Information that the land was overpriced or that the payment of the amount was
disadvantageous to the Government. It appears that the charge was solely based on the accused having
followed up the payment for B's land which the Government has already appropriated, and that the
accused eventually withheld for himself from the price of the said land, the amount of P4.000.00 for his
services. No violation of Section 3(e) of the Anti-Graft and Corrupt Act appears. At most, the accused
should be merely charged administratively

Alternative Answers:

1. Yes, A is correct in filing a motion to quash the information because Section 3(e) of
Republic Act 3019 applies only to officers and employees of government corporations
charged with the grant of licenses or permits or other concessions, and not to DPWH, which
is not a government corporation.

2. A is not correct. In the case of Mejorda vs. Sandlganbaijan. 151 SCRA 399, which
involves a substantially identical information as the information quoted in the question, the
Supreme Court held that the information was valid. While it is true that the information
quoted in the question, failed to allege evident bad faith, gross inexcusable negligence or
manifest partiality, said information is nevertheless adequate because it averred the three (3)
elements for the violation of Section 3(c) of RA. 3012 when it stated (1) that the accused is a
public officer at the time of the commission of the crime, being employed in the Office of the
District Engineer, DPWH; (2) that the accused caused undue injury to B and the Government,
with the statement that B, the owner of the land, received only P1.000.00 instead of the full
value of P5.000.00; and (3) that in the discharge of A's official administrative functions, he
"did then and there willfully and unlawfully work for and facilitate the approval of his claim
xxx and "willfully and unlawfully appropriate for himself the balance of P4,000.00 x x x". An
information need not employ or use the very words or language of the statute.
It may also use words or language of similar import.

1996 BAR EXAMINATION

Question No. 1:
1) What are the different schools of thought or theories in Criminal Law and describe each briefly.

2) To what theory does our Revised Penal Code belong?

3) Distinguish intent from motive in Criminal Law.

4) May crime be committed without criminal intent?

Answer:

1) There are two schools of thought in Criminal Law, and these are (a) the classical theory, which
simply means that the basis of criminal liabilities is human free will, and the purpose of the penalty is
retribution which must be proportional to the gravity of the offense; and (b) the positivist theory, which
considers man as a social being and his acts are attributable not just to his will but to other forces of
society. As such, punishment is not the solution, as he is not entirely to be blamed; law and
jurisprudence should not be the yardstick in the imposition of sanction, instead the underlying reasons
would be inquired into.
2) We follow the classical school of thought although some provisions of eminently positivist in
tendencies, like punishment of impossible crime, juvenile circumstances, are incorporated in our Code.

3) Motive is the moving power which impels one to action for a definite result; whereas intent is
the purpose to use a particular means to effect such results. Motive is not an essential element of a
felony and need not be proved for purpose of conviction, while intent is an essential element of felonies
by dolo.

4) Yes, a crime may be committed without criminal intent if such is a culpable felony, wherein
intent is substituted by negligence or imprudence, and also in a malum prohibitum, or if an act is
punishable by special law.

Question No. 2:

1) At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio instead,
resulting in the death of the latter. Pedrito, invoking the doctrine of aberratto ictus, claims
exemption from criminal liability.

If you were the judge, how would you decide the case?
2) Jose, Domingo. Manolo, and Fernando, armed with bolos, at about one o'clock in the
morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were
living. While the four were in the process of ransacking Danilo’s house, Fernando, noticing that one
of Danilo’s daughters was trying to get away, ran after her and finally caught up with her in a
thicket somewhat distant from the house. Fernando, before bringing back the daughter to the
house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family.

a) What crime did Jose, Domingo. Manolo and Fernando commit? Explain.

b) Suppose, after the robbery, the four took turns in raping the three
daughters of Danilo inside the latter's house, but before they left, they killed the
whole family to prevent identification, what crime did the four commit? Explain.

c) Under the facts of the case, what aggravating circumstances may be


appreciated against the four? Explain.

Answer:
1) If I were the judge, I will convict Pedrito and find him guilty of the complex crime of
Homicide with Attempted Homicide. The single act of firing at Paulo resulted in the
commission of two felonies, one grave (homicide) and the other less grave (attempted
homicide) thus falling squarely under Art. 48, RPC; hence, the penalty would be for the more
serious crime (homicide) in its maximum period (17 years 4 months and 1 day to 20 years).

Abenatio ictus (mistake in the blow) could not be used as a defense as it is not an
exempting circumstance.’ Pedrito is liable under the principle of Art. 4, RPC. which makes a person
criminally liable for all the natural and logical consequences of his felonious act.

2) (a) Jose, Domingo, and Manolo committed Robbery, while Fernando committed complex
crime of Robbery with Rape. Conspiracy can be inferred from the manner the offenders committed the
robbery but the rape was committed by Fernando at a place “distant from the house” where the robbery
was committed, not in the presence of the other conspirators. Hence, Fernando alone should answer for
the rape, rendering him liable for the special complex crime. [People vs. Cardurta et at, G.R. 108490. 22
June 1995)

b) The crime would be Robbery with Homicide because the killings were by reason (to prevent
identification) and on the occasion of the robbery. The multiple rapes committed and the fact that
several persons were killed (homicide), would be considered as aggravating circumstances. The rapes
are synonymous with ignominy and the additional killing synonymous with cruelty. [People vs. Solis, 182
SCRA: People vs. Plagcu 202 SCRA 531)
c) The aggravating circumstances which may be considered in the premises are:

i) Band because all the four offenders are armed:


il) Noctumity because evidently the offenders took advantage of nighttime;

ill) dwelling: and


iv) Uninhabited place because the house where the crimes were committed was “at a
desolate place" and obviously the offenders took advantage of this circumstance in
committing the crime.

Question No. 3:
1) Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and killed the latter. Aller the
stabbing, he brought his son home. The Chief of Police of the town, accompanied by several policemen, went to
Hilario’s house.

Hilario, upon seeing the approaching policemen, came down from his house to meet them and
voluntarily went with them to the Police Station to be investigated in connection with the killing.
When eventually charged with and convicted of homicide, Hilario, on appeal, faulted the trial court
for not appreciating in his favor the mitigating circumstance of voluntary surrender. Is he entitled
to such a mitigating circumstance? Explain.

2) Pat. Buensuceso, posing as a buyer, approached Ronnie, a suspected drug pusher, and
offered to buy P300.00 worth of shabu. Ronnie then left, came back five minutes later and handed
Pat. Buensuceso an aluminum foil containing the shabu . However, before Pat. Buensuceso was
able to deliver the marked money to Ronnie, the latter spotted a policeman at a distance, whom
Ronnie knew to be connected with the Narcotics Command of the Police. Upon seeing the latter,
Ronnie ran away but was arrested thirty minutes later by other policemen who pursued him.

Under the circumstances, would you consider the crime of sale of a prohibited drug already
consummated? Explain.

Answer:
1) Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The
crux of the issue is whether the fact that Hilario went home after the incident, but came
down and met the police officers and went with them is considered “voluntary surrender."
The voluntariness of surrender is tested if the same is spontaneous showing the intent of the
accused to submit himself unconditionally to the authorities. This must be either (a) because
he acknowledges his guilt, or
(b) because he wishes to save them the trouble and expenses necessarily incurred in his
search and capture. (Reyes’ Commentaries, p. 303). Thus, the act of the accused in hiding
after commission of the crime, but voluntarily went with the policemen who had gone to his
hiding place to investigate, was held to be mitigating circumstance.[People vs. Dayrit, cited
in Reyes’ Commentaries, p. 299)

2) Yes. the sale of prohibited drug is already consummated although the marked money was not
yet delivered. When Ronnie handed the aluminum foil containing the shabu to Pat. Buensuceso
pursuant to their agreed sale, the crime was consummated. Payment of the consideration is not an
clement of requisite of the crime. If ever, the marked money Is only evidentiary to strengthen the case
of the prosecution.

Question No. 4:
1) Alexander, an escaped convict, ran amuck on board a Superlines Bus bound for Manila from Bicol
and killed ten (10) persons. Terrified by the incident, Carol and Benjamin who are passengers of the bus,
jumped out of the window and while lying unconscious after hitting the pavement of the road, were ran over
and crushed to death by a fast moving Desert Fox bus tailing the Superlines Bus.
Can Alexander be held liable for the death of Carol and Benjamin although he was completely unaware
that the two jumped out of the bus? Explain.

2) Fidel and Fred harbored a long standing grudge against Jorge who refused to many their sister Loma,
after the latter got pregnant by Jorge. After weeks of surveillance, they finally cornered Jorge in Ermita, Manila,
when the latter was walking home late at might. Fidel and Fred forcibly brought Jorge to Zambales where they
kept him hog-tied in a small nipa house located in the middle of a rice field. Two days later, they killed Joige
and dumped his body into the river.

What crime or crimes did Fidel and Fred commit? Explain.

Answer:
1) Yes, Alexander can be held liable for the death of Carol and Benjamin because of felonious act
of running was the proximate cause of the victim’s death. The rule is that when a person, by a felonious
act, generates in the mind of another a sense of imminent danger, prompting the latter to escape from
or avoid such danger and in the process, sustains injuries or dies, the person committing the felonious
act is responsible for such injuries or death. (C7.S. os. Valdez. 41 Phil. 1497; People vs. Apra. 27 SCRA
1037.)

Fidel and Fred committed the crime of Murder under Art. 248, RPC. the killing being qualified by
evident premedi tation. This is due to the long standing grudge entertained by the two
accused occasioned by the victim’s refusal to marry their sister after impregnating her.

In People vs. Alfeche, 219 SCRA 85, the intention of the accused is determinative of the
crime committed. Where the intention is to kill the victim and the latter is forcibly taken to
another place and later killed, it is murder. There is no indication that the offenders
intended to deprive the victim of his liberty. Whereas, if the victim is kidnapped, and taken
to another situs and killed as an afterthought, it is kidnapping with homicide under Art. 267,
RPC.

Question No. 5:
Elizabeth is the municipal treasurer of Masinloc, Zam- bales. On January 10, 1994, she
received, as municipal treasurer, from the Department of Public Works and Highways, the amount
of P 100,000.00 known as the fund for construction, rehabilitation, betterment, and improvement
(CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project
undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted
while the concreting of Barangay Phanix Road remained unfinished, a representative of the
Commission on Audit conducted a spot audit of Elizabeth who failed to account for the P
100.000.00 CRBI fund. Elizabeth, who was charged with malversation of public funds, was
acquitted by the Sandiganbayan of that- charge but was nevertheless convicted, in the same
criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was
erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law
or ordinance appropriating the said amount for any specific purpose. The absence of such law or
ordinance was, in fact, established.

Is the contention of Elizabeth legally tenable? Explain.

Answer:

Elizabeth’s contention that her conviction for illegal use of public funds (technical
malversation) was erroneous, is legally tenable because she was charged for malversation of public
funds under Art. 217 of the Revised Penal Code but was convicted for illegal use of public funds which
is defined and punished under Art. 220 of said Code. A public officer charged with malversation may
not be validly convicted of illegal use of public funds (technical malversation) because the latter crime
is not necessarily included nor does it necessarily include the crime of malversation. The
Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court
and order the filing of the proper Information. [Panmgao vs. Sandiganbayan. 197 SCRA 173.) From the
facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public
purpose. As a matter of fact, the problem categorically states that “The absence of such law or
ordinance was, in fact, established." So, procedurally and substantially, the San- diganbayan’s decision
suffers from serious infirmity.

Question No. 6:
1) A security guard, upon seeing a man scale the wall of a factory compound which he was guarding,
shot and killed the latter. Upon investigation by the police who thereafter arrived at the scene of the shooting, it
was discovered that the victim was unarmed. When prosecuted for homicide, the security guard claimed that
he merely acted in self-defense of property and in the performance of his duty as a security guard.

If you were the judge, would you convict him of homicide? Explain.

2) Joselito married Ramona in July, 1995, only to learn later on that Ramona was previously married to
David, from whom Ramona had been separated for more than ten years. Believing that his marriage to
Ramona was an absolute nullity, Joselito contracted a subsequent marriage with Ana- belle.

Can Joselito be prosecuted for bigamy? Explain.

Answer:

Yes, I would convict the security guard for Homicide if I were the judge, because his claim of
having acted in defense of property and in performance of a duly cannot fully be Justified. Even
assuming that the victim was scaling the wall of the factory compound to commit a crime inside the
same, shooting him is never justifiable, even admitting that such act is considered unlawful
aggression on property rights. In People us. Naruaes, 121 SCRA 329, a person is justified to
defend his property rights, but all the elements of self-defense under Art. 11, must be
present. In the instant case, Just like in Narvaes, the second element (reasonable necessity
of the means employed) is absent. Hence, he should be convicted of homicide but entitled to
incomplete self-defense.

1) Yes, Joselito can be prosecuted for bigamy for his subsequent marriage with Anabelle
even though his marriage with Ramona was an absolute nullity.

Despite the nullity of the first marriage, Joselito should have filed a case of dissolution
of such marriage under Art. 40, Family Code, before contracting a second marriage with
Anabelle.

Question No. 7:
1) The accused was convicted under B.P. Big. 22 for having issued several checks which were
dishonored by the drawee bank on their due date because the accused closed her account after the
issuance of checks. On appeal, she argued that she could not be convicted under B.P. Big. 22 by
reason of the closing of her account because said law applies solely to checks dishonored by reason
of insufficiency of funds and that at the time she issued the checks concerned, she had adequate
funds in the bank. While she admits that she may be held liable for estafa under Article 215 of the
Revised Penal Code, she cannot however be found guilty of having violated B.P. Big. 22.

Is her contention correct? Explain.


Flora, who was engaged in the purchase and sale of jeweliy, was prosecuted for the violation
of P.D. 1612, otherwise known as the Anti-Fencing Law, for having been found to be in possession
of recently stolen jewelry valued at P 100,000.00 at her jeweliy shop at Zapote Road, Las Piftas,
Metro Manila. She testified during the trial that she merely bought the same from one named
Cecilino and even produced a receipt covering the sale. Cecilino, in the past, used to deliver to her
jewelries for sale but is presently nowhere to be found. Convicted by the trial court forvlolatlon of the Anti-
Fencing Law, she argued for her acquittal on appeal, contending that the prosecution failed to prove that she
knew or should have known that the jewelries recovered from her were the proceeds of the crime of robbery or
theft.

Is her defense well-taken? Explain.

Answer:

1) No, the contention of the accused is not correct. As long as the checks issued were issued to
apply on account or for value, and was dishonored upon presentation for payment to the drawee
bankfor lack of insufficient funds on their due date, such act falls within the ambit of B.P. Big. 22. Said
law expressly punishes any person who may have insufficient funds in the drawee bank when he issues
the check, but fails to keep sufficient funds to cover the full amount of the check when presented to
the drawee bank within ninety (90) days from the date appearing thereon.

2) No, Flora’s defense is not well-taken because mere possession of any article of value which has
been the subject of theft or robbery shall be prima facie evidence of fencing (P.D.No. 1612). The burden
is upon the accused to prove that she acquired the Jewelry legitimately. Her defense of having bought
the jewelry from someone whose whereabouts is unknown, does not overcome the presumption of
fencing against her (Pamtntuan vs People. G.R. 111426, 11 July 1994). Buying personal property puts
the buyer on caveat because of the phrases that he should have known or ought to know that it is the
proceed from robbery or theft. Besides, she should have followed the administrative procedure under
the decree that of getting a clearance from the authorities in case the dealer is unlicenced, in order to
escape liability.

Question No, 8:

1) Edgardo induced his friend Vicente, in consideration of money, to kidnap a girl he is courting so that he
may succeed in raping her and eventually making her accede to many him. Vicente asked for more money
which Edgardo failed to put up. Angered because Edgardo did not put up the money he required, he reported.
Edgardo to the police.

May Edgardo be charged with attempted kidnapping? Explain.

2) Five robbers robbed, one after the other five houses occupied by different families located inside
a compound enclosed by a six-feet high hollow block fence.

How many robberies did the five commit? Explain.

Answer:

1) No, Edgardo may not be charged with attempted kidnapping inasmuch as no overt act
to kidnap or restrain the liberty of the girl had been commenced. At most, what Edgardo has
done in the premises was a proposal to Vicente to kidnap the girl, which is only a preparatory
act and not an overt act. The attempt to commit a felony commences with the commission of
overt act, not preparatory act. Proposal to commit kidnapping is not a crime.

2) The offenders committed only one robbery in the eyes of the law because when they
entered the compound, they were impelled only by a single indivisible criminal resolution to
commit a robbery as they were not aware that there were five families inside said compound,
considering that the same was enclosed by a six-feet high hollow-block fence. The series of
robbery committed in the same compound at about the same time constitutes one continued
crime, motivated by one criminal impulse.

Question No. 9:
Vicente hacked Anacleto with a bolo but the latter was able to parry it with his hand, causing
upon him a two-inch wound on his right palm. Vicente was not able to hack Anacleto further
because three policemen arrived and threatened to shoot Vicente if he did not drop his bolo. Vicente
was accordingly charged by the police at the prosecutor’s office for attempted homicide. Twenty-five
days later, while the preliminary investigation was in progress, Anacleto was rushed to the hospital
because of symptoms of tetanus infection on the two-inch wound inflicted by Vicente. Anacleto died
the following day.

Can Vicente be eventually charged with homicide for the death of Anacleto? Explain.

Answer:

Yes, Vicente may be charged of homicide for the death of Anacleto, unless the tetanus infection
which developed twenty five days later, was brought about by an efficient supervening cause. Vicente’s
felonious act of causing a two- inch wound on Anacleto’s right palm may still be regarded as the
proximate cause of the latter’s death because without such wound, no tetanus infection could develop
from the victim’s right palm, and without such tetanus infection the victim would not have died with
it.

Question No. 10:

On March 31, 1995, Orpheus Financing Corporation received from Maricar the sum of P500.000.00 as
money market placement for sixty days at fifteen (15) per cent interest, and the President of said Corporation
issued a check covering the amount including the interest due thereon, postdated May 30, 1995. On the
maturity date, however, Orpheus Financing Corporation failed to deliver back Mail- car's money placement with
the corresponding interest earned, notwithstanding repeated demands upon said Corporation to comply with
its commitment.

Did the President of Orpheus Financing Corporation incur any criminal liability for estafa for reason of the
nonpayment of the money market placement? Explain.

Answer:

No, the President of the financing corporation does not incur criminal liability for estafa because a
money market transaction partakes of the nature of a loan, such that nonpayment thereof would not
give rise to estafa through misappropriation or conversion. In money market placement, there is
transfer of ownership of the money to be invested and therefore the liability for its return is civil in
nature [Perez vs. Court of Appeals. 127 SCRA636; Sebrenovs. Court of Appeals et aL, G.R. 84096, 26
Jan 95).

Question No. 11:

Upon a laboratory examination of the fish seized by the police and agents of the Fisheries
Commission, it was indubitably determined that the fish they were selling were caught with the use
of explosives. Accordingly, the three vendors were criminally charged with the violation of Section
33 of P.D. 704 which makes it unlawful for any person to knowingly possess, deal in, or sell for
profit any fish which have been illegally caught. During the trial, the three vendors claimed that
they bought the fish from a fishing boat which they duly identified. The prosecution however
claimed that the three vendors should nevertheless be held liable for the offense as they were the
ones caught in possession of the fish illegally caught.

On the basis of the above facts, if you were the judge, would you convict the three fish
vendors? Explain.

Answer:

No, I would not convict the three fish vendors if I were the judge. Mere possession of
such fish without knowledge of the fact that the same were caught with the use of explosives
does not by itself render the seller-possessor criminally liable under P.D. 704. Although the
act penalized in said Decree may be a malum prohibitum, the law punishes the possession,
dealing in or selling of such fish only when “knowingly" done that the fish were caught with
the use of explosives; hence criminal intent is essential. The claim by the fish vendors that
they only bought the fish from fishing boats which they “duly identified", renders their
possession of such fish innocent unless the prosecution could prove that they have
knowledge that explosives were used in catching such fish, and the accused had knowledge
thereof.

Question No. 12:

The complainant, an eighteen-year old mental retardate with an intellectual capacity between
the ages of nine and twelve years, when asked during the trial how she felt when she was raped by
the accused, replied “Masarap, it gave me much pleasure."

With the claim of the accused that the complainant consented for a fee to the sexual intercourse, and with
the foregoing answer of the complainant, would you convict the accused of rape if you were the Judge trying the
case? Explain.

Answer:

Yes, I would convict the accused of rape. Since the victim is a mental retardate with an
intellectual capacity of a child less than 12 years old, she is legally incapable of giving a valid consent to
the sexual intercourse. The sexual intercourse is tantamount to a statutory rape because the level of
intelligence is that of a child less than twelve years of age. Where the victim of rape is a mental
retardate, violence or intimidation is not essential to constitute rape. (People vs. Ttimor, G.R. 106541-
42,31 Mar 95) As a matter of fact, RA No. 7659, the Heinous Crimes Law, amended Art. 335, RPC, by
adding the phrase "or is demented.”

Question No. 13:

Sisenando purchased the share of the stockholders of Estrella Corporation in two installments, making
him the majority stockholder thereof and eventually, its president. Because the stockholders who sold their
stocks failed to comply with their warranties attendant to the sale., Sisenando withheld payment of the second
installment due on the shares and deposited the money in escrow instead, subject to release once said
stockholders comply with their warranties. The stockholders concerned, in turn, rescinded the sale in question
and removed Sisenando from the Presidency of the Estrella Corporation. Sisenando then filed a verified
complaint for damages against said stockholders in his capacity as president and principal stockholder of
Estrella Corporation. In retaliation, the stockholders concerned, after petitioning the Securities and Exchange
Commission to declare the rescission valid, further filed a criminal case for peijuiy against Sisenando, claiming
that the latter peijured himself when he stated under oath in the verification of his complaint for damages that
he is the President of the Estrella Corporation when in fact he had already been removed as such.

Under the facts of the case, could Sisenando be held liable for perjury? Explain.

Answer:

No, Sisenando may not be held liable for peijury because it cannot be reasonably
maintained that he willfully and deliberately made an assertion of a falsehood when he
alleged in the complaint that he is the President of the Corporation. Obviously, he made the
allegation on the premise that his removal from the presidency is not valid and that is
precisely the issue brought about by his complaint to the SEC. It is a fact that Sisenando has
been the President of the corporation and it is from that position that the stockholders
concerned purportedly removed him, whereupon he filed the complaint questioning his
removal. There is no willful and deliberate assertion of a falsehood which is a requisite of
peijury.

Question No. 14:


A chief of police of a municipality, believing in good faith that a prisoner serving a ten-day
sentence in the municipal Jail, would not escape, allowed said prisoner to sleep at the latter’s
house because the municipal jail was so congested and there was no bed space available.
Accordingly, the prisoner went home to sleep every night but returned to jail early each morning,
until the ten-day sentence had been fully served.

Did the Chief of Police commit any crime? Explain.

Answer:

The Chief of Police is guilty of violation of Art. 223, RPC, consenting or conniving to
evasion, the elements of which are (a) he is a public officer, (b) he is in charge or custody of a
prisoner, detention or prisoner by final judgment, (c) that the prisoner escaped, and (d) there
must be connivance.

Relaxation of a prisoner is considered infidelity, thus making the penalty ineffectual;


although the convict may not have fled (US us. Bandlno, 9 Phil. 459) it is still violative of
the provision. It also includes a case when the guard allowed the prisoner, who is serving a
six-day sentence in the municipal jail, to sleep in his house and eat there (People vs.
Revilla[).

Question No, 15:

Pia. a bold actress living on top floor of a plush condominium in Makati City sunbathed naked at its
penthouse every Sunday morning. She was unaware that the business executives holding oifice at the
adjoining tall buildings reported to office every Sunday morning and, with the use of powerful binoculars, kept
on gazing at her while she sunbathed. Eventually, her sunbathing became the talk of the town.

1) What crime, if any, did Pia commit? Explain.

2) What crime, if any, did the business executives commit? Explain.

Answer:

1) Pia did not commit a crime. The felony closest to making Pia criminally liable is Grave
Scandal, but then such act is not to be considered as highly scandalous and offensive against decency
and good customs. In the first place, it was not done in a public place and within public knowledge or
view. As a matter of fact it was discovered by the executives accidentally and they have to use
binoculars to have public and full view of Pia sunbathing in the nude.

2) The business executives did not commit any crime. Their acts could not be acts of
lasciviousness (as there was no overt lustful act), or slander, as the eventual talk of the town, resulting
from her sunbathing, is not directly imputed to the business executives, and besides such topic is not
intended to defame or put Pia to ridicule.

Question No, 16:

In 1975. Pedro, then a resident of Manila, abandoned his wife and their son, Ricky, who was then only
three years old. Twenty years later, an affray took place in a bar in Olongapo City between Pedro and his
companions, on one hand, and Ricky and his friends, upon the other, without the father and son knowing each
other. Ricky stabbed and killed Pedro in the fight, only to find out, a week later, when his mother arrived from
Manila to visit him in jail, that the man whom he killed was his own father.

1) What crime did Ricky commit? Explain.

2) Suppose Ricky knew before the killing that Pedro is his father, but he nevertheless killed
him out of bitterness for having abandoned him and his mother, what crime did Ricky commit?
Explain.
Answer:

1) Ricky committed parricide because the person killed was his own father, and the law
punishing the crime (Art. 246, RPC) does not require that the crime be “knowingly"
committed. Should Ricky be prosecuted and found guilty of parricide, the penalty to be
imposed is Art. 49 of the Revised Penal Code for Homicide (the crime he intended to commit)
but in its maximum period.

Alternative Answer:

Ricky should be held criminally liable only for homicide not parricide because the
relationship which qualified the killing to parricide is virtually absent for a period of twenty
years already, such that Ricky could not possibly be aware that his adversary was his father.
In other words, the moral basis for imposing the higher penalty for parricide is absent

2) The crime committed should be parricide if Ricky knew before the killing that Pedro
is his father, because the moral basis for punishing the crime already exists. His having acted
out of bitterness for having been abandoned by his father may be considered mitigating.

Question No. 17:

Teresita is the owner of a two-hectare land in Bulacan which she planted to rice and com.
Upon her arrival from a three-month vacation in the United States, she was surprised to discover
that her land had been taken over by Manuel andTeofilo who forcibly evicted her tenant-caretaker
Juliana, after threatening to kill the latter if she would resist their taking of the land. Thereafter,
Manuel and Teofilo plowed, cultivated and appropriated the harvest for themselves to the exclusion
of Teresita.

1) What crime or crimes did Manuel and Teofilo commit? Explain.

2) Suppose Manuel and Teofilo killed Juliana when the latter refused to surrender possession of the
land, what crime or crimes did the two commit? Explain.

Answer:
1) Manuel and Teofilo committed the crime of usurpation of real rights under Art. 312 of the
Revised Penal Code for employing violence against or intimidation of persons. The threats to kill
employed by them in forcibly entering the land is the means of committing the crime and therefore
absorbed in the felony, unless the intimidation resulted in a more serious felony.

2) The crime would still be usurpation of real rights under Art. 312, RPC, even if the said
offenders killed the caretaker because the killing is the “violence against persons" which is the means
for committing the crime and as such, determinative only. However, this gives way to the proviso that
the penalty provided for therein is “in addition to the penalty incurred in the acts of violence (murder
or homicide) executed by them. The crime is similar to a robbery where a killing is committed by
reason thereof, giving rise only to one indivisible offense (People os. Judge Alfeche), plus the fine
mentioned therein.

1995 BAR EXAMINATION

Question No. 1:
1. (a) When was the constitutional proscription against the imposition of the death penalty
lifted?

(b) When is the execution of the death penalty suspended under the Revised Penal Code?
(c) When is the death penalty commuted under the same Code?

2. (a) What are heinous crimes?

(b) Name ten (10) specific heinous crimes.

Answer:

1. (a) The constitutional proscription against the imposition of the death penalty was
lifted with the enactment of RA 7659, otherwise known as the Heinous Crimes Law, which
took effect fifteen (15) days after publication on December
16,1993,thatisonDecember31,1993 {People vs. Martin Simon, 234 SCRA 555).

(b) Death penalty shall not be executed (a) upon a woman within three years after date of
the sentence, (b) while she is pregnant, (c) upon a person over 70 years old (Art. 83 RPC), or
(4) upon a convict who becomes insane after final sentence (Art. 79. RPC).

(c) When the convict reaches the age of 70 years the death sentence is commuted to
reclusion perpetua (Art. 83, RPC).

2. (a) Heinous crimes are those which are punishable by death for being grievous, odious
and hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered society.

(b) The ten specific heinous crimes are:

1 Treason
2. Qualified Piracy
3 Qualified Bribery
4. Parricide
5. Murder
6. Kidnapping and Serious Illegal Detention
7. Robbery with Homicide
8 Destructive Arson
9 Rape committed by two or more persons, or with a deadly weapon or with homicide
10 Plunder

Question No, 2:

Joe and Marcy were married in Batanes in 1955. After two years, Joe left Marcy and settled in Mindanao
where he later met and married Linda on 12 June 1960. The second marriage was registered in the civil registry
of Davao City three days after its celebration. On 10 October 1975 Marcy who remained in Batanes discovered
the marriage of Joe to Linda. On 1 March 1976 Marcy filed a complaint for bigamy against Joe.

