Special Penal Laws Reviewer, Part 1
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
WHEN AN ACCUSED IS SENTENCED TO RECLUSION
PERPETUA, HE IS NOT ENTITLED TO THE APPLICATION
OF THE INDETERMINATE SENTENCE LAW
Accused-appellant cannot avail of the benefits of the
Indeterminate Sentence Law because Indeterminate
Sentence Law does not apply to persons convicted of
offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, ’98)
APPLICATION OF INDETERMINATE SENTENCE LAW
EXPLAINED
In the case of People vs. Gabres, the Court has had
occasion to so state that —
"Under the Indeterminate Sentence Law, the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the
Revised Penal Code, and the minimum shall be within the
range of the penalty next lower to that prescribed' for the
offense. The penalty next lower should be based on the
penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the
commission of the crime. The determination of the minimum
penalty is left by law to the sound discretion of the court and
it can be anywhere within the range of the penalty next lower
without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered
only in the imposition of the maximum term of the
indeterminate sentence.
"The fact that the amounts involved in the instant case
exceed P22,000.00 should not be considered in the initial
determination of the indeterminate penalty; instead, the
matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the
full indeterminate sentence. This interpretation of the law
accords with the rule that penal laws should be construed in
favor of the accused. Since the penalty prescribed by law for
the estafa charge against accused-appellant is prision
correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional
minimum to medium. Thus, the minimum term of the
indeterminate sentence should be anywhere within six (6)
months and one (1) day to four (4) years and two (2) months
. . ."
(People v. Saley; GR 121179, July 2, ’98)
INDETERMINATE SENTENCE LAW; APPLICABLE ALSO
IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence
Law is applicable to the case now before us. Apparently it
does, since drug offenses are not included in nor has
appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course,
that the penalty as ultimately resolved will exceed one year
of imprisonment. The more important aspect, however, is
how the indeterminate sentence shall be ascertained. It is
true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised
Penal Code, states that "if the offense is punished by any
other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the
same" We hold that this quoted portion of the section
indubitably refers to an offense under a special law wherein
the penalty imposed was not taken from and is without
reference to the Revised Penal Code, as discussed in the
preceding illustrations, such that it may be said that the
"offense is punished" under that law. There can be no
sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary
because of the nature of the former type of penalties under
said laws which were not included or contemplated in the
scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next
lower to that prescribed by the Code for the offense," as is
the rule for felonies therein. In the illustrative examples of
penalties in special laws hereinbefore provided, this rule
applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No.
4103 as earlier noted, this holding is but an application and
is justified under the rule of contemporanea expositio.
Republic Act No. 6425, as now amended by Republic Act
No. 7659, has unqualifiedly adopted the penalties under the
Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have applied
the provisions of the amended Section 20 of said law to
arrive at prision correccional and Article 64 of the Code to
impose the same in the medium period. Such offense,
although provided for in a special law, is now in the effect
punished by and under the Revised Penal Code.
(People v Martin Simon)
WHEN THE BENEFITS OF INDETERMINATE SENTENCE
LAW IS NOT APPLICABLE;
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or
proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116),
rebellion (Art. 134), sedition (Art. 139), or espionage
(Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who
evaded sentence.
g. Those granted conditional pardon and who violated the
terms of the same (Art. 159). (People v. Corral, 74 Phil. 359).
h. Those whose maximum period of imprisonment does not
exceed one year.
i. Those who are already serving final judgment upon the
approval of the Indeterminate Sentence Law.
j. those offenses or crimes not punishable by imprisonment
such as distierro and suspension.
RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE
INDETERMINATE SENTENCE
Recidivists are entitled to an indeterminate sentence.
(People v. Jaramilla, L-28547, Feb. 22, 1974). Offender is
not disqualified to avail of the benefits of the law even if the
crime is committed while he is on parole. (People v. Clareon,
CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman)
NATURE OF PENALTY OF RECLUSION PERPETUA
In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme
Court declared that despite the amendment of Article 27 of
the Revised Penal Code, reclusion perpetua remained an
indivisible penalty. Hence, the penalty does not have any
minimum, medium and maximum period. Hence, there is no
such penalty of medium period of reclusion perpetua.
(People versus Tiburcio Baculi, 246 SCRA)
IMPOSITION OF WRONG PENALTY: IT DOES NOT
OBTAIN FINALITY
Suppose the court imposed a penalty of 25 years of
reclusion perpetua for the crime of rape and the accused did
not appeal, does the judgment become final and executory?
No, such judgment is null and void because it imposed a
non-existent penalty. Hence, the court may nevertheless
correct the penalty imposed on the accused, that is,
reclusion perpetua, it is merely performing a duty inherent in
the court. (People versus Nigel Gatward, GR No. 119772-73,
February 7, 1997)
DIFFERENCE BETWEEN RECLUSION PERPETUA AND
LIFE IMPRISONMENT
The penalty of reclusion perpetua is different from life
imprisonment. The former carries with it accessory penalties,
whereas life imprisonment does not carry with it any
accessory penalties; reclusion perpetua is that provided for
under the Revised Penal Code and under crimes defined by
special laws using the nomenclature under the Revised
Penal Code ; life imprisonment is that provided for violations
of the Revised Penal Code. Reclusion Perpetua may be
reduced by one or two degrees while life imprisonment
cannot be so reduced. (People -vs- Rolnando Madriaga, GR
No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT
OF RECLUSION PERPETUA
Reclusion perpetua has accessory penalties while life
imprisonment does not. However, life imprisonment does not
have a fixed duration or extent while reclusion perpetua has
a duration of from twenty years and one day to forty years.
life imprisonment may span the natural life of the convict.
(People -versus- Rallagan, 247 SCRA 537)
RECLUSION PERPETUA AND LIFE IMPRISONMENT
CANNOT BE INTER-CHANGE WHEN IMPOSED AS
PENALTY
Where the law violated provides for the penalty of reclusion
perpetua, impose the said penalty and not the penalty of life
imprisonment. Where the law imposes the penalty of life
imprisonment, do not impose reclusion perpetua. (People -
vs- Rolando Madriaga, 211 SCRA 698)
THE REASON WHY RECLUSION PERPETUA HAS A
RANGE DESPITE THE SAME BEING INDIVISIBLE
There we also said that "if reclusion perpetua was
reclassified as a divisible penalty, then Article 63 of the
Revised Penal Code would lose its reason and basis for
existence." The imputed duration of thirty (30) years of
reclusion perpetua, therefore, only serves as the basis for
determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties. (People -vs- Aspolinar Raganas, et al., GR No.
101188, October 12, 1999)
RARE CASE OF APPLICATION OF RPC IN A
SUPPLETORY CHARACTER DESPITE THE PENALTY
BEING LIFE IMPRISONMENT
Where the accused committed qualified violation of PD 704
(fishing with the use of explosives), the imposable penalty for
which is life imprisonment to death. If the accused is entitled
to a mitigating circumstance of voluntary surrender, the court
should impose life imprisonment applying, in a suppletory
character, Articles 13 and 63 of the Revised Penal Code.
(People -vs- Priscilla Balasa, GR No. 106357, September 3,
1998)
ACCUSED WHO IS SENTENCED TO RECLUSION
PERPETUA IS STILL ENTITLED TO EITHER FULL OR ¾
OF HIS PREVENTIVE IMPRISONMENT
If, during the trial, the accused was detained but, after trial,
he was meted the penalty of reclusion perpetua, he is still
entitled to the full credit of his preventive imprisonment
because Article 29 of the Revised Penal Code does not
distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz, 231 SCRA 480)
QUALIFIED THEFT
QUALIFIED THEFT IS PENALIZED BY RECLUSION
PERPETUA IF AMOUNT INVOLVED IS OVER P22,000.00
Under Article 309 of the Revised Penal Code, the maximum
of the penalty for qualified theft is prision mayor to reclusion
temporal. However, under Article 310 of the Revised Penal
Code, the penalty for the crime shall be two (2) degrees
higher than the specified in Article 309 of the Code. Under
Article 74 of the Revised Penal Code, the penalty higher by
one degree than another given penalty, and if such higher
penalty is death, the penalty shall be reclusion perpetua of
forty (40) years with the accessory penalties of death under
Article 40 of the Revised Penal Code. The accused shall not
be entitled to pardon before the lapse of forty (40) years.
(People -vs- Fernando Canales, 297 SCRA 667)
THE PROBATION LAW (P.D. 968) AND ITS
AMENDMENTS
PROBATION, ITS MEANING
A disposition under which a defendant, after conviction and
sentence, is subject to conditions imposed by the Court and
under the supervision of a probation officer.
PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender
by providing him with personalized
community based treatment;
b. to provide an opportunity for his reformation and
reintegration into the community;
c. to prevent the commission of offenses.
SUBMISSION OF PETITION AND TIME OF FILING
OFPETITION
The petition or application for probation must be filed directly
with the Court which sentenced the accused within 15 days
from date of promulgation of the decision convicting the
accused, or in short within the period to appeal otherwise the
judgment shall become final and the accused shall be
deemed to have waived his right to probation.
EFFECT OF FILING OF PETITION FOR PROBATION
Upon filing of petition for probation, the court shall suspend
the execution of sentence.
Likewise, the filing of a petition for probation shall be
deemed a waiver of the right to appeal and in case an
appeal is made immediately after conviction, a filing of
petition for probation still within the period to appeal, that is
within fifteen days from date of promulgation shall be
deemed a withdrawal of the appeal.
PENDING RESOLUTION OF PETITION, WHAT ARE THE
PRIVILEDGE THAT MAYBE GIVEN TO THE ACCUSED-
PETITIONER?
1. if the accused, prior to the promulgation of decision of
conviction is out on bail, he may be allowed on
temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed
temporary liberty, if he cannot post a bond, on
recognizance of a responsible member of a community who
shall guarantee his appearance whenever
required by the court.
IN CASE THE APPLICANT FOR PROBATION CANNOT BE
PRODUCED BY THE CUSTODIAN ON RECOGNIZANCE,
WHAT HAPPENS?
The custodian must be asked to explain why he should not
be cited for contempt for failing to produce the probationer
when required by the court; Summary hearing will be held for
indirect contempt, and if custodian cannot produce the
petitioner, nor to explain his failure to produce the petitioner,
the custodian on recognizance shall be held in contempt of
court.
WHAT IS A POST SENTENCE INVESTIGATION REPORT?
It is a report of the Parole and Probation Officer after
conducting post sentence investigation and interviews
containing the circumstances surrounding the offense for
which the petitioner was convicted. The findings should be
drawn from the court records, police records, statement of
defendants, the aggrieved party and other persons who may
know the petitioner and all other matters material to the
petition.
It will also include the psychological and social information
regarding the probationer; evaluation of the petitioner;
suitability for probation; his potential for rehabilitation; and
may include the program for supervision and suggested
terms of conditions of probation and a recommendation
either to deny or grant the probation.
WHAT ARE THE MANDATORY CONDITIONS OF
PROBATION?
a. To present himself to the probation officer concerned for
supervision within 72 hours from receipt of said
order and
b. to report to the probation officer at least once a month
during the period of probation.
WHAT ARE THE OTHER CONDITIONS OF PROBATION?
a. cooperate with a program of supervision;
b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge
said employment without prior written
approval of the probation officer;
d. comply with a program of payment of civil liability to the
victim of his heirs;
e. undergo medical, psychological or psychiatric examination
and treatment and/or enter and remain in a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;
g. attend or reside in a facility established for instruction or
recreation of persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker
to visit his home and place of work;
k. reside at premises approved by the court and not to
change his residence w/o prior written approval; and
l. satisfy any other condition related to the rehabilitation of
the probationer and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )
RULES ON OUTSIDE TRAVEL OF PROBATIONER
A probationer who desires to travel outside the jurisdiction of
the city or provincial probation officer for not more than 30
days, the permission of the parole and probation officer must
be sought. If for more than thirty (30) days, aside from the
permission of the parole and probation officer, the
permission of the court must likewise be sought.
EFFECT OF APPEAL BY THE ACCUSED OF HIS
CONVICTION
a. If the accused appeals his conviction for the purpose of
totally reversing his conviction, he is deemed to have waived
his right to probation.
b. The rule that if the accused appeals his conviction only
with respect to the penalty, as he believes the penalty is
excessive or wrong, as the penalty is probationable, and the
appellate court sustains the accused may still apply for
probation, has already been abandoned. An appeal
therefore, irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to
probation, has already been abandoned. An appeal
therefore, irrespective of its purpose, to overturn the entire
decision or only with respect to penalty is a waiver to
probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
The investigation report and the supervision and history of a
probationer obtained under PD No. 968 and under these
rules shall be privileged and shall not be disclosed directly or
indirectly to anyone other than the probation administration
or the court concerned the court which granted the probation
or where the probation was transferred may allow the
probationer to inspect the aforesaid documents or his
lawyer, whenever such disclosure may be desirable or
helpful to them.
Any government office may ask for the records of probation
from the court for its official use or from the administrator.
Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE
OF PROBATION RECORDS. The penalty of imprisonment
ranging from six months and one day to six years and a fine
ranging from hundred to six thousand pesos shall be
imposed upon any person who violates Section 17 hereof.
MODIFICATION OF CONDITION OR PERIOD OF
PROBATION
The court, on motion, or motu propio may modify the
conditions of probation or modify the period of probation as
circumstances may warrant.
WHO ARE DISQUALIFIED TO UNDERGO PROBATION
1. Those sentenced to serve a maximum term of
imprisonment of more than six years.
2. Those convicted of any offense against the security of the
state;
3. Those who have been previously convicted by final
judgment of an offense punished by imprisonment of not less
than one moth and one day and/or a fine of not less than
P200.00;
4. Those who have been once on probation under the
provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.
PERIOD OF PROBATION
1. If the probationer has been sentenced to an imprisonment
of not more than one year, the probation shall not exceed
two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not be less
than the period of subsidiary imprisonment nor more than
twice of the subsidiary imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:
"Sec. 4. Grant of Probation. - Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction.
"Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
"An order granting or denying probation shall not be
appealable."
Thus, a person who was sentenced to destierro cannot apply
for probation. Reason: it does not involved imprisonment or
fine. (PD 1990)
JURISPRUDENCE
UNDERLYING PHILOSOPHY OF PROBATION
The underlying philosophy of probation is indeed one of
liberality towards the accused. It is not served by a harsh
and stringent interpretation of the statutory provisions.
Probation is a major step taken by our Government towards
the deterrence and minimizing of crime and the
humanization of criminal justice. In line with the public policy
behind probation, the right of appeal should not be
irrevocably lost from the moment a convicted accused files
an application for probation. Appeal and probation spring
from the same policy considerations of justice, humanity,
and compassion. (Yusi v Morales, 4/28/83)
PROBATION IS NOT A RIGHT BUT A PRIVILEGE
Probation is a mere privilege and its grant rests solely upon
the discretion of the court. As aptly noted in U.S. vs. Durken,
this discretion is to be exercised primarily for the benefit of
organized society and only incidentally for the benefit of the
accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83).
Even if a convicted person is not included in the list of
offenders disqualified from the benefits of a decree, the grant
of probation is nevertheless not automatic or ministerial,
(Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a
petition for probation may be denied by the Court.
MAIN CRITERION FOR DETERMINING WHO MAY BE
GRANTED PROBATION.
The main criterion laid down by the Probation law in
determining who may be granted probation is based on the
penalty imposed and not on the nature of the crime. By the
relative lightness of the offense, as measured by the penalty
imposed, more than by its nature, as the law so ordains the
offender is not such a serious menace to society as to be
wrested away therefrom, as the more dangerous type of
criminals should be. Hence, in the case at bar, the first
reason given by the respondent judge for his denial of the
petition for probation that, "probation will depreciate the
seriousness of the offense committed" would thus be writing
into the law a new ground for disqualifying a first-offender
from the benefits of probation. (Santos v. Cruz-Pano,
1/17/83)
TIMELINESS OF FILING APPLICATION FOR PROBATION
The accused must file a Petition for Probation within the
period for appeal. If the decision of conviction has become
final and executory, the accused is barred from filing a
Petition for Probation (Pablo Francisco v. C.A., 4/6/95).
ORDER DENYING PROBATION NOT APPEALABLE,
REMEDY CERTIORARI
Although an order denying probation is not appealable, the
accused may file a motion for Certiorari from said order
(Heirs of Francisco Abueg v. C.A., 219 SCRA 78)
EFFECT OF FILING PETITION FOR PROBATION,
WAIVER OF RIGHT TO APPEAL AND FINALITY OF
JUDGEMENT
A judgment of conviction becomes final when the accused
files a petition for probation. However, the judgement is not
executory until the petition for probation is resolved. The
filing of the petition for probation is a waiver by the accused
of his right to appeal the judgement of conviction (Heirs of
Francisco Abueg v. C.A., supra).
MULTIPLE CONVICTIONS IN SEVERAL CASES
PROBATIONABLE IF PENALTY FOR EACH CONVICTION
IS PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties
imposed but to take each penalty, separately and distinctly
with the others. Consequently, even if petitioner was
supposed to have served his prison term of one (1) year and
one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to
serve the prison term for "each crime committed on each
date of each case, as alleged in the information(s)," and in
each of the four (4) informations, he was charged with
having defamed the four (4) private complainants on four (4)
different, separate days, he was still eligible for probation, as
each prison term imposed on petitioner was probationable.
(Francisco v. CA; 4/16/95)
REASON FOR FIXING CUT OFF POINT AT A MAXIMUM
OF SIX YEARS IMPRISONMENT FOR PROBATION.
Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that
those sentenced to higher penalties pose too great a risk to
society, not just because of their demonstrated capability for
serious wrongdoing but because of the gravity and serious
consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who
have been convicted of grave felonies as defined in Art. 9 in
relation to Art. 25 of The Revised Penal Code, and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is
principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to
a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus
may avail of probation
VIOLATION OF RA 6425, A VALID CAUSE FOR
DISMISSAL IN SERVICE IN THE GOVERNMENT DESPITE
PROBATION
Drug-pushing, as a crime, has been variously condemned as
"an especially vicious crime," "one of the most pernicious
evils that has ever crept into our society." For those who
become addicted to it "not only slide into the ranks of the
living dead, what is worse, they become a grave menace to
the safety of law-abiding members of society," while
"peddlers of drugs are actually agents of destruction. The
deserve no less than the maximum penalty [of death]."
There is no doubt that drug-pushing is a crime which
involves moral turpitude and implies "every thing which is
done contrary to justice, honesty, modesty or good morals"
including "acts of baseness, vileness, or depravity in the
private and social duties which a man owes to his fellowmen
or to society in general, contrary to the accepted rule of right
and duty between man and man." Indeed nothing is more
depraved than for anyone to be a merchant of death by
selling prohibited drugs, an act which, as this Court said in
one case,"often breeds other crimes. It is not what we might
call a 'contained' crime whose consequences are limited to
that crime alone, like swindling and bigamy. Court and police
records show that a significant number of murders, rapes,
and similar offenses have been committed by persons under
the influence of dangerous drugs, or while they are 'high.'
While spreading such drugs, the drug-pusher is also
abetting, through his agreed and irresponsibility, the
commission of other crimes." The image of the judiciary is
tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law (P.D. No. 968, as
amended) is to save valuable human material, it must not be
forgotten that unlike pardon probation does not obliterate the
crime of which the person under probation has been
convicted. The reform and rehabilitation of the probationer
cannot justify his retention in the government service. He
may seek to reenter government service, but only after he
has shown that he is fit to serve once again. It cannot be
repeated too often that a public office is a public trust, which
demands of those in its service the highest degree of
morality. (OCA v. Librado 260 SCRA 624, 8/22/96)
PETITIONER MAY STILL EXHORT OFFENDER TO
PERFORM CERTAIN ACTS DESPITE DISCHARGE FROM
PROBATION IN CERTAIN CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation
without any infraction of the attendant conditions therefor
and the various certifications attesting to his righteous,
peaceful and civic-oriented character prove that he has
taken decisive steps to purge himself of his deficiency in
moral character and atone for the unfortunate death of Raul
I. Camaligan. The Court is prepared to give him the benefit
of the doubt, taking judicial notice of the general tendency of
the youth to be rash, temerarious and uncalculating. Let it be
stressed to herein petitioner that the lawyer's oath is not a
mere formality recited for a few minutes in the glare of
flashing cameras and before the presence of select
witnesses. Petitioner is exhorted to conduct himself beyond
reproach at all times and to live strictly according to his oath
and the Code of Professional Responsibility. And, to
paraphrase Mr. Justice Padilla's comment in the sister case
of Re: Petition of Al Argosino To Take The Lawyer's Oath,
Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely
hopes that" Mr. Cuevas, Jr., "will continue with the
assistance he has been giving to his community. As a lawyer
he will now be in a better position to render legal and other
services to the more unfortunate members of society". (In
Re: Cuevas, Jr.; 1/27/98)
EXPIRATION OF PERIOD OF PROBATION IS NOT
TERMINATION, ORDER OF COURT REQUIRED
The mere expiration of the period for probation does not,
ipso facto, terminate the probation. Probation is not co-
terminus with its period, there must be an order from the
Court of final discharge, terminating the probation. If the
accused violates the condition of the probation before the
issuance of said order, the probation may be revoked by the
Court (Manuel Bala v. Martinez, 181 SCRA 459).
ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing
Law) is ―the act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or
in any manner deal in any article, item, object or anything of
value which he knows or should be known to him, or to have
been derived from the proceeds of the crime of robbery or
theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).
BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING
LAW
Presidential Decree No. 1612 or commonly known as the
Anti-Fencing Law of 1979 was enacted under the authority of
therein President Ferdinand Marcos. The law took effect on
March 2, 1979. The Implementing Rules and Regulations of
the Anti-Fencing Law were subsequently formulated and it
took effect on June 15, 1979.
THE PURPOSE OF ENACTING PD 1612
The Anti-Fencing Law was made to curtail and put an end to
the rampant robbery of government and private properties.
With the existence of "ready buyers", the "business" of
robbing and stealing have become profitable. Hence, a law
was enacted to also punish those who buy stolen properties.
For if there are no buyers then the malefactors could not
profit from their wrong doings.
WHAT IS FENCING LAW AND HOW IT CAN BE
COMMITTED
"Fencing" is the act of any person who, with intent to gain for
himself or for another, shall buy receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or
in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of
robbery or theft. A "Fence" includes any person, firm,
association corporation or partnership or other organization
who/ which commits the act of fencing.
WHO ARE LIABLE FOR THE CRIME OF FENCING; AND
ITS PENALTIES:
The person liable is the one buying, keeping, concealing and
selling the stolen items. If the fence is a corporation,
partnership, association or firm, the one liable is the
president or the manager or the officer who knows or should
have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of
the crime of fencing. Their penalty depends on the value of
the goods or items stolen or bought:
a. The penalty of prision mayor, if the value of the property
involved is more than 12,000 pesos but not exceeding
22,000 pesos; if the value of such property exceeds the
latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such cases, the
penalty shall be termed reclusion temporal and the
accessory penalty pertaining thereto provided in the Revised
Penal Code shall also be imposed.
b. The penalty of prision correccional in its medium and
maximum periods, if the value of the property robbed or
stolen is more than 6,000 pesos but not exceeding 12, 000
pesos;
c. The penalty of prision correccional in its minimum and
medium periods, if the value of the property involved is more
than 200 pesos but not exceeding 6,000 pesos;
d. The penalty of arresto mayor in its medium period to
prision correccional in its minimum period, if the value of the
property involved is over 50 but not exceeding 200 pesos;
e. The penalty of arresto mayor in its medium period if such
value is over five (5) pesos but not exceeding 50 pesos.
f. The penalty of arresto mayor in its minimum period if such
value does not exceed 5 pesos.
RULES REGARDING BUY AND SELL OF GOODS
PARTICULARLY SECOND HAND GOODS
The law requires the establishment engaged in the buy and
sell of goods to obtain a clearance or permit to sell "used
second hand items", to give effect to the purpose of the law
in putting an end to buying and selling stolen items. Failure
of which makes the owner or manager liable as a fence.
The Implementing Rules provides for the guidelines of
issuance of clearances or permits to sell used or
secondhand items. It provided for the definition of the
following terms:
1. "Used secondhand article" shall refer to any goods,
article, items, object or anything of value obtained from an
unlicensed dealer or supplier, regardless of whether the
same has actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons,
partnership, firm, corporation, association or any other entity
or establishment not licensed by the government to engage
in the business of dealing in or of supplying the articles
defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to
include any individual dealing in the buying and selling used
secondhand articles, as defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one
purchases used secondhand articles for the purpose of
resale to third persons;
5. "Station Commander" shall refer to the Station
Commander of the Integrated National Police within the
territorial limits of the town or city district where the store,
establishment or entity dealing in the buying and selling of
used secondhand articles is located.
PROCEDURE FOR SECURING PERMIT/CLEARANCE
The Implementing Rules provided for the method of
obtaining clearance or permit. No fee will be charged for the
issuance of the clearance/permit. Failure to secure
clearance/permit shall be punished as a fence, that may
result to the cancellation of business license.
1. The Station Commander shall require the owner of a store
or the President, manager or responsible officer in having in
stock used secondhand articles, to submit an initial affidavit
within thirty (30) days from receipt of notice for the purpose
thereof and subsequent affidavits once every fifteen (15)
days within five (5) days after the period covered, which shall
contain:
a. complete inventory of such articles including the names
and addresses from whom the articles were acquired.
b. Full list of articles to be sold or offered for sale including
the time and place of sale
c. Place where the articles are presently deposited.
The Station Commander may, require the submission of an
affidavit accompanied by other documents showing proof of
legitimacy of acquisition.
2. Those who wish to secure the permit/clearance, shall file
an application with the Station Commander concerned,
which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the
name and address of the unlicensed dealer or supplier from
whom such article was acquired.
c. Include the receipt or document showing proof of
legitimacy of acquisition.
3. The Station Commander shall examine the documents
attached to the application and may require the presentation
of other additional documents, if necessary, to show
satisfactory proof of the legitimacy of acquisition of the
article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of
legitimacy of acquisition, he shall cause the publication of
the notice, at the expense of the one seeking
clearance/permit, in a newspaper of general circulation for
two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they
were acquired
> that such articles are to be sold or offered for sale to the
public at the address of the store, establishment or other
entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party
seeking the clearance/permit shall, post a notice daily for
one week on the bulletin board of the municipal building of
the town where the store, firm, establishment or entity is
located or, in the case of an individual, where the articles in
his possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of
publication or of the notice, no claim is made to any of the
articles enumerated in the notice, the Station Commander
shall issue the clearance or permit sought.
6. If before expiration of the same period for the publication
of the notice or its posting, it shall appear that any of the
articles in question is stolen property, the Station
Commander shall hold the article in restraint as evidence in
any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the
circumstances of each case permit. In any case it shall be
the duty of the Station Commander concerned to
advise/notify the Commission on Audit of the case and
comply with such procedure as may be proper under
applicable existing laws, rules and regulations.
7. The Station Commander shall, within seventy-two (72)
hours from receipt of the application, act thereon by either
issuing the clearance/permit requested or denying the same.
Denial of an application shall be in writing and shall state in
brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station
Commander may appeal the same within 10 days to the
proper INP (now PNP) District Superintendent and further to
the INP (now PNP) Director. The decision of the Director can
still be appealed top the Director-General, within 10 days,
whose decision may be appealed with the Minister (now
Secretary) of National Defense, within 15 days, which
decision is final.
PRESUMPTION
Mere possession of any good, article, item, object or
anything fo value which has been the subject of robbery or
thievery, shall be prima facie evidence of fencing.
ELEMENTS
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, receives,
possess, keeps, acquires, conceals, sells, 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 the said crime;
3. The accused knows or should have known that the said
article, item, or object or anything of value has been derived
from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for
himself or for another. (Dizon-Pamintuan vs People, GR
111426, 11 July 94)
As regards the first element, the crime of robbery or theft
should have been committed before crime of fencing can be
committed. The person committing the crime of robbery or
theft, may or may not be the same person committing the
crime of fencing. As in the case of D.M. Consunji, Inc., vs.
Esguerra, quantities of phelonic plywood were stolen and the
Court held that qualified theft had been committed. In People
vs. Lucero there was first a snatching incident, where the
bag of Mrs. Maripaz Bernard Ramolete was snatch in the
public market of Carbon, Cebu City, where she lost a
Chinese Gold Necklace and pendant worth some P4,000.00
to snatchers Manuel Elardo and Zacarias Pateras. The
snatchers sold the items to Manuel Lucero. Consequently,
Lucero was charged with violation of the Anti-Fencing Law.
However, in this case, no eyewitness pointed to Lucero as
the perpetrator and the evidence of the prosecution was not
strong enough to convict him.
The second element speaks of the overt act of keeping,
buying, receiving, possessing, acquiring, concealing, selling
or disposing or in any manner deals with stolen items. It is
thus illustrated in the case of Lim vs. Court of Appeals,
where the accused, Juanito Lim stored and kept in his
bodega and subsequently bought or disposed of the nine (9)
pieces of stolen tires with rims owned by Loui Anton Bond.
The accused known or should have known that the goods
were stolen. As pointed out in the case of People vs.
