II ATES IN CRIMINAL LAW]

.,

By

MODESTO A. MAN, JR.

. i: \(,,! 1' , ; • • J I '
' . Law Practitioner
;' 1 ,.J. '' l ! '
: Professor, Bar Reviewer and MCLE Lecturer
in Criminal Law

SECOND EDITION
2007
.----.---,------,

Dl l N COLLEGE OF LAW

1111111111111Jrn 111![ m11111111111111

I
91350 Philippine Copyright, 2007

f'tREFACE TO THE FIRST EDITION

No portion of this book may be copied or repro duced in
books, pamphlets, outli es or no es, wh t er printed,
mimeographed, typewritten, copied m :Le ent electronic
devices or in any other form, for mstn bution or sale, without
the written permissi'.m of the author except brief passages in
books, art1c es, re views, legal papers, and judicial or other
officrnl pro ceedings with proper citation.
Any copy of this book without the corrnsp?nding number
and the signature of the author on this page either proceeds
from an illegitimate_ source_ or 1s m possession of one who
has no authonty to dispose of
the same.
Criminal law is a .:;ubject which interests and fascinates. .not only
lawyers and students of law but laymen as well. Cognizant of this fact and
moved by the persistent prodding of his co-faculty members, former and
present students and friends, the author was impelled to prepare this book.
This modest work exclusively includes recent rulings of the Supreme
Court covering the period from January 2000 to April 2005 which interpret
the pro·,isions of the Revised Penal Code, the general law on the subject,
pertinent Presidential Decrees and legislative enactments.
It is earnestly hoped that.this edition will be of immense help to law
students, bar reviewees, and to the members of the bench and the bar.
Manila, 10 May 2005.

ALL RIGHTS RESERVED BY THE THEAUTBOR

AUTHOR

N 0717

i
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 PREFACE TO THE SECOND EDITION

Inspired by the favorable comments on its first edition from

members of the bench, colleagues, bar candidates and law students,
the author prepared the second edition of this book.
This humble work, which is primarily intended to serve as a
handy reference material in Criminal Law, presents the basic yet
important principles on the subject as either pronounced or reiterated
and clucidateo in decisiomi ofrecent vintage rendered by the Supreme
Court from January 2000 to February 2007. Provisions of the
"Juvenile Justice and Welfare Act of 2006," (R.A. No. 9344) and the
"Human Secu.:ity Act of 2007" (R.A. No. 9372) which amended
portions of the Revised Penal Code are likewise cited herein.
To thm,e who pa roni:ied the first edition of this book, the
author extends his heartfelt tlrnnks.
1'vlanih,, I 7 April 2007.

THE AUTHOR

V
 To my
I ''

inspirations,
Ryann,
Jack and Roan
this work is lovingly dedicated.

l vii
 ' !

CONTENTS

THE REVISED PENAL CODE

(Act No. 8815, as amended)

Book One
··.:.-1:,'l
PRELIMINARY CONSIDERATION .......................:.. ....··:•T"''! 1
FELONIES .................................................................,.;...;....:...)\ l
CRIMINAL LIABILITY ...................................................,......_:','.,;
. • l
3
CONSUMMA'I'ED, FRUSTRATED AND ATTEMPTED, , .·· 1' •
FELONIBS ..................................;......;............................:.:. 5
CONSPIRACY ..............................................................:.·...,.: .·.:.::-:,i 13
SUPPLEMENTARY APPLICATION OF RPC
PROVISIONS TO SPECIAL LAWS ...........:..........................19
JUSTIFYING CIRCUMSTANCES ...:...............................'.............21
Self-defense...................................................................................21
Battered Woman Syndrome ..........................................:.. ' 27
Defense of relatives...................................................................29
Defense of strangers..................................................................30
Avoidance of greater evil..........................................................30
Fulfillment of a lawful duty.......................................................31
:ii:XEMPTING CIRCUMSTANCES................................................35
Insanity ...............;................................................................35
Minority....................................................................................35
Accident.....................................................................................38
Uncontrollable fear...................................................................38
Entrapment vs. instigation .............................................'. 40
' ..
MITIGATING CIRCUMSTANCES ................................,...............41
Incomp'.·Jte self-defense.............................................................41

ix

Lack of intent to commit so grave a wrong...............................42 Sufficient provocation.................................................................42

 Vindication of grave offense......................43 Accomplices......................................................................................83
Passion and obfuscation........................43 Accessories................................85
Voluntary surrender...........................46 Accessories who are exempt from criminal liability......86
Confession of guilt ................................................... .....·.. 49 Corpus delicti...........................87
Circumstance analogous to voluntary surrender ...................50
PENALTIES IN GENERAL.......................88
AGGRAVATING CIRCUMSTANCES..................................................50
Advantage taken of public posltion .................................

G2
In contempt of or with insult to public authorities..................53
Disregard of age or sex..........................................................53
Dwelling....................................................................................55
Abuse of confidence..........................57
Nighttime..................................57
Band...................................................................................................58
Recidivism ...................................................................··········59
Reiteracion ................................................................·....·.. 59
By means of explosion..............................................................59
Evident premeditation...........................................................59
Craft or fraud
.....................................
62
Abuse of superior strength..........................................................63
Treachery
.........................................
66
Ignominy.......................................................................................77
Use of motor vehicle
.........................................
78
Cruelty
.......................................
78
Use of unlicensed firearm under R.A. No. 8294......................79
ALTERNATIVE CIRCUMSTANCES..............................................81
Intoxication...................................................................................81
Relationship
.......................................
82
PERSONS CRIMINALLY LIABLE
............................................
82
Principals .....................................................············.
·······································
82
 Complex crime ...............................................................;.. 93
EXTINCTION OF CRIMINAL LIABILITY
............................................................................................................
97
Death of the convict....................................................................97
Prescription of offenses...............................................................99
Prescription of penalties ..................................................· 102
Pardon vs. amnesty.....................................................................103
CIVIL LUiliILITY ....................................................................: 103
Civil liability arising from crimes ................................... ' 103
Basis............................................................................................104
Subsidiary ciYil liability of employers.....................................105
Book Two
SPECIFIC
CRIMES
CRIMES AGAINST THE FUNDAMENTAL LAW
OF THE STATE......................................................................107
Retroactiv!l.._effe t.Qfpenal laws .......................................
Pardon by the offended party ...........................................
Life imprisonment vs. reclusion perpetua .......................
Automatic review of death penalty cases ........................
X
Murder and Homicide.
.............................................................................................
127
Death caused/Physical injuries inflicted in a
tumultuous affray .................................................... 129
Discharge of firearm ................ ........................ ................. 129
Slight physical injuries................................... ................. 129
Rape................................................................................... 129
CRIMES AGAINST PERSONAL LIBERTY
AND SECURITY
.....................................................................................................
136
Kidnapping and serious illegal detention.
.................................................................................................
136
Arbitrary detention .........................................................'.. 107
CRIMES AGAINST PUBLIC ORDER.
......................................................................................................
109
Rebellion.................................................................................109
Direct assault..........................................................................109
CRIMES AGAIST PUBLIC INTEREST .................................. • 110
Falsification.............................................................................110
Use of falsified document .................................................' 111
Perjury.................................................................................113
CRIMES AGAINST PUBLIC MORALS.........................................117
Obscene publications..............................................................117
CRIMES COMMITIED BY PUBLIC OFFICERS ................;. 118
Renderir::g an unjust judgment................................................118
Direct bribery......................................................................118
Malversation of public funds or property...........................119
Failure of accountable officer to render accounts...............125
Technical malversation ........................................'.·...·.......;. · 125
88 CRIMES AGAINST PERSONS ..............................................'.. 12'7
89 Parricide .......................................................................... 127
89 Death inflicted under exceptional circumstances .......... 127
92
xi
Kidnapping and failure to return a minor.............. ....... 1:J8
Trespass to dwelling...............................................................139
Grave coercion...........................................................................140
Unjust vexation........................................................................140
CRIMES AGAINST PROPERTY...................................................142
Robbery.......................................................................................142
Robbery with homicide............................... .... .... ........ H'1
Robbery with rape.....................................................................150
Theft........................................................................................153
Qualified theft.....................................................................154
Occupation of real property or usurpation of real
rights in property..............................................................155
Estafa in general......................................................................156
Estafa through conversion or misappropriation..................156
Estafa by means of false pretenses........................................163
Estafa by postdating or issuing a check..............................166
 Other deceits QUASI-OFFENSES 201
.................................................................................................
Imprudence and negligence....................................................201
173
Arson.
................................................................................................. SPECIAL
176 LAWS
CRIMES AGAINST CHASTITY.
................................................................................................................... PROBATION LAW (P.D. No. 968)....................................................204
177
INDETERMINATE SENTENCE LAW (R.A. No. 4103)................207
COMPREHENSIVE DANGEROPS DRUGS
ACT OF 2002 (R.A. No. 9165)..............................................209
ANTI-GRAFT AND CORRUPT PRACTICES ACT
(R.A. No. 3019).......................................................................214
ANTI-PLUNDER LAW (R.A. No. 7080)...........................................229
ILLEGAL POSSESSION OF FIREARMS LAW
(R.A. No. 8294)...........................................................................230
ANTI-FENCING LAW (P.D. No. 1612) .................................... 2a3
ANTI-CARNAPPING LAW (R.A. No. 6539)....................................234
ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY
LAV/ (P.D. 532)..........................................................................239
ANTI-CATTLE RUSTLING LAW (P.D. No. 533)...........................240
ILLEGAL RECRUITMENT (under R.A. No. 8042)......................240
BOUNCING CHECKS LAW (B.P. Blg. 22)......................................242

APPENDICES
Concubinage ...................................................................... 177
Acts of lasciviousness ....................................................... 17 "A" - Juvenile Justice and Welfare Act of 2006
Simple seduction ............................................................... 8 (R.A. No. 9344) 265
Forcible abduction 17 ..............................................................
............................................................. CRIMES AGAINST 9
179 "B" - Act Prohibiting the Imposition of the Death Penalty 297
THE CIVIL STATUS OF PERSONS ..... Bigamy in the Philippines (R.A. No. 9346)
18 299
...............................
.......................................................................... 0
"C" - Human Security Act of 2007 (R.A. No. 9372) 329
CRIMES AGAINST HONOR .................................................... 180 .............
18 Index
3
Libel.........................................................................................183
Oral defamation...................................................................199
Slander by deed.......................................................................200
 ·,:·:

THE REVISED PENAL COD; :\,..............1

(Act No. 3815, as amended)
BOOK ONE
PRELIMINARY CONSIDERATION l•III H·;i .,., , : ;/.,, ,_l ,. :: c ••

Interpretation of penal laws. {( t . ;'

It is a well-known rule of legal hermeneutics that penal or
criminal laws are strictly construed against the state and liberally
in favor of the accused. If the language of the law were
ambiguous, the court will lean more strongly in favor of the
defendant, than it would if the statute were remedial, as a means of
effecting substan tial justice. The law is tender in favor of the
rights of an individual. It is this philosophy of caution before the
State may deprive a pel' son of life or liberty that animates one of
the most·fundamental principles in our Bill of Rights, that every
person is presumed inno cent until proven guilty. (People us. Bon,
G.R. No. 166401, 30 Octo ber 2006)

FELONIES
Motive need not be proved; exceptions.
Proof of motive is not indispensable for a conviction; particU··
larly where the accused is positively identified by an eyeVv'itness and
his participation is adequately established. In People vs. Galano, wE:
ruled that in the crime of murder, motive is not an element of thEi
offense, it becomes mRterial only when the evidence is circumstan·
tial or inconclusive and there is some doubt on whether the accused
had committed it. In the case before us, no such doubt exits as De
Leon and Tablate positively identified appellant. (People us. Delos
Santos, G.R. No. 135919, 09 May 2003, 403 SCRA 153) ;, ·

2 UPDATES IN CRIMINAL LAW motive is no longer of consequence. (Velasco us. People, G.R. No.
166479, 28 February 2006, 483 SCRA 649)

Motive assumes significance only where there is no showing of

Identification; witness need not have to know the name of the
who the perpetrator of the crime was. In the cuse at bar, since
accused.
petitioner has been positively identified as the assailant, the lack of
 We do not doubt Joseph's identification of Joey Guiyab. Even
if he did not know the name of the petitioner prior to the incident,
he was able to identify him in open court. Besides, Joseph
maintained that although he did not know the name of the
petitioner, he knew him by his face. There is nothing in law or
jurisprudence which requires, as a condition sine qua non, that, for a
positive identifica tion of a felon by a prosecution witness to be
good, the witness must first know the former personally. The
witness need not have to know the name of the accused for so long
as he recognizes his face. We ruled that "knowing the identity of an
accused is different from knowing his name. Hence, the positive
identification of the malefac tor should not be disregarded just
because his name was supplied to the eyewitness. The weight of the
eyewitness account is premised on the fact that the said witness saw
the accused commit the crime, and not because he knew his name."
(Guiyab us. People, G.R. No. 152527, 20 October 2005, 473 SCRA
533)
Intentional felony.
Article 3, paragraph 2 of the Revised Penal Code provides that
there is deceit when the act is performed ·with deliberate intent.
Indeed, a felony cannot exist without intent. Since a folony by dolo is
classified as an intentional felony, it is deemed voluntary. Al though
the words "with malice" do not appear in Ardcle 3 of the Revised
Penal Code, such phrase is included in the word "volun tary."
Malice is a mental state or condition prompting the doing of
an overt act without legal excuse or justification from which
another suffers injury. When the act or omission defined by law as
a felony is proved to have been done or committed by the accnsed,
the law presumes it to have been intentional. Indeed, it is a legal
presump tion of law that every man intends the natural or prl)bable
conse-
4 UPDATES IN CRI:>UNAL LAW
THE REVISED PE!'.'AL CODE a
quence of his voluntary act in the absence of proof to the contrary, and
SJ.ch presumption must prevail unless a reasonable doubt ex ists
fr0m &. cori.sideration of the whole evidence.
For one ·w be criminally'liable for a felony by dolo, thetemust
be a confluence of both an evil act and an evil intent. Actus non
facit reum, nisi mens sit rec. (Manuel us. People, G.R. No. 165482, 29
NoL'cmber. 2005, 476 SCRA 461) :,, , r,
Intentional felonies and culpable felonies distinguished. ';'
Article 3 of the Revised Penal Code classifies felorri s a cordi g
to the means by which they are committed, in particular: (1) inten
tional felonie!l, and (2) culpable felonies. These two types of felonies
are distinguished fwm each other by the existence or abse1 ce of
malicious iatcnt of the offender -
''In int.entional felonies, the act or omission of the
offender is malicious. In the language of Art. 3, the act is
performed vvith deliberate intent (with malice). The of-·
fender. in perfo1·ming the act or in incurring the omission,
has the intention to cause an injury to another. In ciil pable
felonies, the act or omission of the offender is not malicious.
The injury caused by the offender to another person is
"unintentional, it being simply the incident of. another act
performed without malice." (People us. Sara, 55 Phil. 989)
As stated in Art. 3, the wrongful act results from imprudence,
negligence, lack of foresight or lack of skill." iCalimutan us.
People, G.R. No. 152133, 09 Febru· ary 2006, 482 SCRA
47)
CRIMINAL LIABILITY
Criminal liability shall be incurred by any per o committing an
intentional felony although the wrongful act done be different from
that which he Intended. ·, ·
A person committing a felony is criminally liable for all the
natural and logical consequences resulting therefrom although the
wrongful act done be different from that which he intended. "Natu ral"
refers to an occurrence in the ordinary course of.human life or events,
while "logical" means that there is a rational connection
between the act of the accused and the resulting injury r•r damage.
(Quinto vs. Andres, G.R. No. 155791, 16 March 2005, 45:J 8CRA 511)

The felony committed must be the proximate cause of the result·
ing Injury.
Proximate cause is that cause which in natural and continuous
sequence, unbroken by an efficient intervening cause, pnduces the
injury, and without which the result would not have occurred. The
proximate legal cause is that acting first and producing the injury,
either immediately, or by setting other events in motion, all consti
tuting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor.
There must be a relation of"cause and effect/ the cause being
the felonious act of the offender, the effect being the resultant inju·
ries and/or death of the victim. The «cause and effect"
relation1;1hip is not altered or changed because of the pre-existing
conditions, such as the pathological condition of the victim; the
predisposition of the offended party; the physical condition of the
offended party; or the concomitant or concurrnnt conditions, such
as the negligence or fault of the doctors; or the conditions
supervening the felonious act such as tetanus, pulmonary infection
or gangrene.
The felony committed is not the proximate cause of the result· ing
injury when:
(a) there is an active force that intervened between the
felony committed and the resulting injury, and the active
force is a distinct act or fact absolutely foreign from the
felonious act of the accused; or
(b) the resulting injury is due to the intentional act of the
victim.
If a person inflicts a wound with a deadly weapon in such a
manner as to put life in jeopardy and death follows as a
consequence of their felonious act, it does not alter its nature or
diminish its criminality to prove that other causes cooperated in
producing the factual result. The offender is criminally liable for the
death of the victim if his delictual act caused, accelerated or
contributed to the death of the victim. A different doctrine would
tend to give immu nity to crime and to take away from human life a
salutary and essential safeguard. (Quinto vs. Andres, G.R. No.
155791, 16 March 2006, 453 SCRA511)
6 UPDATES IN CRIMINAL LAW
2. He does not perform all the acts of execution which
THE REVISED PENAL CODE 6
Criminal liability is incurred by any person committing a felony,
although the actual victim be different from the one intended.
As held in US vs. Diana decided by the Court as early as 1915,
"[t]he same crime would have been committed if the injured man
and the deceased had been Dionisio Legara, instead of the defendant's
nephew, x x x; the crime of homicide would have been co mitted just
the same and one man would have been deprived ofhi's'life by the c:-
iminal act of another." (People vs, Cabareiio, G.R. No. 138645, 16
January 2001, 349 SCRA 297)
,.:i '11·
Criminal liability is incurred even if there Is no conspiracy among the
offenders. ,
Even if two or more offenders do not conspire to commit homi·
cide or murder; they may be held criminally liable as principals by
direct particip_ation if they perform overt acts which mediately or
immediately cause or accelerate the death of the victim., applying
Article 4, paragraph 1 of the Revised Penal Code,: ·
"Art. 4. Criminal liability. - Criminal liability shall he
incuJTed:
"l. By any person committing a felony (delito) although
the wrongthl act done be different from that which he intended."
In such a case, it is not necessary that each of the separate
injuries is fatal in itself. It is sufficient if the injuries cooperated in
bringing about the victim's death. Both the offenders are criminally
liable for the same crime by reason of their individual rmd separate
overt criminal acts. Absent conspiracy between two or more offend
ers, they may be guilty of homicide or inurder for the death of the
victim, one es a principal by direct participation, and the other as an
accomplice, under Article 18 of the Revised Penal Code: xxx.
(People PS. Pilola, G.R. No. 121828, 27 June 200,3, 405 SCRA 1.34)
CONSUMMATED, FRUSTRATED AND
ATTEMPTED FELONIES
Attempted felony.
The essential elements of an attempted felony are as follows:
1 The offender commences the commission of the felony
directly by overt acts; .
should produce the felony;
3. The offender's act be not stopped by his own sponta
neous desistance;
 . . 4. The non-performance of all acts of execution was
.,.due to cause or accident other than his spontaneous desis
tance.
The first requisite of an attempted felony consists of two ele
ments, namely:
: '(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.
The Court in People vs. Lizada elaborated on the concept of an
overt or external act, thus:
"An overt or external act is defined as some physical
activity or deed, indicating the intention to commit a par
ticular crime, more than a mere planning or preparation,
which if carried out to its complete termination following
its natural course, without being frustrated by external
obstacles nor by the spontaneous desistance of the perpe
trator, will logically and necessarily ripen into a concrete
offense. The raison d'etre for the law requiring a direct
overt act is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never
ceased to be equivocal; and this is necessarily su, irre
spective of his declared intent. It is that quality of being
equivocal that must be lacking before the act becomes o e
which may be said to be a commencement of the commis
sion of the crime, or an overt act or before any fragment of
the crime itself has been committed, and this is so for the
reason.that so long as the equivocal quality remains, no
one can say with certainty what the intent of the accused
is. It is necessary that the overt act should have been the
ultimate step towards the consummation of the design. ! G.R. No. 129291, 03 July 2002, 383 SCRA 653)
is sufficient ifit was the "first or some subsequent step m
a direct movement towards the commission of the
offense after the preparations are made." The act done
need not constitute the last proximate one for
completion. It is nec essary, however, that the attempt
must have a causal re-
8 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 7
lation to the intended crime. In the words of Viada, the,,!J,
overt acts must have an immediate and necessary rela- tion
to the offense." (Rivera us. People, G.R. No; 166326,
25 J3,nuary 2006, 480 SCRA 188) : I '1
Having C!)mmenced the criminal act by overt acts but
failingto perform all acts of execution as to produce the felony,by
reason:of some cause other than his own desistance, petitioner
committed an attempted felony. Petitioner already commenced
his·attack with·a manifest intent to kill by shooting private
complainant seven times, but failed to perform all the acts of
execution by reason of causes independont of his will, that is, poor
aim and the swiftrie s 6r'the latter. Private complainant sustained a
wound on the;left arm that is not sufficient to cause his death. The
settled rule.is that. where
the wound inflicted on the victim is not sufficient to CS:iise his.death,
the crime is only attempted murder, since the accused did. pot· per
form all the acts of execution that would have brought about death.
(Velasco vs. People, G.R. No. 166479, 28 February 2006,. 483. SCRA
64 ''
"Does not perform all the acts of execution."
The wound sustained by Roger Cabiguen on his right forearm
was not fatal. The settled rule is that where the wound inflicted on
the victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the acts of
execution that would have brought about death. (People vs.Valledor,
We agree, however, with the argument of the Solicitor
General that for the injuries he i.nflicted on Felipe Pajunar,
appellant should be charged only of Attempted Murder instead of
Frustrated ,Murder. To be liable for the frustrated stage of a felony,
the offender must perform all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator. The testimonies of the medical experts show that the
wound inflicted was not of the kind which could have caused
instantaneous death. According to the testimony of Dr. Calumpang,
the only way by which Felipe's life would havl:l been endangered
was if the wound developed a major infection_ In fact, Felipe ¥•as
only confined at the NOPH for a few days after which he was
allowed to go home and recuperate. (People vs. Dela Cruz, G.R.
Nos. 154348-50, 08 June 2004, 431 SCRA 388)

Attempted rape.
In the crime of rape, penetration is an essential alt of execu tion
to produce the felony. Thus, for there to be an attempted rape, the
accused must have commenced the act of penetratinr, his s xual
organ to the vagina of the victim but for some cause or. accident
other than his own spontaneous desistance, the penetratm , ho v ever
slight, is not completed. (Perez vs. Court of Appeu.ls, C,.R. No.
143838, 09 May 2002, 382 SCRA 182)
Not a case of attempted rape.
The Solicitor General maintained that petitioner, by pressing on
Malou's face the piece of cloth soaked in chemical while holding her
body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt t rap? the
victim. It is argued that petitioner's actuation thus def1cI1.bed 1s an
overt act contemplated under the law, for there can not be any ot er
logical conclusion other than that the petitioner intended to r:1vis
Malou after he attempted to put her to an induced sleep. The Solici
tor General, echoing what the CA said, adds that if petiti n r's
intention was otherwise, he would not have lain on top of the
victim.
Under Article 335 of the Revised Penal Code, rape is commit
ted by a man who has carnal knowledge or intercours with a woman
under any of the following circumstances: (1) By usmg force or m
timidation; (2) When the woman is deprived of reason or otherw1se
unconscious; and (3) When the woman is under twelve years f age or
is demented. Under Article 6, in relation to the aforementioned
article of the same code, rape is attempted when the offender com·
mences the commission of rape directly by overt acts and do s not
perform all the acts of execution which should produce the cnme of
rape by reason of some cause or accident other than his own sponta·
neous desistance.
Expounding on the nature of an attempted felony, the Court,
speaking thru Justice Claro M. Recto in People us. Lamahang, stated
that "the attempt which the Penal Code punishes is that wh!ch ?asa
logical connection to a particular, concrete offense; that which ts the
t!
beginning of the execution of the offense by overt acts of perpetra
tor, leading directly to its realization and consummation." A?sent the
unavoidable connection, like the logical and natural relation f
the cause and its effect, as where the purpose of the offender in
10 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 9
performing an act is not certain, meaning the nature of the act in
relation to its objective is ambiguous, then what obtains is an at tempt
to commit an indeterminate offense, which is not a juridical fact from
the standpoint of the Penal Code.
There is absolutely no dispute about the absence of sexual
intercourse or carnal knowledge in the present case. The next ques tion
that thus comes t0 the fore is whether or not the act of the petitioner,
i.e., the pressing of a chemical-soaked cloth while on top of Malou,
constitutes an overt act of rape.
Overt or external act has been defined as some physical activ
ity or deed, indicating the intention to commit a particular.crime,
more than a mere planning or preparation, which if carried ritit toits
complete termination following its natural course, without' being
frustrated by external obstacles nor by the voluntary de istance of the
perpetrator, will logically and necessarily ripen int-0 a concrete
offense.
n ·., :,,,,
:_, : ,' • ,·. t -- , :, ·
Harmonizi:,g the above definition to the facts of this case; it
would he too strained to construe petitioner's act of pressing a
chemi cal-soaked cloth in th2 mouth of Malou which would induce
her to sleep as an overt act that will logically and necessarily ripen
into rape. As it were, petitioner did not commence at all the
performance of any act indicative of an intent or attempt to rape
Malou. It cannot be overemphasized that petitioner was fully clothed
and that there was no attempt on his part to undress Malou, let alone
touch her private part. For what reas,m petitioner wanted the
complainant uncomicious, if that was really his immediate intention,
is anybody's guess.
XXX
In Perez vs. Court of Appeals, the Court acquitted therein peti
tioner of the crime of attempted rape, pointing out that:
"xxx. In the crime of rape, penetration is an essen tial
act of execution to produce the felony. Thus, for there
to be an attP.mpted rape, the accused must have com•
oenced the act of penetrating his sexual organ to the·
vagina of the victim but for some cause or accident
other than his cwn spontaneous desistance, the
penetration, , however, ,:;light, is not completed."
XXX XXX XXX
 "Petitioner's act of lying on top of the comp ainant,
embracing and kissing her, mashing her breasts. insert ing
his hand inside her panty and touching her sexual organ,
while admittedly obscene and detestable .acts, do not
constitute attempted rape absent any showing that
petitioner actually commenced to force his penis ;.nto the
complainant's sexual organ. xxx."
Likewise in People vs. Pancho, the Court held:
"xxx, appellant was merely holding complainanys.fe
t when his Tito Onio arrived at the alleged locus
c;·1.mmis. Thus it would be stretching to the extreme our
credulity
. ' if we' were to conclude that mere holding of the feet is attempted
rape." (Baleros vs. People, G.R. No. 138033, 22
. February 2006, 483 SCRA 10)
Frustrated felony.
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a
consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of the
perpetrator.
XXX
In homicide cases, the offender is said to have. p rf rmed all
the acts of execution if the wound inflicted on the victim is mortal
and could cause the death of the victim barring medical interven
tion or attendance. (People vs. Caballero, G.R. Nos. 149028-30, 02
April 2003, 400 SCRA 424)
Considering that petitioner had performed all th ads of e ecution
which would have resulted in the death of the V1ct1 , had it not been for
timely medical assistance, a cause not of the Wlll of the petitioner, and
considering further the presence of treachery, en, the crime
committed is frustrated murder, not frustrated hom1c1de. (Andrada
vs. People, G.R. No. 135222.. 04 March 2005, 452 SCRA
685)
THE REVISED PENAL CODE 11
Attempted felony distinguished from frustrated felony.
In gist, they may be distinguished as follows:
1. In frustrated felony, the offender has performed· all the acts
of execution which should produce the felony as a consequence;
whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform all
the acts of execution.
2. In frustrated felony, the reason·for the non ac;co111p ish
ment of the crime is some cause independent of the will of the perpe
trator; on the other hand, in attempted felony, the reason for the non-
fulfillment of the crime is a cause or accident other.than the offender's
own spontaneous desistance: (People vs. Palaganas, G.Ri No. 165483,
12 September 2006) . · • ,,. , ···· ·
. . . ; l :
A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts: pre is.
vented, against his will, by some outside cause from performing all of
the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a
foreign force or agency which intervenes and compels him to stop prior
to the moment when he has performed all of the acts which should
produce the crime as a consequence, which acts it is·his intention to
perfom1. If he has performed all the acts which should result in the
consummation of the crime and voluntarily desists from proceeding
further, it cannot be an attempt. The essential ele, ment which
distinguishes attempted from frustrated felony is. that, in the latter,
there is no intervention of a foreign or extraneo s cause or agency
between the beginning of the commission of crime and the moment
when all the acts have been performed which should result in the
consummated crime; while in the former there is such intervention anci
of
the offender does not arrive at the point per forming all of the acts
which should produce the crime. He isstopped short of that point by
some cause apart from his voluntary desis tance.
To put it another way, in case of an attempt the offender ever
passes the subjective phase of the offense. He isinterrupted and
compelled to desist by the intervention of outside causes. before,
the subjective phase is passed. · '· ·
1., !i.,·:
On the other hand, in case of frustrated crimes, the subjective
phase is completely passed. Subjectively the crime is complete.
Noth
12 UPDATES IN CRIMINAL LAW
ing interrupted the offender while he was passing through the sub
jective phase. The crime, however, is not consummated by reason of
the intervention of causes independent of the will of the offender. He
did all that was necessary to commit the crime. If the crime did not
result asa consequence it was due to something beyond his control.
(People vs. Listeria, G.R. No. 122099, 05 July 2000, 335 SCRA 40)
Intent to kill, essential element of attempted or frustrated homi
cide or murder.
The principal and essential element of attempted er frustrated
homicide, or murder, is the intent on the part of the assailant to
take the life of the person attacked. Such intent must be proved ina
clear and evident manner to exclude every possible rlrmbt as to the
homicidal intent of the aggressor. xx x. When such intent is lacking
but wounds were inflicted, the crime is not frustrated murder but
physical injuries only - xxx. (People vs. Pagador, G.R. Nos.
140006-
10, 20 April 2001, 357 SCRA 2991
The observation that the conviction should be for slight physi
cal injuries only is likewise improper as the accused-appellant was
motivated by the same impetus and intent, i.e., to exact vengeance
and even kill, if necessary, when he shot Noel :\fadriaga. The fact
that the wound was merely a minor injury which could heal ina
week becomes inconsequential. (People vs. Almazan, G.R. No.
138943, I] September 2001, 365 SCRA 373) The intent to ki'l
determines whether the crime committed is physical injuries or
:Oornicide and such intent is made manifest by the acts of the
accuse,d which are undoubtedly intended to kill the victim. (People
us. Gonzalez, G.R.
No. 139542, 21 June 2001, 359 SCRA 220)
If one inflicts physical iii.juries on another but the latter sur
vives, the crime committed is either consummated physical
injuries, if the offender had no intention to kill the victim or
frustrated or attempted homicide or frustrated murder or attemr,ted
murder if the offender intends to kill the victim. Intent to kill may
be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and
number of wounds inflicted on the victim; (d) the manner the
crime was committed; and (e) words uttered by the offender at the
time tte injuries are inflicted by him on the victim. (People vs.
Caballero, G.R. Nos. 149028-
80, 02 April 2008, 400 SCRA 424)
THE REVISED PENAL CODE 13
ls there frus rated rape?
Rape is either attempted or consummated. There can be no
frustrated rape. xxx. This Court said in Orita: · ·
"Clearly, in the crime of rape, from the moment the
offe der as carnal knowledge of his victim, he actually
attam his purpo5e and, from that moment also au the·
e;se tial elem nts of the' offense have been accomplished:
NC1thmg more 1s left to be done by the offender, because ·
h has performed the last act necessary to produce the
cnme: Thus, the felony is consummated. In a long line o.f
cases (People vs. scar, 48 Phil. 527 [1925]; People vs..'
Hernandez, 49 Phil. 980 {1925]; People vs. Royeras, 56
SCRA 666 [1974r People us. Amores, 58 SCRA 505 [1974]
we have set the uniform rule that for the consummatio
o_f rap:, perfect penetration is not essential. Any penetra
tion ot the female organ by the male organ is sufficient ·
Entry of the labia or lips of the female organ, without
rupture of tho hymen orlaceration of the vagina, is suffi
:1ent to ':arrant conviction. Necessarily, rape is attempted
1f there 1s no penetration of the female organ (People vs
Tayaba, 62 Phfl. 559 [1935]; People vs. Rabadan and
Olaybar, 53 Phil. 694 [1927]; United States vs Garcia 9
Phil. 434 [1907] because not all acts of exe tion w;re
P:rformed. The offender merely commenced the
commis
;:non of a felony directly by overt acts. 'raking into account
the nature, e;1en_1ents, and manner of execution of the crime
of.rape and JUt1sprudence on the matter, it is hardly con
ce1vab.le ho,;"' the frustrated stage in rape can ever be
committed. (Peor,le vs. Aca-ac, G.R. No. 142500 20 A ·z ·
2001, 857 SCRA. 373) ' pri
CONSPIRACY
In General.
. Article 8 of the Revieed Penal Code provides thathere is con•
spi acy when t.w? or. more persons agree to commit.a crime and
?ecide to comm1 1t. Direct proof is not essential to prove conspiracy·
it may be ?st_abhshed by acts of the accused before, during and afte;
he comm1ss1on of the crime charged, from which it may be Iogicall
mfened the exi. tence of a common purpose to commit the Isam,:.
UPDATES IN CRIMINAL LAW
14
 THE REVISED PENAL CODE 15
The prosecution must prove conspiracy by the same q antum of
evidence as the felony charged itself. Indeed, P:oof ?f previous
ment among the malefactors to commit the cnme is nlothe. ssen
rtto
ia_ spirators as co-principals regardless of the extent and character of their
participation because in contemplation of law, the act of one
conspirator is the act of all. (People vs. Buntag, C.R. No. 123070,.14
April 2004, 427 SCRA 180)
prove . It i's not necessary to show. that· al d't e consp1ra-
conspiracy. killed the victim; what l · th t 11 Neither is its necessary to show that all the conspirators actu-;
t actuallv hit and is pnmor ia is a ad
tfs articipants performed specific acts with such_ closeness an ally hit and killed the victim. What has to be shown is that all the
CO r ination as to indicate a common purpos_e or design to bn participants performed specific acts ·with such closenesR and coordi
gOU' thevictim's death. Once conspiracy is e tab.hshcd, it is unn_e nation as to unmistakably indicate a common purpose and design. The
c.s r., to rove who among the conspirators mfl1cted the. fatal l conspiracy in the instant case was sufficiently proven by Jed
Jury. If meeting with appellants at the old airport tower and walking to
p . . d all the conspirators are cnmmally hable for gether \'.rith them towards the runway where appellants and Jed
consp acy h1s prodve 'd proved The act of one is the act. of all. (People performed acts in unison with each other as to unmistakably reveal
the cnme c arge an · 501
vs. Bulan, C.R. No. 143404, 08 June 2005, 459 SCRA5 i a common purpose and design. (People us. Quirol, G.R. No.
149259, 20 October 2005, 473 SCRA 509)
Conspiracy to commit a felony, not punishable; exception. Conspir&cy exists when two or more persons come to an agree
ment concerning the commission of a felony and decide to commit it.
It is clear that Section 2l(b) of R.A. No. 642S P':1nish:s t e
mere . to commit the offense of selling, deh•1ermg, d1stnb- Direct proof of conspiracy is rarely found, for criminals do not write
conspiracy · h · down their lawless plans a,1d plots. The agreement to commit a
uting and transporting of dangerous rugs. C re nspiracy
dere1 th
fi t the mere agreement to comn11t the said acts an ?o ... crime, however, may be deduced from the mode and manner of the
ers lo. t· thereof · While the rule is that .a mere consp1rac:,
· ·l bl , to commission of the offense or inferred from acts that point to a joint
actua execu 10n 'th
. . the t doing any overt act i s not purn s . purpose and design, concerted action, and community of intent. It
commit a cnme Wl ou · b 1 ia E ., .
t' . hen such is specifically penalized y aw, as i n th e did not matter if it was only accused-appellant Francisco who in
:: :pot;e :i; 21of Republic Act 6425. (People us. Fabro, C.R. flicted the mortal wound, as the act of one was the act of all, and
No. each incurred the same criminal i.iability. (People vs. Hapa, C.R. No.
114261, 10 February 2000, 325 SCRA 285) 125698, 19 July 2oa1, 361 SCRA 361)
It is not necessary to prove a previ.ous agreement to commit a
Is direct proof of previous agreement to establish conspiracy es crime ifthere is proof that themalefactors have acted in concert and
sential?
in pursuance of the common objectives. Direct proof is not essential
C . ·s predominantly a state of mind a.; it involves
t honsp1
e racy
t i ,
t. f th 1 to show conspiracy since it is by its nature often plarined in utmost
mee go minds and .intent of the malefactors. Consequen ),
m e 1 t bl' h . t The existence of the secrecy and it can seldom be proved by direct evidence. Conspiracy
direct proof is not essent1a. to esa is l . , f f may be inferred from the acts of the accused themselves when such
t of minds of the co-conspirators may be inferred from prooo point to a joint purpose and design. Complicity may be determined
;::::andcircumstances which, taken. togeth r, ind( cat tha t 7c; by concert of action at the moment of consummating the crime and
areparts of the complete plan to commit the cnme. eope us. e ' the form and manner in which assistance is rendered to the person
G.R. No. 124871, 13 May 2004, 428 SCRA 388) inflicting thti fatal wound. (Li vs. People, C.R. No. 127962, 14 April
Direct proof is not essential to establish conspiracy, a d ma 2004, 427 SCRA 217)
b .. fi rred from the collective acts of the accused before, dunng an ':'.:It can be proven by evidence of a chain of circumstances and
e me . · be presumed from
after the commission of the cnme. Conspiracy d. cts may be inferred from the acts of the accused before; during, and
can,
. d· by acts of the accused themselves when the sa1 a. an conspirators
proven . d t' and commumty
pofo.t'to a joint urpose and des1gnto, co cert a \; nthe f interests. It 1s not necessary s ow h
:ctually hit and killed the victim. Conspiracy renders allt e
 con-
16 UPDATES IN CRIMINAL LAW
437; People vs. Peralta, G.R. No. 13::126'/, 08 August 2002, 387
SCRA
45; People us. Pacificador, G.R. No. 126515, 06 FPbruary 2002..
87n
SCRA 180)
Quantum of proof required in establishing conspiracy.
Similar to the physical act constituting the crim(i itself, the
elements of conspiracy must be proven beyond reasonable doubt.
Settled is the rule that to establish conspiracy, evidence of actual
cooperation rather than mere cognizance or approval of an illegal
act is required.
A conspiracy must be established by positive and
conclusive evidence. It must be shown to exist as clearly and
convincingly as thecommission of the crime itself (People vs.
Mapalo, G.R. No. 172608, 06 February 2007) Mere presence of a
person at the scene of the crime does not make him a conspirator
for conspiracy transcends companionship. (People us. Comadre,
G.R. No. 153559, 08 June 2004, 431 SCRA 366)
Proving conspiracy is a dicey matter, especially difficult in
cases such as the present wherein the criminal acts arose
spontaneously, as opposed to instances wherein the participants
would have the opportunity to orchestrate a more deliberate plan.
Spontaneity alone does not preclude the establishment of
conspiracy, which after all, can be consummated in a moment's
notice - through a single word of assent to a proposal or an
unambiguous handshake Yet it is more difficult to presume
conspiracy in extemporaneous outbursts of vio
lence; hence, the demand that it be established by positive
evidence.
A
onconviction premised on a finding of conspiracy mus c be founded
facts, not on mere inferences and presumption.
u. . People, G.R
(U
No. 127962, 14 April 2004, 427 SCRA 217)
Mere suspicion, speculation, relationship, association, and
com panionship do not prove conspiracy. (People vs. Manijas,
G.R. No. 148699; 15 November 2002, 391 SCRA 731) Mere
knowledge, acqui escence, or agreement to cooperate, is not
enough to constitute one as a party to a conspiracy, absent any
active participation in the commission of the crime, with a view
to the furtherance of the com mon design and purpose.
after the commission of the crime which indubitably point to and
are indicative of a joint purpose, concert of action and community of
interest. (People vs. Yu, G.R. No. 155030, 18 May 2004, 428 SCRA
THE REVISED PENAL CODE
17
cognizance or approval of an illegal act is required.
"Nevertheless mere kn?wlcdge, acquiescence or approval of the
act without th ' cooperat10n O" agreem.ent to cooperate, is not
enough\o constitu: o_na art toa consp1racr, but that .there must
be intentional par
!1c1pat1on m_ the transaction with a view to the furtherance of the
ommo design and purpose." (People vs. Gonzales ·a.R No 128282
30 April 2001, 357 SCRA 460) ' . . '
. Conspiracy must be established not by conjectures butb ' ·
t1ve nd conclusive evidence. Conspi acy transcends mkre co: : :
on P and mere presence at the scene of the cnme does not in
rtsef amount to conspi:acy. Even knowledge, acquiescence in or
agreem nt to cooperate, 18 not enough to constitute one asa party
to
\ con p1rac , abse:1t any active participation in the commission of
t e cnme with a view to the furtherance of the common design and
purpose.
n · ZAs the Court eloquently pronounced in a case of recent vintage
reap e I'S. lvfandao: '
"To be sure, conspiracy is not a harmless
innuendo to be taken lightly or accepted at every turn. It is
a. legal concept that imputes culpability under specific
circum stances; as such, it must be established as clearly
as any e.l:ment of the c me. Evidence to prove it must be
posi tive a_nd c?n:11ncmg, considering that it is a
convenient and s1mphs+,1c device by which the accused
mav be en-·
s-d·nared and kept within the penal fold xxx "('T us.
p ·
· onga
; l e, G.R. No. 141066, 17
February LIU
6 ) 2005, 451 SCRA
Conspiracy transcends companionship. (People vs. Compo, G.R.
No. 112990, 28 May 2001, ,158 SCRA 266)
Mere presence at the scene of the crime at the time of its
commission i·s not, by itself, sufficient to establish conspiracy. To
establish conspiracy, evidence of actual cooperation rather than
mere
 . Certainlr, there is no conspiracy in just being married to an
ef1;mg spouse. For a spouse or any person to be a party toa con
sp1racy a to b liable for the.acts of the others, it is essential
there be mtent10nal participation in the transaction witha view to thai
the rth rance of the common design. Except when he is the mas
termindm a conspiracy, it is necessary that a conspirator should
have perfo:med some o ert act as a direct or indirect contribution
in the execu 1on of th_e cnme planned to be committed. The
overt act
m st c_ons1st of active participation in the actual commission of the
cnme.1tself or of moral assistance. to his co-conspirators /f1'1..
Sandiganb GR u · 1 .u:ves vs.
309) ayan, . . .,o. 154182, 17 December 2004 447 SCRA
 UPDATES IN CRIMINAL LAW
18 THE REVISED PENAL CODE 19