The crime of bigamy prescribed in fifteen years computed from the day the crime is discovered by the
offended party, the authorities or their agents. Joe raised the defense of prescription of the crime, more than
fifteen years having elapsed from the celebration of the bigamous marriage up to the filing of Marcy’s complaint.
He contended that the registration of his second marriage in the civil registry of Davao City was constructive
notice to the whole world of the celebration thereof thus binding upon Marcy.

Has the crime of bigamy charged against Joe already prescribed? Discuss fully.

Answer:

No. The prescriptive period for the crime of bigamy is computed from the time the crime was
discovered by the offended party, the authorities or their agents. The principle of constructive notice
which ordinarily applies to land or property disputes should not be applied to the crime of bigamy, as
marriage is not property. Thus when Marcy filed a complaint for bigamy on 7 March 1976, it was
well within the reglamentary period as it was barely a few months from the time of discovery
on 10 October 1975. (Sermonia vs. CA, 233 SCRA 155)

Question No. 3:
In a case for violation of Sec. 8, RA 6425, otherwise known as the Dangerous Drugs Act,
accused Vincent was given the benefit of the mitigating circumstances of voluntary plea of guilt and
drunkenness not otherwise habitual. He was sentenced to suffer a penalty of six (6) years and one
(1) day and to pay a fine of P6.000.00 with the accessory penalties provided by law, plus costs.
Vincent applied for probation. The probation officer favorably recommended his application.

1. If you were the judge, what action will you take on the application? Discuss fully.

2. Suppose that Vincent was convicted of a crime for which he was sentenced to a maximum
penalty of ten (10) years. Under the law, he is not eligible for probation. He seasonably appealed his
conviction. While affirming the judgment of conviction, the appellate court reduced the penalty to a
maximum of four (4) years and four (4) months taking into consideration certain modifying
circumstances. Vincent now applies for probation.

How will you rule on his application? Discuss fully.

Answer:

1. If I were the judge, I will deny the application for probation. The accused is not
entitled to probation as Sec. 9 of the Probation Law. PD NO. 968, as amended, specifically
mentions that those who “are sentenced to serve a maximum term of imprisonment of more
than six years" are not entitled to the benefits of the law.

2. The law and jurisprudence are to the effect that appeal by the accused from a
sentence of conviction forfeits his right to probation.(Sec. 4. PD No. 968, as amended by PD
1990; Bernardo vs. Balagot; Francisco vs. CA; Llamado vs. CA; De la Cruz vs. Judge Callejo.
CA case).

N.B to No. 2

This Is the second consecutive year that this question was asked. It is the sincere belief of the
Committee that there is a need to re-examine the doctrine. Firstly, much as the accused wanted to apply for
probation he is proscribed from doing so as the maximum penalty is NOT PROBATIONABLE. Secondly,
when the maximum penalty was reduced to one which aUows probation it is but fair and j ust to grant him
that right because it is apparent that the trial judge committed an error and for which the accused should
not be made to suffer. Judicial tribunals in this jurisdiction are not only courts of law but also of equity.
Thirdly, the judgment of the appellate court should be considered a new decision as the trial court’s decision
was vacated: hence, he could take advantage of the law when the decision is remanded to the trial court for
execution (Please see Dissenting opinion in Francisco us.
CA).

It is suggested, therefore, that an examinee answering in this tenor should be credited with some
points.

Question No. 4:

1. (a) What is a memorandum check ?


(b) Is a person who issues a memorandum check without sufficient funds necessarily guilty of violating
B.P. Big. 22? Explain.
2. Jane is a money lender. Edmund is a businessman who has been borrowing money from Jane by
rediscounting his personal checks to pay his loans. In March 1989, he borrowed PI00,000.00 from Jane and
issued to her a check for the same amount. The check was dishonored by the drawee bankfor having been
drawn against a closed account. When Edmund was notified of the dishonor of his check he promised to
raise the amount within five days. He failed. Consequently, Jane sued Edmund for violation of the Bouncing
Checks Law (B.P. Big. 22). The defense of Edmund was that he gave the check to Jane to serve as a
memorandum of his indebtedness to her and was not supposed to be encashed.

Is the defense of Edmund valid? Discuss fully.


Answer:

1. (a) A memorandum ch eck is an ordinary check with the word “Memorandum”,


“Memo", or “Mem" written across the face, signifying that the maker or drawer engages to
pay its holder absolutely thus partaking the nature of a promis-1 sory note. It is drawn on a
bank and is a bill of exchange within the purview of Section 185 of the Negotiable Instru-
ments Law. (People vs. Nitafan, 215 SCRA 79)

(b) Yes, a person who issued a memorandum check without sufficient funds is guilty of
violating B.P. Big. 22 as said law covers all checks whether it is an evidence of indebtedness,
or in payment of a pre-existing obligation, or as deposit or guarantee. (People vs. Nitafan)

2. The defense of Edmund is NOT valid. A memorandum check upon presentment is


generally accepted by the bank. It does not matter whether the check is in the nature of a
memorandum as evidence of indebtedness. What the law punishes is the mere issuance of a
bouncing check and not the purpose for which it was issued nor the terms and conditions
relating thereto. The mere act of issuing a worthless check is a malum prohibitum The
understanding that the check will not be presented at the bank but will be redeemed by the
maker when the loan falls due is a mere private arrangement which may not prevail to
exempt it from the penal sanction of B.P. Big. 22. (People vs. Nttafah)

Question No. 5:

1. What are the elements of fencing?


2. a) What is the difference between a fence and an accessory to theft or robbery? Explain.

(b) Is there any similarity between them?

Answer:

1. The elements of fencing are:

(a) a crime of robbery or theft has been committed:

(b) accused, who is not a principal or accomplice in the crime, buys, receives,
possesses, keeps, acquires, conceals, or disposes, or buys and sells, or in any manner deals
in any article, item , object or anything of value, which has been derived from the proceeds
of said crime;

c) the accused knows or should have known that said article, item, object or anything of
value has been derived from the from the proceeds of the crime of robbeiy or theft; and

d) there is, on the part of the accused, intent to gain for himself or for another.

2. a) One difference between a fence and an accessory to theft or robbery is the penalty
involved; a fence is punished as a principal under P.D. No. 1612 and the penalty is higher,
whereas an accessory to robbery or theft under the Revised Penal Code is punished two degrees
lower than the principal, unless he bought or profited from the proceeds of theft or robbery
arising from robbery in Philippine highways under P.D. No. 532 where he is punished as an
accomplice, hence the penalty is one degree lower.

Also, fencing is a malum prohibitum and therefore there is* no need to prove criminal
intent of the accused; this is not so in violations of Revised Penal Code.

(b) Yes, there is a similarity in the sense that all the acts of one who is an
accessory to the crimes of robbery or theft are included in the acts defined as fencing. In
fact, the accessory in the crimes of robbery or theft could be prosecuted as such under
the Revised Penal Code or as a fence under P.D. No. 1612. (Dizon-Pamintuan vs. People.
234 SCRA 63)

Question No. 6:

1. On his way to buy a lotto ticket, a policeman suddenly found himself surrounded by four men. One of
them wrestled the police officer to the ground and disarmed him while the other three companions who
were armed with a hunting knife, an ice pick, and a balisong, repeatedly stabbed him. The
policeman died as a result of the multiple stab wounds inflicted by his assailants.

What crime or crimes were committed? Discuss fully.


2. Pascual operated a rice thresher in Barangay Napnud where he resided. Renato, a resident of
the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often
brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly
resented by Pascual. One afternoon Pascual, and his two sons confronted Renato and his men
who were operating their mobile rice thresher along a feeder road in Napnud. A heated
argument ensued. A barangay captain who was fetched by one of Pascual’s men tried to
appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the
intervention of the barangay captain and hacked him to death.

What crime was committed by Pascual? Discuss fully.

Answer:

1. All the assailants are liable for the crime of murder, qualified by treachery, (which
absorbed abuse of superior strength) as the attack was sudden and unexpected and the victim
was totally defenseless. Conspiracy is obvious from the concerted acts of the assailants.
Direct assault would not complex the crime, as there is no showing that the assailants knew
that the victim was a policeman; even if there was knowledge, the fact is that he was not in
the performance of his official duties, and therefore there is no direct assault.

2. Pascual committed the complex crime of homicide with assault upon a person in
authority (Arts. 148 and 249 in relation to Art. 48. RPC). A barangay chairman, is in law (Art.
152), a person in authority and if he is attacked while in the performance of his official
duties or on the occasion thereof the felony of direct assault is committed.

Art. 48, RPC. on the other hand, provides that if a single act produces two or more grave or less
grave felonies, a complex c.rime is committed. Here, the single act of the offender in hacking the
victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave.

Question No. 7:
Victor, Ricky, Rod and Ronnie went to the store of Mang Pandoy. Victor and Ricky entered the store
while Rod and Ronnie posted themselves at the door. After ordering beer Ricky complained that he was
shortchanged although Mang Pandoy vehemently denied it. Suddenly Ricky whipped out a knife as he
announced “Hold-up ito!" and stabbed Mang Pandoy to death. Rod boxed the store’s salesgirl Lucy to prevent
her from helping Mang Pandoy. When Lucy ran out of the store to seek help from people next door she was
chased by Ronnie. As soon as Ricky had stabbed Mang Pandoy, Victor scooped up the money from the cash
box. Then Victor and Ricky dashed to the street and shouted, “Tumakbo na kayo!” Rod was 14 and Ronnie
was 17. The money and other articles looted from the store of Mang Pandoy were later found in the houses of
Victor and Ricky.

1. Discuss fully the criminal liability of Victor, Ricky, Rod and Ronnie.

2. Are the minors Rod and Ronnie entitled to suspended sentence under The Child and Youth Welfare
Code? Explain.

Answer:
1. All are liable for the special complex crime of robbery with homicide. The acts of Ricky in
stabbing Mang Pandoy to death, of Rod in boxing the salesgirl to prevent her from helping Mang
Pandoy, of Ronnie in chasing the salesgirl to prevent her in seeking help, of Victor in scooping up
money from the cash box, and of Ricky and Victor in dashing to the street and announcing the escape,
are all indicative of conspiracy.

The rule is settled that when homicide takes place as a consequence or on the occasion of a
robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with
homicide, unless the accused tried to prevent the killing {People vs. BaeUo, 224 SCRA 218). Further,
the aggravating circumstance of craft could be assessed against the accused for pretending to be
customers of Mang Pandoy.

Although Rod is only 14years old, his act of boxing Lucy to prevent her from helping
Mang Pandoy is a clear sign of discernment, thus he cannot invoke exemption from criminal
liability under Art. 12, par. 3, RPC. Rod and Ronnie are, however, entitled to two and one
degrees lower, respectively from the penalty of the principal under Art. 68. RPC.

2. No, because the benefits of suspension of sentence is not available where the
youthful offender has been convicted of an offense punishable by life imprisonment or death,
pursuant to P.D. No. 603, Art. 192. The complex crime of robbery with homicide is
punishable by reclusion perpetua to death under Art. 294 (1), RPC (People vs. Galit, 230
SCRA 486).

Question No. 8:
Julio obtained a letter of credit from a local bank in order to import auto tires from Japan. To
secure payment of his letter of credit, Julio executed a trust receipt in favor of the bank. Upon
arrival of the tires, Julio sold them but did not deliver the proceeds to the bank.

Julio was charged with estafa under P.D. No. 115 which makes the violation of a trust receipt
agreement punishable as estafa under Art. 315, par. (1), subpar. (b). of the Revised Penal Code.
Julio contended that P.D. No. 115 was unconstitutional because it violated the Bill of Rights
provision against imprisonment for non-payment of debt.

Rule on the contention of Julio. Discuss fully.

Answer:

Such contention is invalid. A trust receipt arrangement doesn't involve merely a simple loan
transaction but includes likewise a security feature where the creditor bank extends financial
assistance to the debtor-importer in return for the collateral or security title as to the goods or
merchandise being purchased or imported. The title of the bank to the security is the one sought to be
protected and not the loan which is a separate and distinct agreement. What is being penalized under
P.D. No. 115 is the misuse or misappropriation of the goods or proceeds realized from the sale of the
goods, documents or instruments which are being held in trust for the entrustee-banks. In other words,
the law punishes the dishonesty and abuse of confidence in the handling of money or goods to the
prejudice of the other, and hence there is no violation of the right against imprisonment for non-
payment of debt. [People vs. Nitafan. 207 SCRA 725)

Question No. 9:
1. Distinguished entrapment from instigation. Discuss fully.
2. Suspecting that Juan was a drug pusher, SP02 Mercado, leader of the Narcom team, gave Juan a P
100-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SP02 Mercado, Juan went
inside the shopping mall while the officer waited at the comer of the mall. After fifteen minutes, Juan returned
with ten sticks of marijuana cigarettes which he gave to SP02 Mercado who thereupon placed Juan under
arrest and charged him with violation of The Dangerous Drugs Law by selling marijuana cigarettes.

Is Juan guilty of any ofTense punishable under The Dangerous Drugs Act? Discuss fully.

Answer:
1. In instigation, the instigator practically induces the prospective accused into commission of
the offense and himself becomes co-principal. In entrapment, ways and means are resorted to for the
purpose of trapping and capturing the lawbreaker while executing his criminal plan,

2. Juan cannot be charged of any offense punishable under The Dangerous Drugs Act Although
Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion. By providing
the money with which to buy marijuana cigarettes, SP02 Mercado practically induced and prodded
Juan to commit the offense of illegal possession of marijuana. Set against the facts instigation is a valid
defense available to Juan.

Question No. 10:

Homer was convicted of homicide. The trial court appreciated the following modifying circumstances: the
aggravating circumstance of nocturnity and the mitigating circumstances of passion and obfuscation, no
intent to commit so grave a wrong, illiteracy and voluntary surrender. The imposable penalty for
homicide is reclusion temporal the range of which is twelve (12) years and one (1) day to twenty (20)
years.

Taking into account the attendant aggravating and mitigating circumstances, and applying the
Indeterminate Sentence Law, determine the proper penalty to be imposed on the accused.

Answer:

It appears that there is one aggravating circumstance (noctumity), and four mitigating
circumstances (passion and obfuscation, no intent to commit so grave a wrong as that
committed and voluntary surrender). Par. 4, Art. 64 should be applied. Hence there will be
off-setting of modifying circumstances, which will now result in the excess of three
mitigating circumstances. This will therefore justify in reducing the penalty to the minimum
period.

The existence of an aggravating circumstance, albeit there are four aggravating, will not
justify the lowering of the penalty to the next lower degree under paragraph 5 of said Article,
as this is applicable only if THERE IS NO AGGRAVATING CIRCUMSTANCE present.

Since the crime committed is Homicide and the penalty therefor is reclusion temporal,
the MAXIMUM sentence under the Indeterminate Sentence Law should be the minimum of
the penalty, which is 12 years and 1 day to 14 years and 8 months. The MINIMUM penalty
will thus be the penalty next lower in degree, which is prision mayor in its full extent (6
years and 1 day to 12 years).

Ergo, the proper penalty would be 6 years and 1 day, as minimum, to 12 years and 1
day, as maximum. I believe that because of the remaining mitigating circumstances after the
off-setting it would be very logical to impose the minimum of the MINIMUM sentence under
the ISL and the minimum of the MAXIMUM sentence.

Question No. 11:

1. Gavino boxed his wife Alma for refusing to sleep with him. He then violently threw her on the floor and
forced her to have sexual intercourse with him. As a result Alma suffered serious physical injuries.
(a) Can Gavino be charged with rape? Explain.
(b) Can Gavino be charged with serious physical injuries? Explain

(c) Will your answers to (a) and (b) be the same if before the incident Gavino and Alma were legally
separated? Explain.

2. Three policemen conducting routine surveillance of a cogonal area in Antipolo chanced upon Ruben, a
15-year old tricycle driver, on top of Rowena who was known to be a child prostitute. Both were naked from the
waist down and appeared to be enjoying the sexual activity. Ruben was arrested by the policemen despite his
protestations that Rowena enticed him to have sex with her in advance celebration of her twelfth birthday. The
town physician found no semen nor any bleeding on Rowena’s hymen but for a healed scar. Her hymenal
opening easily admitted two Angers showing that no external force had been employed on her.

Is Ruben liable for any offense? Discuss fully.

Answer:

(a) No. A husband cannot be charged with the rape of his wife because of the matrimonial consent which
she gave when she assumed the marriage relation, and the law will not permit her to retract in order to
charge her husband with the offense (Sate vs. Haines, 11 La. Ann. 731 So. 372; 441 RA 837).

(b) Yes. he may be guilty of serious physical injuries. This offense is specially mentioned in Art. 263
(4), paragraph 2 which imposes a higher penalty for the crime of physical injuries in cases where the
offense shall have been committed against any of the persons enumerated in Art 246 (the crime
of parricide).

(c) No. my answer will not be the same.

If Gavino, and Alma were legally separated at the time of the incident, then Gavino
could be held liable for rape.

A legal separation is a separation of the spouses from bed and board [U.S. vs. Johnson 27
Phil. 477, cited in II Reyes, RPC, p. 853, 1981 edition).

In the crime of rape, any crime resulting from the infliction of physical injuries suffered
by the victim on the occasion of the rape, is absorbed by the crime of rape. The injuries
suffered by the victim may, however, be considered in determining the proper penalty which
shall be imposed on the offender. Serious physical injuries cannot be absorbed in rape; it can
be so if the injury is slight.

1. Ruben is liable for rape, even if force or intimidation is not present. The gravamen of the
offense is the carnal knowledge of a woman below twelve years of age (People vs. Dela Cmz,
56 SCRA 84) since the law doesn’t consider the consent voluntary and presumes that a girl
below twelve years old does not and cannot have a will of her own. In People vs. Perez, CA 37
OG 1762, it was held that sexual intercourse with a prostitute below twelve years old is rape.

Similarly, the absence of spermatozoa does not disprove the consummation as the
important consideration is not the emission but the penetration of the female body by the
male organ (People vs. Jose 37 SCRA 450; People vs. Carandang, 52 SCRA 259).

Question No. 12:

Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings.
Knowing him to be “loaded", his friends Jason, Manuel and Dave invited him to poker session at a
rented beach cottage. When he was losing almost all his money which to him was his savings of a
lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal he decided
to take revenge on the three cheats.
Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did,
until they all fell asleep. When Harry saw his companions already sound asleep he hacked all of them to death.
Then he remembered his losses. He rifled through the pockets of his victims and got back all the money he lost.
He then ran away but not before burning the cottage to hide his misdeed. The following day police investigators
found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort.

After preliminary investigation, the Provincial Prosecutor charged Harry with the complex crime of arson
with quadruple homicide and robbery.

Was Harry properly charged? Discuss fully.


Answer:
No, Harry was not properly charged. Harry should have been charged with three (3) separate
crimes, namely: murder, theft and arson.

Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse
of time before he decided to commit the crime and the actual commission of the crime. In addition,
Harry employed means which weakened the defense of Jason, Manuel and Dave. Harry gave them the
liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to cany out his
plan of murder with impunity.

The taking of the money from the victims was a mere afterthought of the killings. Hence, Harry
committed the separate crime of theft and not the complex crime of robbery with homicide. Although
theft was committed against dead persons, it is still legally possible as the offended party are the
estates of the victims.

In burning the cottage to hide his misdeed. Harry became liable for another separate crime, arson.
This act of burning was not necessary for the consummation of the two (2) previous offenses he
committed. The fact that the caretaker died from the blaze did not qualify Harry’s crime into a complex
crime of arson with homicide for there is no such crime.

Hence, Harry was improperly charged with the complex crime of arson with quadruple
homicide and robbery. Harry should have been charged with three (3) separate crimes,
murder, theft and arson.

1994 BAR EXAMINATION

Question No. 1:

1) When is embracing, kissing and touching a girl’s breast considered only unjust vexation instead of
acts of lasciviousness?

2) What is a memorandum check?


3) Is the “bouncing" thereof within the purview of BP Big. 22?

Answer:

1) The acts of embracing, kissing of a woman arising either out of passion or other motive and the
touching of her breast as a mere incident of the embrace without lewd design constitutes merely unjust
vexation (People vs. Ignacio. CAr-G.RNo. 5119-R. September 30, 1950). However, where the kissing,
embracing and the touching of the breast of a woman are done with lewd design, the same constitute
acts of lasciviousness (People vs. Perdval G1lo, 10 SCRA 753).

2) A “Memorandum Check" is an ordinary check, with the word “Memorandum", “Memo" or “Mem"
written across its face, signifying that the maker or drawer engages to pay its holder absolutely thus
partaking the nature of a promissory note. It is drawn on a bank and is a bill of exchange within the
purview of Section 185 of the Negotiable Instruments Law (People vs. Judge David Nitafan. G.R. No.
75954, October 22. 1992).

3) Yes, a memorandum check is covered by Batas Pambansa No. 22 because the law covers any check
whether it is an evidence of indebtedness, or in payment of a pre-existing obligation or as a deposit or
guarantee (People versus Nitafan).

Question No. 2:

1) Distinguish aberratio ictus from error in personae.

2) Distinguish slander by deed from maltreatment.

1) Aberratio ictus or mistake in the blow occurs when a felonious act missed the person
against whom it was directed and hit instead somebody who was not the intended victim.
Error in personae, or mistake in identity occurs when the felonious act was directed at the
person intended, but who turned out to be somebody else. Aberratio ictus brings about at
least two (2) felonious consequence. i.e the attempted felony on the intended victim who was
not hit and the felony on the unintended victim who was hit. A complex crime of the first
form under Art. 48, RPC generally result. In error in personae only one crime is committed.

2) Slander by deed is a crime committed when a person publicly subjects another to an


act intended or calculated to cast dishonor, discredit or contempt upon the latter. Absent the
intent to cast dishonor, discredit, contempt, or insult to the offended party, the crime is only
maltreatment under Art. 266, par. 3, where, by deed, an offender ill-treats another without
causing injury.

Question No. 3:

1) When is there preventive imprisonment?

2) When is the accused credited with the full time of his preventive imprisonment, and when
is he credited with 4/5 thereof?

Answer:

1) There is preventive imprisonment when (a) an offender is detained while the


criminal case against him is being heard, either because the crime committed is a capital
offense and not bailable, or even if the crime committed was bailable, the offender could not
post the required bail for his provisional liberty.

2) An accused is credited with the full time of his preventive imprisonment if he


voluntarily agreed in writing to abide by the rules of the institution imposed upon its
prisoners, provided that:

a) the penalty imposed on him for the crime committed consists of a deprivation
of liberty:
b) he is not disqualified from such credit for being a recidivist, or for having been previously
convicted for two or more times of any crime, or for having failed to surrender
voluntarily for the execution of the sentence upon being so summoned (Art. 29, RPC).

Where the accused however did not agree he would only be credited with 4/5 of the time he had
undergone preventive imprisonment.

Question No, 4:
1) Differentiate reclusion perpetua from life imprisonment.

2) Differentiate delito continuado from a continuing offense.

Answer:
1) Reclusion perpetua is that penalty provided for in the Revised Penal Code for crimes defined in
and penalized therein except for some crimes defined by special laws which impose reclusion perpetua,
such as violations of Republic Act 6425, as amended by Republic Act 7659 or of PD 1860; while life
imprisonment is a penalty usually provided for in special laws. Reclusion perpetua has a duration of
twenty (20) years and one (1) day to forty (40) years under Republic Act 7659, while life imprisonment
has no duration; reclusion perpetua maybe reduced by one ortwo degrees; reclusion perpetuahas accessory
penalties while life imprisonment does not have any accessory penalties (People vs. Baguio. 196 SCRA
459, People vs. Panellos, 205 SCRA 546).

Delito continuado. or continuous crime, is a term used to denote as only one crime a series of
felonious acts arising from a single criminal resolution, not susceptible of division, which are carried
out in the same place and at about the same time, and violating one and the same penal provision. The
acts done must be impelled by one criminal intent or purpose, such that each act merely constitutes a
partial execution of a particular crime, violating one and the same penal provision. It involves a
concurrence of felonious acts violating a common right, a common penal provision, and impelled by a
single criminal impulse (People vs, Ledesma, 73 SCRA 77).

On the other hand, a continuing offense is one whose essential Ingredients took place in more than
one municipality or city, so much so that the criminal prosecution may be instituted and the case tried
in the competent court of any one of such municipality or city.

The term “continued crime" or delito continuado mandates that only one information should be filed
against the offender although a series of felonious acts were performed; the term “continuing crime" is
more pertinently used with reference to the venue where the criminal action may be instituted.

Question No, 5:
Bhey eloped with Scott. Whereupon, Bhey’s father, Robin, and brother, Rustom, went to Scott’s house.
Upon reaching the house, Rustom inquired from Scott about his sister’s whereabouts, while Robin shouted
and threatened to kill Scott. The latter then went downstairs but Rustom held his (Scott’s) waist. Meanwhile
Olive, the elder sister of Scott, carrying her two- month old child, approached Rustom and Scott to pacify them.
Olive attempted to remove Rustom’s hand from Scott’s waist. But Rustom pulled Olive’s hand causing her to
fall over her baby. The baby then died moments later.

Is Rustom criminally liable for the death of the child?

Answer:
Yes, Rustom is criminally liable for the death of the child because his felonious act was the
proximate cause of such death. It was Rustom’s act of pulling Olive’s hand which caused the latter to
fall on her baby. Had it not been for said act of Rustom, which is undoubtedly felonious (at least slight
coercion) there was no cause for Olive to fall over her baby. In short, Rustom’s felonious act is the
cause of the evil caused. Any person performing a felonious act is criminally liable for the direct,
natural and logical consequence thereof although different from what he intended (Art. 4, par. 1. RPC:
People vs. Pugay, et aL, GR No. 74324, Nov. 18, 1988).

Question No, 6:

Tata owns a three-storey building located at No. 3 Herran Street, Paco, Manila. She wanted to construct a
new building but had no money to finance the construction. So, she insured the building for P3,000.000.00.
She then urged Yoboy and Yongsi, for monetary consideration, to bum her building so she could collect the
Insurance proceeds. Yoboy and Yongsi burned the said building resulting to its total loss.

1) What crime did Tata, Yoboy and Yongsi commit?

2) What is their respective criminal liability?

Answer:

1) Tata, Yoboy and Yongsi committed the crime of destructive arson because they collectively
caused the destruction of property by means of fire under the circumstances which exposed to danger
the life or property of others (Art. 320, par. 5, RPC, as amended by RA No. 7659).

2) Tata is a principal by inducement because she directly induced Yoboy and Yongsi. for a price or
monetary consideration, to commit arson which the latter would not have committed were it not for
such reason. Yoboy and Yongsi are principals by direct participation (Art. 17. pars. 21 and 3. RPC).

Question No, 7:

Aldrich was dismissed from his job by his employer. Upon reaching home, his pregnant wife, Carmi,
nagged him about money for her medicines. Depressed by his dismissal and angered by the nagging of his wife,
Aldrich struck Carmi with his fist. She fell to the ground. As a result, she and her unborn baby died.

What crime was committed by Aldrich?


Answer:

Aldrich committed the crime of parricide with unintentional abortion. When Aldrich struck his
wife, Carmi. with his fist, he committed the crime of maltreatment under Art. 266, par. 3 of the
Revised Penal Code. Since Carmi died because of the felonious act of Aldrich, he is criminally
liable of parricide under Art. 246, RPC in relation to Art. 4, par. 1 of the same Code. Since
the unborn baby of Carmi died in the process, but Aldrich had no intention to cause the
abortion of his wife, Aldrich committed unintentional abortion as defined in Art. 257, RPC.
Inasmuch as the single act of Aldrich produced two grave or less grave felonies, he falls
under Art 48, RPC, Le. a complex crime [People vs. Salufran- cia, 159 SCRA 401).

Question No. 8:
Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly
undressed her and tied her legs to the bed. He also burned her face with a lighted cigarrete. Like a
madman, he laughed while raping her.

What aggravating circumstances are present in this case?

Answer:
a) Cruelty, for burning the victim’s face with a lighted cigarrete, thereby deliberately
augmenting the victim’s suffering by acts clearly unnecessary to the rape, while the offender
delighted and enjoyed seeing the victim suffer in pain (People vs. Lucas, 181 SCRA 316).

b) Relationship, because the offended party is a descendant (daughter) of the offender


and considering that the crime is one against chastity.

Question No. 9:
At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street,
Manila. Johnny hit them with a rock injuring Dino at the back. RafTy approached Dino. but
suddenly, Bobby. Steve, Danny and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve,
Danny. Nonoy and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died.

Bobby, Steve, Danny, Nonoy and Johnny were charged with homicide.

1) Is there conspiracy in this case?


2) Can the court appreciate the aggravating circumstances of nighttime and band?