Adriatico, the court in convicting Norma Adriatico, stated that
it was impossible for her to know that the jewelry were stolen
because of the fact that Crisilita was willing to part with a
considerable number of jewelry at measly sum, and this
should have apprised Norma of the possibility that they were
stolen goods. The approximate total value of the jewelry
were held to be at P20,000.00, and Norma having bought it
from Crisilita for only P2,700. The court also considered the
fact that Norma engage in the business of buying and selling
gold and silver, which business is very well exposed to the
practice of fencing. This requires more than ordinary case
and caution in dealing with customers. As noted by the trial
court:
". . . the Court is not inclined to accept the accused's theory
of buying in good faith and disclaimer of ever seeing, much
more, buying the other articles. Human experience belies
her allegations as no businessman or woman at that, would
let go of such opportunities for a clean profit at the expense
of innocent owners.’’
The Court in convicting Ernesto Dunlao Sr., noted that the
stolen articles composed of farrowing crates and G.I. pipes
were found displayed on petitioner's shelves inside his
compound. (Dunalao, Sr. v. CA, 08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the
third element was not proven. This case involves the selling
of alleged stolen Kenwood Stereo Unit in the store Danvir
Trading, owned by the spouses Muere. The store is engaged
in buying and selling of second hand merchandise located at
Pasay Road, Makati. The said stereo was bought from
Wynn's Audio, an existing establishment. The court held that
there is no proof that the spouses Muere, had knowledge of
the fact that the stereo was stolen. The spouses Muere
purchased the stereo from a known merchant and the unit is
displayed for sale in their store. These actions are not
indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case
of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96)
where the subject of the court action are the alleged stolen
phelonic plywood owned by D.M. Consunji, Inc., later found
to be in the premises of MC Industrial Sales and Seato
trading Company, owned respectively by Eduardo Ching and
the spouses Sy. Respondents presented sales receipts
covering their purchase of the items from Paramount
Industrial, which is a known hardware store in Caloocan,
thus they had no reason to suspect that the said items were
products of theft.
The last element is that there is intent to gain for himself or
for another. However, intent to gain need not be proven in
crimes punishable by a special law such as the Anti-Fencing
Law. The crimes punishable by special laws are called "acts
mala prohibita". The rule on the subject is that in acts mala
prohibita, the only inquiry is that, has the law been violated?
(in Gatdner v. People, as cited in US v. Go Chico, 14 Phils.
134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable
by special statute like the Anti-Fencing Law. It is the act itself
which constitutes the offense and not the motive or intent.
Intent to gain is a mental state, the existence if which is
demonstrated by the overt acts of the person. The mental
state is presumed from the commission of an unlawful act.
(Dunlao v. CA) again, intent to gain is a mental state, the
existence of which is demonstrated by the overt acts of
person, as the keeping of stolen items for subsequent
selling.
A FENCE MAY BE PROSECUTED UNDER THE RPC OR
PD 1612
The state may thus choose to prosecute him either under the
RPC or PD NO. 1612 although the preference for the latter
would seem inevitable considering that fencing is a malum
prohibitum, and PD No. 1612 creates a presumption of
fencing and prescribes a higher penalty based on the value
of the property. (supra)
MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE
EVIDENCE OF FENCING
Since Sec. 5 of PD NO. 1612 expressly provides that ―mere
possession of any good, article, item, object or anything of
value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing‖ it follows that the
accused is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery
or theft. The presumption does not offend the presumption of
innocence enshrined in the fundamental law.
DISTINCTION BETWEEN FENCING AND ROBBERY
The law on fencing does not require the accused to have
participation in the criminal design to commit or to have been
in any wise involved in the commission of the crime of
robbery or theft. Neither is the crime of robbery or theft made
to depend on an act of fencing in order that it can be
consummated. (People v De Guzman, GR 77368).
Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence against or
intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with
intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or shall be
known to him, to have been derived from the proceeds of the
crime of robbery or theft.
FENCING AS A CRIME INVOLVING MORAL TURPITUDE.
In violation of the Anti-Fencing Law, actual knowledge by the
"fence" of the fact that property received is stolen displays
the same degree of malicious deprivation of one's rightful
property as that which animated the robbery or theft which
by their very nature are crimes of moral turpitude. (Dela
Torre v. COMELEC 07/05/96)
Moral turpitude can be derived from the third element -
accused knows or should have known that the items were
stolen. Participation of each felon, one being the robber or
the thief or the actual perpetrators, and the other as the
fence, differs in point in time and degree but both invaded
one's peaceful dominion for gain. (Supra) Both crimes
negated the principle of each person's duty to his fellowmen
not to appropriate things that they do not own or return
something acquired by mistake or with malice. This signifies
moral turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from
running the position of Mayor in Cavinti, Laguna in the last
May 8, 1995 elections because of the fact of the
disqualification under Sec. 40 of the Local Government
Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement
for an offense involving moral turpitude..."
Dela Torre was disqualified because of his prior conviction of
the crime of fencing wherein he admitted all the elements of
the crime of fencing.
ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-
FENCING
PD 1612, Section 2 thereof requires that the offender buys
or otherwise acquires and then sells or disposes of any
object of value which he knows or should he known to him to
have been derived from the proceeds of the crime of robbery
or theft. (Caoili v CA; GR 128369, 12/22/97)
PROOF OF PURCHASE WHEN GOODS ARE IN
POSSESSION OF OFFENDER NOT NECESSARY IN ANTI-
FENCING
The law does not require proof of purchase of the stolen
articles by petitioner, as mere possession thereof is enough
to give rise to a presumption of fencing.
It was incumbent upon petitioner to overthrow this
presumption by sufficient and convincing evidence. (Caoili v.
CA; GR 128369, 12/22/97)
BATAS PAMBANSA BLG. 22
BOUNCING CHECKS LAW
ACTS PUNISHABLE:
a. any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue
that he does not have sufficient funds in or credit with the
drawee bank, for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds, or credit, or would
have been dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop
payment.
b. Any person who having sufficient funds in or credit with
the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a
credit to cover the full amount of the check if presented
within a period of ninety days from date appearing thereon,
for which reason, it is dishonored by the drawee bank.
HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
To establish her guilt, it is indispensable that the checks she
issued for which she was subsequently charged, be offered
in evidence because the gravamen of the offense charged is
the act of knowingly issuing a check with insufficient funds.
Clearly, it was error to convict complainant on the basis of
her letter alone. Nevertheless, despite this incorrect
interpretation of a rule on evidence, we do not find the same
as sufficiently constitutive of the charges of gross ignorance
of the law and of knowingly rendering an unjust decision.
Rather, it is at most an error in judgment, for which, as a
general rule, he cannot be held administratively liable. In this
regard, we reiterate the prevailing rule in our jurisdiction as
established by current jurisprudence. (Gutierrez v Pallatao;
8/8/98)
NOTICE, AN INDISPENSABLE REQUISITE FOR
PROSECUTION
Section 3 of BP 22 requires that the holder of the check or
the drawee bank, must notify the drawer of the check that
the same was dishonored, if the same is presented within
ninety days from date of issuance, and upon notice the
drawer has five days within which to make arrangements for
the payment of the check or pay the same in full.
DUTY OF THE DRAWEE BANK
The drawee bank has the duty to cause to be written, printed
or stamped in plain language thereon, or attached thereto
the reason for the drawee’s dishonor or refusal to pay the
same. If the drawee bank fails to do so, prosecution for
violation of BP 22 may not prosper.
RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT
The drawee bank has not only the duty to indicate that the
drawer stopped the payment and the reason for the stop
payment. The drawee bank is further obligated to state
whether the drawer of the check has sufficient funds in the
bank or not.
AGREEMENT OF PARTIES REGARDING THE CHECK IS
NOT A DEFENSE
In the case of People vs Nitafan, 215 SCRA, the agreement
of the parties in respect to the issuance of the check is
inconsequential or will not affect the violation of BP 22, if the
check is presented to the bank and the same was
dishonored due to insufficiency of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT
Checks issued in payment for installment covered by
promissory note and said checks bounced, the drawer is
liable if the checks were drawn against insufficient funds,
especially that the drawer, upon signing of the promissory
note, closed his account. Said check is still with
consideration. (Caram Resources v. Contreras)
In this case, the Judge was even held administratively liable.
CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:
A check drawn against a dollar account in a foreign country
is still violative of the provisions of BP 22 so long as the
check is issued, delivered or uttered in the Philippines, even
if the same is payable outside of the Philippines (De Villa v.
CA)
GUARANTEE CHECKS, DRAWER, STILL LIABLE
The mere act of issuing a worthless check is punishable.
Offender cannot claim good faith for it is malum prohibitum.
In the case of Magno vs CA, when accused issued a check
as warranty deposit for lease of certain equipment, even
knowing that he has no funds or insufficient funds in the
bank is not liable, if the lessor of the equipment pulled out
the loaned equipment. The drawer has no obligation to make
good the check because there is no more deposit to
guaranty.
ISSUANCE OF GUARANTEE CHECKS WHICH WAS
DISHONORED IN VIOLATION AND PURPOSE OF THE
LAW
The intention of the framers of BP 22 is to make a mere act
of issuing a worthless check malum prohibitum. In
prosecutions for violation of BP 22, therefore, prejudice or
damage is not prerequisite for conviction.
The agreement surrounding the issuance of the checks need
not be first locked into, since the law has provided that the
mere issuance of any kind of check; regardless of the intent
of the parties, i.e., whether the check is intended merely to
serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the
check liable. (Lazaro vs CA, et al., GR 105461).
CAN A PERSON BE HELD LIABLE FOR ISSUING A
CHECK WITH SUFFICIENT FUNDS FOR VIOLATION OF
BP 22?
Yes. Paragraph 2 of Section 1 of BP 22 provides:
The same penalty shall be imposed upon any person who
having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is
dishonored by the drawee bank.
RULE ON RENDERING UNJUST JUDGMENT,
IGNORANCE, ETC. BY A JUDGE
In the case of De la Cruz vs. Concepcion this Court
declared:
"Mere errors in the appreciation of evidence, unless so gross
and patent as to produce an inference of ignorance or bad
faith, or of knowing rendition of an unjust decision, are
irrelevant and immaterial in an administrative proceeding
against him. No one, called upon to try facts or interpret the
law in the process of administering justice, can be infallible in
his judgment. All that is expected of him is that he follow the
rules prescribed to ensure a fair and impartial hearing,
assess the different factors that emerge therefrom and bear
on the issues presented, and on the basis of the conclusions
he finds established, with only his conscience and
knowledge of the law to guide him, adjudicate the case
accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-95-
1326, July 8, 1998)
DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF
BP 22
In the crime of estafa, deceit and damage are essential
elements of the offense and have to be established with
satisfactory proof to warrant conviction. For violation of the
Bouncing Checks Law, on the other hand, the elements of
deceit and damage are neither essential nor required.
Rather, the elements of B.P. Blg. 22 are (a) the making,
drawing and issuance of any check to apply to account or for
value; (b) the maker, drawer or issuer knows at the time of
issuance that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full
upon its presentment; and, (c) the check is subsequently
dishonored by the drawee bank for insufficiency of funds or
credit or would have been dishonored for the same reason
had not the drawer, without valid reason, ordered the bank to
stop payment. (Uy v Court of Appeals, GR 119000, July 28,
1997)
JURISDICTION IN BP 22 CASES
In respect of the Bouncing checks case, the offense also
appears to be continuing in nature. It is true that the offense
is committed by the very fact of its performance (Colmenares
vs. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and
that the Bouncing Checks Law penalizes not only the fact of
dishonor of a check but also the act of making or drawing
and issuance of a bouncing check (People vs. Hon.
Veridiano, II, No. L-62243, 132 SCRA 523). The case,
therefore, could have been filed also in Bulacan. As held in
Que vs. People of the Philippines, G.R. Nos. 75217-18,
September 11, 1987 "the determinative factor (in
determining venue) is the place of the issuance of the
check". However, it is likewise true that knowledge on the
part of the maker or drawer of the check of the insufficiency
of his funds, which is an essential ingredient of the offense is
by itself a continuing eventuality, whether the accused be
within one territory or another (People vs. Hon. Manzanilla,
G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the
Regional Trial Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or
venue is determined by the allegation in the Information,
which are controlling (Arches vs. Bellosillo, 81 Phil. 190,
cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66
SCRA 235). The Information filed herein specifically alleges
that the crime was committed in San Fernando Pampanga
and therefore within the jurisdiction of the Court below.
This ruling was reiterated in the case of Lim vs. Rodrigo, 167
SCRA 487, where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra,
that as "violation of the bad checks act is committed when
one 'makes or draws and issues any check [sic] to apply on
account or for value, knowing at the time issue that he does
not have sufficient funds' or having sufficient funds in or
credit with the drawee bank . . . shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored
by the drawee bank," "knowledge" is an essential ingredient
of the offense charge. As defined by the statute, knowledge,
is, by itself, a continuing eventuality, whether the accused be
within one territory or another. This being the case, the
Regional Trial Court of Baguio City has jurisdiction to try
Criminal Case No. 2089-R (688).
Moreover, we ruled in the same case of People v. Hon.
Manzanilla, reiterated in People vs. Grospe, supra, that
jurisdiction or venue is determined by the allegations in the
information. The allegation in the information under
consideration that the offense was committed in Baguio City
is therefore controlling and sufficient to vest jurisdiction upon
the Regional Trial Court of Baguio City.
In the case at bench it appears that the three (3) checks
were deposited in Lucena City. As to the second error
wherein the petitioner asserted that the checks were issued
"as a guarantee only for the feeds delivered to him" and that
there is no estafa if a check is issued in payment of a pre-
existing obligation, the Court of Appeals pointed out that the
petitioner obviously failed to distinguish a violation of B.P.
Blg. 22 from estafa under Article 315 (2) [d] of the Revised
Penal Code. It further stressed that B.P. Blg. 22 applies even
in cases where dishonored checks were issued as a
guarantee or for deposit only, for it makes no distinction as
to whether the checks within its contemplation are issued in
payment of an obligation or merely to guarantee the said
obligation and the history of its enactment evinces the
definite legislative intent to make the prohibition all-
embracing. (Ibasco vs CA, 9/5/96)
ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS
ESSENTIAL IN BP 22
Knowledge of insufficiency of funds or credit in the drawee
bank for the payment of a check upon its presentment is an
essential element of the offense. There is a prima facie
presumption of the existence of this element from the fact of
drawing, issuing or making a check, the payment of which
was subsequently refused for insufficiency of funds. It is
important to stress, however, that this is not a conclusive
presumption that forecloses or precludes the presentation of
evidence to the contrary. (Lim Lao v CA; 6/20/97)
WHEN LACK OF KNOWLEDGE AND LACK OF POWER
TO FUND THE CHECKS IN CASES OF BP 22 A DEFENSE
After a thorough review of the case at bar, the Court finds
that Petitioner Lina Lim Lao did not have actual knowledge
of the insufficiency of funds in the corporate accounts at the
time she affixed her signature to the checks involved in this
case, at the time the same were issued, and even at the time
the checks were subsequently dishonored by the drawee
bank.
The scope of petitioner's duties and responsibilities did not
encompass the funding of the corporation's checks; her
duties were limited to the marketing department of the
Binondo branch. Under the organizational structure of
Premiere Financing Corporation, funding of checks was the
sole responsibility of the Treasury Department. (Lim Lao v
CA; 6/20/97
LACK OF ADEQUATE NOTICE OF DISHONOR, A
DEFENSE
There can be no prima facie evidence of knowledge of
insufficiency of funds in the instant case because no notice
of dishonor was actually sent to or received by the petitioner.
The notice of dishonor may be sent by the offended party or
the drawee bank. The trial court itself found absent a
personal notice of dishonor to Petitioner Lina Lim Lao by the
drawee bank based on the unrebutted testimony of Ocampo
"(t)hat the checks bounced when presented with the drawee
bank but she did not inform anymore the Binondo branch
and Lina Lim Lao as there was no need to inform them as
the corporation was in distress." The Court of Appeals
affirmed this factual finding. Pursuant to prevailing
jurisprudence, this finding is binding on this Court. (Lim Lao
v CA; 6/20/97)
ANTI-GRAFT & CORRUPT PRACTICES ACT
(RA NO 3019)
ANTI-GRAFT AND CORRUPT PRACTICES ACT
Corrupt practices of public officers.
(a) Persuading, inducing or influencing another public officer
to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.
(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 part, wherein the
public officer in his official capacity has to intervene under
the law.
(c) Directly or indirectly requesting or receiving any gift,
present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in
any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof or
within one year after its termination.
(e) 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 manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions.
( f ) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time
on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage,
or for the purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any
other interested party.
(g) Entering, on behalf of the Government, into any contract
or transaction manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which he
is a member, and which exercises discretion in such
approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or
group.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
( j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for or
not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one
who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character,
acquired by his office or by him on account of his official
position to unauthorized persons, or releasing such
information in advance of its authorized release date.
UNEXPLAINED WEALTH, MEANING
Prima facie evidence of and dismissal due to unexplained
wealth. If in accordance with the provisions of RA 1379, a
public official has been found to have acquired during his
incumbency, whether in his name or in the name of other
persons, an amount of property and/or money manifestly out
of proportion to his salary and to his other lawful income, that
fact shall be a ground for dismissal or removal.
Note: Unsolicited gifts or presents of small or insignificant
value shall be offered or given as a mere ordinary token of
gratitude or friendship according to local customs or usage
shall be exempted from the provision of this act.

MEANING OF ―CAUSING UNDUE INJURY‖
The act of giving any private party any unwarranted benefit,
advantage or preference is not an indispensable element of
causing any undue injury to any part, although there may be
instances where both elements concur. (Santiago vs
Garchitorena, et al., 2 Dec. 93).
In Mejoroda v Sandiganbayan, the Supreme Court has ruled
that the offender in causing undue injury does not refer only
to those who are in charge of giving permits, licenses or
concessions but all acts of public officers or employees
which have caused undue injury to others.
ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF
RA 3019
a. the offender is a public officer;
b. the said officer has neglected or has refused to act without
sufficient justification after due demand or request has been
made upon him;
c. reasonable time has elapsed from such demand or
request without the public officer having acted on the matter
pending before him;
d. such failure to so act is for the purpose of obtaining
directly or indirectly from any person interested in the matter
some pecuniary or material benefit or advantage in favor of
an interested party or discriminating against another.
Coronado v Sandiganbayan.
WHERE PUBLIC OFFICER ACTED WITH MANIFEST
PARTIALITY, EVIDENT BAD FAITH, OR INEXCUSABLE
NEGLIGENCE
Sec. 3. 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:
xxx xxx xxx
(e). 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 manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions.
VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES
PROOF OF THE FOLLOWING FACTS, VIZ:
a. the accused is a public officer discharging administrative
or official functions or private persons charged in conspiracy
with them;
b. the public officer committed the prohibited act during the
performance of his official duty or in relation to his public
position;
c. the public officer acted with manifest partiality evident bad
faith or gross, inexcusable negligence; and
d. his action caused undue injury to the government or any
private party, or gave any party any unwarranted benefit,
advantage or preference to such parties.
CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e)
OF RA 3019. MEANING.
Section 3 enumerates in eleven subsections the corrupt
practices of any public officer declared unlawful. Its
reference to any public officer is without distinction or
qualification and it specifies the acts declared unlawful. We
agree with the view adopted by the Solicitor General that the
last inclusion of officers and employees of offices or
government corporations which, under the ordinary concept
of ―public officer‖ may not come within the term. It is a
strained construction of the provision to read it as applying
exclusively to public officers charged with the duty of
granting license or permits or other concessions. (Mejorada
v Sandiganbayan, 151 SCRA 399).
SUSPENSION UNDER R.A. 3019 MANDATORY BUT
COURTS ARE ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT
It is well settled that Section 13 of RA 3019 makes it
mandatory for the Sandiganbayan (or the Court) to suspend
any public officer against whom a valid information charging
violation of this law, Book II, Title 7 of the RPC, or any
offense involving fraud upon government or public funds or
property is filed in court. The court trying a case has neither
discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his
office to intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office. All that is
required is for the court to make a finding that the accused
stands charged under a valid information for any of the
above-described crimes for the purpose of granting or
denying the sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235
SCRA 103).In the same case, the Court held that "as applied
to criminal prosecutions under RA 3019, preventive
suspension will last for less than ninety (90) days only if the
case is decided within that period; otherwise, it will continue
for ninety (90) days." (Conducto v. Monzon; A.M. No. MTJ-
98-1147, July 2, 1998)
PUBLIC OFFICER MAY BE SUSPENDED FROM HIS
PRESENT POSITION EVEN IF THE CRIME WHICH HE IS
BEING CHARGED WAS COMMITTED DURING HIS
PREVIOUS TERM
Judge Monzon's contention denying complainant's Motion
for Suspension because "offenses committed during the
previous term (is) not a cause for removal during the present
term" is untenable. In the case of Rodolfo E. Aguinaldo vs.
Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the
Court held that "the rule is that a public official cannot be
removed for administrative misconduct committed during a
prior term since his re-election to office operates as a
condonation of the officer's previous misconduct committed
during a prior term, to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
application to criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco vs.
Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA
1292, that "The ruling, therefore, that 'when the people have
elected a man to office it must be assumed that they did this
with knowledge of his life and character and that they
disregarded or forgave his faults or misconduct if he had
been guilty of any' refers only to an action for removal from
office and does not apply to a criminal case"
Clearly, even if the alleged unlawful appointment was
committed during Maghirang's first term as barangay
chairman and the Motion for his suspension was only filed in
1995 during his second term, his re-election is not a bar to
his suspension as the suspension sought for is in connection
with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-
98-1147, July 2, 1998)
RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING
ONLY HIS ADMINISTRATIVE LIABILITY BUT
NOT HIS CRIMINAL LIABILITY
As early as 18 December 1967 in Ingco v. Sanchez, 17 this
Court explicitly ruled that the re-election of a public official
extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office,
thus:
The ruling, therefore, that — "when the people have elected
a man to his office it must be assumed that they did this with
knowledge of his life and character and that they
disregarded or forgave his faults or misconduct if he had
been guilty of any" — refers only to an action for removal
from office and does not apply to criminal case, because a
crime is a public wrong more atrocious in character than
mere misfeasance or malfeasance committed by a public
officer in the discharge of his duties, and is injurious not only
to a person or group of persons but to the State as a whole.
This must be the reason why Article 89 of the Revised Penal
Code, which enumerates the grounds for extinction of
criminal liability, does not include reelection to office as one
of them, at least insofar as a public officer is concerned.
Also, under the Constitution, it is only the President who may
grant the pardon of a criminal offense. (Conducto v. Monzon;
A.M. No. MTJ-98-1147, July 2, 1998)
PRE-CONDITION OF SUSPENSION (PREVENTIVE)
UNDER SEC. 13, RA 3019
It is mandatory for the court to place under preventive
suspension a public officer accused before it. Imposition of
suspension, however, is not automatic or self-operative. A
pre-condition thereof is the existence of a valid information,
determined at a pre-suspension hearing. Such a hearing is
in accord with the spirit of the law, considering the serious
and far-reaching consequences of a suspension of a public
official even before his conviction, and the demands of public
interest for a speedy determination of the issues involved in
the case. The purpose of the pre-suspension hearing is
basically to determine the validity of the information and
thereby furnish the court with a basis to either suspend the
accused and proceed with the trial on the merits of the case,
or refuse suspension of the latter and dismiss the case, or
correct any part of the proceeding which impairs its validity.
The accused should be given adequate opportunity to
challenge the validity or regularity of the criminal
proceedings against him; e.g. that he has not been afforded
the right to due preliminary investigation; that the acts
imputed to him do not constitute a specific crime (under R.A.
3019 or the Revised Penal Code) warranting his mandatory
suspension from office under Section 13 of the Act; or that
the information is subject to quashal on any of the grounds
set out in Rule 117 of the Rules of Court. But once a proper
determination of the validity of the information has been
made, it becomes the ministerial duty of the court to forthwith
issue the order of preventive suspension. The court has no
discretion, for instance, to hold in abeyance the suspension
of the accused official on the pretext that the order denying
the latter's motion to quash is pending review before the
appellate courts. (Segovia v. Sandiganbayan; GR 124067,
Mar. 27, 1998)
GUIDELINES TO BE FOLLOWED IN PREVENTIVE
SUSPENSION CASES
"In the leading case of Luciano, et al. vs. Mariano, et al. (L-
32950, July 30, 1971, 40 SCRA 187), we have set out the
guidelines to be followed by the lower courts in the exercise
of the power of suspension under Section 13 of the law, to
wit:
(c) By way of broad guidelines for the lower courts in the
exercise of the power of suspension from office of public
officers charged under a valid information under the
provisions of Republic Act No. 3019 or under the provisions
of the Revised Penal Code on bribery, pursuant to section
13 of said Act, it may be briefly stated that upon the filing of
such information, the trial court should issue an order with
proper notice requiring the accused officer to show cause at
a specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory
provisions of the Act. Where either the prosecution
seasonably files a motion for an order of suspension or the
accused in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order of the
trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties at a
hearing held for determining the validity of the information,
and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the
validity of the information or withhold such suspension in the
contrary case.
(d) No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to challenge
the validity of the criminal proceedings against him, e.g., that
he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not
constitute a violation of the provisions of Republic Act No.
3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office
under Section 13 of the Act, or he may present a motion to
quash the information on any of the grounds provided in
Rule 117 of the Rules of Court. The mandatory suspension
decreed by the act upon determination of the pendency in
court or a criminal prosecution for violation of the Anti-Graft
Act or for bribery under a valid information requires at the
same time that the hearing be expeditious, and not unduly
protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the trial court, say, finds the
ground alleged in the quashal motion not to be indubitable,
then it shall be called upon to issue the suspension order
upon its upholding the validity of the information and setting
the same for trial on the merits.' (Segovia v. Sandiganbayan)
WHEN MAY A PUBLIC OFFICER BE LIABLE FOR
CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019
xxx xxx xxx
(c) 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 manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions."
To hold a person liable under this section, the concurrence
of the following elements must be established beyond
reasonable doubt by the prosecution:
"(1) That the accused is a public officer or a private person
charged in conspiracy with the former;
(2) That said public officer commits the prohibited acts
during the performance of his or her official duties or in
relation to his or her public positions;
(3) That he or she causes undue injury to any party, whether
the government or a private party; and
(4) That the public officer has acted with manifest partiality,
evident bad faith or gross inexcusable negligence." (Llorente
v. Sandiganbayan; GR 122166, Mar. 11, 1998)
MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA
3019
"Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral
obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of
the nature of fraud. (Spiegel v Beacon Participations, 8 NE
2nd Series 895, 1007). It contemplates a state of mind
affirmatively operating with furtive design or some motive of
self interest or ill will for ulterior purposes (Air France v.
Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of the
accused to do wrong or cause damage."
In Jacinto, evident bad faith was not appreciated because
the actions taken by the accused were not entirely without
rhyme or reason; he refused to release the complainant's
salary because the latter failed to submit her daily time
record; he refused to approve her sick-leave application
because he found out that she did not suffer any illness; and
he removed her name from the plantilla because she was
moonlighting during office hours. Such actions were
measures taken by a superior against an erring employee
who studiously ignored, if not defied, his authority. (Llorente
v. Sandiganbayan)
WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT
UNDER SEC. (f) OF RA 3019
It would appear that petitioner's failure or refusal to act on
the complainant's vouchers, or the delay in his acting on
them more properly falls under Sec. 3[f]:
"(f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable time
on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in
the matter some pecuniary or material benefit or advantage,
or for purpose of favoring his own interest or giving undue
advantage in favor of or discriminating against any other
interested party."

Here, the neglect or refusal to act within a reasonable time is
the criminal act, not the causing of undue injury. Thus, its
elements are:
"1) The offender is a public officer;
2) Said officer has neglected or has refused to act without
sufficient justification after due demand or request has been
made on him;
3) Reasonable time has elapsed from such demand or
request without the public officer having acted on the matter
pending before him; and
4) Such failure to so act is 'for the purpose of obtaining,
directly or indirectly, from any person interested in the matter
some pecuniary or material benefit or advantage in favor of
an interested party, or discriminating against another."
However, petitioner is not charged with a violation of Sec.
3[f]. Hence, further disquisition is not proper. Neither may
this Court convict petitioner under Sec. 3[f] without violating
his constitutional right to due process. (Llorente v.
Sandiganbayan)
SUSPENSION (PREVENTIVE) OF LOCAL OFFICIALS
SHALL ONLY BE FOR 60 DAYS
On the other hand, we find merit in petitioner's second
assigned error. The Sandiganbayan erred in imposing a 90
day suspension upon petitioner for the single case filed
against him. Under Section 63 (b) of the Local Government
Code, "any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days." (Rios v.
Sandiganbayan; GR 129913, Set. 26, 1997)
APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO
SUSPENSION
Since the petitioner is an incumbent public official charged in
a valid information with an offense punishable under the
Constitution and the laws (RA 3019 and PD 807), the law's
command that he "shall be suspended from office" pendente
lite must be obeyed. His approved leave of absence is not a
bar to his preventive suspension for as indicated by the
Solicitor General, an approved leave, whether it be for a
fixed or indefinite period, may be cancelled or shortened at
will by the incumbent. (Doromal v. Sandiganbayan; GR
85468, Sepr. 7, 1989)
UNDUE DELAY IN PRELIMINARY INVESTIGATIONS
VIOLATIVE OF DUE PROCESS AND A GROUND TO
DISMISS
After a careful review of the facts and circumstances of this
case, we are constrained to hold that the inordinate delay in
terminating the preliminary investigation and filing the
information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against
him. Accordingly, the informations in Criminal Cases Nos.
10499, 10500, 10501, 10502 and 10503 should be
dismissed. In view of the foregoing, we find it unnecessary to
rule on the other issues raised by petitioner. (Tatad v.