Liability of offenders where there Is conspiracy. . Conspiracy must be alleged in the information.
.. . . . h been proven, it need not be determined
. ·. Smee conspiracyd 1' red the fatal blow. All of the accused In all criminal prosecutions, the accused shall first be i forine'd
who among the accuse e ive t and character of of the nature and cause of the accusation against'him. The right o
are liable as p ncipal regard ess 0 i: : :c : ; ne is foe act of all. the accused to be informed of the charges against him is- explicit in
their participation, for m conspiracy 2000) Sec. l(b), Rule 115 of the Rules of Criminal Procedure. To ensure
(People vs. Forca, G.R. No. 134938, 08 June . that the due process rights of an accused are observed, every indict
ment must embody the essential elements of the crime charged with
Hencein accordance with the principle that in conhspd1ral Y reasonable particularity as to the name of the accused, the time and
. ' thde
h fact th t 'twas Bagano w o e ivere
act of one is the act of all,t. e d C :e 's participation was limited place of commission of the offense, and the circumstances thereof.
the fatal blow on M n ctno ::riaal Conspiracy bestows upon One such particular circumstance is conspiracy where two. or
them to a mere embrace 18 imma · f: te for their more persons are charged in an information. Conspiracy denotes
acts. an in tentional parUcipation in a criminal transaction, with a view
equal li ility; hence,0 tRhe !s, h f 9 : ' e ;as : : 6,,i a2002, 375 to the furtherance of n common design and purpose. It impµtes
SCRA (People vs. Bagano, · · rvo. criminal liability to an accused for the acts of another or others,
4W . · regardless of the nature anri extent of his own participation. In a
frevious plan or agreement to commita conspiracy, the act '.>f one becomes the act of all and the
In the absenceo any .P. . . . frm different acts directed
crime, the criminal respons1b1hty a1;s1 ngd1'V1 dual and not particular act ofan accused becomes of secondary re!evance. Thus,
collective, it is essential that an ac cused must know from the information
. d the same person 1s 1 whether he is·criminally accountable not only for his acts but also
against one an of the articipants is liable only for his own acts.
and that each d GPRN 132330 28 November 2000, 346 for the acts·of·his co· accused as well. An indictment for
SCRA (People vs. Bangca o, · · o. ' conspiracy is sufficient if: (1) it follows the words of the statute
189) creating the offense and reasonably informs the accused of the
character of the offense he is charged with conspiring to commit.;
Implied conspiracy.
or (2) following the statute, contains a sufficient statement of an
overt act to effect the object of the con spiracy; or (3) alleges uoth
. . deemed implied when the malefactors havea
Conspiracy is nd were united in its execution. Spontaneous the conspiracy and the contemplated
common f by all perpetrators at the moment crime in the language of the respective statutes defining' them.
purposea.
agreement o: a tive cooper 101: ufficient to create joint criminal will
of the comm1ss1on of the cnme iss l GR No 159280 18 May the act of one becomes t 1i8 ac . aof' the crime committed.
responsibility. (Sim vs. Court of Appea s, . . . ' (People
thereby be deemed equay gmy "'CRA •Jqq)
2004, 428 SCRA 459)
In determining the existence of conspi:acy, it i_s not nece.s ry
1
to show that all the co1:spirators act :!l: :!s: d}: l ; 0: :: ;
The presence of conspiracy among . .n of the
d . g or after the comnussw
th ir condu t be,or\ un; dinunison with each other,
evinc·
nme showing that tos'::::esign. There must be a showing
that
mg a common purp . . . f. th offense ei Lher mor-
ellant cooperated in the comm1ss10no e . , . t ., 11'
app . a ement or agreement m ma ena y
ally, th{ou1h a :: r::ti g a manifest intent of supplying aid
throug ex erna. . crime in an efficacious way In ,mch
case, in th .e rpetrat10n of th t f 11 and each of the accused
(Garcia vs. Court of Appeals G.R. No. 124036, 23 October 2001, 368 commission of the offense. (People vs. Tampis, G.R. No. 148725,
SCRA222) 31 ,July 2003, 407 SCRA 682) .
The rule is that conspiracy must be alleged, ot ·merely 'in ferred,
in the information. Absence of a particular statement in the accusatory Supplementary application of RPC provisions to special laws.
portion of the charge sheet concerning any definitive act constituting
Article 10 of the Revised Penal Code is composed of two clauses.
conspiracy renders the indictment insufficient to hold one accused
liable for the individual acts of his co accused. Thus, each of them The first pruvides that offenses which in the future are made pun
ishable under special laws are not subject to the provisions of the
would be held accountable
'R N only for their respective participation in the
vs. Ramos, C r . . o. J1April2004,42t,S,- ·
J3t : :204
,) '
 UPDATES IN CRIMINAL LAW
20
RPC, while the second makes the RPC supplementary to such
la.ws. Wbile,it seems that the two clauses are contradictory,
s<ms1ble interpretation will show that they can perfectly be
reconciled.
. .The charg:J being simple carnapping, the imposable' penalty
The first clause should be understood to mean only that t e
special penal Jaws are controlling with regard to offenses therem
specifically punished. Said clause only restat s. the eleme tal rule of
statutory construction that special legal prov1s1ons prevail over
gen eral ones. Lex specialis derogant generali. In fact, the. cl use can
be considered as a superfluity, and could have been eh:11mated
alt?
gether. The second clause cont ins the oul_ofthe art1 l . The mam
idea and purpose of the article 1s embodied m the provision that
the "code shall be supplementary" to spechl laws, unless the latter
should
specifically provide the contrary.
B.P. Blg. 22 does not expressly proscribe the suppletory appli
cation of the provisions of the RPC. Thus, in the absence of contr ry
provision in B.P. Blg. 22, the general provisions of the RPC wh1:h,
by. their nature, are necessarily applic ble, e.y be applied suppletorily.
Indeed, in the recent case of _r
vs..l eop:,e, the Court applied
suppletorily the provisions on subsidiary 1mpnsonment un der Article
39 of the RPC to B.P Blg. 22. (Ladonga vs. People, G.R.
No. 141066, 17 February 2005, 451 SCRA 673)
Exception-
While the information alleges that the crime wa;- attended wi.th
grave abuse of confidence, the same cannot be ap rcciated as the
suppletory effect of the Revised Penal Cod to special laws, as ro-
' d din Article 10 of said Code, cannot be mvoked when there 1sa
vi e impossibility of application, either by express provision
legal .. or Y b
necessary implication.
Moreover when the penalties under the special law are differ
ent from and :U.e without reference or relation to those under the
Revised Penal Code there can be no suppletory effect of the rules,
for the application 'or penalties under the said ode or by oth
relevant statutory provisions are based on or applicable only to said
rules for felonies under the Code.
Thus, in People us. Panida which invo ved the_ crime of
carnapping and the penalty imposed was the mdetermmate sen
tence of 14 years and 8 months, as minimum, to 17 e.ars and4
months, as maximum, this Court did not apply the proV1s1ons of the
THE REVISED PENAL CODE 21
Revised Penal Cocie suppletorily as the anti-carnapping law·pro vides
f,or its own penaltie3 which are distinct and without reference to the
said Code.
' ,i:·
is 1mpnsonment for not less than 14 years and 8 months and not
tnore than 17 years and 4 months. There can be no supplet-0ry
effect of the rules for the application of penalties under the Revised
Penal Code or by other relevant statutory provisions based on, or
applicable only to, the rules for felonies under the Code. While it
is·true that the penalty of 14 years and 8 months to 17 years arid 4is
months virtually equivalent to the duration of the medium periodreclu
'of
sion tempo1·al, such technical term under the Revised Penal Code is
1;ot given to that penalty for carnapping. Besides, the other penal
bes for carnapping attended by the qualifying circumstances stated
in the law do not correspond to those in the Code. The rules on
penalties in the Code, therefore, cannot suppletorily apply to Re
public Act No. 6539 and special laws of the same formulation. For
this reason, we hold that the proper penalty to be imposed on each
of accused-uppellant.s is an indeterminate sentence of 14 years and
8 rnonths, as minimum, to 17 years and 4 months, as maximum.
(People vs. Bustinera, G.R. No. 148233, 08 June 2004, 431 SCRA
284)
..;usrtFYING CIRCUMSTANCES
Self-defense.
Self-defense under j,.rticle 11, paragraph 1 of the Revised Pe
nal Code necessarily implies a deliberate and positive overt act f
the accused to prevent or repel an unlawful aggression of another
with the use of reasonable means. The accused has freedom of ac tion.
He is aware of the consequences of his deliberate acts. The defense is
based on necessity which is the supreme and irresistible master of
men of all human affairs, and of the law. From necessity, and limited
by it, proceec'l.s the right of self-defense. The right begins when
necessity does, and ends where it ends. Although the.accused; in fact,
injmes or kills the victim, however, his act is in accordance with law
so much so that the accused is deemed not to have trans gressed the
law and is free from both criminal and civil liabilities.
(Toledo vs. People, G.R. No. 158057, 24 September 2004 439 SCRA
94) 1
22 UPDATES IN CRIMINAL LAW
Burden of proof. .
By invoking self-defense, the petitioner thereby admit:_ted ha
ing deliberately caused the victim's injuries. The burden ot proof 1s
shifted to him to prove with clear and convincing evidence all the
requisites of his affirmative defense. He must rely on the strengt of
his own evidence and not on the weakness of that of the prosecution
because even if the prosecution's evidence is weak, the same can no
longer be disbelieved after the petitioner admitted inflicting the
mortal injuries on the victim. (Casitas vs. People, G.R. No. 152358,
05 February 2004, 422 SCRA 242; People vs. Concepcion, G.R.
No.
169060, 06 February 2007)
Self-defense, like alibi, is a defense which can easily be con
cocted. It is well-settled in this jurisdiction that once an accused
has admitted that he inflicted the fatal injuries on the deceased, it
is incumbent upon him in order to avoid criminal liability, to
prove the justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. (Cabuslay vs. People, G.R.
No. 129875, 30 Sep tember 2005 471 SCRA 241) When successful,
an otherwise feloni Olli! deed wo d be excused, mainly predicated
on the lack of crimi nal intent of the accused. (People vs. Dagani,
G.R. No. 153875, 16
August 2006)
Requisites of self-defense.
The elements of self-defense are: (1) that the victim has com
mitted unlawful aggression amounting to actual or imminent threat
to thelife and limb of the person claiming self-defense; (2) that there
be reasonable necessity in the means employed to prevent or repel
the unlawful aggression; and (3) that there be lack of sufficient
provocation on the part of the person claiming self-de en e or, at
least, that any provocation executed by he person da1mm el; defense
be not the proximate and immediate cause of the victims aggression.
(People us. Enfectana, G.R. No. 132028, l9 April 2002,
381 SCRA 359)
Unlawful aggression, an indispensable requisite.
Unlawful aggression is an actual physical assault or at leasta
threat to attack or inflict physical injury upon a pers0n. A mere
threatening or intiinidating attitude is not considered unlawful ag
gressfon;'unless the threat is offensive and menacing, manifestly
showing the wrongful intent to cause injury. There must be an ac-
THE REVISED PENAL CODE 23
tual, sudden, unexpected Attack or imminent danger thereof,
which puts. he defendant's life in real peril. (Manaban vs. CA,
G.R. No.
150723, 11 July 2006, 494 SCRA 503) . '
AB an element of self-defense, unlawful aggressio ref rs to n
assault or attack, or a threat thereofin an imminent and i ediate
manner, which places the defendant's life in. actual peril. It is an act
positively strong showing the wrongful intent of the aggressor and
not merely a threatening or intimidating attitude. It is also de·
scribed as a sudden and unprovoked attack of immediate and hmni
nent kind to tht: life, safety or rights of the person attacked. \i·,.,,11, 1
There is an unlawful aggression. on tli. part of.th ctim ' hen
he puts in actual or imminent peril the life, limb;..or' Hgni'. f the
person invoking self-defense. There must be actual physical force or
actual use of weapon. In order to constitute unlawful !aggi!ession;
the persor, attacked must be confronted by a real threat on,his life
and limb; and the peril sought to be avoided is imminent and
actual not merely im:::ginary. (People vs. Beltran, G.R. No.
168051;,27. Sep tember 2006) ii.
. • , 1 ;_; ; 1
The condition of unlawful aggression is a sine qua o · th
wise stated, .th re can be no self-defense, complete or,inco:iiplete,
unless the victim has committed unlawful aggression 1against the
person def•mding himself. (People vs. Enfectana, G.R. No. 132028, 19
April 2002, 381 SCRA 359) In other words in self-defense, unlawful
aggression is a primordial element. It presupposes an actual, sud
den and unexpected attack or imminent danger on the life arid limb
of a person - not a mere threatening or intimidating ,attitude -
but most importantly, at the time the defensive action. was taken
against the aggressor. (Cano vs. People, G.R. No. 155258 07 October
1
2003, 413 SCRA 92) Thus, when there is no peril, there. is no unlaw
ful aggression. (Cabuslay vs. People, G.R. No. 129875; 30 September
2005, 471 SCRA 241)
The person defending himself must have been attacked ,.vith
actual physical force or with actual use of weapon. Of all the ele
ments, unlawful aggression, i.e.' the sudden unprovoked' attack ori
the person defending himself, is indispensable. A threat, even if
made v,.'ith a w_eapon, or the belief that a person was about to be
attacked, is not sufficient. It is necessary that.the intent be ostensi
bly revealed b_; an act of aggression or by some external1 ii'ct's ·show
ing the commencement of actual and material aggression. (People
vs. Pateo, G.R. No. 156786 03 ,June 2004, 430 SCRA 604) ·
24 UPDATES IN CRIMINAL LAW
Having established that there was no more unlawful aggres
sion t.o speak of at the moment of killing, there can likewise be no
self-defense, complete or incomplete, as the element of the
unlawful aggression by'the victim committed against the person
defending himself, is a condition sine qua non to the appreciation
of this justi fying circumstance in appellant's favor. (People vs.
Guarero, G.R. No. 134759, 19 September 2002, 389 SCRA 389;
People vs. Rabanal,
G.R. No. 146687, 22 August 2002, 387 SCRA 85; People vs. Dela
Cruz, G.R. No. 139970, 06 June 2002, 383 SCRA 250; People vs.
Enfectana, G.R. No. 132028, 19 April 2002, 381 SCRA 859) If there
is nothing to preuent or repel, the other two requisites of self-
defense
will have no basis (People vs. Escarlos, G.R. No. 148912, 10 Septem
ber 2003, 410 SCRA 463)
Mere threatening attitude is not unlawful aggression.
The aggression must be real and not just imaginary.· A mere
perception of an impending attack is not sufficient to constitute
unlawful aggression, and neither is an intimidating or threatening
nttitude. (People vs. Amante, G.R. No. 148724, 15 October 2002, 391
SCRA 155)
A mere threatening or intimidating attitude is not sufficient.
Likewise, the exchange of insulting words and invectives between
Tangan and Generoso Miranda, no matter how objectionable,
could not be considered as unlawful aggression, except when
coupled with physical assault. (People vs. Court of Appeals and
Tangan, G.R. Nos. 103613 and 105830, 23 February 2001, 352
SCRA 599)
It is axiomatic that the mere thrusting of one's hand into his
pocket as if for the purpose of drawing a weapon is not unlawful
aggression. Even the cocking of a rifle without aiming the firearm at
any particular target is not sufficient to conclude that one's life was
in imminent danger. Hence, a threat, even if made with a weapon,
or the belief that a person was about to1:ie attacked. is not sufficient.
It is necessary that the intent be ostensibly revealed by an act of
aggression or by some external acts showing the commencement of
actual and material unlawful aggression. (People us. Rubiw, G.R.
No. 128871, 18 March 2003, 399 SCRA 267)
When an unlawful aggression has ceased to exist, the one making
a defense has no right to kill or injure the former aggressor.
\Vhen an unlawful aggression has ceased to exist, the one mak
ing a defense has no right to kill or injure the former aggressor.
26 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 26
(People vs. San Juan, G.R. No. 144505, 06 August 2002, 386 SCRA
400; People vs. Tejero, G.R. No. 135050, 19 April 2002, 381 SCRA
382) Ao testified by accused-appellant himself, the deceased who
was at that time very drunk tried to hit him but missed and fell on
the ground. At that point, unlawful aggression ceased and it was no
longer necessary for him to stab the deceased. It was accused-
appel lant, therefore, who became the aggressor when'he despite
the con dition of the deceased, proceeded to stab the latter'at the
back: His act can no longer be interpreted as an act of self-
preservatidn but a perverse desire to kill. Hence, he cannot
successfully claim the ben efit of self-defense. (People vs. Antonio,
G.R. No. 144933, 03 July 2002, 383 SCRA 751)
An act of aggression, when its author does not pe sist in his
purpose, or when he discontinues his attitude to the extent that the
object of his attack is no longer in peril, is not unlawfulaggression
warranting self-defense. (People vs. Geneblazo, G.R. No. 133580, 20
July 2001, 361 SCRA 572) And this Court has consistently held that
when th unlawful aggression which has begun no longer exists, the
one making th defense has no more right to kill or even wound the
former aggressor. (People vs. Caguing, G.R. No. 139822, 06 December
2000, 347 SCRA 374) .
Even assuming arguendo that there was an altercation before
the stabbing inddent and that some danger did in fact; exist·the
imminence of that danger had already ceased the n;ioment appehant
disarmed the victim by wresting the knife from the latter. After.the
former ad successfully seized it, there was no longer any unlawful
aggression to speak of that would have necessitated the need to kill ·
the latter. Hence, appellant became the unlawful aggressor when he
stabbed the victim. : · · ,i'i··,,
When an 1.;nlawful aggression that has begun no longer exists,
the one who resorts to self-defense has no right to kill or even to
wound the former aggressor. To be sure, when the present victim no
long:r persisted in his purpose or action to the extent that the object
of h1s attack was no longer in peril, there was no more·unlawful
aggression that would warrant legal self-defense on the part of ap
pel ant. Ur,doubtedly, the latter went beyond the call of self-preser
vation when he proceeded to inflict excessive, atrocious and fatal
injuries on the latter, even when the allegedly unlawful aggressiori
had already ceased. (People vs. Escarlos, G.R. No. 148912, 10 Sep'
tember 2003, 410 SCRA 463) Aggression, if not continuous does not
constitute nggression warranting self-defense. (Sanchez v . People,
G.R. No. 161007, 06 December 2006) ·. ; .· .
Retaliation distinguished from self-defense.
An.act of aggression when its author does not parsist in his
purpose, or when he discontinues hi: a?gression such that the.ob
ject of his attack is no longer in penl, 1s not 1;1nl_awf l aggre s1on.
Self-defense must be distinguished from retaliation; m thatm re
taliation, the inceptual unlawful aggression had already renst d w en
the accmied attacked him. In self-defense, the unlaw ul aggression
was still existing when the aggressor was injured or disabled by the
person making the defense. (People us. Gallego, G.R. No. 127489, 11
July 2003, 406 SCRA 6)
Retaliation is different from self-defense. In retaliation, the 8g
gerss ion that was begun by t.he injured party already ceased_ to
xist when the accused attacked him. In self-defense, the aggress10n
:as still existing when the aggressor was injured by the accused.
(People vs. Vicente, G.R. No. 137296, 26 June 2008, 405 SCRA 40)
After the danger has passed, one is not justified in followin?
up his adversary to take his life. The conflict for blood sho':ld be
avoided if possible. An assault on his person, he annot pums 1
when the danger or peril is over. When the danger 1s over, t. e
right o sel: defense ceases. His right is defense, not retnbut10n.
(SenoJa vs. People, G.R. No. 160341, 19 October 2004, 440 SCRA
695)
The means employed to prevent or repel the aggression must be
reasonably necessary.
The second element of self-defense demands that *e means
employed to neutralize the unlawful aggressio are reasonable and
necessary. It is settled that reasonable nece 1ty of the means em
ployed does not imply material commensurab1hty between the means
of attack and defense. (People vs. Dagani, G.R. No.. 158875, 1.6 Au-
guts 20061,,,
What the law requires is a rational
c,
eqmvalence,
-
m the
consideration of which will enter as principal 1actors.tl1e
emergency, the imminent danger to which the person attacked 1s
exposed, and the instinct more than reason, that moves or impels
the defense; and the proportionateness thereof does not depe d.
upon the harm done, but upon the imminent danger of such
mJury. (People us. Rabanal, G.R. No. 146687, 22 August 2002, 387
SCRA 85) The rea sonableness of the means employed may take
into accot_1nt the weap ons, the physical condition of the p rties
f:
and other circumstances showing that there is a rational
equivalence between the means of
THE REVISED PENAL CODE 27
attack and the defense. (People vs. Palaganas, G.R. No. 165488, 12
September 2006)
On the question of whether the means employed by appellant
were reasonable, th<J number of gunshot wounds inflicted on the
deceased shows that the means employed were hardly reasonable at
all. A suming arguendo that the victim fired first at appellant, a single
shot could hav; already disabled the former who was inebri ated. The
nature and number of wounds inflicted upon the victim are
important indicia which disprove a plea of self-defense. The
gruesome, multiple gunshot wo,mds inflicted upon the deceased show
that appellant's act was not one of self-defense, but was a deter
mined and purposeful attack upon the victim. (People us. Ubaldo,
C.R. No. 129389, 17 October 2<J01, 867 SCRA 482)
"Lack of sufficient provocation on the part of the person defend
ing himself."
As to the third requisite that the provocation must be suffi
cient. it should be proportionate to the aggression and adequate to
stir the aggressor to its commission. To be entitled to self-defense,
however, the one defending himself must not have given cause for
the aggression by his unjust conduct or by inciting or provoking
the aggressor. (Rimano :;s. People, G.R. No. 156567, 27 November
2003, 416 SCRA 569) Or. at least, that any provocation executed by
the person claiming self-defense be not the proximate and immedi
ate cause of the victim's aggression. (People vs. Annibong, G.R. No.
139879, 08 May 2003, 408 SCRA 92;
As an element e,f self-defense, it pertains to its absence on the
part of the person defending himself; while as a mitigating circum
stance, it pertains to its presence on the part of the offended party.
(People us. Court of Appeal.'! and Tangan, G.R. Nos. 103613 and
105830, 23 February 2G01, 352 SCRA 599)
Battered Woman Syndrome per se, not a justifying circumstance.
In any event, the existence of the syndrome in a relationship
does not in itself establish the legal right of the woman to kill her
abusive partner. Evidence must still be considered in the context
of self-defense. ·
From the expert opinions discussed earlier, the Court reckons
further that crucial to the BWS defense is the state of mind of
the
battered woma.? at the time of the offense - she must have actually
28 UPDATES IN CRIMINAL LAW
feared imminent harm from her batterer and honestly believed in
the need to kill him in order to save her life. xxx.
Unlawful aggression is the most essential element of self-de
fense. It presupposes actual, sudden and unexpected attack - or an
imminent danger thereof - on the life or safety of a person. In the
present case, however, according to the testimony ofMarivic herse)f,
there was a sufficient time interval between the unlawful aggres
sion of Ben and her fatal attack upon him. She had already been
able to withdraw from his violent behavior and ei:;cape to their
children's bedroom. During that time, he apparently ceased his at
tack and went to bed. The reality or even the imminence of the
danger he posed had ended altogether. He was no longer in a posi
tion that presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of
their children's bedroom - and based on past violent incidents,
there was a great probability that he would still have p'lrsued her
and inflicted graver harm - then, the imminence of the real threat
pon her life would not have ceased yet. Where the bru\;a}ized per
son is already suffering from BWS, further evidence of actual physi
cal assault at the time of the killing is not required. Incidents of
domestic battery usually have a predictable pattern. To require the
battered person to await an obvious, deadly attack before she can
defend her life "would amount to sentencing her to 'murder by in
stallment.'" Still, impending danger (based on the conduct of the
victim in previous battering episodes) prior to the defenuant's use of
deadly force must be shown. Threatening behavior or communica
tion can satisfy the required imminence of danger. Considering such
circumstances and the existence ofBWS, self-defense may be appre
ciated.
We reiterate the principle that aggression, if not continuous,
does not warrant self-defense. In the absence of such aggression,
there can be no self-defense - complete or incomplete - · on the
part of the victim. Thus, Marivic's killing of Ben was not
completely justified under the circumstances. (People vs.
Genosa, G.R. No. 135981, 15 January 2004, 419 SCRA 537)
Battered Woman Syndrome as a defense.
Under R.A No. 9262 (Anti-Violence Against Women and
Their Children Act of 2004), which took effect on 27 March 2004, it
is provided that -
THE REVISED PENAL CODE 29
"SECTION 3. Definition of Terms. - xxx, . ·, ... ·, ··.(
·;
"(b) "Battery" refers to an act of inflicting physical
harm upon the woman or her child resulting to the·physi-
. cal and psychological or emotional distress. ·· =' · ', . , ·, • ,,
"(c) "Battered Woman Syndrome" refers to' ci -' '"
tifically defined pattern of psychological and behavior"al ·:
'' symptoms found in women living in battering relation•, :·.
ships as a result of cumulative abuse. . .." . .'.
XXX
"SECTION 26. Battered Woman Syndro;,,,e as a
Defense. - Victim-survi•,ors who are found by the courts
to be suffering from battered woman syndrome do not
incur any criminal and civil liability notwithstandinithe
abse.ice of any of the elements for justifying
circumstances of seif-defense under the Revised Penal
Code.
"In the det.ermination of the state of mind of the
woman who was suffering from battered woman
syndrome' at the time of '.he commission of the crime,
the' courts shall be assisted by expert psychiatrists/
psychologists."·
Defense of relatives.
The justifying circumstar.ce of defense of a relative can only be
raised where there is a concurrence of the requisites of unlawful
aggression, reasonable necessity of the means employed to repel the
aggression and that the person making the defense had no part in
the provocation. (People vs. Mendez, G.R. No. 131815, 14 August
2002, 387 SCRA 294)
Of the three (3) requisites of defense of relatives, unlawful
aggression is a condition sine qua non, for without it any defense is
not possible or justified. In order to consider that an unlawful ag
gression was actually committed, it is necessary that an attack or
material aggression, an offensive act positively determining the in
tent of the aggressor to cause an injury shall have been made;a
mere threatening or intimidating attitude is not sufficient to justify
the commission of an act. which is punishable per se, and allowa
claim of exemption from liability on the ground that it was commit
ted in self-defense or defense of a relative. (Balunueco vs. CA, G.R.
No. 126968, 09 April 2003, 401 SCRA 76)
...
30 UPDATES IN CRIMINAL LAW
Defense of strangers.
In order to successfully put up this defense an accnsed must
show (1) the existence of unlawful aggression on the part of the
victim· (2) the reasonable necessity of the means employed to pre·
vent o repel it; and (3) that the accused has not been induced.by
revenge, resentment, or other evil motive. The unlawful a ss1on
must be a continuing circumstance or must have been existing at
the time the defense is made. Once unlawful aggression is found to
have ceased, the one making the defense of a stranger would like
wise cease to have any justification for killing, or even just wound
ing, the former aggressor. (People vs. Dijan, G.R. No. 142682, 05
June 2002, 383 SCRA 15)
Avoidance of greater evil.
The law prescribes the presence of three requisites exempt
the actor from liability under this paragraph: (1) that the evil
sought to be avoided actually exists; (2) that the injury feared be
greater than the one done to avoid it; (3) that there be no other
practical and less harmful means of preventing it.
In the instant case, the evil sought to be avoided is merely
expected or anticipated. If the evil sou ht to be avoid d is mere y
expected or anticipated or may happen m the future, this efense
ts not applicable. Ty could have taken advantage of a vatlable
op tion to avoid committing a crime. By her own adm1ss1on, she
had the choice to give jewelry or other forms of security instead of
post dated checks to secure her obligation.
Moreover, for the defense of state of necessity to be availing,
the greater injury feared should not have een rou ht about by the
negligence or imprudence, more so, the willful inaction of the actor.
In this case, the issuance of the bounced checks was brought about
by Ty's own failure to pay her mother's hospital bills.
The Court also thinks it rather odd that Ty has chosen the
t,
exempting circumstance of uncontrollable fear an? justifying
circumstance of state of necessity to absolve her of hab1hty. It would
:
not have been half as bizarre had Ty been able to prove that the
issuance of the bounced checks was done without her full volition.
Under the circumstances, however, it is quite cleu· that neither
uncontrollable fear nor avoidance of a greater evil or injury prompted
the issuance of the bounced checks. (Ty us. People, G.R. No. 149275,
27 September 2004, 439 SCRA 220)
UPDATES IN CRIMINAL LAW
32
THE REVISED PENAL CODE 31
Fulfillment of a·,awful duty.
For this justifying circumstance to be appreciated, the follow·
ing ihu.st be established: (1).that the offender acted ·in the lawful
exercise of a right' or a dt:ty; and (b) that the injury or,i:>fferi e.coin
mitted be the necessary consequence of the due performance of such
right or office. (Mamangun vs. People, G.R. No. 149152, 02
February
2007; Angcaco vs. People, G.R. Nu. 146664, 28 February 2002, 378
SCRA 297; People vs. Tan, G.R. Nos. 116200-02, 21 June 2001; 359
SCRA283) ·'··:, . • 1, -
From the facts, it is clear that all these elements were present.
At he time of the incidm1t, petitioner was a member - specifically,
one of the investigators - of the Philippine National Police (PNP)
stationed at the Iloilo Provincial Mobile Force Company. Thus, it
was in the ]awful performance of his duties as investigating
officer
that, under the instructions of his superior, he fetched the victim
from the lat.ter's cell for a routine interrogation. · · ·· · ·
Again, it was in the la l performance of his d ty as a law
enforcer that petitfoner tried to defend his possession ofthe\veapon
when the victim suddenly tried to remove it from his holster; As
an enforcer oft.he law, petitioner was duty-bound to prevent the
snatch ing of his service weapon by anyone, especially by a
detained person in his custody. _Such weapon was likely to be
used to facilitate escape and to kill or maim persons in the
vicinity, including petitioner him- self: ·
Petitioner cannot be faulted for negligence. He exercised· all
the necessal'y precautions to prevent his service weapon from
caus ing accidental harm to others. As he so assiduously
maintained, he had kept his service gun locked when he left his
house; he kept it inside its holster at all times, especially within
the premises of his working area. ·
At no instance during his testimony did the acc sed dmit to
any intent to cause injury to the deceased, much less kill him. Fur
thermore, Nicostrato Estepar, the guard in charge of the detention
of Ba-lboa, did not testify to any behavior on the part of petitioner
that would indic&te the intent to harm the victim while being fetched
from the detention celL
The participation of petitioner, if any, in the victim's death was
1 ·
limited only to acts committed in the course of the lawful perfor
mance of his duties as an enforcer of the law. The removal of the gun
from its holster, the release of the safety lock, and the firing of the
two successive shots all of which led to the death of the victim