Answer:
1) Yes, there is conspiracy among the offenders, as manifested by their concerted actions against
the victims, demonstrating a common felonious purpose of assaulting the victims. The existence of the
conspiracy can be inferred or deduced from themannerthe offenders acted in commonly attacking Dino
and Raffy with rocks, thereby demonstrating a unity of criminal design to inflict harm on their victims.

2) No, nighttime cannot be appreciated as an aggravating circumstance because there is no


indication that the offenders deliberately sought the cover of darkness to facilitate the commission of
the crime or that they took advantage of nighttime (People vs. De los Reyes, 203 SCRA 707). Besides,
judicial notice can be taken of the fact that Padre Faura Street is well-lighted.

However, band should be considered as the crime was committed by more than three armed
malefactors; in a recent Supreme Court decision, stones or rocks are considered deadly weapons.

Question No. 10:


JP, Aries and Randal planned to kill Elsa, a resident of Barangay Pula, Laurel, Batangas. They asked the
assistance of Ella, who is familiar with the place.

On April 3, 1992, at about 10:00 in the evening, JP, Aries and Randal, all armed with automatic
weapons, went to Barangay Pula. Ella, being the guide, directed her companions to the room in the house of
Elsa. Whereupon, JP, Aries and Randal fired their guns at her room. Fortunately, Elsa was not around as she
attended a prayer meeting that evening in another barangay in Laurel.

JP, et aL, were charged and convicted of attempted murder by the Regional Trial Court at Tanauan,
Batangas.

On appeal to the Court of Appeals, all the accused ascribed to the trial court the sole error of
finding them guilty of attempted murder.

If you were the ponente, how will you decide the appeal?

Answer:

If I were the ponente, I will set aside the judgment convicting the accused of attempted
murder and instead find them guilty of impossible crime under Art. 4, par. 2, RPC, in relation
to Art. 59, RPC. Liability for impossible crime arises not only when the impossibility is legal,
but likewise when it is factual or physical impossibility, as in the case at bar. Elsa’s absence
from the house is a physical impossibility which renders the crime intended inherently
incapable of accomplishment. To convict the accused of attempted murder would make Art.
4, par. 2 practically useless as all circumstances which prevented the consummation of the
offense will be treated as an incident independent of the actor’s will which is an element of
attempted or frustrated felony (Intod vs. CA, 215 SCRA 52).

Question No. 11:


Itos was convicted of an offense penalized by a special law. The penalty prescribed is not less
than six years but not more than twelve years. No modifying circumstance attended the
commission of the crime.

If you were the judge, will you apply the Indeterminate Sentence Law?

If so, how will you apply it?

Answer:

If I were the judge, I will apply the provisions of the Indeterminate Sentence Law, as the
last sentence of Section I Act 4103, specifically provides the application thereof for
violations of special laws.

Under the same provision, the minimum must not be less than the minimum provided
therein (six years and one day) and the maximum shall not be more than the maximum
provided therein, le. twelve years. (People vs. Rosalind Reyes, 186 SCRA 184)

Question No. 12:

Abe, married to Liza, contracted another marriage with Connie in Singapore. Thereafter, Abe and Connie
returned to the Philippines and lived as husband and wife in the hometown of Abe in Calamba, Laguna.

1) Can Abe be prosecuted for bigamy?

2) If not, can he be prosecuted for any other crime?

Answer:

1) No, Abe may not be prosecuted for bigamy since the bigamous marriage was contracted or
solemnized in Singapore, hence such violation is not one of those where the Revised Penal Code, under
Art. 2 thereof, may be appplied extraterritorially. The general rule on territoriality of criminal law
governs the situation.

2) Yes, Abe, together with Connie, may be prosecuted for concubinage under Art. 334 of the
Revised Penal Code for having cohabited as husband and wife. But concubinage being a private crime
requires the sworn complaint of Liza, the offended spouse in accordance with Rule 110 of the Revised
Rules on Criminal Procedure.

Question No. 13:


Paolo was charged with homicide before the Regional Trial Court of Manila. Andrew, a prosecution
witness, testified that he saw Paolo shoot Abby during their heated argument. While the case is still pending,
the City Hall of Manila burned down and the entire records of the case were destroyed. Later, the records were
reconstituted. Andrew was again called to the witness stand. This time he testified that Ids first testimony was
false and the truth was he was abroad when the crime took place.

The judge immediately ordered the prosecution of Andrew for giving a false testimony favorable to the
defendant in a criminal case.

1) Will the case against Andrew prosper?

2) Paolo was acquitted. The decision became final on January 10. 1987. On June 18. 1994 a case of
giving false testimony was filed against Andrew. As his lawyer, what legal step will you take?
Answer:

Yes. For one to be criminally liable under Art. 181. RPC, it is not necessary that the
criminal case where Andrew testified is terminated first. It is not even required of the
prosecution to prove which of the two statements of the witness is false and to prove the
statement to be false by evidence other than the contradictory statements (People vs.
Arazola, 13 Court of Appeals Report. 2nd series, p. 808).

As lawyer of Andrew, I will file a motion to quash the information on the ground of
prescription. The crime of false testimony under Art. 180 has prescribed because Paolo, the
accused in the principal case, was acquitted on January 10, 1987 and therefore the penalty
prescribed for such crime is arresto mayor under Art. 180. par. 4. RPC.

Crimes punishable by arresto mayor prescribes in five (5) years (Art. 90, par. 3. RPC).
But the case against Andrew was filed only on June 18. 1994, whereas the principal criminal
case was decided with finality on January 10, 1987 and, thence the prescriptive period of the
crime commenced to run. From January 10, 1987 to June 18, 1994 is more than five (5)
years.

Question No. 14:

VC, JG, GG and JG conspired to overthrow the Philippine Government. VG was recognized
as the titular head of the conspiracy. Several meetings were held and the plan was finalized. JJ,
bothered by his conscience, confessed to Father Abraham that he, VG, JG and GG have conspired
to overthrow the government. Father Abraham did not report this information to the proper
authorities.

Did Father Abraham commit a crime? If so, what crime was committed? What is his criminal
liability?

Answer:

No, Father Abraham did not commit a crime because the conspiracy involved is one to commit
rebellion, not a conspiracy to commit treason which makes a person criminally liable under Art. 116,
RPC. And even assuming that it will fall as misprision of treason. Father Abraham is exempted from
criminal liability under Art. 12, par. 7, as his failure to report can be considered as due to “insuperable
cause", as this involves the sanctity and inviolability of a confession.

Conspiracy to commit rebellion results in criminal liability to the co-conspirators, but not to a
person who learned of such and did not report to the proper authorities (US vs. Vergara, 3 Phil. 432;
People vs. Atienza, 56 Phil. 353).

Question No. 15:

Linda was convicted by the Sandiganbayan of estafa through falsification of public document. She was
sentenced accordingly and ordered to pay, among others, P5,000.00 representing the balance of the amount
defrauded.

The case reached the Supreme Court which affirmed the judgment of conviction. During the pendency
of Linda’s motion for reconsideration in the said Court, the President extended to her an absolute pardon which
she accepted.

By reason of such pardon, she wrote the Department of Finance requesting that she be restored to her
former post as assistant treasurer, which is still vacant.

The Department ruled that Linda may be reinstated to her former position without the necessity of a
new appointment and directed the City Treasurer to see to it that the sum of P5.000.00 be satisfied.

Claiming that she should not be made to pay P5,000.00, Linda appealed to the Office of the President.
The Office of the President dismissed the appeal and • held that acquittal, not absolute pardon, is the
only ground for reinstatement to one's former position and that the absolute pardon does not exempt
the culprit from payment of civil liability.

IS Linda entitled to reinstatement?

Answer:

No, Linda is not entitled to reinstatement to her former position inasmuch as her
right thereto had been relinquished or forfeited-by reason of her conviction. The absolute
pardon merely extinguished her criminal liability, removed her disqualification, and restored
her eligibility for appointment to that office. She has to re-apply for such position and under
the usual procedure required for a new appointment. Moreover, the pardon does not
extinguish the civil liability arising from the crime. (Monsanto vs. Factoran, Jr., 170 SCRA
191); see Art. 36. RPC)

Question No. 16:

Randy, an NBI agent, was issued by the NBI an armalite rifle (Ml6) and a Smith and Wesson
Revolver, Cal. 38. After a year, the NBI Director made an inspection of all the firearms issued.
Randy, who reported for work that morning, did not show up during the inspection. He went on
absence without leave (AWOL). After two years, he surrendered to the NBI the two firearms issued to
him. He was charged with malversation of government property before the Sandiganbayan.

Randy put up the defense that he did not appropriate the armalite rifle and the revolver for
his own use, that the delay in accounting for them does not constitute conversion and that actually
the firearms were stolen by his friend, Chiting.

Decide the case.

Answer:

Randy is guilty as charged under Art. 217, RPC. He is accountable for the firearms they issued
to him in his official capacity. The failure of Randy to submit the firearms upon demand created the
presumption that he converted them for his own use. Even if there is no direct evidence of misappro
priation, his failure to account for the government property is enough factual basis for a finding of
malversation. Indeed, even his explanation that the guns were stolen is incredible. For if the firearms
were actually stolen, he should have reported the matter immediately to the authorities. (People vs.
Baguiran, 20 SCRA 453; Felicilda vs. Grospe, GR No. 10294, July 3, 1992)

Question No. 17:

On February 3, 1986, Roberto was convicted of arson through reckless imprudence and sentenced to
pay a fine of P15,000.00, with subsidiary imprisonment in case of insolvency By the Regional Trial Court of
Quezon City. On February 10, 1986, he appealed to the Court of Appeals. Several months later, he filed a
motion to withdraw the appeal on the ground that he is applying for probation. On May 7, 1987, the Court of
Appeals granted the motion and considered the appeal withdrawn.

On June 10, 1987, the records of the case were remanded to the trial court. Roberto filed a “Motion for
Probation" praying that execution of his sentence be suspended, and that a probation officer be ordered to
conduct an investigation and to submit a report on his probation.

The judge denied the motion on the ground that pursuant to Presidential Decree No. 1990, which took
effect on July 16,1986, no application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction.

Is the denial of Roberto’s motion correct?

Answer:
Yes. Even if at the time of his conviction Roberto was qualified for probation but that at the
time of his application for probation, he is no longer qualified, he is not entitled to probation. The
qualification for probation must be determined as of the time the application is filed in Court (Bernardo
vs. Judge. etal, GRNo. L86561, Nov. 10, 1992; Edwtn de la Cruz vs. Judge CaUejo, et al, SP-19655,
April 18, 1990, citing Llamado vs. CA, et al., GR No. 84859, June 28. 1989; Bernardo vs. Judge
Balagot, et aL GR 86561, Nov. 10.1992

Question No. 18:

Issa and Bobby, who were first cousins, were married in 1975. In 1993, Bobby was told that
his marriage to Issa was incestous under the law then in force and therefore void ab initio. He
married Caring.

Charged with bigamy, Bobby raised the defense that his first marriage is void ab initio and
therefore, there is no previous marriage to speak of.

Will you sustain Bobby's defense?

Answer:

No, I will not sustain Bobby’s defense. Bobby remarried in 1993, or after the Family
Code took effect on August 3, 1988, and therefore his capacity to many in 1993 shall be
governed by said Code. In Art. 40 of the Family Code, it is mandated that 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. In short, there is a need of a judicial
declaration of such nullity before Bobby may validly remarry (Dorothy Terre vs. Jordan Terre.
211 SCRA6).

Question No. 19:

Gino was appointed Collector of Customs and was assigned at the Ninoy Aquino
International Airport. Gerry, an importer, hosted a dinner for 100 persons at the Westin Philippine
Plaza in honor of Gino,

What are the offense or offenses committed by Gino and Gerry?

Answer:

Both Gino and Gerry are liable for violation of Presidential Decree No. 46, which punishes any
public official or employee who receives, directly or indirectly, and for private persons who give, offer
any gift, present or valuable thing on any occasion, including Christmas, when such gift or valuable
thing is given by reason of his official position, regard less of whether or not the same is for past favor or
favors, or the giver hopes or expects to receive a favor or better treatment in the future. Being an
importer, Gerry reasonably expects future favor from Gino.

Included within the prohibition is the throwing of parties or entertainment in honor of the
official or employee or of his immediate relatives.

Question No, 20:

At about 11:00 in the evening, Dante forced his way inside the house of Mamerto. Jay, Mamerto’s son,
saw Dante and accosted him. Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the
commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered
injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained
injuries that incapacitated him for 25 days.

What crime or crimes did Dante commit?

Answer:
Dante committed qualified trespass to dwelling, frus- tated homicide for the stabbing of Jay,
and less serious physical injuries for the assault on Mamerto.

The crime of qualified trespass to dwelling should not be complexed with frustrated homicide
because when the trespass is committed as a means to commit a more serious offense, trespass to
dwelling is absorbed by the greater crime, and the former constitutes an aggravating circumstance of
dwelling [People us. Abedoza, 53 Phil.788).

Dante committed frustrated homicide for the stabbing of Jay because he had already performed
all the acts of execution which would have produced the intended felony of homicide were it not for
causes independent of the act of Dante. Dante had the intent to kill judging from the weapon used, the
manner of committting the crime and the part of the body stabbed. Dante is guilty of less serious
physical injuries for the wounds sustained by Mamerto. There appears to be no intent to kill because
Dante merely assaulted Mamerto without using the knife.

1993 BAR EXAMINATION

Question No. 1:

B imitated the signature of A, registered owner of a lot, in special power of attorney naming
him (B) as the attorney- in-fact of A On February 13, 1964, B mortgaged the lot to a bank using the
special power of attorney to obtain a loan of P8.500.00. On the same day, both the special power of
attorney and the mortgage contract were duly registered in the Registiy of Deeds. Because of B’s
failure to pay. the bank foreclosed the mortgage and the lot was sold to X in whose name a new title
was issued. In March, 1974, A discovered that the property was already registered in the name of X
because of an ejectment case filed against him by X.

If you were the lawyer of A, with what crime or crimes would you charge B? Explain.

If you were the counsel of B. what would be your defense? Discuss.

Answer:

The crime committed is estafa thru falsification of public document.

My defense will be prescription because the crime was committed in 1964 and almost
twenty nine years had already elapsed since then. Even if we take Falsification and Estafa
individually, they have already prescribed. It is to be noted that when it comes to discovery,
the fact that the crime was discovered in 1964 will be of no moment because the offended
party is considered to have constructive notice on the forgeiy after the Deed of Sale where
his signature had been falsified was registered in the office of the Register of Deeds (Cabral
vs. Pu.no, 70 SCRA 606).

Question No. 2:

Juanito was found guilty of Robbeiy by the RTC of Manila and sentenced to four (4) Years,
two (2) months and one (1) day of prision correctional as minimum to eight (o) years and twenty (20)
days of prision mayor as maximum.

Juanito appealed to the Court of Appeals which found him guilty only of Theft and sentenced him to a
straight penalty of one (1J Year. The decision of the appellate court was promulgated in May, 1993.

Is Juanito entitled to the benefits of the Probation Law which became effective on Jan. 3, 1978? Why?

Suppose the prison term imposed by the RTC in the above example is only two (2) years as minimum
to six (6) years as maximum and Juanito did not appeal. When he applied for probation, it was discovered that
in March, 1960, a Municipal Court has sentenced him to a six-month imprisonment for less serious physical
injuries which he fully served. May his application for probation be granted? Reason out.

Answer:

Juanito is not entitled to probation because the law, as amended, requires the filing of the
application within the period for perfecting an appeal.

He is hot entitled to the Probation Law because Section 9 (c) provides that probation shall not
be extended to those "who have previously been convicted by final judgment of an offense punishable by
imprisonment of not less than one (1) month and one (1) day or a fine of not more than P200.00."

Question No. 3:

Arevalo, a judge who heard a civil case, received gifts from Maricel, the plaintiff therein, but rendered judgment
in favor of Julie, the defendant therein. Who are criminally liable, and for what crime or crimes? Explain.

Answer:

Arevalo, the Judge, is liable for indirect bribery (Art. 210 RPC) and for violation of the Code of
Conduct and Ethical Standard (Sec. 7 (d) RA 6713 and also PD 46).
Maricel is liable for corruption of public officer (Art. 212, RPC and PD 46).

Question No. 4:

Through kickbacks, percentages or commissions and other fraudulent


schemes/conveyances and taking advantage of his position, Andy, a former mayor of a suburban
town, acquired assets amounting to P10 billion which is grossly disproportionate to his lawful
income. Due to his influence and connections and despite knowledge by the authorities of his ill-
gotten wealth, he was charged with the crime of plunder only after twenty (20) years from his defeat
in the last elections he participated in.

May Andy still be held criminally liable? Why?

Can the State still recover the properties and assets that he illegally acquired, the bulk of
which is in the name of his wife and children? Reason out.

Answer:

Andy will not be criminally liable because Section 6 of RA 7080 provides that the
crime punishable under this Act shall prescribe in twenty years and the problem asked
whether Andy can still be charged with the crime of plunder after 20 years.

Can the State still recover? Yes, because Section 6 provides that recovery of
properties unlawfully acquired by public officers from them or their nominees or transferees
shall not be barred by prescription, laches or estoppel.

Question No. 5:

Sometime in December, 1992, retired Lt. Col. Agaton, celebrating the first year of his
compulsory retirement from the Armed Forces of the Philippines, had in his company a fourteen (14)
year-old girl whose parents were killed by the Mt. Pinatubo eruption and being totally orphaned has
been living or fending for herself in the streets in Manila. They were alone in one room in a beach
resort and stayed there for two (2) nights. No sexual intercourse took place between them. Before
they parted, retired Lt. Col. Agaton gave the girl PI,000.00 for her services. She gladly accepted it.

What crime may the retired colonel be charged with, if any? Discuss.

What possible defenses can he interpose? Explain.

Answer:

The retired colonel may be charged with child abuse, in violation of Rep. Act 7610, a law
providing special protection against child abuse, exploitation, and discrimination.

One of the acts of child abuse or exploitation penalized under Article VI of RA 7610 is that of
keeping company of a minor who is ten (10) years or more younger than the offender in a hotel, motel,
beer house, disco joint, pension house, cabaret, sauna or massage parlor, beach resort, and similar
places. Considering that Lt Col. Agaton is a retiree pursuant to a compulsory retirement, while the child
he kept company within a private room in the beach resort, is only 14 years old, there must be an age
difference of more than 10 years between them. This fact plus the circumstance that Lt. Col. Agaton
stayed with the child, a girl, in one room at such beach resort for two nights, and thereafter he gave her
PI,000.00 “for her services", constitutes the very evil punished, among other acts, in said law.

The possible defenses Lt. Col. Agaton may interpose are that the child is related to him by
affinity, or by consanguinity within the fourth degree, or by a bond recognized in law, or local customs
and traditions, or that he was only acting in pursuance of a moral, social, or legal duty (Sec. 10(b), Art.
VI. RA 7610).

Question NO. 6:
As a result of a misunderstanding during a meeting, Joe was mauled by Nestor, Jolan, Reden and
Arthur. He ran towards his house but the four chased and caught him. Thereafter, they tied Joe’s hands at his
back and attacked him. Nestor used a knife; Jolan, a shovel; Arthur, his fists; and Reden, a piece of wood. After
killing Joe, Reden ordered the digging of a grave to bury Joe’s lifeless body. Thereafter, the four (4) left together.
Convicted for the killing of Joe, Arthur now claims that his conviction is erroneous as it was not he who inflicted
the fatal blow.

Would you sustain his claim? Why?

What was the crime committed by the four assailants? Discuss with reasons.

Answer:

No. Arthur’s claim is without merit. The offenders acted in conspiracy in killing the
victim and hence, liable collectively. The act of one is the act of all.

The existence of a conspiracy among the offenders can be clearly deduced or inferred
from the manner they committed the killing, demonstrating a common criminal purpose and
intent. There being a conspiracy, the individual acts of each participant is not considered
because their liability is collective.

The crime committed is murder, qualified by treachery because the offenders, taking
advantage of their superiority in number, rendered the victim defenseless and without any
chance to retaliate, by tying his hands at his back before attacking him. Treachery exists at
least in the second and final stage of the attack, after the offenders caught up with the
victim.

Question No. 7:

Because of a pendency of a labor dispute, two (2) belligerent labor unions had a
confrontation in a picket line during which the President and the Secretary of one union shouted to
the members and officers of the rival union composed of men and women, the following:

“Mga supot, mga walang bayag, mga kabit ng Intsik, mga tuta, mga segunda mano."

Are the President and the Secretary of said union liable for oral defamation/slander?
Explain.

Answer:

No. The President and the Secretary of the Union are not liable for oral defamation or
slander because there is no identity of the offended party. The individual defamed or
slandered was not singled out (People vs. Uy Tioco, 32 Phil. 624).

Question No, 8:

Juan and Petra are officemates. Later, Intimacy developed between them. One day, Juan sent to Petra
a booklet contained in a pay envelope which was securely sealed. The booklet is unquestionably indecent and
highly offensive to morals. Juan was thereafter charged under par. 3 of Art. 201 of the Revised Penal Code, as
amended by P.D. 969, which provides that the penalty of prision mayor or a fine from P6.000to P12,000, or both
such imprisonment and fine shall be imposed upon those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals. Is Juan guilty of the crime charged? Reasons.

Answer:

No. Juan is not guilty of the crime charged because the law (Art. 201, RPC) covers only the
protection of public moral and not only the moral of an individual.

Question No. 9:

Tong and Theresa got married before a judge. Theresa is below 18 years old. Their marriage was
effected because Theresa and her mother, Petra, at the instigation of Tong, assured the judge who solemnized
the marriage ceremony, that Theresa was 19years old and that her fatherwas already dead. Upon Tong’s
prodding too, Petra gave her consent. The father of Theresa, who was actually not dead, heard of what took
place. Not being content in only instituting an action for annulment of their marriage, he desired to prosecute
Tong.

The father consulted you for the purpose of filing a criminal action against Tong. With what crime
would you charge Tong? Explain.

Answer:

Violation of Art. 350, RPC. Marriage contracted against the provisions of the marriage law.

Question No, 10:

L, a Municipal Mayor, issued an appointment in favor of his legitimate son, S, as meat inspector in the
Office of the Municipal Treasurer. He also issued a certification that S is not related to him within the
third degree of consanguinity. The Civil Service Commission approved the appointment.

L, was charged and found guilty of falsification of public document. In his appeal, he argued
that his conviction is erroneous because he had no legal obligation to disclose the truth about his
relationship with the appointee and that he was in good faith as he later on revoked the
appointment.

Resolve his plea, supporting your resolution with reasons.

Answer:

The conviction is correct. L had the legal obligation to issue a certification to the
effect that the appointee is not related to him within the third degree of consanguinity (Laino
vs. Sandiganbayan). The revocation of the appointment did not extinguish the incipient
criminal liability of L, the crime having been already consummated. Besides, good faith may
not be invoked in the crime of falsification of a public document as criminal intent and the
will to commit the crime are presumed to exist unless the contraiy appears (Manuel Siquuian
vs People, 171 SCRA 223).

Question No. 11:

Pat. Negre saw Filemon, an inmate, escaping from jail and ordered the latter to surrender.
Instead of doing so, Filemon attacked Pat. Negre with a bamboo spear. Filemon missed in his first
attempt to hit Pat. Negre, and before he could strike again, Pat. Negre shot and killed him.

Can Pat. Negre claim self defense? Explain.

Suppose Pat Negre missed in his shot, and Filemon ran away without parting with his
weapon. Pat Negre pursued Filemon but the latter was running so fast that Pat Negre fired warning
shots into the air shouting for Filemon to stop. Inasmuch as Filemon continued running Pat. Negre
fired at him hitting and killing him.

Is the plea of self-defense sustainable? Why would you then hold Pat. Negre criminally
liable? Discuss.

Answer:

Yes, self-defense can be claimed as there is an imminent and great peril on the life of Negre.

No, self-defense is no longer sustainable as there is no more peril on his life; Yes, excessive
force is used.

Question No, 12:


Explain and illustrate the following: 1) dberratio ictus, 2) impossible crime, and 3) subornation of
peijury.

Answer:

Aberratio ictus - A fired a gun at his father to kill him but hit instead a stranger.

Impossible crime - Killing a dead person.

Subornation of perjury - Procuring another to swear falsely and testify under circumstances
rendering him guilty of perjury.

Question No, 13:

Manny was apprehended in a buy-bust operation during which one (1) deck of shabu
(methamphetamine hydrochloride) was delivered by him to the policeman posing as buyer and another deck of
shabu was taken from his pocket after his body was frisked before he was actually brought to the police precint.
Convicted of violating sections 15 (sale and distribution of regulated drugs) and 16 (possession or use of
regulated drugs) of the Dangerous Drugs Law, he was sentenced to thirty (30) years of life imprisonment and
payment of a fine of P20,000.00 (for violating sec. 15) and to imprisonment of eight (8) years and payment of fine
of P6,000.00 (for violating sec. 16). He then sought the reversal of the decision, on the following grounds:

First, he could not be convicted of having violated sec. 15 because he has not yet received the money
from the buyer and the sale is not yet consummated;

Second, his conviction under sec. 16 is erroneous because his possession of shabu is
absorbed in the charge of illegal sale or delivery; and

Third, it is unbelievable that he would sell the confiscated shabu in a sari-sari store near the
national road open to the public view and to a stranger. •

If you were the Solicitor General, how would you rebut the arguments of the accused?
Discuss fully.

Give your comment with regard to the penalties imposed.

Answer:

Manny is liable. The law provides, “shall sell, dispense, deliver, transport or
distribute".

Yes, he is also liable because the shabu taken from his possession or pocket is
different from the shabu he was to deliver to the seller.

As to the third reason, it is not unbelievable because although it is a public place, this
kind of sale can always be clandestinely be made. (People vs. Rey Bernardino, Jan. 28, 1991)

With respect to the penalty imposed, life imprisonment should not be limited to 30
years; and 8 years is wrong, it should be indeterminate. (People vs. Angeles, because of
Eliginio vs. Alvarez (1992)

Question No. 14:

Ariel intimidated Rachel, a mental retardate, with a bolo into having sexual intercourse with
him. Rachel’s mother immediately filed a complaint, supported by her sworn statement, before the
City Prosecutor’s Office, After the necessary preliminary investigation, an information was signed by
the prosecutor but did not contain the signature of Rachel nor of her mother. Citing Art. 344 of the
RPC (prosecution of the crimes of rape, etc.), Ariel moves for the dismissal of the case. Resolve with
reasons.
After the prosecution had rested its case, Ariel presented a sworn affidavit of desistance executed by
Rachel and her mother stating that they are no longer interested in prosecuting the case and that they have
pardoned Ariel.

What effect would this affidavit of desistance have on the criminal and civil aspects of the case? Explain
fully.

Answer:

The case should not be dismissed. This is allowed by law (People vs. Horde, 125 SCRA 11). It is
enough that a complaint was filed by the offended party or the parents in the Fiscal’s Office.

The affidavit of desistance will only amount to the condonation of civil liability but not criminal
liability hence the case should still proceed.

Question No. 15:

Mick, a gay foreigner, fondled and played with the private part of Egay, an 11 year-old boy, who enjoyed
it and gladly received the P100.00 given him by the foreigner.

What crime, if any, was committed by the foreigner? Explain.

If the act was committed on Citry, an 11 year-old girl; would your answer be the same? Discuss.

Answer:

Acts of Lasciviousness under the circumstances of rape (Art 336, RPC and R~A. 7610)

Yes, acts of lasciviousness is committed irrespective of sex. (Art. 336, RPC)

Question No. 16:

C told his lawyer, Atty. T, to settle the criminal case he filed against L, and so Atty. T called up through
telephone L, and informed him that C is willing to have the case dismissed provided that L pays P8,000.00 and
The following day when Atty. T called up L, the latter requested his lawyer Atty. X, who was in his
(L’s) office at that time, to secretly listen to the telephone conversation through a telephone
extension.

When the P8.000.00 agreed upon on the telephone was delivered to Atty. T at the appointed
place and time, he (Atty. T) was arrested by the police for Robbery/Extortion on complaint of L who
was accompanied by his lawyer, Atty. X. Atty. X executed an affidavit stating that he heard Atty. T
demanding P8,000.00 for the withdrawal of the criminal complaint through a telephone extension.
On the basis of this affidavit. Atty. T filed a criminal complaint against Atty. X and L for violation of
sec. 1 of RA No. 4200, otherwise known as the Anti-Wire Tapping Act, which says:

“It shall be unlawful for any person not being authorized by all the parties to any private
conversation or spoken word to tap any wire or cable or by using any other device or arrangement,
to secretly overhear, intercept or record such communication or spoken word by using a device
commonly known as dictaphone or dictograph or detectaphone, walkie talkie or tape recorder, or
however otherwise described."

If you were the Judge, would you convict or acquit Land his lawyer, Atty. X? Support your
decision with reasons.