Sandiganbayan)
DEATH PENALTY LAW
(RA 7659)
PROSTITUTES CAN BE A VICTIM OF RAPE
As to the suggestion that ANALIZA was a prostitute, that
alone, even if it be conceded, cannot absolve him of his
liability for rape. First, prostitutes can be victims of rape.
(People v. Alfeche)
REASON WHY DWELLING IS AN AGGRAVATING
CIRCUMSTANCE
Dwelling is considered an aggravating circumstance
because primarily of the sanctity of privacy the law accords
to human abode. The dwelling need not be owned by the
victim. Thus, in People v. Basa, dwelling was appreciated,
although the victims were killed while sleeping as guests in
the house of another. As aptly stated in People v. Balansit:
"[O]ne does not lose his right of privacy where he is offended
in the house of another because as [an] invited guest [or a
housemaid as in the instant case], he, the stranger, is
sheltered by the same roof and protected by the same
intimacy of life it affords. It may not be his house, but it is,
even for a brief moment, "home" to him. He is entitled to
respect even for that short moment." (People v. Alfeche)
WHEN RELATIONSHIP IS NOT AN ALTERNATIVE
CIRCUMSTANCE UNDER ART. 15 OF THE RPC
Clearly then, the father-daughter relationship in rape cases,
or between accused and Relanne, in this case, has been
treated by Congress in the nature of a special circumstance
which makes the imposition of the death penalty mandatory.
Hence, relationship as an alternative circumstance under
Article 15 of the Revised Penal Code, appreciated as an
aggravating circumstance, should no longer be applied in
view of the amendments introduced by R.A. No. 7659. It may
be pointed, however, that without the foregoing amendment,
relationship would still be an aggravating circumstance in the
crimes of rape (Article 335) and acts of lasciviousness
(Article 336). 57
If relationship in the instant case were to be appreciated
under Article 15 of the Revised Penal Code, the penalty
imposable on accused then would not be death, but merely
reclusion perpetua for, assuming that Relanne's testimony in
court would have confirmed what she narrated in her sworn
statement (Exhibit "C"), no circumstance then attended the
commission of the rape which could bring the crime under
any provision of Article 335 which imposes a penalty higher
than reclusion perpetua or of reclusion perpetua to death.
(People v. Manyuhod, Jr.)
WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT
CONSIDERED AN ASCENDANT UNDER RA 8353 AND RA
7659
The trial court has thus held incorrectly in considering
appellant, who is legally married to Roxan's natural
grandmother, as among those named in the enumeration.
Appellant is merely a step-grandparent who obviously is
neither an "ascendant" nor a "step-parent" of the victim. In
the recent case of People vs. Atop, 24 the Court rejected the
application of the mandatory death penalty to the rape of a
12-year old victim by the common-law husband of the girl's
grandmother. The Court said:
"It is a basic rule of statutory construction that penal statutes
are to be liberally construed in favor of the accused. Court's
must not bring cases within the provision of a law which are
not clearly embraced by it. No act can be pronounced
criminal which is not clearly made so by statute; so, too, no
person who is not clearly within the terms of a statute can be
brought within them. Any reasonable doubt must be resolved
in favor of the accused."
(People v. Deleverio)
RECLUSION PERPETUA IS LIGHTER THAN LIFE
IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE
IMPRISONMENT AND LATER IMPOSED RECLUSION
PERPETUA TO SAME OFFENSE, THE PENALTY THAT
SHOULD BE IMPOSED IS RECLUSION PERPETUA
Since reclusion perpetua is a lighter penalty than life
imprisonment, and considering the rule that criminal statutes
with a favorable effect upon the accused have, as to him, a
retroactive effect, the penalty imposable upon the accused
should be reclusion perpetua and not life imprisonment.
(People v. Latura)
JUSTIFICATION FOR THE IMPOSITION OF THE DEATH
PENALTY
Although its origins seem lost in obscurity, the imposition of
death as punishment for violation of law or custom, religious
or secular, is an ancient practice. We do know that our
forefathers killed to avenge themselves and their kin and that
initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in
the name of the state.
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past
barbarity and the institutionalization of state power under the
rule of law. Today every man or woman is both an individual
person with inherent human rights recognized and protected
by the state and a citizen with the duty to serve the common
weal and defend and preserve society.
One of the indispensable powers of the state is the power to
secure society against threatened and actual evil. Pursuant
to this, the legislative arm of government enacts criminal
laws that define and punish illegal acts that may be
committed by its own subjects, the executive agencies
enforce these laws, and the judiciary tries and sentences the
criminals in accordance with these laws.
Although penologists, throughout history, have not stopped
debating on the causes of criminal behavior and the
purposes of criminal punishment, our criminal laws have
been perceived as relatively stable and functional since the
enforcement of the Revised Penal Code on January 1, 1932,
this notwithstanding occasional opposition to the death
penalty provisions therein. The Revised Penal Code, as it
was originally promulgated, provided for the death penalty in
specified crimes under specific circumstances. As early as
1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870. (People v.
Echegaray)
WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL
PUNISHMENT
"The penalty complained of is neither cruel, unjust nor
excessive. In Ex-parte Kemmler, 136 U.S., 436, the United
States Supreme Court said that 'punishments are cruel when
they involve torture or a lingering death, but the punishment
of death is not cruel, within the meaning of that word as used
in the constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of
life.'"
―as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in certain
cases, it is the duty of judicial officers to respect and apply
the law regardless of their private opinions," and this we
have reiterated in the 1995 case of People v. Veneracion.
(People v. Echegaray)
DEATH PENALTY WAS NOT ABOLISHED BUT MERELY
SUSPENDED
A reading of Section 19 (1) of Article III will readily show that
there is really nothing therein which expressly declares the
abolition of the death penalty. The provision merely says that
the death penalty shall not be imposed unless for compelling
reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to
reclusion perpetua. The language, while rather awkward, is
still plain enough". (People v. Echegaray)
DEFINITION OF HEINOUS CRIMES
". . . the crimes punishable by death under this Act are
heinous 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." (People
v. Echegaray)
WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION
PERPETUA TO DEATH UNDER RA 7659
Under R.A. No. 7659, the following crimes are penalized by
reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by
any of the following four circumstances: (a) the victim was
detained for more than three days; (b) it was committed
simulating public authority; (c) serious physical injuries were
inflicted on the victim or threats to kill him were made; and
(d) if the victim is a minor, except when the accused is any of
the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation
(Sec. 9);
(8) Destructive arson if what is burned is (a) one or more
buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use; (d) a
building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence
Or a crime; (f) an arsenal, fireworks factory, or government
museum; and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what
is burned, if the arson is perpetrated by two or more persons
(Sec. 10);
(9) Rape attended by any of the following circumstances: (a)
the rape is committed with a deadly weapon; (b) the rape is
committed by two or more persons; and (c) the rape is
attempted or frustrated and committed with homicide (Sec.
11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);
(12) Sale, administration, delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain
specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited
drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account
dangerous drugs confiscated by the arresting officer (Sec.
17);
(23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter (Sec. 19);
and
(24) Carnapping where the owner, driver or occupant of the
carnapped motor vehicle is killed or raped (Sec. 20).
(People v. Echegaray)
WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY
MANDATORY DEATH PENALTY UNDER RA 7659
On the other hand, under R.A. No. 7659, the mandatory
penalty of death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and
he refrains from arresting or prosecuting an offender who
has committed a crime punishable by reclusion perpetua
and/or death in consideration of any offer, promise, gift or
present, he shall suffer the penalty for the offense which was
not prosecuted.
If it is the public officer who asks or demands such gift or
present, he shall suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is raped,
tortured or subjected to dehumanizing acts
"The penalty shall be death where the kidnapping or
detention was committed for the purpose of ransom from the
victim or any other person, even if none of the circumstances
above-mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of the
detention or is raped, or is subject to torture or dehumanizing
acts, the maximum penalty [of death] shall be imposed."
(Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts
penalized under this Article, death results, the mandatory
penalty of death shall be imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with
homicide and qualified
"When by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide
is committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant
circumstances:
1. when the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent or the
victim.
2. when the victim is under the custody of the police or
military authorities.
3. when the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third
degree of consanguinity.
4. when the victim is a religious or a child below seven (7)
years old
5. when the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of
the Philippines or the Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and
transportation of prohibited drugs where the victim is a minor
or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be
the proximate cause of the death of victim thereof, the
maximum penalty [of death] herein provided shall be
imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited
drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, the maximum of the penalty [of death] shall be
imposed in every case where a prohibited drug is
administered, delivered or sold to a minor who is allowed to
use the same in such place.
Should a prohibited drug be the proximate case of the death
of a person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the
maintainer notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution
and transportation of regulated drugs where the victim is a
minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, if the victim of the offense is a minor, or should
a regulated drug involved in any offense under this Section
be the proximate cause of the death of a victim thereof, the
maximum penalty [of death] herein provided shall be
imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated
drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, the maximum penalty [of death] herein provided
shall be imposed in every case where a regulated drug is
administered, delivered or sold to a minor who is allowed to
use the same in such place.
Should a regulated drug be the proximate cause of death of
a person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the
maintainer notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials,
employees or officers including members of police agencies
and armed forces
"The maximum penalties [of death] provided for in Section 3,
4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections
14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the
Dangerous Drugs Act of 1972] shall be imposed, if those
found guilty or any of the same offenses are government
officials, employees or officers including members of police
agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug
offenses with the mandatory death penalty if convicted are
government officials, employees or officers
"Any such above government official, employee or officer
who is found guilty of 'planting' any dangerous drugs
punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and
Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous
Drugs Act of 1972) in the person or in the immediate vicinity
of another as evidence to implicate the latter, shall suffer the
same penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken
by the offender of his public position, the penalty to be
imposed shall be in its maximum [of death] regardless of
mitigating circumstances.
The maximum penalty [of death] shall be imposed if the
offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two
or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission
of any crime." (Sec. 23)
(People v. Echegaray)
TWO INSTANCES WHEN DEATH MAY BE IMPOSED
WHEN CONSTRUED UNDER RA 7659
Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission
of the crime which indubitably characterize the same as
heinous in contemplation of R.A. No. 7659 that justify the
imposition of the death, albeit the imposable penalty is
reclusion perpetua to death. (People v. Echegaray)
WHY DEATH PENALTY IS IMPOSED ON HEINOUS
CRIMES
The death penalty is imposed in heinous crimes because the
perpetrators thereof have committed unforgivably execrable
acts that have so deeply dehumanized a person or criminal
acts with severely destructive effects on the national efforts
to lift the masses from abject poverty through organized
governmental strategies based on a disciplined and honest
citizenry, and because they have so caused irreparable and
substantial injury to both their victim and the society and a
repetition of their acts would pose actual threat to the safety
of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court
has no doubts as to the innate heinousness of the crime of
rape, as we have held in the case of People v. Cristobal.
(People v. Echegaray)

WHY RAPE IS A HEINOUS CRIME
"Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and charity. Rape
deeply wounds the respect, freedom, and physical and moral
integrity to which every person has a right. It causes grave
damage that can mark the victim for life. It is always an
intrinsically evil act . . . an outrage upon decency and dignity
that hurts not only the victim but the society itself." (People v.
Echegaray)
WHY CAPITAL PUNISHMENT SHOULD NOT BE
ABOLISHED
"Capital punishment ought not to be abolished solely
because it is substantially repulsive, if infinitely less repulsive
than the acts which invoke it. Yet the mounting zeal for its
abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve
the humane society we will have to retain sufficient strength
of character and will to do the unpleasant in order that
tranquillity and civility may rule comprehensively. It seems
very likely that capital punishment is a . . . necessary, if
limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to
indulge in the luxury of permitting a sense of false delicacy to
reign over the necessity of social survival." (People v.
Echegaray)
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN
NEW LAW NOT FAVORABLE TO ACCUSED IT SHOULD
BE RETAINED
Appellant in this case was convicted and meted the penalty
of life imprisonment and fine of twenty thousand pesos under
RA 6425 for transporting more or less 6 kilos of marijuana on
July 1990. RA 7659, which took effect on December 31/93,
amended the provisions of RA 6425, increasing the
imposable penalty for the sale or transport of 750 grams or
more of marijuana to reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million
pesos. Such penalty is not favorable to the appellant as it
carries the accessory penalties provided under the RPC and
has a higher amount of fine which in accordance with ART
22 of the same code should not be given retroactive effect.
The court, therefore, finds and so holds that the penalty of
life imprisonment and fine in the amount of twenty thousand
pesos correctly imposed by the trial court should be retained.
(PP v Carreon, 12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT
WISDOM, EFFICACY OR MORALITY OF LAWS
It is a well settled rule that the courts are not concerned with
the wisdom, efficacy or morality of laws. That question falls
exclusively within the province of the Legislature which
enacts them and the Chief Executive who approves or
vetoes them. The only function of the judiciary is to interpret
the laws and, if not in disharmony with the Constitution, to
apply them. And for the guidance of the members of the
judiciary we feel it incumbent upon us to state that while they
as citizens or as judges may regard a certain law as harsh,
unwise or morally wrong, and may recommend to the
authority or department concerned, its amendment,
modification, or repeal, still, as long as said law is in force,
they must apply it and give it effect as decreed by the law-
making body. (People v. Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA
OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion
perpetua, therefore, is only to serve as the basis for
determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS
KILLED DOES NOT ALTER CHARACTERIZATION OF THE
OFFENSE BUT CAN BE APPRECIATED AS
AGGRAVATING CIRCUMSTANCE.
While the number of persons killed does not alter the
characterization of the offense as robbery with homicide, the
multiplicity of the victims slain should have been appreciated
as an aggravating circumstance. This would preclude an
anomalous situation where, from the standpoint of the
gravity of the offense, robbery with one killing would be
treated in the same way that robbery with multiple killings
would be. (People V. Timple)
ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE;
PROVISION OF ARTICLE 294 OF THE REVISED PENAL
CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT
BE APPLIED RETROACTIVELY; CASE AT BAR.
Under Article 294 (1) of the Revised Penal Code, robbery
with homicide is punishable by reclusion perpetua to death.
In view, however, of the first paragraph of Section 19, Article
III of the 1987 Constitution, which provides that: "Sec. 19. (1)
Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion
perpetua" (Emphasis supplied) only the penalty of reclusion
perpetua could be imposed by the trial court. Hence, the
attended aggravating circumstances in this case had no
impact upon the determination of the proper penalty by the
trial court. By Republic Act No. 7659 (effective 31 December
1993), Congress re-imposed the death penalty for certain
heinous crimes, including robbery with homicide and robbery
with rape. By the same statute, Article 294 of the Revised
Penal Code was amended to read as follows: "Any person
guilty of robbery with the use of violence against or
intimidation on any person shall suffer: 1. The penalty of
reclusion perpetua to death, when by reason or on occasion
of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code,
as amended by R.A. No. 7659, however, cannot be applied
retroactively in this case. To do so would be to subject the
appellant to the death penalty which could not have been
constitutionally imposed by the court a quo under the law in
effect at the time of the commission of the offenses. (People
v. Timple)
A PERSON MAY BE CONVICTED OF GRAVE COERCION
ALTHOUGH THE CHARGE IS KIDNAPPING
The Information, dated March 24, 1992, filed against Astorga
contains sufficient allegations constituting grave coercion,
the elements of which were sufficiently proved by the
prosecution. Hence, a conviction for said crime is
appropriate under Section 4, Rule 120 of the 1988 Rules on
Criminal Procedure.
(People -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a. That any person is prevented by another from doing
something not prohibited by law, or compelled to do
something against his or her will, be it right or wrong;
b. That the prevention or compulsion is effected by violence,
either by material force or such a display of it as would
produce intimidation and, consequently, control over the will
of the offended party; and
c. that the person who restrains the will and liberty of another
has no right to do so or, in other words, that the restraint is
not made under authority of a law or in the exercise of any
lawful right.
(People -vs- Astorga)
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL
ELEMENT OF KIDNAPPING
Actual detention or "locking up" is the primary element of
kidnapping. If the evidence does not adequately prove this
element, the accused cannot be held liable for kidnapping. In
the present case, the prosecution merely proved that
appellant forcibly dragged the victim toward a place only he
knew. There being no actual detention or confinement, the
appellant may be convicted only of grave coercion.
(People -vs- Astorga; GGR 110097, December 22, 1997)
DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425);
SECTIONS 15 AND 20 THEREOF AS AMENDED BY R.A.
NO. 7659.
In People vs. Martin Simon y Sunga, (G.R. No. 93028),
decided on 29 July 1994, this Court ruled as follows: (1)
Provisions of R.A. No. 7659 which are favorable to the
accused shall be given retroactive effect pursuant to Article
22 of the Revised Penal Code. (2) Where the quantity of the
dangerous drug involved is less than the quantities stated in
the first paragraph of Section 20 of R.A. No. 6425, the
penalty to be imposed shall range from prision correccional
to reclusion temporal, and not reclusion perpetua. The
reason is that there is an overlapping error, probably through
oversight in the drafting, in the provisions on the penalty of
reclusion perpetua as shown by its dual imposition, i.e., as
the minimum of the penalty where the quantity of the
dangerous drugs involved is more than those specified in the
first paragraph of the amended Section 20 and also as the
maximum of the penalty where the quantity of the dangerous
drugs involved is less than those so specified in the first
paragraph. (3) Considering that the aforesaid penalty of
prision correccional to reclusion temporal shall depend upon
the quantity of the dangerous drugs involved, each of the
component penalties thereof — prision correccional, prision
mayor, and reclusion temporal — shall be considered as a
principal imposable penalty depending on the quantity, such
that the quantity of the drugs enumerated in the second
paragraph should then be divided into three, with the
resulting quotient, and double or treble the same, as the
bases for determining the appropriate component penalty.
(4) The modifying circumstances in the Revised Penal Code
may be appreciated to determine the proper period of the
corresponding imposable penalty or even to effect its
reduction by one or more degrees; provided, however, that
in no case should such graduation of penalties reduce the
imposable penalty lower than prision correccional. (5) In
appropriate instances, the Indeterminate Sentence Law shall
be applied and considering that R.A. No. 7659 has
unqualifiedly adopted the penalties under the Revised Penal
Code with their technical signification and effects, then the
crimes under the Dangerous Drugs Act shall now be
considered as crimes punished by the Revised Penal Code;
hence, pursuant to Section 1 of the Indeterminate Sentence
Law, the indeterminate penalty which may be imposed shall
be one whose maximum shall be within the range of the
imposable penalty and whose minimum shall be within the
range of the penalty next lower in degree to the imposable
penalty. With the foregoing as our touchstones, and it
appearing that the quantity of the shabu recovered from the
accused in this case is only 0.0958 gram, the imposable
penalty under the second paragraph of Section 20 of R.A.
No. 6425, as further amended by Section 17 of R.A. No.
7659, should be prision correccional. Applying the
Indeterminate Sentence Law, the accused may then be
sentenced to suffer an indeterminate penalty ranging from
six (6) months of arresto mayor as minimum to six (6) years
of prision correccional as maximum.
WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED
THEFT. (STRAY DECISION)
In this case, the stolen property is a Yamaha RS motorcycle
bearing plate no. CZ-2932 with sidecar valued at
P30,000.00. Since this value remains undisputed, we accept
this amount for the purpose of determining the imposable
penalty. In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and
medium periods to be imposed in the maximum period.
Considering that the penalty for qualified theft is two degrees
higher than that provided for simple theft, the penalty of
prision mayor in its minimum and medium periods must be
raised by two degrees. Thus, the penalty prescribed for the
offense committed of qualified theft of motor vehicle is
reclusion temporal in its medium and maximum periods to be
imposed in its maximum period. (PP -vs- Ricardo Dela Cruz
alias Pawid, Manuel dela Cruz alias Pawid, Danilo Dela Cruz
and John Doe alias Henry Balintawak and Orlando Padilla y
Mendoza, Accused. RICARDO DELA CRUZ alias Pawid,
Accused-Appellant. G.R. No. 125936 Feb. 23, 2000 )
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION
IN LOWER COURTS
The bail bond that the accused previously posted can only
be used during the 15-day period to appeal (Rule 122) and
not during the entire period of appeal. This is consistent with
Section 2(a) of Rule 114 which provides that the bail "shall
be effective upon approval and remain in force at all stages
of the case, unless sooner cancelled, until the promulgation
of the judgment of the Regional Trial Court, irrespective of
whether the case was originally filed in or appealed to it."
This amendment, introduced by SC Administrative Circular
12-94 is a departure from the old rules which then provided
that bail shall be effective and remain in force at all stages of
the case until its full determination, and thus even during the
period of appeal.
Moreover, under the present rule, for the accused to
continue his provisional liberty on the same bail bond during
the period to appeal, consent of the bondsman is necessary.
From the record, it appears that the bondsman, AFISCO
Insurance Corporation, filed a motion in the trial court on
January 06, 1987 for the cancellation of petitioners' bail bond
for the latter's failure to renew the same upon its expiration.
Obtaining the consent of the bondsman was, thus,
foreclosed. ( Aniceto Sabbun Maguddatu and Laureana
Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
APPEALS (Fourth Division and People of the Philippines,
Respondents. G.R. No. 139599, Feb. 23, 2000)
WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.
We find, however, that the aggravating circumstance of
abuse of superior strength attended the killing. "To
appreciate abuse of superior strength as an aggravating
circumstance, what should be considered is not that there
were three, four or more assailants of one victim, but
whether the aggressors took advantage of their combined
strength in order to consummate the offense. It is therefore
necessary to show that the attackers cooperated in such a
way as to secure advantage of their superiority in strength."
In this case, appellants and their companions purposely
gathered together and armed themselves to take advantage
of their combined strength to ensure that Reynaldo Danao
would be able to kill the victim without any interference from
other bystanders.
However, not having been alleged in the Information, abuse
of superior strength can only be considered as a generic
aggravating circumstance. (PP -vs- CIELITO BULURAN Y
RAMIREZ and LEONARDO VALENZUELA Y CASTILLO,
Accused-Appellants. G.R. No. 113940, Feb. 15, 2000)
USE OF MOTOR VEHICLE AS QUALIFYING
AGGRAVATING CIRCUMSTANCE
The use of a motor vehicle qualifies the killing to murder if
the same was perpetrated by means thereof. (PP -vs-
THADEOS ENGUITO Defendant-Appellant. G.R. 128812,
Feb. 28, 2000)
ELEMENTS OF EVIDENT PREMEDITATION
(1) The time when the offender determined to commit the
crime; (2) an act manifestly indicating that the offender had
clung to his determination; and (3) sufficient lapse of time
between the determination and the execution to allow the
offender to reflect on the consequences of his act. (PP -vs-
ROGELIO GALAM, Accused-Appellant. G.R. No. 114740,
Feb. 15, 2000)
WHEN NIGHTTIME IS AGGRAVATING
Nighttime as an aggravating circumstance must have
specially been sought to consummate the crime, facilitate its
success or prevent recognition of the felon. (PP -vs-
CONSTANCIO MERINO and ARNULFO SIERVO, Accused-
Appellants. G.R. No. 132329, Dec. 17, 1999)

TREACHERY IS PRESENT ON SECOND STAGE OF
ACCIDENT
There is treachery when the offender commits any of the
crimes against the person employing means, methods or
forms in the execution thereof which tend directly and
specifically to insure its execution without risk to himself
arising form the defense which the offended party might
make. As earlier mentioned, the deceased was already
rendered completely helpless and defenseless when he was
stabbed by Pedro Lumacang. Although he was able to run a
short distance, he had absolutely no means of defending
himself from the three brothers who were armed with hunting
knives, bent on finishing him off. The wounded victim had
not even so much as a stick or a stone to parry off their
blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying
circumstance, abuse of superior strength should not have
been considered separately inasmuch as it is absorbed in
treachery. (PP -vs- PEDRO LUMACANG, PABLO
LUMACANG and DOMINGO LUMACANG, Accused-
Appellants. G.R. No. 120283, Feb. 1, 2000)
WHY DWELLING IS AGGRAVATING
"The home is a sort of sacred place for its owner. He who
goes to another's house to slander him, hurt him or do him
wrong, is more guilty than he who offends him elsewhere."
(PP -vs- JOSE & NESTOR BiñAS, Accused-Appellant. G.R.
No. 121630, Dec. 8, 1999)
EVEN FRONTAL ATTACK WOULD AMOUNT TO
TREACHERY
Moreover, Milyn Ruales also testified that the knife used by
accused was hidden from view. Thus, Isabel Ruales was not
prepared for such a violent attack, especially considering
that, at the time, she was unarmed and was burdened with a
large basket filled with about six kilos of corn and dried fish
hanging from her shoulders and thus, could not have
possibly warded off the blow or run away from her assailant.
Although Milyn Ruales described the attack having been
frontal, this does not negate treachery since the essence of
treachery is the suddenness and unexpectedness of the
attack, giving the victim no opportunity to repel it or offer any
defense of his person. Thus, we hold that the trial court
correctly appreciated the qualifying circumstance of
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias
"ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000)
DATE OF EFFECTIVITY OF RA 7659, ETC.
Republic Act No. 7659 took effect on 31 December 1993.
Accordingly, the said law only applies to crimes defined
therein, including rape, which were committed after its
effectivity. It cannot be applied retroactively because, to do
so, would go against the constitutional prohibition on ex post
facto laws. For this reason, in order for the death penalty to
be imposable, it is incumbent upon the prosecution to
establish beyond a shadow of doubt that the case of the
accused is already covered by Republic Act No. 7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE
WHICH
(a) makes criminal an act before the passage of the law and
which was innocent when done, and punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when
committed;
(c) changes the punishment and inflicts a greater
punishment than the law annexed to the crime when
committed;
(d) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;
(e) assuming to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for something
which when done was lawful; and
(f) deprives person accused of a crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (PP -vs- CHARITO ISUG
MAGBANUA, G.R. No. 128888, Dec. 3, 1999)
ILLEGAL POSSESSION OF FIREARMS
(REPUBLIC ACT NO. 8294)
SECTION 1. Section 1 Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — The penalty of prision
correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed
upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm, such
as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no other crime
was committed.
"The penalty of prision mayor in its minimum period and a
fine of Thirty thousand pesos (P30,000) shall be imposed if
the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber
and 9 millimeter such as caliber .40, .41, .44, .45 and also
lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was
committed by the person arrested.
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or incident
to, or in connection with the crime of rebellion or insurrection,
sedition, or attempted coup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or
insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor."
SECTION 2. Section 3 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Explosives. — The penalty of
prision mayor in its maximum period to reclusion temporal
and a fine of not less than Fifty thousand pesos (P50,000)
shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess
hand grenade(s), rifle grenade(s), and other explosives,
including but not limited to 'pillbox,' 'molotov cocktail bombs,'
'fire bombs,' or other incendiary devices capable of
producing destructive effect on contiguous objects or
causing injury or death to any person.
"When a person commits any of the crimes defined in the
Revised Penal Code or special laws with the use of the
aforementioned explosives, detonation agents or incendiary
devices, which results in the death of any person or persons,
the use of such explosives, detonation agents or incendiary
devices shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of, or incident
to, or in connection with the crime of rebellion, insurrection,
sedition or attempted coup d'etat, such violation shall be
absorbed as an element of the crimes of rebellion,
insurrection, sedition or attempted coup d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the explosives
owned by such firm, company, corporation or entity, to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs."
SECTION 3. Section 5 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 5. Tampering of Firearm's Serial Number. — The
penalty of prision correccional shall be imposed upon any
person who shall unlawfully tamper, change, deface or erase
the serial number of any firearm."
SECTION 4. Section 6 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. — The penalty of prision
correccional shall be imposed upon any person who shall
unlawfully repack, alter or modify the composition of any
lawfully manufactured explosives."
SECTION 5. Coverage of the Term Unlicensed Firearm. —
The term unlicensed firearm shall include:
1) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of
the crime.
RULE ON ILLEGAL POSSESSION OF FIREARMS
BEFORE AN ACCUSED
MAYBE CONVICTED
In crimes involving illegal possession of firearm, the
prosecution has the burden of proving the elements thereof,
viz:
a. the existence of the subject firearm; and
b. the fact that the accsused who owned or possessed it
does not have the license or permit to possess the same.
(People v. Castillo, 325 scra 613)
The essence of the crime of illegal possession is the
possession, whether actual or constructive, of the subject
firearm, without which there can be no conviction for illegal
possession.
After possession is established by the prosecution, it would
only be a matter of course to determine whether the accused
has a license to possess the firearm. (People v. Bansil, 304
scra 384)
Possession of any firearm becomes unlawful only if the
necessary permit or license therefor is not first obtained. The
absence of license and legal authority constitutes an
essential ingredient of the offense of illegal possession of
firearm and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond
reasonable doubt. Stated otherwise, the negative fact of lack
or absence of license constitutes an essential ingredient of
the offense which the prosecution has the duty not only to
allege but also to prove beyond reasonable doubt. (People v.
Khor, 307 scra 295)
"To convict an accused for illegal possession of firearms and
explosives under P.D. 1866, as amended, two (2) essential
elements must be indubitably established, viz: (a) the
existence of the subject firearm or explosive which may be
proved by the presentation, of the subject firearm or
explosive or by the testimony of witnesses who saw accused
in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the
firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP
Firearms and Explosive Unit that the accused has no license
or permit to possess the subject firearm or explosive." (Del
Rosario v. People, 05/31/01)
We stress that the essence of the crime penalized under
P.D. 1866 is primarily the accused's lack of license or permit
to carry or possess the firearm, ammunition or explosive as
possession by itself is not prohibited by law. (People v.
Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special
law, a malum prohibitum, and no malice or intent to commit a
crime need be proved. (People v. Lubo, 101 Phil. 179) To
support a conviction, however, there must be possession
coupled with intent to possess (animus possidendi) the
firearm. (Supra)
PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM
Unlicensed firearm no longer simply means a firearm without
a license duly issued by lawful authority. The scope of the
term has been expanded in Sec.5 of R.A. 8294.
Thus, the unauthorized use of a weapon which has been
duly licensed in the name of its owner/possessor may still
aggravate the resultant crime. In the case at bar, although
appellants may have been issued their respective licenses to
possess firearms, their carrying of such weapons outside
their residences and their unauthorized use thereof in the
killing of the victim may be appreciated as an aggravating
circumstance in imposing the proper penalty for murder. (Pp.
V. Molina; Gr 115835-36; July 22, 1998)
ILLEGAL POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.
Where murder or homicide was committed, the separate
penalty for illegal possession shall no longer be meted out
since it becomes merely a special aggravating circumstance.
This statutory amendment may have been an offshoot of our
remarks in Pp. V. Tac-an and Pp. V. Quijada :
―Neither is the 2nd paragraph of Sec.1 meant to punish
homicide or murder with death if either crime is committed
with the use of an unlicensed firearm, i.e., to consider such
use merely as a qualifying circumstance and not as an
offense. That could not have been the intention of the
lawmaker because the term ―penalty‖ in the subject provision
is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for homicide or murder. We
explicitly stated in Tac-an :
There is no law which renders the use of an unlicensed
firearm as an aggravating circumstance in homicide or
murder. Under an information charging homicide or murder,
the fact that the death weapon was an unlicensed firearm
cannot be used to increase the penalty for the 2nd offense of
homicide or murder to death (or reclusion perpetua under
the 1987 Constitution). The essential point is that the
unlicensed character or condition of the instrument used in
destroying human life or committing some other crime, is not
included in the inventory of aggravating circumstances set
out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making use of an
unlicensed firearm as a qualifying circumstance.‖ (People v.
Molina; GR 115835-36, July 22, 1998)
NEW PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely
bereft of relief. The enactment and approval on 06 Jun 1997
of RA 8294, being favorable to him, should now apply. Under
this new law, the penalty for possession of any low powered
firearm is only prision correccional in its maximum period
and a fine of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present
penalty that may be imposed is anywhere from two years,
four months and one day to four years and two months of
prision correccional in its medium period, as minimum, up to
anywhere from four years, two moths and one day to six
years of prision correccional in its maximum period, as
maximum.. The court in addition, may impose a fine
consistent with the principle that an appeal in a criminal case
throws the whole case open for review by the appellate
tribunal. (Mario Rabaja v CA, et al., Oct 8/97)
ACTS PUNISHABLE:
1. ―upon any person who shall unlawfully manufacture, deal
in, acquire, dispose, or possess any low powered firearm,
such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery,
tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition‖
2. "If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.‖
3. "If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of rebellion or
insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.‖
4. "The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.‖
5. ―The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor‖
6. ―Any person who shall unlawfully tamper, change, deface
or erase the serial number of any firearm‖.
7. ―Any person who shall unlawfully repack, alter or modify
the composition of any lawfully manufactured explosives‖.
MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum
prohibitum punished by a special law, in which case good
faith and absence of criminal intent are not valid defenses.
(People v De Gracia, 7/6/94)
1. Manufacture, deal in, acquire, dispose or possess. It is
these acts relative to firearms. The obvious underlying
principle is the undesirability of the proliferation of firearms
and their free traffic and possession. This is clear from the
first two ―whereas‖ clause of P.D. 1866. It is then clear that
illegal possession, etc. is a malum prohibitum. For purpose
of simplicity we will confine our analysis to ―possession‖,
although what we will discuss hereunder applies to
manufacture, dealing in, acquiring or disposing as well.
1.1. it is not correct to say without qualification that ―intent‖ is
immaterial. Intent as to possession is immaterial. Intention to
possess is material. Whatever the purpose of the possession
may be is consistently immaterial. That one was in
possession of an unlicensed firearms merely for one’s
protection without intending harm on anybody is a fruitless
defense. It is the clear doctrine of such cases as People v.
de la Rosa, 284 SCRA 158 that ―mere possession without
criminal intent is sufficient on which to render a judgment of
conviction‖.
1.2. HOWEVER, possession must be established beyond
reasonable doubt, and in view of the special meaning that
―possession‖ has in criminal law, discovery by police, officers
alone of a firearmin the baggage or gloves compartment of a
car will not necessarily be sufficient to sustain a conviction of
the car owner or driver. Essential to the legal concept of
―possession‖ in illegal possession cases is animus
possidendio. (People v. de la Rosa, supra; People v.
Sayang, 110 Phil 565).
1.3. How is animus possidendi established? There must be
proved either by direct or circumstantial evidence the ―intent‖
of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt
acts prior to or simultaneous with possession and other
surrounding circumstances. (People v. de la Rosa) when it is
established that the accused purchased the weapon in
question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that
an unlicensed firearms was under the apparent control and
power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14,
2001) holds that the ―gravamen‖ for the offense of violation
of P.D.1866 is the possession of firearm without the
necessary permit and/or license. ―The crime is immediately
consummated upon mere possession of a firearm devoid of
legal authority, since it is assumed that the same is possed
with ―animus possidendi‖ Does it then follow that everyone
found with the firearm is in ―possession‖ thereof for the
purpose of prosecution and conviction under P.D. 1866 as
amended by R.A. 8294? The results would be patently
absurd.
h. A person who finds a firearms and takes it with him to the
police station for the purpose of turning it over to the police
should be commended, rather than prosecuted.
ii. A person who is stopped at a check-point at which it is
discovered that there is firearms – placed either advertently
or inadvertently in his baggage compartment without his
knowledge - cannot be held liable for illegal possession.
iii. If the offender was in possession of an unlicensed only on
the occasion of the shooting for transitory purpose and for
the short moment in connection with the shooting, the Supre
Court held in People v. Macasling, 237 SCRA 299 that there
was no evidence of ―animus possidendi‖.
iv. It then appears to be the more reasonable position that
where a person is apprehended with an unlicensed weapon,
animus possidendi will be disputably presumed. The
accused may controvert the presumption of animus
possidendi. To convict, the court needs proof beyond
reasonable doubt of animus possidendi.
1.4 What the prosecution must prove for it to succeed under
the law is two-fold: first, the existence of the firearm; second,
the absence of a license or a permit to possess. (People v.
Rugay, 291 SCRA 692)
a.) To prove the existence of the firearm, it is not absolutely
necessary that the object evidence be presented. It is very
well possible that the accused effectively conceals the
weapon before his apprehension. Incontrovertible testimonial
evidence may successfully established the existence of the
firearm. (People v. Narvasa, G.R. 132878 [November 16,
1998]),
b.) An interesting question arises. The present law makes
penalties depend on the caliberof the firearm, i.e, on whether
it is high-powered or low-powered In People v. Gutierrez,
G.R. 132878 (January 18, 1999) the Supreme Court ruled
that a U.S. carbine M1 caliber .30 was high-powered
because it was capable of ejecting more than one bullet in
one squeeze. If it is the criterion, then logically, caliber can
be established by teetimony establishing the manner in
which the firearm ejected bullets. The distinguishing features
of particularly firearms, furthermore, that may be recited by
keen observer sworn in a s witness my identify the firearm
as well as it caliber. This can be established by a judicious
combination of the testimonial evidence of observers abd
experts.
c.) A firearm is unlicensed when a certification from the
―Firearms and Explosives Unit‖ attests that no license has
been issued. There will still be a case for illegal possession if
one holding a firearm duly licensed carries it outside his
residence when he has no permit to carry it outside his
residence (Pastrano v. Court of Appeals, 281 SCRA 287). A
fortiori, the use of a licensed firearm by one not licensed or
permitted to use it would still be illegal possession.
d.) A security guard employed by a security agency and
issued a firearm by the agency has the right to assume that
the firearm issued to him is a licensed firearm. If it turns out
that the firearm is not licensed, there is no animus
possidendi of an unlicensed firearm. (Cuenco v. People, 33
SCRA 522). The case is obviously different, however, if a
police officer leaves with a cousin for safekeeping his
firearm. The cousin knows fully well that he has no permit or
authority to keep the firearm. If he accepts to do this favor,
he is indictable. (People v. Sayong, 110 Phil 565)
2. Provided no other crime is committed. It is this proviso in
the amendatory law that has visited countless woes on
numerous judges and has occasioned not easily reconcilable
decisions by the Supreme Court .it is obviously a case of not
only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the
unlawful possession of a firearm, the penalties provided for
in the amended Section 1 shall be imposed: prision
correccional in its maximum period for low-powered firearms,
and prision mayor in its maximum periods for high-powered
firearms. Thus in People v. Nunez, G.R. 112092 (March 1,
2001) holds that a person may be convicted of simple illegal
possession if the illegal possession is proved and the
frustrated murder and murder case – involving the use of the
illegal possession – has not been sufficiently proved. People
v. Avecilla, G.R. 117033 (February 15, 2001) teaches that
―the crime of illegal possession of firearms, in its simple
form, is committed any of the crimes of murder, homicide,
rebellion, insurrection, sedition or attempted coup d’etat‖.
2.2. It is also clear that where either homicide or murder is
committed with the use of an unlicensed firearm, such use
shall constitute an ―aggravating circumstances‖. It is well
known that R.A. 8294 was initiated by Senator Ramon
Revilla as a favor to his friend Robin Padilla who was then
serving sentence for illegal possession. It was therefore
meant to be more benevolent, as it is in the penalties it
impose. Senator Revilla, however, could not see far enough
(and regrettably neither could other legislators) and the
effect at least in the case of murder is that it may send the
accused to the lethal injection chamber where otherwise he
would not be meted out the death penalty. People v.
Montinola, G.R. 131856-57 (July 1, 2001) with the Chief
Justice himself as ponente illustrates the complication the
law has introduced. In this case, the accused had been
charged with two offenses: robbery with homicide and illegal
possession of firearms. During the pendency of the case, the
amended law came into force. The court then held that
insofar as R.A. 8294 was favorable to the accused in that it
spared him from separate prosecution for illegal possession,
the charge for illegal possession was dropped. Insofar,
however, as it increased the penalty for robbery with
homicide, the aggravating circumstances of the use of
unlicensed weapon could not be appreciated. Rule 110,
Section 9 of the Revised Rules of Criminal Procedure will
apply: As an aggravating circumstances, the use of the
unlicensed weapon must be alleged in the information.
2.3 When the violation of the law penalizing unlicensed
weapon is ―in furtherance of or incident to, or in connection
with the crimes of rebellion, insurrection, sedition or
attempted coup d’etat‖ then the violation is absorbed in the
main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in
the commission of other offenses other that homicide,
murder, rebellion, insurrection, sedition or attempted coup d’
etata? People v. Walpandladjaalam, G.R. 1361149-51 (
September 19, 2000) provides the answer in the distinctively
clear language of Justice Panganiban: ―The law is clear: the
accused can be convicted of simple illegal possession of
firearms, provided that ―no other crime was committed by the
person arrested’. If the intention of the law in the second
paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish,
neither should we.‖ In brief, where the accused commits a
crime other than those enumerated with the use of an
unlicensed weapon, no separate charge for such use will be
brought against him. Consistent with this is the disposition by
the Supreme court decreed: ―Accordingly, all pending cases
for illegal possession of firearms should be dismissed if they
arose from the commission‖ of crimes other than those
indicated in Section 1 and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use
of an unlicensed weapon attends the commission of a crime,
no matter how trivial, the case of illegal possession recedes
into judicial irrelevance. The matter is definitely one that calls
for a curative statute and the Supreme Court has referred
the matter to the Congress for another look. One moral
lesson can be learned: Laws passed as favor to one’s friend
is a poor laws!
OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
The rule is that ownership is not an essential element of
illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual
physical possession but also constructive possession or the
subjection of the thing to one’s control and management.
INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS
ESSENTIAL
A distinction should be made between criminal intent and
intent to possess. While mere possession without criminal
intent is sufficient to convict a person for illegal possession
of firearms, it must still be shows that there was animus
possidendi or an intent to possess on the part of the
accused.
There is no evidence of animus possedendi if the offender
was in possession of an unlicensed firearm only on the
occasion of the shooting for a transitory purpose and for the
short moment in connection with the shooting.
Lack of evidence is an essential element of the crime and
that the same must be alleged in the Information and duly
proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation
of PD 1866, as amended. One may be convicted of
possession of an unlicensed firearm even if he is not the
owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)
Even if the gun is "paltik," there is a need to secure license
for the gun, and if found without any license therefor, the
offender is liable for violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than
homicide or murder, such a direct assault with attempted
homicide, the use of an unlicensed firearm is neither an
aggravating circumstances nor a separate offense. Since the
law uses the word Homicide or Murder, possession of an
unlicensed firearm is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)
Where the accused was charged of Murder and violation of
PD 1866 and that, in the meantime, Republic Act 8294 took
effect, the accused should be convicted only of Murder. The
use of unlicensed firearm should not be considered as
aggravating because the Court will have to impose the death
penalty which cannot be allowed because, at the time of the
commission of the offense, the death penalty cannot as yet,
be imposed. However, in his concurring opinion, Chief
Justice Hilario Davide, Jr. declared that, under such a factual
milieu, the charge of violation of PD 1866 should continue
and if the accused is found guilty, he should be meted the
death penalty under Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
Where the prosecution failed to adduce the gun in evidence
coupled with the fact that per Certification of the FEU, " no
available information regarding the license for the gun and
the inconsistency in the evidence of the prosecution, the
latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Mere possession without criminal intent is sufficient on which
to render a judgment of conviction for violation of PD 1866,
as amended. However, there must be animus possedendi or
intent to possess without any license or permit. Good faith is
not a defense. Neither is lack of criminal intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)

Temporary, incidental, casual or harmless possession of
firearm is not punishable. Hence, stealing a firearm to render
the owner defenseless is not a crime under the law. (idem,
supra)
Possession includes actual physical possession and
constructive possession. The animus can be determined
from the overt acts of the accused prior to or coetaneous
with and other surrounding circumstances of such
possession. Hence, where the accused found a gun and was
on his way to deliver the gun to the police authority and was
arrested, in the process, there is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)
Even if a paltik is a homemade gun and thus illegally
manufactured nevertheless, the Prosecution is burdened to
prove that the accused has no license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as
amended the Prosecution must prove: (a) the existence of
the subject firearm; (b) the fact that the accused who owned
or possessed the firearm does not have the corresponding
license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Where the accused is convicted of violation of Republic Act
8294 and meted a penalty less than six (6) years, and a fine
of P15,000.00, he should be ordered to undergo subsidiary
imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)
In the light of "People -vs- Martin Simon," 234 SCRA 555,
and Articles 13 and 14, in relation to Article 63, of the
Revised Penal Code and the Indeterminate Sentence Law
for violation of the Revised Penal Code may now be applied
for violation of PD 1866, as amended and Rep[ublic Act
6425, as amended.
Even if a person is licensed to possess a firearms but brings
out firearm outside of his residence without permit therefor,
he is guilty of violation of the last paragraph of Section 1 of
PD 1866, as amended. A Mission Order cannot take the
place of a license. A Mission Order can only be issued to
one licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA
287)
If the accused borrowed a gun from another who is licensed
to possess firearm, may the former be liable for violation of
PD 1866, as amended? Yes. Even if the gun is licensed to
one and lends it to another, the latter is liable for violation of
PD 1866, as amended. A license to possess a firearm and a
permit to carry a licensed firearm outside of his residence is
not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in
evidence one may still be convicted of possession of an
unlicensed firearm as long as proof was adduced that the
acused was in possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)
NOTE: Under Republic Act 8294, the penalty depends upon
the caliber of the gun. Suppose there is no testimony as to
the caliber of the gun?
Where a security guard was given by his employer, a
security agency, a firearm, and the accused assumed that
the employer secured the license for the firearm but that it
turned out that the employer failed to get any license, the
security guard is not criminally liable. The security guard has
the right to assume that the security agency secured the
license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for
safekeeping and later the accused found in possession of
the gun, the accused is guilty of possession of unlicensed
firearm. To exculpate himself, the accused must prove
absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
A secured a loan from B and pledged his unlicensed firearm
as security for the loan. A promised to pay his loan and
retrieve the firearm as soon as he had money. B found in
possession of the unlicensed firearm. For the court to
sustain the contention of B is to authorize the indefinite
possession by B of the unlicensed firearm because there
was no way to determine when A could pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)
If a licensed firearm if used to commit Murder or Homicide,
such circumstances is merely a special aggravating
circumstance which must be alleged in the Information and
cannot be offset by any mitigating circumstance. (People -
vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998;
People -vs- Narvasa, G.R. no. 128618 November 18, 1998)
The Decision of the Supreme Court in People -vs- Paterno
Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and
People -vs- Barros and People -vs- Daniel Quijada 259
SCRA 191 had been overtaken by Republic Act 8294.
Under the amendment, the death penalty may now be
imposed if the accused is convicted of Murder with the use
of licensed or unlicensed firearms.
As long as the accused is proved to have been in
possession of the unlicensed firearm even if the firearm is
not adduced in evidence, conviction under the law is proper.
(People -vs- Felicisimo Narvasa, supra)
Republic Act 8294 took effect on July 6, 1997.
If the accused is charged of Murder and violation of PD 1866
and during the trial, Republic Act 8294 took effect, the
accused cannot be convicted of violation of PD 1866, as
amended. Neither should the possession of an unlicensed
firearm be considered as an aggravating circumstance as it
will be less favorable to the accused. If the accused used a
sumpak to kill the victim, the prosecution must prove that he
had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627
where the accused was convicted of Murder and violation of
PD 1866 and during the pendency of the appeal, Republic
Act 8294 took effect. Our Supreme Court affirmed the
conviction of the Accused of two (2) crime of Homicide and
violation of PD 1866, as amended, and applied the penalty
for the crimes under the amendment.
In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our
Supreme Court En Banc declared that where the accused
was convicted of said crio,es, by the Trial Court but that
during the pendency of the appeal, with the Supreme Court,
Republic Act 8294 took effect, the accused should only be
convicted of Murder with the use of an unlicensed firearm as
mere a special aggravating circumstance.
Murder, under Republic Act 8294, is used in its generic term
and, hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)
A United States carbine M1, caliber .3-0 is a high-powered
gun because it is capable of emitting two or three bullets in
one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
It is not necessary that the firearm be produced and offered
in evidence for Republic Act 8294 to apply. It is not enough
that there is evidence of the existence of the gun which can
be established either by testimony or presentation of the gun
itself.
Possession of an unlicensed firearm and used in killing is a
special aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)
The Decision of the Supreme Court in People versus Rex
Bergante, et. al., GR No. 120369, February 27, 1998, that
the use of an unlicensed firearm to commit murder is only a
generic aggravating circumstance is no longer true.

Possession under the law may either be actual physical
possession or constructive possession. However, although
the crime under PD 1866, as amended, is malum prohibitum,
however, there must be animus possidendi, or intent to
possess. Animus possidendi may be inferred from the fact
that an unlicensed firearm is under the apparent control and
power of the accused. however, animus possidendi may be
contradicted if a person in possession of an unlicensed
firearm does not assert a right thereto.
If the possession of an unlicensed gun is merely temporary,
incidental or transient, the same is not punishable under PD
1866. However, the law does not provide for a fixed period of
time for one to be deemed in "possession" of an unlicensed
firearm. (People -vs- Rolando Verches, 233 SCRA 174).
Each factual milieu must be considered.
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL
POSSESSION OF FIREARMS)
P.D. 1866, which codified the laws on illegal possession of
firearms, was amended on June 6, 1997 by Republic Act
8264. Aside from lowering the penalty for said crime, R.A.
8294 also provided that if homicide or murder is committed
with the use of an unlicensed firearm, such use shall be
considered as a special aggravating circumstance. This
amendment has two (2) implications: first, the use of an
unlicensed firearm in the commission of homicide or murder
shall not be treated as a separate offense, but merely as a
special aggravating circumstance; second, as only a single
crime (homicide or murder with the aggravating
circumstance of illegal possession of firearm) is committed
under the law, only one penalty shall be imposed on the
accused.
Prescinding therefrom, and considering that the provisions of
the amendatory law are favorable to herein appellant, the
new law should be retroactively applied in the case at bar. It
was thus error for the trial court to convict the appellant of
two (2) separate offenses, i.e., Homicide and Illegal
Possession of Firearms, and punish him separately for each
crime. Based on the facts of the case, the crime for which
the appellant may be charged is homicide, aggravated by
illegal possession of firearm, the correct denomination for
the crime, and not illegal possession of firearm, aggravated
by homicide as ruled by the trial court, as it is the former
offense which aggravates the crime of homicide under the
amendatory law.
EVEN IF ACCUSED ADMITTED THAT HE HAS NO
LICENSE, SUCH ADMISSION IS NOT SUFFICIENT
PROOF OF ILLEGAL POSSESSION OF FIREARM
Hence, in the case at bar, although the appellant himself
admitted that he had no license for the gun recovered from
his possession, his admission will not relieve the prosecution
of its duty to establish beyond reasonable doubt the
appellant's lack of license or permit to possess the gun. In
People vs. Solayao, we expounded on this doctrine, thus:
"x x x by its very nature, an admission is the mere
acknowledgement of a fact or of circumstances from which
guilt may be inferred, tending to incriminate the speaker, but
not sufficient of itself to establish his guilt." In other words, it
is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself,
insufficient to authorize conviction. From the above
principles, this Court can infer that an admission in criminal
cases is insufficient to prove beyond doubt the commission
of the crime charged.
"Moreover, said admission is extrajudicial in nature. As such,
it does not fall under Section 4 of Rule 129 of the Revised
Rules of Court which states:
An admission, verbal or written, made by a party in the
course of the trial or other proceedings in the same case
does not require proof.
"Not being a judicial admission, said statement by accused-
appellant does not prove beyond reasonable doubt the
second element of illegal possession of firearm. It does not
even establish a prima facie case. It merely bolsters the
case for the prosecution but does not stand as proof of the
fact of absence or lack of a license." (emphasis supplied)
(PP -vs- JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-
93, Feb. 15, 2000)
ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS
To convict an accused for illegal possession of firearms and
explosive under P.D. 1866 as amended, two (2) essential
elements must be indubitably established, viz: (a) the
existence of the subject firearm or explosive which may be
proved by the presentation of the subject firearm or
explosive or by the testimony of witnesses who saw accused
in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the
firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused has no
license or permit to possess the subject firearm or explosive.
In the case at bar, the prosecution failed to prove the second
element of the crime, i.e., the lack of license or permit of
appellant Cortez to possess the hand grenade. Although the
hand grenade seized by PO2 Santos from appellant was
presented in court, the records bear that PO2 Santos did not
submit the grenade to the PNP Firearms and Explosives Unit
for verification. This explains why no certification or
testimony was adduced by the prosecution at the trial to
prove that appellant Cortez was not licensed to possess the
explosive. The failure of the prosecution to adduce this fact
is fatal to its cause. We stress that the essence of the crime
penalized under P.D. 1866 is primarily the accused's lack of
license or permit to carry or possess the firearm, ammunition
or explosive as possession by itself is not prohibited by law.
MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?
In the case of an explosive, a permit or license to possess it
is usually granted to mining corporations, military personnel
and other legitimate users. (PP -vs- BERNIE CORTEZ Y
NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000)
UNDER R.A. 8294 A SEPARATE CONVICTION FOR
ILLEGAL POSSESSION OF FIREARMS AND FOR
HOMICIDE IS NOT ALLOWED
With respect to the conviction of accused-appellant for illegal
possession of firearms under P.D. No. 1866, it was held in
the case of People vs. Molina and reiterated in the recent
case of People vs. Ronaldo Valdez, that in cases where
murder or homicide is committed with the use of an
unlicensed firearm, there can be no separate conviction for
the crime of illegal possession of firearms under P.D. No.
1866 in view of the amendments introduced by Republic Act
No. 8294. Thereunder, the use of unlicensed firearm in
murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a
separate offense. Furthermore, the penalty for illegal
possession of firearms shall be imposed provided that no
crime is committed. In other words, where murder or
homicide was committed, the penalty for illegal possession
of firearms is no longer imposable since it becomes merely a
special aggravating circumstance. (PP -vs- AUGUSTO
LORETO RINGOR, JR., G.R. No. 123918, Dec. 9, 1999)

ELMER AT RANDOM
Anything from mundane to ethereal; from puerile to
polemical.
Thursday, June 19, 2008
Special Penal Laws, Reviewer 2
ANTI-WIRE TAPPING LAW
(RA 4200)
Sec. 1. It shall be unlawful for any person, not being
authorized by all the parties to any private communication 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 a dictaphone or dictagraph or
dectaphone or walkie-talkie or tape recorder, or however
otherwise described:
It shall also be unlawful for any person, be he a participant or
not in the act or acts penalized in the next preceding
sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured
either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any
other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any
other person: Provided, That the use of such record or any
copies thereof as evidence in any civil, criminal investigation
or trial of offenses mentioned in section 3 hereof, shall not
be covered by this prohibition.
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING
An extension telephone cannot be placed in the same
category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA 4200 as the use thereof
cannot be considered as tapping the wire or cable of a
telephone line. The telephone extension in this case was not
installed for that purpose. It just happened to be there for
ordinary office use. It is a rule in statutory construction that in
order to determine the true intent of the legislature, the
particular clauses and phrases of the statute should not be
taken as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the
meaning of any of its parts. (66 SCRA 113,120)
A PERSON CALLING ANOTHER BY PHONE
MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.
An extension telephone is an instrument which is very
common especially now when the extended unit does not
have to be connected by wire to the main telephone but can
be moved from place to place within a radius of a kilometer
or more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in
the case of a party line or a telephone unit which shares its
line with another.
MERE ACT OF LISTENING TO A
TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY
ANTI-WIRE TAPPING LAW
It can be readily seen that our lawmakers intended to
discourage through punishment, persons such as
government authorities or representatives of organized
groups from installing devices in order to gather evidence for
use in court or to intimidate, blackmail or gain some
unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated
devices in RA 4200 or others of similar nature. We are of the
view that an extension telephone is not among such devices
or arrangements.
RAPE AS CRIME AGAINST PERSONS
(R.A. 8353)
Rape, When And How Committed
"1) By a man who shall have carnal knowledge of a woman
under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or
otherwise unconscious;
"c) By means of fraudulent machination or grave abuse of
authority; and
"d) When the offended party is under twelve (12) years of
age or is demented, even though none of the circumstances
mentioned above be present.
"2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another person's
mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person.
WHEN INEXCUSABLE IMPRUDENCE ON
PART OF VICTIM AS TO IDENTITY OF
OFFENDER IS NOT RAPE
The evidence shows that this mistake was purely a
subjective configuration of Zareen's mind — an assumption
entirely contrived by her. Our impression is that Silvino had
nothing to do with the formulation of this belief; he did
nothing to mislead or deceive Zareen into thinking that he
was Enrico. In fact, Silvino precisely, and confidently, told
her, "Zareen, it's not Ricky, it's Jun. I love you." It is thus
obvious that whatever mistake there was could only be
attributable to Zareen — and her inexcusable imprudence —
and to nobody else. Clearly, the fault was hers. She had the
opportunity to ascertain the identity of the man but she
preferred to remain passive and allow things to happen as
they did. Silvino never used force on her and was even most
possibly encouraged by the fact that when he pulled down
her panties she never objected; when her legs were being
parted she never objected; and, when he finally mounted her
she never objected. Where then was force?
Third, Zareen was not deprived of reason or otherwise
unconscious when the accused had intercourse with her.
Her lame excuse was that she was half-asleep. However
she admitted that in the early morning of 1 May 1994 she
woke up to find someone removing her underwear.
Thuswise it cannot be said that she was deprived of reason
or unconscious. She knew, hence was conscious, when her
panties were being pulled down; she knew, hence was
conscious, when her legs were being parted to prepare for
the sexual act; she knew, hence was conscious, when the
man was pulling down his briefs to prepare himself likewise
for the copulation; she knew, hence was conscious, when
the man mounted her and lusted after her virtue. Her
justification was that she never objected to the sexual act
from the start because she thought that the man was her
boyfriend with whom she was having sex almost every night
for the past three (3) weeks as they were getting married
and wanted already to have a baby. In other words, her urge
could not wait for the more appropriate time. (People v.
Salarza, Jr.)
NATURE OF INTIMIDATION IN RAPE CASES
Intimidation is addressed to the mind of the victim. It is
subjective and its presence cannot be tested by any hard-
and-fast rule, but must be viewed in the light of the victim’s
perception and judgement at the time of the crime.