- were sufficiently demonstrated to have been
consequences of cir
cumstances beyond the control of petitioner. At the very least,
these factual circumstances create serious doubt on the latte,r's
culpabil ity. (Pomoy vs. People, G.R. No. 150647, 29 September
2004, 439
SCRA439)
While the first condition is present, the second is clearly lack
ing. Baxinela's duty was to investigate the reason why Lajo had a
gun tucked behind his waist in a public place. This was what Baxinela
was doing when he confronted Lajo at the entrance, but perhaps
through anxiety, edginess or the desire to take no chances, Baxinela
exceeded his duty by firing upon Lajo who was not at all resisting.
The sh9oting of Lajo cannot be considered due performance of a
duty if at that time Lajo posed no serious threat or harm to Baxinela
or to the civilians in the pub. (Baxinela vs. People, G.R. No. 149652,
24 March 2006, 485 SCRA 331)
We find the requisites absent in the case at bar. Appellant was
not in the performance of his duties at the time of the shooting for
the reason that thegirls he was attempting to arrest were not com
mitting any act of prostitution in his presence. If at all, the only
person he was authorized to arrest during that time was Roberto
Reyes, who offered him the services of a prostitute, for acts of va
grancy. Even then, the fatal injuries that the appellant caused the
victim were not a necessary consequence of appellant's performance
of his duty as a police officer. The record shows that appellant shot
the victim not once but twice after a heated confrontation ensued
between them. His duty to arrest the female suspects did not in·
elude any right to shoot the victim to death. (People vs. Peralta, G.R.
No. 128116, 24 January 2001, 350 SCRA 198)
However, while accused-appellant is to be commended for
promptly responding to the call of duty when he stopped the victim
from his potentially violent conduct and aggressive behavior, he
can not be exonerated from overdoing his duty during the second
stage of the incident - when he fatally shot the victim in the head,
per haps in his desire to take no chances, even after the latter
slumped to the ground due to multiple gunshot wounds sustained
while charg ing at the police officers. Sound discrP-tion and
restraint dictated that accused-appellant, a veteran policeman,
should have ceased firing at the victim the moment he saw the
latter fall to the ground. The victim at that point no longer posed a
threat and was already incapable of mounting an aggression against
the police officers. Shoot·
THE REVISED PENAL CODE 33
ing him tu the head was obviously unnecessary. As succinctly ob-
served by the trial court - · ...·, ..·. .
... "Once he saw the victim he fired a warning shot' '·
then shot the victim hitting him on the different parls of ' the
body causing him to fall to the ground an'd in' that'.
position the accused shot the victim again hitting theback.
portion of the victim's head causing the brain to catter
on the ground XX X the victim, Buenaventura Wapil(was'
already on the ground. Therefore, there was no necessity .
for the accused to pump another shot on the back portion' '
of the victim's head." · ·· · t '
It cannot therefore be said that the fatal wound in'the head of
the victim was a necessary consequence of accused-appellant's due
performance -.fa duty or thelawful exercise of a rightor office.
(People vs. Ulep, GR. No. 132547, 20 September 2000, 340 SCRA
688)
Fulfillment of duty as distinguished from self-defense.
. Self-defense a d fulfillment of duty operate on different prin-
ciples. Self-defenae 1s based on the principle of self-preservation
from mortal harm, while ful llment of duty is premised on the due
per formanc of duty. The difference between the two justifying
circum stances 1s clear, as the requisites of self-defense and
fulfillment of duty are different. .
The elements of self-defense are as follows:
a) Unlawful Aggression;
b) Reasonable necessity of the means employed to prevent
or repel it; · · · •
c) Lack of sufficient provocation on the part of the rson
defending himself. .
On the other hand, the requisites of fulfillment of duty are:
1. The accused acted in the performance of a duty or in the
lawful exercise of a right or office;
2. 'rhe ir,jury caused or the offense committed be the neces
sary consequence of the due performance of duty or the
lawful exercise of such right or office.
A pohceman in the performance of duty is justified in using
such force as is reas:)Ilab!y necessary to secure and detain the of-
34 UPDATES IN CRIMINAL LAW
fonder, overcome his resistance, prevent his escape, recapture him if
he escapes, and protect himself from bodily harm. In case injury or
death results from the policeman's exerdse of such force, the police
man could be justified in inflicting the injury or causing the death of
the offender if the policeman had used necessary force. Since a
police an's duty requires him to overcome the offender, the force
exert(:)d by the policeman may therefore differ from that which ordi
narily may be offered in self-defense. However, a policeman is never
justified in using unnecessary force or in treating the offender ·with
wanton .violence, or in resorting to dangerous means when the ar rest
cocld be affected otherwise.
Unlike in self-defense where unlawful aggression is an ele ment,
.in performance of duty, unlawful aggression from the victim is not
a requisite. In People vs. Delima, a policeman was looking for a
fugitive who had several days earlier escaped from prison. When the
policeman found the fugitive, the fugitive was armed with a pointed
piece of bamboo in the shape of a lance. The policeman demanded
the surrender of the fugitive. The fugitive lunged at the policeman
with his bamboo lance. The policeman dodged the lance and fired his
revolver at the fugitive. The policeman missed. The fugitive ran away
still holding the bamboo lance. The policeman pursued the fugitive
and again fired his revolver, hitting and killing the fugitive. The Court
acquitted the policeman on the ground that the killing was done in
the fulfillment of duty.
The fugitive's unlawful aggression in People us. Delima had
already ceased when the policeman killed him. The fugitive was
running away from the policeman when he was shot. If the police
man were a private person, not in the performance of duty, there
would be no self-defense because there would be no nnlawful ag
gression on the part of the deceased. It may even appear that the
public officer acting in the fulfillment of duty is the aggressor, but
his aggression is not unlawful, it being necessary to fulfill his duty.
While self-defense and performance of duty are two distinct
justifying circumstances, self-defense or defense of a stranger may
still be relevant even if the proper justifying circumstance in a
given case is fulfillment of duty. For example, a policeman's use
of what appears to be excessive force could be justified if there
was immi nent danger to the policeman's life or to that of a
stranger. If the policeman used force to protect his life or that of a
stranger, then the defense of fulfillment of duty would be
complete, the second requi site being present.
THE REVISED PE:'-l'AL CODE 35
In Pe,)ple vs. Lagata, a jail guard shot to death a prisoner
whom he thought was attempting to escape. The Court convicted
the jail guard of homicide because the facts showed that the
prisoner was
not at all trying to escape. The Court declared that the jail
guard could only fire 1:'t the prisoner in self-defense or if
absolutely nec essary to avoid the prisoner's· escape.
(Cabanlig vs.
Sandiganbayan, G.R. No. 148431, 28 July 2005, 464 SCRA 324) , ;
EXEMPTING CIRCUMSTANCES··· r ·•• 1T ·
Insanity. ,·,, ,
. ,·' . •; . . : i:') .
In People vs. Estrada, it was held that; "In the eyes of the law
insanity exists when there is a complete deprivation of intelligenc
in committing the act. Mere abnormality of the mental faculties
will not exclude imputability. The accused must be "so insane as to
be incapable of entertaining a criminal intent." He must be
deprived of reason and act without the least discernment because
there is a complete absence of the power to discern or a total
deprivation of freedom of the will Since the presumption is always
in favor of sanity, he who invokes insanity as an exempting
circumstance must prove it by clear and positive evidence. And the
evidence on this point must refer to the time preceding the act
under prosecution or to the very moment of its execution. (People
vs. Valledor; G.R. No. 12929 l, 03 ,Iuly 2002, 383 SCRA 653) Onlv
when there is a com plete deprivathn of intelligence at the time f
the commission of the crime should the exempting circumstance of
insanity be considered. (People vs. Efobinos, G.R. No. 138453, 29
A1ay 2002, 382 SCRA 751)
Minority.
Under Article 12(3) of the Revised Penal Code, a minor over
ine years o_f age and under fifteen is exempt from criminal liability
if charged w1th a felony. The law applies even if such minor is
charged with a crime defined and penalized by a special penal law. In
such case, it is the burden of the minor to prove his age in order for
him to be exempt from criminal liability. The reason for
the·exemption is that a minor of such age is presumed lacking the
mental element of a crime - the capacity to know what is wrong as
distinguished from what is right or to determine the morality of
human acts; wrong in the sense in which the term is used in moral
wrong. However, such presumption is rebuttable. For a minor at such
an age to be crimi nally liable, the prosecution is burdened to prove beyond
36 UPDATES IN CRIMINAL LAW
doubt, by direct or circumstantial evidence, that he acted with dis
cernment, meaning that heknew what he was doing and that it was
wrong. Such circumstantial evidence may include the uttel'.ances
of the minor; his overt acts before, during and after the
commission of the crime relative thereto; the nature of the weapon
used in the commission of the crime; his attempt to silence a
witness; his dis posal of evidence or his hiding the corpus delicti.
(Jose us. People, G.R. No. 162052, 13 January 2005, 448 SCRA
116)
The prosecution is burdened to prove that the accused acted
with discernment by evidence of physical appearance, attitude or
deportment not only before and during the commission of the act,
but also after and during the trial. The surrounding circumstances
must demonstrate that the minor knew what he was doing and that
it was wrong. Such circumstance includes the gruesome nature of
the crime and the minor's cunning and shrewdness.
. In the present case, the petitioner, with methodical fashion,
dragged the resisting victim behind the pile of hollow blocks near
the vacant house to insure that passersby would not be able to
discover his dastardly acts. When he was discovered by Teofisto
Bucud who shouted at him, the petitioner hastily fled from the
scene to escape arrest. Upon the prodding of his father and her
mother, he hid in his grandmother's house to avoid being arrested
by policemen and re mained thereat until barangay tanods arrived
and took him into cus tody.
· .The petitioner also testified that he had been an outstanding
grade school student and even received awards. While in Grade I,
he was the best in his class in his academic subjects. He
represented his class in a quiz bee contest. At his the age of 12, he
finished a computer course.
· In People vs. Doquefta, the Court held that the accused-appel
lant therein acted with discernment in raping the victim under the
following facts:
"Taking into account the fact that when the accused
Valentin Doquefia committed the crime in question, he was
a 7th grade pupil in the intermediate school of the munici
pality of Sual, Pangasinan, and as such pupil, he was one
of the brightest in said school and was a captain of a com
pany of the cadet corps thereof, and during the t.ime he
was studying therein he always obtain excellent marks,
this court is convinced that theaccused, in committing the
38 UPDATES IN CRIMINAL LAW
reasonable
THE REVISED PENAL CODE 87
crime, acted with discernment and was conscious of the . ,
nature and consequences of his act, and so also has this·
court observed at the time said accused was testifying in
his behalf during the trial of this case." (Llave vs. People,
. G.R. No. 166040, 26 April 2006, 488 SCRA 376) ·'
Minimum age of criminal responslblllty under R.A. No.' 9344.
Under Artjcle 12 of the Revised Penal Code, a person und r
nine years of age, or anyone over nine years of age and under
fifteen but who has not a!!ted with discernment, is absolutely
exempt from criminal liability ·
With the passage of the "Juvenile Justice. and .Welfare;Act :of
2006" which was signed into law by President Gloria Macapagal
Arroyo on 28 April 2006, the minimum age·orcriminal respon
ibility thereunderhasbeenraisedasfollows: · :,;,· • .1w, ···1 "!.
'
"SEC. 6. Minimum age of criminal responsibili'ty.·
' \
i
:·: A child fiV:een (15) years of age or under at the time of
the:,., ,. commission of the offense shall be exempt from
criminal· liability. However, the child shall be subjected to
an inter vention program pursuant to Section 20 ofthis·Act,,
i. ,·:· ·
"A child above fifteen (15) years but below eighteen
years of age shall likewise be exempt from criminal liabil-·
ity and be subjected to an intervention program, unless
he/she has acted with discernment, in which case, such
child .shall be subjected to the appropriate proceedings in ·
accordance with this Act. .·, .
"The exemption from criminal liability he in estab
lished does not include exemption from civil liability, which
shall be enforced in accordance with existing laws." · !·
XXX
"SEC. 58. Offenses Not Applicable to Children. -
Persons below eighteen years of age shall be exempt from
criminal prosec.ition for the crime of vagrancy and prosti
tution under Section 202 of the Revised Penal Code, of
mendicancy under Presidential Decree No. 1563, and sniff- ·
ing rugby under Presidential Decree No. 1619, such pros
ecution being inconsistent with the United Nation's Con
vention ,n the Rights of the Child; Provided, That said
persons shall undergo appropriate counseling and treat
ment program."

Accident.
The existence of accident must be proved by the appellant to
the satisfaction of the court. For this to be properly appreciated in
appellant's favor, the following requisites must concur: (1) that the
accused was performing a lavvful act with due care; <2) that the injury
is.caused by mere accident; and (3) that there was no fault or intent on
his part to cause the injury Appellant must convincingly prove the
presence of these elements in order le benefit from the exempting
circumstance of accident. (People vs. Concepcion, G.R. No. 136844,
01 August 2002, 386 SCRA 74)
Meaning of accident.
An accident is a fortuitous circumstance, event or happening;
an event happening wholly or pa1tly through human agency, an
event which under the circumstances is unusual or unexpected by
the person to whom it happens. (Toledo vs. People. G.R. No.
158057. 24 September 2004, 439 SCRA 94)
Basis of accident as an exempting circumstance.
The basis of exempting circumstances under Article 12 of the
Revised Penal Code is the complete absence of intelligence,
freedom of action, or intent, or the absence of negligence on the
part of the accused. The basis of the exemption in Article 12,
paragraph 4 of the Revised Penal Code is lack of negligence and
intent. The accused does not commit either an intentional or
culpable felony. The ac cused commits a crime but there is no
criminal liability because of the complete absence of any of the
conditions which constitute free will or voluntariness of the act.
(Toledo us. People, G.R. No. 158057, 24 September 2004, 439
SCRA 94)
Uncontrollable fear.
For her defense, Ty claimed that sheissued the checks because
of"an uncontrollable fear of a greater injury." She averred that she
was forced to issue the checks to obtain release for her mother
whom the hospital inhumanely and harshly treated and would not
dis charge unless the hospital bills are paid. She alleged that her
mother was deprived of room facilities, such as the air-condition
unit, re frigerator and television set, and subject to inconveniences
such as the cutting off of the telephone line, late delivery of her
mother's
THE REVISED PENAL CODE 39
food and refusal to change the latter's gown and bedsheets. She also
bewailed the hospital's suspending medical treatment of her mother.
The "debasing treatment," she pointed out, so affected her mother's
mental, psychological and physical health that the latter contem plated
suicide if she would not be discharged from the hospital. Fearing the
worst for her mother, and to comply with the demands of the
hospital, Ty was compelled to sign a promissory note, open an
account with Metrobank and issue the checks to effect her mother's
immediate discharge. xxx ·
The only question of law raised whether the defense of uncon
trollable fear is tenable to warrant her exemption from criminal liability
h1:ts to be resolved in the negative., For this exempting ir cumstance to
be invoked succe1isfu1ly, the following requisites must concur: (1)
existence of an uncontrollable fear; (2) the fear must be
real and imminent; and (3) the fear of an injury is greater than or at least
equal to that committed. · ,.J ·
It must appear that the threat that caused the uncontrollable
fear is of such gravity and imminence that the ordinary man would
have succumbed to it. IL should be based on a real, imminent or rea
sonable fear for one's 1ife or limb. A mere threat of a future injury
is not enough. It should not be speculative, fanciful, or remote. A
person invoking uncontrollable fear must show therefore that the
compul sion was such that it reduced him to a mere instrument
acting not only without will but against his will as well. It must be
of such char acter as to leave no opportunity to the accused for
escape·. ,
In this case, far from it, the fear, if any, harbored by Ty was not
real and imminent. Ty claims that she was compelled to issue the
checks a condition the hospital allegedly demanded of her before her
mother. could be-:discharged for fear that her mother's health might
deteriorate further due to the inhumane treatment of the hospital or
worse, her mother might commit duicide. This is speculative fear; it is
not the uncontrollable fear contemplated by law. ,., ,,.,.),, 1
. . .,,,
To begin with, there was no showing that the mother's illness
was so life-threatening such that hercontinued stay in the hospital
suffering all its alleged unethical treatment would induce a·well
groundad apprehension of her death. Secondly, it :is not the law's
intent to say that anyfear exempts one from criminal liability much
less petitioner's flimsy fear that her mother might commit suicide.
In other words, the fear she invokes was not impending or insuper
able as to deprive her of all volition and to make her a mere instru-
 40 UPDATES IN CRIMINAL LAW
ment without will, moved exclusively by the hospital's threats or
demands.
Ty has also failed to convince the Court that shewas left with
no choice but to commit a crime. She did not take advantage of the
many opportunities available to her to avoid committing one. _By her
very o_wn wor9,s, she admitted that the collateral or secun y the
hospital required prior to the discharge of her mother may be m the
form of postdated checks or jewelry. And if indeed she was coerced to
open an account with the bank and issue the checks, she had all the
opportunity to leave the scene to avoid involvement.
Moreover, petitioner had sufficient knowledge that the issu
ance of checks without funds may result in a violation of B.P. No.
22. She even testified that her counsel advised her not to open a c
rrent account nor issue postdated checks "because the moms:Jnt I
"".111 not have funds it will be a big problem." Besides, apart from
petitioner's bare ssertion, the record is bereft of any evidence to
corroborate and bolster her claim that shewas compelled or
coerced to cooperate with and give in to the hospital's demands.
(Ty vs. People, G.R. No. 149275,. 27 September 2004, 439 SCRA
220)
Entrapment vs. Instigation:
I entr pment, ways and means are esorted to f r the pu pose
of trapping and capturing lawbreakers m the_ exe.cution ofthe r
criminal plan. In instigation on the other hand, m t1 1tors practi cally
induce the would-be defendant into the comm1ss1on of t_he of fense
and become co-principals themselves. It has been held m nu merous
cases by this Court that entrapment is sanctioned by law s a
legitimate method of apprehending criminal elements .engaged m
. the sale and distribution of illegal drugs. (People us. Pacts, G.R. No.
146309, 18 July 2002, 384 SCRA 696)
There is entrapment when law officers employ ruses and
schemes to ensure the apprehension of the criminal while in the
actual commission of the crime. There is instigation when the ac
cused is induced to commit the crime. The difference in the nature
of the two lies in the origin of the criminal intent. In entrapment,
the mens rea originates from the mind of the criminal. The idea and
the resolve to commit the crime comes from him. In imitigation, the
law officer conceives the commission of the c1ime and suggests to
the accused who adopts the idea and carries it into ( xecuti?n.,'1:he
legal effects of entrapment do not exempt the criminal from hab1hty.
42 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 41
Instigation ooes. (People vs. Sta. Maria, G.R. No. 171019, 23 Febru
ary 2007; Chang vs. People, G.R. No.165111, 21 July 2006,'496
SCRA 321) ,, _ '.·.
•l',''•1
Test to determine validity of "buy-bust" operation. ··
The Supreme Court, in upholding the constituti nalit{arid le
gality of "buy-bust" operation, has adopted the followin.g test to
determine the authenticity thereof, thus:· · · ·· ·· ·· ·
"We therefore stress that the"objective" test in buy.
bust operations demands that thedetails of the purported ··
transaction must be clearly and adequately shown•.This
must start from the initial contact between the poseur•
buyer and the pusher, the offer to purchase, the promise·
or payment of the consideration until the consummation
of the sale by the delivery of the illegal drug subject of the
sale. The manner by which the initial contact was made,
whether or not through an informant, the offer to pur chase
the drug, the payment of the "buy-bust" money, and the
delivery of the illegal drug, whether to the informant alone
or the police officer, must be the subject of strict ·
.. scrutiny by courts to insure that lawabiding citizens are
not unlawfully induced to commit an offense. Criminals
must be caught but not at all cost. At the same time,
however, examining the conduct of the police should not
disable courts into ignoring the accused's predisposition
to commit the crime. If there is overwhelming evidence of
habitual delir,quency, recidivism or plain criminal pro
clivity, then this must also be considered. Courts should
look at all factors to determine the predisposition of an
accused to commit an offense in so far as they are rel
evant to determine the validity of the defense of induce
ment. (People vs. Sy, G.R. No, 171397, 27 September 2006)
MiTIGATING CIRCUMSTANCES
Incomplete self-defense.
In order that it may be successfully appreciated, however, it is
necessary that a majority of the requirements of self-defense be
present, particularly the requisite of unlawful aggression on the
part of the victim. Unlawful aggression by itself or in combination
'th either of the other two requisite suffices to establish incom
;ete self-defense. Absent the unlawful aggressio , there .can ne;1er
be self-defense complete or incomplete, because 1f there .1s nothmg to
prevent or pel, theother two requisites of defense will have no basis.
(People vs. Court .of Appeals and Tangan, G.R. Nos. 103613 and
105830 23 February 2001, 3 2 SCRA 599)
• 'i,'f!• ., •;; ',. '· :- ., ' '
Lack f i t t t · c mmit so grave a wrong.
1
The lack of"intent'.'·to commit a wrong so grave is an internal
state.ilt>is,weiKhed based on the weapon use . p rt of the
body injured,; the injury inf1icted and th man er .it is mfli
tQd. Th f ct that the-accused used a 9-inch hunting knife i attacking
the _victim from behind, without giving him an opportunity to defen
himself,
clearly shows that he, intended to do what he actually dtd, .and .h must
bi!i held·responsible therefor, without the benefit of this miti gating
circumstance. (People vs. Gallet, G.R. No. 135701, 09 May
2002, 382 SC R A' 43) ·
. ..
Sufficient provocation.
Article 1:3(4) of the Revised Penal Code provides t at a person's
crimiri'al liability may be mitigated if there was a su c1 :mt pr voca
tion or threat on the part of the offended party w 1ch mmed iate ly
1
rece«led the crime.. Before the s9:me can. be ppr ciated, the
f
follow ng ele nts must coricur: (1) That th provocat!on or threat
must be sufficient or propor,tionate to the cnme committed a.nd
adequate to arous one to its commission; (2) That the provocation
or threat must - riginate. from the offended party; and (3) Th t the
provoca·
tion must be immediate to the commission of the cn e by the per
son P ioked. (People vs. Beltron,. G.R. No. 168051, 27 September
2006)
Thrusting his bolo at petitioner, threat:ning to bll him, nd
hacking the bamboo walls of his h?u e a e, m our Vll:W, suffic1e t
provocation to enrage any man, or stir his .r.age and obfu cate h.1s
thinking, more so when the lives of his wife and children arem
danger. Petitioner stabbed the victim as a result of those prov ca tions,
and while petitioner was still in a. fit of rage. I our. view, there
was,sufficient provocation and the circumstance of pasinon or
obfuscation attended the commission of the offense. (Rornera vs.
People, G.R No. 151978, 14 July 2004, 434 SCRA 467)
UPDATES IN CRIMINAL LAW
44
THE REVISED PENAL CODE 43
Provocation and passion or obfuscation or vindication of a grave
offense arising from the some set of facts should be treated as one
mitigating circumstance. ,.. , :
But, we must stress that provocation and passion,.or obfuS<ia
tion are not two separate mitigating circumstances. Well settled is
the rule that if these two circumstances are based on the same facts,
they should be treated together as one mitigating circumstance.
From the facts established in this case, it is clear that both circum
stances arose from the same set of facts aforementioned.,Hence,
they should not be treated as two separate mitigating circumstances.
(Romera vs. People, G.R No. 151978, 14 July 2004, 434 SCR.4
467).
But the mitigating circumstance of sufficient provocation can
not be considered apart from the circumstance of vindication of a
grave offense. These two circumstances arose from one and the
same incident, i.e.. the attack on the appellant by Anthony, Si> that
they should be considered as only one mitigating circumstance.,
(l'eople vs. Torpio, G.R. No. 138984, 04 June 2004, 431 SCRA 9) ·
Vindication of grave offense.
The mitigating circumstance of having acted in the immediate
vindication of a grave offense was, likewise, properly appreciated. The
appellant was humiliated, mauled and almost stabbed by the deceased.
Although the unlawful aggression had ceased when the appellant
stabbed Anthony, it was nonetheless a grave offense for which the
appellant may be given the benefit of a mitigating circumstance.
(People vs. Torpio, G.R. No. 138984, 04 June 2004, 431
SCRA 9)
Passion and obfuscation.
For this mitigating circumstance to be considered, it must be
shown that: (l) an unlawful act sufficient to produce passion and
obfuscation was committed by the intended victim; (2) that the crime
was committed within a reasonable length of time from the commis·
sion of the unlawful act that produced the obfuscation in the accused's
mind; and that (3) the passion and obfuscation arose from lawful
sentiments and not from a spirit of lawlessness or revenge. (People
vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA 220)
To be entitled to this mitigating circumstance, the following
elements must be present: (1) There should be an act both unlawful
THE REVISED PENAL CODE 45
and·sufficient to produce such condition of mind; (2) the ac t at
produced the obfuscation was not far remov d from t e com 1ss1on of
the crime by a considerable length of time, .du;mg which the
perpetrator ·might recover his normal equanimity. (People vs.
Malejana, G.R. No. 145002, 24 January 2006, 479 SCRA 610)
Passional obfuscation to be properly appreciated must arise from
lawful sentiments and not from a spirit of lawlessness or revenge
or from anger and resentment.
· We are inclined to believe that the trial court properly ru ed
this out when it said, "the act of Perla Castro however of d_eman
mg that they vacate her land and transfer elsewhere and d1scontmue
their excavation thereat was not unlawful and unjust as she as
exercising her right to her land." The exercise of a lawf l nght
cannot be the proper source of obfuscation that may be considereda
mitigating circumstance. (People vs. Lopez, G.R. No. 132168, 10
Oc-
tober 2000, 342 SCRA 431)
Fora person to be motivated by passion and obfuscation, there
must first exist an unlawful act that would naturally prod ce an impulse
sufficient to overcome reason and self-control. There 1s pas sional
obfuscation when the crime is committed due to an uncontrol lable
burst of passion provoked by prior unjust or improper acts, or due toa
legitimate stimulus so powerful as to overcome reason. (People vs.
Lab-eo, G.R. No. 133438, 16 January 2002, 373 SCRA
461; People vs. Enguito, G.R. No. 128812, 28 February 2000, 326
SCRA508)
Passion and obfuscation may not be r?per_ly a preciated in favor
of appellant. To be considered as a m1t1gatm .:1rcumstance, passion or
obfuscation must arise from lawful sentiments and not froma spirit of
lawlessness or revenge or fro an er and resent ment. In the present
case, clearly, Marcelo was infuriated upon see ing his brother, Carlita,
shot by Jose. However, a distrnct10n must be made between the first
time that Marcelo hacked Jose and the sec ond time that the former
hacked the latter. \.Vhen Marcelo hacked Jose right after seeing the
latter shoot at Carlito, and 1f appeHa t refrained from doing anything
else after that, ?e could have val d,y invoked the mitigating
circumstance of pass10n and obfuscat10n. But when, upon seeing his
brother Carlito dead, Marcelo went back to Jose, who by then was
already prostrate on the ground ar:id hardly moving, hacking Jose again
was a clear case of someone actmg out of
- .
anger in thespirit of revenge.Peopl vs. Bates, G.R. No.,139907, 28.
(
e
March 2003, 41.iu SORA 95) ", 11 : I\ •, :
· ·, • ! f; I l , i[
Passion or obfuscation can co-exist with "Illness of the offender."
In sum, the cyclical nature and the severity of tlie.violeii
inflicted. upon appellant resulted in "cumulative provocation wbAch'
broke down her psychological resistance and natural self-control,"
"psychological paralysis," and "difficulty in concentrating oi: impair:
ment of memory." ·
Based on the explanations of the expert witnesses, such mani
festations were analogous to an illness that diminished the exercise
by appellant of her will power without, however, depriving'her of
consciousness of her acts. There was, thus, a resulting diminution of
her freedom of action, intelligence or intent. Pursuant to paragraphs 9
and 10 of Article 13 of the Revised Penal Code, this eircumstiuice
should be taken in her favor and considered as a mitigating factor.
In addition, wti also find in favor of appellant the extiin ating
circumstance of having acted upon an impulse 80 powerful 88 to have
naturally produced passion and obfuscation. It has been held
that this state of mind is present when a crime is committed as a
result of an uncontrollable burst of passion provoked by prior unjust
or improper acts or by a legitimate stimulus so powerful as to over
come reason. To appreciate this circumstance, the following requi
sites should concur: (1) there is an act, both unlawful and sufficient
to produce such a condition of mind; and (2) this act is not far re
moved from the commission of the crime by a .considerable length of
time, during which the accused might recover her normal equanim ity.
Here, an acute battering incident, wherein Ben Genosa was the
unlawful aggressor, preceded his being killed by Mari'-''1C. He had
further forcatened to kill her while dragging her by the neck to wards
a cabinet in which he had kept a gun. It should also be re called that
she was eight months pregnant at the time. The attempt on her life
was likewise on that of her fetus. His abusive and violent acts, an
aggressio:n which was directed at the lives of both Mari\'1C and her
unborn child, natura1ly produced passion and obfuscation overcoming
her reason. Even though she was able to retreat to a separate room, her
emotional and mental state continued. Accord ing to her, she felt her
blood pressure rise; she was filled with feel-
 THE REVISED PENAL CODE 47
UPDATES IN CRIMINAL LAW
46