Answer:

No, because it is a telephone extension and those enumerated by law means an


extension with permanent recording of which a telephone extension is not. (Gaanan vs. IAC,
145 SCRA 112)
Question No. 17:

Pablo, disobeying a judicial order, was punished by an RTC Judge of Manila for contempt. He waited
for the judge to go out into the street. Upon seeing the judge, Pablo hurriedly approached him, and without
saying a word struck him with his fist causing a slight contusion on the face of the Judge. Rex came to the
rescue of the Judge but because he was taller and bigger than Pablo, the latter used a knife in attacking Rex.
Pablo limited his assault to the arms of Rex Inflicting lesions graves which incapacitated Rex from labor for forty
five (45) days.

If you were the prosecutor called to institute a criminal action against Pablo, with what crime or crimes
would you charge him? Explain.

Answer:

The crime of direct assault upon a person in authority with respect to the slight contusion on
the face of the Judge.

Direct assault with serious physical injuries with respect to the assault on Rex.

Question No, I8:

B, who is blind in one eye, conspired with M, a sixteen year old boy, with C, who had been previously
convicted of Serious Physical Injuries, and with R, whose sister was raped by X a day before, to kill the latter. B,
C and R were armed with .38 caliber revolvers, while M carried no weapon and acted only as a look out. They
proceeded to the house of X riding in a motorized tricycle. Thereupon, C, on instruction of B to give X no chance,
shot X who was then sleeping. Indicted for Homicide, as the information alleges no qualifying circumstance,
specify the mitigating and aggravating circumstances present, and explain in whose favor, and against whom,
must they be considered.

Answer:

1. Mitigating circumstances:

a) B is entitled to the mitigating circumstance under paragraph 8 of Article 13 of the


Revised Penal Code;
b) M is entitled to the privileged mitigating circumstances of minority under Article 68 of
the Revised Penal Code;

c) Vindication of a grave offense in favor of R because his sister was raped by X a day
before the shooting, and even if there was an interval of one (1) day between the rape
and the killing.

2. Aggravating circumstances:

a. The aggravating circumstance of recidivism under paragraph 9. Article 14


should be considered against C if alleged in the Information (People vs. Peter
Cadevida, et al, G.R. No. L-94528, March 1. 1993).

b. The aggravating circumstance of motor vehicle under paragraph 20 of Article


14 of the Code, all the accused having used a motorized tricyle;

c. Treachery should be aggravating against all of the accused including M who


acted as a lookout because all of them were present when X was shot (Article
62. paragraph 4 of the Revised Penal Code). X was sleeping when shot to death.

Question No. 19:


Dodoy, possessing only a student driver's permit, found a parked car with the key left in the
ignition, he proceeded to drive it away, intending to sell it. Just then Ting, the owner of the car,
arrived. Failing to make Dodoy stop. Ting boarded a taxi and pursued Dodoy, who in his haste to
escape, and because of his inexperience, violently collided with a jeepney full of passengers. The
jeepney overturned and was wrecked. One passenger was killed: the leg of the other passenger was
crushed and had to be amputated. The car of Ting was damaged to the tune of P20.000.00.

What offense or offenses may Dodoy be charged with? Discuss.

Answer:

Consummated camaping. Homicide, Serious Physical Injuries and Damage to Properly


resulting from reckless imprudence.

Please take note that with respect to Espiritu Case, taking hold of the object is
enough to consummate the crime: although in the Dino case, it is still frustrated because
there Is inability to dispose freely the object.

Question No. 20:

Upon complaint of Baby. NBI agent Cesar invited Esta- fador to the NBI headquarters where Cesar
showed to Esta- fador the sworn complaint of Baby for estafa. He thereafter began questioning Estafador who
told him that he (Esta- fador) is willing to submit to an Investigation since he has nothing to hide. Thereupon,
Cesar got a typewriter and took down the statement of Estafador without informing the latter that he has a right
to remain silent and to secure the services of a lawyer. After the statement was signed by Estafador, his fiancee,
Fadora, came and asked Cesar to allow her to confer with Estafador but Cesar refused saying that after all.
Fadora is not a lawyer, and that Estafador voluntarily gave his statement.

If you were the lawyer of Estafador, with what crime would you charge the NBI agent? Explain.

Answer:

Violation of RA 7438, defining rights of persons arrested.

1. Failure to inform him of his right to counsel and to remain silent (Sec. 4, par. 1); and
2. Prevent an immediate member of his family which includes fiancee, to confer with
Estafador (Sec. 4(b).
1992 BAR EXAMINATION

Question no. 1:

Librado was convicted of malversation for which he has imposed the indeterminate penalty
of imprisonment with the following accessory penalties provided by law - a fine of P6.000.00 without
subsidiary imprisonment in case of insolvency; perpetual special disqualification; indemnification to
the government in the amount of P6.000.00 and to pay the costs.

If he dies pending appeal, what is the legal effect of his death on his criminal and pecuniary
liabilities?

Suggested Answer:

Under Art. 89. RPC. and jurisprudence (People vs. Jose. 71 SCRA 273, People vs.
Alison. 44 SCRA 523; etc.). death of the accused pending appeal extinguishes his criminal
and civil liabilities. Civil liability includes pecuniary liabilities, such as fine. Hence, the same,
together with the disqualification and the costs are extinguished.

Alternative Answer:

In Peiralba vs. Sandiganbayan. 200 SCRA 644. however, extinction of criminal


liability arising from the death of the accused pending appeal likewise extinguishes the
pecuniary liability such as fine, but not the civil liability, such as the indemnification of
P6.000.00 in the instant case. The same is a claim of the government against the estate but
ONLY IF THE OFFENSE CAN BE PROVED in the appellate court. In other words', the latter
should still decide the appeal as far as the civil liability of P6.000.00 is concerned.

Question No. 2:

Tommy saw Lino and Okito engaged in a street fight. Lino then suddenly drew his balisong
and lunged at Okito. In an effort to break up the fight. Tommy tried to snatch the balisong from Lino
but not before the latter had inflicted a wound on Okito. As Lino withdrew the weapon and attempted to stab
Okito a second time. Tommy tried to grab the weapon again. In so doing, his left forearm was slashed. As he
succeeded in snatching away the balisong with his right arm, it flew with such force, that it hit Nereo, a
passerby who was seriously injured.

Explain your answers fully.

a. What is the criminal liability of Lino with respect to Okito, Tommy and Nereo?

Suggested Answer:

a. As far as Okito is concerned. Lino is liable for frustrated homicide, assuming that the
wound suffered by Okito is such that for reasons or causes independent of the will of Lino
(such as timely medical attention) Okito would have died. If the injury is not serious
enough, the liability is only attempted homicide. Intent to kill is manifest because of the
use of a deadly weapon. For the injury on the arm of Tommy. Uno is liable only for physical
injuries (serious, less serious or slight, depending on the nature of the injury). Apparently
there is no intent to kill.

For Nereo, Lino should be liable for serious physical injuries as the wounding of Nereo was the
natural and logical consequence of Lino’s felonious act.

b. In turn, is Tommy criminally liable to Nereo?

Suggested Answer:

b. Tommy is exempted from criminal liability for the injury to Nereo as he was performing a
lawful act with due care and the injury was caused by mere accident (Art 12, par. 4), or that
he was in lawful exercise of a right, (Art. 11, par.6), that is, defense of a stranger.

Question No, 3:

As Sergio, Yoyong, Zoilo and Warlilo engaged in a drinking spree at Heartthrob Disco, Special Police
Officer 3 (SPO 3) Manolo Yabang suddenly approached them, aimed his revolver at Sergio whom he
recognized as a wanted killer and fatally shot the latter. Whereupon, Yoyong.Zoilo and Warlito
ganged up on Yabang. Warlito. using his own pistol, shot and wounded Yabang.

a. What are the criminal liabilities of Yoyong, Zoilo and Warlito for the injury to Yabang?
Was there conspiracy and treachery? Explain.

Suggested Answer:

a. If they have to be criminally liable at all each will be responsible for their
individual acts as there appears to be no conspiracy, as the acts of the three were
spontaneous and a reflex response to Yabang’s shooting of Sergio. There was no
concerted act that will lead to a common purpose.

Treachery cannot likewise be appreciated as there was no conscious adoption of


means, methods or fonn to facilitate the commission of the felony.

Alternative Answer:

The acts of Yoyong, Zoilo and Warlito are justified under pars. 1 and 2 of Article 11,
RPG, that is, self-defense or defense of a stranger, as they have reason to suspect that Yabang
might not be satisfied in killing Sergio ONLY, the three being friends and companions of the
victim. Hence, they are entitled to protect their own lives and limbs from the unlawful
aggression of Yabang. Alternatively they have the justified right to defend a stranger (Sergio)
whose life at that moment might still be saved by ganging up on Yabang to prevent the latter
from any further attack by the latter. In either case reasonable necessity of the means
employed and lack of sufficient provocation are present.

b. In turn, is yabang criminally liable for the death of Sergio?

Suggested Answer:

b. Yabang is liable for Homicide for the killing of Sergio as the attack was frontal (Alternative:
Murder, because of the qualifying circumstance of abuse of superior strength, in term of weapon).
Sergio, being a suspected killer, is no jurisdiction to be killed by Yabang (People vs. Oanis).

Question No. 4:

At the height of the eruption of Mt. Pinatubo at around midnight, Aniceto joined some neighbors in
evacuating his family, a few possessions and two horses to higher ground. Miguel, taking advantage of the
darkness and the confusion, got one of the horses and asked his friend Doro to accompany him to Angeles City
where he sold the same to an acquaintance Peping. Searching for his horse, Aniceto found it, with identifying
brand intact, in the possession of Peping who refused to surrender the same saying that he had paid good
money for it. Whereupon, Aniceto reported the matter to the police who promised to accompany him to the
Prosecutor’s office.

a. May Miguel and Doro be charged criminally for any offense? If you were the counsel for both, what
defense could you possibly set up for them?

Suggested Answer:

a. Miguel should be charged of Qualified Theft of Large Cattle, a horse being classified as such
under Art. 310, RPC.

Doro, on the other hand, should be charged as accessory if he is aware that the horse was stolen
as he assisted ' the principal, Miguel, in profiting from the crime.

If I were the defense counsel, I will put up the defense of consent of the owner; hence, there is only civil
liability.

b. Suppose, before the eruption, Miguel had borrowed the horse for a couple of days from. Aniceto.
When the eruption occurred and after evacuating his family, Aniceto asked Miguel to return the
horse to him. Miguel answered that the horse had run away and he could not locate it. Aniceto.
however, found the beast in the possession of Peping who told him that it was sold to him
(Peping) by Miguel. What criminal offense has Miguel committed, if any?

Suggested Answer:

b. Miguel having borrowed the horse, he has obligation to return the same. His failure
to return the same upon demand will make him criminally liable for Estafa under Art. 315.
par. 1(b). RPC.

c. May Peping be indicted under the Anti-Fencing Law? Explain.

Suggested Answer:

c. Peping should be held liable for violation of the Anti- Fencing Law. P.D. No. 1612. He
brought the horse which he should have known to have been derived from robbery or
theft. The horse was duly branded; this should have forwamed Peping. Besides, he
should have demanded a certificate of ownership from Miguel.

Question No. 5

Upon learning that the police wanted him for the killing of Polistico. Jeprox decided to visit
the police station to make inquiries. On his way, he met a policeman who immediately served upon
him the warrant for his arrest. During the trial, in the course of the presentation of the
prosecution’s evidence. Jeprox withdrew his plea of not guilty and entered a plea of guilty.

Can he invoke the mitigating circumstances of voluntary surrender and plea of guilty?
Explain.

Suggested Answer:

Jeprox is not entitled to the mitigating circumstance of voluntary surrender as his


going to the police station was only for the purpose of verification of the news that he is
wanted by the authorities. In order to be mitigating, surrender must be spontaneous and that he
acknowledges his guilt.

Neither is plea of guilty a mitigating circumstances because it was qualified plea; besides. Art.
13, par. 7 provides that confession of guilt must be done before the prosecution had started to present
evidence.

Question No, 6:

Mrs. Lydia Cortes presented herself to Special Police Officer 2 (SPO 2) Cirio Cellado at the Northern
Police Headquarters with her niece Nani, age 17, and the latter’s friend, Chabeng. age 16, asking for help in
filing a criminal case. It appears that while working as househelp in the home of Col. Rolando Donido (retired),
the latter would call them alternately. lock them up with him in a room and force his lustful desires upon them.
Sobbing violently, Nani narrated how finally her employer succeeded in having sexual intercourse with her
because he kept on threatening to kill her if she refused to submit to him or if she told Mrs. Donido about what
was happening. On the other hand, Chabeng described how their employer took liberties with her body, short
erf destroying her virginity. If they so much as resisted. they were subjected to a lot of verbal abuse and
harassment. Unable to bear it any longer, both of them ran away. Nani got married immediately to a former
boyfriend to save herself from the humiliation of appearing in their hometown, pregnant but still single. She
ended her story saying that no housegirl ever stayed long in that household “kasi walang patawad iyang D.O.M.
(Dirty Old Man ) na iyan".

a. What crime has Col. Donido committed against Nani? What crime has he committed against Chabeng?
Explain fully.

Suggested Answer:

a. Against Nani, the crime committed by Col. Donido is rape, because he had sexual intercourse
with her with the attendant circumstance of force and intimidation. (Art. 335, par. 1). As far as
Chabeng is concerned, since Col.

Donido only took liberties on her body, short of sexual intercourse, he is liable of Acts of
Lasciviousness under Art. 336, RPC which is committed by any person who commit acts of
lasciviousness upon other persons of either sex, under any of the circumstances in Rape.

b. After SP02 Cirio Cellado heard the story of the two girls, he took aside Mrs. Cortes and made
this proposition: “Let me tell you what I plan to do. Since the D.O.M. is probably well-known
in his community, he will not want his reputation tarnished. I'll tell him that you have
reported him to us and you are all set to file criminal charges against him at the
Prosecutor's Office. But if he will give us P50,(300.00, you may be persuaded not to file the
suit anymore. Actually, after he gives that amount, which he surely will, I shall visit him
regularly for more. We shall then divide equally the money we shall get from him.

Suppose Cellado proceeds to carry out his plan and is caught by his Chief with incontrovertible
evidence, what action or actions may be brought by his superiors to penalize him and to recover
whatever sums of money he may have received from his victim?

Suggested Answer:

b. Cellado should be charged of robbery because he took personal property from,


Donido, with intent to gain, with intimidation on the person of the latter. The money passed
into the hands of Cellado involuntarily because of fear (intimidation) on the part of the
offended party, Donido.

Likewise. Cellado can be held liable under Art. 208, RPC, he being a public officer who
maliciously refrained from instituting prosecution against violators of the law. An agent of a
person in authority charged with the apprehension and investigation of a crime is an integral
part of the prosecution of offenses.

Question No. 7:

Efren, Greggy and Hilario, wearing fatigues and carrying unlicensed firearms, barged into
the residence of Amulfo Dilat at Scout Lazcano St. (Before making their entrance, they gave
Instructions to their companion Sakay to stand watch outside). Once inside, they announced that they were
members of the Philippine National Police (PNP) on an official mission. Inside the master bedroom, they
demanded from Luningning, the wife of Amulfo, cash and jewelries. After receiving the jewelries but before the
money could be handed to them, they heard their companion Sakay shouting: “Pulis! Pulis!" Panic-stricken,
Efren shot Amulfo who was seriously injured. Greggy and Hilarto picked up the jewelry box whose contents
spilled all over the floor as they rushed out. Before they could make good their escape, however, the police
blocked their way, one of them clutching Sakay by the collar. They were forthwith brought to the Police
Headquarters nearby.

Discuss the individual and collective criminal liabilities of Efren, Greggy, Hilario and Sakay.

Suggested Answer:

There appears to be conspiracy amongst the four offenders; in which case the act of one
becomes the act of all. Ergo, they are all liable for the consequent crime, which is robbery under Art.
299, special complex crime of robbery with serious physical injuries, committed in an inhabited house,
by pretending to be persons in authority. There is no band as only three are armed.

Sakay, who seems to have participated only as lookout, still will be liable as principal because of
the conspiracy. Even if there is none, he is criminally liable as a principal by indispensable cooperation.

The crime is definitely consummated as offenders have complete disposal of the subject matter
of the offense.

Question No, 8:

Members of the Narcotics Command, upon learning from an informer that Tee Moy, notorious drug
lord was plying his trade and selling methamphetamine hydrochol- ide (popularly known as shabu) in a motel at
Bambang St, planned a buy-bust operation to capture him. Camotes was to enter the lobby of the motel where
Tee Mqy hangs around and pose as buyer. The moment the drug vendor hands the drug to him.
Camotes would scratch his ear as a signal to his companions deployed near the motel entrance.

So Camotes, upon espying Tee Moy near the registration desk, approached the latter. When
asked if he would like a “score”, he answered in the affirmative. He was then handed a matchbox
with the assurance that it contained the drug, for which he gave a P100.00 marked bill. Upon giving
the pre-arranged signal, the NARCOM agents rushed inside and arrested Tee Moy.

In the course of time, Tee Moy was prosecuted for the crimes of possession and sale of
prohibited drugs under the Dangerous Drugs Act. During the trial, his counsel interposed the
following defenses:

a. The arrest, having been effected without a warrant of arrest, was violative of Tee Moy’s
constitutional rights.
b. Accused was the victim of a frame-up instigated by the law enforcement officers, such that he
was practically forced to sell his goods to a total stranger which was abnormal and unrealistic
for one in the kind of business he is in.
c. The prosecution deliberately failed to present the informer as a witness so that he could have
been subjected to cross-examination by the counsel for the accused.
d. Tee Moy cannot be prosecuted for the separate offenses of possession and sale of prohibited
drugs but of only one criminal offense.
e. Tee Moy was made to sign a Confiscation Receipt at NARCOM headquarters which has been
admitted as evidence against him, thus violating his constitutional right against self-
incrimination.

If you were the prosecutor, how would you traverse the above arguments of counsel for the
accused? Take up each number separately.

Suggested Answer:

a. There is no need for a warrant of arrest, as this falls under the instances of warrantless airest
sanctioned by law, where a public officer or private individual may arrest a person if, in his personal
presence, the person arrested is actually committing, is about to commit, or has just committed a
crime.
b. This is a pure case of entrapment as Tee Moy has already decided to commit a crime and the
agents of persons in authority merely devised ways and means to entrap him. There was no
inducement of Tee Moy as the latter precisely decided to make a “score” or sale. No pressure or
investigation was applied on him.
c. Failure to present the informer is not fatal to the cause of the prosecution as the testimony of the
latter will be merely corroborative to the testimony of the other witnesses who were eye-witnesses
to the commission of the crime. There are sufficient evidence to convict the accused beyond
reasonable doubt.
d. While as a general rule the ofFense of possession is integrated in selling prohibited drugs, in this
case, I will argue that, the quantity of the drugs confiscated from Tee Moy was so large that it
cannot be deemed absorbed in the crime of “pushing”. Besides, I will contend that the matchbox
with shabu inside, was not the only evidence taken from the accused.
e. The Confiscation Receipt signed by Tee Moy was merely presented as part of the testimony of the
prosecution witnesses and such evidence is not material to the conviction of the accused. Again,
overwhelming evidence are presented that inevitably supports conviction.

Question No. 9:

Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was
imposed the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years
as maximum, both of prision correccional and was ordered to imdemnify the offended party in the amount of
P3.000.00. He filed an application for probation upon the promulgation of the judgment.

What is the legal effect of his application for probation on the judgment of conviction? Does
said application interrupt the running of the period of appeal?

Suggested Answer:

The filing of the application for probation is considered as a waiver of the right of the
accused to appeal; the decision has become final. In view of the finality of the decision there
is no period of appeal to speak of.

Question No. 10:

Pedro Pobre sought financial assistance from his millionaire friend Joey Manriquez who
accomodated him by issuing in his favor a postdated check in the amount of P 10,000.00. Both of
them knew that said check was not duly funded in the bank. The two then approached Marie Vic
Bautista and asked her to change the check with cash, adding that even P9,500.00 will do, on the
assurance that it shall be funded on the due date. When Bautista presented the check to the bank
for encashment on its due date, it was dishonored as the account was closed.

What action may Bautista bring against Pobre and Manriquez to hold them criminally liable
to recover the P9,500.00 she gave them? Explain.

Suggested Answer:

Both Pobre and Manriquez can be successfully charged of estafa under Art. 315, RPC,
and violation of BP No. 22.

Estafa, because Manriquez (in conspiracy with Pobre) issued a post-dated check in payment of a
simultaneous obligation, that is the cash of P9,500.00, and when the check was presented for payment
the same bounced. Manriquez cannot even hide behind the alibi that he issued the check as an
accomodation or as a guarantee for the obligation of Pobre. Jurisprudence are extant that ex tends the
sanction of bouncing checks even under those circumstances.

BP No. 22 was likewise transgressed because the postdated check was made and issued “on
account or for value”. Prosecution can be resorted to under both statutes, as the elements in the two
offenses vary, and besides Estafa is a crime against property whereas violation of the special law is an
offense against public interest.

Question No. 11:

Jose Dee Kiam, a Chinese citizen bom in Macao, having applied with a recruitment agency to work in
Kuwait, went to Quezon City Hall to procure a Community Tax Certificate, formerly called Residence Certificate.
He stated therein that his name is Leo Tiampuy, A Filipino citizen bom in Binan, Laguna. As he paid for the
Community Tax Certificate, Cecille Delicious, an employee in the office recognized him and reported to her boss
that the information written in the Community Tax Certificate were all lies.

Treat each of the above contentions separately.


a. Shortly thereafter, an information was filed against Dee Kiam alias Tiampuy. What crime, if any, may
he be indicted for? Why?

Suggested Answer:

a. Dee Kiam can be indicted for the felony of Falsification of a Public Document committed by a private
individual under Art. 172 of the Revised Penal Code in relation to Art. 171 thereof. A residence certificate is
a public or official document within the context of said provisions and jurisprudence. Since Dee Kiam made
an untruthful statement in a narration of facts (Art. 171, par. 4), and he being a private individual, he is
culpable thereunder.

b. The accused moved to quash the information on the ground that it did not allege that he had the obligation
to disclose the truth in the Community Tax Certificate; that the same is a useless scrap of paper which one
can buy even in the Quiapo underpass and that he had no intent of deceiving anybody, much less the
government. If you were the trial judge, would you grant the motion to quash the information on the basis
of Dee Kiam’s allegations?

Suggested Answer:
b) Falsification of public documents under Arts. 171 and 172, RPC, does not require that the
document is required by law. The sanctity of the public document, a residence certificate, cannot be
taken lightly as being a "mere scrap of paper". Intent to cause damage, or actual damage, is not an
indispensable requisite for falsification of public document.

Question No. 12:


Major Menor, while patrolling Bago-Bago community in a police car with SP03 Caloy Itliong, blew his
whistle to stop a Nissan Sentra car which wrongly entered a one-way street. After demanding from Linda Lo
Hua, the driver, her driver’s license, Menor asked her to follow them to the police precinct. Upon arriving there,
he gave instructions to Itliong to guard Lo Hua in one of the rooms and not to let her out of sight until he
returns; then got the car key from Lo Hua. In the meantime, the latter was not allowed to make any phone calls
but was given food and access to a bathroom.

When Menor showed up after two days, he brought Lo Hua to a private house and told her that he would
only release her and return the car if she made arrangements for the delivery of P500,000.00 in a doctor’s bag
at a certain place within the next twenty-four hours. When Menor went to the designated spot to pick up the
bag of money, he suddenly found himself surrounded by several armed civilians who introduced themselves as
NBI agents.

a) What criminal offense has Menor committed? Explain.

Suggested Answer:

Menor is liable under Art. 124, RPC (Arbitrary Detention) he being a public officer who detained, a
person without legal grounds. Violation of a traffic ordinance by entering a one-way street is not a valid
reason to arrest and detain the driver. Such only merits the issuance of a traffic violation ticket. Hence,
when Lo Hua was ordered to follow the police officers to the precinct (confiscating her license to
compel her to do so), and confining her in a room for two days and prohibiting her to make phone calls,
is a clear case of deprivation of personal liberty. Giving her food and access to the bathroom will not
extinguish or mitigate the criminal liability.

Menor is further liable for robbery, because money or personal properly was taken, with intent to
gain, and with intimidation. The peculiar situation of Lo Hua practically forced her to submit to the
monetary demands of the major.

b) May Itliong be held likewise criminally liable?

Suggested Answer:
b) Itliong is equally liable with Menor the felony of arbitrary detention, either by conspiracy or
indispensable cooperation. He cannot successfully put up the defense of obedience to a superior order,
as the same was done for a lawful purpose.
1991 Bar Examination

Question No. 1:

In the early morning of 25 October 1990, the troops of the Logistics Command (LOG COM) of
the AFP at Camp General Emilio Aguinaldo headed by their Operations Officer, Col.Rito Amparo,
withdrew firearms and bullets and, per prior agreement, attacked, in separate teams, the offices of
the Chief of Staff, the Secretary of National Defense, the Deputy Chief of Staff for Operations, the
Deputy Chief of Staff for Intelligence and other offices, held hostage the Chief of Staff of LOGCOM
and other officers, killed three (3) pro-Govemment soldiers, inverted the Philippine flag, barricaded
all entrances and exits to the camp, and announced complete control of the camp. Because of the
superiority of the pro-Govemment forces, Col. Amparo and his troops surrendered at 7:00 o’clock in
the morning of that day.

a) Did Col. Amparo and his troops commit the crime of coup d'etat (Article 134-A, Revised
Penal Code or of rebellion?

Answer:

a) Under the facts stated, the crime committed would be coup d’etat (Republic Act No.
6988 incorporating Art. 134-A).

However, since the law was not yet effective as of October 25, 1990, as the effectivity
thereof (Section 8) is upon its approval (which is October 24, 1990) and publication in at
least two (2) newspapers of general circulation, the felony committed would be rebellion.

Comment:

If the answer given is coup d’etat substantial credit should be given as the tenor of the
question seems to indicate that coup d’etat as a felony was already existing.

b) Distinguish rebellion from coup d'etat

Answers:

b) Rebellion distinguished from coup d’etat:

1. AS TO OVERT ACTS:
In rebellion, there is public uprising and taking up arms against the Government. In coup
d'etat public uprising is not necessary. The essence of the crime is a swift attack, accompanied by
violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of
the Government, or any military camp or installation, communication networks, public utilities
or facilities needed for the exercise and continued possession of government power;

2. OBJECTIVE OR PURPOSE:

In rebellion, the purpose is to remove from the allegiance of the Philippines, the whole
or any part or the Philippines or any military or naval camps, deprive the Chief Executive or
Congress from performing their functions. In coup d'etat the objective is to seize or diminish state
powers.

3. PARTICIPATION

In rebellion, any person. In coup d'etat any person belonging to the military or police or
holding public office, with or without civilian participation.
Question No. 2:

a) May a ranking leader of the NPA who has taken up arms against the government be simultaneously
prosecuted for violation of Section 1 of RA. 1700 (the Anti-Subversion Act) and for rebellion under Article 135 of
the Revised Penal Code, as amended?

Answer:

Yes, because the two offenses are punished under separate laws. Besides, the elements of
the two offenses differ.

b. What would have been the legal effect of the repeal of P.D. No. 1835 (Codifying The
Various Laws on Anti- Subversion and Increasing the Penalties For Membership in Subversive
Organizations) as amended by P.D. No. 1975, if RA. No. 1700 (An Act to Outlaw The Communist
Party of the Philippines and Similar Associations. Penalizing Membership Therein and For Other
Purposes) were not revived?

Answer:

If the repeal of P.D. 1835 as amended by RA 1735, is absolute, without reviving RA.
1700, the original provision on illegal associations under Art. 147 of the Revised Penal Code
would be the pertinent provision to be taken into account. Hence, it must be proved that the
purpose of the organization is to commit any crime punishable by the code or for some
purpose contrary to public morals.

Alternative Answer:

a) If Rep. Act No. 1700 were not revived by Executive Order No. 167, the repeal of P.D.
No. 1835 and P.D. No. 1975 would have created a vacuum in the sense that membership in
subversive organizations would no longer be punishable.

Question No. 3:
In a civil case for recovery of a sum of money filed against him by A. B interposed the defense
of payment. In support thereof, he identified and offered in evidence a receipt which appears to be
signed by A On rebuttal. A denied having been paid by B and having signed the receipt. He
presented a handwriting expert who testified that the alleged signature of A on the receipt is a
forgery and that a comparison thereof with the specimen signatures of B clearly shows that B
himself forged the signature of A.
a) Is B liable for the crime of using a falsified document in a judicial proceeding (last
paragraph of Article 172 of the Revised Penal Code)?

Answer:

a) No, B should not be liable for the crime of using a falsified document, under the last paragraph
of Art. 172, Revised Penal Code. He would be liable for foigeiy of a private document under the second
mode of falsification under Art. 172, Revised Penal Code. Being the possessor and user of the falsified
document he is presumed to be the forger or falsifier and the offense of introducing falsified document
is already absorbed in the main offense of forgery or falsification.

b) If he is not, what offense or offenses may he be charged with?