In the case at bar, at the time the crime was committed, the
victim was 40 yrs. old, 5 months pregnant, unarmed and
married to a person older than her by almost 20 yrs.. In
contrast, appellant was in his 20’s, armed with a gun and
purportedly in the company of several NPA members. The
crime happened in the evening and in a place where help
was impossible. The nearest neighbor of the victim is some
3 kms. from their hut. Considering all these circumstances,
we hold that the victim was intimidated to submit to the
lustful desire of the appellant. (Pp. V. Mostrales; GR 125937,
Aug.28, 1998)
WHEN INTIMIDATION IS SUSTAINED
BY MORAL ASCENDANCY IN RAPE
Intimidation in rape cases is not calibrated nor governed by
hard and fast rules. Since it is addressed to the victim's and
is therefore subjective, it must be viewed in light of the
victim's perception and judgment at the time of the
commission of the crime. It is enough that the intimidation
produced fear — fear that if the victim did not yield to the
bestial demands of the accused, something far worse would
happen to her at that moment. Where such intimidation
existed and the victim was cowed into submission as a result
thereof, thereby rendering resistance futile, it would be the
height of unreasonableness to expect the victim to resist with
all her might and strength. If resistance would nevertheless
be futile because of intimidation, then offering none at all
does not mean consent to the assault so as to make the
victim's submission to the sexual act voluntary.
In any event, in a rape committed by a father against his own
daughter, as in this case, the former's moral ascendancy or
influence over the latter substitutes for violence or
intimidation. Likewise, it must not be forgotten that at her
tender age of 14 years, EDEN could not be expected to act
with the equanimity of disposition and with nerves of steel, or
to act like a mature and experienced woman who would
know what to do under the circumstances, or to have
courage and intelligence to disregard the threat. Even in
cases of rape of mature women, this Court recognized their
different and unpredictable reactions. Some may shout;
some may faint; and some may be shocked into insensibility;
while others may openly welcome the intrusion. (People v.
Agbayani; GR 122770, Jan. 16, ’98)
TEST TO DETERMINE WHETHER A WOMAN
VOLUNTARILY SUBMITTED TO SEXUAL INTERCOURSE
Physical resistance is not the sole test to determine whether
or not a woman involuntarily succumbed to the lust of an
accused. Jurisprudence holds that even though a man lays
no hand on a woman, yet if by array of physical forces he so
overpowers her mind that she does not resist or she ceases
resistance through fear of greater harm, the consummation
of unlawful intercourse by the man is rape. (Pp. V.
Mostrales; GR 125937, Aug.28, 1998)
DATE OF COMMISSION OF RAPE NOT ESSENTIAL
ELEMENT OF SAID CRIME
It is settled that even a variance of a few months between
the time set out in the indictment and that established by the
evidence during the trial has been held not to constitute an
error so serious as to warrant reversal of a conviction solely
on that score. The failure of the complainant to state the
exact date and time of the commission of the rape is a minor
matter
(Pp. V. Bernaldez; GR 109780,Aug. 17, 1998)
EXAMPLE OF VIRTUAL CONFESSION OF FACT AND
NOT IN LAW IN CASES OF RAPE
It is conceded that after the rape, Accused sent complainant
two letters in which he implored her forgiveness and offered
to leave his wife so that he could be with her. In fine,
appellant sealed his own fate by admitting his crime under a
seal of virtual confession in fact, if not in law. (Pp. V. Prades;
GR 127569, July 30, 1998)
CHILD BORN BY REASON OF RAPE
MUST BE ACKNOWLEDGED BY OFFENDER
UPON ORDERS OF THE COURT
Furthermore, since ANALIZA begot a child by reason of the
rape, DANTE must acknowledge and support the offspring
pursuant to Article 345 of the Revised Penal Code in relation
to Article 201 of the Family Code. (People v. Alfeche)
DWELLING AS AGGRAVATING
CIRCUMSTANCE IN RAPE CASES
It is clear, however, that the aggravating circumstance of
dwelling is attendant in the commission of the crime. Article
14(5) of the Revised Penal Code provides that this
circumstance aggravates a felony where the crime is
committed in the dwelling of the offended party, if the latter
has not given provocation. In the instant case, the aforesaid
circumstance of dwelling was definitely present in the
commission of the crime of rape with the use of a deadly
weapon. (Pp. V. Prades; GR 127569, July 30, 1998)
INDEMNITY IN CERTAIN CASES OF RAPE
The recent judicial prescription is that the indemnification for
the victim shall be in the increased amount of P75,000.00 if
the crime of rape is committed or effectively qualified by any
of the circumstances under which the death penalty is
authorized by the applicable amendatory laws. (Pp. V.
Prades; GR127569, July 30, 1998)
MORAL DAMAGES NEED NOT BE ALLEGED
AND PROVED IN CASES OF RAPE
Indeed, the conventional requirement of allegata et probata
in civil procedure and for essentially civil cases should be
dispensed with in criminal prosecutions for rape with the civil
aspect included therein, since no appropriate pleadings are
file wherein such allegations can be made. (Pp. V. Prades;
GR 127569, July 30, 1998)
MEANING OF DEADLY WEAPON
IN CASES OF RAPE
A ―deadly weapon‖ is any weapon or instrument made and
designed for offensive or defensive purposes, or for the
destruction of life or thee infliction of injury; or one which,
from the manner used, is calculated or likely to produce
death or serious bodily harm. In our jurisdiction, it has been
held that a knife is a deadly weapon. (Pp. V. Alfeche; GR
124213, Aug. 17, 1998)
FORCE AND INTIMIDATION NOT
NEEDED IN RAPE OF RETARDATE
Although the information alleged ―force, threats, and
intimidation‖, it nevertheless also explicitly stated that Tessie
is a ―mentally retarded person.‖ We have held in a long line
of cases that if the mental age of a woman above 12 years is
that of a child below 12 years, even if she voluntarily
submitted to the bestial desires of the accused, or even if the
circumstances of force or intimidation or of the victim being
deprived of reason or otherwise unconscious are absent, the
accused would still be liable for rape under the 3rd
circumstance of Art. 335. The rationale therefor is that if
sexual intercourse with a victim under 12 years of age is
rape, then it should follow that carnal knowledge of a woman
whose mental age is that of a child below 12 years would
constitute rape. (People v. Hector Estares; 12/5/97)
USE OF FORCE OR INTIMIDATION NOT
AN ELEMENT OF STATUTORY RAPE
In any event, the use of force or intimidation is not an
element of statutory rape. The offense is established upon
proof that the accused sexually violated the offended party,
who was below 12 years of age at the time of the sexual
assault. In other words, it is not relevant to this case whether
appellant slapped or boxed the victim, or whether he used a
single-bladed or a double-edged knife. (People v. Oliva;
12/5/97)
RAPE CAN BE COMMITTED IN
MANY DIFFERENT PLACES
It has been emphasized that rape can be committed in many
different places, including places which to many would
appear to be unlikely and high-risk venues for sexual
advances. Thus, rape has been committed even in places
where people congregate, in parks, along the roadside,
within school premises, inside a house where there are other
occupants, and even in the same room where other
members of the family are also sleeping. (People v.
Gementiza; 1/29/98)
WHEN SWEETHEART DEFENSE
IS TENABLE IN RAPE

The ―sweetheart‖ defense put up by the accused merits
serious consideration. While the theory does not often gain
favor with the court, such is not always the case if the hard
fact is that the accused and the supposed victim are in fact
intimately related except that, as is true in most cases, the
relationship is either illicit, or the parents are against it. In
such instances, it is not improbable that when the
relationship is uncovered, the victim’s parents would take the
risk of instituting a criminal action rather than admit to the
indiscretion of their daughter. And this, as the records reveal,
is what happened in this case. (People vs Rico Jamlan
Salem, October 16/97)
A MEDICAL EXAMINATION OF VICTIM
IS NOT ELEMENT OF RAPE
A medical examination is not an indispensable element in a
prosecution for rape. The accused may be convicted on the
sole basis of complainant’s testimony, if credible, and the
findings of the medico-legal officer do not disprove the
commission of rape. People v Jenelito Escober Y Resuento,
Nov 6/97)
HEINOUSNESS OF RAPE OF
ONE’S DESCENDANT
In the case before us, the accused raped his own flesh and
blood at such a tender age of eleven. He thus violated not
only he purity and her trust but also the mores of his society
which he has scornfully defined. By inflicting his animal
greed on her in a disgusting coercion of incestuous lust, he
forfeits all respect as human being and is justly spurned by
all, not least of all, by the fruit of his own loins whose
progeny he has forever stained with his shameful and
shameless lechery. People v jenelito Escober Y Resuento,
Nov 6/97)
MERE DISCIPLINARY CHASTISEMENT
IS NOT ENOUGH TO DOUBT CREDIBILITY
OF RAPE VICTIM WHO IS A DESCENDANT
Mere disciplinary chastisement is not strong enough to make
daughters in a Filipino family invent a charge that would only
bring shame and humiliation upon them and their own family
and make them the object of gossip among their classmates
and friends. It is unbelievable that Jacqueline would fabricate
a serious criminal charge just to get even with her father and
to emphasize with her sister. The sisters would not contrive
stories of defloration and charge their own father with rape
unless these stories are true. For that matter, no young
Filipina of decent repute would falsely and publicly admit that
she had been ravished and abused considering the social
stigma thereof. People v Tabugoca, GR No. 125334)
SODOMY IS NOT THE SAME AS IGNOMINY NOR CAN IT
BE CONSIDERED AS IGNOMINY.
"Ignominy is a circumstance pertaining to the moral order,
which adds disgrace and obliloquy to the material injury
caused by the crime." Thus, for ignominy to be appreciated
as an aggravating circumstance in the instant case, it must
be shown that the sexual assault on Francis Bart was done
by accused-appellant to put the former to shame before
killing him. This is clearly not the case here for accused-
appellant's intention was shown to be the commission of
sexual abuse on the victim as an act of revenge for his
similar experience as a child.
WHEN THE INFORMATIONS ON RAPE CASES FAILED
TO ALLEGE ACTUAL RELATIONSHIP ETC. HENCE
DEATH PENALTY CANNOT BE IMPOSED
In this case, the information's in Criminal Case Nos. 8899-
8900 alleged that accused-appellant, "who is the stepfather
of the private offended party" by "force, violence and
intimidation" succeeded in having carnal knowledge of the
latter when she was then 14 and 13 years old, respectively.
On the otherhand, the information in Criminal Case Nos.
8945-8946 alleged that accused-appellant, "who…. is the
stepfather of victim Jenny Macaro" succeeded in having
carnal knowledge of the latter, who was a girl below 12 years
old. As already noted, contrary to these allegations,
accused-appellant is not really the stepfather of
complainants Lenny and Jenny because accused-appellant
and complainants' mother were not legally married but were
merely living in common-law relation. In fact, Lenny and
Jenny interchangeably referred to accused-appellant as their
stepfather, "kabit," "live-in partner ng Mama ko," "tiyo," and
"tiyuhin." Complainants' sister-in-law, Rosalie Macaro, also
testified that her "mother-in-law is not legally married to
accused-appellant." Accused-appellant likewise said on
direct and cross-examination that he was not legally married
to the mother of the complainants, and he referred to her as
his live-in partner. This was confirmed by Emma Macaro,
mother of the complainants. Although the rape of a person
under eighteen (18) years of age by the common-law spouse
of the victim's mother is punishable by death, this penalty
cannot be imposed on accused-appellant in these cases
because this relationship was not what was alleged in the
information's. What was alleged was that he is the stepfather
of the complainants.
INFORMATION IN RAPE CASES WITH USE OF DEADLY
WEAPON MUST BE ALLEGED OTHERWISE DEATH
PENALTY, CANNOT BE IMPOSED
Neither can accused-appellant be meted the death penalty in
Criminal Case No. 8900 where he committed the rape after
threatening the victim, Lenny Macaro, with a knife. Under
Art. 335 of the Revised Penal Code, simple rape is
punishable by "reclusion perpetua." When the rape is
committed "with the use of a deadly weapon," i.e., when a
deadly weapon is used to make the victim submit to the will
of the offender, the penalty is ‖reclusion perpetua to death."
This circumstance must however be alleged in the
information because it is also in the nature of a qualifying
circumstance which increases the range of the penalty to
include death. In Criminal Case No. 8900, while complainant
Lenny testified that accused-appellant raped her after
threatening her with a knife, the "use of a deadly weapon" in
the commission of the crime was not alleged in the
information. Therefore, even if the same was prove, it cannot
be appreciated as a qualifying circumstance. The same can
only be treated as generic aggravating circumstance which,
in this case, cannot affect the penalty to be impose, i.e.,
reclusion perpetua. Accordingly, the accused-appellant
should be sentenced to the penalty of reclusion perpetua.
Accordingly, the accused-appellant should be sentenced to
the penalty of reclusion perpetua for each of the four counts
of rape. (PP -vs- FELIXBERTO FRAGA Y BAYLON, G.R.
Nos. 134130-33, April 12, 2000)
EXAMINATIONS OF ALL SPECIMENS IN DRUG CASES
NOT NECESSARY
We are not persuaded by the claim of accused-appellants
that in order for them to be convicted of selling 2,800 grams
of marijuana, the whole specimen must be tested
considering that Republic Act 7659 imposes a penalty
dependent on the amount or the quantity of drugs seized or
taken. This Court has ruled that a sample from one of the
packages is logically presumed to be representative of the
entire contents of the package unless proven otherwise by
accused-appellant. (PP -vs- DIOLO BARITA Y SACPA, ET
AL., G.R. No. 123541, Feb. 8, 2000)
MEDICAL EXAMINATION NOT REQUIRED IN RAPE
CASES
This Court has also ruled that a medical examination is not
indispensable to the prosecution of rape as long as the
evidence on hand convinces the court that a conviction of
rape is proper.
WHEN CARNAL KNOWLEDGE IS CONSUMATED
It is worth mentioning that in rape cases, the prosecution is
not required to establish penile penetration because even
the slightest touching of the female genitalia, or mere
introduction of the male organ into the labia of the pudendum
constitutes carnal knowledge. (PP -vs- FERNANDO
CALANG MACOSTA, alias "DODONG" G.R. No. 126954,
Dec. 14, 1999)
THE CHARGE OF RAPE DO NOT INCLUDE SIMPLE
SEDUCTION. HENCE, IF ONE IS CHARGE WITH RAPE
AND IS NT PROVEN, ACCUSED CANNOT BE HELD
GUILTY OF SIMPLE SEDUCTION.
Even as the prosecution failed to proved the use of force,
violence and intimidation by the accused-appellant, we
cannot convict the accused-appellant of the crime of simple
seduction without offense to the constitutional rights of the
accused-appellant to due process and to be informed the
accusation against him. The charge of rape does not include
simple seduction. (PP -vs LOLITO MORENO Y LANCION
alias "LOLOY" G.R. No. 115191, Dec. 21, 1999)
WHAT ARE THE ELEMENTS OF RAPE?
The elements of rape are: (1) that the offender had carnal
knowledge of a woman; (2) that such act is accomplished by
using force or intimidation; or when the woman is deprived of
reason or otherwise unconscious; or when the woman is
under twelve years of age or is demented.
MEANING OF TAKING ADVANTAGE OF SUPERIOR
STRENGTH IN RAPE CASES
Taking advantage of superior strength means to purposely
use excessive force out of proportion to the means available
to the person attacked. It is abuse of superior numbers or
employment of means to weaken the defense. This
circumstance is always considered whenever there is
notorious inequality of forces between the victim and the
aggressor, assuming a situation of superiority notoriously
advantageous for the aggressor deliberately chosen by him
in the commission of the crime. To properly appreciate it, it is
necessary to evaluate not only the physical condition of the
parties and the arms or objects employed but the incidents in
the total development of the case as well.
Moreover, like the crime of parricide by a husband on his
wife, abuse of superior strength Is inherent in rape. It is
generally accepted that under normal circumstances a man
who commits rape on a woman is physically stronger than
the latter. (PP -vs- EDGARDO DE LEON Y SANTOS, G.R.
No. 128436, Dec. 10, 1999)
WHEN TESTIMONY OF VICTIM IS OVERLY
GENERALIZED IN CRIME OF RAPE
Each and every charge of rape is a separate and distinct
crime so that each of the sixteen other rapes charged should
be proven beyond reasonable doubt. The victim's testimony
was overly generalized and lacked specific details on how
each of the alleged sixteen rapes was committed. Her bare
statement that she was raped so many times on certain
weeks is clearly inadequate and grossly insufficient to
establish the guilt of accused-appellant insofar as the other
sixteen rapes charged are concerned. In People vs. Garcia,
this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was
raped every week is decidedly inadequate and grossly
insufficient to establish the guilt of appellant therefor with the
required quantum of evidence. So much of such indefinite
imputations of rape, which are uncorroborated by any other
evidence fall within this category. (PP -vs- EDMUNDO DE
LEON Y JESUS, G.R. No 130985, Dec. 3, 1999
CONCURRENCE OF MINORITY OF VICTIM AND
RELATIONSHIPS IN RAPE MUST BE ALLEGED SO THAT
DEATH PENALTY MAYBE IMPOSED
The concurrence of the minority of the victim and her
relationship to the offender should be specifically alleged in
the information conformably with the accused's right to be
informed of the accusation against him. In this case,
although the minority of Poblica and her relationship with
appellant were established by the prosecution beyond doubt,
the death penalty cannot be imposed because these
qualifying circumstances were not specified in the
information. It would be a denial of the right of the appellant
to be informed of the charges against him and consequently,
a denial of due process if he is charged with simple rape and
convicted of its qualified form punishable by death although
the attendant circumstances qualifying the offense and
resulting in capital punishment were not set forth in the
indictment on which he was arraigned. (PP -vs- CHARITO
ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)
QUALIFYING CIRCUMSTANCE IN RAPE CASES MUST
BE ALLEGED IN ORDER THAT DEATH PENALTY MAYBE
IMPOSED
This Court has ruled in a long line of cases that the
circumstance under the amendatory provisions of Section 11
of Republic Act 7659, the attendance of any of which
mandates the single indivisible penalty of death are in the
nature of qualifying circumstances which cannot be proved
as such unless alleged with particularity in the information
unlike ordinary aggravating circumstances which affect only
the period of the penalty and which may be proven even if
not alleged in the information. It would be a denial of the
right of the accused to be informed of the charge against him
and consequently, a denial of due process, if he is charged
with simple rape and will be convicted of its qualified form
punishable by death although the attendant circumstance
qualifying the offense and resulting in capital punishment
was not alleged in the indictment under which he was
arraigned. Procedurally, then, while the minority of Renelyn
and her relationship to the accused-appellant were
established during the trial, the accused-appellant can only
be convicted of simple rape because he cannot be punished
for a graver offense that that with which he was charged.
Accordingly, the imposable penalty is reclusion perpetua.
(PP -vs- EDWIN R. DECENA, G.R. No. 131843, May 31,
2000)
IMPORTANT CONSIDERATION IN RAPE
Neither is the absence of spermatozoa in Delia's genitalia
fatal to the prosecution's case. The presence or absence of
spermatozoa is immaterial in a prosecution for rape. The
important consideration in rape cases is not the emission of
semen but the unlawful penetration of the female genitalia by
the male organ. (PP -vs- RODOLFO BATO alias 'RUDY
BATO," G.R. No. 134939, Feb. 16, 2000)
WHEN RAPE IS NOT COMMITTED AND SWEETHEART
THEORY GIVEN CREDENCE
First. Private complainant never objected or showed any
resistance when accused-appellant allegedly dragged her
forcibly across the pedestrian overpass and brought her to
an undisclosed place at Quiapo. Although he was holding
her wrist tightly, she could have easily extricated herself form
him on several occasions: (a) while they were inside the bus
bound for Quiapo; (b) when they alighted form the bus and
roamed the sidestreets of Quiapo; and especially so, (c)
when they entered the hotel and finally the room where the
alleged rape took place. Accused-appellant was unarmed
and his tight grip could not have prevented private
complainant from at least shouting for help. Her demeanor
was simply inconsistent with that of the ordinary Filipina
whose instinct dictates that the summon every ounce of her
strength and courage to thwart any attempt to besmirch her
honor and blemish her purity. True, women react differently
in similar situations, but it is too unnatural for an intended
rape victim, as in this case, not to make even feeble attempt
to free herself despite a myriad of opportunities to do so.
Second. The deportment of the private complainant after the
alleged rape accentuates the dubiety of her testimony. After
the alleged rape, she did not leave immediately but even
refused to be separated from her supposed defiler despite
the prodding of the latter. Worse, she went with him to the
house of his sister and there they slept together. Indeed this
attitude runs counter to logic and common sense. Surely
private complainant would not risk a second molestation and
undergo a reprise of the harrowing experience. To
compound matters, it took her four (4) days to inform her
parents about this agonizing episode in her life. Truly, her
insouciance is very disturbing, to say the least.
Finally. The prosecution failed to substantiated any of its
allegations. Instead, it opted to stand or fall on the
uncorroborated and implausible testimony of the private
complainant. It is elementary in our rules of evidence that a
party must prove the affirmative of his allegations. (PP -vs-
TOMAS CLAUDIO Y MENIJIE, G.R. No. 133694, Feb. 29,
2000)
WHEN TWO AFFIDAVITS ARE EXECUTED BY THE
COMPLAINANT IN A RAPE CASE, ONE FOR ATTEMPTED
RAPE AND ANOTHER FOR CONSUMMATED RAPE AND
ARE INCONSISTENT WITH EACH OTHER, CONVICTION
CANNOT BE HAD
It is true that affidavits are generally subordinated in
importance to open court declarations. The general rule is
that variance between an extrajudicial sworn statement of
the complainant and here testimony in court does not impair
the complainant's credibility when the said variance does not
alter the essential fact that the complainant was raped.
Variance as to the time and date of the rape, the number of
times it was committed or the garments which the accused
or the complainant wore at the time of the incident do not
generally diminish the complainant's credibility. However, the
serious discrepancy between the two sworn statements
executed a day apart by the complainant in this case,
bearing on a material fact, is very substantial because it
pertains to the essential nature of the offense, i.e., whether
the offense was consummated or merely attempted. In
People vs. Ablaneda, wherein a housewife executed a sworn
statement for attempted rape and later changed the
accusation to consummated rape without a rational
explanation, this Court held that the general rule does not
apply when the complainant completely changed the nature
of her accusation. The contradiction does not concern a
trivial or inconsequential detail but involves the essential fact
of the consummation of the rape. (PP -vs- ALBERT
ERNEST WILSON, G.R. No. 135915, Dec. 21, 1999)
NATURE OF INCESTUOUS RAPE
Incestuous rape of a daughter by a father has heretofore
been bitterly and vehemently denounced by this Court as
more than just a shameful and shameless crime. Rape in
itself is a nauseating crime that deserves the condemnation
of all decent persons who recognize that a woman's
cherished chastity is hers alone to surrender at her own free
will, and whoever violates this norm descends to the level of
the odious beast. But the act becomes doubly repulsive
where the outrage is perpetrated on one's own flesh and
blood for the culprit is further reduced to a level lower than
the lowly animal and forfeits all respect otherwise due him as
a human. (PP -vs- MELANDRO NICOLAS Y FAVELLA, G.R.
Nos. 125125-27, Feb. 4, 2000)
LOVE RELATIONSHIP DO NOT RULE OUT RAPE
Even assuming ex gratia argumenti that accused-appellant
and private complainant were indeed sweethearts as he
claims, this fact alone will not extricate him from his
predicament. The mere assertion of a "love relationship"
would not necessarily rule out the use of force to
consummate the crime. It must be stressed that in rape
case, the gravamen of the offense is sexual intercourse with
a woman against her will or without her consent. Thus,
granting arguendo that the accused and the victim were
really lovers this Court has reiterated time and again that "A
sweetheart cannot be forced to have sex against her will.
Definitely, a man cannot demand sexual gratification from a
fiancée, worse, employ violence upon her on the pretext of
love. Love is not a license for lust." (PP -vs- DANTE
CEPEDA Y SAPOTALO, G.R. No. 124832, Feb. 1, 2000)
PLACES NOTORIOUS FOR HOLD-UPS DONE AT NIGHT -
IS CONSIDERED AGGRAVATING AS NIGHT TIME
Considering that the place where the crime took place was
"notorious for hold-ups done at night, precisely to maximize
the advantage of darkness," we cannot but agree with the
trial court that nighttime was purposely sought by accused-
appellants "for the more successful consummation may be
perpetrated unmolested or so that they could escape more
thoroughly." (PP -vs- FELIMON ALIPAYO Y TEJADA, ET
AL., G.R. No. 122979, Feb. 2, 2000)
RAPE MAY BE COMMITTED IN ALMOST ALL PLACES
Appellant considers it quite improbable for rape to be
committed at a place within a well-lighted and fairly well-
populated neighborhood. This argument does not hold
water. Rape can be commi9tted even in places where
people congregate, in parks, along the roadside, within
school premises, inside a house where there are other
occupants, and even in the same room in the presence of
other members of the family. An overpowering wicked urge
has been shown not to be deterred by circumstances of time
or place.
DEATH PENALTY CANNOT BE IMPOSED WHEN
INFORMATION FAILED TO INDICATE THE AGE OF THE
VICTIM AND HER CORRECT RELATIONSHIP WITH THE
ACCUSED
The penalty of death cannot be properly imposed since the
indictment has failed to indicate the age of the victim and her
correct relationship with appellant, concurrent qualifying
circumstances, essential in the imposition of that penalty.
Furthermore, appellant is not a "parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the
parent of the victim." The latter's grandmother, Remedios
Lustre, herself acknowledges that appellant has just for a
time been her common-law husband. (PP -vs- FEDERICO
LUSTRE Y ENCINAS, G.R. No. 134562, April 6, 2000)
COMPENSATORY DAMAGES IN CASES OF QUALIFIED
RAPE
With regard to the award of compensatory damages, we
have rule in People vs. Victor, which was later reaffirmed in
People vs. Prades, that "if the crime of rape is committed or
effectively qualified by any of the circumstances under which
the death penalty is authorized by the present amended law,
the indemnity of the victim shall be in the increased amount
of not less than P75,000.00." (PP -vs- ANTONIO MAGAT Y
LONDONIO, G.R. No. 130026, May 31, 2000)
NATURE OF INTIMIDATION IN CASE OF RAPE
In People vs. Luzorata, the Court held that intimidation was
addressed to the mind of the victim and therefore subjective,
and its presence could not be tested by any hard-and-fast
rule but must be viewed in light of the victim's perception and
judgment at the time of the crime. Thus, when a rape victim
becomes paralyzed with fear, she cannot be expected to
think and act coherently, her failure to immediately take
advantage of the early opportunity to escape does not
automatically vitiate the credibility of her account.
"Complainant cannot be faulted for not taking any action
inasmuch as different people react differently to a given type
of situation, there being no standard form of human
behavioral response when one is confronted with a strange,
startling or frightful experience." (PP -vs- VICENTE BALORA
Y DELANTAR, G.R. No. 124976, May 31, 2000)
EACH AND EVERY RAPE ALLEGED MUST BE PROVEN
Each and every charge of rape is a separate and distinct
crime so that each of the sixteen other rapes charged should
be proven beyond reasonable doubt. The victim's testimony
was overly generalized and lacked specific details on how
each of the alleged sixteen rapes was committed. Her bare
statement that she was raped so many times on certain
weeks is clearly inadequate and grossly insufficient to
establish the guilt of accused-appellant insofar as the other
sixteen rapes charged are concerned. In People vs. Garcia
this Court succinctly observed that:
xxx the indefinite testimonial evidence that complainant was
raped every week is decidedly inadequate and grossly
insufficient to establish the guilt of appellant therefor with the
required quantum of evidence. So much of such indefinite
imputations of rape, which are uncorroborated by any other
evidence fall within this category. (PP -vs- EDMUNDO DE
LEON Y JESUS, G.R. No. 130985, Dec. 3, 1999)
AT THE START THERE MUST BE RAPE, BUT
SUBSEQUENT EVENTS MAY BECOME A FACTOR THAT
THE REALTIONSHIP, ALTHOUGH INCESTOUS,
CONVICTION FOR RAPE CANNOT BE HAD
"Complainant could have been raped the first time accused-
appelant had carnal knowledge of her, when she was 13
years old. This however, is not a prosecution for such rape.
When she complained of having been raped in this case,
she was already 30 or 31 years old, 17 or 18 years after she
had been allegedly ravished for the first time by her father,
the herein accused-appelant. During the said period of 17 or
18 years, neither complainant nor her parents denounced
accused-appellant despite the fact that he continued to have
sexual relation allegedly without the consent of complainant.
During this period, four children were born to complainant
and accused-appellant. Complainant and accused-appellant
practically cohabited, choosing the baptismal sponsors for
their children, and even inviting friends and relatives to the
feasts. The relationship was known to neighbors. Thus, their
relationship might be incestuous, but it was not by reason of
force or intimidation. For their part, while in the beginning
complainant's mother and sisters may have disapproved of
the relationship, in the end, it would appear that
subsequently they just turned a blind eye on the whole affair.
Given these facts, we cannot say that on September 19,
1995 when accused-appellant had sexual intercourse with
complainant, he committed rape. (People v. Villalobos, G.R.
134294, 05/21/2001)
THE DELAY AND INITIAL RELUCTANCE OF A RAPE
VICTIM TO MAKE PUBLIC THE ASSAULT ON HER
VIRTUE IS NEITHER UNKNOWN OR UNCOMMON. AS
HELD IN LTHE CASE OF PEOPLE VS. MALAGAR
"Vacillation in the filing of complaint by rape victim is not an
uncommon phenomenon. This crime is normally
accompanied by the rapist's threat on the victim's life, and
the fear can last for quit a while. There is also the natural
reluctance of a woman to admit her sullied chastity,
accepting thereby all the stigma it leaves, and to then
expose herself to the morbid curiosity of the public whom
she may likely perceived rightly or wrongly, to be more
interested in the prurient details of the ravishment than in her
vindication and the punishment of the rapist. In People vs.