ner clearly indicating the intent of the accused to surrender uncon

.
mgs
f lf ·t d of fear that.. she and her b aby wern abo ut to ditionally, either because they acknowledge their guilt or 'wish 't'o
di eo .se
Ina -p1fit Yofanindignation, she• pried open the
. cabme:
.d h
rawerw
B e n save the authorities the trouble and the expense that will necessar ily
.ere be incurred .in searching for ii°nd d1pturing 'th rri'1. (Andrada
kepta gun, then she took the weapon and used 1t to shoot him.
. The confluence of these events brings us to th concl si n that
us.
Pe ple, G.R.
N'o.J35222 04 M4 c\'foo5,.4.1t?C!i.A :1ss/t 9P l
.
the re was no cons1 e "
'd r· ,ble period of t im e wit hin wh i ch
. . . , . f
Dela Cruz,.G.R. No. 140885, 14.August 200'4, 436 StJ:RA 64I;Ladiana
vs. People, G.R. No. 144298, 04 December' 2od2> 3.93SCRA 496;
M an v1 c c o uld
. p · . · n '" Pecple u. .. Zeta, G.R. Nos. 140901,02, 09 May 2002, 382rSCRA 141;
have recovered her normal equamm1ty. Helpful is Ur. apn o:
t t. ·h·at wi'th "neurotic anxiety" a psychological effect on d
es 1mony · · ,, th · t' People vs. Arondain, G.R. Nos. 181864-65, 27• September 200J.;,366
elives
victim of"overwhelming brutality [or] trauma - e.v1c imr 11
the beating or trauma as ifit were real, although she is ot 9:ctu hy SCRA 98) If none of these two (2) reasons impelled the, accused. to
bein beaten at the time. She cannot control "re-expenencmg. surrender, because his surrender was obviously motivated· more·by
who! thing, the most vicious and th< trau a that _s e suff red: an intention to· insure his safety, his arrest being inevita'blei·:the
Sh thinks "of nothing but the suffering." Suc!1 rehvmg which i.s surrenc:er il'l no·t spontaneous. (People vs. Basite, G.R. No:,150382,
b e d th control of a person under similar clJ'cums'-,;mce.s, mu t 02 October 20C.'J, ,J12 SCRA 558) · ,.., ,1 , .
h::nbeenewhat Marivic experienced during the br eC.tu: e i1ter: The mitigating circumstance of voluntarf surrender hoiJ.ld
and revented her from recovering her normal equ, mn:1ty. .cco
ingli, she should further be c.redited with the m1t1gatmg circum-
be appreciated in favor ofth.:: appellant. First, he had not been
actually arrested at the time he sWTendered; second,
stance of passion and obfuscat10n. he;surrendered.to.a person in authority; and third, his surrender
It should he clarified that these t..wo ircumstances.- ps ch:l· was voluntary. ,Al though he did not surrender to the policemen
logical paralysis as well as passion and obfuscat10n did not ane.. on the. same .night that the inciden',; occurred, he did surrender
from the same set of facts. himself to.the b,arangay captain early the next day. Besides, when
the policemen came that night, they were not looking for a specific
On the one hand, the first circumsta ce rose from the cydical
person but were merely inquiring about the incident that happened
nature and the severity of the battery mfl1cted_ by the batter.er-
tspouse upon a ppellan · That is the repeated beatmgs over a period in front offhe house of
appellant. There is no dispute that early the very next day,·appel
'
of time resulted in her psychological
. l·h , . 1 gou" lant surrendered himself to a person in authority and admitted' the
paralysis,w 11c was ana . h ry. o sufficient, the surrender must be spontaneous and madem a
to an illness diminishing the uxcrcise of her will power w1 ou man-
depriving her of consciousness of her acts.
The second circumstance, on the other hand, result d.from the
violent aggression he had inflicted on h.er prior to the killmg. v :
the incident occurred when she was eight months pregna1'.t
their child was deemed by her as an attempt not only on her hfe, bl :
likewise on that of their unborn child. Such perception natura j
produced passion and obfuscation on her part. (People vs. Genosa,
G.R. No. 135981, 15 January 2004, 419 SCRA 537)

Voluntary surrender.
For voluntary surrender to mitigate criminal liability, the fo:·
lowing elements must concur: (1) the offender has not bee?
actually arrested, (2) the offender surrenders himself to a.personm
au h; ity or to the latter's agent, and {3) the surrender is \Olunt
killing, before a warrant for his arrest was issued. (People vs, Cabical,
G.R. No. 148519, 29 May 2003, 403 SCRA 268) ·; ·1
r ' \ ! ;_ . i i- r •
,·;t1f... n·:·;
Instances where surrender is not spontaneo s: :.:
1. The "surrender" of appellant was far from being sponta-
neous and unconditional. The warrant of arrest is dated June 17, 1992
and all the accused; including appellant, remafoed' at 1arge,
which.prompted the Executive Judge of the Regional Trial Cciurt of
Palo, Leyte to archive the case. It took'appellant two'yea1ibefore'he
finally "surrendered" to the police. In· between ·said' peri od,1 app l:
lant, through counsel, filed a Motion to Fix Bail Bond witho't.it·sur:
rendering his person to the jurisdiction of the trial'couri:_Records do not
reveal that the motion had been 'acted upon by the ·.trial"courk This act
of appellant may be considered as a condition set by him
before he surrenders to proper authorities, thus preventing his Ub·
sequent act of surrendering from being considered as·· a'mitigating
 UPDATES IN CRIMINAL LAW
48
circumstance. (People vs. Quimzon, G.R. No. 133541, 14 April 2004,
427 SCRA261) .,
2. · Appellant's surrender was not voluntary. Rather, lie was
forced to give himself up, because members of the barangay tanod
were already inside his house, thereby precluding his escape.
(People vs. Ignacio, G.R. No. 134568, 10 February 2000, 325 SCRA
375)
3·. · . Thefact that appellant did not resist arrestordenyhiscrimi
nal actdid not constitut.e voluntary surrender: A urrender: to be volun·
tary, must be spontaneous and must clearly mdicat.e th ;mtent of the
ccused to submit himself unconditionally to the authonties. Here, the
:ppellant after shooting the victim, was immediately disarmed and
placed under arrest. There was, therefore no voluntary surrend r
speak ofbecause the appellant wasinfactarrested.(People vs.Brecmw,
G.R. No. 188534, 17 March 2004, 425 SCRA 616)
· 4. The appellant's alleged surrender to the baran ay chair- man
was not voluntary. On the contrary, it was sol ly mot1vaf:8d .by
self-preservation from what he feared was an imminent
retahat1on from the immediate relatives of Afredo. Co sequently,
the same can not be appreciated in his favor. (People vs. Dela
Cruz, G.R. No. 140513,
18 November 2008, 416·SCRA 24)
6. The appellants are not entitled to the mitigating circum
stance of voluntary surrender. The evidence shows that the
app.el lants were arrested when the police officers manning th,
checkpoint stopped the passenger jeepney driven by appellant
Ronald and ar rested the appellants. The fact that theappellants
did not resist but went peacefully with the peace officers. does
not mean that they surrendered voluntarily. (People vs.
Castillano, G.R. No. 139412, 02
April 2008, 400 SCRA 401)
6. As enunciated in the above ruling of the Supre e.Co rt,
in order fora voluntary surrender to be considered atla m1ti_gat ng
circumstance, it must show the intent of the accused to submit him self
unconditionally to the authorities, either because he acknowl· edges
his guilt or because he wishes to save them the trouble and expense
incidental to his search and capture. This was not the mam purpose of
the accused when he surrendered, as a matter of fact, he denied in his
defense that he had committed the crime charg d. Because of such
denial, his voluntary surrender cannot be consid ereda mitigating
circumstance in his favor. (People vs. Cortezano,
G.R. No. 140732, 29 January 2002, .'375 SCRA 95)
THE REVISED PENAL CODE 49
7. The conduct of accused-appellant after the commission
of the offense, of running away after having been stabbed by
private compl inant and of fleeing from complainant's relatives
when they tried to bring him to the authorities, do not show
voluntary surren der as contempi:ated under the law. It appears
that accused-appel Sacla
lant willingly went to the police authorities with Gilbert c:,nly
to escape the wrath· of privat.e complainant's relatives·who' were
pursuing him and who appeared to be thirsting for his blood. (People
vs. Basite, G.R. No. 150382, 02 October 2003, 412 $CRA 558) ·, ! : ..
8. Appellant was already pprehended for the hackin cl.
dent by the barangay officials of Lipa City just before he was'
turned over to the police by a certain Tomas. Dimacuha.
Asstµning. that appellant had indeed surrendered to the
authorities; the same was not made spontaneously. Immediately
after. the hacking incident, appellant, instead of proceeding to the
barangay or police, went to his brother, Sherman Beltran,·in
Bauan, Batangas, and the next day, to his sister in Lipa City. It
took him three long days to surren der to the police authorities.
Moreover, the flight of appellant and his act of hiding until he was
apprehended by the barangay officials are circumstances highly
inconsistent with the spontaneity that char acterizes the mitigating
circumstance of voluntary surrender. (People us. Beltran, G.R. No.
168051, 27 September 2006)
Confession of guilt.
.To be entitled to such mitigating circumstance,' the accused must
have voluntarily confessed his guilt before the court prior to · the
presentation of the evidence for the prosecution. The following
requirements must therefore concur: (1) the accused spontaneously
confessed his guilt; (2) the confession of guilt was made in open
court, that is, before a compet.ent court trying the case; and (3) the
confession of guilt was made prior to the presentation of evidence
for the prosecution. (People vs. Montinola, G.R. Nos. 131856-57, 09
July 2001, 360 SCRA 631)
Plea of guilty to lesser oHense than that charged is not mitigating.
While the accused offered to plead guilty to the lesser offense
ofhomicid£, he was charged with murder for which he had already
entered a plea of not guilty. We have ruled that an offer to enter a
plea of guilty to a lesser offense cannot be considered as an attenu
. ating circumstance under the provisions of Art. 13 of The Revised
 re,
UPDATES IN CRIMINAL LAW
every Complaint or Information must state not only the
50 quahfy1ng

Penal Code because to be voluntary, the plea of guilty must be to the

offense charged. (People vs. Dawaton, G.R. No.146247, 17
SP.ptember
2002, 389 SCRA 277)

Circumstance analogous to voluntary surrender.

In the present case, petitioner Exuperancio Canta had not. ac
tually been arrested. In fact, no complaint had yet en filed against
him when he surrendered the cow to the authonties. It has been
repeatedly held that for surrender to be voluntary, the · must be.an
intent to submit oneself unconditionally to the authont1es, show11
g an intention to save the authorities the trouble and expense that
his search and capture would require. In petitioner's case, he
volun
·1 took the cow to the municipal hall of Padre Burg0s to place it
conditionally in the custody of the authorities a11:d. thus av d
them the trouble of having to recover the cow from .. um. This cir
cumstance can be considered analogou .to voluntary surrender
and should be considered in favor of petitioner. (Canta us. People,
G.R. No;· 140937, 28 February 2001, 353 SCRA 250)
· In Kimpo vs. Sandiganbayan, we held:
. . . In malversation of public funds, p9:yment, i
demnification, or reimbursement of funds m1saµprop_n
ated, after the commission of the crime, doe.s not extin
guish the criminal liability of the offender which, at
most, can merely affect the accused's civil liability t
creunder and be considered a mitigating circumstance
bemg analo-
gous to voluntary surrender.
Here, the return of the said amount cannot be considereda. m
ti gating circumstance analogous to voluntary surrender
cons1denng that it took petitioner almost seven (7) years to
return the amo t. Petitioner has not advanced a plausible reason
why he could not liq uidate his cash advance which was in his
possession for several years. (Davalos vs. People, G.R. No.
145229, 20 April 2006, 488 SCRA 84)

AGGRAVATING CIRCUMSTANCES

Qualifying and aggravating circumstances must be alleged in the

information.
Pursuant to the 2000 Revised Rules of Criminal Proc d
 THE REVISED PENAL CODE 51

but also the aggravating circumstances. This rule may be given ret
roactive effect in the light of the well-established rule that statutes
regulating the procedure of the courts will be construed as appli cable to
actions pending and undetermined at the time of their pas sage. The
aggravating ci:..-cumstances of evident premeditation, dwell ing and
unlawful entry, not having been alleged in the Information; may not now
be appreciated to enhance the liability of ac.c.used appellant. (People us.
Antonio, G.R. No. 144266, 27 November 2002 393 SCRA 169; People
us. Durohom, G.R. No. 146276, 21 NovJmbe;
2002, 392 SCRA 403; People us. Paragas, G.R. No. 146308 '18 July'
2002, 384 SCRA 664; People us. Nuevo, G.R. No. 132169,'2 Octo.bet
2001,368SCRA359) .. ·· .,, 11· ,-,;>•'"
.... \ f! ; ;, . ;"; ri:. ;. \ •

.!'. :"i 1?:;! 1

Although not alleged, they may be considered · In the award· of

damages. .. ·•r)'': ;,,:i
While a nm:-alleged but proven aggravating circunistancll can not
be used to increase the penalty, nonetheless it can be the source of civil
awards. (People us. Suela, G.R. Nos. 133570-71, 15 January 2002, 37.'3
SCRA 163) . ,--,,ii. ,_ d

. Although the aggravating circumstances in question' annot.be

appreciated or the purpose of fixing a heavier penalty in this case;
they should, nowever, be considered as bases for the award of exem
plary damages, conformably to current jurisprudence. (People vs.
Euina, G.R. Nos. 124830-31, 27 June 2003, 405 SCRA 162) ; '. ·.· '·

Qualifying circumstance vs. Generic aggravating circumstance.

A qualifying circumstance changes the nature of the crim . A
generic aggi·avating circumstance, on the other hand, does not af fect
the designation of the crime; it merely provides for the imposi tion of the
prescribed penalty in its maximum period. Thus, while a generic
aggravating circumstance may be offset by a mitigating cir cumstance, a
qualifying circumstance may not. (People us.,Mendoza, G.R. No.
133.'382, 09 March 2000, 327 SCRA 695) . ·•