Answer:

b) B should be charged for the crime of falsification of a private document, since the document
falsified is a private document and done with intent to cause damage. Although there was an attempt
on the part of B to defraud A thru the use of the false document, such deceit cannot give rise to estafa
because this crime cannot co-exist or be complexed with the crime of falsification when the document
falsified is a private document.

Additional Answer:

a) If he testified on the genuineness of the document, he should also be held liable under Art.
182, which is false testimony in civil cases.

Question No. 4:

Two (2) Philippine National Police (PNP) officers, X and Y, on board on motorboat with Z, a civilian as
motorman, arrested A and B who were in a banca, for dynamite fishing. The latter’s banca was towed towards
the municipality. On the way, the PNP motorboat was intercepted by a third banca whose occupants, C, D. and
E, tried to negotiate for the release of A and B and their banca. The PNP officers refused and instead shouted at
C, D, and E that they are all under arrest. Thereupon, C, D, and E simultaneously threw dynamite sticks at
the PNP motorboats. The first explosion killed X. A and B also reacted by throwing dynamite at the
PNP motorboat: its explosion killed Y and Z.

What crime or crimes did A, B, C, D and E commit?


Suggested Answer:
C. D and E are liable for the complex crime of Murder, qualified by explosion, with direct
assault for the death of X. A and B are liable for the complex crime of Murder Qualified by
explosion as to death of Y, and simple Murder qualified by explosion for the death of Z.

No crime of direct assault can be filed insofar as the death of Z is concerned, he being a
civilian.

This, of course, assumes that there is no conspiracy among A, B, C, D and E, otherwise


all would have the same criminal liability as the act of one becomes the act of all.
Additional Answer:
Firstly, A and B committed a violation of Pres. Decree No. 534 (on illegal fishing) as
amended by Pres. Decree Nos. 704 and 1058. Fishing with the use of explosives is punishable
under said Decree.
Question No. 5:
A, a 76-year old woman, was brought to the hospital in a coma with slight cerebral hemorrhage. An
endotracheal tube was inserted in her mouth to facilitate her breathing. B, a hospital janitor, who had no
business in the emergency room, for reasons known only to himself, removed the plaster holding the tube in
place. A doctor saw him and told him to get out of the room. The plaster was replaced. But when the doctor was
gone, B came back and removed the tube. The victim started to convulse and bleed in the mouth. Only the
timely arrival of the nurse prevented the patient’s death. The patient was then transferred to another hospital
where she died the next day of cardiorespiratory arrest. Is B criminally liable? If you believe so, what crime was
committed by B, if any?

Answer:
Yes, B is criminally liable for Murder (qualified by treachery) because the death of A appears to be
the proximate cause of the overt acts of B.

A died of cardio-respiratory arrest which evidently was brought about by the convulsion and
bleeding in the mouth of the victim due to the removal by B of the endoctracheal tube twice. The two
acts of B can be considered as the result of one criminal design.

In People vs. Umaging, 107 SCRA 166, the Supreme Court ruled that removal of the
endothracheal tube is attempted murder, qualified by treachery, because the patient did not die.

Question No. 6;
A was charged with homicide. During the trial, uncontradicted evidence consisting of medical certificates
were presented showing that the accused had sustained injuries in ten (10) previous occasions while engaged in
fisticuffs with different persons. He was also confined at the National Mental Hospital for mental ailment
diagnosed as “homicidal and suicidal instincts.” During his second confinement thereat, he escaped. Upon
conviction, the prosecutor objected to the application of the Indeterminate Sentence Law contending that the
accused is a habitual delinquent and an escapee from the National Mental Hospital.

If you are the Judge, rule on the objection.

Answer:
The objection should be overruled. A could not be legally considered a habitual delinquent.
Habitual delinquency cannot be validly invoked without being alleged in the Information and proven
during the trial. Besides there is no indication that A was .convicted within ten (10) years from
last conviction or release, three times or oftener of the crimes of robbery, theft, estafa,
physical injuries or falsification.

Being an escapee from the Mental Hospital will not disqualify him from the application
of the ISL as Section 2 thereof contemplates having escaped from confinement or evaded
sentence. Confinement presupposes imprisonment by virtue of a final judgment.

Question No. 7:

A raped X. In the process, X resisted and slapped A Angered. A grabbed a stone and hit X. She
was dying when A consummated the sexual attack. A psychiatrist from the National Center for
Mental Health testified that he conducted physical, mental and psychological examinations on A
and found him to be suffering from a mental disorder classified under organic mental disorder with
psychosis. A's father testified that A was playful but cruel to his brothers and sisters, stole his
mother’s jewelry which he sold for low sums, wandered naked sometimes, and oftentimes did not
come home for extended periods of time. The prosecution on the other hand, presented an array of
witnesses to prove A that was lucid before and after the crime was committed and that he acted
with discernment. After trial, the court convicted the accused and sentenced him to “life
imprisonment" considering that under the Constitution death penalty could no longer be imposed.

Given the conflicting testimonies as to sanity of the accused, was the trial court correct in
ruling out insanity as an exempting circumstances in this case? Is the sentence of “life
imprisonment” a correct imposition of penalty?

Answer:

Yes, the court is correct in ruling out insanity as an exempting circumstance. While there was
testimony that A was suffering from a metal disorder, the testimony of A’s father disclosed that A had
lucid intervals. Because what is presumed is sanity, not insanity, it is to be presumed that A was sane
when he committed the crime. Consequently, evidence being wanting that A is completely deprived of
reason at the moment of committing the crime, he should be liable. Besides, the crime committed and
the acts done by the accused in the commission of the crime hardly reconciles with insanity of the
offender, as rape presupposes evident premeditation.

The sentence of “life imprisonment" is not a correct imposition of penalty for the rape: it should
be reclusion perpetua, the technical designation of the penalty for the crime under the Revised Penal
Code. It is not correct to use the term “life imprisonment? because the accessory penalties to reclusion
perpetua does not follow the penalty of “life imprisonment". Furthermore, in reclusion perpetua the
duration is stated to be for 30 years.

Question No. 8:
a) A complaint for rape was filed by the victim against her father. When the victim was about to finish
her testimony, she and her aunt (her closest relative) executed separate affidavits of desistance wherein they
stated that they are forgiving the accused. The judge dismissed the case. Is the dismissal proper?

Answer:
a) No, the dismissal of the case is not proper. While the affidavit of desistance executed by the
victim amounts to a pardon, the same does not extinguish criminal liability. In the crime of rape and
other private crimes, pardon by the offended party only bars prosecution if given before the institution
of the criminal action. After the criminal action had been instituted, such pardon only waives the civil
liability but not the criminal liability of the offender.

b. In 1980, Socorro Wagas, a Filipino citizen and a resident of Cebu City, and Loven Adenauer, a West
German citizen, were married at the Sto. Rosario Catholic Church in Cebu City. In 1983, Loven returned to
West Germany where he initiated a divorce proceeding against Socorro before a local court which, in due time,
promulgated in July 1985 a decree of divorce on the ground of failure of marriage. In September 1985,
Loven returned to the Philippines only to find out that Socorro had filed a case of legal separation
against him. In December 1985, Loven, who learned of the cohabitation of Socorro and Efren Reyes,
her childhood sweetheart, when he (Loven) was in Germany, filed a sworn complaint for adultery
against Socorro and Efren with the Office of the City Fiscal of Cebu. Socorro’s counsel moved to
dismiss the complaint on the ground that under Article 344 of the Revised Penal Code, the crime of
adulteiy cannot be prosecuted except upon a sworn complaint filed by the offended spouse, and
Loven, having obtained a divorce in Germany, had ceased to be her offended spouse.

Resolve the motion.

Answer:
In adultery or concubinage, the person who can legally file the complaint should be the
offended spouse and nobody else. Adenauer being no longer the husband because of the
divorce he initiated, he has no legal standing anymore. (PilapiL vs. Somera , 174 SCRA 653)

Question No. 9:
During a fiesta, Simeon Marco, brandishing a knife, asked Constancio whether he was the one
who slapped his (Simeon's) son the year previous. Vicente (father of Constancio) shouted at
Constancio and his other son, Bien- venido, telling them to run away. When Bienvenido passed by
Rafael Marco (brother of Simeon), Rafael stabbed him. Bienvenido parried the blow but fell down,
his feet entangled with some vines. While Bienvenido was lying on the ground, Rafael continued to
stab him, inflicting slight injuries on the shoulder of Bienvenido, after which Rafael stood up. At
that moment, Dulcisimo Beltran (no relation to the Marco brothers), came out of nowhere and,
together with Simeon, stabbed Bienvenido. Both of them inflicted fatal wounds resulting in the
death of the victim.

a) Discuss the criminal liability of Dulcisimo, Simeon and Rafael.

Answer:

a. Simeon and Dulcisimo will be liable for the death of Bienvenido as the fatal injuries sustained
by the victim were inflicted by the two.

Rafael is not liable for slight physical injuries as conspiracy was not present, and there was no
apparent intent to kill when he inflicted the slight physical injuries on the aim of the victim.

Alternative Answer:
Dulcisimo, Simeon and Rafael will all be liable under the principle of conspiracy, where the act of
one becomes the act of all.

b. Supposing Dulcisimo is a convict out on parole, will the aggravating circumstances of quasi-recidivism
be appreciated against him?

Answer:
a. No, because quasi-recidivism under Art. 160, RPC occurs when the accused commits a felony
while serving or about to serve sentence (or if he escapes from prison). A parolee who commits
a felony cannot be a quasi-recidivist.
Question No. 10:
In an information for Murder against A. B, and C, the prosecution alleges Treachery as the qualifying
circumstance and the following generic aggravating circumstances: (1) noctumity, (2) abuse of superior
strength, and (3) employing means to weaken the defense. At the trial, the prosecution, without objection from
the de ofvcio counsel for the accused, proved evident premeditation. It likewise successfully proved the
qualifying and the generic aggravating circumstances alleged in the information.
a) For the purpose of determining the appropriate penalty to be imposed upon the accused, may the
court take into account evident premeditation and the other generic aggravating circumstances?

Answer:
a. Yes, as far as evident premeditation is concerned, but only as a generic aggravating
circumstance.

Since treachery absorbs noctumity abuse of superior strength and employing means to
weaken the defense, they can no longer be considered as additional circumstances.

b. Supposing that treachery was not proved, may evident premeditation, which was duly
proved, be considered as the qualifying circumstances?

Answer:

b. No, since it was not alleged in the information; qualifying circumstances not alleged if
proved during trial will only be considered as generic.

c. If the prosecution failed to prove treachery and did not offer any evidence to prove eviden
premeditation, does acquittal of the accused follow?

Answer:

c. No, but liability will only be for homicide, as there is no circumstances to qualify it to
murder.

Question No. 11:

Imagine that you are a Judge trying a case, and based on the evidence presented and the
applicable law, you have decided on the guilt of two (2) accused. Indicate the five (5) steps you
would follow to determine the exact penalty to be imposed. Stated differently, what are the factors
you must consider to arrive at the correct penalty?

Answer:

1. Determine the crime committed;

2. Stage of execution and degree of participation;

3. Determine the penalty;

4. Consider the modifying circumstances;

5. Determine whether Indeterminate Sentence Law is applicable or not.

Answer:
Technically and legally, the sentence of 6 years and one day to 17 years and one day is correct.

Since there are three mitigating without any aggravating circumstance, the penalty provided for
by law should be reduced by one degree, that is, prision mayor (maximum) to reclusion temporal
(medium), which will be the MAXIMUM of the indeterminate sentence. Otherwise stated, the maximum
will have a range of 10 years and one day (the starting point of prision mayor maximum) up to 17 years
and four months (the end of reclusion temporal medium). Since the maximum sentence imposed by
the Judge is 17 years and one day, it is well within the maximum range.

The minimum of six years and one day is also within the range of the next lower in degree of
prision correccional maximum (4 years, 2 months, 1 day to 6 years) up to prision mayor medium (8
years, 1 day to 10 years).

Alternative Answer:

Since there are three mitigating circumstances which justify the lowering of the penalty
by one degree, and only the presence of two mitigating circumstances will be enough to
lower the penalty by one degree, the excess of one mitigating circumstance should justify
the Judge to impose the minimum of the minimum (4 years, 2 months, 1 day) and the
minimum of the maximum (10 years, 1 day).

Question No. 13:


a) Boyet Mar was charged with consented abduction by a 17-year old complainant. The
accused made wedding arrangements with the girl, but her parents insisted on the prosecution of
the case. To avoid further embarrassment of a court trial for him and the girl, the accused entered
a plea of guilty. He then filed a petition for probation before serving sentence, but the court denied
the petition on the ground that “it would be better for the accused to serve sentence so that he
would reform himself and avoid the scandal in the community that would be caused by the grant of
the petition."

The accused served sentence but he brought the matter to the Supreme Court in a petition for
certiorari.

Did the trial court act correctly in denying the petition for probation?

Answer:
The trial court acted incorrectly. In Balleta vs. Leviste, 92 SCRA 719, the Judge
precisely denied the petition for probation on the same excuse stated in the problem. The
Supreme Court held that an accused must fall within any one of the disqualifications stated
in Section 9 of P.D. 960 in order to be denied probation.

Jose Lopez was convicted for the crime of serious physical injuries and, taking into account
two (2) mitigating circumstances, was sentenced to suffer imprisonment of four (4) months and twenty
(20) days, and to indemnify the victim in the amount of P25,000.00 as actual and com pensatory
damages. He applied for probation, which was granted by the court; however, the order of probation di-
rected him to pay in installment, at the rate of P1,000.00 a month, the damages awarded to the
offended party. Jose was able to pay only three (3) monthly installments. Because of such failure, the
offended party filed a motion for the execution of the civil aspect of the decision.

a) Is the order directing the payment of the damages in installment valid? Did it not modify the decision
after it had become final?

Answer:

a) Yes, the order directing payment in installment is proper. It did not modify the final decision
but only in the manner of its execution. (Similarly situated in the case of Agustin vs. Court of Appeals).

b) Should the motion for execution be granted?

Answer:

b) Execution should be granted as the decision is final and executory, following the dissenting opinion of
Justice I. Cruz in said case.

Question No, 14:

At 10:00 o’clock in the evening of 10 November 1990, upon his arrival from Cebu City, Marco surprised
his wife, Rosette, and her former boyfriend, Raul, both naked and in the act of illicit copulation. Raul got his
revolver and, upon seing the revolver, Marco ran toward the street, took a pedicab and proceeded to the house
of his brother, a policeman, from whom he borrowed a revolver. With the weapon, he returned to his residence.
Unable to find Raul and Rosette, Marco proceeded to a disco jointly owned and operated by Raul. It was already
11:00 o’clock that evening when he arrived at the joint. Upon seeing Raul with two (2) male companions, A and
B, drinking beer at one of the tables, Marco fired two (2) shots at Raul, who was hit on his forehead with one of
the bullets; the other bullet hit A, injuring him on his stomach. As a consequence of the gunshot wound, Raul
died instantaneously. Due to the timely medical attention given to him, A survived; he was, however,
hospitalized for 45 days. Marco was prosecuted for Murder for the death of Raul and for frustrated murder in
the case of A. The informations in both cases allege the qualifying circumstances of evident premeditation and
treachery and the generic aggravating circumstance of nighttime.

You are Marco’s lawyer. What would be your defense(s)?

Answer:
The defense with respect to the death of Raul is death under exceptional circumstances (Art. 247,
People vs. Abarca, 153 SCRA 735). Although the killing happened one hour after having surprised the
spouse, that would still be within the context of “immediately thereafter”.

With respect to the wounding of the stranger, the defense of lawful exercise of a right is a
justifying circumstance. Under Article 11, par. 5 could be invoked. At the time accused shot Raul, he
was not committing a felonious act and therefore could not have been criminality liable under Art. 4.
RPC.

Question No. 15:


A charged B with the crime of rape. While the case was pending in court, B, together with his mother and
brother, overpowered A while riding a tricycle, dragged her inside a carinderia owned by them and detained her
for two (2) days. They demanded that she sign an affidavit of desistance and reimburse B the sum of P5,000.00
which he paid to his lawyer in the case. She was released only after she signed the affidavit asking for the
dismissal of the case and delivered to B P1,000.00. She promised to deliver the balance of P4.000.00 thirty (30)
days later. What crime or crimes was/were committed by B, his mother, and brother?

Answer:

This is kidnapping with Ransom which is kidnapping or illegal detention committed by a


private person for the purpose of extorting ransom. Since the victim is a woman, it is serious.

Question No, 16:


As security for a loan of P50.000.00 he obtained from his friend, Joseph David, payable not later than 17
April 1990, Roger Vasquez drew and delivered to Joseph a check for P50,000.00 dated 17 April 1990. Upon its
presentment on due date, the check was dishonored on the ground of insufficiency of funds. On the basis of
the complaint of Joseph, and after appropriate preliminaiy investigation, the City Prosecutor filed against Roger
an Information for violation of B.P. Big. No. 22 alleging therein, inter alia, that Roger “with intent to defraud, by
means of deceit, knowing fully well that he had no funds and/or sufficient funds in the bank, for value received,
did then and there, willfully and feloniously, issue the aforesaid check” but “when the said check was presented
for encashment, said check was dishonored and returned” on the ground of insufficiency of funds.

In a decision rendered thereafter, the trial judge ruled that Roger cannot be convicted of the offense
charged because the information failed to allege that he knew, when he issued the check, that he would have
sufficient funds for its payment in full upon its presentment to the drawee bank.

Is the Judge correct?


Answer:
The Judge is not correct in dismissing the case. The allegation satisfies the legal definition of the
offense. The maker's knowledge of insufficiency of his funds is legally presumed from the dishonor of
the check for lack of funds. (People vs. Lagu.i, 171 SCRA 305).

Question No. 17:

A, the Director of the Southern Islands Hospital in Cebu City, a government training hospital,
instructed the withholding of the salaries of Y, one of the Medical Specialists of the hospital, for the
months of January, February and March 1989 due to Y’s failure to submit his daily time records,
and his salary for the period 1 to 15 April 1989 which was the period covered by his application for
sick leave which A disapproved when he found out that Y was not actually sick. A likewise ordered
the removal of Y’s name from the plantilla because of the former’s dissatisfaction with the services
of the latter who continued teaching, even during office hours, in a medical college in Cebu City.
Nevertheless, after Y submitted his daily time records in May 1989, his salaries were released. Also,
his name was later re-included in the final plantilla.

A was charged before the City Prosecutor’s Office of Cebu City for violation of Section 3,
paragraph (c) of RA No. 3019, as amended, which considers as among the corrupt practices of any
public officer and declares unlawful the following: “causing any undue injury to any party,
including the Government, or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial functions through partiality,
evident bad faith, or gross inexcusable negligence, x x x”

If you were the investigating prosecutor, how would you resolve the case?

Answer:
Liable, I will file the information as one of the corrupt practices is causing undue injury
to any party, including the government due to evident bad faith, Sec. 3(e), RA No. 3019.

Alternative Answer:
The Director is not liable under Sec.3(e), RA 3019, because there was no “undue injury”
suffered by Y.

Question No'. 18:

A, who was the client of B (a lawyer), signed a retainer agreement for the payment of attorney’s fees. After
B rendered satisfactory service, A refused to pay the attorney’s fees. B sued. In her verified answer, A alleged
that she did not owe money to plaintiff B nor did she engage his legal services. These statements under oath
were false.

B filed a criminal complaint for perjury against A, and an information was filed in court. If you are the
lawyer for accused A, what is your defense, if any?

Answer:

I will move for the dismissal of the complaint for perjury. The falsity of sworn statement must be
required or authorized by law (Flordeliz v. Himalalaon, 84 SCRA 277).

Question No. 19:

A entrusted her car to B for repainting at the agreed cost of P7,800.00. When the painting job was
finished, A wanted to get the car but B refused to deliver until payment is made. When A came back the next
day, the shop was already closed, and B and the car were nowhere to be found. When finally B was located, he
told A that he sold the car and applied the amount to the repainting cost and labor.

A sued B for estafa. The information related the above facts, indicating the car as the subject of the felony.
The Regional Trial Court convicted B for the crime charged. Under the facts, is the conviction proper?
Answer:

Conviction was correct. Estafa was really committed as B had both physical and juridical
possession of the car. Having painted the car, he acquired a lien thereto, and therefore could exercises
that right against the whole world, including the owner.

Question No. 20:


A, an Assistant Provincial Prosecutor of Cebu, was assigned to conduct the preliminary
investigations of two criminal cases: (1) for rape against X. and (2) for estafa against Y. Unknown to
the complainants, both respondents were schoolmates of A in their high school years in Lanao del
Norte. Despite the overwhelming evidence against X. A dismissed the rape case. Despite the
overwhelming evidence against Y. A did not file the information for estafa because according to him.
the folder of the case to which were attached the dishonored checks and other documents offered in
evidence by the complainant was stolen. Contrary to such claim, the folder was kept in a safe in his
house.

What offense or offenses under the Title on Crimes Committed By Public Officers of Book Two
of the Revised Penal Code may A be charged with?

Answer:
Art. 208 is violated, that is maliciously refraining from instituting prosecution for
punishment of violators of the law. Likewise, the prosecutor is liable under Art. 226 for
removing and cancelling public document entrusted to his custody.
1990 Bar Examination

Question No. 1:
Aki and Ben, while walking together, met Caloy. There was an altercation between Ben and Caloy so that
Ben chased and stabbed Caloy with a knife hitting his right aim thereby causing slight physical injury. Ben
desisted from further assaulting Caloy, but Aki lunged at Caloy and felled him this time with a bolo which
mortally wounded Caloy. Thus, he died.

a) What is the criminal liability of Aki? How about that of Ben? Explain your answers.

b) Assuming conspiracy is established, will your answer in problem (a) be the same? Explain your
answer.

Answer:
a) Aki is liable for homicide because, while it is clear that he intentionally caused the deafh of
Caloy, none of the circumstances attendant to murder are present. Intent to kill is clear as Aki lunged
at Caloy, after the latter was inflicted a wound at the right arm, and gave him a mortal wound.

Ben is guilty only of slight physical injuries as it is evident from the wound he inflicted upon
Caloy that he did not intend to kill the latter. Also, there was no other act on the part of Ben to show
such intent.

b) No, there being no conspiracy each will be liable for their own individual act. This time both
will be liable for homicide because in conspiracy, the act of one is the act of all (People v. Damaso, G.R.
Nos. L-30116-7, 20 November 1978).

Question No. 2:
Dencio, who is the Municipal Treasurer of the town, was also the treasurer of a charity ball of the church.
Because he was short of payroll funds for the municipal employees, he used part of the church funds to
replenish the payroll funds with the intention of returning the same when the public funds came.

a) Is Dencio guilty of malversation under the revised Penal Code? State your reasons.
b) Assuming that he failed to replenish the church funds, may he be held criminally liable
thereby? Explain.

Answer:
a) No. The church funds used by Dencio do not constitute public funds which are the proper
subject of malversation. Neither does said funds constitute the so-called private funds, which could be
the proper subject of malversation under Article 222, Revised Penal Code which pertain to private
property placed in the custody of public officers by reason of their office.

b) Yes, momentaiy use of funds, since there is defraudation, is tantamount to estafa under
Article 215 of the Revised Penal Code. This is because he received the funds in his fiduciary capacity as
treasurer and there was temporary damage caused. Personal benefit is not an element of the crime of
estafa.

Question No, 3:
a. In mercy killing, is the attending physician criminally liable for deliberately turning off the life support
system consequently costing the life of the patient? State reasons.

b. How about in an instance when in saving the life of the mother, the doctor sacrificed the life of the
unborn child? Explain your answer.

Answer:
a. Ihe attending physician is criminally liable. Euthanasia is not a justifying circumstance in
Philippine jurisdiction.

b. There is no criminal liability on the part of the doctor because his acts are justified under
Article 11(4) of the Revised Penal Code which provides that: "The following do not incur any criminal
liability: x x x 4) any person, who in order to avoid an evil or injury, does an act which causes damage to
another, provided that the following requisites are present: First: That the evil sought to be avoided
actually exists; Second. That the injury feared be greater than that done to avoid it; Third. That there
be no other practical and less harmful means of preventing it."

Alternative Answer:
There is no criminal liability on the part of the doctor because his acts are justified under Article
11(5) of the Revised Penal Code which provides that: "The following do not incur any criminal liability:
x x x (5) Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.”

Question No. 4:
In the middle of the night, Enyong heard the footsteps of an intruder inside their house. Enyong picked
up his rifle and saw a man, Gorio, with a pistol ransacking Enyong’s personal effects in his study. He shot and
killed Gorio.

a. Is Enyong criminally liable for killing the robber Gorio? State your reasons.

b. Suppose Enyong shot Gorio while he was running away from Enyong’s house with his
television set, what is Enyong liable for? Explain your answer.

Answer:
a. Enyong is not criminally liable because he was acting in defense of property rights. Under
the case of People v. Narvaez (G.R. Nos. L-33466-67. April 20, 1983, 121 SCRA 389) defense
of property need not necessarily be coupled with aggression against persons.

b. There is criminal liability this time with the mitigating circumstance of


incomplete self-defense. Under the case of People v. Narvaez, defense of property
can be availed of even when there is no assault against a person. It is recognized
as an unlawful aggression.

Question No. 5:
Rico was convicted of raping Letty, his former sweetheart. by the Regional Trial Court of
Manila and he was ordered to serve the penalty of life imprisonment, to indemnify Letty in the
amount of P30.000.00 and to support their offspring. Pending appeal in the Supreme Court. Rico
died. His widow, Bemie, moved for a dismissal of the case.

a. What is the legal effect of Rico’s death on his criminal liability? Explain your
answer.

b. How about on his civil liability? State your reasons.

Answers:
a. The criminal liability of Rico is extinguished on the basis of Article 89 of the
Revised Penal Code which provides that: “ How criminal liability is extinguished -
Criminal liability is totally extiguished: 1. By the death of the convict, as to the
personal penalties; and as to pecuniary penalties, liability therefor is extinguished
only when the death of the offender occurs before final judgement.
b. The civil liability of Rico survives. (People v. Sen- davdiego, January 20, 1978,
74 O.G. 4371; People v. Tirol G.R. No. L-30588, January 31, 1981; People v. Naboa,
et, al.,132 SCRA 410).

Question No. 6:
a. Lando and Marco are candidates in the local elections. In his speeches Lando attacked
his opponent Marco alleging that he is the son of Nanding, a robber and a thief who amassed his
wealth through shady deals. May Marco file a case against Lando for grave oral defamation? State
your reasons.

b. Suppose Marco also delivered a speech stating therein that he had charged Lando of estafa
through falsification in the Tanodbayan so much so that since his (Lando's) integrity is doubtful he should not
be elected. May Marco also be held liable for grave oral defamation? State your reasons.

Answer:
a) Marco cannot file a case for grave oral defamation. If at all, he may file a case for light slander.
In the case of People v. Laroga (40 O.G. 123), it was held that defamation in a political meeting, when
feelings are running high and people could not think clearly, only amount to light slander.

b) No, Marco cannot be held liable for grave oral defamation considering that Lando was merely
stating what appears in a public record, referring to the exercise of a legal right to file suit. Moreover,
his statement against Marco pertains to a person who is running for public office wherein a wider
latitude is given.

Question No, 7:
Oscar owns and operates a gift and jewelry shop. Pilar sold to him for PI,000.00 a five (5) carat diamond
ring which she stole.

a) May Oscar be held criminally liable under the Anti- Fencing Law (P.D. No. 1612)? Explain your
answer.

b) How can Oscar acquire immunity from criminal prosecution for purchasing the diamond ring from
Pilar and thus enable him to sell the same to the general public for a profit? Explain your answer.

Answer:
a) Yes. he is liable for fencing. The price is unconscionable. This shows that he would have
known of the fact that the ring was stolen. Section 2 of P.D. 1612.,the Anti-Fencing Law of 1979,
provides that: a. “Fencing” is
the act of any person who, with intent to gain for himself or for another, shall buy, receive x x x, sell or
dispose of, or shall buy and sell, or in any other manner deal in any article x x x of value which he
knows, or should be known to him, to have been derived from proceeds of the crime of robbery or
theft”.

b) Oscar should secure a clearance/permit to sell the second-hand ring from the proper INP
station commander pursuant to Section 6, P.D. 1612. The said section states that any person who fails
to secure the clearance or permit, upon conviction. Shall be punished as a fence.

Question No, 8:
Rina, who was a suspended Clerk of Court, was convicted of malversation and was sentenced to
imprisonment, to pay a fine of P5.000.00 and to indemnify the government in the same amount. Pending
appeal in the Court of Appeals, she was extended an absolute pardon by the President. Thus, she applied for
reinstatement, payment of backwages, and absolution from payment of the One and indemnify.

Decide the issue with reasons.


Answer:
Rina cannot apply for reinstatement, etc. as there was no effective pardon by the President. It is
basic that pardon can only be granted after final conviction (Barrioquinto v. Fernandez, 85 Phil. 642).