Coloma (222 SCRA 255) we have even considered an 8-
year delay in reporting the long history of rape by the victim's
father as understandable and so not enough to render
incredible the complaint of a 13-year old daughter. (PP -vs-
CONRADO CABANA @ RANDY, G.R. No. 127124, May 9,
2000)
WHEN THERE IS A SEPARATE CRIME OF RAPE AND
ROBBERY IS COMMITTED
As related by Private Complainant Amy de Guzman,
accused-appellant suddenly jumped over the counter,
strangled her, poked a knife at the left side of her neck,
pulled her towards the kitchen where he forced her to
undress, and gained carnal knowledge of her against her will
and consent. Thereafter, he ordered her to proceed upstairs
to get some clothes, so he could bring her out, saying he
was not leaving her alive. At this point, appellant conceived
the idea of robbery because, before they could reach the
upper floor, he suddenly pulled Amy down and started
mauling her until she lost consciousness; then he freely
ransacked the place. Leaving Amy for dead after repeatedly
banging her head, first on the wall, then on the toilet bowl, he
took her bracelet, ring and wristwatch. He then proceeded
upstairs where he took as well the jewelry box containing
other valuables belonging to his victim's employer.
Under these circumstance, appellant cannot be convicted of
the special complex crime of robbery with rape. However,
since it was clearly proven beyond reasonable doubt that he
raped Amy de Guzman and thereafter robbed her and Ana
Marinay of valuables totaling P16,000.00, he committed two
separate offenses -rape with the use of deadly weapon and
simple robbery with force and intimidation against persons.
CASES WHEREIN THE SCANDAL RESULTING FROM
RELATIONS OF COMPLAINANT AND ACCUSED IMPELS
THE COMPLAINANT OR HER RELATIVES TO FILE
COMPLAINT OF RAPE AGAINST THE ACCUSED BUT DID
NOT PROSPER
Thus in People vs. Lamarroza, a case involving an eighteen-
year old woman "intellectually weak and gullible," the Court
found that the alleged victim's family was "obviously
scandalized and embarrassed by (the victim) Elena's
'unexplained' pregnancy," prompting them to cry "rape." The
Court acquitted the accused.
In People vs. Domogoy, private complainant was seen
having sexual intercourse in the school premises with
appellant therein by the latter's co-accused. "It is thus not
farfetched," the Court held, "for complainant to have
instituted the complainant for rape against the three to avoid
being bruited around as a woman of loose morals."
Similarly, in People vs. Castillon, the Court considered the
complainant's agreement to engage in pre-marital sexual
intercourse "already a disgrace to her family, what more of
her acquiescence to have sexual intercourse on a stage
near the vicinity where the JS program was being held and
prying eyes and ears abound."
In People vs. Bawar, the complainant was caught in
flagrante by her sister-in-law engaging in sexual intercourse
with the accused, a neighbor. The Court gathered from the
complainant's testimony that "she filed the case because she
thought it would be better to cry 'rape' and bring suit to
salvage and redeem her honor, rather than have reputation
sullied in the community by being bruited around and
stigmatized as an adulterous woman."
People vs. Godoy also involved an adulterous relationship
between the accused, who was married, and his seventeen-
year old student. In acquitting the accused, the Court held:
The Court takes judicial cognizance of the fact that in rural
areas in the Philippines, young ladies are strictly required to
act with circumspection and prudence. Great caution is
observed so that their reputations shall remain untainted.
Any breath of scandal which brings dishonor to their
character humiliates their entire families. It could precisely
be that complainant's mother wanted to save face in the
community where everybody knows everyone else, and in
an effort to conceal her daughter's indiscretion and escape
the wagging tongues of their small rural community, she had
to weave the scenario of this rape drama.
Here, the elopement of a thirteen-year old with her nineteen-
year old second cousin no doubt caused quite a tempest in
the otherwise serene community of Vintar, Ilocos Norte. That
complainant's parents were against their relationship, as
evidenced in one of her letters, makes it more likely that the
charges of rape were instigated to salvage the complainant's
and her family's honor.
While the "sweetheart theory" does not often gain favor with
this Court, such is not always the case if the hard fact is that
the accused and the supposed victim are, in truth, intimately
related except that, as is usual in most cases, either the
relationship is illicit or the victim's parents are against it. It is
not improbable that in some instances, when the relationship
is uncovered, the alleged victim or her parents for that matter
would take the risk of instituting a criminal action in the hope
that the court would take the cudgels for them than for the
woman to admit her own acts of indiscretion. (PP -vs-
ERWIN AGRESOR, G.R. Nos. 119837-39, Dec. 9, 1999)
JUDGES SHOULD NOT BE OVERLY PROTECTIVE OF
EVERY WOMAN IN RAPE CASES. THEY MUST LOOK AT
THE CHARGE WITH EXTREME CAUTION AND
CIRCUSMPECTION
Rape is a very emotional word, and the natural human
reactions to it are categorical: sympathy for the victim and
admiration for her in publicly seeking retribution for her
outrageous misfortune, and condemnation of the rapist.
However, being interpreters of the law and dispensers of
justice, judges must look at a rape charge without those
proclivities and deal and with it with extreme caution and
circumspection. Judges must free themselves of the natural
tendency to be overprotective of every woman decrying her
having been sexually abused and demanding punishment for
the abuser. While they ought to be cognizant of the anguish
and humiliation the rape victim goes through as she
demands justice, judges should equally bear in mind that
their responsibility is to render justice based on the law. (PP
-vs- EDWIN LADRILLO, G.R. No. 124342, Dec. 8, 1999)
SEXUAL HARASSMENT LAW
(RA 7877)
WORK, EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT DEFINED.
Work, education or training-related sexual harassment is
committed by an employer, employee, manager, supervisor,
agent of the employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority, influence
or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of
whether the demand, request or requirement for submission
is accepted by the object of said Act.
WHEN SEXUAL HARASSMENT IS COMMITTED:
Work, Education or Training-related Sexual Harassment
Defined
Work, education or training-related sexual harassment is
committed by an employer, employee, manager, supervisor,
agent of the employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority, influence
or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of
whether the demand, request or requirement for submission
is accepted by the object of said Act.
In work-related or employment environment:
(1) The sexual favor is made as a condition in the hiring or in
the employment, re-employment or continued employment of
said individual, or in granting said individual favorable
compensation, terms, conditions, promotions, or privileges;
or the refusal to grant the sexual favor results in limiting,
segregating or classifying the employee which in any way
would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;
(2) The above acts would impair the employee's rights or
privileges under existing labor laws; or
(3) The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
In an education or training environment:
(1) Against one who is under the care, custody or
supervision of the offender;
(2) Against one whose education, training, apprenticeship or
tutorship is entrusted to the offender;
(3) When the sexual favor is made a condition to the giving
of a passing grade, or the granting of honors and
scholarships or the payment of a stipend, allowance or other
benefits, privileges, or considerations; or
(4) When the sexual advances result in an intimidating,
hostile or offensive environment for the student, trainee or
apprentice.
Any person who directs or induces another to commit any
act of sexual harassment as herein defined, or who
cooperates in the commission thereof by another without
which it would not have been committed, shall also be held
liable under this Act.
CHILD AND YOUTH WELFARE CODE
( PD 603 with Amendments)
RELIGIOUS INSTRUCTION
The religious education of children in all public and private
schools is a legitimate concern of the Church to which the
students belong. All churches may offer religious instruction
in public and private elementary and secondary schools,
subject to the requirements of the Constitution and existing
laws.
TERMINATION OF RIGHTS OF PARENTS
When a child shall have been committed to the Department
of Social Welfare or any duly licensed child placement
agency or individual pursuant to an order of the court, his
parents or guardian shall thereafter exercise no authority
over him except upon such conditions as the court may
impose.
VIOLATION OF PD 603 BY A CHILD
Prohibited Acts:
It shall be unlawful for any child to leave the person or
institution to which he has been judicially or voluntarily
committed or the person under whose custody he has been
placed in accordance with the next preceding article, or for
any person to induce him to leave such person or institution,
except in case of grave physical or moral danger, actual or
imminent, to the child.
Any violation of this article shall be punishable by an
imprisonment of not more than one year or by a fine of not
more than two thousand pesos, or both such fine and
imprisonment at the discretion of the court: Provided, That if
the violation is committed by a foreigner, he shall also be
subject to deportation.
CARE OF YOUTHFUL OFFENDER
HELD FOR EXAMINATION OR TRIAL
A youthful offender held for physical and mental examination
or trial or pending appeal, if unable to furnish bail, shall from
the time of his arrest be committed to the care of the
Department of Social Welfare or the local rehabilitation
center or a detention home in the province or city which shall
be responsible for his appearance in court whenever
required: Provided, That in the absence of any such center
or agency within a reasonable distance from the venue of
the trial, the provincial, city and municipal jail shall provide
quarters for youthful offenders separate from other
detainees. The court may, in its discretion, upon
recommendation of the Department of Social Welfare or
other agency or agencies authorized by the Court, release a
youthful offender on recognizance, to the custody of his
parents or other suitable person who shall be responsible for
his appearance whenever required.
SUSPENSION OF SENTENCE AND COMMITMENT
OF YOUTHFUL OFFENDER
If after hearing the evidence in the proper proceedings, the
court should find that the youthful offender has committed
the acts charged against him the court shall determine the
imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of
conviction, the court shall suspend all further proceedings
and shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution
operated by the government, or duly licensed agencies or
any other responsible person, until he shall have reached
twenty-one years of age or, for a shorter period as the court
may deem proper, after considering the reports and
recommendations of the Department of Social Welfare or the
agency or responsible individual under whose care he has
been committed.
The youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Welfare or any duly licensed agency or such other officer as
the Court may designate subject to such conditions as it may
prescribe.
PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS
"Article 101. Care of Youthful Offender Held for Examination
or Trial. - A youthful offender held for physical and mental
examination or trial or pending appeal, if unable to furnish
bail, shall from the time of his arrest be committed to the
care of the Dept. of Social Services and Development or the
local rehabilitation center or a detention home in the
province or city which shall be responsible for his
appearance in court whenever required: Provided, that in the
absence of any such center or agency within a reasonable
distance from the venue of the trial, the provincial, city and
municipal jail shall provide quarters for youthful offenders
separate from other detainees. The court may, in its
discretion upon recommendation of the Department of Social
Services & Development or other agency or agencies
authorized by the Court, release a youthful offender on
recognizance, to the custody of his parents or other suitable
person who shall be responsible for his appearance
whenever required. However, in the case of those whose
cases fall under the exclusive jurisdiction of the Military
Tribunals, they may be committed at any military detention
or rehabilitation center.
PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
"Art. 192. Suspension of sentence and Commitment of
Youthful Offender. - If after hearing the evidence in the
proper proceedings, the court should find that the youthful
offender has committed the acts charged against him, the
court, shall determine the imposable penalty, including any
civil liability chargeable against him. However, instead of
pronouncing judgment of conviction, the court upon
application of the youthful offender and if it finds that the best
interest of the public as well as that of the offender will be
served thereby, may suspend all further proceedings and
commit such minor to the custody or care of the Department
of Social Services and Development or to any training
institution operated by the government or any other
responsible person until he shall have reached twenty one
years of age, or for a shorter period as the court may deem
proper, after considering the reports and recommendations
of the Department of Social Services and Development or
the government training institution or responsible person
under whose care he has been committed.
Upon receipt of the application of the youthful offender for
suspension of his sentence, the court may require the
Department of Social Services and Development to prepare
and submit to the court a social case study report over the
offender and his family.
The Youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Services & Development or government training institution
as the court may designate subject to such conditions as it
may prescribe.
The benefits of this article shall not apply to a youthful
offender who has once enjoyed suspension of sentence
under its provisions or to one who is convicted of an offense
punishable by death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals.
PD 1179
APPEAL
The order of the court denying an application for suspension
of sentence under the provisions of Article 192 above shall
not be appealable."
RETURN OF THE YOUTHFUL
OFFENDER TO THE COURT
Whenever the youthful offender has been found incorrigible
or has wilfully failed to comply with the conditions of his
rehabilitation programs, or should his continued stay in the
training institution be inadvisable, he shall be returned to the
committing court for the pronouncement of judgment.
When the youthful offender has reached the age of twenty-
one while in commitment, the court shall determine whether
to dismiss the case in accordance with the extent preceding
article or to pronounce the judgment conviction. In the latter
case, the convicted offender may apply for probation under
the provisions of Presidential Decree Numbered Nine
Hundred and Sixty-Eight.
In any case covered by this article, the youthful offender
shall be credited in the service of his sentence with the full
time spent in actual commitment and detention effected
under the provisions of this Chapter."
RA 7610
CHILD ABUSE LAW
CHILD PROSTITUTION AND
OTHER SEXUAL ABUSE
Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to
reclusion perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce
child prostitution which include, but are not limited to, the
following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by
means of written or oral advertisements or other similar
means;
(3) Taking advantage of influence or relationship to procure
a child as prostitute;
(4) Threatening or using violence towards a child to engage
him as a prostitute; or
(5) Giving monetary consideration goods or other pecuniary
benefit to a child with intent to engage such child in
prostitution.
(b) Those who commit the act of sexual intercourse of
lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse; Provided, That when the
victims is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised
Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall reclusion
temporal in its medium period; and
(c) Those who derive profit or advantage therefrom, whether
as manager or owner of the establishment where the
prostitution takes place, or of the sauna, disco, bar, resort,
place of entertainment or establishment serving as a cover
or which engages in prostitution in addition to the activity for
which the license has been issued to said establishment.
ATTEMPT TO COMMIT
CHILD PROSTITUTION
There is an attempt to commit child prostitution under
Section 5, paragraph (a) hereof when any person who, not
being a relative of a child, is found alone with the said child
inside the room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar establishments,
vessel, vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to
believe that the child is about to be exploited in prostitution
and other sexual abuse.
There is also an attempt to commit child prostitution, under
paragraph (b) of Section 5 hereof when any person is
receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments.
A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be
imposed upon the principals of the attempt to commit the
crime of child prostitution under this Act, or, in the proper
case, under the Revised Penal Code.
CHILD TRAFFICKING
Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration, or
barter, shall suffer the penalty of reclusion temporal to
reclusion perpetua. The penalty shall be imposed in its
maximum period when the victim under twelve (12) years of
age.
ATTEMPT TO COMMIT
CHILD TRAFFICKING
There is an attempt to commit child trafficking under Section
7 of this Act:
(a) When a child travels alone to a foreign country without
valid reason therefor and without clearance issued by the
Department of Social Welfare and Development or written
permit or justification from the child's parents or legal
guardian;
(b) When a person, agency, establishment or child-caring
institution recruits women or couples to bear a children for
the purpose of child trafficking; or
(c) When doctor, hospital or clinic official or employee,
nurse, midwife, local civil registrar or any other person
simulates birth for the purpose of child trafficking;
(d) When a person engages in the act of finding children
among low-income families, hospitals, clinics, nurseries, day-
care centers, or other child-during institutions who can be
offered for the purpose of child trafficking.
A penalty lower two (2) degrees than that prescribed for the
consummated felony under Section 7 hereof shall be
imposed upon the principals of the attempt to commit child
trafficking under this Act.
OBSCENE PUBLICATIONS
AND INDECENT SHOWS
Any person who shall hire, employ, use, persuade, induce or
coerce a child to perform in obscene exhibitions and
indecent shows, whether live or in video, or model in
obscene publications or pornographic materials or to sell or
distribute the said materials shall suffer the penalty of prision
mayor in its medium period.
If the child used as a performer, subject or seller/distributor
is below twelve (12) years of age, the penalty shall be
imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any
capacity with the care of a child who shall cause and/or allow
such child to be employed or to participate in an obscene
play, scene, act, movie or show or in any other acts covered
by this section shall suffer the penalty of prision mayor in its
medium period.
OTHER ACTS OF NEGLECT, ABUSE,
CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILD’S DEVELOPMENT
(a) Any person who shall commit any other acts of child
abuse, cruelty or exploitation or to be responsible for other
conditions prejudicial to the child's development including
those covered by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised Penal Code, as
amended, shall suffer the penalty of prision mayor in its
minimum period.
(b) Any person who shall keep or have in his company a
minor, twelve (12) years or under or who in ten (10) years or
more his junior in any public or private place, hotel, motel,
beer joint, discotheque, cabaret, pension house, sauna or
massage parlor, beach and/or other tourist resort or similar
places shall suffer the penalty of prision mayor in its
maximum period and a fine of not less than Fifty thousand
pesos (P50,000): Provided, That this provision shall not
apply to any person who is related within the fourth degree
of consanguinity or affinity or any bond recognized by law,
local custom and tradition or acts in the performance of a
social, moral or legal duty.
(c) Any person who shall induce, deliver or offer a minor to
any one prohibited by this Act to keep or have in his
company a minor as provided in the preceding paragraph
shall suffer the penalty of prision mayor in its medium period
and a fine of not less than Forty thousand pesos (P40,000);
Provided, however, That should the perpetrator be an
ascendant, stepparent or guardian of the minor, the penalty
to be imposed shall be prision mayor in its maximum period,
a fine of not less than Fifty thousand pesos (P50,000), and
the loss of parental authority over the minor.
(d) Any person, owner, manager or one entrusted with the
operation of may public or private place of accommodation,
whether for occupancy, food, drink or otherwise, including
residential places, who allows any person to take along with
him to such place or places any minor herein described shall
be imposed a penalty of prision mayor in its medium period
and a fine of not less than Fifty thousand pesos (P50,000),
and the loss of the license to operate such a place or
establishment.
(e) Any person who shall use, coerce, force or intimidate a
street child or any other child to :
(1) Beg or use begging as a means of living;
(2) Act as conduit or middlemen in drug trafficking or
pushing; or
(3) Conduct any illegal activities, shall suffer the penalty of
prision correccional in its medium period to reclusion
perpetua.
For purposes of this Act, the penalty for the commission of
acts punishable under Articles 248, 249, 262, paragraph 2,
and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide,
other intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is
under twelve (12) years of age. The penalty for the
commission of acts punishable under Article 337, 339, 340
and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of
lasciviousness with the consent of the offended party,
corruption of minors, and white slave trade, respectively,
shall be one (1) degree higher than that imposed by law
when the victim is under twelve (12) years age.
The victim of the acts committed under this section shall be
entrusted to the care of the department of Social Welfare
and Development.
CHILDREN AS ZONES OF PEACE
Children are hereby declared as Zones of Peace. It shall be
the responsibility of the State and all other sectors
concerned to resolve armed conflicts in order to promote the
goal of children as zones of peace. To attain this objective,
the following policies shall be observed.
(a) Children shall not be the object of attack and shall be
entitled to special respect. They shall be protected from any
form of threat, assault, torture or other cruel, inhumane or
degrading treatment;
(b) Children shall not be recruited to become members of the
Armed Forces of the Philippines of its civilian units or other
armed groups, nor be allowed to take part in the fighting, or
used as guides, couriers, or spies;
(c) Delivery of basic social services such as education,
primary health and emergency relief services shall be kept
unhampered;
(d) The safety and protection of those who provide services
including those involved in fact-finding missions from both
government and non-government institutions shall be
ensured. They shall not be subjected to undue harassment
in the performance of their work;
(e) Public infrastructure such as schools, hospitals and rural
health units shall not be utilized for military purposes such as
command posts, barracks, detachments, and supply depots;
and
(f) All appropriate steps shall be taken to facilitate the
reunion of families temporarily separated due to armed
conflict.
RIGHTS OF CHILDREN ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT
Any child who has been arrested for reasons related to
armed conflict, either as combatant, courier, guide or spy is
entitled to the following units;
(a) Separate detention from adults except where families are
accommodated as family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the parents or
guardians of the child; and
(d) Release of the child on recognizance within twenty-four
(24) hours to the custody of the Department of Social
Welfare and Development or any responsible member of the
community as determined by the court.
If after hearing the evidence in the proper proceedings the
court should find that the aforesaid child committed the acts
charged against him, the court shall determine the
imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of
conviction, the court shall suspend all further proceedings
and shall commit such child to the custody or care of the
Department of Social Welfare and Development or to any
training institution operated by the Government, or duly-
licensed agencies or any other responsible person, until he
has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the
reports and recommendations of the Department of Social
Welfare and Development or the agency or responsible
individual under whose care he has been committed.
The aforesaid child shall subject to visitation and supervision
Development or any duly-licensed agency such other officer
as the court may designate subject to such conditions as it
may prescribe.
The aforesaid child whose sentence is suspended can
appeal from the order of the court in the same manner as
appeals in criminal cases.
CONFIDENTIALITY
At the instance of the offended party, his name may be
withheld from the public until the court acquires jurisdiction
over the case.
It shall be unlawful for any editor, publisher, and reporter or
columnist in case of printed materials, announcer or
producer in case of television and radio broadcasting,
producer and director of the film in case of the movie
industry, to cause undue and sensationalized publicity of any
case of violation of this Act which results in the moral
degradation and suffering of the offended party.
PEDOPHILIA IS NOT INSANITY
When accused-appellant was committed to the National
Center for Mental Health, he was not diagnosed as insane
but was suffering from pedophilia. Thus, there is no doubt in
our mind that he was sane during his two-year confinement
in the center, pedophilia being dissimilar to insanity.
RA 7658
EMPLOYMENT OF CHILDREN
Children below fifteen (15) years of age shall not be
employed except:
1) When a child works directly under the sole responsibility
of his parents or legal guardian and where only members of
the employer's family are employed: Provided, however,
That his employment neither endangers his life, safety,
health and morals, nor impairs his normal development;
Provided, further, That the parent or legal guardian shall
provide the said minor child with the prescribed primary
and/or secondary education; or
2) Where a child's employment or participation in public
entertainment or information through cinema, theater, radio
or television is essential: Provided, The employment contract
is concluded by the child's parents or legal guardian, with the
express agreement of the child concerned, if possible, and
the approval of the Department of Labor and Employment:
and Provided, That the following requirements in all
instances are strictly complied with:
(a) The employer shall ensure the protection, health, safety,
morals and normal development of the child;
(b) The employer shall institute measures to prevent the
child's exploitation or discrimination taking into account the
system and level of remuneration, and the duration and
arrangement of working time; and
(c) The employer shall formulate and implement, subject to
the approval and supervision of competent authorities, a
continuing program for training and skills acquisition of the
requirements.
In the above exceptional cases where any such child may be
employed, the employer shall first secure, before engaging
such child, a work permit from the Department of Labor and
Employment which shall ensure observance of the child.
The Department of Labor and Employment shall promulgate
rules and regulations necessary for the effective
implementation of this Section."
IF MINOR DO NOT APPLY FOR
SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192
The record, unfortunately for accused-appellant Buena, does
not show that he filed with the trial court an application for
suspension of sentence so as to put into operation the
benevolent provisions of Presidential Decree No. 603. The
Court, therefore, has no other choice but to deny him this
privilege.
DISCHARGE; REPORT AND ECOMMENDATION
OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW
It is not the responsibility of this Court to order the release of
accused Ricky Galit without the benefit of a review of the
recommendation of the Department of Social Welfare by the
trial court. Art 196 of PD 603 provides: "Art. 196. Dismissal
of the case. — If it is shown to the satisfaction of the court
that the youthful offender whose sentence has been
suspended, has behaved properly and has shown his
capability to be a useful member of the community, even
before reaching the age of majority, upon recommendation
of the Department of Social Welfare, it shall dismiss the case
and order his final discharge." It is therefore clear that in
cases where the DSWD recommends the discharge of a
youthful offender, it is the trial court before whom the report
and recommendation is subject to judicial review.
Recommendation alone is not sufficient to warrant the
release of a youthful offender. In reviewing the DSWD's
recommendation, the trial judge must not base his judgment
on mere conclusions but should seek out concrete, material
and relevant facts to confirm that the youthful offender has
indeed been reformed and is ready to re-enter society as a
productive and law-abiding citizen. Caution, however, is
given to the trial court. To begin with, the youthful offender is
not to be tried anew for the same act for which he was
charged. The inquiry is not a criminal prosecution but is
rather limited to the determination of the offender's proper
education and rehabilitation during his commitment in the
Training Center and his moral and social fitness to re-join the
community. (Pp. V. Galit; GR 97432, 3/1/94)
SUSPENSION OF SENTENCE NOT APPLICABLE
IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH
As aforesaid, however, accused Ricky Galit and Raquel
Tagalog did not appeal from the judgment of the trial court.
Neither did the People question the suspension of their
sentence. The benefits of suspension of sentence are not
available where the youthful offender has been convicted of
an offense punishable by life imprisonment or death. The
last paragraph of section 2 of Presidential Decree No. 1210,
which amended certain provisions of P.D. 603, provides:
"The benefits of this article shall not apply to a youthful
offender who has once enjoyed suspension of sentence
under its provisions or to one who is convicted of an offense
punishable by death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals." (Par. 4,
Sec. 2, P.D. No. 1179, as amended by P.D. No. 1210;
emphasis supplied)
(Pp. v. Galit, supra.)
YOUTHFUL OFFENDER, TO BE CRIMINALLY LIABLE,
ACCUSED, A 13 YEAR OLD, MUST ACT WITH
DISCERNMENT
There is a further obstacle that stands in the way of
Estorque's conviction. While it has been proven that he was
only thirteen years old at the time of the incident, there are
no allegations in both informations that Estorque had acted
with discernment. And even if we are to consider the
allegations that he had committed the imputed acts "with
intent to kill" as sufficient compliance — as we have in the
past — he would still not be held liable as no proof was
offered during trial that he had so acted with discernment.
Accordingly, even if he was indeed a co-conspirator or an
accessory, he would still be exempt from criminal liability.
(Pp. V. Cordova; GR 83373-74, 7/5/93)
EVERY ACCUSED IS PRESUMED TO BE SANE AT THE
TIME OF COMMISSION OF THE CRIME
The law presumes all acts to be voluntary, and that it is
improper to presume that acts were done unconsciously.
The quantum of evidence required to overthrow the
presumption of sanity is proof beyond reasonable doubt.
Since insanity is in the nature of a confession and
avoidance, it must be proven beyond reasonable doubt.
Moreover, an accused is presumed to have been sane at the
time of the commission of the crime in the absence of
positive evidence to show that he had lost his reason or was
demented prior to or during the perpetration of the crime.
(Pp. v. Cordova, supra.)
FAILURE OF DEFENSE TO ASK FOR
SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY
Appellant Eduardo Cordova did not even ask for the
suspension of his arraignment on the ground that he was
suffering from insanity. Paragraph (a), Section 12, Rule 116
of the Revised Rules of Court provides that the arraignment
of an accused who appears to be suffering from an unsound
mental condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently
thereto, shall be suspended. In the case at bar, Eduardo
Cordova even took the witness stand to testify. (Pp. V.
Cordova, supra.)
CHILD & YOUTH WELFARE CODE,
NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE
The Child and Youth Welfare Code does not apply to those
convicted of offenses punishable by death, or reclusion
perpetua (Presidential Decree No. 603, as amended by
Presidential Decree N. 603, as amended by Presidential
Decree Nos. 1179 and 1210). The fact is Bolioc is now
twenty-three years old. He is not entitled to a suspended
sentence. He is entitled to a two-degree reduction of the
penalty (Art. 68, RPC). (Pp. V. Mendez; GR L-48131;
5/30/83)
SUSPENSION OF SENTENCE; CANNOT
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER
21 YEARS OLD AT THE
TIME OF PROMULGATION OF HIS SENTENCE
It is true that Venancio Villanueva was a youthful offender as
defined by Art. 189 because he was under 21 years of age
when he committed the offense on February 22, 1974.
However, when he was sentenced on July 30, 1975, he was
over 21 years old and under the terms of Art. 192 (as well as
Art. 197) he was no longer entitled to suspension of
sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)
WHEN PRESIDENTIAL DECREE NO. 603
MAY BE GIVEN RETROACTIVE EFFECT
Where P.D. 603 is more favorable to the accused in that the
sentence against them may he suspended, said Decree may
be given retroactive effect, not only with the end in view of
giving force and effect to the laudable policies for which the
P.D. otherwise known as the Child and Youth Welfare Code
was promulgated, hut also in the light of the provisions of
Article 22 of the Revised Penal Code. (People v. Garcia; GR
L-45280-81, 6/11/81)
PRESIDENTIAL DECREE NO. 603;
ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY
The trial court has two alternative courses of action with
respect to a youthful offender whose sentence it had
suspended and who is returned to the court upon his
reaching the age of majority. These are: (1) to dismiss the
case and order the final discharge of said offender; or (2) to
pronounce the judgment of conviction. In plain and simple
language, it is either dismissal or sentence. (Pp. V. Garcia;
supra.)
CIVIL LIABILITY OF YOUTHFUL
OFFENDER, DEFINED
The civil liability for damages referred to is apparently that
obligation created by or arising from the crime, otherwise
known as ex delicto the imposition of which is mandated by
Articles 100, 104(3), 107 and 345(1) of the Revised Penal
Code, (People vs. Peña, L-36434, December 20, 1977, 80
SCRA 589, 599) and is based upon a finding of the guilt of
the accused. (Pp. V. Garcia, supra.)
REPUBLIC ACT NO. 8484
(The Access Device Regulation)
An act regulating the issuance and use of access devices,
prohibiting fraudulent acts committed relative thereto,
providing penalties and for other purposes.
The recent advances in modern technology have led to the
extensive use of certain devices in commercial transactions,
prompting the State to regulate the same. hence, on
February 3, 1998, Congress enacted Republic Act Number
8484, otherwise known as The Access Devices Regulation
Act of 1998.