Generic aggrav:::ting circumstances vs. Special aggravating cir

cumstances.
Generic aggravating circumstances are those that generally apply
to all crimes such :1s those mentioned in Article 14, para graphs No.
1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised
52 UPDATES IN CRIMINAL LAW
Penal Code. It has the effect of increasing the penalty for the
crime to its maximum period, but it cannot increase the same to
the next higher degree. It must always be alleged and charged in
the infor mation, and must be proven during the trial in order to be
appreci• ated. Moreover, it can be offset by an ordinary mitigating
circum-
stance.
On the other hand, special aggravating circumstances are
those which arise under special conditions to increase the penalty
for the offense to its maximum period, but the same cannot
mcrease the penalty to the next higher degree. Examples are
quasi-recidivism under Article 160 and complex crimes under
Article 48 of the Re vised Penal Code. It does not change the
character of the offense charged. It must always be alleged and
charged in the information, and must be proven during the trial in
order to be appreciated. Moreover, it cannot be offset by an
ordinary mitigating 6rcumstance.
It is clear from the foregoing that the meaning and effect of
generic and special aggravating circumstances are exactly the
same except that in case of generic aggravating, the same CAN be
offset by an ordinary mitigating circumstance whereas in the case
of spe cial aggravating circumstance, it CANNOT be offset by an
ordinary mitigating circumstance. (People vs. Palaganas, G.R
No. 165483,
12 September 2006)
Advantage taken of public position.
To appreciate this aggravating circumstance, the public officer
must use the influence, prestige or ascendancy which, 1 is office gives
him as a means by which he realizes his purpose. The essence of the
matter is presented in the inquiry "Did the accused abuse his office
to commit the crime?" (People vs. Viltamor, G.R. Nos. 140407-08, 15
January 2002, 373 SCRA 254)
Not aggravating if the accused could have perpetrated the crime
even without occupying public position.
There was no showing that accused-appellant took advantage
of his being a policeman to shoot Jelord Velez or that he used his
"influence, prestige or ascendancy" in killing the victim. Accused
appellant could have shot Velez even without being a policeman.
In otlier words, if the accused could have perpetrated the crime
even without occupying his position, there is no abuse of public
position. xxx the mere fact that accused-appellant is a policeman
and used
THE REVISED PENAL CODE 58
his government issuecl .38 caliber revolver to kill is not sufficient
to establish that he misused his public position in the commission
of the crime. (People vs. Villamar, G.R. Nos. 140407-08, 15
January 2002, 373 SCRA 254; People vs. Bangcado, G.R. No.
132330, 28 No
vember 2000, 346 SCRA 189; People vs. Amion, G.R. No. 140511, 01
March 2001, 353 SCRA 410) ·, • ·
As to abuse of public position, the essential question.is wh ther
the accused abused his office in order to commit the crime. That
accused-appellant was a member of the dreaded CAFGU and used
his government issued M-14 rifle to kill Jimmy does not necessarily
prove that he took advantage of his public position to commit the
crime. (People vs. Magayac, G.R. No. 126043, 19 April 2000 330
SCRA 767) ' .J
However, in the case of Fortuna vs. People, G.R. No. 135784,
15 December 2000, 348 SCRA 270, it was held that - ·
"The mer fact that the three (3) accused were all
police officers at the time of the robbery placed them in
a position to perpetrate the offense. If they were n.ot
police officers they could not have terrified the
Montecillos into boarding the mobile patrol car and
forced them to·hand . over their money. Precisely it was
on account of their au· thority that the Montecillos
believed that Mario had in fact committed a crime and
would be brought to the police· . statiun for
investigation unless they gave them what they :
demanded." ·
In contempt of:or with Insult to public authorities.
. '
The requisites of this circumstance are: (1) the public author
ity is engaged in the discharge of his duties; and (2) he is not the
person against whom the crime is committed. None of these
circum stances are present in this case. In the first ple.ce, the crime
was committed against the barangay chairman himsel£ At the time
that he was killed, he was not engaged in the discharge of his
duties as he was in fact playing a card game with his neighbors.
(People vs. De Mesa, G.R. No. 137036, 14 March 2001, 354
SCRA 397)
Disregard of age or sex.
Anent the circumstance of age, there must be a showing that
the malefactor deliberately intended to offend or insult the age of
54 tTPDATES IN CRIMINAL LAW
the victim. Neither could disregard of respect due to sex be
appreci at.ed if the offender did not manifest any intention to
offend or disre· gard the sex of the victim. In ·other words, killing
a woman is not attended by the aggravating circumstance if the
offender did not manifest any specific insult or disrespect towards
the offended party's sex. (People vs. Taboga, G.R. Nos. 144086-
87, 06 February 2002, 376 SCRA500J
However, the mere fact that the victim is a woman is not
per se an aggravating circumstance. There was no finding that the
evi dence proved that theaccused in fact deliberately intended to
offend or insult the sex of the victim, or showed manifest
disrespect to the offended woman or displayed some specific insult
or disrespect to her womanhood. There was no proof of specific
fact or ,;ircumstance, other than the victim is a woman, showing
insult or disregard of sex in order that it may be considered as
aggravating circumstance. (Mari vs. Court of Appeals, G.R. No.
127694, 31 MC'y 2000, 332 SCRA475J
The bare fact that thevictim is a woman does not per se
consti tute disregard of sex. For this circumstance to be properly
consid ered, the prosecution must adduce evidence that in the
commission of the crime, the accused had particularly intended to
insult or com mit disrespect to the sex of the victim. In this case,
the appellant killed the victim because the latter started to shout.
There was no intent to insult nor commit disrespect to the victim
on account of the latter's sex. (People vs. Reyes, G.R. No. 153119,
13 April 2004, 427 SCRA28)
Applicable only to crimes against persons or honor.
Disregard of age, sex or rank is not aggravating in robbery
with homicide, which is primarily a crime against property, as the
homicide is regarded as merely incidental to the robb(;ry. (People us.
Afontinola, G.R. Nos. 131856-57, 09 July 2001, 360 sr:RA 631)
Said circumstance is aggravating only in crimes against per
sons or honor. However, in People vs. Montinola, the Supreme
Court appreciated treachery as a generic aggravating
circumstance in Robbery with Homicide (a crime against
property), although alevosia is applicable only to crimes against
persons, when it held that "when treachery obtains in the
special complex crime of robbery with homicide, such
treachery is to he regarded as a generic aggravating
circumstance, since robbery with homicide is a
THE REVISED PENAL CODE 55
composite crime with its own definition and special penalty
in the Re,>ised Penal Code. Having formed part of the ·cir
cumstances proven concerning the actual commission of the
crime, 111uch treachery would help determine the ,penalty
to be imposed." In People vs. Arizobal, G.R. Nos. 135051-52, 14
De· cember 2000 though, the Supreme Court ruled that 11(T)he
accused stand charged with, tried and convicted of robbery with
homicide. This special complex crime is primarily classified in this
jurisdiction as a crime ga nst property, and not against persons,
homicide being merely an mc1dent of robbery with the latter being
the main pur pose and object of the criminals. As such, treachery
cannot be val idly appreciated as an aggravating circumstance
under Art. 14 of
The Revised Penal Code." . ,., ,, !
Dwelling.
Dwelling aggravates a felony where the crime was comiriitted
in the dwelling of the offended party if the latter has not gi en
provocation or if the victiru was killed inside his house. Dwelling is
considered aggravating primarily because of the sanctity of privacy
the law accords to human abode. He who goes to another's house to
hurt him or do him wrong is more guilty than he who offends him
elsewhere. (People vs. Perreras, G.R. No. 139622, 31 July 2001, 362
SCRA202) ..
Under Article 14, paragraph 3 of the Revised Penal Code, dwell
ing is aggravating if the crime is committed in the dwelling of the
offended party and tha latter has notgiven provocation'. As contem•
plated under the law, dwelling may mean temporary dwelling More
over, dwelling may be aggravating even though the victim was not
the owner of the house where the crime was committed. (People vs.
Melendres, G.R. No. 134940, 30 April 2003, 402 SCRA 279)
In People t>s. Parazo, this Court stressed that the "dwelling"
contemplated in Article 14(3) of the Revised Penal Code does not
necessarily mean that the victim owns the place where he lives or
dwells. Be he a lessee, a boarder, or a bedspacer, the place is his
home, the sanctity of which the law seeks to protect. (People vs.Dela
Torre, G.R. No. 98431, 15 January 2002, 373 SCRA 104) '
For the circumstan<'e of dwelling to be considered, it' ii'not
necessary that the accused should have actually entered the dwell
ing of the victim to commit the offense; it is enough that the -&ictim
was attacked i1,side his own house, although the assailant might
56 UPDATES lN CRIMINAL LAW
have devised means to perpetrate the assault from the outside. (People
vs. Perreras, G.R. No. J.'39622, 31 July 2001, 362 SCR/, 202; People ,·s.
Dacibar, G.R. No. 111286, 17 February 2000, 325 SCRA 725)
Dwelling cannot be appreciated because Marine! and the ap·
pellant lived in the same house at the time of the rape incidents. As
a result, the rationale for considering dwelling as an aggravating
circumstance, i.e., the violation by the offender of the sanctity of the
home of' the victim by trespassing therein to commit a crime, is
absent. (People vs. Calongui, G.R. No. 170566, 03 March 2006, 484
SCRA46)
What dwelling includes.
The word dwelling includes every dependency ,if the house
that forms an integral part thereof and therefore it includes the
staircase of the house and much more, its terrace. (People us. Rios,
G.R. No. 132632, 19 June 2000, 333 SCRA 823)
In the case at bar, the building where the two offenses were
committed was not entirely for dwelling purposes. The evidence
shows that 'it 'consisted of two floors: the ground floor, which was
being operated as a video rental shop, and the upper floor, which
was used as a residence. It was in the video rental shop where the
rape was committed. True, the victim was dragged to the kitchen
and toilet but these two sections were adjacent to and formed parts
of the store. Being a commercial shop that caters to the pub:ic, the
video rental outl t was open to the public. As such, it is not,:
Ltributed the sanctity of privacy that jurisprudence accords to
reside11tial abodes. Hence, dwelling cannot be appreciated as an
aggravating circum stance in the crime of rape. (People us. Tafio,
G.R. No. 133872, 05
May 2000, 331 SCRA 448)
Occupant-victim must not have given provocation.
When a crime is committed in the dwelling of Lhe offended
party and the latter has not given provocation, dwelling may be
appreciated as an aggravating circumstance. Provocation in the ag
gravating circumstance of dwelling must be: (a) given by the of
fended party, (b) sufficient, and (c) immediate to the ce,mmission
of the crime. (People vs. Rios, G.R. No. 132632, 19 June 2000, 333
SCRA823)
THE REVISED PENAL CODE 57
The generic aggravating circumstance of dwelling did not at
tend the killing of Sergio because he gave sufficient and immediate
provocation for the attack when he hit Joseph with the tanduay
bottle. Dwelling is aggravating under Article 14, No. 3 of the Revised
Penal Code only if the offended party has not given provocation.
(People vs. Marquita, G.R. Nos. 119958-62, 01 March 2000, 327'SCRA
41) . ··: ,·, l
Dwelling is inherent in certain crimes.
Generally, dweiling is considered inherent in the crimes
which can only be committed in the ahode of the victim, such as
trespass to dwelling awl robbery in an inhabited place. However,
in robbery with homicide the authors thereof can commit the
heinous crime without transgressing the sanctity of the victim's
domicile. (People vs. Arizobal, G.R. Nos. 135051-52, 14
December 2000, 348 SCRA
143) ,.:
Abuse of confidence.
B'or this aggravating circumstance to exist, it is essential to
show that the confidence betwean the parties must be immediate
and personal such as would give the accused some advantage or
make it easier fer him to commit the criminal act. The confidence
must be a means of facilitating the commission of the crime, the
culprit taking advantage of the offended party's belief that the
former would not abuse said confidence. (People vs. Arrojado,
G.R. No. 130492, 31 January 20@1, 350 SCRA 679)
Nighttime.
By and of itself, nighttime is not an aggravating
circumstance, however, it becomes aggravating only when: (1) it
is especially sought by the offender; or (2) it is taken advantage of
by him; or (3) it facilitates the commission of the crime by
ensuring the offender's immunity from capture. In this case, the
trial court correctly appre ciated nighttime as aggravating
considering that nighttime facili tated the abduction of the
Ceriales brothers, the killing of Manuel Ceriales and the attempt
to kill Edmundo Ceriales. Evidence shows that accused-appellants
took advantage of the darkness to success fully consummate their
plans. The fact that they brought with them a flashlight clearly
shows that they intended to commit the crime in
58 UPDATES IN CRIMINAL LAW
darkness. (People vs. Silva, G.R. No. 140871, 08 August 2002, 387
SCRA 77)
And even if alleged, nighttime cannot properly be considered
in this case because, although the crime was committed late at night,
there was no evidence that night ime facilitated the commission of
the crime or that it was specially sought by the offender to ensure
the commission thereof, or that the offender took advantag£ ofit for
impunity. The record does not show that appellant deliberately sought
the cover of darkness when he assaulted Otoleo Brabante. The pros
ecution established no more than the simple fact that the crime was
committed at night. (People vs. Villanueva, G.R. No. 139177, 11 Au
gust 2003, 408 SCRA 571)
Nocturnity is not aggravating when, other than the time, there
is nothing on record or even in the testimonies of the witnesses
from which it may be inferred that the accused particularly took
advan· tage of the darkness of the night to facilitate their criminal
design. Certainly, the mere fact that the offense was committed at
night will not suffice to sustain a finding of nocturnity. (People vs.
Baroy, G.R. Nos. 137520-22, 09 May 2002, 382 SCRA 56)
Meaning of band.
A crime is committed by a band when at least four armed
malefactors act together in the commission thereof. In this case,
all six accused were armed with guns which they used on their
victims. Clearly, all the armed assailants, including appellant, took
direct part in the execution of the robbery with homicide. (People
vs. Ancheta, G.R. No. 143935, 04 June 2004, 431 SORA 42)
Nighttime, uninhabited place or band can be considered one
ag
gravating circumstance only; exception.
The trial court did not err in considering the nighttime and
uninhabited place as just one aggravating circumstance. In the case
of People vs. Santos, it has been held that if the aggravating circum
stances of nighttime, uninhabited place or band concur in lhe com
mission of the crime, all will constitute one aggrav:tt.ing circum
stance only as a general rule although they can be considered. se a
ratelv if their elements are distinctly perceived and can subsist m
depe dently, revealing a greater degree of perversity. (People vs.
Librando, G.R. No. 132251, 06 July 2000, 335 SCRA 232)
60 UPDATES IN CRIMINAL LAW
THE REVISED PENAL C(>DE 59
Recldlvls1n-.
Article 14(9) of the Revised Penal Code defines a recidi'rist 'as
"one who, at the time ·or his trial for one crime shall have been
previously convicted by final judgment of another crime embraced
in the same title of this Code." To prove recidivism, it is necessary to
allege the same in the information and to attach thereto certified
copies of the sentences rendered against the accused. (People vs.
Molina, G.R. Nos. 134777-78, 24 July 2000, 336 SCRA 400; People
vs. Dacillo, G.R. No. 149368, 14 April 2004, 427 SCRA 528)
Reiteracion.
Reiteracion or habituality under Art. 14, par. 10, herein cited,
is present when the accused has been previously punished for an
offense to which the law attaches an equal or greater penalty than
that attached by law to the second offense or for two' or more of·
fenses to which it attaches a lighter penalty. (People vs. Cajara, G.R.
No. 122498, 27 September 2000, 341 SCRA 192) ·, •' '
When the crime is attended with treachery and "by means of ex
plosion," the latter shall be considered as a quallfylng circum
stance while the former, as generic aggravating circumstance.
When the killing is perpetrated with treachery and by means
of explosives, the latter shall be considered as a qualifying circum
stance. Not only does jurisprudence support this view but also, since
the use of explosives is the principal mode of attack, reason dictates
that this attendant circumstance should qualify the offense instead
of treachery which will then be relegated merely as a generic aggra
vating circumstance. (People vs. Comadre, G.R. No. 153559, OB June
2004, 431 SCRA 366)
Evident premeditation.
To consider evident premeditation, it is necessary that the
fol· lowing requisite;; be met: (a) the time when the accused
determined to commit the crime; (b) an act manifestly indicating
that the ac cused clung to his determination; and (c) a lapse of
time, between the determination to commit the crime and the
execution thereof, sufficient to allow him t-0 reflect upon the
consequences of his act. In the present case, no evidence was
presented by the prosecution as to when and how appellant
planned and prepared for the killing of the victim. There is no
showing of any notorious act evidencing a deter-
mination to commit the crime which could prove appellant's crimi
nal intent. Hence, we cannot agree that there was evident premedi
tation here, on appellant's part. (People vs. Mondijar, G.R. No.
141194, 21 November 2002, 392 SCRA 356; People vs. Guerrzro,
G.R. No.
134759, 19 September 2002, 389 SCRA 389; People vs. Sebastian,
G.R. No. 131734, 07 March 2002, 378 SCRA 557)
Essence of evident premeditation.
The essence, therefore, of evident premeditation is that the
execution of the criminal act is preceded by cool thought and
reflec tion upon the resolution to carry out the criminal intent
within a space of time sufficient to arrive at a calm judgment.
All the elements of evident premeditation are met m this case.
As early as December 18, 1989, the conspirators had determined to
kill Pedro Arang. On December 24, 1989, they met to set their hei
nous plan into effect but they had to postpone it because Pedro left
for another town to visit his wife. Still they clung to their resolve
as they simply postponed the execution to January 6, 1990. All
these demom1trate that the criminal intent had been harbored in
dark reflection and calculation for more than two weeks, where the
male factors had every opportunity to abandon it but did not do so.
(People vs. Uganap, G.R. No. 130605, 19 June 2001, 358 SCRA 674)
The qualifying circumstance of evident premeditation requires
that the execution of the criminal act by the accused be preceded
by cool thought and refiection upon a resolution to carry out the
crimi nal intent during the space of time sufficient to arrive at a
calm judgment. Evident premeditation needs proof of the time
when the intent to commit the crime is engendered in the mind of
the ac cused, the motive which gives rise to it, and the means
which are beforehand selected to carry out that intent. All such
facts and ante cedents which make notorious the pre-existing
design to accomplish the criminal purpose must be proven to the
satisfaction of the court. (People vs. Torpio, G.R. No. 138984, 04
June 2004, 431 SCRA 9)
Premeditation must be evident.
Evident premeditation cannot be deduced from mere
presump tion or speculation. It must be proven clearly. EvideLt
premedita tion cannot be appreciated without proof of how and
when the plan to kill was hatched or how much timo clnpaod
bcforo it wnH carried out. The premeditation must be evident and
not merely suspected.
THE REVISED PENAL CODE 61
xxx. The trial court thus erred in holding that evident premedita
tion attended the killing of the victim merely on the basis· of its
finding of a deep-seated and long standing grudge felt by accused
appellant towards the victim. The mere existence of ill-feeling .or
grudge between the parties is not sufficient to establish. prex;nedk
tated killing. Even assuming that accused-appellant felt sp1te to
wards Pedr.to and harbored a desire to vindicate the death bf his
father, such a sentiment does not necessarily translate into a resolu
tion to commit a crime. There must be an outward act showing or
manifesting criminal intent. (People vs. Bernal, G.R. Nos. 132791
and 140465-66, 02 September 2002, 388 SCRA 211)
An expression of hatred does not necessarily imply a
resolution to commit a cri-...ne; there must be a demonstration of
outward'acts of a criminal infent that is notorious and manifest.
Evident premedi tation must be based on external acts which are
evident, not m rely suspected, and which indicate deliberate
planning. (People vs. Dimailig, G.R. No. !20110, 31 May 2000, 332
SCRA 340)
Evident prnmeditatlon Is not presumed from mere lapse of time;
The prose ution is burdened to prove that the malefactors had
decided to commit a crime and performed an "act manifestly
indicat ing that the offender had clung" to a previous determination
to kill. It must be shown that there was a period sufficient to afford
full opportunity for meditation and reflection, a time adequate to
allow the conscience to overcome the resolution of the will, as well
as out ward acts showing the intent to kill. The premeditation to
kill should be plain and notorious. In the absence of clear and
positive evidence proving this aggravating circumstance, mere
presumptions and in ferences thereon, no matter how logical and
probable, would not be enough. (People vs. Biso, G.R. Nos. 111098-
99, 03 April 2003, 400 SCRA483)
Under whet Instance may the requisites of evident premeditation
need not ba established?
Wher.. conspiracy is directly established, with proof of the at
tendant deliberation and select.ion of the method, time and means of
executing the crime, the existence of evident premeditation can be
taken for gr.llllted. However, where no such evidence exists, and
where conspiracy is merely inferred from the acts of the accused in the
perpetration of the crime, as in the case at bar, the above requisites of
evidPnt premeditution 11oed to be established. (People us. Cam..
62 UPDATES IN CRIMINAL LAW
pomanes, G.R. No. 132568, 06 J,Hiruary 2002, 376 SCRA :;07; People
us. Pablo., G.R. Nos. 120394-97, 16 January 2001, 349 SCRA 79)
Premeditation is not aggravating when the victim is different from
that Intended.
As adverted to earlier, the trial court, citing People vs. Dueno,
did not consider evident premeditation as having aggravated the
killing of Aileen since she was not the intended victim of
appellants' conspiracy. Upon further scrutiny, however, this Court
finds that this aggravating circumstance should have been
appreciated in con nection with Aileen's murder. Jurisprudence is
to the effect that evident premeditation may be considered as
present, even if a per son other than the intended victim was
killed, ifit is shown that the conspirators were detennined to kill
not only the intended victim but also anyone who may help him
put a violent resistance.
Here, it was established that upon seeing her husband being
attacked by appellants, Aileen immediately called for help and
hurled objeds at appellant Flores. And it was because of this
passionate defense of her husband that appellant Flores hachd at
her face and stabbed her four times. These factual circumstances
arc analogous to those in People vs. Belga, where this Court had
occasion to state that:
"While it would seem that the main target of the
male factors were Alberto and Arlene Rose, this does
not nega tive the presence of evident premeditation on
the physical assault on the person of Raymundo Roque.
We have estab lished jurisprudence to the effect that
evident premedita tion may be considered as present,
even if a person other than the intended victim was
killed (or wounded, as in this case), if it is shown that
the conspirators were deter mined to kill not only the
intended victim but also any0ne who may help him put a
violent resistance. Here, Raymundo Roque provided
such violent resistance against the conspirators, giving
the latter no choice but to elimi nate him from their
path." (People vs. Ventura, G.R. Nos. 148145-46, 05 July
2004, 433 SCRA 389)
Craft or fraud.
Craft involves intellectual trickery and cunning on the part of
the offender. When there is a direct inducement by insidious
words
THE REVISED PENAL CODE 63
or machinations, fraud is present. By saying that he would ilccom
pany the victim to see the cows which the latter intended to, buy,
appellant was able to lure the victim to go with him. (People vs.
Labuguen, G.R: No. 127849, 09August 2000, 337;SCRA 488);1 '. , , •.
·, ,, , r , 1 ',,<I
Abuse of superior strength.
To appreciate abuse of superior strength, there must be a' de
liberate intent on the part of the malefactors to take advant ge of
their greawr number. They must have notoriously selected arid made
use of superior strength in the commission, of the crime. To take
is
advantage of superior strength is to use excessive force that out of
proportion to the means for self-defense available to the person at-•
tacked; thus, the prosecution must clearly show the offenders' delib
erate intent to do so. (People tis. Lobrigas, G.R. No. 147649, 17
December 2002, 394 SCRA 170; People vs. Beruega, G.R. No. 142931,
11 April 2002, 380 SCRA 674)
The aggravating circumstance of abuse of superior strength
depends on the age, size and strength of the parties. It is considered
whenever there is a notorious inequality of forces between the vic tim
and the aggres3or, assessing a superiority of strength notori ously
advantageous for the aggressor which is selected or taken advantage
o.f by him in the commission of the crime. (People vs. Barceion, G.R.
No. 144308, 24 September 2002, 389 SCRA 356; People
vs. Calpito,a.- No. 123298, 27 November 2003, 416 SCRA 491,·
People vs. ,la. ion, G.R. No. 141.942, 13 October 2008, 413 SCRA282)
R.
In a recent case, it was held that an attack made by a man with
a deadly weapon upon .:..n unarmed and defenseless woman consti
tutes an abuse of the aggressor's superior strength.The circumstance
must apply with more reason in the present case, where the abuse of
superior strength is evident from the notorious disparity between
the relative strength of the victim, a 74-year-old unarmed woman,
and the assailant, a young man armed with a knife. (Peopk vs. Calpito,
G.R. No. 1.23298, 27 November 2003, 416 SCRA 491)
Mere superiority In number would not necessarily Indicate tho
attendance of abuse of superior strength.
Mere superiority in number, even assuming it to be a fact,
would not necessarily indicate the attendance of abuse of superior
strength. The prosecution should still prove that the assailants pur
posely used excessive force out of proportion to the means of
defense
64 UPDATES IN CRIMINAL LAW
available to the persons attacked. (People us. Sansaet, G.R..1'-Jo.
139330, 06 February 2002, 376 SCRA 426) . he used in seriously wounding her. That circumstance
Superiority in number does not necessarily amount to the ag
gravating circumstance of taking advantage of superior strength.
But in this case, it has been shown that theaggressors cooperated
in
such a way as to secure the advantage of their numerical strength
and advantage. There is proof of the relative numerical strength of
the aggressors and the assaultea, a ratio of 5 to 2. There is also
proof that the aggressors simultaneously assaulted the deceased.
When all five accused, armed with bolos, joined forces to attack
and pursue Sanchez and Masangya, in a concerted effort, they
definitely abused their superiority in number and in arms. (People
us. Ambrocio, G.R. No. 140267, 29 June 2004, 433 SCRA 67)
Abuse of superior strength distinguished from treachery.
Unlike in treachery, where the victim is not given the
opportu nity to defend himself or repel the aggression, taking
advantage of superior strength does not mean that the victim was
completely defenseless. Abuse of superiority is determined by the
excess of the aggressor's natural strength over that cf the victim,
considering the momentary position of both and the employment
of means weaken ing the defense;although not annulling it. Hence,
the fact that Aileen attempted to fend off the attack on her and her
husband by throw ing nearby objects, such as an electric cord, at
appellant Flores does not automatically negate the possibility that
the latter was able to take advantage of his superior strength.
On the contrary, this Court in a very long line of cases has
consistently held that an attack made by a man with a deadly weapon
upon an unarmed and defenseless woman constitutes the circum
stance of abuse of that superiority which his sex and the weapon
used in the act afforded him, and from which the woman was unable
to defend herself. Thus, in People us. Malas, where the accused was
convicted of murder for stabbing to death two women and an eight
year old boy, this Court discoursed:
"While treachery was not appreciated as a qualify ing
circumstance against Molas, the killing of thn three victims
was raised to murder by the presence of the quali
. , fying circumstance of abuse of superior strength. There
was abuse of superior strength when Molas inflictBd sev
eral mortal wounds upon Soledad. Molas, besideR being
THE REVISED PENAL CODE 65
younger and stronger, was armed with a weapon which
was also present when he hacked eight-year old Abelaro
and also Dulcesima who, besides being a woman
oflesser ··r; ·
strength was unarmed. (Emphasis i
supplied)" :'i': f,; / ;'
r-'
And in the more recent case of People us. Loreto, this Court
opined: ... . ,
"The contention of accused-appellant is barren of
merit. Article 14, paragraph 15 of the Revised Penal Code'"' '
provides that a crime against persons is aggravated ,by
the a.::cused taking advantage of superior strength. T,here;, .-. 1,
are no fixed and invariable rules regarding abuse of supe i ;,, 1, .
rior strength or employing means to weaken the defense m,: ,
of the victim. Superiority does not always mean numeriw,,n,
cal superir:rity. Abuse of superiority depends upon the rela,1r
,.; tive strength of the aggressor uis-a-vis the victim. There,\
"·' is abuse of superior strength even if there is only one!·.<,
malefactor and one victim. Abuse of superiority is·deter ;
mined by the excess of the aggressor's nat•.1ral strengthli·, ,,
over that of the victim, considering the position· of both'.,,
and the employment of means to weaken the· defense·, although
not annulling it. The aggressor must have ad,· ·. vantage of
his natural strength to insure the commission ·
of the crime. In this case, accused-appellant was armed·,. \ ·· ,
with a knife and used the same in repeatedly stabbing•\.
Leah, a young wisp of a girl, no less than eighteen times
after overtaking her in the sala of Dan's house.
Irrefragably, then, accused-appellant abused his·s P,
r,";,".,.
strength in stabbing Leah. In a case of early vintage [People
us. Guzman, supra. at 1127], the Court held that:· ·
'There is nothing to the argument: that the
accused was erroneously convicted of murder. An . ,
attack made by a man with a deadly weapon upon
an unarmed and defenseless worr,an constitutes the
drcic:mstance of abuse of that superiority which his
sex and the weapon used in the act afforded him,
and from which the woman was unable to defend
herself. (US. us. Camiloy, 36 Phil. 757; U:S. us.
Consuelo, 13 ..:Jhil. 612; People us. Quesada, 62 Phil.
·146) The circumstance of abuse of superior strength ·
66 UPDATES IN CRIMINAL LAW
was, therefore, correctly appreciated by the trial
court, as qualifying the offense as murder."'
(Emphasis sup plied; citations omitted)
By deliberately employing a dE.adly weapon against Aileen,
ap pellant Flores clearly took advantage of the superiority which
his strength, sex and weapon gave him over his unarmed victim.
(People us. Ventura, G.R. Nos. 148145-46, 05 July 2004, 433 SCRA
3R.9)
Treachery.
There is treachery when the offender commits any of the
crimes against the person, employing means, methods or fonn'l in
the ex ecution thereof which tend directly and specially to insu::-e
its execu tion, without risk to himself arising from the defense
which the offended party might make. (Andrada vs. People, G.R.
No. 135222, 04 March 2005, 452 SCRA 685; People us. Quening,
G.R. No. 132167,
08 January 2002, 373 SCRA 42) For treachery to be considered, two
(2) elements must concur: (a) the employment of means of execution
that give the person attacked no opportunity to defend himself or
retaliate; and (b) the means of execution were deliberntely or con
sciously adopted. (People us. Hammer, G.R. No. 14783(1, 17 Decem
ber 2002, 394 SCRA 182; Velasco us. People, G.R. No. 166479, 28
February 2006, 483 SCRA 649; People vs. Piliin, G.R. No. 172966, 08
February 2007) Further, it must always be alleged in the information
and proved in trial in order that it may be validly consid.ered. (People
vs. Beltran, G.R. No. 168051, 27 September 2006)
Treachery. must be proved by clear and convincing evidence, or
as concJuslvely as the killing itself.
Treachery is never presumed. Like any other qualifying cir
cumstance, it must be proven with equal certainty and clearness as
the crime itself. The prosecution has the burden to prove that at
the time of the attack, the victim was not in a position to jefend
him self, and that the offender consciously and deliberately
adopted the particular means, method and forms of attack
employed by him. (People vs. Ramos, G.R. No. 125898, U April
2004, 427 SCRA 207)
It is settled that if the victim, when killed, was sleeping or
had just awakened, the killing is with treachery because in such
cases, the victim was not in a position to put up any form of
defense. However, when the lone eyewitness for the prosecution
did not see
THE REVISED PENAL CODE 67
how the attack commenced, the trial court cannot presume from
the circumstances of the case that there was treachery.• (People us.
Abatayo, G.R. No. 139456, 07 July 2004, 433 SCRA 562)
Since the prosecution's \vi.tn sses did not see how.the attack
was carriecl. out and cannot testify on how it began, the·trial court
cannot presume from the circumstances of the case that there was
treachery. Circumstances which qualify criminal responsibility can
not rest on mere conjectures, no matter how reasonable or probable,
but must be based on facts of unquestionable existence. Mere prob
abilities cannot substitute for proof required to establish.each ele '
ment necessary to convict. Treachery must be proved by'clear and
convincing evidence, or as conclusively as the killingitself. (People
vs. Reforma, G.R. No. 133440, 07 June 2004, 431 SCRA 133)
Where no particulars are known regarding the man'ner in
which the aggression was made or how the act which resulted in
the death of the victim began and developed, it cannot be
established from mere supposition that an accused perpetrated the
killing with treach
ery. Treachery cannot oo appreciated where the lone eyewitness to
the killing was not able to see how the assault started. It can never
be presumed, it must be satisfactorily proved beyond reasonable
doubt. Where thHe is no eyewitness to the killing or evidence on
the manner of its exec:.ition, like in the case at bar, treachery
cannot be considered an aggravating circumstance. (People vs.
Umayam, 0:R. No.134572, 18April2002, 381 SCRA323) '•i.;;,.,.,
The number of stab wounds, most of which were inflicted at
the back of the child - unarmed and alone - shows the deliberate
ness, the suddenness and the unexpectedness of the attack, Vvhich
thus deprived br of the opportunity to run or fight back. (People us.
Rendaje, G.R. No. 136745, 15 November 2000, 344 SCRA 738) ·
Essence ot treachery.
The essence of treachery is the sudden, une p cted, and un
foreseen attack on the person of the victim, without the .slightest
provocation on the part of the latter. (People vs. Hormina, G.R. No.
144383, 16 January 2004, 420 SCRA 102) Otherwise stated, there is
treachery when the following conditions concur: (a) the
emploY,ment of means of execution that gives the person attacked
no opportunity to defend himself or retaliate,:and (b) the means of
execution was deliberateiy or consciously adopted (People vs.
Delmindo, G.R. No. 146810, 27 May 2004, 429 SCRA 546) .
68 UPDATES IN CRIMINAL LAW
The essence of treachery is thus a deliberate and sudden at
tack, affording the hapless, unarmed and unsuspectir g victim no
chance to resist or to escape. While it is true that the victim herein
may have been warned of a possible danger to his person, since the
victim and his companion headed towards their residence when
they saw the group of accused-appellants coming back for thP,m
after an earlier quarrel just minutes before, in treachery, what is
decisive is that the attack was executed in such a manner as to
make it impos sible for the victim to retaliate. (People vs. Piedad,
G.R. No. 131923, 05 December 2002, 393 SCRA 488; People vs.
Baltazar, G.R. No.
129933, 26 February 2001, 352 SCRA 678; People vs. Natividad,
G.R. No. 138017, 23 February 2001, 352 SCRA 651)
Instances where the killlng is attended with treachery:
1. Appellant and her co-accused tied William to a santol
tree before they stabbed and shot him to death, thus, insuring the
execu tion of the crime without risk to themselves. Obviously, he
could not retaliate. This aggravating circumstance qualifies the
crime to mur der. (People vs. Ramos, G.R. No. 125898, 14 April
2004, 427 SCRA 207)
2. Treachery clearly attended the killing as the victim was
killed while he was asleep. The victim's wife testified that accused
appellant suddenly barged into their house and stabbP,d her hus
band several times, while he was sleeping near the door; and that
the latter was in no position to flee or defend himself. (Sulton vs.
People, G.R. No. 139369, 27 June 2005, 461 SCRA 248; P£ople vs.
Wad-as, G.R. No. 146103, 21 November 2002, 392 SCRA 387; People
vs. Mondijar, G.R. No. 141194, 21 November 2002, 392 SCRA 356;
People vs. Loterono, G.R. No. 146100, 13 November 2002, 391 SCRA
593; People vs. Dawaton, G.R. No. 146247, 17 September 2002, 389
SCRA 277; People vs. Silva, G.R. No. 140871, 08 August 2002, 387
SCRA 77; People vs. Balleras G.R. No. 134564; 26 June 2002, 383
SCRA 439; People vs. Coca, G.R. No. 133739; 29 May 2002, 382
SCRA 508; People vs. Kinok, G.R. No. 104629, 13 November 2001,
368 SCRA 510; People vs. Ortiz, G.R. No. 133814, 17 July 2001, 361
SCRA 274; People vs. Muerong, G.R. No. 132318, 06 July 2001, 360
SCRA566)
3. The killing ofa child, who by reason of tender years could
not be expected to put up a defense, is considered at.tended with
treachery even if the manner of attack was not shown. A child three
70 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 69
years of age ::annot be expected to appreciate a danger to her, life,
especially when she is left with strangers and is not within the
immediate r ach of her mother. (People vs. Talavera, G.R. No.
139967,· 19 July .2001, 361 SCRA 433)
4. That treachery attended the killing of Leonil Ji enez,
qualifying the crime to murder, as alleged in the information '.and
found by the trial court, deserves our concurrence also.' Records
show that Leonil was only 12 years old at the time he was killed.
We have stated that the killing of minor children who, because of
their. tender age, could not be expected to put up a defense, is
considered attended with tre11chery even if the manner of attack is
not shown. In People vs. Ganohon, we deemed as attended with
treachery the killing of a 12-year-old child. Similarly, in People vs.
Abuyen, we ruled that the killing of a 13-year-old child is, in itself,
treacherous. In both cases, we qualified the killings as murder. In
this particular case, treachery indubitably qualified the killing
ofLeonil Jimenez, a 12-year-old child, as murder. (People vs.
Jorolan, G.R. Nos. 142683- 84, 23 June 2003, 404 SCRA 564)
5. After a drinking spree, the victim and his friends·were
walking towards home when suddenly, the appellant came out from
nowhere, anned with a k!'l.ife. Without any warning, the appellant
stabbed the victim on the 'vital parts of his body, ensuring the latter's
immediate death. Thus, the appellant killed the victim in a treach erous
manner. (People vs. Dela Cruz, G.R. No. 140385, 14 August 2004,
436 SCRA 641)
6. Treachery clearly attended the killing as Ladaga, pinned
down by Taan, was tipsy when he was killed, and thus was en
feebled and did not have full control of his senses. Previously,
Ladaga"s hands had been tied and his forehead had been struck with a
stone, With Marquez carrying a shovel and Taan armed with a gun,
the unarmed, weakened L11daga was clearly defenseless. (People
vs.7ban, G.R. No. 169432, 30 October 2006) ·
The mode of attack must be consciously adopted.
In treachery, the mode of attack must be consciously
adopt.ed. This meanr. that the accused must make some
preparation to kill the deceased in such a manner as to insure the
execution of the crime or to make it impossible or hard for the
person attacked t.o defend himself or retaliate. The mode of attack,
therefore, muet;be planned by th offender, and must not
spring from the unex•
pected turn of events. The meeting between appellant's group
and the victim was merely by chance and it could not be said that
the %ode of attack could have been planned. A killing done at the
 spur of the moment is not treacherous. (People vs. Calago, G.R. No.
141122, 22 April 2002, 381 SCRA 448; People vs. Mazo, G.R. No.
136869, 17 October 2001, 367 SCRA 462; People vs. Beja, G.R. No.
138454, 13 February 2002, 376 SCRA 651)
It has been held that the suddenness of the attack, the inflic tion
of the wound from behind the victim, the vulnerable position of the
victim at the time the attack was made, or the fact that the victim·
was unarmed, do not by themselves render the attack as treacherous.
This is of particular significance in a case of an instan taneous attack
made by the accused whereby he gained an advanta geous position
over the victim when the latter accidentally fell and was rendered
defenseless. The means employed for the commission of the crime or
the mode of attack must be shown to have been consciously or
deliberately adopted by the accused to insure the consummation of the
crime and at the same time eliminate or re duce the risk of retaliation
from the intended victim. For the rules on treachery to apply, the
sudden attack must have been precon ceived by the accused,
unexpected by the victim, and without provo cation on the part of the
latter. (People vs. Dagani, G.R. No. 153875,
16 August 2006)
It must be noted, however, that mere suddennestl of the attack
would not, by itself, constitute treachery. There is a brther need to
prove that appellant consciously and deliberately ad:Jpted the
mode of attack to insure execution without risk to himsel:. The
circum stances surrounding the case negate the presence of this
second element. It was established that the shooting occurred in
broad daylight, in an open area, with more than ten people around.
The victim then was in the company of two of his friends, who
could have come to his aid at anytime. Verily, if appellant wanted
to insure that no risk would come to him, he could have chosen
another time and place to shoot the victim. (People vs. Magbanua,
G.R. No. 133004, 20
May 2004, 428 SCRA 617)
There is no treachery where the attack is neither sudden nor
preconceived and deliberately adopted but just triggered by the
sud den infuriation on the part of the offender. To establish
treachery, the evidence must show that the offender made some
preparation to kill 'the victim in such a manner as to insure the
e:rncution of the crime or to make it impossible or difficult for the
person attacked to
72
UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 71
defend himEel£ The mode of attack must be planned by the offender
and must not spring from the unexpected turn of events. There is no
treachery when the killing results from a verbal altercation between
the victim and the assailant such that the victim was forewarned of
the impendiag danger. (People vs. Ila, G.R. No. 140731, 21 November
2002, 392 SCRA 326) , . ; \ _\_, "
The attendant circumstances indicate that the attack on Rializa
was the result of a rash and impetuous impulse rather than of a
deliberate, conscious and willful act. We have ruled in a catena of
cases that where the meeting between the accused and the .victim
was casual and the attack was done impulsively or devoid of any plan,
there can be no treacherJ even if the attack was sudden and
unexpected. In treachery, the mode of attack must not spring from
the unexpected turn of events but must have been deliberately
thought of by the offender. (People vs. Gutierrez, G.R. Nos.' 144907-
09, 17 SeptHmber 2002, 389 SCRA 268) · · ''· ·· · ·· ·.
As a general rule,'a sudden attack by the assailant,: whether
frontally or from behind, is treachery if such mode of attack was
deliberately adopted l::y him with the purpose of depriving the vic tim
of a chance to either fight or retreat. The rule does not apply if the
attack was not preconceived but merely triggered by infuriation of
the appellant on an act made by the victim. In the present case, it is
apparent that the attack was not preconceived. It was triggered by
the appellant's anger because of the victim's refusal to have a drink
with the appellant and his companions. (People vs. Dumadag, G.R. No.
147196, 04 June 2004, 431 SCRA 65)
There is no treachery when the assault is preceded by a heated
exchange of words between the accused and the victim; or when
the victim is aware of the hostility of the assailant towards the
former.
The verbal and physical squabble prior to the attack proves
that there was no treachery, and that the victim was aware of the
imminent danger to his life. Moreover, the prosecution failed to es
tablish that appellant had deliberately adopted a treacherous mode
of attack for the purpose of depriving the victim of a chance to fight
or retreat. ' ··
''
Certainly, the victim knew that his scuffle with appellant
could eventually turn into a violent physical clash. The. existence
of a struggle before the fatal blows were inflicted on the victim
clearly
shows·that he was forewarned of the impending attack, and that he
was afforded the opportunity to put up a defense. Indeed,a killing
done at the spur of the moment is not treacherous. Moreover, any
doubt as to the existence of treachery must be resolved in favor of THE REVISED PENAL CODE 73
the accused. (People us. Escarlos, G.R. No. 148912, 10 September

pected. The St_:ddenness of the attack does not. of itsel(.suffice to

support a ? dmg of aleuosia, even if the purpose was to kill
as h; dee1s1on ':as madfl all of a sudden and the victim's
position was accidental. (People vs. Templo G.R No 133569
l
h::o
D
cember 2000, 346 SCRA 626) , · · '· e-
2003, 410 SCRA 463) f :i o::d
:: 1:e; :':'l=::i:.: !'::;
o ;l u !: !° 0 t :
Sudden attacks made by the accused preceded by curses and Bi9fort: : i

w
insults by the victim or acts taunting the accused to retaliate or the

rebellious or aggressive behavior of the victim were held to be with·

out treachery as the victim was sufficiently forewarned of reprisal.
h' e °i :e attack a opted by appellant was not without risk
imse , neither was it sudden. When he began his. ..
(People vs. Gonzalez, G.R. No. 139542, 21 June 2001, 359 SCRA220; proach, he was visible to the victim and the latter' menacm ,ap-
People us. Buluran, G.R. No. 113940, 15 February 2000, 325 SCRA Ap ellant was out in the O?en and.thus at risk fros compdanfi.1ons.
w hich the · h m a n y
476) . . group m ig t make. The presence of suc h r is k
Repeatedly upheld has been the rule that chance encounters, e en se
a nd th ehx. istenIfce of &.mple opport um't Y fior t he. vi.ctim to
impulse killing or crimes committed at the spur of the moment, or
those that were preceded by heated altercations are generally not
f
escape or defened

f 8 ;
attended by treachery, for lack of opportunity of the accused 1 rr;:_;ri l t 1 : ; op le us. Discalsota, G.R. No. 136892,
deliber ately·;to employ a treacherous mode of attack. In the
present case, it appears from the evidence that appellant's grudge
against the vic tim was brought about only moments before the Treachery may be appreciated even If the attack Is frontal.
attack, when the latter ignored his repeated pleas for rice. As fr e e tled rule is that treachery can exist even if t e t ck.is
observed
court, theby
sight
theof trial
the victim leaving the c0mpound without heeding nittal if it is.sudden and unexpected, giving the victim no
appellant's request must have worsened his anger. In his testimony,
appellant admitted that at that moment, he "forgot himself." Fur·
. opportu-
Y repel it or defend himself against such attack. Wh .t

s1v 1s that the execution of the attack without the siigh:

d
. t
eCJ.
ther, he explained that it was then customary for him to bringa
knife for his own safety, in defense against lawless elements in their c ti?n from t. e vi tim who is unarmed, made it impossibl:
0
: 1o;
area at the time. It was thus only by chance and not by plan that he victim to defond himself or to retaliate. (People vs. Sades GR Ni 0
171087, 12 July 2006, 494 SCRA 716) ' . ' •
attacked the victim the way he did. The stabbing w':l.s evidentlya
result ofa rash and impetuous impulse of the moment arising from f The fact that the attack is frontal does not negate the findin o
what appellant perceived to be· an unjust act of the victim, rather
than froma deliberated action. Hence, as the killing was done at the
spur of the moment, treachery cannot be appreciated. (People 11s.
treachery. Even a frontal attack can be treacherous if sudden :
unexpected and the victim is unarmed. Here, the victim was
de ly tab ed when he. w s extending his hand to the appellant.
s:
Caratao, G.R. No. 126281, 10 .June 2008, 403 SCRA 482) With his m.mdset, the v1ctm1 could not have any inkling that th
nis I c wh en he appronched appellant (People
wVYa.s d' CTn.g· cr to h'
eurse
We have repeatedly ruled that where a killing w:.1s preceded by icente, G.R. No. 137296, 26 June 2003, 405 SCRA 40.) . . . ..
an argument or quarrel, the qualifying circumstani::e of treachery Even a frontal attack can be treacherous when it is ,;udden a d
can no longer be appreciated. The previous fight would have pl3ced .unexpe_cte? and ,;he victim was unanncd. In this case tl . t?
the victim on guard for any reprisal by the assailants. (People us. was dnnkmg w"i th h'is s and had no inkling that ·h, e
· d 1weovutlcd 1bme
m en
Mendez, G.R. No. 131815, 14August 2002, 387 SCRA294; People vs. attacked ?Y appellant, xxx. The attack though frontal was so sud
den, leavmg the victim, Dante Bartolome, with no opportunit t
Lumintigar, G.R. No. 132557. 15 ,January 2002, :173 SC&\ J26l
Provocation of the accused by the victim negates the presence
put up a defense. (People vs. Valenzuela, G.R. No. 126776 05
tember 2002, 388 SCRA 387) Thus, even if the victim is fo;ewar:id
J
of treachery even if the attack may have been sudden and unex-
 THE REVISED PENAL CODE 75
UPDATES IN CRIMINAL LAW
74

ated even when the victim is warned of the danger to his person as
ofth.e dange to his persoh 'chtreac :r t p: liil:io r:l : t\ t long as the execution of the attack made it impossible for the
earned out m a wayw 1 ma · GR N, 135936 victim to defend himself or to retaliate. The essence of treach
defend himself or to retaliate. (People vs. Mirador, . . o. ' ery is the swift and unexpected attack by an aggressoron an
19 September 2001, 365 SCRA 405) unarmed and unsuspecting victim who does not give an{ slightest
provocation, depriving the latter of any real chance to defend him
the v1·ctim was fore· self. fI'eoplP vs. Samson, G.R. No. 124666, 15 February 2002,
·tt be appreciated even when
Treachery may st1 377
warned of danger to his person.
SCRA 25)
The existence or non-existence of treachery s not depe1'.dendt
Nevertheless, treachery may still be appreciated even when
, . 1· .. t h ry mav still be appreciate the virtim was warned of danger to his person; what is decisive is
on the success of the assau t, tor reac e , . h' \Vhat that the execudon of the attack made it impossible for the victim to
even when the victim was forewarned of danger to .1s.personible for
. d . ·ve is that the execution of the attack made it imposs 1 defend himselfc.::" t.o retaliate. (People vs. Garin, G.R. No. 139069, .17
1s ec1s1 . 1 t Thus evPn a fronta June 2004, 432 SCRA 394) ·
the victim to defend himself or to reta ia e. ' . . ,d
' could be treacherous when unexpected and on an u a1rnt
!:i: who would be in no position to repel the attack or avoid it ..
If the attack is continuoui::, treachery must be present at Its lncep·
. The swift unfolding of events plac:d the victim ina posmon tion to be appreciated.
h h ld not effectively defend himself from the assault on
;is er:rs:n o;he defense cannot refute the evidence of t achery It is a fundamental rule oflong standing that for treachery to
h p t t that the victim and his compamons already sa"." appcl be apprnciate<l, that circumstances must be present at the inception·
t e pre ex_ an armalite and approaching their gener:.11 direction. of the at.tack, and if absent and the attack is continuous, treachery,
la t carrymg f t . the community that appellant is a member even if present at a subsequent stage is not to be considered. That
It 1s a well-known acm .· in the street.
of the PNP-Pilar. For appellant to be seen beanng arms , ld it final fatal blows may have in truth been delivered under conditions
exhibiting some features of treachery does not remedy the fact that
, ld t be something out of the ordinary nor wou .
therefore, .woud nf rm Neither could the fact that appellant fi_rst the prosecution failed to prove the existence of treachery · at the
cause amc an a· to the air be construed as sufficient warmng onset of the attack. fPeople vs. Loterono, G.R. No. 146100., .13 No·
fired hhis weapon vembcr 2002, 891 SCRA 693!
.· · 1
d his companions.
sueh that" they would have had
upont e \ 1ct1m.: t. upa defense. The interval of time between
the ofipptortumt_:r shpuot and the subsequent fatal shots is not ;;uffi.
the us warnmg Treachery may be appreciated in robbery with homicide although
cient to put the victim on guard.
T ·t treacherv may still be appreciated even when the latter is essentially a crime against property.
Treachery is a generic aggravating circumstance to robbery
te'
theo era ,
. t'm re1 ,
the danger to his N 'th r does: the
forewarned
vie1
was of person. 1 e ., with homicide although said crime is classified as a crime against
d . thL . t-
fact that other people were present urmg .t es ho otmg k negate property and a single and indivisible crime. Treachery is not a quali
e t
r;::;l
Even assuming that those shots were warninis shots,Ith