Question No. 9:
a. Melda, who is the private secretary of Judge Tolits Naya, was persuaded by a litigant, Jumbo, to have
his case calendared as early as possible for a consideration of P500.00. May she be held criminally liable for this
accomodation? Explain your answer.

b. What will be the criminal liability of Melda if she volunteered to persuade Judge Tolits Naya to rule in
Jumbo’s favor without asking any consideration? Explain your answer.

Answer:
a. The answer would depend/be qualified by the implication of the phrase “to have his case
calendared as early as possible".

If the phrase is interrupted as an unjust act and in violation of the rule to give priority to the older
cases, then she would be liable under direct bribery for an act which does not constitute a crime but is
unjust He may also be held liable under Section 3(e) of RA. 3019, the Anti-Graft and Corrupt Practices
Act, as amended: “x x x giving any private party any unwarranted benefits".

If you interpret the phrase as a non-violation of the rules and regulations then he can only be held
liable for direct bribery.

b. Melda is not criminally liable because the act of volunteering to persuade is not a criminal act It
is the act of persuading that is considered a criminal act. The act does not fall under Article 210 of the
Revised Penal Code on Direct Bribery nor does it fall under Article 211 of the RPC on Indirect Bribery.
Neither does it fall under the Anti- Graft and Corrupt Practices Act. Section 3(a) of RA. 3019 refers to
acts of persuading another public official to violate rules and regulations.

Question No. 10:


Exidor issued a check in payment of goods delivered to him by Virginia. Unfortunately the check bounced
for lack of sufficient funds.

a. What is the criminal liability of Exidor? Explain your answer.

b. Suppose the bouncing check was postdated, will your answer be the same? State your
reasons.
Answer:
a) Exidor is liable under the Bouncing Checks Law (B.P. 22) and for estafa under Article
315, par. 2(d), Revised Penal Code.

b) He will only be liable under the Bouncing Checks Law. (B.P. 22).

Question No. 1 1 :
Amy was apprehended and arrested by Patrolman Bart for illegal parking. She was detained at
the police precint, underwent investigation, and released only after 48 hours.

a) Patrolman Bart liable for any offense? Explain your answer.

b) Suppose Amy resisted the arrest and grappled with patrolman Bart, is she criminally liable
thereby? State your reasons.

Answer:
a) Patrolman Bart is liable for violation of Article 125 of the Revised Penal Code - Delay
on the Delivery of Detained Persons to the Proper Judicial Authorities.

b) She is criminally liable for slight disobedience under Article 151 of the Revised Penal
Code - Resistance and disobedience to a person in authority or the agents of such person.

Question No. 12:

a. Carlos was charged and convicted of murder. He was sentenced to life imprisonment and
to indemnify the offended party in the amount of P30.000. He sought a reconsideration of
the penalty on the ground that he should be entitled to the benefits of the Indeterminate
Sentence Law. Decide with reasons.

b. Suppose that instead of filing a motion for reconsideration he applies for probation. If you were the
judge, will you grant the same? Explain your answer.

Answer:
a) Carlos is not entitled to avail of the Indeterminate Sentence Law because Section 2 of said law
specifically disqualifies and disallows application thereof to persons sentenced to life imprisonment.

b) I will not grant the application for probation as it is clear in the Probation Law that the benefits
thereof shall not apply to those sentenced to serve a maximum term of imprisonment of more than six
(6) years. (P.D. 1990).

Question No. 13:


Maloling is a public official who resigned from the service on February 1, 1984. On February 15, 1990, the
Solicitor General filed a petition in court for the forfeiture of the property of Maloling which was allegedly
unlawfully acquired.

a) If you were the counsel of Maloling, what defense or defenses would you interpose? Explain your
answer.

b) Besides property unlawfully acquired found to be in the name of Maloling, what are the other
properties not in his name which may nevertheless be considered unlawfully acquired? Explain your answer.

Answer:
a) I would interpose the defense of prescription as the right to file a petition for forfeiture under
Republic Act No. 1379 Section 2 prescribes in four (4) years from the date of resignation.

b) Property which may still be considered as unlawfully acquired, though not in the name of
Maloling at the time of filing of the petition for forfeiture, shall include:

1) Property unlawfully acquired by the respondent but its ownership concealed by


being recorded in the name of, or held by, the respondent’s spouse, ascendants,
descendants, relatives or any other person; and

2) Property unlawfully acquired by the respondent, but transferred by him to


another person/s. (R-A. 1379 Section 1(b)).

Question No. 14:


Rodolfo is an informer who told the police authorities that Aldo is a drug pusher. Policeman
Taba then posed as a buyer and persuaded Aldo to sell marijuana worth PI0.00 to the former. Aldo
agreed. He delivered the goods and so was apprehended with the marked money. He is now prose-
cuted for violation of the Dangerous Drugs Act.
a) Aldo’s defense is that he1 was the victim of an instigation of the police who persuaded him
to sell the goods to him. Decide the case with reasons.

b) Suppose policeman Taba told Aldo that he (Taba) has a supply of marijuana and he
persuaded Aldo to sell it to him because he (Taba) needed the money badly. Aldo succeeded in
selling P20.00 worth of marijuana to Moye. What is the criminal liability of Aldo if apprehended in
the act? Explain.

Answer:
a) Aldo’s defense in untenable as what happened here was entrapment. With or without
the act of Policemen Taba, Aldo would have went on selling the marijuana to another buyer.
The finding, it must be noted, was that Aldo was continously engaged in the act of pushing
drugs. (People v. Tia, 51 O.G. 1863).

Alternative Answer:
This is a case of instigation because Aldo was persuaded by Policeman Taba, who was
posing as buyer, to sell marijuana.

b) Aldo is liable for violating the Dangerous Drugs Act (RA. No. 6425, as amended) in
performing the act of selling narcotics.

Question No. 15:


a) Ka Jacinto, who is an NPA commander, was apprehended with unlicensed firearms and explosives.
He was accordingly charged with illegal possession of said firearms and explosives. He now questions the
filing of the charges on the ground that they are deemed absorbed in a separate charge of rebellion filed
against him. Decide the issue.

b) Suppose Ka Jacinto, using one of the unlicensed firearms, shot and killed his neighbor in an
altercation. May the charge of murder and illegal possession of firearms be deemed absorbed in the separate
charge of rebellion filed against him? Resolve the matter with reasons.

Answer:
a) The charge of illegal possession of firearms and explosives is deemed absorbed in the crime
of rebellion, such possession being a necessary means for the perpetration of the latter crime. [EUas
v. Rodriguez, 107 Phil. 659).

b) The charges here could not be absorbed in the separate charge of rebellion as it is clear that
the act of murder, coupled with the possession of an unlicensed firearm, was not in furtherance of
the rebellion.
1989 BAR EXAMINATION

Question No. 1:

What do you understand by aberratio ictus; error in personae; and praeter intentionem? Do they alter the
criminal liability of an accused? Explain.

Answer:
Aberation ictus, error in personae and praeter intentionem are the three ways by which a person
may commit a felony although the wrongful act done is different from that which he intended.
In aberratio ictus, there is a mistake in the blow meaning to say that the offender intending to
cause an injury to one person actually inflicts it on another because of lack of precision, as far for
example when A, intending to kill B, fires his gun at the latter but because of poor aim or lack of
precision, he hits C instead, who suffers serious physical injury.
In error in personae, there is a mistake in the identity of the victim, as for instance, when A,
intending to kill B, his enemy lay in ambush for the latter to pass along a dark alley. Because of the
darkness, A fired his gun at a person passing by, thinking him to be B. It turned out that the person
shot was C, A's father.
In praeter intentionem, the injurious result is greater than that intended by the offender, the act
exceeds the intent, as for instance, where A, without intent to kill, strikes B with his fist at the back of
the head, causing B to fall down with his head hitting the asphalt pavement, resulting in the fracture of
his head that caused his death.

The presence of these circumstances will alter the criminal liability of the accused. Thus:
In aberratio ictus, two offenses are actually committed by the offender, that which he intended to
commit and that which he actually committed. But if these two offenses are both either grave or less
grave, since they are produced by one single act, a complex crime will result.

In the case of error in personae, the offender shall be guilty of the crime actually committed by
him, but the penalty to be imposed shall either be the penalty for the crime actually committed or that
for the crime intended to be committed. Which ever is lower, but the same will be imposed in its
maximum period.
In the case praeter intentionem, the offended, will incur criminal liability for the felony actually
committed by him, but he will be entitled to the mitigating circumstance of not having intended to
commit so grave a wrong as that which he committed.

Question No. 2:

Nicandro borrowed Valeriano’s, gun, a high-powered M-16 rifle, to hunt wild pigs. Nicandro was
accompanied by his friend, Felix. On their way to the hunting ground, Nicandro and Felix met Pedro near a hut.
Pedro told them where to hunt. Later, Nicandro saw a pig and then shot and killed it. The same bullet, however,
that killed the pig struck a stone and ricocheted hitting Pedro on his breast. Pedro later died. May Nicandro be
held liable for the death of Pedro? Explain.

Answer:
Nicandro may be held liable for the death of Pedro. While Pedro’s death would seem to be
accidental, the requisites of exempting circumstance of accident are not all present. Said requisites are:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it (Art. 12, par. 4, RPC).
When Nicandro borrowed Valeriano’s high powered M-16 rifle and used it for hunting wild pigs, he
committed the crime of illegal possession of firearms, as he does not appear to have either a license to
possess a high-powered gun or to carry the same outside of his residence. At the time he shot at the
wild pig, therefore, Nicandro was not performing a lawful act.

Furthermore, considering that the M-16 is a high- powered gun. Nicandro was negligent in not
foreseeing that bullets fired from said gun may ricochet.

Question No. 3:

Rodolfo, a policeman, was cleaning his service pistol inside his house when it fell from his hand and fired.
The bullet hit a neighbor on the stomach and a second neighbor on the leg. The injuries sustained by the two
neighbors required thirty-five (35) days and nine (9) days of medical attendance, respectively. The investigating
fiscal later filed an information for frustrated homicide and slight physical injuries through reckless imprudence
against Rodolfo. Is the charge correct? Explain.

Answer:
The charge is not correct.
One single act of accidental shooting cannot give rise to two felonies. One of which is intentional and
the other negligent. Frustrated homicide presupposes intent to kill. The facts do not show any intent to
kill on the part of Rodolfo. At most, he was careless, and therefore only negligent.
Two separate crimes of serious physical injuries (against the first neighbor whose injuries requires
35 days of medical attendance), and slight physical injuries (against the second neighbor), both through
reckless imprudence, were committed by Rodolfo. Although both of these offenses were the result of
one single act, a complex crime is not committed because it is only when a single act constitutes two
or more grave or less grave felonies that a complex crime may be committed under the first clause of
article 48, RPC. Slight physical injuries is not a grave or less grave felony.

Question No. 4:

Andres was earlier convicted of adultery and served an indeterminate penalty, the maximum term of
which did not exceed two (2) years, four (4) months and one (1) day of prision correctional. A month after his
release from prison, he was charge with the crime of serious physical injuries. Later, Andres was again charged
with homicide punishable by reclusion temporal. He entered a plea of guilty in the homicide case. May the
aggravating circumstances of recidivism and/or habituality (reiteracion) be appreciated against Andres?
Explain.

Answer:
The aggravating circumstance of recidivism cannot be taken against Andres. For this circumstance to
exist, it is necessary that —
1. The offender is on trial for an offense;
2. He was previously convicted by final judgment of another crime;
3. Both the first and second offenses are embraced in the same title of the Code; and
4. The offender is convicted of the new offense (Art. 14, par. 9 RPC).
At the time of his trial for homicide, Andres was not previously convicted by final judgment of
another crime embraced in the same title of the Revised Penal Code. Adultery, which is his only
previous conviction by final judgment is a crime against chastity, and therefore is not embraced in
the same title of the Code as homicide, which is a crime against person.
As for the charge of serious physical injuries, although serious physical is also a crime against
person, it appears that he had not as yet been conviced, much less by final judgment, of the charge
at the time that he was facing trial for homicide.
The aggravating circumstance of habitually or reiteracion can likewise not be taken against
Andres because in order that this circumstance can exist, it is necessary that he was facing trial for
homicide.
The aggravating circumstance of habituality or reiteracion can likewise not be taken against
Andres because in order for this circumstance to exist, it is necessary that—
1. The accused is on trial for an offense;
2. He previously served sentence for another offense to which the law attaches an equal or
greater penalty, or for two or more crimes to which it attaches a lighter penalty than that for the
new offense;
3. He is convicted of the new offense.
In the case at bar, Andres had previously served sentence only for one offense that of adultery,
but the penalty for adultery (prison correctional) is lighter than then penalty for homicide
(reclusion-temporal). Consequently, there is no aggravating circumstance of habituality or
reiteracion.

Question No. 5:

Boy Bala was a notorious gang leader who had previously killed a policeman. The Chief of Police ordered
his vice squad headed by Captain Aniceto, to arrest Boy Bala and shoud he resist arrest, to shoot and kill him.
Acting upon an informer's tip, Aniceto and two (2) of his trusted men went to the Corinthian nightclub where
they saw Boy Bala dancing with a hostess. Without any warning, Aniceto shot Boy Bala who slumped on the
dance floor. As Aniceto aimed another shot at Boy Bala, the brother of the latter, Pedro, who was seated at a
table nearby, got hold of a table knife and stabbed Aniceto killing him instantly. The Chief of Police filed a
homicide case against Pedro for the death of Aniceto. On the other hand, Pedro filed a complaint for murder
against the Chief of Police for the death of Boy Bala alleging that the issuance of the shoot-to-kill order was
illegal and the Chief of Police was liable as a principal by inducement. How tenable are the respective claims of
the Chief of Police and Pedro? Explain.

Answer:
The charge for murder against the Chief of Police for the death of Boy Bala is not tenable.
Although, the Chief of Police is the superior on Captain Aniceto who shot Boy Bala in cold blood, he
cannot be held accountable for the act of Aniceto. His order was specific; to arrest Boy Bala and should
he resist arrest, to shoot and kill him. Aniceto did not act in compliance with this order. He shot Boy
Bala without warning, without even attempting to make an arrest. Consequently, it could not be said
that the killing of Bala by Aniceto was induced by the Chief of Police so as to make the latter criminally
liable as a co-principal by inducement. The liability for the death of Bala is individual and not collective.
On the other hand, the charge of homicide against Pedro for the stabbing of Aniceto is likewise not
tenable.
Pedro acted in legitimate defense of relative, he being the brother of Boy Bala. All the requisites of
this justifying circumstance are present. Thus:

1. There was unlawful aggression. At the time that Pedro stabbed Aniceto, the latter had already
shot at Boy Bala and was in the act of shooting him for the second time. The aggression is unlawful
although Aniceto is a police officer and Boy Bala is notorious gangster. By shooting Boy Bala without
warning instead of attempting to arrest him first, Aniceto became an unlawful agressor.
2. There was reasonable necessity of the means employed by Pedro to prevent or repel unlawful
aggression. The use of a knife against a gun for defense is reasonable.

3. Assuming that Boy Bala had provoked that attack on his person by Aniceto because of his
having earlier killed a policeman, it does not appear that Pedro, the one making the defense had taken
any part in said provocation.

Question No. 6:

Mario, a law student, wanted to avenge the death of his brother, Jose, in the hands of Pedro and his gang.
So, Mario talked to Dalmacio, known tough guy, to kill Pedro by promising him P50,000 to be paid after he had
accomplished the killing. Dalmacio agreed. Since Pedro was to appear in court the following day at 9:00 a.m. at
the city hall to attend the hearing involving the death of Jose, Mario told Dalmacio to carry out the plan at that
exact time in the court room, to which Dalmacio assented. At 8:50 a.m., Mario went to see Captain Malonso of
the Police Department and told him that Dalmacio would kill Pedro at 9:00 a.m. at the city hall. He asked
Captain Malonso to prevent it and so the latter rushed to the city hall but arrived at 9:05 a.m. when Dalmacio
had already killed Pedro. Is Mario liable as coprincipal with Dalmacio for the killing of Pedro? Give your reasons.

Answer:
Mario is a principal by inducement. By promising to give P50,000.00 to Dalmacio, which is an
agreement for a consideration for the purpose of avenging his brother's death the inducement was
made directly with the intention of procuring the commission of the crime. Furthermore, the facts
show that Dalmacio has no personal reason to kill Pedro except the inducement, which is therefore the
determining cause for the commission of the crime by Dalmacio.
Mario's change of mind and heart at the last minute, which did not, after all, prevent the
consummation of the crime, because it was too late, does not alter the course of his criminal liability as
a co-principal by inducement. Desistance from carrying out a criminal design is no defense if such
desistance has not actually and successfully prevented the commission of the crime.

Question No. 7:

Pedro was convicted of the crime of damage to property through reckless imprudence for bumping the car
of Jose and the court of sentenced him to pay a fine of P3,Q00. Pedro failed to pay die amount of the fine for he
was insolvent. Later, the court ordered the incarceration of Pedro so that the latter could serve subsidiary
imprisonment to satisfy the fine. Pedro filed a petition for habeas corpus alleging that his confinement is illegal.
Will the petition prosper? Give your reasons.

Answer:
The petition for habeas corpus will prosper. Subsidiary penalty is not an accessory penalty which
inheres to a principal penalty and may therefore be imposed even if it is not expressly provided in the
sentence. It is a penalty in lieu of the penalty imposed in the sentence. Hence, unless the judgment or
sentence expressly provides for subsidiary imprisonment, the culprit cannot be made to undergo the
same (People vs. Fajardo, 65 Phil. 639).
In this case, the court merely sentenced Pedro to pay a P3,000.00 fine. It was only
LATER that the Court ordered the incarceration of Pedro to serve subsidiary imprisonment
AFTER Pedro failed to pay the amount of the fine. Subsidiary imprisonment cannot be
imposed unless it is expressly provided in the sentence.

Question No. 8:

Andres is charged with an offense defined by a special law. The penalty prescribed for the
offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon
arraignment, he entered the plea of guilty. In the imposition of the proper penalty, should the
Indeterminate Sentence Law be applied? If you were the judge trying the case, what penalty would
you impose on Andres?

Answer:

The Indeterminate Sentence Law should be applied in this case. By express provision of
said law (section 1) it is applicable to offenses punished by special laws. The indeterminate
sentence in such cases shall consist of a maximum term which shall not exceed the
maximum fixed by the special law and a minimum term which shall not be less than the
minimum term pescribed by the same.
If I were the judge trying the case, I would impose a penalty consisting of any duration
not less than 5 years as minimum term and any duration not more than 10 years as
maximum term. It could be five years and 1 day to 7 years; 7 years, six months and 1 day to
9 years; or any other sentence where the minimum term is not less than 5 years and the
maximum term not more than 10 years.

The plea of guilty cannot be considered as a mitigating circumstance in this case. The
imposition of the indeterminate penalty in a special law rests upon the discretion of the court.
Also, the pleas of guilty as a mitigating circumstance under the Revised Penal Code is appreciated only
in a divisible penalty. It cannot be applied to a penalty which is not divisible into periods of fixed
duration, like the penalty provided in special laws.

Question No. 9:

Jose is charged with bigamy. The Revised Penal Code prescribes the penalty of prision mayor for this
offense. The information filed against Jose alleged one aggravating circumstance. Upon being arraigned, he
entered the plea of guilty and invoked the additional mitigating circumstance of voluntary surrender which
the trial fiscal admitted. If you were the judge trying the case, from what range of the prescribed penalty
would you determine the proper penalty (to constitute the maximum term of an indeterminate sentence) to
be imposed on Jose?

Answer:
I would take the maximum term of the indeterminate sentence from the range of prision mayor
in its minimum period. This is so because while there are two ordinary mitigating circumstances
present, one of them is offset by an aggravating circumstance. Consequently, it is as if the crime is
attended by only one ordinary circumstance and this will result in the imposition of the minimum
period of the penalty prescribed by law.
The presence of two or more ordinary mitigating circumstances will give rise to a privileged
mitigating circumstance only if there is no aggravating circumstance present and the penalty
prescribed by law is divisible. In this case, while the penalty of prision mayor is divisible, and while
there are two ordinary mitigating circumstances present, there is an aggravating circumstance. This
precludes the reduction of the penalty by one degree lower inasmuch as the two ordinary
mitigating circumstances cannot be considered as a privileged mitigating circumstance.

Question No. 10:

Alberto, Bernado and Carlos were looking for a person named Virgilio whom Carlos suspected
of stealing his fighting cock. Alberto and Bernardo were policemen, while Carlos was a caretaker of
fighting cocks. Carlos requested Alberto and Bernardo, then in uniform, to accompany him to
Virgilio’s house to look for the fighting cock. Alberto, Bernardo and Carlos went to Virgilio’s house.
When the policemen knocked on the door, Virgilio’s wife, Maria, opened it. The policemen told Maria
that they came to inquire about a lost fighting cock. Before Maria could utter a word, the trio
barged inside, the house. Once inside, the policemen told Maria that Carlos was suspecting her
husband, Virgilio, to have stolen his fighting cock. Maria protested and immediately required the
three to leave. The policemen refused. Instead, they started searching the house for the fighting
cock over the objections of Maria who said that she would file a complaint against them after her
husband comes from work. As they did not see any fighting cock, the three left. What crimes, if any,
did Alberto, Bernardo and Carlos commit?

Answer:

Alberto and Bernardo, being policemen, committed the crime of VIOLATION OF


DOMICILE (Art. 128, RPC). There are three ways by which a public officer or employee may
commit this crime, namely:
By entering any dwelling against the will of the owner. The door having been opened by Maria,
although Alberto, Bernardo and Carlos barged inside the house before Maria could utter a word, they did
not enter against Maria’s will, there being no opposition or prohibition against entrance whether
express or implied. Without the consent is not against the will (People vs. Sane, CA 40 OG Supp 5, 113).
1. By searching papers or other effects found therein without the previous consent of such
owner. Maria had objected to the search for the fighting cock inside her dwelling, but despite
said objection, the policemen searched the house. This makes them criminally liable for the
second way of committing the crime of VIOLATING OF DOMICILE.
2. By refusing to leave the premises, after having surreptitiously entered said dwelling and
after having been required to leave the same. Although the policemen were ordered to leave
the house, they did not enter it surreptitiously, meaning clandestinely or secretly.
Insofar as Carlos is concerned, not being a public officer or employee, he cannot
commit the crime of VIOLATION OF DOMICILE. He is not guilty of trespass to dwelling,
either because he did not enter the dwelling AGAINST THE WILL of the owner, which is the
essential element of Trespass.

Question No. 11:


Edgardo, a policeman, accompanied by Florencio went ' to serve a warrant of arrest on Emilio,
a professional boxer, at the latter’s apartment. Upon seeing Edgardo, Emilio immediately boxed
him. Edgardo fell flat on the floor. As Florencio tried to help Edgardo on his feet, Emilio also boxed
Florencio. The injuries inflicted upon Edgardo and Florencio required medical attendance for nine
(9) days. What crime or crimes were committed by Emilio? Give your reasons.

Answer:
If Emilio was not aware that Edgardo was a police officer who was going serve a warrant
of arrest on him,
Emilio would be guilty only of slight physical injuries on two counts, one against Edgardo
and the second against Florencio.
If Emilio knew Edgardo as a policeman and of the latter’s purpose to serve a warrant of
arrest on him, and that is why he boxed Edgardo, then he will be guilty of either DIRECT
ASSAULT UPON A PERSON IN AUTHORITY or RESISTANCE OR DISOBEDIENCE TO AN AGENT
OF A PERSON in authority, depending on the degree of force employed by him. A person who
attacks, employs force makes a serious intimidation or makes a serious resistance against a
person in authority or his agent, if at the time of the assault the latter is engaged in the
actual performance of his official duties, the offended party knowing that the person he is
assaulting is a person in authority or his agent, it liable for the crime of DIRECT ASSAULT. A
policeman is an agent of a person in authority.
As for Florencio, the crime committed by Emilio against him would be indirect Assault
provided that Emilio has committed DIRECT ASSAULT against Edgardo. This is so because
any person who shall make use of force or intimidation upon any person coming to the aid of
the authorities or their agents on occasion of the commission of the crime of DIRECT
ASSAULT, is criminally liable for the crime of INDIRECT ASSAULT. However, if Emilio is
guilty only of RESISTANCE or disobedience as against Edgardo; then his crime against
Florencio would only be slight physical injuries.

Question No. 12:

Oscar, a former welder and painter at the Caloocan Motor Works owned by Arturo, went to the
Downtown Hardware Store where Arturo gets materials on credit, and presented to its manager a typewritten
order for two (2) cans of “Dietsler” car paint. The signature of Arturo on the order was falsified. After receiving
the paint, Oscar sold them and kept the proceeds therefrom. If you were the investigating fiscal, what charge or
charges will you file against Oscar? Explain.

Answer:
The proper charge against Oscar is Falsification of a Private Document. This is so for the
following reasons:
By forging the signature of Arturo on the typewritten purchase order for two cans of car
paint, Oscar committed the crime of falsification. The document falsified by him, however, is
a private document. A typewritten purchase order is neither a public, official or commercial
document. It is a private document. Falsification of a private document, however, is not a
crime unless there is' damage or intent to cause damage. When Oscar used the falsified
private document to obtain the two cans of paint from the hardware store, the element of
damage arose, thus consummating the crime of FALSIFICATION OF A PRIVATE DOCUMENT.
Precisely because damage is an essential element of the crime of falsification of a
private document, Oscar cannot be convicted of the complex.crime of ESTAFA THRU FALSI-
FICATION OF PRIVATE DOCUMENT. Only one single crime of FALSIFICATION OF PRIVTE
DOCUMENT is committed here. The damage to another is caused by the commission of said
crime. The intent to defraud in using falsified private document is part and parcel of said
crime and cannot give rise to the crime of estafa, because damage, which is also an essential
element of estafa, is caused by, and becomes the element of, the crime of falsification of
private document. The crime of estafa is not committed, as it cannot exist without its own
element of damage.
If the private document in the case was falsified, not to induce the offended party to
part with something of value but to cover up or conceal a defraudation previously made, then
the crime committed would be ESTAFA. The falsification would be absorbed in said offense,
the element of damage in one being the same as that required in the other.

Question No. 13:

Ernani was accused of estafa. Unable to post a bail bond for his provisional liberty pending
trial of his case, he was detained in the city jail. On the date of the hearing of the estafa case,
Daniel, a policeman detailed in the city jail, escorted Ernani to the city hall for the trial. Daniel
removed the handcuffs of Ernani and allowed him to sit on one of the chairs inside the courtroom.
As Daniel was talking to a lawyer inside the courtroom, Ernani, with the help of a cigarette vendor,
Meynardo, who used his cigarette container as cover, surreptitiously moved out of the room and
escaped. Ernani and Meynardo went to the comfort room for a while, then went down the stairs and
lost themselves in the crowd. What crime or crimes were committed by Ernani, Daniel and
Meynardo? Give your reasons.

Answer:
1. Daniel, the policeman, committed the crime of EVASION THRU NEGLIGENCE, one of
the forms of Infidelity in the custody of Prisoner (Art. 224), the essential elements of which
offense are:
(1) That the offender is a public officer.
(2) That he has in his custody or charge a prisoner, either detention prisoner or
prisoners by final judgement.
(3) That such prisoner escaped from his custody thru his negligence.

All of these elements are present, Daniel, a policeman detailed in the city jail, is a public officer. As
the escort for Ernani in the latter’s trial, he had custody of charge of a detention prisoner. Ernani’s
escape was thru his negligence because after removing Eraani’s handcuffs and allowing him to sit in
one of the chairs inside the courtroom, he should have taken the necessary precautions to prevent
Ernani’s escape by keeping an eye on him. Instead, he provided the opportunity for the escape by
talking with a lawyer and not keeping watch over his prisoner.

2. Meynardo, not being a public officer, is guilty of the crime of DELIVERING


PRISONERS FROM JAILS (Art. 156), which is committed by any person who either removes
from any jail or penal establishment any person confined therein, or WHO HELPS the escape
of such person by means of violence, intimidation, bribery of OTHER MEANS. The act of
Meynardo in giving to Ernani his cigarette container is helping in the latter’s escape by
OTHER MEANS.
3. Ernani, the escaped prisoner himself is not criminally liable for any offense. The
detention prisoner who escapes from detention does not commit any crime. If he were a
convict by final judgment who is serving a sentence which consists of deprivation of liberty
and he escapes during term of his sentence, he would be liable for EVASION OF SERVICE OF
SENTENCE (Art. 157).
Question No. 14:

Diego and Pablo were both farmers residing in Barangay Damayan. On one occasion, Diego
called Pablo to come down from his house in order to ask him why he got his (Diego’s) plow without
permission. One word led to another. Diego, in a fit of anger, unsheathed his bolo and hacked Pablo
to death. Pablo’s 9-year old son, Mario, who was inside the house, saw the killing of his father.
Afraid that he might also be killed by Diego, Mario covered himself with a blanket and hid in a
comer of the house. To conceal the killing of Pablo, Diego brought Pablo’s body inside the house
and burned it. Mario was also burned to death. What crime or crimes did Diego commit?