Termed as "access devices" by RA No. 8484, any card,
plate, code, account number, electronic serial number,
personal identification number, or other telecommunication
service, equipment, or instrumental identifier, or other means
of account access t hat can be used to obtain money, good,
services or any other thing of value or to initiate transfer of
funds (other than transfer originated solely by paper
instrument) is now subject to regulation. The issuance and
use of access devices are ought to regulate in order to
protect the rights and define the liabilities of parties in
commercial transactions involving them.
Essentially, the law imposes duties both to the access
device issuer and holder, and penalize certain acts deemed
unlawful for being detrimental to either the issuer or holder,
or both.
The law mandates an access device issuer, or "card issuer,"
to disclose either in writing or orally in any application or
solicitation to open a credit card account the following: 1)
annual percentage rate; 2) annual and other fees; 3) and
balance calculation method; 4) cash advance fee; and 5))
over the limit fee.
Moreover, the computation used in order to arrive at such
charges and fees required, to the extent practicable, to be
explained in detail and a clear illustration of the manner by
which it is made to apply is also necessary.
Nonetheless, there are certain exceptions for the above
requirement of disclosure not to apply. This is when
application or solicitation is made through telephone,
provided that the issuer does not impose any annual fee,
and fee in connection with telephone solicitation unless the
customer signifies acceptance by using the card, and that a
clear disclosure of the information enumerated in the
preceding paragraph is made in writing within thirty (30) after
the consumer requests for the card, but in no event later
than the date of the delivery of the card, and that the
consumer is not obligated to accept the card or account and
the consumer will not be obligated to pay any fees or
charges disclosed unless the consumer accepts the card or
account by using the card.
Failure on the part of the issuer to fulfill the above
requirements will result in the suspension or cancellation of
its authority to issue credit cards, after due notice and
hearing, by the Banko Sentral ng Pilipinas, the Securities
and Exchange Commission and such other government
agencies.
In sum therefore, the above omission is made punishable if
the following elements occur. One, there is an application or
solicitation. Second, such application or solicitation should
include the information required by law. and third, failure on
the part of the issuer to disclose such information.
In one case (Ermitano v. GR No. 127246, April 21, 1999),
the Supreme Court had the occasion to rule on the validity of
contracts involving credit cards. The credit cards holder
contended that the credit card company should be blamed
for the charges the same being unwarranted by the contract.
As stipulated, once a lost card has been reported, purchases
made thereafter should not accrue on the part of the holder.
The Court said notwithstanding the fact that the contract of
the parties is a contract of adhesion the same is valid.
However, if the same should include terms difficult to
interpret as to hide the true intent to the detriment of the
holder, holding it void requires no hesitation. Thus, contracts
which provide for ambiguous terms of payment, imposition of
charges and fees may be held void invoking the principle of
the contract of adhesion.
Clearly, in this case decided in 1999, the Court was
concerned about an access device issuer's vulnerability to
abuse the provisions of the contract. It is quite surprising,
however, that the Court did not make reference to RA No.
8484 to think that it was already in effect when the resolution
was promulgated.
Nonetheless, in American Express International Co., Inc. vs.
IAC (GR NO. 70766, November 9, 1988) Supreme Court
turned down the argument of private respondent grounded
on the adhesion principle saying indeed, in a contract of
adhesion the maker of the contract has all the advantages,
however, the one to whom it is offered has the absolute
prerogative to accept or deny the same.
On the other hand, an access device holder may be
penalized when he or she fraudulently applied for such
device. An access device fraudulently applied for means any
access device that was applied for or issued on account of
the use of falsified document, false information, fictitious
identities and addresses, or any form of false pretense or
misrepresentation. Thus, the use, trafficking in, possession,
and inducing, enticing or in any manner allowing one to use
access device fraudulently applied for are considered
unlawful.
The element of fraud is indispensable for this provision of RA
8484 to apply. It is a condition sine qua non before one may
be charged with the defined offense.
Thus, the law provides for presumptions of Intent to defraud
on the basis of mere possession, control or custody of: a) an
access device without lawful authority; b) a counterfeit
access device; any device making or altering equipment; c)
an access device or medium on which an access device is
written not in the ordinary course of the possessor's
business; or d) any genuine access device, not in the name
of the possessor.
A card holder who abandons or surreptitiously leaves the
place of employment, business or residence stated in his
application for credit card, without informing the credit card
company of the place where he could actually be found, if at
the time of such abandonment or surreptitious leaving, the
outstanding and unpaid balance is past due for at least
ninety (90) days and is more than ten thousand pesos
(P10,000.00), shall be prima facie presumed to have used
his credit card with intent to defraud.
At first glance, the above presumptions, when applied in real
cases, may suffer from constitutional infirmities. The
constitution provides that a person shall not be held to
answer to a criminal offense without due process of law. it
may be argued that such presumptions are rebuttable ones.
However, the danger lies in the shifting of the burden of
proof from the prosecution to the defense.
The law provides for sixteen (16) prohibited acts which refer
to the production, use, possession of or trafficking in
unauthorized or counterfeit access devices. It also includes
acts deemed fraudulent that increase the amount involved in
commercial transactions using access devices. Obtaining
money or anything of value through the use of an access
device with intent to defraud or gain, and fleeing thereafter.
In the final analysis, the law basically seeks to address the
issue of fraud in the issuance and use of access devices,
especially credit cards. Fraud may be committed by the
issuer by making false or vague information in the
application or solicitation to open credit card accounts. The
applicant or holder, on the other hand, fraudulently
misrepresents himself by giving wrong identity, false
profession or employment, or bloated income.
Take the case for instance of Citibank v. Gatchalian (GR No.
111222, January 18, 1995) which shows how credit card
applicants through false representation were able to amass
in simple terms P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific
Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit
cards with Citibank using different names other than their
real names. The Citibank approved the applications and the
credit cards were delivered to them for use. However, this
case involves an illegal dismissal case where a Citibank
employee was found guilty of gross negligence for effecting
the delivery of the credit cards. Her dismissal was affirmed in
this case.
Insofar as access device issuers are concerned, Eermitano
v. C.A., may be a case in point. The credit card holder lost
his credit card which he immediately reported to the card
issuer. The contract stipulated that in case of lost, the same
should be reported immediately, otherwise purchases made
shall be charged to the holder. In this case, despite the
prompt reporting of the holder, the issuer still charged the
purchases against the former. The Court in this case held
the issuer in breach of the contract.
The penalties provided for by RA 8484 are imprisonment
and fine. Imprisonment is from six (6) years to ten (10) years
and fine ranges from ten thousand pesos (10,000.00) or
twice the value of the offense, whichever is higher.
The penalties are increased in case the offender has a
similar previous conviction, meaning if he was previously
found violating RA 8484. In which case, the accused shall
suffer imprisonment of not less than twelve (12) years and
not more than twenty (20) years.
The two other stages of felony, as defined by the Revised
Penal Code is also made punishable. Thus, attempted and
frustrated are meted out with the penalties of imprisonment
and fine albeit only in fractions of the above penalties.
R.A. 8484 may seem to favor the issuer. A credit card
company may only be meted out the penalty of cancellation
or suspension, which may be considered as mere
administrative sanctions. In fact, it is not the courts which
impose such sanctions but administrative agencies such as
the Bangko Sentral and the Securities and Exchange
Commission.
On the other hand, a holder or mere possessor of a
counterfeit fraudulently applied for access device may be
convicted and be made to suffer imprisonment and fine.
DANGEROUS DRUG ACT OF 2002
(Republic Acts No. 9165)
DEFINITIONS OF TERMS
Chemical Diversion – the sale, distribution, supply or
transport of legitimately imported, in-transit, manufactured or
procured controlled precursors and essential chemicals, in
diluted, mixtures or in concentrated form, to any person or
entity engaged in the manufacture of any dangerous drug,
and shall include packaging, repackaging, labeling,
relabeling or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits,
misdeclaration, use of front companies or mail fraud.
Controlled Delivery – The investigative technique of allowing
an unlawful or suspect consignment of any dangerous drug
and/or controlled precursor and essential chemical,
equipment or paraphernalia, or property believed to be
derived directly or indirectly from any offense, to pass into,
through or out of the country under the supervision of any
unauthorized officer, with a view to gathering evidence to
identify any person involved in any dangerous drug related
offense, or to facilitate prosecution of that offense.
Controlled Precursor and Essential Chemicals – Includes
those listed in Tables I and II of the 1988 UN Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances as enumerated in the attached annex, which is
an integral part of this Act.
Drug Dependence – As based on the World Health
Organization definition, it is a cluster of physiological,
behavioral and cognitive phenomena of variable intensity, in
which the use of psychoactive drug takes on a high priority
thereby involving, among others, a strong desire or a sense
of compulsion to take the substance and the difficulties in
controlling substance-taking behavior in terms of its onset,
termination, or levels of use.
Drug Syndicate – Any organized group of two (2) or more
persons forming or joining together with the intention of
committing any offense prescribed under this Act.
Illegal Trafficking – The illegal cultivation, culture, delivery,
administration, dispensation, manufacture, sale, trading,
transportation, distribution, importation, exportation, and
possession of any dangerous drug and/or controlled
precursor and essential chemical.
Protector/Coddler – Any person who knowingly and willfully
consents to the unlawful acts provided for in this Act and
uses his/her influence, power or position in shielding,
harboring, screening or facilitating the escape of any person
he/she knows, or has reasonable ground to believe on or
suspects, has violated the provision of this Act in order to
prevent the arrest, prosecution and conviction of the violator.
Pusher – Any person who sells, trades, administers,
dispenses, delivers, or gives away to another, on any terms
whatsoever, or distributes, dispatches in transit or transports
dangerous drugs or who acts as a broker in any of such
transaction, in violation of this Act.
Planting of evidence – the willful act by any person of
maliciously and surreptitiously inserting, placing, adding or
attaching directly or indirectly, through any overt or covert
act whatever quantity of any dangerous drug and/or
controlled precursor and essential chemical in the person,
house, effects or in the immediate vicinity of an innocent
individual for the purpose of implicating, incriminating, or
imputing the commission of any violation of this Act.
What are the significant Provisions in R.A. 6425
that have been changed?
1. Under this Act there is no more distinction between
prohibited drug and regulated drugs and/or controlled
precursors and essential chemicals enumerated in Tables I
and II of the 1988 UN Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.
2. The penalties provided by R.A. 7659 was changed ,
adopting partially the penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable.
Before, only law enforcement agents.
4. the provisions of the Revised Penal Code have no
suppletory effect except for minors who may be sentenced to
reclusion perpatua.
What are the new kinds of drugs
that are included in R.A. 9165?
Methylenedioxymethamphetamine (MDMA) or commonly
known as ―Ecstasy‖, or its any other name which refers to
the drugs having such chemical composition, including any
of its isomers or derivatives in any form.
Paramethoxyamphetamine (PMA), Trimethoxyamphetamine
(TMA), lysergic acid diethylamine (LSD), gamma
hydroxybutyrate (GHB) and those similarly designed or
newly introduced drugs and their derivatives, without having
any therapeutic value or if the quantity possessed is far
beyond therapeutic requirement, as determined and
promulgated by the Board in accordance to Section 93, Art
XI of this Act of R.A. 9165.
ACTS PUNISHABLE UNDER THE LAW
1.) Importation of any dangerous drug, regardless of the
quantity and purity involved, including any and all species of
opium poppy or any part thereof or substances derived
thereform even for floral, decorative and culinary purposes.
2.) Importation of any controlled precursor and essential
chemical.
3.) Importation of any dangerous drug and/or controlled
precursor and essential chemical through the use of a
diplomatic passport, diplomatic facilities or any other means
involving his/her official status intended to facilitate the
unlawful entry.
4.) Organizing, managing, or acting as a ―financier‖ of any of
the illegal activities penalized under Section 4 of the Law.
5.) Acting as ―protector/coddler‖ of anyone who violates
Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution
and transportation of dangerous drugs, regardless of
quantity and purity involved, or acting as a broker in any of
such transactions.
7.) Sale, trading, administration, dispensation, distribution
and transportation of any controlled precursor and essential
chemical, or acting as a broker in such transaction.
8.) Use by drug pushers of minors or mentally incapacitated
individuals as runners, couriers and messengers, or in any
other capacity directly connected to the trade of dangerous
drugs and/or controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the
provision of Sec. 5.
10.) Maintenance of a Den, Dive or Resort where any
dangerous drug is used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any
controlled precursors and essential chemical is used or sold
in any form.
12.) Acting as ―protector/coddler‖ of a maintainer of a Den,
Dive, or Resort
13.) Employees and Visitors of a Den, Drive, or Resort
14.) Manufacture of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals
15.) Acting as a protector or coddler of any violator of Sec. 8
16.) Illegal Chemical Diversion of Controlled Precursor and
Essential Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument,
Apparatus, and other Paraphernalia for Dangerous Drugs
and/or Controlled Precursors and Essential Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and
Other Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social
Gathering or Meetings.
21.) Possession of Equipment, Instrument, Apparatus and
Other Paraphernalia for Dangerous Drugs during Parties,
Social Gathering or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous
Drugs or are Sources thereof.
24.) Maintenance and keeping of Original Records of
Transaction on Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals
25. Unnecessary Prescription of Dangerous Drugs
26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful
acts: (a) Importation of any dangerous drugs and/or
controlled precursor and essential chemical; (b) Sale,
trading, administration, dispensation, delivery, distribution,
and transportation of any dangerous drug and/or controlled
precursor and essential chemical; (c) Maintenance of a den,
dive, or resort where dangerous drugs is used in any form;
(d) Manufacture of any dangerous drug and/or controlled
precursor and essential chemical; and (e) Cultivation or
culture of plants which are sources of dangerous drugs.
CRIMINAL LIABILITY OF ALIENS, OFFICERS
OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR
OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act
committed, any alien who violates such provisions of the
Law, after service of sentences, shall be deported
immediately without further proceedings, unless the penalty
is death.
2. In case the violation of the Law is committed by a
partnership, corporation, association or any juridical entity,
the partner, president, director, manager, trustee, estate
administrator, or officer who consents to or knowingly
tolerates such violation shall be held criminally liable as co-
principal.
3. The penalty provided for the offense under the Law shall
be imposed upon the partner, president, director, manager,
trustee, estate administrator, or officer who knowingly
authorizes, tolerates, or consents to the use of a vehicle,
vessel, aircraft, equipment or other facility as an instrument
in the importation, sale, trading, administration, dispensation,
delivery, distribution, transportation, or manufacture of
dangerous drugs, or chemical diversion, if such vehicle,
aircraft, equipment or other instrument is owned by or under
the control or supervision of the partnership, corporation,
association or juridical entity to which they are affiliated.
CRIMINAL LIABLITY OF PUBLIC OFFICERS OR
EMPLOYEES
1. Any public officer or employee who (1) misappropriates,
(2) misapplies or (3) fails to account for confiscated, seized
or surrendered drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment
including the proceeds or properties obtained from the
unlawful acts punished under the Law shall be penalized
with life imprisonment to death and a fine ranging
fromP500,000.00 to P10,000,000.00 and with perpetual
disqualification from any public office (Sec.27).
2. Any government official or employee found guilty of the
unlawful acts punished under the Law shall be imposed the
maximum penalties provided for the offense and shall be
absolutely perpetually disqualified from holding any public
office. (Sec. 28).
CRIMINAL LIABILITY OF ELECTIVE LOCAL OR
NATIONAL OFFICIALS WHO BENEFITS FROM DRUG
TRAFFICKING – whether or not he know that it came from
drugs, but the one who gave must be convicted first by final
judgment.
1. Any elective local or national official found to have (1)
benefited from the proceeds of the trafficking of dangerous
drugs as prescribed in the Law, or has (2) received any
financial or material contributions or donations from natural
or juridical persons found guilty of trafficking dangerous drug
as prescribed in the law, shall be removed from office and
perpetually disqualified from holding any elective or
appointive positions in the government, its divisions,
subdivisions, and intermediaries, including government-
owned or controlled corporations (\sec.27)
CRIMINALLIABILITY OF PRIVATE INDIVIDUAL
2. Any person found guilty of ―planting‖ any dangerous drug
and/or controlled precursor and essential chemical,
regardless of quantity and purity, shall be punished with
death. (Sec. 29).
3. Any person violating any regulation issued by the
Dangerous Drug Board shall be punished with imprisonment
ranging from 6 months and 1 day to 4 years and a fine
ranging from P10,000.00 to P50,000.00 in addition to the
administrative sanction which may be imposed by the Board
(Sec. 32)
CRIMINAL LIABILITY FOR
PLANTING OF EVIDENCE
Any person who is found guilty of planting nay dangerous
drug and/ or controlled precursor and essential chemicals,
regardless of quantity and purity, shall suffer the penalty of
death. (Sec. 29). Previosly, only law enforcement agent
maybe held liable (R.A. 7659).
ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165 ) shall be
disqualified to exercise his/her civil rights such as, but not
limited to, the right of parental authority or guardianship,
either as to the person or property of any ward, the rights to
dispose of such property by any act or any conveyance inter
vivos, and political rights such as but not limited to, the right
to vote and be voted for. Such rights shall also be
suspended during the pendency of an appeal from such
conviction (Sec.35)
AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
1.) If the importation or bringing into the Philippines of any
dangerous drugs and/or controlled precursor and essential
chemicals was done through the use of diplomatic passport,
diplomatic facilities or any other means involving his/her
official status intended to facilitate the unlawful entry of the
same
2.) The sale trading, administration, dispensation, delivery,
distribution or transportation of any dangerous drug and/or
controlled precursor and essential chemical transpired within
one hundred (100) meters from the school
3.) The drug pusher use minors or mentally incapacitated
individuals as runners, couriers and messenger, or in any
other capacity directly connected to the dangerous drug
and/or controlled precursor and essential chemical trade.
4.) The victim of the offense is a minor or mentally
incapacitated individual, or should a dangerous drug and/or
controlled precursor and essential chemicals involved `in any
offense be the proximate cause of death of a victim.
5.) In case the clandestine laboratory is undertaken or
established under the following circumstances:
a.) Any phase of the manufacturing process was conducted
in the presence or with the help of minor/s
b.) Any phase of manufacturing process was established or
undertaken within one hundred (100) meters of a residential,
business, church or school premises.
c.) Any clandestine laboratory was secured or protected with
booby traps.
d.) Any clandestine laboratory was concealed with legitimate
business operations.
e.) Any employment of a practitioner, chemical engineer,
public official or foreigner.
6.) In case the person uses a minor or a mentally
incapacitated individual to deliver equipment, instrument,
apparatus and other paraphernalia use for dangerous drugs.
7.) Any person found possessing any dangerous drug during
a party, or a social gathering or meeting, or in the proximate
company of at least two (2) person.
8.) Possession or having under his/her control any
equipment, instrument, apparatus and other paraphernalia fit
of intended for smoking, consuming, administering, injecting,
ingesting or introducing any dangerous drug into the body,
during parties, social gatherings or meetings, or in the
proximate company of at least two (2) person
WHAT ARE THE PRIVILEGE NOT
AVAILABLE TO VIOLATOR OF THIS ACT?
1.) 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.
2.) 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 of P.D. No. 968, as amended, except minors who are
first-time offenders.
Note:- Pendency of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.
IMMUNITY FROM PROSECUTION
AND PUNISHMENT
Immunity from Prosecution and punishment –
Notwithstanding the provision of Section 17, Rule 119 of the
Revised Rules of Criminal Procedure and the provisions of
Republic Act No. 6981 or the Witness Protection, Security
and Benefits Act of 1991, any person who has violated
Sections 7,11, 12, 14, 15 and 19, Article II of this Act, who
voluntarily gives information about any violation of Section 4,
5, 6, 8, 13 and 16, Article II of this Act as well as any
violation of the offenses mentioned if committed by drug
syndicate, or of any information leading to the whereabouts,
identities and arrest of all or any of the members thereof;
and who willingly testifies against such persons as described
above, shall be exempted from the prosecution or
punishment for the offense with reference to which his/her
information of testimony in bar of such prosecution;
Provided, that the following condition concur:
1.) The information and testimony are necessary for the
conviction of the person described above;
2.) Such information are not yet in the possession of the
State;
3.) Such information and testimony can be corroborated on
its material points;
4.) The informant or witness has not been previously
convicted of a crime involving moral turpitude, except when
there is no other direct evidence available for the State other
than the information and testimony of said informant or
witness; and
5.) The informant or witness shall strictly and faithfully
comply without delay, any condition or undertaking, reduced
into writing, lawfully imposed by the State as further
consideration for the grant of immunity from prosecution and
punishment.
Provided, further, That this immunity may be enjoyed by
such informant or witness who does not appear to be most
guilty for the offense with reference to which his/her
information or testimony were given. Provide, finally, that
there is no direct evidence available for the State except for
the information and testimony of the said informant or
witness.
TERMINATION OF THE
GRANT OF IMMUNITY
The immunity above-granted shall not attach should it turn
out subsequently that the information and/or testimony is
false, malicious, or made only for the purpose of harassing,
molesting or in any way prejudicing the persons described in
Section 33 against whom such information or testimony is
directed. In such case, the informant or witness shall be
subject to prosecution and the enjoyment of all rights and
benefits previously accorded him under the Law or any other
law, decree or order shall be deemed terminated.
In case the informant or witness under the Law fails or
refuse to testify without just cause, and when lawfully obliges
to do so, or should he/she violate any condition
accompanying such immunity as provided above, his/her
immunity shall be removed and he/she shall be likewise be
subjected to contempt and/or criminal prosecution, as the
case may be and the enjoyment of all rights and benefits
previously accorded him under the Law or in any other law,
decree or order shall be deemed terminated. (Sec 34.)
In case the informant or witness referred to under the Law
falls under the applicability of Section 34, such individual
cannot avail of the provision under Article VIII of the Law.
PERSON/S WHO ARE SUBJECT
TO THE MANDATORY DRUG TESTING
a.) Applicants for driver’s license – no driver’s license shall
be issued or renewed to nay person unless he/she presents
a certification that he/she has undergone a mandatory drug
test and indicating thereon that he/she is free from the use of
dangerous drugs.
b.) Applicants for firearm’s license and permit to carry
firearms outside of residence. – All applicants for firearms
license and permit to carry firearms outside of residence
shall undergo a mandatory drug test to ensure that they are
free from the use of dangerous drugs; Provided, That all
persons who by the nature of their profession carry firearms
shall undergo drug testing;
c.) Officers and employees of public and private offices. –
Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to undergo
a random drug test as contained in the company’s work
unless and regulation, which shall be borne by the employer,
for purposes of reducing the risk in the workplace. Any
officer or employee found positive for the sue of dangerous
drug shall be dealt with administratively which shall be a
ground for suspension or termination, subject to the
provision Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law.
d.) Officers and members of the military, police and other law
enforcement agencies. – Officers and members of the
military, police and other law enforcement agencies shall
undergo an annual mandatory drug test.
e.) All persons charged before the prosecutor’s office with a
criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1) day
shall have undergo a mandatory drug test.
f.) All candidates for public office whether appointed or
elected both in the national or local government shall
undergo a mandatory drug test.
CONFIDENTIALITY OF RECORDS UNDER
THE COMPULSARY SUBMISSION PROGRAM
The records of a drug dependent who was rehabilitated and
discharged from the Center under the compulsory
submission program, or who was charged for violation of
Section 15 of this Act, shall be covered by Section 60 of this
Act (R.A. 9165). However, the record of a drug dependant
who was not rehabilitated, or who escaped but did not
surrender himself/herself within the prescribed period, shall
be forwarded to the court and their use shall be determined
by the court, taking into consideration public interest and the
welfare of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS
OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR
OFFENDER
If the accused first time minor offender under suspended
sentence complies with the applicable rules and regulation of
the Board, including confinement in a Center, the court, upon
a favorable recommendation of the Board for a final
discharge of the accused, shall discharge the accused and
dismiss all proceedings.
Upon the dismissal of the proceedings against the accused,
the court shall enter an order to expunge all official records,
other than the confidential record to be retained by the DOJ
relating to the case. Such an order, which shall be kept
confidential, shall restore the accused to his/her status prior
to the case. He/she shall not be held thereafter to be guilty of
perjury or of concealment or misrepresentation by reason of
his/her failure to acknowledge the case or recite any fact
related therto in response to any inquiry madeof him for any
purpose (Sec. 67)
THE DANGEROUS DRUGS BOARD AND
PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
The Dangerous Drug Board shall be the policy-making and
strategy formulating body in the planning and formulation of
policies and programs on drug prevention and control. (Sec.
77)
B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board
was composed of seven ex officio members as follows: (a)
The Minister of Health or his representative; (b) the Minister
of Justice or his representative; (c) The Minister of National
Defense or his representative; (d) The Minister of Education
and Culture or his representative; (e) The Minister of
Finance or his representative; (f) The Minister of Social
Service and Development or his representative; and (g) The
Minister of Local Government or his representative (Sec. 35
Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board
and the Director of the National Bureau of Investigation shall
be the permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the
Dangerous Drugs Board was expanded to seventeen (17)
members, three (3) of which are permanent members,
twelve (12) shall be in ex officio capacity, and the remaining
two (2) shall be regular members.
The three (3) permanent members, who shall possess At
least seven-year training andexperience in the field of
dangerous drugs andin any of the following fields: in law,
medicine, criminology, psychology or social work, shall be
appointed by the President of the Philippines. The President
shall designate a Chairman, who shall have the rank of a
secretary from among the three (3) permanent members
who shall serve for six (6) years. Of the two (2) other
members, who shall have the rank of undersecretary, one
(1) shall serve for four (4) and the other for two (2) years.
Thereafter, the person appointed to succeed such members
shall hold office for a term of six (6) years and until their
successors shall have been duly appointed and qualified.
The other twelve (12) members who shall be ex officio
members of the Board are the following: (1) Secretary of the
Department of Justice or his/her representative; (2)
Secretary of the Department of Health or his/her
representative; (3) Secretary of the Department of National
Defense or his/her representative; (4) Secretary of the
Department of Finance or his/her representative; (5)
Secretary of the Department of Labor and Employment or
his/her representative; (6) Secretary of the Department of
Interior and Local Government or his/her representative; (7)
Secretary of the Department of Social Welfare and
Development or his/her representative; (8) Secretary of the
Department of Foreign Affairs or his/her representative; (9)
Secretary of the Department of Education or his/her
representative; (10) Chairman of the Commission of Higher
Education or his/her representative; (11) Chairman of the
National Youth Commission; and (12) Director General of
the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may
designate their duly authorized and permanent
representatives whose rank shall in no case be lower than
undersecretary.
The two (2) regular members shall be as follows: (a) The
President of the Integrated Bar of the Philippines; and (b)
The chairman or president of a non- chairman or president of
a non- chairman or president of a non-government
organization involved in dangerous drug campaign to be
appointed by the President of the Philippines.
The Philippine Drug Enforcement Agency (PDEA)
A. Functions
Carry out the provision of the Dangerous Drug act of 2002.
The Agency shall served as the implementing arm of the
Dangerous Drug Board, and shall be responsible for the
efficient and effective law enforcement of all provisions of
any dangerous drug and/or controlled precursor and
essential chemicals as provided for in the Law. (Sec. 82).
The existing Secretariat of the National Drug Law
Enforcement and Prevention Coordinating Center as created
by Executive Order No. 61 is hereby modified and absorbed
by the PDEA (Sec. 83, R.A. 9165)
B.) Powers and Duties
a.) Implement or cause the efficient and effective
implementation of the national drug control strategy
formulated by the Board thereby carrying out a national drug
campaign program which shall include drug law
enforcement, control and prevention campaign with the
assistance of concerned government agencies;
b.) Undertake the enforcement of the provision of article II of
this Act relative to the unlawful acts and penalties involving
any dangerous drug and/or controlled precursor and
essential chemical and investigate all violators and other
matters involved in the commission of any crime relative to
the use, abuse or trafficking of any dangerous drug and/or
controlled precursor and essential chemicals as provided for
in this Act and the provisions of Presidential Decree No.