;.t;:z
d do s the resence of treachery in the instant
: : :::n!:::::: ! :i::::::::: ; :t: d. case. n eop thisPCourt
may also be apprec1·
;s.
M
al e1. ana, G,,R No· 145002• 24 January 2006, 479 SCRA 610)
Firing of warning shots does not necessarily negate the presence
of treachery.
fying circumstance because as ruled by the Supreme Court of Spa.in in its
decision dated September 11, 1878, the word "homicide" is used in its
broadest and most generic sense. xxx
Treachery is not an element of robbery with homicide.,Neither does it
constir,ute a crime specially punishable by law nor is it in cluded by the law
in defining the crime of robbery with homicide and prescribing the penalty
therefor. Treachery is likewise not in herent in the crime of robbery with
homicide. Hence, treachery should
 UPDATES IN CRIMINAL
LAW THE REVISED PENAL CODE 77
76

.
be considered
. avating circumstance in robbery with
as a genenc aggr 1 · . for the crime. xxx Abuse of superior strength is absorbed In treachery.
homicide for the imposition of the proper pena t)' .
\.v"here app. llant and his companions were armed and .far out
In fine in the application oftr a hery asla g nle c ag :a! : numbered the victim, the aggravating circumstances of, abuse. of
' bb ry with hom1c1de, the aw oos a superior strength and aid of armed men are absorbed in treachery.
circumstance to ro 'd h' h . c ·ime against persons and not
ew i (People vs. Parreno, C.R. No. 144843, 07 July 2004, 433 SCRA
c1't t 'me of hom1 ic rn a agam
.
h'ch is a crime st prop- 591;
stl uen en . b
at the constituei:tacn eedot rt i:s;t ent .crime of"homicide" '.rnd People vs. llijapon, G.R. No. 133928, 10 July 2001, 360 SCRA 78;
erty. Treachery. PP . f" bbery" of the special complex cnme People vs. Aquinde, 133733, 29August 2003, 410SCRA 162)''
not to the constituent cnme o ro
of robbery with homicide. . .
. .. . f bbe with homicide does not lose its class1fica Ignominy.
The c1;-meo r? ry or asa s ecial complex and single
tion as a cnme a amst. prore:y tre!herv is appreciated as a For ignominy to be appreciated, it is required that the offense
and indivisible c17me impy ecau reachery erely increases the be committed in a manner that tends to make its effect more'humili
generic aggravatmg circumstance. .h Arti le 63 of the Revised ating, thus adding to the victim's moral suffering. Where the victim
enalt for the crime conformably wit . c was already dead when his body or a part thereof was dismembered,
ienal ode absent any generic mitigating circumstance. XXX ignominy cannot be taken against the accused. In this case,' the
. ric aggravating circumstance information states that Victorino's sexual organ was severed. after
In sum hen, tr a.chery ;n\f:n ctim of homicide is killed he was shot and there is no allegation that it was done 'to add
by ignominy hi the natural effects of the act. We cannot, therefore,
in robbery with homicide wh140756 04 April 2003, 400 SCRA 603: consider ignominy as an aggravating circumstance. (People ·vs.
treachery. (People vs. Escote, , ' J ')004 431 SCRA 42) Cachola, G.R. Nos. 148712-15, 21 January 2004, 420 SCRA 520)
People vs. Ancheta, G.R. No. 143935, 04 une '
The aggrllvating circumstance of ignominy shall be tak eri1 into
account if means are employed or circumstances brought about which
Treachery cannot co-exist with passion or obfuscation.
. f ssion and obfuscation, one
to
add ign-Jminy the natural effects of the offense; or if the·crime
In the mitigating circumstanc eo pa . h. f delib- was committe(:· in a manner that hmds to make its effects more
lf t l l r ,ely precluding im hrom d humiliating to the victim, that is, addthetoflashlight
her moraland
suffering. It was
loses his reason and se - onl
t 1 employing a particu ar me ro ' at;od ' means
. or form
where of attack in
e accuse established that BALIWANG used examined the
era e y . It ldot L

the execution of the cnme. 11:i1

be
b:rst of emotion provoked by
present genital of Gloria before he ravished her. He committed his bestial
prior did n t act due to uncontrole 'timate stimulus that could deed in the presence of Gloria's old father. These facts clearly show
overcome or unJust acts or due toa d gi GR N, 132669 25 that BALIWANG deliberately wanted to further humiliate Gloria,
September 2002, thereby agwavating and compounding her moral sufferings. Igno
reason. (People vs. Empera or, ,.. o. , miny was appreciated in a case where a woman was raped in the
390SCRA1) presence of her betrothed, or of her husband, or was made to exhibit
to the rapists her complete nakedness before they raped her. (People
Nighttime is absorbed in treachery. vs. Bumidang, G.R. No. 130630, 04 December 2000, 846 SCRA
. f · httime is absorbed by 807)
The aggravating c1rcumstagc; oN::g 141154-56, 15 January
;;;h;i
the ' .
i;;;::e2 ;) r= ;s evidently an integral part of
h er usm eans tand manner adopted to ensure
It has been held that where the accused in committing the
rape used not only the missionary position, i.e., male superior, fe
male inferior but also the dog position as dogs do, i.e., entry from

:ie f'
the peculiarly treac cnme, or th it facilitated the treacherous behind, as was proven like the crime itself in the instant case, the
 execution of the a a GR. No. 128126,
25 character of the attack. (People vs. Catd" a·R No 134245 01 aggravating circumstance of ignominy attended the commission
June 2001, 359 SCRA 459; People vs. in o, r.. . ' thereof. (People vs. Siao, G.R. No. 126021, 03 March 2000, 327
December 2000, 346 SCRA 648) SCRA
269)

i'

UPDATES IN CRIMINAL LAW
78
Use of motor vehicle.
The use ofa motor vehicle qualifies the killing to murder if the
same was perpetrated by means thereof. (People vs. Enguito, G.R.
No. 128812, 28 February 2000, 326 SCRA 508)
The evidence shows that Rufino deliberately usEd his truck in
pursuing Joseph. Upon catching up with him, Rufin0 hit him with
the truck, asa result of which Joseph died instantly. It is therefore
clear that thetruck was the means used by Rufino to perpetrate the
killing of Joseph.
.The case of People vs. Mufi.oz cited by Rufino finds no
applica tion to the present case. In the said case, the police patrol jeep
was merely used by the accused therein in looking for the victim and
in carrying the body of the victim to the place where it was dumped.
The accused therein shot the victim, which caused the latter's death.
: In the present case, the truck itself was used to kill the victim by
running ver him. (People vs. Mallari, G.R. No. 145993, 17 June
2003, 404 SCRA 170)
Cruelty.
For cruelty to exist, there mullt be proof showing that the ac
cused delighted in making their victim suffer slowly and
gradually, causing him unnecessary physical and moral pain in the
consum mation of the criminal act. (People vs. Catian, G.R. No.
139693, 24
January 2002, 374 SCRA
514)
The crime is not aggravated by cruelty simply because the
victim sustained ten stab wounds, three of which were fatal. For
cruelty to be considered as an aggravating circumstance, there
must be proof that, in inflicting several stab wounds on the victim,
the perpetrator intended to exacerbate the pain and suffering of the
victim. The number of wounds inflicted on the victim is not proof
of cruelty. (Simangan vs. People, G.R No. 157984, 08 duly
2004, 434
SCRA38)
This being the sequence of events (wherein accused first sev ered
the victim's head before his penis was cut-offi, cruelty has to be ruled
out for it connotes an act of deliberately and sadistically aug menting the
THE REVISED PENAL CODE 79
alleged cruelty in the killing was perpetrated when the victim was
already dead. (People vs. Guerrero, G.R. No. 134759 19 S t b
2002, 389 SCRA 389) , ep em
er
1:he act of c:1tting-off the victim's penis though after the latter
wa:rikilled constitutes the qualifying circumstance of outraging or
sco mg at the corpse of the victim under Article 248, par. 5. RPG. ••
·(:--;- ''" (Y;1 •·
Confederation, not an aggravating circumstance.' 'i, ,ctr,
· It is. wort y to note th.at confederation is not enu { } ·
aggrava mg circu.mstance .under Article 14 .of the
Revised,,Penal
?ode. Like conspiracy which must be alleged in· and not merel
11_1ferre f;om t?e r:,formation, confederation is but a mode ofincU:.
rmg
1 cnm,n l hai·nhty and may not be considered criminaLin'its lf
un ess specifically provided by law. Neither may confeder ti n be
treat d as an a gr va ing circumstance in.the absent:e 'or"ariy law
defining or class1fymg 1t as such. (People vs. Baroy,
G.R.'Nos."t3752()'.' 22, 09 May 2002, 382 SCRA 56) · · · ·
,, ,,,, ,
i'
Use of unlicensed firearm as a special aggravating lr umstanc
under R.A. No. 8294.
h . ere anaccused used an unlicensed firearm 111-' committi g
omic1de or murder, he may no longer be charged with what used to
be t?e two (2) separate offenses of homicide or murder under Th
evhise enal Code and qualified illegal possession of firearms use:
here m.ur-
dm omh od r murder under PD 1866·• in other
md· e, word s,w
wrong by causing another wrong not necessary for its }
commission, or inhumanely increasing the victim's
suffering. xx.x.
No cruelty is to be appreciated where the act
constituting the
fier or o1:11c1 e was co:11mitted, the penalty for illegal possession of irearms .1s n
longer imposable since it becomes merely a special aggravatmg circumstance.
(People vs. Tadeo, G.R. Nos. 127660 and 144011-12, 17 September 2002, 389
SCRA 20)
Republic ct No. 294, which took effect on 06 July 1997, would 8!10W the
use Os an unlicensed firearm to be taken as an aggravati g circum tance
"if_homici1e or murder was committed with the use:f an unlicensed firearm.
(People vs. Mamerto, G.R. No. 144975 18 June 2003, 404 SCRA
336) · , '
d P:- simple rea ing thereof shows that if an unlicensed firearm is
use m t e com 1ss10n of any crime, there can be no separate of
fo se,? simple illegal possession of firearms. Hence, if the "other
cnme is murder or homicide, illegal possession of firearms becomes

UPDATES IN CRIMINAL LAW

80 THE REVISED PENAL CODE 81

merely an aggravating circumstance, not a parate offens . Sin e ALTERNATIVE CIRCUMSTANCES

direct assault with multiple attempted hom1c1de was committed_m
this case, appellant can no longer be held liable for illegal
Intoxication.
possession
of firearms. statutesa new meaning detached from the manifest intendment
Moreover, penal laws are constnied liberally in fa or of the and language of the .legislature. Our task is constitutionally
accused. In this case, the plain meaning of RA 8294's simple lan confined only to apply· ing the law and jurisprudence to the
guage is most favorable to herein appellant. Verily, no other mter proven facts, and we have done so in this case. (People us.
pretation is justified, for the language of the new law demonstrates La.djaalam, G.R. Nos. 136149-51, 19 Sep·
the legislative intent to favor the accused. Accordingly, appellant tember 2000, 340 SCRA 617)
cannot be convicted of two separate offenses of illegal possessio of
firearms and direct assault with attempted homicide. M::ireover, smce
the crime committed was direct ;issault and not homicide or murder,
illegal possession of firearms cannot be deemed an ag'iravating cir-
cumstance. xxx
Just as unacceptable is the interpretation of the trial court. We
find no justification for limiting the proviso in the second paragraph
to murder and homicide. The 1aw is clear: the accused can he con·
victed of simple illegal possession of firearms, pov !de d _that ''.no
1

other crime was committed by the person arrested. J f the mter'.tion

of the law in the second paragraph were to refer only to hommde
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.
The Court is aware that this ruling effectively wrnnerates ap
pellant of illegal possession of an M-14 rifle, an offonse which n r
mally carriesa penalty heavier than that for direct assau t..While
the penalty for the first is prision mayor, for the second t :s only
prision correccional. Indeed, the accused may evade .convicti n _for
illegal possession of firearms by using such weapons 1 comm1tt:ng
an even lighter offense, like alarm and scandal or shght hys1cal
injuries, both of which are punishable by arresto menor. This
conse quence, however, necessarily arises from t e l guage of RA
8 4, whose wisdom is not subject to the Courts reV1ew. Any
perception that the result reached here appears unwise should be
addressed to Congress. Indeed, the Court has no discretion to give
 The general rule is that intoxication may be considered either as
aggravating or mitigating, depending upon the circumstances
attending the commission of the crime. Intoxication is mitigating and
therefore has the effect of decreasing the penalty if the intoxica tion
is not habitual or attendant to the plan to commit the contem plated
crime. On the other hand, when intoxication is habitual or done
intentionally to embolden the malefactor and 'facilitate the plan to
commit the crime, it is considered as an aggravating circum stance.
(People vs. Bernal, G.R. Nos. 132791 and 140165-66, 02 Sep· tember
2002, 388 SCR4. 211)
. Intoxication, according to this article, is mitigating if not ha-
b1t1:1al or subseque.nt to the plan to commit the felony; having been
cc1dental and pnor to any criminal resolve, it was more out of 111:pulse
or delusion born of alcohol that the offender committed the cnme,
Drunkenne::;s or intoxication is mitigating if accide tal not h
bitual o intentional; that is, not subsequent to the plan to oms m1t
the cnme. To be mitigating, the state of intoxication of the ac cused must
be proved or established by sufficient evidence., But 1.f ntoAication is
proved, then in the absence of truth to the contrary; it rn presumed to be
unintentional or not habitual. (People us. Baray, G.R. Nos. 187520-22,
09 May 2002, 382 SCRA 56)
However, t;"le alternative circumstance of intoxication should b
considered as mitigating in favor of Joseph since it was suffi ciently
shown that: (a) at the time of the commission of the criminal act, he has
taken such quantity of alcoholic drinks as to blur his reason and
deprive him of certain degree of control and (b) that s ch
intoxication is not habitual, or subsequent to th plan to com mit t?e
felony. It_ was this intoxication which led to his impetuous, frenzied
and funous attack on the victims. (People vs. Marquita, G.R.. Nos.
119958-62, 01 March 2000, 327 SCRA 41) · . , _ ..

Burden of proof.
A perso.n pleading intoxic tion to mitigate penalty must present
proof ?f ?avmg take a quantity of alcoholic beverage prior to the
comm1ss1on of the cnme, sufficient to produce the effect of obfuscat-
 THE REVISED PENAL CODE 83
UPDATES IN CRIMINAL LAW
82
a r e c o n si d er e d p r i n cipals by direct a. . . .
ing reason. At the same time, that person must show proof of not u i sit e s a r e p r es e n t : rt1 C1p atto n if
beinga habitual drinker and not taking the alcoholic drink with the the following req-
intention to reinforce his resolve to commit the crime. (People vs.
1. they participated in the criminal resolution; a.n ·,.- .
execution by acts which directly iend
Cortes, G.R. No. 137050, 11 July 2001, 361 SCRA BO) 2. they carried out their lan d . . . . .
p..ar. t. in
.its
eadn toptehresosnaamlleyetnodo.k.
Relationship.
aid Both requisites were met in th· nC:e. Two r more . . . .
In order that the alternative circumstance of relationship may m to have participated in the cri . :8solut1on persons are
be taken into consideration in the imposition of the proper penalty, . crim To tab
the offended party must either be the: (a) spouse, (b) ascendant,
(c) desc dant, (d) legitimate, natural or adopted brother or sister,
r ishconspiracy at the time of th
conspiracy, it is not essenti e1comm1ss1on
th t th of the
when they.were
e. es •
agreement and decision to co it t reb pr of of the
or previous
(e) relative by affinity in the same degree, of the offender. In the the malefactors acted in co rt e cnme, it bemg sufficient that
case at bar, prosecution eyewitness Fernando Marcos, Jr. testified (People vs . !Jacillo, G.R. No.:4c;36 / ":;
that Cesar and Virgilio Marcos are brothers. Accused likewise de . '
clared that Virgilio is his brother. That the victim is the elder brother an lto20 t h e s a m e o b je c ti v e.
pn 04 , 4 2 7 S C R A 5 2 8 )
of Cesar is likewise alleged in the Information. Toe rule is that
r,elatjonshlp is aggravating in crimes against persons as when Conspiracy once found t' . . .. .·
accomplished and unless ab: :;;s un:11 the obJect of it h s een
the gffepder @4 the gffAQded party are relatives f same level cused guilty asa co-principalb or roken u?. To hold a* i{(;.
such as killinga brother. (People vs. Marcos. G.R. No. 132392, 18

=
Janu· shown to have performed an ov:;:aso.n of conspirac he must· be
of the complicity There t b . ct in.pursuance or furtherance
ary 2001, 349 SCRA 537) transaction with ·a view : r8 1 tent iona l particip tion 'in the
Similarly, relationship is not aggravating because the relation· and purp (R e urt erance of the comm.oh 'd •
ship between Marinel and the appellant as first cousins is not within 430 SC ) eople vs. Vasquez, G.R. No. 123939, 28 May
the concept contemplated in Article 15 of the Revised Penal Code.
(People vs. Calongui, G.R. No. 170566, 03 March 2006, 484 SCRA 46)
Accomplices. ,
The following requisites must · order thata person
may concur
PERSONS CRIMINALLY LIABLE be considered an accomplice: m
(a) community of desi · kn . ·· ·• '
Principals. of the principal by direct parr.· '·::· owmg that criminal design
The principals in the commission of a crime are (1) those who his purpose; c1pa ion, he concurs with the latter in
takea direct part in the execution of the act; (2) those who directly (b) he cooperates in the executi f th . ' .
force or induce others to commit it; and (3) those who cooperate in or simultaneous acts; and on e offense by previous
the commission of the offense by another act without which it could (c) there must be a relation b .o. . ,
not have been accomplished. As such, in order to convict accused· June 2000, .'3.'34 SCRA 193)
appellant as principal in the crime of murder, the prosecution must
prove specific acts done by him which fall under any of the Principal by direct participation.
abovementioned acts. (People vs. Ragundiaz, G.R. No. 124977, 22
Two or more persons taking part in the commission ofa
 crime principal and those attributed to the etween the acts do11e oy the
(People us. Roche G.R No 115182 olAersoln charged as accomplice.

r::
. .' • • • L , pri 2000, 330 SCRA 91)
''· To be rleemed an acco .
1. o e needs to have · · ··
edge of and participation had both knowl-
,p?ncipal and tr;e accomplice : c m1 al act. In othe:r words, the

e,
.directed their efforts to the sameu: have ac m conJunction and
.were united in their criminal desi; · Thus, it is essential that both

84
UPDATES IN CRIMINAL LAW Accomplices cooperate in the execution of the crime by
previous or simultaneous al!ts, by means of which they aid,
facilitate or protect the execution of the crime, without,
In the case before us, appellant did not concur in or lend sup port however, takmg any direct part in·such execution, or forcing
to the nefarious intent of Tolentino. The mere fact that the former or inducing others to execute it, or contributing to its
had prior knowledge of the latter's criminal design did not accomplishment by any indispensable act. As testified by
automatically make him an accomplice. This circumstance, by itself, Dianita, accused-appellant Garalde's participation con·
did not show his concurrence in the principal's criminal intent.
(People us. Tolentino, G.R. No. 139179, 03 April 2002, 380 SCRA
171)
Two elements must concur before a person becomes liable as
an accomplice: (1) community of design, which means that the ac
complice knows of, and concurs with, the criminal design of the
principal by direct participation; and (2) the performance by the
accomplice of previous or simultaneous acts that are not
indispens able to the commission of the crime. Mere comndssion
of an act, which aids the perpetrator, is not enough. (Abarquez
us. People,
G.R. No. 150762, 20 January 2006, 470 SCRA 225) Accomplices
come to know about the criminal resolution of thfi principal by
direct participation after the principal has reached the decision to
commit the felony and only then does the accomplice agree to
cooperate in its execution. Accomplices do not decide whether the
crime should be committed; they merely assent to the plan of the
principal by direct participation and cooperate in its
accomplishment. However, where one cooperates in the
commission of the crime by performing overt acts which by
themselves are acts of execution, he isa princi pal by direct
participation, and not merely an accomplice. (People us. Pilola,
G.R. No. 121828, 27 June 2003, 405 SCR.4. 134)
Article 18 of the Revised Penal Code provides that an accom·
plice is one who, not being a principal, cooperates in the execution of
the offense by previous or simultaneous acts. To be convicted as
such, it is necessary that he be aware of the criminal intent of the
principal and then cooperate knowingly or intentionally by supply ing
material or moral aid for the efficacious execution of the crime.
(People us. Compo, G.R. No. 112990, 28 May 2001, 358 SCRA 2_66) An
accomplice is one who knew the criminal design of the principal and
knowingly or intentionally participated therewith by an act which
even if not rendered, the crime would be committed just the same.
(People us. Lobrigo, G.R. No. 132247, 21 May 20u1, 358 SCRA 73)
 THE REVISED PENAL CODE 85
s s d i? her .a t of peeping through the door at one time during the victims
captivity and uttering, "itali ninyong mabuti iyan at baka "!akawala," ref
rring to the driver, Antonio. This participation was simultaneous with the
commission of the crime. This circumstance alone, owever, was.not
indispensable to the commission of the crime. Accordingly, the tnal court
rightfully convicted accused-appellant Garalde as an accomplice. (People
us. Garalde, G.R. No. 128622 14 December 2000, 348 SCRA 38) ·
Conspirators distinguished from accomplices.
Conspirators nd accompli es hav one thing in common: they know
and Rgree with the cnmmal design. Conspirators however know the
criminal intention because they themselves ha e decided upon s c .::ourse
of action. Accomplices come to know about it.after the pnncipals hev.e
eached t e decision, and only then do they agree to cooperate m its
execution. Conspirators decide that a crime should be committed;
accomplices merely concur in it. Accomplices do not decide whether the
crime should be committed; they merely assent to the plan and cooperate
in its accomplishment. Conspira tors are the authors of a crime;
UPDATES IN CRIMINAL LAW
86
participate in its c?mmissio \P;!n:::t!r°:h:::!i!:\r:!r: :
=
?art subs1fu nt t 1::;o r:i:::nder to profit by the effects of the
m o e c ! g or destroying the body of he rime, o the
/instruments thereof, in order to prevent its d1scov':ry a
(a) harboring, concealing, or assisting in;;e
of the crime provided the accessory ac W 1
::::::;eU:,; h n;: ic
. .d ur
• of t reason,
tli d . guilty pan'lc1 e, m •
functions otrtewhe !h:a:e:
known e rf;softhe Chief Executive, or is
der, or an a mp . T
r1)
· t n accused as
to be habitually guilty of somle othetsr. crimset.beopc;:: . knowledge
8; the following e emen mu · . . . .
t :c: ssion of the crime; and (2) subsequent part1c1pabonm
:
t by any of the three above-cited modes.
·. Under paragraph 2 of said codal provision, the conc:ln;-en: o
.. . . . ·on of the body of the crime or of the effects or ': ms ru
the es:;;;! fmust have been done in order to prevent the discovery
:;.et :crime. That, precisely, is wanting in the present case.
• · ·In his testimony, appellant d th t b use he was afraid
·. •
state a eca d . t the
. ld hurt him if he refused, he agree to ass1s
accomplices are merely their instru· ments who perform acts not
essential to the perpetration of the offense. (People us. Garcia, G.R.
Nos. 133489 and 143970 15 Janu- ary 2002, 373 SCRA 134) '
. After a conscientious reflection on the complicity of Doblen and
Ro as, we have r ached the conclusion that they should be held
gu;lty as accomphces. It is true, strictly speaking, that as co-con
spn:ators ey hould be punished as co-principals. However, since
thei part1C1pation was not absolutely indispensable to the consum
mat10n o!t e. murder, the rule that thecourt should favor the milder
'
form of hab1hty may be applied to them.
In scme exceptional situations, having community of design
with the principal does not prevent a malefactor from being re g
ded as an accomplice if his role in the perpetration of the homi
cide or murder was, relatively speaking, of a minor character.
(Garcia vs. Court of Appeals, G.R. No. 134730, 18 Sentember 2000
340 SCRA
M© r '
Accessories.
' Article 19 of the Revised Penal Code defines an accessory as
one who had knowledge of the commission of the crime and did not
THE REVISED PENAL CODE 87
lant Ruby Mariano from criminal liability under Art. 20 of The
Revised Penal Code - '·
"Art. 20. Accessories who are exempt from criminal
liability. -The penalties prescribed for accessories shall
not be imposed upon those who are such with respect to·
their i:;pouses, ascendants, descendants, legitimat.e, natu•
ral and adopted brothers and sisters, or relatives by affin
ity within the same degrees, with the single exception o,f
accessories falling within the provisions of paragraph 1 of
the pr1:::ceding article."
The reason for exemption is obvious; it is based on ties of blood
and the preservation of the cleanliness of one's name, which com
pels one to conceal crimes committed by relatives so near as those
mentioned in the above-quoted article. This Courtis thus
mandat.ed by law to acquit accused-appellant Ruby Mariano.
(Peop.le vs.
Mariano, G.R. No. 134847, 06 December 2000, 347 SCRA 109)
,. ,, ',•, i
Corpus delicti.
 1:tco;1ccc: :; he victim towards the river. The fact that Corpus delicti is defined as the body, foundation or substance
appel- upon which a crime has been committed, e.g., the corpse of a mur
l:n: e1;;, thereafter likewise_ indic ted bids intnoc nrc o0 :!esi::: dered man. It refers to the fact that a crime has been actually com
. h d tely explained his con uc prio . mitted. Corp!.ls delicti does not refer to the autopsy report evidenc
ye1:ly, e a eq a ffi r for his own life. It is not incredible for.an ing the nature of the wounds sustained by the victim nor the testi
mc1dent as one or.no ea . 11 if unarmed to desist from ass1st- mony of the physician who conducted the autopsy or medical exami
?Ye tne o f: :·s!s!:C !uttheform:r•s life in peril. nation. It is made up of two elements: (a) that a certain result has
(People
m g ,!; le vit . im G1R uo 139179 03 April 2002, 380 SCRA
vs .
171) en i no , . .
.n,,
.10
Under h 3 f ,Article 19 of the Revised Penal Code, been proved, for example, a man has died; and (b) that some person

:
paragrap O ·h · blic is criminally responsib!e for the act.
8
::ra: : :r r; :::e:fs::c: : : : i n°t;e:fs;:: co/:h; Proof of corpus delicti is indispensable in prosecutions for felo
l Such public officer must have acted wit a use .of hisp . nies and offenses. \Vhile the autopsy report of a medico legal expert

1:
p.a . . committed bv the prmc1pal is any cnme, in cases of murder or homicide is preferably accepted to show the
functions, nd the cnmhe" 1 A eilant SP04 Niew is one such
. d d it is not a hg t ie ony. PP ·1 d extent of the injuries suffered by the victim, it is not the only compe
a.