Answer:
Diego committed two crimes (1) homicide for the death of Pablo and (2) the special
complex crime of arson with homicide as provided in PD 1613 for the burning of the house
and the death of Mario.
The hacking of Pablo to death is homicide, the killing not being attended by any of the
qualifying circumstances of murder. It was killing in the course of a quarrel.
The burning of the house to conceal the killing of Pablo is a separate crime. Were it not
for the death of Mario, this separate offense would have been arson. But inside the house was
unknown to Diego, the resulting crime is under PD No. 1613, because the death resulted
from the arson. If by reason or on the occasion of the arson, death results, the offense is the
special complex or arson with homicide (Sec. 5, PD 1613, which expressly repealed Art. 320
and consequently the ruling case therein, People v. Paterno (L-2665, March 6, 1950).
If Diego knew that Mario was inside the house when he set it on fire, the crime
committed, instead of arson, would be MURDER, with fire as the qualifying circumstance.

Question No. 15:

Emilio and Andres were walking home from the farm at 8:00 o’clock in the evening when they met
Asiong whom Emilio suspected as the one who stole his fighting cock two (2) days before; Emilio confronted
Asiong and after a heated discussion, a bolo fight between the two (2) ensued. Asiong sustained fatal wounds
and died. Emilio asked Andres to help him carry the body of Asiong and bury it behind the bushes. After
burying Asiong, Emilio picked up the jute bag Asiong was then holding and found inside P600 which Emilio
and Andres divided each getting P300. A week after the investigation by the police, a complaint was filed in the
Office of Provincial Fiscal against Emilio and Andres for robbery with homicide with the aggravating
circumstances of nighttime and uninhabited place. If you were the fiscal, what information or informations will
you file against Emilio and Andres? What are their respective criminal liabilities?

Answer:
If I were the fiscal, I would file two separate informations against Emilio and Andres, one
for homicide with Emilio as principal and Andres as accessory, and another for theft against
both Emilio and Andres as principals. This is so because of the following reasons:
1. The killing of Asiong by Emilio is homicide. It is not attended by any qualifying
circumstance of murder. It was a killing at the spur of the moment, in the course of a bolo
fight, as an aftermath of a heated discussion.
2. Neither was the killing by reason of or on the occasion of a robbery. There was no
intention of either Emilio or Andres to rob Asiong either prior to or in the course of the
killing. The taking of Asiong’s P600.00 was only an AFTERTHOUGHT, after the killing was
already perpetrated. There is no causal or other connection between the act of killing and
the act of taking the money.
3. Andres is liable as an accessory in the homicide case because he had no participation
either as co-principal or accomplice in the killing of Asiong who died solely because of the
wounds inflicted on him in his bolo-fight with Emilio, the principal. However, when Andres
agreed to help Emilio carry the body of Asiong and bury it behind the bushes, thus
concealing or destroying the body of the crime (corpus delicti) to prevent its discovery, he
became an accessory to the crime of homicide (Art. 19, RPC).

With respect to the taking of the P600.00 which Emilio and Andres divided between
themselves, they committed the crime of theft as co-principals. Theft because with intent to
gain but without violence against or intimidation of persons no force upon things, they took
personal property of another without the latter’s consent. They acted with unity of purposes
and intention, thus making them co-principals by direct participation.

Question No. 16:

“A”, by using force, grabbed the bicycle of “B” and ran away. The following day, “B” asked “C”
to get back his bicycle from “A” and promised to pay him P100 if successful. “C” agreed “C” went to
“A’s” house but it was locked from inside. Since “A” refused to let “C” in, “C” kicked the door open,
confronted “A” and with a dagger in hand, told “A” to give “B’s” bicycle. Intimidated, “A” gave the
bicycle to “C” who, in turn, gave it to “B” “B” paid “C” P100 for his efforts. What crime or crimes did
“A”, “B” and “C” commit, if any?

Answer:

A, by grabbing the bicycle of B and running away with it committed the crime of THEFT,
there being no showing that there was violence against or intimidation of B to accomplish
the snatching of the bicycle away from him. In a case where the accused snatched from
behind the bag the offended party was then carrying, it was held that there being no violence
against the offended party immediately before, after or at the time the bag was snatched
from her, the accused was not liable for robbery, but only for theft (People vs. Villar, CA-GR
No. 14289, July 29, 1955: People vs. Jose, CA 62 O.G. 4604). In this case, all the elements of
theft are present: intent to gain, taking of personal property of another without the latter’s
consent, and absence of violence against or intimidation of persons or force upon things.
There is intent to gain which is presumed from the unlawful taking of the bicycle.
B is not liable for any crime. Although he promised to pay C P100 if the latter would get
back his bicycle from A, he did not induce C to commit any crime. He had no participation in
any plan to take back the bicycle by unlawful means. C’s act of kicking open “As” door and
intimidating “A” to return the bicycle is C’s act alone for which he will individually be liable.
There is even no showing that B approved of C’s act. While A paid C the P100.00 he promised
upon the return of his bicycle, it does not appear that he knew the manner and method by
which C recovered the bicycle from A.
C committed grave * coercion, attended by the aggravating circumstance of dwelling
when he forced his way into A’s house and recovered the bicycle from A at dagger-point. This
is so because he compelled A by means of intimidation to do something against his will,
whether it be right or wrong, namely to give the bicycle to him. Since his purpose is to
return the bicycle to its rightful owner, there is no intent to gain that would make the crime
robbery. The elements of the crime of grave coercion are:
1. That a person prevented another from doing something not prohibited by law, or that
he compelled him to do something against his will be it right or wrong;
2. That the prevention or compulsion be effected by violence, either by material force or
such a display of force as would produce intimidation and control the will of the offended
paty; and
3. That the offender did not act with authority of law or in the exercise of any lawful
right.

Question No. 17:

“A” and “B”, both farmers, entered the land owned by “X” and planted palay thereon. When
“X” came to know about it, he confronted "A” and “B” and inquired why the latter occupied his land
and planted palay thereon. “A”, with a bolo in hand, replied that the land belongs to the family of
“S”, and not to "X” and at the same time said, “If you touch this land and my palay, blood will flow
on this ground.” Because of said remark, “X” went to the Chief of Police and complained. The Chief
of Police filed a complex crime of Usurpation of Real Property with Grave Threats. What crime or
crimes were committed?
Answer:
The crime committed by A and B is'squatting under PD 772 and not usurpation of Real
Property because in the latter crime, there must be violence against or intimidation of
persons employed in taking possession of any real property or in usurping any real rights in
property belonging to another (Art. 312, RPC). In this case, it appears that A and B entered
X’s land without the owner’s consent or against his will but without any violence against or
intimidation of persons.
The crime of squatting is committed by any person who, with the use of force,
intimidation or threat, or taking advantage of the absence or tolerance of the landowner,
succeeds in occupying or possessing the property of the latter against his will for residential,
commercial or any other purposes.

The threat uttered by A not having been used IN THE TAKING OF POSSESSION of the
land, it is not absorbed in the crime of SQUATTING. When A threatened X that blood will flow
if X touches the land and his palay, he committed the crime of grave threats by threatening
another with the infliction of a wrong amounting to a crime. Only A is criminally liable for
the crime of grave threats.

Question No. 18:

Alfredo is the corporate treasurer of Multimillion Insurance Company. As corporate treasurer,


he would have in his possession an average of P5,000,000 at any given time. In 1984, when the
money market rate of interest ranged from 35% to 50%, Alfredo place P1 ,000,000 of the corporate
funds in the money market in his name without the knowledge of any other corporate official of the
company. Upon maturity of the money market placement, Alfredo returned the amount of P1
,000,000 to the corporation, but kept to himself the interest income of P250,000. At the end of
1984, when audit examinations of his accounts were undertaken, the auditors found no shortage in
his accountabilities. Did Alfredo commit any crime?

Answer:
Yes, Alfredo committed the crime of estafa thru abuse of confidence, even if he had no
intention to permanently misappropriate the corporate funds for himself. The law on
estafa is clear and does not make any distinctions between permanent and temporary
misappropriations, for as long as damage is suffered by the offended party. Damage was
suffered by the corporation in this case because if the PI million pesos had not been
withdrawn from the corporate coffers it would have earned interest for the benefit of the
company.

Estafa, and not qualified theft, is committed because as corporate treasurer. Alfredo
has juridical possession of the P5 million pesos in his custody. This was in the nature of a
trust fund entrusted to him for corporate purposes. While it is a general principle that
misappropriation of trust funds for short periods does not always amount to estafa, it has
been held that his principle cannot extend to cases where officers of corporations
converted corporate funds to their own use, (U.S. vs. Sevilla, 43 Phil. 190). Fraudulent
intent is not even necessary in such cases because the breach of confidence involved in
the misappropriation or conversion of trust funds takes the place of fraudulent intent and
is in itself sufficient.

Question No. 19:

“A” is married to the sister of “B”, and the three (3) live together in a house located a
Caloocan City. On several occasions, “B’s” dog would bark at “A” everytime he arrives at past
midnight. One time, after arriving in the house at around 2 o’clock in the morning, “B’s” dog
barked continuously at “A.” In a fit of anger, “A” entered the house, took a bolo and killed the
dog. What crime was committed and what is liability of “A?” Explain,

Answer:
The crime committed by A is malicious mischief. The dements of this are:
(1) the offender caused damages to the property of other
(2) the damage caused did not constitute arson or any other crime involving
destruction and
(3) the damage was caused by the offender (Caballes vs. DAR, GR 78214,5 Dec. 88).
A’s act of killing the dog is characterized by malice, it being a product of anger and
resentment.
However, A is exempt from criminal liability for the crime committed by him because
he is the brother-in-law of the offended party and they are both living together under the
same roof. Under Art. 332 of the RPC, no criminal, but only civil, liability shall result from
the commission of the crime of THEFT, SWINDLING or MALICIOUS MISCHIEF committed
or caused mutually by among others, brothers and sisters and brothers-in-law and sisters-
in-law, if living together.

Question No. 20:

“A” was charged with theft and upon arraignment, pleaded guilty to the charge. He was
detained for failure to post bail. After “two (2) months, a decision was rendered, sentencing “A” to
an indeterminate sentence of six (6) months and one (1) day as a minimum, to one (1) year and one
(1) month as maximum, and to pay the offended party the amount of P700. On January 16, 1985,
the very day the sentence was read to “A,” the Judge issued a Commitment Order addressed to the
Provincial Jail Warden. On January 28, 1985, “A applied for probation but his application was
denied on the ground that the sentence of conviction became final and executory on January 16,
1985, when “A” commence to serve his sentence, a) Is “A” eligible for probation? b) What is the
purpose of the probation law?
Answer:
a) A is still eligible for probation since he filed his application for probation within 15
days from the promulgation of the judgment. Under the Probation Law; the accused may
apply for probation WITHIN THE PERIOD FOR PERFECTING AN APPEAL which is 15 days
from promulgation or notice thereof.
The judge committed an error in issuing a Commitment Order on the same day of
promulgation. A commitment order for the convict to begin serving his sentence can be
validly issued only if the period for perfecting an appeal has expired with no appeal being
taken. The fact that in compliance with such-order, which is void, the accused commenced
to serve his sentence does not bar him from availing himself of the benefits of the Probation
Law.
It is true that under the new Rules on Criminal Procedure it is provided that a judgment
in a criminal case becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served, or the accused
has applied for probation (Sec. 7, Rule 120). But Section 9 of the same Rule provides that
“nothing in this Rule shall be construed as affecting any existing provision in the law
governing suspension of sentence, probation or parole.”
The probation law does not speak of filing an application for probation BEFORE
judgment has become final. It only speaks of filing the application WITHIN THE PERIOD FOR
PERFECTING AN APPEAL. There is nothing in the Probation Law that bars an accused who
has commenced to serve his sentence from filing an application for probation provided he
does so WITHIN THE PERIOD FOR PERFECTING AN APPEAL.
What the Probation Law provides is that no application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment or
conviction. It does not say that no application shall be entertained if the judgment has
become final because the convict has commenced to serve his sentence.
b) The purposes of the Probation Law are:
1. to promote the correction and rehabilitation of an offender by providing him with
individualized treatment;
2. to provide an opportunity for the reformation of a penitent offender which might be
less probable if he were to serve a prison sentence; and
3. to prevent the commission of offenses.
1988 BAR EXAMINATION

Question No. 1:
a) What are the limitations upon the power of congress to enact penal laws?
b) Are there common law crimes in our jurisdiction?
c) State the characteristics of criminal law and explain each.

Answer:
a) The limitations upon the power of congress to enact penal laws are as follows:

1. Congress cannot enact an ex post facto law.


2. Congress cannot enact a bill of attainder.
3. Congress cannot provide for a cruel punishment.
However, other limitations may be considered like:
1. Congress cannot enact a law which shall punish for a condition. Congress shall
punish an act and not the condition or status. (?) (Robinson vs. California).

2. Congress should consider Article 21 of the Revised Penal Code which provides that
“penalties that may be imposed. No felony shall be punishable by any penalty not prescribed
by law prior to its commission.”

b) There are none. The rule is, nullum crimen, nulla poena sine lege, there is no crim if
there is no law punishing it.

c) The characteristics of criminal law are as follows:

1. GENERALITY — That the law is binding upon all persons who reside to sojourn in
the Philippines, irrespective of age, sex, color, creed, or personal cricumtances.
2. TERRITORIALITY - That the law is applicable to all crimes committed with in the
limits of Philippine territory, which includes its atmosphere interiors waters and
maritime zone (Art. 2).
3. PROSPECTIVITY — that the law does not have any retroactive effect, except if it
favors the offender unless he is a habitual delinquent (Art. 22) oT the law otherwise
provides.
Article 2 if the Revised Penal Code however provides for the following exception:
a) “Treaty stipulations or by a law of preferential application”

Question No. 2:
a) Distinguish crime mala in se from crimes mala prohibita.
b) May a crime be committed without criminal intent? Explain.
c) When are light felonies punishable and who are liable in light felonies?

Answer:
a) There are three distinctions between mala in se and mala prohibita:
1. A crime mala in se is a natural wrong. On the other hand, an offense mala
prohibita is a wrong only because it is prohibited by law;
2. In the commission of a crime mala in se, intent is an element whereas in the
commission of an
offense mala prohibita, criminal intent is immaterial; and
3. Crimes mala in se are punished by the Revised Penal Code although the
Revised Penal Code may cover special laws while offense mala prohibita are punished by
special laws.
b) A crime may be committed without criminal intent in two cases:
1. Offense, punishable as mala prohibita; an
2. Felonies committed by means of culpa.
c) Light felonies, according to Article 7 of the Revised Penal Code are punishable “only
when they have been consummated, with the exception of those committed against persons
or property.”
Article. 16 of the Revised Penal Code provides that “the following are criminally liable
for light felonies:
1. Principals
2. Accomplices.

Question No. 3:
a) State the two classes of penalties under the revised Penal Code. Define each.
b) May censure be included in a sentence of acquittal? Why or why not?
c) What offenses, if any, may be punished with the death penalty in our jurisdiction at
present? Explain.

Answer:
a) The two classes of penalties under Article 25 of the Revise Penal Code are as follows:
1. Principal
2. Accessory

A principal penalty is defined as that provided for a felony and which is imposed by
court expressly upon conviction.
An accessory penalty is defined as that deemed included in the imposition of the
principal penalty.
b) Censure may not be included in a sentence of acquittal, because a censure is a
penalty. Censure is repugnant and is essentially inconsistent and contrary to an acquittal
(People vs. Abellera, 69 Phil. 623.)
c) At present, no offense may be punished with the death penalty in our jurisdiction at
present. The 1987 Constitution has abolished the death penalty and the abolition affects
even those who has already been sentenced to death penalty. Therefore, unless Congress
enacts a law, no offense may be punished with the death penalty at present. But until today,
Congress has not yet passed a law to this effect.

Question No. 4:
a) State the application of the Indeterminate Sentence Law.
b) Who are the offenders disqualified from availing themselves of the benefits of the probation
law (P.D. 968, as amended)?

Answer:
a) The Indeterminate Sentence Law applies in cases where the penalty imposed is more
than one year and the ISL shall apply where there is a minimum penalty which is not lower
than the penalty next lower in degree provided by law and the maximum not higher than the
maximum penalty provided by law in cases of felonies but when it comes to statutory
offenses it must be lower than the minimum penalty provided by law and not higher than the
maximum penalty provided by law except in the following cases as provided by section 2 of
Art. 4103:
1. life imprisonment
2. those convicted of treason, conspiracy or proposal to commit treason
3. to those convicted of misprision of treason, rebellion, sedition or espionage
4. to those convicted of piracy
5. those who are habitual delinquents
6. to those who shall have escaped from confinement or evaded sentence
7. to those who having been granted conditional pardon by the Chief Executive
shall have violated the terms thereof
8. to those whose maximum term of imprisonment does not exceed one year, not
to those already sentenced by final judgment at the time of approval of this Act, except
as provided in Section 5 hereof.

b) The following offenders are disqualified from availing of the benefits of the
Probation Law:
1. those sentenced to serve maximum term of imprisonment of more than six
years;
2. those convicted of subversion or any crime against the national security of the
public order;
3. those who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and or a fine of not
less than two hundred pesos;
4. those who have been once on probation under the provisions of this decree; and
5. those who are already serving sentence at the time the substantive provisions
of this decree applicable pursuant to Section 33 of P.D. 968.

Question No. 5:
a) How is criminal liability totally extinguished?
b) How is criminal liability extinguished partially?
c) If an accused is acquitted, does it necessarily follows that no civil liability arising from the
acts complained of may be awarded in the same judgment?
Explain briefly.

Answer:
a) Article 89 of the Revised Penal Code provides for the following causes of total
extinction of criminal liability:

1. Death of the convict as to personal penalties, as to the pecuniary liabilities,


liability therefore is extinguished only when death occurs before final judgment.
2. Service of Sentence
3. Amnesty
4. Absolute pardon
5. Prescription of the crime
6. Prescription of the penalty
7. Marriage of the offended woman as provided in Article 344.

b) Article 94 of the Revised Penal Code provides for the following causes of partial
extinction of criminal liability:
1. Condition pardon
2. Communication of sentence
3. Good conduct allowances during confinement
4. Parole
5. Probation
If an accused acquitted, it does not necessarily follow that no civil liability arising from the acts
complained of may be awarded in the same judgment except: If there is an express waiver of the
liability; and if there is a reservation of file a separate civil action (Rule 107; Padilla vs. CA People vs.
Jalandoni).

Question No. 6:
Juan Cruz, driver of a cargo truck owned and operated by VICMICO a sugar central, while
driving recklessly caused Jorge Abad to fall from the truck resulting in injuries which caused his
death. Juan Cruz was convicted of homicide thru reckless imprudence and was ordered to pay the
heirs of the deceased Ahad P12,000.00. The respondent judge issued an order granting a motion for
execution of the civil service liability of the accused Juan Cruz, but the return of the Sheriff showed
that the accused was insolvent. Petitioners, heirs of the deceased Abad, now filed a motion for
execution of the employers subsidiary liability under Art. 103 of the Revised Penal Code.
Respondent judge denied the motion, stating that the employer VICMICO, not having been notified
that his driver was facmg a criminal charge, a separate action had to be filed. Hence, a petition for
mandamus was filed.
Decide the case.
Answer:
Mandamus will lie. There is no need for a separate civil action because the driver was
convicted (Martinez vs. Barredo). All you need is a motion for execution with a notice to the
employer that states compliance with the requisites imposed by Article 103 of the Revised
Penal Code (that there is employer-employee relationship, that the employer is engaged in an
industry and that the driver is insolvent).

Question No. 7:
Pedro Orsal and the wife of accused Juan Santos started having illicit relations while the
accused was in Manila reviewing for the 1983 Bar Examinations and his wife was left behind in
Davao City. In the morning of July 15, 1984, the accused went to the bus station in Davao City to
go to Cagayan de Oro City to fetch his daughter, but after he failed to catch the first trip in the
morning, and because the 2:00 o’clock bus had engine trouble and could not leave, the accused,
afer passing the residence of his father, went home and arrive at his residence at around six o’clock
in the afternoon. Upon reaching his home, the accused found his wife Laura, and Pedro Orsal in
the act of sexual intercourse. When the wife and Pedro Orsal noticed the accused, the wife pushed
her paramour who got his revolver. The accused, who has then peeping above the built in cabinet
in their room, jumped down and ran away. He went to the house of his PC soldier-friend, and
neighbor, got his (soldier’s) M-16 rifle and immediately, it was almost 6:30 p.m. then, went back to
his house. Not finding his wife there, he went to the hangout of Pedro Orsal and found the latter
playing mahjong there. The accused fired at Pedro three times with his rifle, hit him and two
bystanders. Pedro died instantaneously of wounds in the head, trunk, and abdomen. The two
bystanders were seriously injured but survived.
a) Can Juan Santos be held guilty for homicide for the death of Pedro Orsal? Explain.
b) What offense did Juan Santos commit with regard to the two bystanders? Explain.
c) What offense, did the wife of Juan Santos commit, if any why?

Answer:

a) Juan Santos cannot be held guilty' of homicide for the death of Pedro Orsal. Instead,
Juan is liable for violation of Article 247 “Death inflicted under exceptional circumstances
because there was one continuous act. (People vs. Abarca).
b) With regards to the two bystanders, Juan Santos committed the crime of serious
physical injuries inflicted under exceptional circumstances. (Art. 247 Revised Penal Code;
People vs. Abarca).
c) The wife of Juan Santos committed the crime of adultery. Article 333 of the Revised
Penal Code provides that “Who are guilty of adultery. Adultery is committed by any married
woman who shall have sexual intercourse with a man not her husband ".

Question No. 8:

a) An armed band tried to stop a passenger bus, and the driver who sensed that the band
might commit robbery, did not stop the bus but drove it faster. The members of the band then fired
at the bus, killing one passenger who was hit in the head.

b) As the malefactor were about to enter the house of A, the latter hid himself inside the
ceiling. Once inside the house, the malefactor took from A’s wife cash and pieces of jewelry. One of
the malefactors stood on a table and fired his gun at the ceiling. After they had left A’s wife called
for him and receiving no answer, she went up the ceiling and found him already dead.
What crime was committed? Explain.
c) In the course of robbery there was confusion and in the exchange of shots between the
robbers and the victims, one of the robbers happened to shoot one of his own companions.
What crime was committed? Explain.

Answer:

a) They committed the crime of attempted robbery with homicide with band as a
generic aggravating circumstance. Article 297 of the Revised Penal Code provides that

“Attempted... robbery committed under certain circumstances.—When. .. on the occasion of


an attempted robbery a homicide is committed the person guilty of such offenses shall be
punished by reclusion temporal

b) Robbery with homicide was committed by the malefactors. Article 297 of the Revised
Penal Code provides that “Attempted and frustrated robbery committed under certain
circumstances.— When by reason...of an attempted or frustrated robbery a homicide is
committed the person guilty of such offenses shall be punished by reclusion temporal. .

c) The robber committed the crime of robbery with homicide in violation of Article 297
of the Revised Penal Code which provides that “ . . . w h e n . . . on the occasion of an
attempted robbery a homicide is committed the person guilty of such offenses shall be
punished by reclusion temporal. .

Question No. 9:

a) An armed group, avowed to overthrow the duly constituted authorities, captured five
officers and five members of the armed forces and held them in their mountain lair for seventy-five
days and then voluntarily released them in consideration of the promise of medical treatment to be
given to some of their comrades who were under detention by the authorities.

What crime or crimes had been committed? Reasons.


b) In the course of proceeding during a so-called “public hearing held before a crowd in a
place open to the public, the leaders of the meeting “tried” certain public officials and thereafter
“sentenced” them to “death by assassination or ambuscades.”
Are the leaders criminally liable? Decide the case.

c) Two Japanese were passing through immigration and customs preparatory to their
departure for Japan at the Ninoy Aquino International Airport. A bundle of P2,000 peso bills was
discovered in one of them, and to prevent their being delayed, his companion took the bundle of
bills and then and there tore up the bills.

As City Fiscal of Pasay, what crimes, if any, would you charge the two Japanese? Explain.

Answer:
(a.l) Rebellion was committed because their purpose was to overthrow the government
and all other acts committed in the further of this purpose are absorbed by rebellion.
(a.2) The armed group committed the crime of kidnapping and serious illegal detention
in violation of Aticle 267 of the Revised Penal Code which provides that “kidnapping and
serious illegal detention.— Any private individual who shall kidnap another, or in any other
manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death...”.

b) The leaders are criminally liable for the crime of libel by theatrical exhibition. Article
355 of the Revised Penal Code provides: “libel by means of writing or similar means.— A libel
committed by means of writing, printing lithography, engraving, radio, phornographs,
painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be
punished by prision correctional
c) The two Japanese cannot be charged of any crime. They committed no crime. Article
164 of the Revised Penal Code on mutilation of coins cannot be applied to the Japanese
because said article refers to coins and not to bills.

Question No. 10:

a) Jorge is the owner of 10 hectares of land in the foothills which he planted to lanzones. On
his last visit there he was shocked to discover that his land had been taken over by a group of 15
families whose members had forcibly driven away his caretaker, had appropriated the fruits for
themselves, and were now threatening to kill him should he try to eject them.

What crime should Jorge charge these 15 families? Explain.

(b) Five laborers were hired by Manuel Diong to harvest coconuts from a plantation which he
told them belonged to him. Unknown to them, the ownership of the land was in dispute, and the
registered owner subsequently filed a case of qualified theft against them.

How would you defend them? Explain briefly.

Answer:

a) Jorge can charge the 15 families of 2 separate crimes namely:


1) Violation of Article 282 which provides that “Grave threats.— Any person who
shall threaten another with the infliction upon the person, honor or property of the latter
or of his family of any wrong amounting to a crime shall suffer...” and
2) Violation of Article 312 which provides that: “Occupation of real property or
usurpation of real rights in property.— Any person who, by means of violence against or
intimidation of persons, shall take possession of any real property or shall usurp any real
rights in property belonging to another, in addition to the penalty incurred for violence
executed by him, shall be punished by a fine from P50.00...
b) I would defend them by citing U.S. vs. Ah Chong (15 Phil. 488) on mistake of facts
and charge the owner with violation of Article 282 on grave threats. In U.S. vs. Ah Chong,
the accused was exempted frdm criminal liability because he performed an act which would
be lawful had it been true as he believed that “Grave threats.— Any person who shall
threaten another with the infliction upon the person, honor or property of the latter or of his
family of any wrong amounting to a crime, shall suffer.. ”

Question No. 11
a) In the course of funeral procession, a young mourner who was marching in front of the
funeral hearse, momentarily stooped down to tie her shoelaces which had become untied. The
driver of the hearse, who was driving at 5 miles an hour, was then looking at the stores by the
roadside and did not see her. He continued to drive on and ran over the girl. When the people
around shouted and gestured, he backed up and ran over the girl a second time, killing her.

If you were the-parent of the girl-victim, what crime would you charge, if you think a crime
had been committed, and against whom? Explain your answer briefly.

At a pre-wedding celebration where plenty of people were milling and walking about or standing
close together, a mad killer shot up the wedding party. The three appellants were convicted by the
owner court as co-conspirators of the killer because they were allegedly with him before, during,
and after the shooting. It was proven conclusively that the appellant were friends of the killer; that
they went together with the killer to the celebration; and that they left at the same time with the
killer, after the shooting. However, the appellants had no guns and passively witnessed the without
intervening in the killing in any way nor shielding killer.
Is there conspiracy among them? Why?

Answer:
(a) Only the driver could be charged of homicide thru reckless imprudence or homicide
thru simple negligence which preclude conspiracy against those who shouted and gestured.
(b) There is no conspiracy among them because as the problem has stated, they
passively witnessed the shooting. No overt act was committed therefore the element that the
conspiracy must be proved as the essence of the crime itself is not present.

Question No. 12:

(a) A public official charged with purchasing rice stocks under government subsidy falsely
reported that his stocks of rice worth PI 7 million on board two barges sank off a neighboring island
on their way to their destination and were completely lost. Menwhile, the rice was surreptitiously
sold to rice warehouses in the provinces.
What is the criminal liability of this government official? Explain.

(b) A city official ordered one million pesos (P1M) worth of T-shirts at public expense for the
underprivileged residents of his city. After full payment with city funds was made, it was discovered
that only a fourth of the T-shirts had been delivered and that the rest of the deliveries were so-
called “ghost deliveries.”

Answer:
(a) The government official being an accountable officer can be charged with
malversation thru falsification of official documents.