1619;
c.) Administer oath, issue subpoena and subpoena duces
tecum relative to the conduct of investigation involving
violation of this Act;
d.) Arrest and apprehend as well as search all violators and
seize or confiscate, the effects or proceeds of the crime as
provided by law and take custody thereof, for this purpose
the prosecutors and enforcement agents are authorized to
possess firearms, in accordance with the existing laws;
e.) Take charge and have custody of all dangerous drugs
and/or controlled precursors and essential chemicals seized,
confiscated or surrendered to any national, provincial or local
law enforcement agency; if no longer needed for purposes of
evidence in court.
f.) Establish forensic laboratories in each PNP office in every
province and city in order to facilitate action on seized or
confiscated drugs; thereby hastening its destruction without
delay;
g.) Recommend to the DOJ the forfeiture of properties and
other assets of persons and/or corporations found to be
violating the provisions of this Act and in accordance with the
pertinent provisions of the Anti-Money Laundering Act of
2002.
h.) Prepare for prosecution or cause the filing of appropriate
criminal and civil cases for violation of laws on dangerous
drugs, controlled precursors and essential chemicals, and
other similar controlled substance, and assist, support and
coordinate with other government agencies for the proper
and effective prosecution of the same;
i.) Monitor and if warranted by circumstances, in coordination
with the Philippine Postal Office and the Bureau of Customs,
inspect all air cargo packages, parcels and mails in the
central post office, which appear from the packages and
address itself to be a possible importation of dangerous
drugs and/or controlled precursors and essential chemicals,
through on-line or cyber shops via the internet or
cyberspace;
j.) Conduct eradication programs to destroy wild or illegal
growth of plants from which dangerous drugs may be
extracted;
k.) Initiate and undertake the formation of a nationwide
organization which shall coordinate and supervise all
activities against drug abuse in every province, city,
municipality and barangay with active and direct participation
of all such local government units and non-governmental
organizations, including the citizenry, subject to the
provisions of previously formulated programs of action
against dangerous drugs;
l.) Establish and maintain a national drug intelligence system
in cooperation with law enforcement agencies, other
government agencies/offices and local government units that
will assist in its apprehension of big time drug lords;
m.) Established and maintain close coordination,
cooperation and linkages with international drug control and
administration agencies and organization and implement the
applicable provisions of international conventions and
agreement related to dangerous drugs to which the
Philippines is a signatory;
n.) Create and maintain an efficient special enforcement unit
to conduct an investigation, file charges and transmit
evidence to the proper court, wherein members of the said
unit shall possess suitable and adequate firearms for their
protection in connection with the performance of their duties;
Provided, That no previous special permit for such
possession shall be required;
o.) Require all government and private hospitals, clinics,
doctors, dentists and other practitioners to submit a report to
it, in coordination with the Board, about all dangerous drugs
and/or controlled precursors and essential chemicals which
they have attended to for data and information purposes;
p.) Coordinate with the Board for the facilitation of the
issuance of necessary guidelines, rules and regulations for
the proper implementation of this Act;
q.) Initiate and undertake a national campaign for drug
prevention and drug control programs, where it may enlist
the assistance of any department, bureau, office, agency, or
instrumentality of the government, including government-
owned and/or controlled corporations, in the anti-illegal
drugs drive, which may include the use of their respective
personnel, facilities, and resources for a more resolute
detection and investigation of drug-related crimes and
prosecution of the drug traffickers; and
r.) Submit an annual and periodic report to the Board as may
be required form time to time, and perform such other
functions as may be authorized or required under existing
laws and as directed by the President himself/herself or as
recommended by the congressional committees concerned.
Note:
There are however certain power and duties of the PDEA
enumerated under Section 84 of R.A. 9165 which seems to
overlap with the functions of prosecutors such as (1) the
preparation for prosecution or the causing of the filing of
appropriate criminal cases for violation of the Law; and (2)
filing of charges and transmittal of evidence to the proper
court and which have to be clarified in the Implementing
Rules and Regulation that may be issued by the DDB and
the PDEA later.
JURISDICTION OVER DRUG RELATED CASES
The Supreme Court shall designate special court from
among the existing Regional Trial Court in each judicial
region to exclusively try and hear cases involving violations
of this Act. The number of courts designated in each judicial
region shall be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively
handle cases involving violations of this Act.
PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES
The preliminary investigation of cases filed under this Act
shall be terminated within the period of thirty (30) days from
the date of their filing
When the preliminary investigation is conducted by a public
prosecutor and probable cause is established, the
corresponding information shall be filed in court within
twenty-four (24) hours from the termination of the
investigation. If the preliminary investigation is conducted by
a judge and a probable cause is found to exist, the
corresponding information shall be filed by the proper
prosecutor within forty-eight (48) hours from the date of
receipt of the records of the case. (Sec. 90)
The Department of Justice shall designate special
prosecutors to exclusively handle cases involving violations
of the Dangerous Drug Act of 2002 (Sec. 90)
Notwithstanding the provision of any law to the contrary, a
positive finding for the use of dangerous drugs shall be a
qualifying aggravating circumstance in the commission of a
crime by an offender, and the application of the penalty
provided for in the Revised Penal Code shall be applicable
(Sec. 25)
Confiscation and Forfeiture of the Proceeds or Instruments
of the Unlawful Act, including the Properties or Proceeds
Derived from the Illegal Trafficking of Dangerous Drugs
and/or Precursors and Essential Chemicals
Every penalty imposed for the unlawful importation, sale,
trading, administration, dispensation, delivery, distribution,
transportation or manufacture of any dangerous drug and/or
controlled precursor and essential chemical, the cultivation
or culture of plants which are sources of dangerous drugs,
and the possession of any equipment, instrument, apparatus
and other paraphernalia for dangerous drugs including other
laboratory equipment, shall carry with it the confiscation and
forfeiture, in favor of the government, of all the proceeds and
properties derived from unlawful act, including, but not
limited to, money and other assets obtained thereby, and the
instruments or tools with which the particular unlawful act
was committed, unless they are the property of a third
person not liable for the unlawful act, but those which are not
of lawful commerce shall be ordered destroyed without delay
pursuant to the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the appropriate
criminal case filed, the Court shall immediately schedule a
hearing for the confiscation and forfeiture of all the proceeds
of the offense and all the assets and properties of the
accused either owned or held by him or in the name of some
other persons if the same shall be found to be manifestly out
of proportion to his/her lawful income; Provided, however,
That if the forfeited property is a vehicle, the same shall be
auctioned off not later than five (5) days upon order of
confiscation or forfeiture.
During the pendency of the case in the Regional Trial Court,
no property, or income derived thereform, which may be
confiscated and forfeited, shall be disposed, alienated or
transferred and the same shall be in custodio legis and no
bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property
confiscated under this section, forfeiture, custody and
maintenance of the property pending disposition, as well as
the expense for publication and court costs. The proceeds in
excess of the above expenses shall accrue to the Board to
be used in its campaign against illegal drugs.
CUSTODY AND DISPOSITION OF CONFISCATED,
SEIZED
AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment that
was confiscated, seized and/or surrendered, for proper
disposition in the following manner:
1. The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ) and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof;
2. Within twenty-four (24) hours upon confiscation/seizure of
dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the
same shall be submitted to the PDEA Forensic Laboratory
for a qualitative examination;
3. A certification of the forensic laboratory examination
results, which shall be under oath by the forensic laboratory
examiner, shall be issued within twenty-four (24) hours after
the receipt of the subject items/s: Provided, that when the
volume of dangerous drugs, and controlled precursors and
essential chemicals does not allow the completion of testing
within the time frame, a partial laboratory examination report
shall be provisionally by the forensic laboratory: Provided,
however, that a final certification on the same within the next
twenty-four (24) hours;
4. After the filing of the criminal case, the Court shall within
seventy-two (72) hours, conduct an ocular inspection of the
confiscated, seized and/or surrendered dangerous drugs,
plant sources of dangerous drugs, and controlled precursor
and essential chemicals, including the
instruments/paraphernalia and/or laboratory equipment, and
through the PDEA shall within twenty-four (24) hours
thereafter proceed with the destruction or burning of the
same, in the presence of the accused or the person/s from
which such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the DOJ, civil society group and any elected public
official. The Board shall draw up the guidelines on the
manner of proper disposition and destruction of such item/s
which shall be borne by the offender; Provided, That those
item/s of lawful commerce, as determined by the Board,
shall be donated, used or recycled for legitimate purposes;
Provided, further, That a representative sample, duly
weighed and recorded, is retained;
5. The Board shall then issue a sworn statement as to the
fact of destruction or burning of the subject item/s together
with the representative sample/s shall be kept to a minimum
quantity as determined by the Board;
6. The alleged offender or his/her representative or counsel
shall be allowed to personally observe all of the above
proceedings and his/her presence shall not constitute an
admission of guilt. In case the said offender or accused
refuses or fails to appoint a representative after due notice in
writing to the accused or his/her counsel within seventy-two
(72) hours before the actual or destruction of the evidence in
question, the Secretary of Justice shall appoint a member of
the public attorney’s office to represent the former;
7. After the promulgation of judgment in the criminal case
wherein the representative sample/s was presented as
evidence in court, the trial prosecutor shall inform the Board
of the final termination of the case and in turn, shall request
the court for leave to turn over the said representative
sample/s to the PDEA for proper disposition and destruction
within twenty-foru (24) hours from receipt of the same; and
8. Transitory Provision: a.) Within twenty-four hours from the
effectivity of this Act (R.A. 9165), dangerous drugs defined
herein which are presently in possession of law enforcement
agencies shall, with leave of court, be burned or destroyed,
in the presence of representative of the Court, DOJ,
Department of Health (DOH) and the accused and/or his/her
counsel, and b.) Pending the organization of the PDEA, the
custody, disposition, and burning of seized or surrendered
dangerous drugs provided under this Section shall be
implemented by the DOH (Sec. 21, Art. 2, R.A. 9165)
SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time
of the commission of the offense mentioned in Section 11 of
R.A. 9165 but not more that eighteen (18) years of age at
the time when the judgment should have been promulgated
after having been found guilty of said offense, 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 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.
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL
ONLY ONCE BY A FIRST-TIME MINOR OFFENDER
The privilege of suspended sentence shall be availed of only
once by accused drug dependent who is a first-time offender
over fifteen (15) years of age at the time of the commission
of the violation of Section 15 of this Act but not more than
eighteen (18) years of age at the time when judgment should
have been promulgated. (Sec. 68)
PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the
conditions of his/her suspended sentence, the applicable
rules and regulations of the Board exercising supervision
and rehabilitative surveillance over him, including the rules
and regulations of the Center should confinement be
required, the court shall pronounce judgment of conviction
and he/she shall serve sentence as any other convicted
person. (Sec. 69)
PROBATION OR COMMUNITY SERVICE FOR A FIRST-
TIME MINOR OFFENDER IN LIEU OF IMPRISONMENT
Upon promulgation of the sentence, the court may, in its
discretion, place the accused under probation, even if the
sentence provided under this Act is higher than that provided
under existing law on probation, or impose community
service in lieu of imprisonment. In case of probation, the
supervision and rehabilitative surveillance shall be
undertaken by the Board through the DOH in coordination
with the Board of Pardons and Parole and the Probation
Administration. Upon compliance with the conditions of the
probation, the Board shall submit a written report to the court
recommending termination of probation and a final discharge
of the probationer, whereupon the court shall issue such an
order.
The community service shall be complied with under
conditions, time and place as may be determined by the
court in its discretion and upon the recommendation of the
Board and shall apply only to violators of Section 15 of this
Act. The completion of the community service shall be under
the supervision and rehabilitative surveillance of the Board
during the period required by the court. Thereafter, the
Board shall render a report on the manner of compliance of
said community service. The court in its discretion may
require extension of the community service or order a final
discharge.
If the sentence promulgated by the court require
imprisonment, the period spent in the Center by the accused
shall be deducted from the sentence to be served. ( Sec. 70)
WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A
MEMBER OF LAW ENFORCEMENT AGENCIES AND
OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS
PROSECUTION WITNESSES IN DANGEROUS DRUG
CASES?
Any member of law enforcement agencies or any other
government official and employee who, after due notice, fails
or refuse intentionally or negligently, to appear as a witness
for the prosecution in any proceedings, involving violation of
this Act, without any valid reason shall be punished with
imprisonment of not less than twelve (12) years and one (1)
day to twenty (20) years and a fine of not less than Five
hundred thousand pesos (P500,000.00), in addition to the
administrative liability he/she may be meted out by his/her
immediate superior and/or appropriate body.
The immediate superior of the member of the law
enforcement agency or any other government employee
mentioned in the preceding paragraph shall be penalized
with imprisonment of not less than two (2) months and one
(1) day but not more than six (6) years and a fine of not less
than ten thousand (P10,000.00) but not more than Fifty
thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to
them and to the witness concerned the former does not exert
reasonable effort to present the latter to the court
The member of the law enforcement agency or any other
government employee mentioned in the proceeding
paragraphs shall not be transferred or re-assigned to any
other government office located in another territorial
jurisdiction during the pendency of the case in court.
However, the concerned member of the law enforcement
agency or government employee may be transferred or re-
assigned for compelling reason: Provided, that his/her
immediate superior shall notify the court where the case is
pending of the order to transfer or re-assign, within twenty-
four (24) hours from its approval: Provided further, that
his/her immediate superior shall be penalized with
imprisonment of not less than two (2) months and one (1)day
but not more than six (6) years and a fine of not less than
two (2) months and one (1) day but not more than six (6)
years and a fine of not less than Ten thousand (P10,000.00)
but not more than Fifty thousand pesos (P50,000.00) and in
addition, perpetual absolute disqualification from public
office, should he/she fails to notify the court of such order to
transfer or re-assign.
DELAY ANF BUNGLING IN THE
PROSECUTION OF DRUG CASES
Any government officer employee tasked with the
prosecution of drug-related cases under this Act, who
through patent laxity, inexcusable neglect, unreasonable
delay or deliberately causes the unsuccessful prosecution
and/or dismissal of the said drug cases, shall suffer the
penalty of imprisonment ranging from twelve (12) years and
one (1) day to twenty (20) years without prejudice to his/her
prosecution under the pertinent provision of the Revised
Penal Code.
RECORDS TO BE KEPT BY THE
DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings
on suspension of sentence and shall not be used for any
purpose other than to determine whether or not a person
accused under this Act is a first-time offender. (Sec. 71)
LIABILITY OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF RECORDS
The Penalty of imprisonment ranging from six (6) months
and one (1) day to six (6) years and a fine ranging from One
thousand pesos (P1,000.00) to Six thousand pesos
(P6,000.00), shall be imposed upon any person who, having
official custody of or access to the confidential records of any
drug dependent under voluntary submission programs, or
any one who, having gained possession of said records,
whether lawfully or not, reveals their content to any person
other than those charged with the prosecution of the offense
under this Act and its implementation. The maximum penalty
shall be imposed, in addition to the absolute perpetual
disqualification from any public office, when the offender is a
government official or employee. Should the records be used
for unlawful purposes, such as blackmail of the drug
defendant of the members of his/her family, the penalty
imposed for the crime of violation of confidentiality shall be in
addition to whatever crime he/she convicted of. (Sec. 72)
LIABILITY OF A PARENTS, SPOUSE OR
GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
Any parent, spouse or guardian who, without valid reason
parent, spouse or guardian who, without valid reason,
refuses to cooperate with the Board or any concerned
agency in the treatment and rehabilitation of a drug
defendant who is a minor, or in any manner, prevents or
delay the after-care, follow-up or other programs for the
welfare of the accused drug defendant, whether under
voluntary submission program or compulsory submission
program, may be cited in contempt by the court.
COST-SHARING IN THE TREATMENT AND
REHABILITATION OF A DRUG DEFENDENT
The parents, spouse, guardian or any relative within the
fourth degree of consanguinity of any person who is confined
under the voluntary submission program or compulsory
submission program shall be charged a certain percentage
of the cost of his/her treatment and rehabilitation, the
guidelines of which shall be formulated by the DSWD taking
into consideration the economic status of the family of the
person confined. The guidelines therein formulated shall be
implemented by a social worker of the local government unit.
(Sec. 74)
LIMITED APPLICABILITY OF THE REVISED PENAL CODE
Notwithstanding any law, rule or regulation to the contrary,
the provisions of the Revised Penal Code (Act. 3814) as
amended, shall not apply to the provision of this Act, except
in the case of minor offenders. Where the offender is a
minor, the penalty for acts punishable by life imprisonment to
death provided therein shall be reclusion perpetua to death.
(Sec. 98)
EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a
lawful arrest authorizes the arresting officer to make a
search upon the person arrested. An officer making an arrest
may take from the person arrested any money or property
found upon his person which was used in the commission of
the crime or was in fruit of the crime or which might furnish
the prisoner with the means of committing violence or of
escaping, which may be used as evidence in the trial of the
case. (People v. Musa; GR 96177, 1/27/93)
LIKE ALIBI, FRAME UP IS EASY
TO FABRICATE, BUT DIFFICULT
TO PROVE
Frame-up, like alibi, is a defense that has been viewed by
courts with disfavor for it can just as easily be connected and
is a common and standard line of defense in most
prosecution arising from violations of the Dangerous Drugs
Act. In order for that defense to prosper, the evidence
adduced must be clear and convincing. (People v. Girang;
GR 27949, 2/1/95)
BUY-BUST OPERATION
Is a form of entrapment employed by peace officers as an
effective way of apprehending a criminal in the act of the
commission of the offense. Entrapment has received judicial
sanction as long as it is carried out with due regard to
constitutional and legal safeguards. (People v. Basilgo; GR
107327, 8/5/94)
POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential
informant is no longer material considering that accused-
appellant’s drug pushing was positively attested to.
Moreover, informants are generally not presumed in court
because of the need to hide their identity and preserve their
invaluable service to the police. (People v. Girang; GR
97949, 2/1/95)
EFFECT OF LIMITATION UNDER
SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON
The "conviction by final judgment" limitation under Section
19, Article VII of the present Constitution prohibits the grant
of pardon, whether full or conditional, to an accused during
the pendency of his appeal from his conviction by the trial
court. Any application therefor, if one is made, should not be
acted upon or the process toward its grant should not be
begun unless the appeal is withdrawn. Accordingly, the
agencies or instrumentalities of the Government concerned
must require proof from the accused that he has not
appealed from his conviction or that he has withdrawn his
appeal Such proof may be in the form of a certification
issued by the trial court or the appellate court, as the case
may be The acceptance of the pardon shall not operate as
an abandonment or waiver of the appeal, and the release of
an accused by virtue of a pardon, commutation of sentence,
or parole before the withdrawal of an appeal shall render
those responsible therefor administratively liable
Accordingly, those in custody of the accused must not solely
rely on the pardon as a basis for the release of the accused
from confinement. (People v. Maquilan)
RULE AS TO WHO SHOULD
BE CRIMINALLY CHARGED
The settled rule is that the determination of who should be
criminally charged in court is essentially an executive
function, not a judicial one. As the officer authorized to direct
and control the prosecution of all criminal actions, the
prosecutor is tasked to ascertain whether there is sufficient
ground to engender a well-founded belief that an offense has
been committed and that the accused is probably guilty
thereof. (People v. Esparas; GR 120034, July 10, 1998)
WHEN THERE IS A WAIVER
OF WARRANTLESS ARREST
The appellants are now precluded from assailing the
warrantless search and seizure when they voluntarily
submitted to it as shown by their actuation during the search
and seizure. The appellants never protested when SPO3
Jesus Faller, after identifying himself as a police officer,
opened the tin can loaded in the appellants' vehicle and
found eight (8) bundles. And when Faller opened one of the
bundles, it smelled of marijuana. The NBI later confirmed the
eight (8) bundles to be positive for marijuana. Again, the
appellants did not raise any protest when they, together with
their cargo of drugs and their vehicle, were brought to the
police station for investigation and subsequent prosecution.
We have ruled in a long line of cases that:
"When one voluntarily submits to a search or consents to
have it made on his person or premises, he is precluded
from later complaining thereof (Cooley, Constitutional
Limitations, 8th ed., vol. I, page 631). The right to be secure
from unreasonable search may, like every right, be waived
and such waiver may be made either expressly or impliedly."
The appellants effectively waived their constitutional right
against the search and seizure in question by their voluntary
submission to the jurisdiction of the trial court, when they
entered a plea of not guilty upon arraignment and by
participating in the trial. (People v. Correa; GR 119246, Jan.
30, ’98)
WHEN USE OF MOTOR VEHICLE
IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING

Simply stated, the motor vehicle which was used to transport
prohibited drugs was not purposely sought to facilitate the
commission of the crime since such act of transporting
constitutes the crime itself, punishable under Section 4,
Article II of Republic Act No. 6425, as amended. That a
motor vehicle was used in committing the crime is merely
incidental to the act of transporting prohibited drugs. The use
of a motor vehicle is inherent in the crime of transporting as
it must of necessity accompany the commission thereof;
hence, such use is not an aggravating circumstance.
(People v. Correa)
CASES WHEN WARRANTLESS SEARCH IS ALLOWED
1. Warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the Rules of Court
and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which
are:
(a) a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the pursuit of
their official duties;
(b) the evidence was inadvertently discovered by the police
who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without
further search;
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.
(People v. Menguin; GR 120915, Apr. 13, ’98)
CASES WHEN SEARCH WITHOUT
A WARRANT WAS VALID
In People v. Tangliben, acting on information supplied by
informers, police officers conducted a surveillance at the
Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit misdemeanors
and also on those who may be engaging in the traffic of
dangerous drugs. At 9:30 in the evening, the policemen
noticed a person carrying a red travelling bag who was
acting suspiciously. They confronted him and requested him
to open his bag but he refused. He acceded later on when
the policemen identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The police
officers only knew of the activities of Tangliben on the night
of his arrest.
In instant case, the apprehending officers already had prior
knowledge from their informant regarding Aruta's alleged
activities. In Tangliben policemen were confronted with an
on-the-spot tip. Moreover, the policemen knew that the
Victory Liner compound is being used by drug traffickers as
their "business address". More significantly, Tangliben was
acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that
Tangliben is committing a crime. In instant case, there is no
single indication that Aruta was acting suspiciously.
In People v. Malmstedt, the Narcom agents received reports
that vehicles coming from Sagada were transporting
marijuana. They likewise received information that a
Caucasian coming from Sagada had prohibited drugs on his
person. There was no reasonable time to obtain a search
warrant, especially since the identity of the suspect could not
be readily ascertained. His actuations also aroused the
suspicion of the officers conducting the operation. The Court
held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a
search without a warrant, would be to sanction impotence
and ineffectiveness in law enforcement, to the detriment of
society.
Note, however, the glaring differences of Malmstedt to the
instant case. In present case, the police officers had
reasonable time within which to secure a search warrant.
Second, Aruta's identity was priorly ascertained. Third, Aruta
was not acting suspiciously. Fourth, Malmstedt was
searched aboard a moving vehicle, a legally accepted
exception to the warrant requirement. Aruta, on the other
hand, was searched while about to cross a street.
In People v. Bagista, the NARCOM officers had probable
cause to stop and search all vehicles coming from the north
to Acop, Tublay, Benguet in view of the confidential
information they received from their regular informant that a
woman having the same appearance as that of accused-
appellant would be bringing marijuana from up north. They
likewise had probable cause to search accused-appellant's
belongings since she fitted the description given by the
NARCOM informant. Since there was a valid warrantless
search by the NARCOM agents, any evidence obtained in
the course of said search is admissible against accused-
appellant. Again, this case differs from Aruta as this involves
a search of a moving vehicle plus the fact that the police
officers erected a checkpoint. Both are exceptions to the
requirements of a search warrant.
In Manalili v. Court of Appeals and People, the policemen
conducted a surveillance in an area of the Kalookan
Cemetery based on information that drug addicts were
roaming therein. Upon reaching the place, they chanced
upon a man in front of the cemetery who appeared to be
"high" on drugs. He was observed to have reddish eyes and
to be walking in a swaying manner. Moreover, he appeared
to be trying to avoid the policemen. When approached and
asked what he was holding in his hands, he tried to resist.
When he showed his wallet, it contained marijuana. The
Court held that the policemen had sufficient reason to accost
accused-appellant to determine if he was actually "high" on
drugs due to his suspicious actuations, coupled with the fact
that based on information, this area was a haven for drug
addicts.
This case is similar to People v. Aminnudin where the police
received information two days before the arrival of
Aminnudin that the latter would be arriving from Iloilo on
board the M/V Wilcon 9. His name was known, the vehicle
was identified and the date of arrival was certain. From the
information they had received, the police could have
persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Instead of securing a
warrant first, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was
held to be illegal; hence any item seized from Aminnudin
could not be used against him.
Another recent case is People v. Encinada where the police
likewise received confidential information the day before at
4:00 in the afternoon from their informant that Encinada
would be bringing in marijuana from Cebu City on board M/V
Sweet Pearl at 7:00 in the morning of the following day. This
intelligence information regarding the culprit's identity, the
particular crime he allegedly committed and his exact
whereabouts could have been a basis of probable cause for
the lawmen to secure a warrant. This Court held that in
accordance with Administrative Circular No. 13 and Circular
No. 19, series of 1987, the lawmen could have applied for a
warrant even after court hours. The failure or neglect to
secure one cannot serve as an excuse for violating
Encinada's constitutional right.
People v. Solayao, applied the stop and frisk principle which
has been adopted in Posadas v. Court of Appeals. In said
case, Solayao attempted to flee when he and his
companions were accosted by government agents. In the
instant case, there was no observable manifestation that
could have aroused the suspicion of the NARCOM agents as
to cause them to "stop and frisk" accused-appellant. To
reiterate, accused-appellant was merely crossing the street
when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the
NARCOM agents when the latter identified themselves as
such. Clearly, this is another indication of the paucity of
probable cause that would sufficiently provoke a suspicion
that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's
contention for the Malasugui case is inapplicable to the
instant case. In said case, there was probable cause for the
warrantless arrest thereby making the warrantless search
effected immediately thereafter equally lawful. On the
contrary, the most essential element of probable cause, as
expounded above in detail, is wanting in the instant case
making the warrantless arrest unjustified and illegal.
Accordingly, the search which accompanied the warrantless
arrest was likewise unjustified and illegal. Thus, all the
articles seized from the accused-appellant could not be used
as evidence against her. (People v. Menguin)
WHEN SEARCH IS NOT VALID
Accused-appellant Aruta cannot be said to be committing a
crime. Neither was she about to commit one nor had she just
committed a crime. Accused-appellant was merely crossing
the street and was not acting in any manner that would
engender a reasonable ground for the NARCOM agents to
suspect and conclude that she was committing a crime. It
was only when the informant pointed to accused-appellant
and identified her to the agents as the carrier of the
marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-
appellant were it not for the furtive finger of the informant
because, as clearly illustrated by the evidence on record,
there was no reason whatsoever for them to suspect that
accused-appellant was committing a crime, except for the
pointing finger of the informant. This the Court could neither
sanction nor tolerate as it is a clear violation of the
constitutional guarantee against unreasonable search and
seizure. Neither was there any semblance of any compliance
with the rigid requirements of probable cause and
warrantless arrests.
Consequently, there was no legal basis for the NARCOM
agents to effect a warrantless search of accused-appellant's
bag, there being no probable cause and the accused-
appellant not having been lawfully arrested. Stated
otherwise, the arrest being incipiently illegal, it logically
follows that the subsequent search was similarly illegal, it
being not incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and seizure must
perforce operate in favor of accused-appellant. As such, the
articles seized could not be used as evidence against
accused-appellant for these are "fruits of a poisoned tree"
and, therefore, must be rejected, pursuant to Article III, Sec.
3(2) of the Constitution. (People v. Menguin)
WHEN VOLUNTARY SUBMISSION
TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act
of herein accused-appellant in handing over her bag to the
NARCOM agents could not be construed as voluntary
submission or an implied acquiescence to the unreasonable
search. The instant case is similar to People v. Encinada.
(People v. Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the
appellant's house, the trial court correctly ignored it
apparently in view of its inadmissibility. While initially the
arrest as well as the body search was lawful, the warrantless
search made inside the appellant's house became unlawful
since the police operatives were not armed with a search
warrant. Such search cannot fall under "search made
incidental to a lawful arrest," the same being limited to body
search and to that point within reach or control of the person
arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar,
appellant was admittedly outside his house when he was
arrested. Hence, it can hardly be said that the inner portion
of his house was within his reach or control.
(Espano v. C.A.; GR 120431, April 1, ’98)
MEANING OF ―TO TRANSPORT‖
IN DRUG CASES
In People vs. Lo Ho Wing, the Court defined the term
"transport", as used under the Dangerous Drugs Act to mean
"to carry or convey from one place to another" , the operative
words being "to carry or to convey". The fact that there is
actual conveyance suffices to support a finding that the act
of transporting was committed. It is immaterial whether or
not the place of destination was reached. (People v. Latura)
WHEN POLICE OFFICERS INTENTIONALLY PEEPED
THRU A WINDOW THEN WENT INSIDE AND ARRESTED
THOSE INSIDE WHO ARE PACKING MARIJUANA. THE
SAME IS ILLEGAL
The police officers intentionally peeped first through the
window before they saw and ascertained the activities of
accused-appellants inside the room. In like manner, the
search cannot be categorized as a search of a moving
vehicle, a consented warrantless search, a customs search,
or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft
of any such showing.
On the contrary, it indicates that the apprehending officers
should have conducted first a surveillance considering that
the identities and address of the suspected culprits were
already ascertained. After conducting the surveillance and
determining the existence of probable cause for arresting
accused-appellants, they should have secured a search
warrant prior to effecting a valid arrest and seizure. The
arrest being illegal ab initio, the accompanying search was
likewise illegal. Every evidence thus obtained during the
illegal search cannot be used against accused-appellants;
hence, their acquittal must follow in faithful obeisance to the
fundamental law. (PP -vs- ZENAIDA BOLASA Y
NAKOBOAN, ET AL., G.R. No. 125754, Dec. 22, 1999)
SEARCH AND SEIZURE WITHOUT THE REQUISITE
JUDICIAL WARRANT IS ILLEGAL AND VOID AB INITIO
As a general rule, the procurement of a search warrant is
required before law enforcer may validly search or seize the
person, house, papers or effects of any individual. In People
v. Valdez, the court ruled that search and seizure conducted
without the requisite judicial warrant is illegal and void ab
initio.
xxx
―Lawmen cannot be allowed to violate the very law they are
expected to enforce.‖ The Court is not unmindful of the
difficulties of law enforcement agencies in suppressing the
illegal traffic of dangerous drugs. However, quick solutions of
crimes and apprehension of malefactors do not justify a
callous disregard of the Bill of Rights‖. We need not
underscore that the protection against illegal search and
seizures is constitutionally mandated and only under specific
instances are seizures allowed without warrants.
In this case, the prosecution’s evidence clearly established
that the police conducted a search of accused’s backyard
garden without warrant; they had sufficient time to obtain a
search warrant; they failed to secure one. There was no
showing of urgency or necessity for the warrantless search,
or the immediate seizure of the marijuana plants. (People vs.
Alberto Pasudag)