prov:e ffi ' d he abused his public function when he fate
p bl c t :ct r::diate arrest of accused Antonio anc\ to conducta.
:p::dy investigation of the crimec n,imitted. (People vs. Antonio,
G.R. No. 128900, 14 July 2000, 3:Jo SCRA 646)
Accessories who are exempt from criminal liability.
' "ed-appellant Ruby Mariano is the sister of accused-ap
; ccu"
pellant ' As such, their re1 at10ns
Ruth Mariano. · I ·up exe
.. mpts a'ppel-.
to tent evidence to prove the injur es and the fact of death. It may be
proved by the testimonies of credible witnesses. Even a single wit
ness' un1corroborated testimony, if credible, may suffice to prove it
and warrant a conviction therefor. (People us. Quimzon, G.R·. No.
133541, 14April 2004, 427 SCRA 261)
Corpus delicti has been defined as the body or substance of the
crime and, in its primary sense, refers to the fact that a crime has
actually been committed. As applied to a particular offense, it means
 UPDATES IN CRIMINAL LAW
88
the actual commission by someone of the particular crime charged.
(People vs. Obedo, G.R. No. 123054, 10 June 2003, 403 SCRA
431)
Corpus delicti refers to the specific injury or loss sustained. It
is the fact of the commission of the crime that may be proved by
the testimonies of eyewitnesses. In its legal sense, corpus delicti
does not necessarily refer to the body of the person murdered, to
the firearms·in the crime of homicide with the use of unlicensed
fire arms, to the ransom money in the crime of kidnapping for
ransom, o-r in the present case - to the seized contraband
cigarettes. (Rieta vs. People, G.R. No. 147817, 12 August 2004,
436 SCRA 273)
PENALTIES IN GENERAL
Retroactive effect of penal laws.
Although the special aggravating circumstance of the use ofa
weapon'and the aggravating circumstance of dwelling we.,:e
proven, these aggravating circumstances cannot be considered in
fixing the penalty because they were not alleged in the information
as man dated by Rule 110, Sections 8 and 9 of the Revised Rules of
Criminal Procedure. Although the crimes charged were committed
before the effectivity of the said rule, nevertheless, the same should
be applied retroactively being favorable to the appellant. (People vs.
Evina, G.R.)Jos. 124830-31, 27 June 2003, 405 SCRA 152)
It can be gleaned from the Information in this case that re
spondent Pacificador allegedly committed the crime charged "on or
about and during the period from December 6, 1975 to January 6,
1976." Section 11 of R.A. No. 3019, as amended by B.P. Blg. 195,
provides that the offenses committed under the said statute shall
prescribe in fifteen (15) years. It appears however, that prior to the
amendment of Section 11 of RA. No. 3019 by B.P. Blg. 195 which
was approved on March 16, 1982, the prescriptive period for of
fenses punishable under the said statute was only ten (10) years.
The longer prescriptive period of fifteen ( 15) years. as provided in
Section 11 of R.A. No. 3019 as amended by B.P. Blg. 195, does not
apply in this case for the reason that the amendment, not being
favorable to the accused (herein private respondent), cannot be given
retroactive effect. Hence, the crime prescribed on January 6, 1986
or ten (10) years from January 6, 1976. (People us. Pacificador, G.R.
No. 139405, 13 March 200 I. 354 SC&\ 810)
THE REVISED PENAL CODE 89
Pard?n './ the offended party; affidavit of desistance, not a
ground
for d1sm1ssal of a criminal action. . · ,,-._ . ,,
A criminal offense is an outrage to the sovereign' State and to
he State belongs the power to prosecute and punish crihies. B
itself, n affida'?t of desistance is not a ground for·the·dismissal fr
an action, one it hasbeen instituted in court. A private complain ant
loses the nght or absolute privilege to decide whether the rape
charg shoul proceed, because the case was already filed and must
therefore contmue to be heard by the trial court. (People vs' Di·· ;
G.R. No. 168168, 14 September 2005, 469 SCRA 647) ' maano,
,. :
Li'ie imprisonment vs. reclusion perpetua• ., · ' ·.,. . ':'
The penalty of life· imprisonment is not the sa ias reclusion
perpet a. T ey a; di tinc.t in nature, in duration and in accessory penal!
1es. First, l fe 1mpnsonment" is imposed for serious offenses
penalized by pec1al laws, while reclusion perpet,µJ is prescribed
under t e R:8Vlsed Penal Code. Second, "life imprisonment does not
carry with t any cce o penalty. Reclusion perpetua has acces
sory pena!t1es. Third, hfe imprisonment" does not appear ,to have
ny ?efimte extent or duration, while reclusion perpetua entails
1mpnsonm t for at least thirty (30) years after which the convict
becon:es eligible for pardon, although the maximum period thereof
shall m no case exceed forty (40) yea1·s. (People vs Latupan GR
Nos. 112453-56, 28 June 2001, 360 SCRA 60). · ' · ·
Reclus!on perpetua, being an Indivisible penalty,· should. be m
posed in its e lre , without a fixed period for Its duration,
regard· less of any mitigating or aggravating circumstance
that may have attended the commission of the crime. ·'•'.'
'
. In the sc les of penalties under the Revised Penal Code, reclu-
swn perp'.tua 1s the penalty immediately higher than reclusion tem
poral which a: a duration cf twelve years and one day to twenty
years. The. m1 1mum range of reclusion perpetua should then, by
necessary 1mphcation, start at 20 years and 1 day while the maxi-
1:1-um thereunder could be co-extensive with the rest of the natural
hfe.oft?e offender. Article 70, however, provides that
the·maximum penod :n regard to the service of sentence shall not
exceed 40 years e lusion perp tua remains to be an indivisible
penalty.and, whe it 1s t e prescnbed penalty, should be imposed in
its entirety, i.e., reclusion papetua sans a fixed period for its
duration, regardless of
90 UPDATES IN CRI IINAL LAW
any mitigating or aggravating circumstance that n18.Y have atten ed
the commission of the crime. In prescribing the penalty of
reclusion perpetua, its duration in years, in fine, used not be
specified. (Peaple vs. Zacarias, G.R. No. 138990, 30 January 2002,
375 SCRA 278) Since reclusion perpetua is an indivisible penalty, it
has no mini mum, medium or maximum periods. It fr, imposed in
its entirety regardless of any mitigating or aggravatlng
circumstances that may have attended the commission of the
crime. (Art. 63, Revised Penal Code) Reclusion perpetua is
imprisonment for life but the person sentenced to suffer it shall be
pardoned after undergoing the pen alty for thirty (30) years, unless
by reason of his conduct or some other serious cause, he shall be
considered by the Chief Executive as unworthy of pardon (Art. 27.
Revised Penal Code). (People vs. Ramirez, G.R. No. 788261, 17
April 200.1, 356 SClU S95)
Under Article 335 of the Revised Penal Code, as amended by
Republic Act 7659, the prescribed penalty for simple rape is reclu
sion perpetua. However, the trial court sentenced the appellant to
thirty years of reclusion perpetua. The penalty imposHd by the trial
court is void. Although under Article 27 of the RHviPcd Penal Code
as amended by Republic 765 ). reclusion perpetua has a range of
twenty years and one day to forty years, by nature, the penalty
remains a single and indivisible penalty. It cannot be divided into
periods or equal portions. If the law prescribes reclusion perpetua as
a single and indivisible penalty for a felony, the trial court is man
dated to impose said penalty, absent any privileged mitigating cir
cumstances conformably with Article 63 of the Revised Penal Code.
The trial court is not authorized to vary the penalty provided for by
law either in the character or the extent of punishment inflicted.
There was no need for the trial court to specify the duration of
thirty years of reclusion perpetua whenever it is imposed as a pen
alty in any proper case. The Court is not impervious to Article 70 of
the Revised Penal Code which pertinently provides that, in applying
the so-called "three-fold rule," i.e., that "(w)hen the culprit has to
serve two or more penalties, ... the maximum duration of the
convict's sentence shall not be more than three-fold the length of
time corresponding to the most severe of the penalties imposed upon
him" - "the duration of perpetual penalties (penal perpetua) shall
be computed at thirty years." The imputation of a thirty-year dura
tion to: reclusion perpetua in Article 70 is, as .this Court recently
held, "only to serve as the basis for determining the convict's. eligi
bility for pardon or for the application of the three-fold rule m the
THE REVISED PENAL CODE 91
service of multiple penalties. (People vs. Novio, G.R. No. 139332,
20 June 2003, 401 SCRA 462) . ,i, ,
Since appellant was convicted of the complex crime
or'parricide "1ith unintentional abortion, the penalty to be imposed
on him.should be that for the graver offense which is parricide.
This is in' accor dance with the mandate of Article 48 of the
Revised Penal Code, which states:"When a single act constitutes
two or more grave or less grave felonies, ,x x x, the penalty for
the.most serious crime shall be imposed, xxx." ·
The law on parricide, as amended by R.A. No. 7659, is punish..
able with reclusion perpetua to death. In all cases in which the law
prescribe£ a penalty consisting of two indivisible penalties, the court
is mandated to impose ,me or the other, depending on the presence
or the abi::encc of mitigating and aggravating circumstances. The
rules with respect to the application of a penalty consisting of two
indivisible penalties are prescribed by Article 63 of the Revised Pe
nal Code, the pertinent portion of which is quoted as follows: ·
"In all cases in which the law prescribes a penalty
composed of two indivisible penalties, the following rules
shall be observed in the application thereof:
XXX XXX XXX
"2. · When there are neither mitigating nor aggra·
vating circumstances in the commission of the deed, the
lesser penalty shall. be applied." (Italics supplied)
Hence, when the penalty provided by law is either of two
indi visible penalties and there are neither mitigating nor
aggravating circumstances, the lower penalty shall be imposed.
Considering that neither aggravating nor mitigating circumstances
were established in this case, the imposable penalty should only be
reclusion perpetua. (People us. Robinos, G.R. No. 138453, 29 May
2002, 382 SCRA 751)
The trial court igr.ored the above-cited provision and
sentenced the appellant to suffer "reclusion perpetua to death"
despite the presence of the generic mitigating circumstance of
voluntary sur render. Even if the appellant is not entitled to any
mitigating cir cumstance, :he correct penalty should only be
reclusion perpetua, absent any generic aggravating circumstance
attendant to the crime. Trial judg!::s must bear in mind that, as
important as the duty to determine the guilt or innocence of the
accused, is the duty to im pose the correct penalty on the accused
especially in those cases
92 UPDATES IN CRIMINAL LAW
where the imposable penalty is reclusion perpetua, or life
imprison ment, or the death penalty. Penalties of imprisonment
involve the liberty of the accused. For the trial court to deprive the
accused of his liberty without legal basis is a travesty. (People us.
Tuvera, G.R. No. 149811, 08 June 2004, 431 SCRA 303)
Automatic review of death penalty cases by the Court of Appeals.
Up until now, the Supreme Court has assumed the direct ap
pellate review over all criminal cases in which the penalty imposed
is death, reclusion perpetua or life imprisonment (or le wer but in
volving offenses committed on the same occasion or arising out of
the same occWTence that gave rise to the more seriot..s offense for
which the penalty of death, reclusion perpetua, or life imprisonment
is imposed). xxx.
It must be stressed, however, that the constitutional provision
is not predusive in character, and it docs not necessarily prevent
the Court, in the exercise of its rule-making power, from adding an
intermediate appeal or review in favor of the accused.
In passing, during the deliberations among the members of
the Court, there has been a marked absence of unanimity on the
crucial point of guilt or innocence of herein ai:ipellant. Some are
convinced that the evidence would appear to be sufficient to
convict; some would accept the recommendation of acquittal from
the Solicitor General on the ground of inadequate proof of guilt
beyond reason able doubt. Indeed, the occasion best demonstrates
the typical di lemma, i.e., the determination and appreciation of
primarily factual matters, which the Supreme Court has had to face
with in auto matic review cases; yet, it is the Court of Appeals that
has aptly been given the direct mandate to review factual issues.
While the Fundamental Law requires a mandatory review
by the Supreme Court of cases where the penalty imposed is
reclusion perpetua, life imprisonment, or death, nowhere,
however, has it pro scribed an intermediate review. If only to
ensure utmost circum spection before the penalty of death,
reclusion perpetua or life im prisonment is imposed, the Court now
deems it wise and compelling to provide in these cases a review by
the Court of Appeals before the case is elevated to the Supreme
Court. Where life and liberty are at stake, all possible avenues to
determine his guilt or innocence must be accorded an accused, and no
care in the evaluation of the facts can ever be overdone.A prior
determination by the Court of Appeals
THE REVISED PENAL CODE 93
on, particularly, the factual issues, would minimize the possibility of
an error of judgment. If the Court of Appeals should affirm the
penalty of death, reclusion perpetua or life imprisonment, it could t?
en render judgment imposing the corresponding penalty as the
circumstance so warrant, refrain from entering judgment and el·
evate the entire records of the case to the Supreme.Court for its
final disposition. (People vs. Mateo, G.R. Nos. 147678-87, 07 July
2004, 433 SCRA 640) .
Implication of the abolition of the death penalty.
With the pro ibition of the imposition of the de th enalty
pursuant to Republic Act No. 9346 which was signed into law on
24 June 20 6, the following provisions of the Revised Penal Code
h ve
; essanly be(;n repealed, to v:rit: Articles 40, 47, 81, 82, 83; 84 and
,j '(I f
Complex Crime.
Under Article 48 of the Revised Penal Code, a complex crime
refer to: (1) the commission of at least two grave or Jess grave
felonies that must both (or all) be the result of a single act, or (2) one
oITense m st be a necessary means for committing the other (or
others)..Negatively put, there is no complex crime when: (1) two or
more cnmes are committed, but not by a single act; O!" (2) commit ting
one crime is not a necessary means for committing the other (or
others). (Afonteuerde vs. People, G.R. No. 139610 12 August 2002
387 SCR/, 196) ' '
Art. 48 ap lies if a single act constitutes two or more grave and
lc s !P'ave folomes or when an offense is a necessary means of com
m1ttmg another; in such a case, the penalty for the most serious
offense shall be imposed in its maximum period.' Art. 9 of the Re
vised Penal Code in relation to Art. 25 defines grave felonies as
those to which the law attaches the capital punishment or afflictive
penalties from reclusion perpetua to prision mayor; less grave felo
nies .are tho e _to which the law attaches a penalty which in its
maxi.mum penod fal.ls under correctional penalties; and light
felomes are those purushable by arresto menor or fine not exceeding
two hundred pesos. Con<iidering that the offenses committed by the
act of the appeUant of firing a single shot are one count of homicide,
n grave felony, and two counts of slight physical injuries, a light
felony, the rules on the imposition of penalties for complex crimes,
94 UPDATES IN CRIMINAL LAW
which requires two or more grave and/or less grave felonies, will
not apply. (People us. Gonzalez, G.R. No. 139542, 21 June 2001, 359
SCRA
362)
Essence of complex crime.
The underlying philosophy of complex crimes in the Revised
Penal Code, which follows the pro reo principle, is intended to
favor the accused by imposing a single penalty irrespective of the
crimes committed. The rationale being, that the accused who
commits two crimes with single criminal impulse demonstrates
lesser perversity than when the crimes are committed by different
acts and several
criminal resolutions.
The single act by appellant of detonating a hand grenade may
quantitatively constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses should be consid
ered only as a single crime ·in law on which a single penalty is
imposed because the offender was impelled by a "single criminal
impulse" which shows his lesser degree of perversity.
Under the aforecited article, when a single act constitutes two
or more grave or less grave felonies the penalty for the most
serious crime shall be imposed, the same to be applied in its
maximum period irrespective of the presence of modifying
circumstances, in cluding the generic aggravating circumstance of
treachery in this case. Applying the aforesaid provision of law, the
maximum penalty for the most serious crime (murder) is death.
The trial court, there fore, correctly imposed the death penalty.
(People us. Comadre, G.R.
No. 153559, 08 June 2004, 431 SCRA 366)
No single act In the following cases:
1. The killing of Lilia Asuncion and Jose Asuncion and the
wounding of Jaime and Leo Asuncion resulted not from a single
act but from several and distinct acts of stabbing. "Where the
death of two persons does not result from a single act but from
two different shots, two separate murders, and not a complex
crime, are commit ted." (People us. Latupan, G.R. Nos. 112453-56,
28 June 2001, 360
SCRA60)
'< I" ti
2. The instant case does not fall under any ()f the two (2)
mentioned instances wherein a complex crime is committed. The
THE REVISED PENAL CODE 96
evidence on record shows that the killing of Julius Golocan and
the wounding of his wife Flordeliza and their children John Paul
and Noemi resulted not from a single act but from several and
distinct acts of shooting. For one thing, the evidence indicates that
not only one gunman was involved, and the act of each gunman
was distinct from that of the others. Moreover, there were two (2)
empty shells recovered at the crime scene which confirms the fact
that several shots were fired. Furthermore, considering the relative
positions of the gunmen who surrounded the victims, it was
absolutely,impos sible for the four (4) victims to have been hit by a
single bullet. Each ct of ?ulling the trigger of his firearm by each
gunman and'aiming 1t at different persons constitute distinct and
individual acts which cannot give rise to the complex crime of
murder with multiple frus trated murder. (People us. Abubu, G.R.
No. 129072, 19 January 2000, 322 SCRA 407)
Where a conspiracy animates several persons with a single
pur pose, their individual acts done in pursuance of
thatpurpose are looked upon as a single act, the act of
execution, giving rise to a single complex offense.
We fully agree with the lower court that the instant case
comes within the purview of Art. 48 of The Revised Penal Code
which speaking of complex crimes, provides that when "a single
act consti: tutes two or more grave or less grave felonies or when
an offense is a necessary means for committing the othe , the pe
alty for. the most serious .crime shall be imposed in its maximum
period." In a complex crime, although two or more crimes are
actually commit ted, they constitute only one crime in the eyes of
the law as ell as in the conscience of the offender.
Although several independent acts were perf ed yb \ b e1
ac cused in firing separate shots from their individual firearms, it was
not possible to determine who among them actually killed victim
Rolan.do 'rugadi. Moreover, there is no evidence that accused-appel
lants nt.f'nded to fire at each and every one of the victims separately
and d1stmctly from each other. On the contrary, the evidence clearly
shows a single criminal impulse to kill Marlon Tugadi's group as a
whole. Thus, one of accused-appellants exclaimed in frustration af
ter the ambush: "My gosh, we were not able to kill all of them."
Where a C'.Onspiracy animates several persons with a single purpose
their individual acts done in pursuance of that purpose are looked
 UPDATES IN CRIMINAL LAW
96
upon as a single act, the act of execution, giving rise to a. single complex
offense. (People us. Sanidad, G.R. No. 146099, 30 April 2003,
402 SCRA 381)
Art. 48 is applicable to crimes through negligence.
Since Article 48 speaks of felonies, it iii applicable to crimes
through negligence in view of the definition of felonies in Article 3
as "acts or omissions punishable by law" committed either by means
of deceit (dolo) or fault (culpa). In Reodica vs. Court of Appeals, we
ruled that if a reckless, imprudent, or negligent act results in two or
more grave or less grave felonies, a complex crime is co mitte .
Thus, in Lapuz us. Court of Appeals, the accused was ::onvicted,m
conformity with Article 48 of the Revised Penal Code, of the
complex crime of "homicide with serious physical injuries and
damage to property through reckless imprudence," and was sente
1ctc? to a single penalty of imprisonment, instead of the two
penalties imposed by the trial court. Also, in Soriao us. Court of
Appeals, the accused was convicled of the complex crime of
"multiple homicide with damage to property through reckless
imprude ce" for cau ing a motor boat to capsize, thereby drowning
to death its twenty-eight passengers.
The slight physical injuries caused by GLENN to foe ten.other
victims through reckless imprudence, would, h d they b en mt n
tional have constituted light felonies. Being hght felc,mes, which
are n t covered by Article 48, they should be treated and punished
as separate offenses. Separate informations should have, therefore,
been filed. (People vs. delos Santos, G.R. No. 181588, 27 March 2001,
355 SCRA 415)
Subsequent acts of sexual intercourse, after forcible abduction
with rape, are separate acts of rape.
There can only be one complex crime of forcible abduction
with rape. The crime of forcible abduction was only necessary for t
e first rape. Thus, the subsequent acts of rape can no longer be
considered as separate complex crimes of forcible abduction with
rape. They should be detached from and considered independently
of the forc ible abduction. Therefore, accused-appellant should be
convicted of
one complex crime of forcible abduction with rape and three sepa rate
acts of rape. (People vs. Garcia, G.R. No. 141125, 28 February
2002, 378 SCRA 266)
98 UPDATES IN CRIMINAL LAW
THE REVISED PENAL CODE 97
Penalty in complex crimes.
Considering that the prosecution was able to prove beyond
reasonaLle doubt that VELASQUEZ forcibly abducted KAREN and
then raped her twice, he should be convicted of the complex crime of
forcible abduction with rape and simple rape. The penalty for com plex
crimes is the penalty for the most serious crime which shall be
imposed in its maximum period. Rape is the more serious oftlie two
crimes and is punishable with reclusion perpetua under Article 335 of
the Revised Penal Code and since reclusion perpetu.a is a single
indivisible penalty, it shall be imposed as it is. The subsequent rape
committed by VELASQUEZ can no longer be considered as a sepa
rate complex crime of forcible abduction with rape but only as a
separate act of rape punishable by reclusion perpetua. (People us.
Velasquez, G.R. Nos. 137383-84, 23 November 2000,,345 SCRA 728)
EXTINCTION OF CRIMINAL LIABILITY
·'
Implications of convlct's death with regard to his crlml al and civil
liabilities.
Applying this provision, the Court in People us. Bayotas made
the following pronouncements:
"1. Death of the accused pending appeal of his con
victior, extinguishes his criminal liability as well as the
civil liability based solely thereon. As opined by Justice
Regalado, in this regard, 'the death of the accused prior to
final judgment terminates his criminal liability and only 1,
the civil liability directly arising from and based solely on
the offense commi ted, i.e., civil liability ex delicto in senso
strictiore ."'
"2. Corollarily, the claim for civil liability survives
notwithstanding the death of (the) accused, if the same
may also be predicated on a source of obligation other than
delict. Article 1157 of the Civil Code enumerates these
other sources of obligation from which the civil li ability
may arise as a result of the same act or omiss+on: '.
a) Law
b) Contracts
lf i '
c) Quasi-contracts : ? ,·,
 d) XXX XXX XXX
e) Quasi-delicts
"3. \\.'here the civil liability survives, as explained
in Number 2 above, an action for recovery therefor may
be pursued but only by way of filing a separate civil ac tion
and subject to Section 1, Rule 111 of the 1985 Ru_le_s on
Criminal Procedure as amended. 'l'his separate civil action
may be enforced either against the executor/ad ministrator
or the estate of the accused, dependir,g on the source of
obligation upon which the same is based as ex
plained above.
"4. Finally, the private offended party nee(! not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during t e p osecution f the
criminal action and prior to its extmct10n, the private
offended party instituted together therewith the civil a tion.
In such case, the statute of limitations on the ciV11 liability
is deemed interrupted during the pendency of the
criminal case, conformably with the provisions .of Ar ticle
1155 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescrip
tion." (People vs. Abungan, G.R. No. 136843, 28 Septem
ber 2000, 341 SCRA 258)
The issue as to whether rm action on the civil liability can
survive and proceed against the estate of the dece.1sed has been
settled in the case of People vs. Bayotas where it was held that:
"Upon death of the accused pending appeal of his
conviction, the criminal action is extinguished .nasmuch
as there is no longer a defendant to stand as the accused;
the civil action instituted therein for recovery of civil li
ability ex delicto is ipso facto extinguished, grounded as
it
is on the criminal."
The pecuniary liabilities adjudged against the petitioner are
undeniably ex delicto. The petitioner was ordered to payactual dam
ages, which is the value of the pieces of jewelry allegedly taken rom
the private complainant in the amount of Pl,500,000, as modified
by the Court of Appeals; and moral damages of Pl00,000 for e fear
and trauma caused to the complainant because of the petitioner's
100 UPDATES IN CRIMINAL LAW
xx x." In People us. Reyes, this Court has declared that registration
THE REVISED PENAL CODE 99
intrusion into her bedroom. These civil liabilities arose from the
crime of Theft and are based solely on ,mid delict.
Although both the trial and the appellate courts found peti tioner
guilty beyond reasonable doubt, she had the right to appeal her case
to this Court of last resort and challenge_ the findinof the two courts
below. The judgment of conviction was pending review until her
untimely demise. It has, therefore, not yet attained final ity. Thus,
pursuant to Article 89 of the Revised Penal· Code, it is incumbent
upon the Court to dismiss the instant petition for·review. The Court is
dismissing the case because there is no longer a,need to continue wi,;h
the review of the appeal. The lower court's .decision has thus become
ineffectual. ,
Needless to state, the civil liability attendant to the crime which
includeR the rest.itut:on of personal or real property is also extin
guished. A substitution of heirs in petitioner's stead is no longer
necessary. (De Guzman vs. People, G.R. No. 154579, 08 October
2003, 413 SCRA 215)
T e death of an accused extinguishes his criminal liability even if
his death should occur during the pendency of his appeal. Ac.. cused-
appellant Bernardo's death not only extinguished his crimi nal
liability concerning the personal penalties but also whatever pecuniary
penalties have been imposed on him, considering that he died before
final judrment, as provided in Article 89(1) of the Re vised Penal
Code: xxx.
Both Bernardo's civil and criminal liability were extinguished
by his death.
Where a person is charged with homicide, for instance, the
civil liability for indemnity is based sol ly on the finding of guilt. If he
is acquitted because of self-defense, the heirs of the deceased have
no right to indemnity. Should the offender die before final judg ment,
their right to indemnity is likewise extinguished as there is no basis
for the civil liability. Civil liability exists only when the accused is
convicted by final judgment. (People us. Pacana, G.R. Nos.
97472·73, 20 November 2000, 345 SCRA 72)
Prescription of offenses.
Under Article 91 of the Revised Penal Code, the period of pre
scription shall "commcn:::e to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents,
in public registry is a notice to the whole world. The record is con
structive notice of its contents as well as all interests, legal and
equitable, included therein. All persons are charged with
knowledge of what it contains. (Recebido us. People, G.R. No.
141981, 04 De-
cember 2000, 346 SCRA 881)
Filing of complaint with prosecutor's office or MTC for purposes of
preliminary investigation interrupts the running of period of
prescription of offense charged.
With respect to the issue of prescription, the fourth paragraph of
Article 90 of the Revised Penal Code provides that the "crime of libel
or other similar offenses shall prescribe in one year." In deter mining
when the one-year prescriptive period should be reckoned, reference
must be made to Article 91 of the same code which sets forth the rule
on the computation of prescriptive periods of offenses:
"Computation of prescription of offenses. - The pe riod
of prescription shall commence to run from the day on
which the crime is discovered by the offended party, the
authorities, or their agents, and shall be interrupted by the
filing of the complaint or information, and shall
commence to run again when such proceedings terminate
without the accused being convicted or acquitted, or are
unjustifiably stopped for any reason not imputable to
him."
The aforequoted provision expressly states that prescriptive
period shall be interrupted by the filing of the complaint or
informa tion. The meaning of the phrase "shall be interrupted ty the
filing of the complaint or information" in Article 91 has been
settled in the landmark case of People vs. Olarte, where the Court
settled diver gent views as to the effect of filing a complaint with
the Municipal Trial Court for purposes of preliminary investigation
on the pre scriptive period of the offense. The Court therein held
that thefiling of the complaint for purposes of preliminary
investigation inter rupts the period of prescription of criminal
respo11&ibility. It explained
thus:
"... the filing of the complaint with the Municipal
Court, even if it be merely for purposes of preliminary
examination or investigatio::i, should, and does, interrupt
the period of prescription of the criminal responsibility,
102
UPDATES IN CRIMINAL LAW
offended party with the City Fiscal's Office which i_s
THE REVISED PENAL CODE 101
even if the court where the complaint or information is
filed can not try the case on its merits. Several reasons
buttress this conclusion: first, the t xt of Article 91 of the
Revised Penal Code, ia declaring that the period of pre
scription "shall be interrupted by the filing of the com
plaint or information" without distinguishing whether the
complaint is filed in the court for preliminary examina tion
or investigation merely, or for action on the merits. Second,
even if the court where the complaint or infonna tion is
filed may only proceed to investigate the case its actu tions
al:ea<ly represent the initial step of the ro ceedmgs agamst
the offender. Third, it is unjust to de prive the injured party
the right to obtain vindication account of delays that are noton
under his control. All that the victim of the offense may do
on his part to initiate the · ·
1
prosecution is to file the requisite complaint. · · ,w · ·1· •·
"And it is no argument that Article 91 also expre;s ,'.', 1
run
:
that the interrupted prescription 'shall commence to again
when such proceedings terminate without th ac cused
being convicted or acquitted,' thereby indicating that the
court in which the complaint or information is filed must
have the power to convict or acquit the accused.
Precisely, the trial on the merits usually terminates in
convicti')n or acquittal, not othenvise. But it is in the
court conducting a preliminary investigation where the
proc:edings may temiinate without conviction or acquit
tal, 1f the court should discharge the accused because no
prima facie case had been shown.''
Thereafter, the Court. in Francisco vs. Court of Appeals clari
fied that the filing of the complaint ,'.'ith the fiscal's office also sus
pends the running of the prescriptive period of a crime:
"As is a well-known fact, like the proceedings in the
oui: conducting a preliminary investigation, a proceed mg
m the Fiscal's Office may terminate without convic- tion or
acqdttal. .
"As Justice Claudio Teehankee has observed:
'To the wtiter's mind, these reasons logically
call with equal force, for the express overruling also 1
of the doctrine in People vs.Thyco, 73 Phil. 509,(1941)
that the filing of a complaint or denuncia by the
required by law to conduct the p:·eliminary i
ve_sti gation does not interrupt the penod f p
escnpt10n. In chartered cities, criminal prosecution
1s generally initiated by the filing of the
 complaint or denuncia
·with the city fiscal for preliminary investigation. In
· the case of provincial fiscals, besides being
e;mpow 'ered like municipal judges to conduct
preliminary investigations, they may even reverse
actio s of mu nicipal judges with respect to
charges triable by
Courts of First Instance, . ."'
There is no conflict in the pronouncements of the_ Court in
Olarte and Francisco as Brillante erroneously suggcJsLs. Ol rt laid
down the doctrine that a complaint filed for purposes ofprehmmary
investigation tolls the running of the pre cri tive period ofa crimi nal
offense. The criminal complaint for hbel m that case as filed, for
the purpose of preliminary investigation, with the J st1ce of the
Peace Court in Pozorrubio, Pangasinan. Hence, rn settmg the doc
trine, the Court referred to the "filing of the comp_laint in the Tvlu
nicipal Court." The question of whether the do tnne laid down 1;1
Olarte also applies to criminal complaints filed v.rith the
_prosecutors office was settled in Francisco. Specifically, the Court
rn Franczsco amplified the Olarte doctrine when it categorically
ruled th t the filing ofa complaint with the fiscal's office suspends
the runmng of the prescriptive period of a criminal offense.
rBrillante vs. Court of Appeals, G.R. Nos. 118757 and 121571, 19
Ortober 2004, ,/40 SCRA
541)
Prescription of penalties.
Article 93 of the Revised Penal Code provides w en th re·
scription of penalties shall commence to run. Under said provis1 n,
it wall commence to run from the date file felon evades the s rv1ce
of his sentence. Pursuant to Article 157 of the same Code, evasion of
service of sentence can be committed only b! those who hav
been convicted by final judgment by escaping dunng the term of
his sen-
tence.
As correctly pointed out by the Solicitor General, "escape" in
legal parlance and for purposes of Articles 93 nd. 157 o'. the RPC
means unlawful departure of prisoner from the ltm1 \.'l of Im, cus dy.
Clearly, one who has not been committed to prison cannot be
said to
UPDATES IN CRIMINAL LAW
104
THE REVISED PENAL CODE 103
have escaped therefrom. (Del Castillo us. Torrecampo and People
G.R. No. 139038, 18 December 2002, 394 SCRA 221) . '
The ;_:,rescription of penalties found in Article 93 of the
Revised Penal Code, appli s only to those who are convicted by final
judg ment and are servmg sentence which consists in deprivation of
lib erty. The period for prescription of penalties begins only when the
convict evl:':des servire of sentence by escaping during the term of his
sente ce. Since petitioner never suffered deprivation of liberty be fore
his arrest on January 20, 2000 and as a consequence never evaded
sentence by escaping during the term of his service the period for
G.R
prei,cription never began. (Pangan us. Gatbalite, No. 141718, 21
Jr,.n.uary 2005, 449 SCRA 144)
Pardon vs. Amnesty.
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person 'par
doned, because the courts take no notice thereof; while amnesty by
Proclamation of the Chief Executive Vvith the concurrence 'of Con
gress, is a public act of which the courts should take judicial notice.
Pardon is granted to one after conviction; while amnesty is granted
to .classes of persons or communities who may be guilty of political
offenses, generally before or after the institution of the criminal pros·
ecutwn and sometimes after conviction. Pardon looks forward and
relieves the offender from the consequences of an offense of which he
has been convicted, that is, it abolishes or forgives the punishment,
and for t at reason it doe 'not work the restoration of the rights to
hold public office, or the nght of suffrage, unless such rights be ex
pressly restored by the terms of the pardon,' and it 'in no case ex
empts he culprit from the payment of the civil indemnity imposed
upon h1m hy the sentence' (Article 36, Revised Penal Code). While
amnesty l0oks backward and abolishes and puts into oblivion the
offense itself, it so overlooks and obliterates lhe offense with which
he is charged that the person released by amnesty stands before the
law precisely as though he had committed no offense. (People us.
Patriarca, G.R. No. 135457, 29 September 2000, 341 SCRA 464)
CIVIL LIABILITY
Civil liability arising from crimes.
:er!P? son criminally liable for a felony is also civilly liable.
The c1V1l hab1hty of such person established in Articles 100, 102
and
103 of the Revised Penal Code includes restitution, repat ation of the
 THE REVISED PENAL CODE 1015 tution, reparation of the dam d . .
o n sequential d1:1.mage s (Rend ' d r
1 5 0 · · on ,us. ou rt o f Appe ls GR
damage caused, and indemnification for consequential damages. 11.r
793, 19 November 2004, 443 SCRA 142 a '. . '' · ' J..Y·.
Whena criminal action is instituted, the civil action for the recovery c age causce an mdem utica.tion forO.
of civil liability arising from the offense charged shall be deemed
instituted. with the criminal action unless the offended party waives Subsidiary civil liability of employers. .
the civil action, reserves the right to institute it separately or insti The statutory basis for I · · ·· ···
.·
tutes the civil action prior to the criminal action. With the implied found in Article 103 of the :en .err:{
:yer'f subsidiary)iability, is
institution of the civil action in the criminal action, the · wo actions are enforceable in the same ,.; . Vllse ena. Code. This liability is
c,,mma proceeding wher th d.
merged into one composite proceeding, with the criminal action
predominating the civil. ::::b!: ee"t: ! r :x u!i : : n:t;e:ployeer en:u :.a:he;:
The prime purpose of the criminal action is to punish the of existence of 1 ' or e purpose of: (1) the
1 . an ei_np oyer-employee relationship· (2) that ·the
fender in order to deter him and others from committing the same P oyer is engaged m some kind of ind try· (3) ' em
or similar offense, to isolate him from society, to reform and reha adjudged guilty of the wron5,u u s , th at t he
h 1 act a n d found to h a ted.
employ ee is
·
bilitate him or, in general, to maintain social order. The sole purpose t e offense in the discharge of his du. . ve mm1t
of the civil action is the restitution, reparation or indemnification of fense he commits "while" in th d. h ties (not necessa;1Iy any of-
the private offended party for the damage or injury he sustained by that said employee is insolvent \ 8 : \ rge such duties; and (4)
reason of the delictual or felonious act of the accused. While the No. 113433, 17 March 2000, 328 SC 4u ourt of Apfeals; G. .
prosecution must prove the guilt of the accused beyond reasonable
doubt for the crime charged, it is required to prove the cause of
action of the private complainant against the accused for damages Employer, not a party to criminal case flied against its employees.
and/or restitution. (Quinto us. Andres, G.R. No. 155791, 16 March The cases dealing with th b .d. . · ....
uniformly declar that, strictly s;e:i: i: hability of e ployers
2005, 453 SCRA 511) criminal cases instituted against th . ' l y are not parties to the
stance and in e1lect th h . eir emp oyees. Although in sub-
Basis.
Generally, the basis of civil liability arising from crime is the
be ewed. in'the li ht ; th: ;::b :r ;;\ :fir!;.· ia should

: tia
i ;:rir;:t
fundamental postulate that every man criminally liable is also civ illy ; : : :ta ! 1 :he : ; o ;::e ; c ;ht extent of supplying the latte;.!=
liable. Whena person commits a crime he offends two entities namely: : ow;. behalf}ut can o l; ! :: =: !::
(1) the society in which he lives in or the political entity called the State 526) us mes vs. eople, G.R. No. 147703, 14 Aprii 2004, 427 SCRA.
whose law he has violated; and (2) the individual member of the society
whose person, right, honor, chastitj or prop erty has been actually or
directly injured or damaged by the same punishable act or omission.
A11 act or omission is felonious because it is punishable by law, it Dluo e diligence. of employer in the selection and supervision of em
P yees, not a defense. •
gives rise to civil liability not so much
because it isa crime but because it caused damage to another. Addi· noat Due dilirence in the selection and ·· of employees is
tionally, what gives rise to the civil liability is really the obligation defens<1 on the part of tho em .;;uperv1s10n ree the latter
fromsubsidiarv liabilivt for th pl y i nd _may no
and the moral duty of everyone to repair or mak(, whol(, the damage nal action.
caused to another by reason of his own act or omission, whether . . ... e emp oyees civil liability in a crimi-
done intentionally or negligently. The indemnity whicha person is ity The provisions of the Revhed p . 1 C d . . liabil-
sentenced to pay forms an integral part of the penalty imposed by de n a o e ontt subsidiary
Article s 102· and 103. ·1re
. . e e me d
law for the commission of the crime. The civil action involves the
sments in cases to which they are"applicable T ·t1hntod he j g-

civil liability arising from the offense charged which includes resti· . , e1·nn e 1spos1t1ve
106 UPDATES!N CRIMINAL LAW

portion of its decision, the trial court need not expressly

pronounce the subsidiary liability of the employer. (Pangonorom
and MMTC vs. People, G.R, No. 143380, 11 April 2005, 455 SCRA , t;L i ; '. ! , ·:

211) ·.,·,·if, .,r, • , ,;!