(b) (1) The city official is liable for violation of Article 213 of the Revised Penal Code
which provides that:
Article 213. Frauds against the public treasury and similar offenses.—The penalty of
prision correccional in its medium period to prision mayor in its minimum period, or a fine
ranging from P200 to P10,000 shall be imposed upon any public officer who:
1. In his official capacity, in dealing with any person with regard to furnishing supplies,
the making of contracts, or the adjustment or settlement of accounts relating to public
property of funds, shall enter into an agreement with any interested party or speculator or
make use of any other scheme, to defraud the government;

2. Being entrusted with the collection of taxes, licenses, fees and other impost, shall be
guilty of any of the following acts or omissions:

(a) Demanding, directly or indirectly, the payment of sums different from or larger
than those authorized by law.
(b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money
collected by him officially.
(c) Collecting or receiving, directly or indirectly, by way of payment or otherwise,
things or objects of a different nature from that provided by law.
When the culprit is an officer or employee of the Bureau of Internal Revenue or the
Bureau of Customs, the provisions of the Administrative Code shall be applied; and violation
of:
(b) (2) Act 3019 sec. 3 (g) which provides that:
Corrupt practices of public officers “IN ADDITION” to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful.”

Question No. 13:


(a) The victim Dario went to the Civil Service Commission at about 11:00 a . m . to have some
documents signed, and because his efforts were frustrated, he angrily remarked in the presence of
the accused Benito that the Civil Service Commission is a hang-out of thieves. The accused felt
alluded to because he was then facing criminal and administrative charges on several counts
involving his honesty and integrity, and pulling out a gun from his desk, he shot Dario, inflicting a
fatal wound. Benito is now invoking the mitigating circumstances of immediate vindication of grave
offense.
Decide the case.
(b) The robbers killed a mother and her baby, then threw the body of the baby outside the
window.
Can the aggravating circumstances of “cruelty” be considered in this case? Reasons.

Answer:
(a) The mitigating circumstances of immediate vindication of grave offense cannot be
considered because to be applicable, Article 13 par. 5 requires that: “Mitigating cir-
cumstances.— xxxx 5. That the act was committed in the immediate vindication of a grave
offense to the one committing the felony (delito) his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters or relatives by affinity within the same
degrees.”
Instead, the circumstances of passion or obfuscation should be considered. Benito
should be charged with frustrated homicide with the mitigating circumstances of passion.

(b) Cruelty cannot be considered in this case because the aggravating circumstance of
cruelty requires deliberates prolongation of the suffering of the victim. In this case, the baby
was dead already so that there is no more prolongation to speak of.

Question No. 14:

(a) Andrea signed her deceased husband’s name in endorsing his three treasury warrants
which were delivered to her directly by the district supervisor who knew that her husband had
already died, and she used the proceeds to pay for the expenses of her husband’s last illness and
his burial. She knew that her husband had accumulated vacation and sick leaves the money value
of which exceeded that value of the three treasury warrants, so that the government suffered no
damage. Andrea’s appeal is based on her claim of absence of criminal intent and of good faith.

Should she be found guilty of falsification? Discuss briefly.


(b) Raul Doria gave in trust two acrylic paintings to Amar Solo to be sold on commission basis
for P20,000.00. Failing to sell them to George Ty, Amar consigned the paintings to Alcanto Gallery.
In the same month, Amar retrieved one painting and tried to return in to Raul who refused to
receive it without the other painting. The other painting was bought by Mr. Lomot whose check,
which Amar gave to Raul, bounced, so that Amar paid Raul his own check of P6,500.00 promising
in writing to pay the P3,500.00 balanceless his commission.

Is Amar liable for estafa? Why?


How about Mr. Lomot, what crime, if any did he commit?

ANSWER:

(a) Andrea should be held guilty of falsification of public documents. Her claim of absence
of criminal intent and of good faith cannot be considered because she is presumed to know
that her husband is dead. The element of damage required in falsification does not refer to
pecuniary damage but damage to public interest.

Executive clemency can however be sought for by Andrea.

(b) Amar is not liable for estafa but is liable for violation of BP 22. There is only civil
liability because as long as no case has been filed in court, an obligation can still be novated.
In this case there was novation.
Mr. Lomot is liable for violation of BP 22.

Question No. 15:

(a) Romeo Cunanan, publisher of the Baguio Daily, was sued by Pedro Aguas for libel for the
public publication of his picture with the notice that: “This is to inform the public that Mr. Pedro
Aguas whose picture appears above has ceased to be connected with the Sincere Insurance
Company as underwriter as of December 31, 1987. Any transaction entered into by him after said
date will not be honored.”

Is the publication defamatory? Explain briefly.

For some time, bad blood had existed beween the two families of Maria Razon and Judge Gadioma who
were neighbors. First, there w&s a boundary dispute between them which was still pending in court. Maria’s
mother also filed an administrative complaint against the judge which was however dismissed. The Razons also
felt intimidated by the position and alleged influence of their neighbor. Fanning fire to the situation was the
practice of the Gadiomas of throwing garbage and animal excrement into the Razon’s premises. In an explosion
of anger, Maria called Judge Gadioma “land grabber'*, “shameless”, and “hypocrite."

What crime was committed by Maria, if any? Explain briefly.

Answer:
(a) The publication is not defamatory because the element of intent to defame is absent.
This is a mere announcement and does not carry any implication.
(b) Maria committed the crime of slander or slight defamation only because she
was under the influence of anger. When Maria called Judge Gadioma a hypocrite and land
grabber she imputed to him the commission of crimes.

1987 BAR EXAMINATION

Question No. I:

Juan had a land dispute with Pedro for a number of years. As Juan was earning down his
house, he saw his brother, Rodolfo attack Pedro with a bolo from behind. Rodolfo was about to hit
Pedro a second time while the latter was prostrate on the ground, when Carling, Pedro’s son,
shouted, “I’ll kill you.” This distracted Rodolfo who then turned ter Carling. Rodolfo and Carling
fought with their bolos. While the two were fighting, Juan shouted to his brother Rodolfo: “Kill them
both, they are our enemies.” Calling suffered a number of wounds and died on the spot, Pedro who
was in serious condition was rushed to the hospital. He died five days later for loss of blood
because the blood purchased from Manila which could have saved him, according to the doctor, did
not arrive on time, Jose, father of Juan and Rodolfo, told his sons to hide in Manila and he gave
them money for the purpose. When the police investigators saw Jose, he told the police
investigators that Juan and Rodolfo went to Mindanao.

What crimes, if any, did (a) Rodolfo, (b) Juan and


(c) Jose commit? Explain your answer and state whether the acts committed are accompanied by
circumstances affecting criminal liability.

Answer:

a) Rodolfo committed murder regarding the killing of Pedro since Pedro was attacked from
behind. The killing was attended by the qualifying circumstance of treachery. The mode of
attack deprived Pedro of any chance to defend himself or to retaliate. Rodolfo is also liable
for homicide regarding the killing of Calling, Pedro’s son as that is the result of a right, both
of them being aimed with bolos.

Although Pedro died five days later, since the blood purchased which would have saved him did
not arrive on time, Rodolfo is still liable for the death of Pedro as that is the direct, natural and logical
result of the wound inflicted by him.

b) Juan, the brother of Rodolfo, has no criminal liability. What he shouted to Rodolfo
“Kill them both, they are our enemies,” when Rodolfo and Carling were fighting, was not the
only reason why Carling was killed; and hence, he cannot be a principal by inducement. The
doctrine is to be a principal by inducement, the inducement must be the only reason why the
crime is committed. (People vs. Kiichi et. al. 61 Phil. 609).

c) Jose, father of Juan and Rodolfo, is an accessory to the crime of murder committed
by Rodolfo because he assisted him to escape to Manila. But he is not criminally liable
because of his relationship to Rodolfo (Article 20). He is not an accessory to the crime of
homicide, because this crime is not included in treason, parricide, muraer, attempt against
the life of the Chief Executive or the principal is known to be habitually guilty of some other
crime if the accessory is a private person. However, this is moot and academic because of the
relationship of Jose to Rodolfo.

Question No. II:

AJ, a medical student, was a boarder in the house of Mr. and Mrs. M who had a good-looking
25-year old retarded daughter with the mental age of an 11-year old giri. One day when the couple
were out, Perlita, the retarded daughter, entered AJ’s room, came near him and started kissing him.
He tried to avoid her. But she persisted. They had sexual intercourse. This was repeated every time
Perlita’s parents were out until Perlita got pregnant. Mr and Mrs. M riled a complaint of rape
against AJ who claimed that it was Perlita who seduced him; that Perlita was intelligent, clearly
understood what she was doing; and that since Perlita was already 25 years old did not herself file
the complaint, her parents had no personality to file tne complaint for rape.

How would you resolve the case?

Answer:
The contention of AJ cannot be sustained. Sexual intercourse with Perlita, who is a
mental retardate, although 25 years old but with a mental age of 11-year old girl is rape. She
is the same class as a woman deprived of reason or others wise unconscious. (People vs.
Sunga L-45683 June 24, 1985). Since she is suffering from an incapacity, being incompetent
on account of her mental age, the parents have the right to file the complaint for rape.

Question No. Ill:

Maria called Lydia names and slapped her at the dance floor in the presence of many people
because she suspected that Lydia was flirting with her boyfriend. The following day, Lydia filed with
the Fiscal’s Office a complaint for slander by deed against Maria. After preliminary investigation, the
Fiscal forgot all about the case until the 179th day, which was a Saturday, from the commission of
the crime. Since the following day was a Sunday, the fiscal filed the information in court on
Monday, the 181st day from the commission of the crime. After trial, the Judge convicted Maria.
She engaged another lawyer who on appeal asserted that the crime of slander by deed had
prescribed because it was filed in court one day after the six-month period of prescription under
Art. 90 of the Revised Penal Code. The Fiscal argued that since the 180th day fell on a Sunday, he
could file the information the following Monday. He also said that, in any event, Maria waived the
defense of prescription because she did not raise it during the trial of case.

Decide the case.

Answer:

The crime of slander by deed has already prescribed as it was tiled one day after the six
month period of prescription. The rule is if the last day of the period of prescription of a
crime falls on a Sunday, as in the problem, the information cannot be filed on the next
working day, which is Monday as that will lengthen the period of prescription, which will not
be favorable to the accused. (Japdiangco vs. Bartolome 122 SCRA 713) The contention of the
Fiscal that Maria waived the defense of prescription because she did not raise it during the
trial of die case is untenable. It has already been settled that prescription, although not
raised in the trial may be invoked on appeal. (People vs. Balagtas 105 Phil. 1362; People vs.
Castro 95 Phil 462).

Question No. IV:

Ricardo secured the services of Atty. Juanito to defend him in an arson case pending in court.
Juanito asked his client what actually happened. Ricardo informed his lawyer that Sing Hua, owner
of a department store, hired him to bum the store because Sing Hua was losing heavily and wanted
to get the insurance on the store. Ricardo said that Sing Hua paid him P5,000.00, and promised an
additional 10% of the proceeds of the PI0,000,000.00 lire insurance once this was collected from the
insurance company. He further said that Sing Hna’s claim for payment of the fire insurance was
still pending and its approval depended on the outcome of the arson case. This meant that the ABC
Insurance Company would pay the claim should Ricardo be acquitted in the arson case. Then he
would also get the 10% share of the fire insurance proceeds. He told lawyer Juanito that by
depending him in the arson case, the latter would be helping collect the 10% which would amount
of PI,000,000.00. After hearing Ricardo’s story, Atty. Juanito told him he could not further give him
professional advice or services and so Ricardo left That same day, Juanito went to the NBI and told
the NBI what Ricardo narrated him. The NBI alerted ABC Insurance Company, which immediately
denied the daim for payment of insurance and filed a complaint for attempted estafa through arson
against Sing Hua and Ricardo.

(a) Did Juanito commit any crime?

(b) Would the situation be different if at the time Ricardo secured the professional services of
Juanito, ABC Insurance Company had already paid Sing Hua the insurance and the latter had in
turn paid Ricardo 10% thereof?

Answer:

a) Juanito did not commit any crime. By telling Ricardo that he could not give him
professional advice or services, after being informed that the owner of the department
store hired him to bum the store because it was losing heavily and wanted to get the
insurance on the store, and that he was paid already P5,000 with a promise of an
additional 10% of the proceeds of the PI0,000,000 fire insurance once collected from the
insurance company, Atty. Juanito complied with his obligation as a lawyer to report to
the authorities whatever knowledge he has regarding the commission of a crime.
b) Juanito will be liable as an accessory because byaccepting-10% of the insurance
proceeds even in payment of the professional services, he profited or assisted the
principal, Ricardo, to profit from the proceeds of the commission of the crime.

Question No. V:

Jose was charged with slight physical injuries before a Municipal Trial Judge. He listened
attentively as the Judge read the sentence. When the Judge reached the dispositive portion and
pronounced Jose guilty, the latter was enraged, got hold of an ashtray, and threw it at the Judge
hitting him in the eye. As his defense lawyer Pedro attempted to restrain him, Jose boxed him and
knocked him down. The judge became blind in one eye as a consequence.

What crime or crimes did Jose commit?


Answer:

Jose is liable for Qualified Direct Assault with Serious Physical Injuries. The throwing
of the ashtray at the Judge hitting him in the eye is laying of hands on the Judge who is a
person in authority while in the performance of duties. Jose is also liable for qualified
direct assault when he boxed his defense lawyer, knocking him down while in the act of
restraining him. Under Batas 873 a lawyer is considered a person in authority if assaulted
while in the performance of duties.

Question No. VI:

M was forced by a policeman to sign a document entitled “Sinumpaang Salaysay” in which


M implicated X as the brain behind the robbery of a bank where P500,000.00 were lost. The
document was prepared by the policeman upon advice of B, the bank’s lawyer, who was present
when the policeman asked M to sign the document. As M refused to sign it, the policeman held
him by the neck and forced him to sign, which he did as he was afraid he might be bodily
harmed. During the hearing of the robbery before the Fiscal’s Office, B submitted the
“Sinumpaang Salaysay” as evidence, on the basis of which X was included in the information
filed by the Fiscal in court.

When M testified in court, he repudiated the document and told the court there was no
truth to its contents as he was merely forced to sign it.

(a) May M be held liable for perjury?

(b) Did lawyer B commit any crime when he used the “Sinumpaang Salaysay” as evidence?

Answer:

a) M is not liable for perjury. He did not sign the document freely and voluntarily but due
to the force employed by the policeman. Peijury refers to deliberate distortion of truth. The
facts of the problem do not state that the documents was signed before an officer authorized
to administer oath. It is, therefore, doubtful that the facts would constitute perjury.

a) The lawyer would be liable under Article 172 of the Revised Penal Code for the offense of
introducing a false document in a judicial proceeding, as he knew the same to be false.

Question No. VII:

Pedro confronted Jose one morning near the letter's house and angrily inquired why he let loose his
carabaos which destroyed his plants. Pedro saw that Jose was aimed with a dagger tucked on his waist and
thinking that Jose would react violently. Pedro immediately drew his revolver. Instinctively, Jose grabbed the
gun from Pedro’s hand and a struggle for possession of the gun ensued, as a result of which the gun was
thrown one meter away. Pedro jumped for the gun, and Jose unsheathed his dagger and stabbed Pedro at the
base of his neck, causing the latter to fall down. Jose ran away as he was afraid Pedro’s relatives might kill him.
He was apprehended three days later in another barrio. Fortunately, Pedro survived after 40 days of
hospitalization. The gun turned out to be without live bullets. During the trial for frustrated homicide against
Jose, Pedro testified that he drew his gun even while he knew it had no bullets, merely to scare Jose, and he
jumped for it when it was thrown away for the same purpose. Jose pleaded self-defense. The Fiscal argued that
Jose’s act of running away is evidence of guilt and negates self-defense. He also said that, in any event, there
was no reasonable necessity of the means employed — namely, stabbing with a dagger — because Pedro’s gun
had no bullets.

Decide the case.


Answer:

Jose is entitled to self-defense.

Considering the circumstance of the case, unlawful aggression, the first element of self-
defense is present. Pedro loose his carabaos which destroyed his plants and he then loose his
carabaos whicn destroyed his plants and then immediately drew his revolver which Jose
instinctively grabbed from Pedro’s hand. In the struggle for the possession for the revolver, it
was thrown one meter away, and when Pedro jumped for the gun, Jose unsheathed his dagger
and stabbed Pedro who fell down. Jose ran away. The intimidating attitude of Pedro when he
drew his revolver constitutes imminent unlawful aggression. Jose did not give any
provocation to Pedro. Pedro was in a violent mood and in the mind of Jose, was armed, with
revolver, in hand, and what Jose did in grabbing the gun was to prevent an aggression that is
expected (People vs. Domingo CA 13 Rep. 1355). Stabbing Pedro with a dagger was the only
available means to prevent the expected aggression considering that Jose acted by following
his instinct of self-preservation. The flight of Jose after stabbing Pedro cannot be considered
as evidence of guilt because he did so as he was afraid the relatives of Pedro might kill him.

Question No. VIII:

Jose purchased roofing materials worth P20,000.00 from PY & Sons Construction Company
owned by Pedro, and paid the latter a check in the said amount. The following day, Pedro deposited
the check, but it was returned dishonored because it was drawn against a closed account.
Notwithstanding written demands, Jose failed to make good said check. Atty. Saavedra, counsel for
Pedro, filed two complaints against Jose with the Office of the Provincial Fiscal, one for estafa under
Article 315 of the Revised Penal Code and another for violation of Batas Pambansa Big. 22. Atty.
San Pascual, counsel for Jose, claimed that if his client was at all liable, he could only be liable for
violation of Batas Pambansa Big. 22 and not for estafa under Article 315 of the Revised Penal Code
because one precludes the other and because Batas Pambansa Big. 22 is more favorable to the
accused as it carries a lighter penalty. The investigating fiscal, on his resolution, stated that only
one crime was committed, namely, the complex crime of estafa under Article 315 of the Revised
Penal Code and violation of Batas Pambansa Big. 22 because the single act of issuing the bouncing
check constitutes two offenses, one under Article 315 of the Revised Penal Code and another under
Batas Pambansa Big. 22.

If you were the Provincial Fiscal asked to review the matter, how would you resolve it?

Answer:

The resolution of the investigating fiscal is erroneous. There is no complex crime of


estafa under Article 315 of the Revised Penal Code and the violation of BP 22. A complex
crime refers only to felonies which are punished in the Revised Penal Code. Batas 22 which
punishes the offense of issuing a worthless check is a special law. The contention of Atty.
San Pascuai, counsel of Jose that his client should be liable only for Batas 22 and for estafa
under the Revised Penal Code because one precludes the other and because Batas 22 is more
favorable to the accused as it carries a lighter penalty cannot also be sustained. Batas 22
specifically provides that liability under said act is without prejudice to any liability for
estafa under the Revised Penal Code. The check issued by Jose in payment of roofing
materials from PY and Sons was worthless. Said bouncing check having been issued in
payment of a simultaneous obligation constitutes estafa under the Revised Penal Code and
also the offense punished under Batas 22. There is no identity of offenses. Damage is not an
element of the offense punished in Batas 22 whereas in estafa damage is an element. Estafa
is an act mala in se in which requires intent as an element while the offense punished in
Batas 22 is an act mala prohibita where intent is not an element.
Question No. IX:

Posing as a detective in the Manila Police and flashing a police badge, Jose, jobless and
without any known address and occupation, told Manding and Liling, who were then sitting in a
dark corner in the Luneta Park,‘that he was placing them under arrest for vagrancy and taking
them to the police station for booking. Manding and Liling protested, saying that they were merely
enjoying the evening alone, as they were sweethearts and. both gainfully employed. Jose told them
that they can give their explanations at the Police Station. Not wanting to be bothered and
embarrassed, Manding offered Jose P200.00 to let them go. Jose agreed, got the money, and left.

Explain whether under the facts given Jose committed any crime

Answer:

Jose is liable for robbery. By posing as a detective with a police badge, telling Manding
and Liling, who were sitting in a dark comer in Luneta Park that they would be placed under
arrest for vagrancy and brought to the police station for booking and by not listening to the
explanation of Manding and Liling that they were sweethearts and gainfully employed which
Jose said they could explain in the Police Station, created fear in the mind of the couple or a
sense of mental distress in view of the risk or evil or embarrassment that is impending. This
fear continued in the mind of the offended parties when they offered the P200 to Jose which
he accepted and then received the money.

Question No. X:

Pedro, a municipal treasurer, received from the Provincial Treasurer of the Province five (5)
brand new typewriters for use in the municipal treasurer’s office. Each typewriter is valued at
PI0,000.00. Since Pedro needed money for the hospitalization of his sick son, he sold four (4) of the
typewriters to his friend, Rodolfo, a general merchant in San Isidro for P2 000.00 each or a total of
P8,000.00. Rodolfo as a general merchant knew that one typewriter could easily be between
P6,000.00 to PI0,000.00, and for this reason he readily agreed to buy the four typewriters. Rodolfo
then resold the typewriters at P6,000.00 thus making a profit of PI6,000.00. Two months after the
transaction, Pedro was audited and the investigation as to his accountabilities led to the discovery
that Rodolfo bought the four (4) typewriters from Pedro.

(a) What crime did Pedro commit?

(b) Is Rodolfo liable as an accessory or for violation of the Anti-Fencing Law?

Answer:

a) Pedro committed malversation. The five (5) brand new typewriters received by him
from the Provincial Treasurer for use in the Municipal Treasurer’s Office were under his
custody for which he was accountable as Municipal Treasurer. Selling four (4) of the
typewriters to Rodolfo, a general merchant, because he needed the money for the
hospitalization of his son constitutes misappropriation as he applied the same for his
personal benefit.

b) Rodolfo is not liable for violation of the Anti-Fencing Law as this law refers only to
the buy and sell of articles of value which are the proceeds of robbery and theft. Rodolfo is
liable as an accessory to the crime of malversation as he purchased the typewriters for
P2,000 each only although he knew it could easily be sold for P6,000 to P10,000. Therefore
he profited or assisted the principal to profit from the effects or proceeds of the commission
of the crime.
Question No. XI:

PM, a rich businessman, was convicted of murder and sentenced to life imprisonment by the
Regional Trial Court, and to pay the heirs of the victim the total amount of P250,000.00. While his
appeal was pending before the Supreme Court, PM died. The defense counsel manifested that PM’s
death extinguished not only the criminal liability but also the pecuniary liability because the death
occurred before the final judgment, since the case was pending appeal. He invoked Art. 89 of the
Revised Penal Code which provides that “criminal liability is totally extinguished: 1. By the death of
the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before the final judgment*’

As a Solicitor in the Office of the Solicitor General, do you agree with the defense counsel’s
argument?

Answer:

As Solicitor General, I will not agree to the argument of the defense counsel that the
death of PM while his appeal was pending extinguished not only his criminal liability but also
his pecuniary liability Article 89 of the Revised Penal Code which provides that the
“pecuniary liability of the accused is extinguished only when the death of the offender
occurred before the final judgment”, refers to his liability to pay the fine. (People vs.
Sendaydiego, 81 SCRA 120). The civil liability, however, survives the death of the offender
because death is not a valid cause of the extinguishment of civil obligation. (Tonijos vs.
Court of Appeals 67 SCRA 394).

Question No. XII:

A, B. C, D, and E were former soldiers who deserted their command in Mindanao. Jose and
Pedro, two big landowners, called A. B, C, D, and E to a conference. Jose and Pedro proposed to
these former soldiers that they recruit their comrades and organize a group of 100 for the purpose
of challenging the government by force of arms in order to prevent the enforcement or
implementation of the Land Reform Law in Cotabato Province. Jose and Pedro promised to finance
the group and to buy firearms for the purpose. The former soldiers agreed. After Jose and Pedro
left, A, the leader of the former soldiers, said that in the meanwhile he needed money to support his
family. D suggested that they rob a bank and agreed to carry out the plan on the 15 th day of the
month. Unknown to all of them, as they were conferring with Jose and Pedro and as they were
planning to rob the bank, Rosauro, a house boy, was within hearing distance. On the pretext of
buying cigarettes, Ro6auro instead went directly to the Police and told them what transpired. All
the former soldiers, as well as Jose and Pedro, were arrested.

(a) What crime, if any, did the former soldiers commit?

(b) What about Jose and Pedro?

Answer:

a) The former soldiers committed the crime of conspiracy to commit sedition. What
Jose and Pedro proposed to the soldiers that they recruit their comrades and organize a
group of 100 for the purpose of challenging the government by force of arms in order to
prevent the implementation of the Land Reform Law in Cotabato Province is to commit
sedition. Proposal to commit sedition is not punished. But since the soldiers agreed, a
conspiracy to commit sedition resulted which is now punishable. Conspiracy arises on the
very moment the plotters agree (People vs. Peralta 25 SCRA 759; People vs. Tiongson 12
SCRA 402).
b) Jose and Pedro will also be liable for conspiracy to commit sedition since they are
members of the conspiracy where the act of one is the act of all. If the soldiers did not agree
to their proposal, they would not incur any criminal liability because there is no proposal to
commit sedition.

Question No. XIII:

At the time Josefa’s husband, Pedro Coipuz, died, she was eight months pregnant. As she was
afraid she could not support her child with Pedro, Josefa accepted Pablo’s proposal for marriage.
One week after the marriage, Josefa gave birth to a boy whom they named, Pedro Coipuz, Jr. Pro-
secuted for contracting premature marriage under Act. 351 of the Revised Penal Code. She has
engaged your services as a lawyer.

How would you argue for her acquittal?

Answer:

1 would argue for the acquittal of Josefa. She is not liable for contracting premature
marriage under Article 351 of the Revised Penal Code. This article does not apply as Josefa
knew she was pregnant (eight months) when Pedro Coipuz, her husband, died. When she
married Pablo, and as a matter of fact, one week after the marriage, she gave birth to a boy
the paternity of the child was not in doubt Article 351 punishes premature marriage in order
to prevent doubtful paternity (People vs. Rosal 49 Phil. 539).

Question No. XIV

A, B, C D, and E were members of a gang operating in Mindanao with Gorio as over-all leader,
Gorio assigned A B, and C to get money from Pedro, a businessman from Agusan. As instructed, A,
B. and C, armed with guns, went to see Pedro and demanded PI00,000.00. When Pedro refused, A
pointed his gun at him while B hit him with the butt of his gun. Pedro gave the amount demanded.
After the three (3) left, Pedro went to the PC Command to tel! them what happened. On the way, he
met Orlando, also a businessman. Orlando told him that D and E, week earlier, wrote him a letter
asking P50.000.00 and threatening to kill his son and wife should he fail to give the amount. Afraid
that the two would make good their threat, he gave the money when D
called him that day. Orlando was also on his way to the PC to report what happened.

(a) What crime did A, B, and C commit?

(b) What crime did D and E commit?

If the crimes committed by A B and C on one hand and D and E on the other hand are
different. Explain why they are different when the purpose is the same, i.e. to extort money.

(c) Did Gorio commit any crime?

Answer:

a) A, B, and C committed robbery. They were able to make Pedro give them the
PI00,000 that they demanded when A pointed his gun at Pedro because he refused at first to
accede to their demand and B hit him with the butt of his gun. They employed violence and
intimidation in the taking of the money with intent to gain.
b) D and E committed Grave Threats. The reason is the intimidation employed refers to
the killings of the wife and son of Orlando should he failed to give the amount of P50,000
demanded in the latter which D and E sent him. The distinction between robbery and grave
threats when the purpose is the same, that is, to extort money, is that in robbery, the
intimidation is actual and immediate whereas on grave threats, the intimidation is future
and conditional.

c) Gorio, being the over-all leader of the group, is a principal by inducement in the
robbery committed against Pedro. He has no liability regarding the grave threats committed
by D and E against Orlando because the facts of the problem do not specifically mention his
intervention in the activities of D and E.

Question No. XV:

Jose. Pedro and Juan, robbed ABC Bank of P200,000.00 and using a stolen car, immediately
proceeded to Quezon City. The police recovered the money and the car. After the trial, during which
the bank lawyer intervened as private prosecutor, the court convicted Jose, Pedro and Juan of
robbery and ordered the forfeiture of the money (P200,000.00) and the car in favor of the
government as proceeds and instrument of the crime, respectively. The bank lawyer received copy
of the judgment, but did not do anything. Jose, Pedro and Juan did not appeal the judgment, and
began service of sentence. Two months later, realizing that the court did not order the return of the
money to the bank, the bank lawyer filed a motion for modification of the judgment and prayed that
the money be ordered returned to the bank. Two months later, Armando, the owner of the stolen
car, learned of the judgment even much later. He comes to you seeking your well considered
opinion on whether it is still possible to recover his car.

(a) As legal counsel, what will you tell him? Explain briefly.

(b) Under the facts given, would the bank be entitled to the return of the money? Why?

Answer:

a) As legal counsel, I would advise Armando to file a civil action for the recovery of his
car against its legal custodian. The car was stolen and therefore it belonged to Armando, an
innocent party, who has not participated in the commission of the robbery by Jose, Pedro
and Juan. The car, is therefore, not subject to confiscation.

b) The motion of the bank lawyer for the modification of the judgment with the prayer
that the money be ordered returned to the bank must be denied. The judgment is already
final and so the court has no more “jurisdiction” over the case (People vs. Velez 15 SCRA 26).