BOOKTWO· ·: .' : l. lf! ;: ,, !

The subsidiary liability of the employer arises only after the

judg ment convicting the employee In the criminal action has
SPECIFIC
attained finality and upon proof of the latter's insolvency. CRIMES
.; -.· :.: , 1 t ri 1! {.

The subsidiary liability of the employer arises only after con

viction of the employee in the criminal action. In the present case, CRIMES AGAINST THE FUNDAMENTAL LAW·:,, :•ii
there exists an employer-employee relationship between petition·
ers,the MMTC is engaged in the transportationindustry, and OF THE STATE · · ·· "•' ,; 1,, ,,,,,r
Olimpio has been adjudged guilty of a wrongful act and found to Arbitrary detention.
have com· mitted the offense in the discharge of his duties.
However, there is no proof here of Olimpio's insolvency. The
judgment of conviction against Olimpia has not attained finality.
· Arbitra betention is ommitted by any pub c offi ; ; 1 :
pflotyhee "".ho, without legal grounds; detains a person. ·The element
This being so, no writ of
execution can issne against him to satisfy his civil liability. Only o ecnme are: ,d,;-.l j·q fi :rn:h
after proof of the accused-employee's insolvency may the subsidiary
liability of his employer be enforced. 1. That the offender is a public officer or e;pl01ee: , '.'":!.,;
In short, there is as yet no occasion to speak of enforcing the 2. Thathedetainsaperson. · ,,.; ·,.,·,;.,.,u.i
employer's subsidiary civil liability unless it appears that the ac 3. That the detention is without legal grounds.'
cused-employee's primary liability cannot in the first instance be

satisfied because of insolvency. This fact cannot be kuown until some
time after the verdict of conviction shall have become final. And
even if it appears prima facie that execution against the empluyee
cannot be satisfied, execution against the employer will not issue as
a matter of course. The procedure for the enforcement of a judgment
will. have to be followed. Once the judgment of conviction against
Olimpio becomes final and executory, and after the writ of execution
issued against him is returned unsatisfied because of his insolvency,
only then can a subsidiary writ of execution be issued against the
MMTC after a hearing set for that precise purpose. It is still t-00
early to hold the MMTC subsidiarily liable with it.s accused-em
ployee considering that there is no proof yet of Olimpio's insolvency,
(Pangonorom and MMTC vs. People, G.R. No. 143380, 11 April 2005,
455 SCRA 211)
Subject to prevailing jurisprudence, the subsidiary liability
may be enforced only upon a motion for subsidiary writ of
execution against Vallacar Transit, Inc. (petitioner's employer!
and upon proof that petitioner is insolvent. (Nueva Espana vs.
People, G.R No. 163351, 21 June 2005, 460 SCRA 547)
p:
h . That retitioner, at the time he committed the ads as ailed
erem, was then Mayor of Daram, Samar is not disputed H, ,
t first element of Arbitrary Detention, that the offender is·a
o cer or employee, is undeniably present. ' . , ...
. _Also, the records are bereft of any allegation on the art of
petitioner that his acts were spurred by some legal purpose n th
contrary, he edmitted that his acts were motivated by his ;. t'
for elf-pre:oerv tion" and the feeling that he was being] ;
:g\i:'ehteh edtenltion was thus without legal grounds, thereby satisfy-
. tr e ement enumerated above.
VY11at remains is the determination of whether or not the te
was actually detained. (Astorga vs. People G.R No 1 54 130 01 m
tober 2003, 412 SCRA 512) ' · · ' c-
When is there a detention?
. In the case of People' vs. Acosta, which involved the illegal de
tent10n ofa child, we found the accused-appellant therein guilty of
107
 UPDATES IN CRIMINAL LAW
108 SPECIFIC CRIMES 109

kidnapping despite the lack of evidence to show that any physical hospitality and entertained the DENR Team in his house (Ast
restraint was employed upon the victim. However, because the vic
tim wasa boy of tender age and he was warned not to leave until his
vs. People, G.R. No. 154130, 20 August 2004, 437 SCRA 152) ,; .
0
f
godmother, the accused-appellant, had returned-, he was practically ·. :·,,
a captive in the sense that he could not leave because of his fear to CRIMES AGAINST PUBLIC ORDER 1'1; ·
violate such instruction.
In the case of People vs. Cortez, we held that, in establishing ommon crimes, without any political motivation are not abio...-d
the intent to deprive the victim of his liberty, it is not necessary that in rebellion. ' '""'
the offended party be kept within an enclosure to resttlct her free
As held in Office of e.Provincial Prosec'utor oi.Zamb... a
dom of locomotion. At the time of her rescue, the offended party in
said case was found outside talking to the owner of the house
Del No,:te vs. CA, the political motivation for the crime
s_hown m order.to justify finding the crime committed tob bel
ni;::'f;'
where she had been taken. She explained that she did not attempt to
leave the premises for fear that the kidnappers would make good
hon. Merely because it is alleged that appellants were m.'
\re · f
0
e Moro Islamic Liberation Front or of the Moro Nation mL _
their threats to kill her should she do so. We ruled therein that her
tion Front does not necessarily mean that the crime of kidn 1 ;a
fear was not baseless as the kidnappers knew where she resided
was committed in furtherance of a rebellion Here the e dppmg
and they had earlier announced that their intention in looking for vidd d · · uffi. . · , · ence
her cousin was to kill him on sight. Thus, we concluded that fear .a ce m is for a finding that
c1ent the crime committed was
has been known to render people immobile and that appeals to the i h.t1 y m tivated. Neither have the appellants sufficiently proven
fears of an individual, such as by threats to kill or similar threats, e1r a egat1on that the present case was filed against·them-.be
are equivalent to the use of actual force or violence. cause they are rebel surrenderees. This court has invariably vi d
the t:ense of fr me-up with disfavor. Like the defense of ali; eit
The prevailing jurisprudence on kidnapping and illegal deten can e3.ust as easily concocted. (People vs. Silongan G.R. No.
tion is that the curtailment of the victim's liberty need not involve 137.182
any physical restraint upon the victim's person. If the; acts and ac 24 April 2093, 401 SCRA 459) ' · ·,· · f •
tuations of the accused can produce such fear in the mind of the
victim sufficient to paralyze the latter, to the extent that the victim b . One ca be oo victed only of rebellion where th urde;s'. b
is compelled to limit his own actions and movements in enes a d kidnappm were committed as a means to or furthe;ance
accordance with the wishes of the accused, then t.he victim is, for of rebelhon. Cor?llan y, offenses which were not committed in
all intents and purposes, detained against his will. (Astorga vs. fur therance of the l·ebelhon, but for personal reasons or other
People, G.R. No. motives a e to be pun shed separately even if committed
154130, 01 October 2003, 412 SCRA 512) si:niultaneousl' with the rebelhous acts. (People vs. Oliva G.R.
No 106826 18 Ji , Y
ary 2001, 341 SCRA 78) · ' ' , , .. !. 1 f!.·
Fear, asa determinative factor in arbitrary detention, in lieu of
actual physical restraint.
Direct assault.
The determinative factor in Arbitrary Detention, in the ab sence
of actual physical restraint, i& fear. After a ca,eful review of the . Direct assault, a crime against public order may be comm1't.ted
evidence on record, we find no proof that petitioner instilled foar in m. t.wo way&·. fiirst' bY any person or persons wh' o, without a public
the minds of the private offended parties. upnsmg, shall employ force or intimidation for the attainment f
:ny oft? purposes enumerated in defining the crimes of rebellioon
Indeed, we fai1 to discern any element of fear from the narra
tion of .SPO1 Rufo Capoquian, the police officer who escorted the n:1
ed1ti n_; and second, by any person or persons who without a
pu ,1 upnsrng, sha J attack, employ force, or seriousl/intimidate
?r resist any person m authority
ff i . or any of his agents, while d
DENR Team during their mission. On the contrary, what appears is m the perfo o i cr nl duties, or on occasio n of
nnance suchenpge.a.sg-oer
f
o
that petitioner, being then a municipal mayor, merely extended his mance. n 1
•
 UPDATES 1N CRIMINAL LAW SPECIFIC CRIMES 111
110

Unquestionably, petitioner's case falls under the 3econd mode,

which is the more common form of assault and is aggravated when:
(a) the assault is committed with a weapon; or (b) when the offender
isa public officer or employee; or (c) when the offender lays hand
upon a person in authority.
XXX
It isa matter of record that at the time of the assault, Lt.
Leygo was engaged in the actual performance of his official duties.
He was wearing the designated police uniform and was on boarda
police car conducting a routinary patrol when he Lrst came upon
the truck unloading chicken manure. Because the unloading of
chicken dung was a violation of La Trinidad Municipal Ordinance
No. 1·91, the lieutenant ordered the truck driver t.o return from
Falsification committed by public off
where he came, but petitioner, in defiance of such lawful order,
commanded the truck driver to return to Shilan, the place where that persons have participated in an
the truck was first intercepted, and on being informed that the tc etrosr baypcraoucseiendginigt .to appe.ar
a c
same truck had returned, the lieutenant had every reason to as Its elements are: (1) that the offender i .
ployee or notary public· (O) thath s a pubhc officer, em-

person
fi
position; (.'.-!) that he falsi a docu!! : ::::::tga ttof his official
. . . " · I· o appear that
sume it did return for the purpose of unloading its c:wgn of chicken athev didornpPrson
o t i.h.f •,
dung, thus stopped it from doing sn.
17045 a n d 1 0: :; te t;o pa t1c1pated in any act or proceeding when
vs. People, G.R. Nos.

s:; s
Under the circumstances, it simply defies reason to argue that .; a u
3
Lt. Leygo was not in the performance of his lawful duties asa police
officer when the assault upon him was perpetrated by the peti
El ments of falsification by making untruthful statem t.
tioner. (Rivera us. People, G.R. No. 138553, 30 dune 2005, 462 SCRA ration of facts. ens m a nar-
350)
m Under Article 171'4) of the Revised Penal Code anv public
CRIMES AGAINST PUBLIC INTEREST :; ::: ; ; r : e st: !:
0
!: ti
:a::::!:: :c : t: ti::·
cnm of falsification of public documents. This kind of fals'fi t' e
In falsification committed by public officers, the offender must r e q ua ir e s the c oncu f th f1 1 .
have taken advantage of his official position. m a k e s i n d . rrence e o lo vnng requisites: (a)
1 c a 1 0 n
the off e n d e r
(b) heh cuml0m _unt: uthful statements in a narration offactir
The offender under Article 172 must be a private individual as a ega obligation to disclose the truth of the r. t '
or rated by h' . d ( ) h 1acs nar-
may bea public officer, employee or notary public who does not
"take advantage of his official position." Under Article 171, an es i lutely fals:. s::tos :st Se f ts narrated by the offender are absO*
sential element of the crime is that the act of falsification must be t ceniber 2000, 347 SCRA a°:6/ganbayan, G.R. Nos. 715 -2 :.08 De-
committed bya public officer, employee or notary w:Oo "takes advan-
· n of falsification
.
(a) T f.,':
, o L
tage of his official position." tr. ff.utem
osta
All the elements
th ful u
s th through
m ea narra t10n of facts the making...:
are present: hat
k i .d e t

Th:::
The offender "takes advantage of his official position" in falsi
fyinga document when: (1) he has the duty to make or to prepare or a es u-. a docu1;11en statements in a narration offacts; (b)
otherwise intervene in the preparation of the document; or (2) he has
narrated bash l gal obligation to disclose the truth of the facts
the official custody of the document which he falsifies. (Adaza vs. Y im, (c) That the facts narrated b th 1/1!; d
Sandiganbayan, G.R. No. 154886, 28 July 2005, 464 SCRA 460) absolute•lv fa!se'· and (d) Th 8t th e perversi.on of Ytruteh inoutehne
enrararrae•

UPDATES IN CRIMINAL LAW SPECIFIC CRIMES 113

112

tion of facts was made with the wrongful intent of injuringa third :e, in addi ion t the aforesaid elements, independent evidence of
person. In People vs. Po Giok To,-the Court held that "in the falsifica amage or mtent1on to cause the same to a third person.
tion of public or official documents, whether by public officials or by
private persons, it is unnecessary that there be present the idea of gain iven the admissiom of Avella hat she altered t;h;
r cei t
·or the intent to injure a third person, for the reason that, in and without onvincing evidence that the alteration was with t1
contradistinction to private documents, the principal thing punished is consent of pnvate complainant, the Court holds that all fo (4
the violation of the public faith and the destruction of the truth as ele.ments have been proven beyond reasonable doubt As to th. )
therein solemnly proclaimed." Hence, the last requisite need not be qw.rement of damage, this is readily apparent as it. was ma:/::
present. xxx. Nonetheless, they argue that they have no legal obli :pear that Avellas
not. ence, A;berto ?a received
conV1Ct1on. P50,000
(Garcia vs.when
Courtin of
fa At h eals
.did
gation to disclose the truth in their PDS since these are not official GR..,.
documents. XXX, In Inting vs. Tanodbayan, the Court held that "the 128213, 13 December 2005, 477 SCRA 427) · pp 'r , '· ·' '
1
No.
>, [ ; ::•' f' !
accomplishment of the Personal Data Sheet beinga requirement under
• I '1 •

the Civil Service Rules and Regulations in connection with

employment in the government, the making of an untruthful state Elements of use of falsified document. ;·'·,.'I

ment therein was, therefore, intimately connected with such em
ployment. xxx" The filing of a Personal Data Sheet :s required in
connection with the promotion to a higher position and contenders for
promotion have the legal obligation to disclose the truth. Other wise,
enhancing their qualifications by means of fal!:>e statements will
prejudice other qualified aspirants to the same position. (Lumancas vs.
Intas, G.R. No. 133472, 05 December 2000, 347 SCRA
22)
In the case ofGonzaludo vs. People, G.R. No. 150910, 06
Febru· ary 2006, 481 SCRA 569, petitioner conspired wiL1
Rosemarie to falsify, that is, by making untruthful statement in the
narration of facts in the deed of sale, by declaring Rosemarie to
be the owner of the house subject of such sale and signing as
"Rosenarie Villaflor" instead of her real name, Rosemarie Gelogo,
The elements of"use of falsified documents" which is .
under Art. 172 of the Revised Penal Code, are: (a) That the o :::;
ewthat a do ument was falsified by another person; (b)" That the
: o'7 docume t is embraced in Art. 171 or in any of subdivisions 1 or
· :72, (c) That he used such document (not in judicial ro
ceedings), and (d) That the use 0f the false document caused
age to anTohthef1r or at least it was used with
d1·ntent
a:
7 sume h t;.mage. act that they used the false
to .cause.
certifications in support of
is ?romotion resu d in prejudice to other applicants genuine}
qualrfied for the pos1t1on. (Lumancas vs. Intas G.R No 133472 05y
December 2000, 347 SCRA 22) ' · · '
Requisites of perjury.

m:
in order to sell the same to the Canlas spouses. It is established by Perjury is the willful and corrupt assertion of a falseh od .
evidence beyond reasonable doubt that Rosemarie committed the d.e r oath or affirmation ad;ninistered by authority of
crime of falsifica- law on nal matter. The elements of the felony are:
tion of public document.
Falsification by making alteration.
(a) That t?e accused made a statement under oath or ex-
ecuted an affidavit upon a material matter. .
:
(b) That the statement or affidavit was made be e . .
tent or a comp e-
. office'r auth to receive and administer oath. .
The elements of the crime of falsification under Article 171(6)
on.zed
ofthe Revised Penal Codt: are: (l) that there be an alteration (c) '{'hat in that statement or affidavit the. d d
(change) or intercalation (inflertion) on a document; (2) that it willful and deliben,te assertion of a ra\sehood.' accuse mae
was made ona genuine document; (3) that the alteration or a
intercalation has changed the meaning of the document; and (4) . . (d) T:hat the sworn statement or affidavit containing the f; l
that the changes made the document speak something false. When s1ty
these are commit ted bya private individual on a private document 8 is required by lnw or made for a legal purpose. (Villanue a.·
ecretary of Justice, G.R. No. 162187 18 November 2005 475 S CaRAvs.
the violation would fall under paragraph 2, Article 172 of the same 495) ' . ,
code, but there must

114 UPDATES IN CRIMINAL LAW
Essence of perjury.
A mere assertion of a false objective fact, a falsehood, is not
enough. The assertion must be deliberate and v.-illful. Perjury being
a felony by dolo, there must be malice on the part of the accused.
Willfully means intentionally; with evil intent and legal malice,
with the consciousness that the alleged perjurious statement is false
with the intent that it should be received as a statement of what was
true in fact. It is equivalent to "knowingly." "Deliberately" implies
medi
tated 'as distinguished from inadvertent acts. It must appear that
the accused knows his statement to be false or as consciously
igno-
rant of its truth.
Perjury cannot be willful where the oath is according to belief
or conviction as to its truth. A false statement of a belief is not
perjury. Bona fide belief in the truth of a statement is an adequate
defense.A false statement which is obviously the result of an honest
mistake is not perjury. (Villanueua vs. Secretary of Justice, G.R. No.
162187, 18 Nouember 2005, 476 SCRA 495)
In perjury, what is an affidavit executed upon a material matter?
In prosecutions for perjury, a matter is material if it is the
"main fact which was the subject of the inquiry, or any circumstance
which tends to prove that fact xxx." To hold private respondents
liable, there must be evidence that their assailed statements in OMB
ADM-1-99-0387 were the subject of inquiry in that cm,e. Petitioner
has presented no such evidence. The records are hardly helpful, as
petitioner did not furnish the Court a copy of her complaint in OMB-
ADM-1-99-0387.
What is before the Court is a portion of re,;pondent Pascua's
counter-affidavit in that case as quoted by public respondent in his
4 April 2000 Resolution. Admittedly, some inference is possible from
this quoted material, namely, that the basis of petitioner's com
plaint in OMB-ADM-1-99-0387 is that respondent Pascua prevented
her from taking part in the 16 July 1998 meeting. However, it would
be improper for the Court to rely on such inference because the
element of materiality must be established by evidence and not left
to inference.
At any rat.e, petitioner's complaint for perjury will still not
prosper because respondent Pascua's statement - that OMB-ADM-
1-99-0387 is significantly the same as petitioner'& and Yabut's
SPECIFIC CRIMES 116
ad 1} istrabve complai1;t against respondent Pascua before the
D U:i - 1s 1mmatenal to the inferred issue. (Acuna vs. Deputy Om-
budsman, G.R.No. 144692, 31 January 2005, 450 SCRA 232). , ,
"Willful and deliberate assertion of falsehood."
The thi:.d element of perjury requires that the accus d:. 11-
'.ull! and ehberately assert a falsehood. Good faith or lack of mal
ice IS a vah derense. Here, the Court finds that respondent ascua's
statement m his counter-affidavit in OMB-ADM-1-99-0387.that he
called.the 6 July 1998 meeting does not constitute a deliber te
assert10n of falsehood. While it was Yabut and some unidentified '.'-
CNTS personne1 who requested a dialogue with respondent Pascua, it
w s respondent Pascua's consent to their request which led to the old
ng of the meeting. Thus, respondent Pascua's statetnent'in'ques' tion 18
not fa.ls.a much less malicious. It is a good faith interpretation of
events leadmg to the holding of the meeting. · . 0'' · · 1
. garding respondent Pascua's allegation i hi-s cou r ffi
daV1t m OMB-ADM-1-99-0387 that petitioner's complaint was a
mere "reh s and_duplication with a slight deviation of fact" of the
DECS admm1stra 1 e case petitioner and Yabut filed against
respondent P scua, pett taner has not shown why this is false.
Petitioner again did not furnish the Court a copy of her and Yabut's
complaint'il'lith the DECS.
Respondent Turla's statement in OMB-ADM-1-99-0387 that
respond.ent Pascua called the 16 July 1998 meeting was a mere
re1terat1on of what respondent Pascua told him. Consequently it
was correct for public n,spondent to hold that since respondent Tu la
merely repe ted what h heard from respondent Pascua, he could
not be held hable for makmg a falee and malicious statement. (Acuna
vs. Deputy Ombudsman, G.R. No. 144692 31 January 2005 450
SCRA232) ' 1
The subject sworn statement "must be required by la .'; .,
. .Petitione: then claims that since the petition ·'for' n tti:raliza
tton 1s a pkadmg, the allegations therein are absolutely prhileged
a d cannot be. used for any criminal prosecution against him,'
citing Sison vs. Davtd, People vs. Aquino andFlordelis vs.
Himalaloan.
. The argu ent is navailing. Sison and Aquino both 'involve
hbel cases. In Sison, this Court categorically stressed that the term

116 UPDATES IN CRIMINAL LAW
" bsolute privilege" (or"qualified p lege"j has an established tech;
nical meaning, in connection with civil actions for hbel and
slande;. The purpose of the privilege is to ensure that "m.emben,
of the legis lature, judges of courts, jurors, la ers, and _witnesse
may peak their minds freely and exercise their respective functio s
W1thout incurring the risk of a criminal p ose ution or an action
for the recovety of damages. It is granted m aid and for the
advantage f the 'administration of justice." Certainly, in the r sent
case, pet tioner c nnot seek refuge under the absolutely p vile?ed
co. mum cation :rule since the false statements he made m h1
petiti n for naturilization has instead made a mockery of the
adm:rnstration of
justice.
The Flordelis case is likewise not in point. There, Fl rde is
wa.s charged with perjury for having alleged false statements m 1s
ven fied answer. This Court held that no perjury could be co
m1tted. b Flordelis because "an answer to a complaint in an
ordinary civil action need not be under oath," thus, "it is at once
apparent that one element of the crime of perjury is absent x. x x,
name y, that the sworn statement complained of must be required
by law. (People vs. Choa; G.R. No. 142011, 14 March 2003, 399
SCRA 145)
A conviction for perjury cannot be sustained merely upon the con
tradictory sworn statements of the accused.
The prosecution must prove which of the two statem nts is
false and must show the statement to be false by o:her _evi.den
than the contradicting statement. The rationale of this pnnc1ple is
thus:
"... Proof that accused has given contradictory tes
timony under oath at a different ime will not ?e suffi
cient to establish the falsity of testimony chargea as per
jury, for this would leave simply one oath of the defenda
t as against another, and it would not appear th t the
testl· mony charged was false rather than the st mony
con-
- tradictory thereof. The two statements will sPnpl)'. neu
. ,tralize each other; there must be some co oborat1on of
the contradictory testimony. Such corroboration, however,
may be furnished by evidence aliunde tending to show
perjury independently of the declarations of Lc1,1t.i.mony
of the accused." (Villanueva us. Secretary of Justice, G.R.
No. 162187, 18 November 2005, 475 SCRA 495)
SPECIFIC CRIMES 117
CRIMES AGAINST PUBLIC MORALS
Obscene publications.
To be held liable under Article 201 of the Revised P ;,.;1 Code,
the prosecution must prove that: (a) the materials, publication, pic
ture or literature are obscene; and (b) the offender sold, exhibited,
published or gave away such materials. Necessarily, that the confis
cated materials are obscene must be proved.
XXX
Mere pos!!ession of obscene materials, without intentibnh>
sell, exhibit, or give them away, is not punishable under Article 201,
considering the purpose of the law is to prohibit the dissemination
of obsi;:ene materials to ihe public. The offense in any of .the forms
under Article 201 is committed only when there is publicity. The law
does not require that a person be caught in the act of selling;
giving away or exhibiting obscene materials to be liable, for as
long as the said materials are offered for sale, displayed or
exhibited to the public. (Fernando vs. Court of Appeals, G.R. No.·
159751, 06 Decem ber 2006)
Test of obscenity.
Thera is no perfect definition of"obscenity" but the latest word
is that of Miller vs. California which established basic guidelines, to
wit: (a) whether to the average person, applying contemporary stan
dards would find the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value. But, it would be a
serious misceading of Miller to conclude that the trier of facts has
the unbridled discretion in determining what is "patently offensive."
No one will be subject to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently
offensive "hard core" sexual conduct. Examples included: (a)• pa
tently offensive representations or descriptions of ultimate sexual
acts, normal or perverted, actual or simulated; and (b) patently of
fensive rep1·esentations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals. What remains clear is
that obscenity is an issue proper for judicial determination and should
be treated on a case tc. case basis and on the judge's sound discre-
 118 UPDATES IN CRIMINAL LAW
tion. (Fernando vs. Court of Appeals, G.R. No. 159751, 06
December 2006)
CRIMES COMMITTED BY PUBLIC OFFICERS
What is an unjust Judgment and when is It rendered knowingly?
Ifuowingly rendering an unjust judgment is a criminal
offense defined and penalized under Article 204 of the R:evised
Pe al C de. For conviction to lie, it must be proved that the
Judgment IS unJust and that, the judge knows that it is unjust.
Knowi gly means con sciously, intelligently, willfully or
intentionally. It 1 firmly estab lished in this jurisdiction that for a
judge to be held liable for know ingly rendering an unjust
judgment, it m st be shown that the judgment is unjust as it is
contrary to law or IS not supported by the evidence; and that the
same was made with conscious and deliber ate inient to do an
injustice.
The law requires that: (a) the offender is a judge; (b) he ren
ders a judgment in a case submitted to him for decision; (c) t e
judgment is unjust; (d) he knew that said j_udgme t is u just. Tlus
Court reiterates that in order to ho d a Judge hable, 1t must be
shown that the judgment is unjust and that it was ma:le with n
scious and deliberate intent to do an injustice. That gocd faith 1s
a defense to the charge of knowingly rendering an unjust
judgment remains the law. (Diego vs. Castillo, A.M. No. RTJ-02-
1673, 11 Au gust 2004, 436 SCRA 67)
Elements of direct bribery.
The crime of direct bribery as defined in Article 210 of the
Revised Penal Code consists of the following elements: (1) that the
accused is a public officer; (2) that he received directly or throu.gh
another some gift or present, offer or promise; (3) that. such gi ,
present or promise has been given in c ns deratio.n of his comm1.s
sion of some crime, or any act not constitutmg a cnme, or to refram
from doing something which it is his official duty to do; and (4) th t
the crime or act relates to the exercise of his functions as a public
officer. (Marifosque vs. People, G.R No. 156685 27 July 2004,
1
435 SCRA 332) Thus, the acts constituting direct bribery are: (1) by
ai:,rreeing to perform, or by performing, in consideration of any
offer, promise, gift or present an act constituting a crime, in_ conne
ti n with the performance of his official dnties; (2) by acceptmg a
gift m
120 UPDATES IN CRD,1INAL LAW
SPECIFIC CRIMES '119
consideration of the execution of an act which does not constitute a
crime, in conne;ction with the performance of his official duty; or
(8) by agreeing to refrain, or by refraining, from doing something
which is his official duty to do, in consideration of any gift. 'or
promise. (Garcia vs. Sandiganbayan, G.R. No. 155574, 20
Nouembe'r 2006)"<
Meaning of public officer.
There is no question that petitioner was a public officer within
the conten1plation of Article 203 of the Revised Penal Code,· which
includes all persons "who, by direct provision of IaW: popular elec
tion or appointment by competent authority, shall 'take part' iiiihe
performance of public functions in the Philippine Government, or
shall perform in said government or any of its branches, public
duties as an employee, agent or subordinate official or any rank or
class." At the time of the incident, petitioner was a police sergeant
assigned t? the Legazpi City Police Station. He directly receiv d the
bribe money from Yu So Pong and his daughter Hian Hiari Yu Sy in
exchange for the recovery of the stolen cylinder tanks, which'was an
act not constituting a crime within the meaning of Article 210 of the
Revised Penel Code. The act ofreceiving money was connected with
his duty as a pplice officer. (Marifosque vs. People, G.R. No.
166685,
27 July 2004, 435 SCRA 332) .
Indirect bribery.
Indirect bribery is committed by a public officer who shall
ac cept gifts offered to him by reason of his office. The essential
ingre dient of indirect bribery as defined in Article 211 of the
Revised Penal Code is t.1.at the public officer concerned must
have accepted the gift or material consideration. (Garcia vs.
Sandiganbayan, G.R. No. 155574, 20 November 2006)
(
·
Malversation of publlc funds or property.
Malversation may be committed by appropriating public
funds or property; by taking or misappropriating the same; by
consenting, or through abandonment or negligence, by permitting
any other person to take such public funds or property; or try
being otherwise guilty of the misappropriation or malversation of
such funds or prop erty. (Pondevida vs. Sandiganbayan. G.R.
Nos. 160929-31, 16 Au
gust 2006, 4fi7 SCRA 219)

Requisites:
1. That the offender is a public officer;
2. That he has the custody or control of funds or property by
reason of the duties of his office;
3. That the funds or property are public funds or property
for which he is accountable; and
4. · That he appropriated, took, misappropriated or consentBd
or through abandonment or negligence, permittBd another person t-0
take them. (Magnanao us. People, G.R. No. 140833, 29 November
2006; Cabarlo us. People, G.R. No. 172274, 16 November 2006;
Quifion vs. People, G.R. No. J.'.16462, 19 September 2002, 389 8CRA
412)
Malversatlon through negligence.
The felony consists not only in misappropriation or
converting public funds or property to one's personal use but also
by knowingly allowing others to make use of or misappropriate
the same. The felony may thus be committed by do1o or by culpa.
The cnme 13 consummated and the appropriate penalty is imposed
regardless of whether the mode of commission is with intent or
due to negligence. (8arigumba vs. 8andiganbayan, G.R. Nos.
154239-41, 16 February
2005, 451 SCRA 533)
Malversation may be committed either through a positive act
of misappropriation of public funds or property or pasc;ively
through negligence by allowing another to commit such
misappropriation. To sustain a charge of malversation, there must
either be criminal intent or criminal negligence and while the
prevailing facts of a case may not show that deceit attended the
commission of the offense, it will not preclude the reception of
evidence to prove the existence of negligence because both are
equally punishable in Article 217 of the Revised Penal Code.
(People us. Ting Lan Uy, G.R. No. 157399, 17
November 2005, 475 SCRA 248)
Who Is an accountable officer?
. , An accountable public officer, within the purview of Article 217
of the Revised Penal Code, is one who has custody or control of
public funds or property by reason of the duties of his office. To be
liable for malversation, an accountable officer need not be a bonded
official. (Quif&on us. People, G.R. No. 136462, 19 September 2002,
122 UPDATES IN CRIMINAL LAW
SPECIFIC CRIMES 121
389 SCRA 412) An accountable officer under Article 217 is a public
officer who, by reason of his office is accountable for public funds or
property. Sec. 101(1) of the Government Auditing Code of the
Philip pines (P.D. No. 1455) defines accountable officer to be every
officer of any government agency whose duties permit or require
the pos
session or custody of government funds or property and who'sliall be
accountable therefor and for the 'safekeeping thereof in
confo:nnity
with law. (Arriola vs. Sandiganbayan, G.R. No. 165711, 301 JuM
2006, 494 SCRA 344) The name or relative importance ofthe..o:ffice
or employment is not the controlling factor. The nature of the duties
of the public officer or employee, the fact that as part of his duti s he
received public money for which he is bound to account and failed,to
account for it, is the factor which determines whether or not.hialver
sation is committed by the accused public officer or employee. Hence,
a mere clerk ir.:the provincial or municipal government may be· held
guilty of malversation if he or she is entrusted with public funds
and misappropriates the same. (Barriga vs. Sandiganbaytin;r G.R.
Nos. 161784-86, 26 April 2005, 457 SCRA 301) 1:
Private individuals may be liable for malversation.
A public officer who is not in charge of public funds or property
by virtue of her official position, or even a private individual, may be
liable for malversation or illegal use of public funds or property if
such public officer or private individual conspires with an account
able public officer to commit malversation or illegal use of public
funds or property. (Barriga vs. Sandiganbayan. G.R. Nos:: 161784-
86, 26 April 2005, 457 SCRA 301) . . ,,
Presumption from failure to have duly forthcoming public funds
or property upon demand.
Under Article 217 of the Code, the failure of the public officer
to have duly forthcoming such public funds or property, upon de
mand by a duly authorized officer, shall be prima facie evidence that
hehas put such missing funds or property to personal use. (Quinon
vs. People, G.J?. No. 136462, 19 September 2002, 389 SCRA 412) ·
An accountable officer may thus be convicted of
malversation even if there is no direct. evidence of
misappropriation and the only evidence is that there is a shortage
in the officer's account which he has not been able to explain
satisfactorily. All that is essential is proof that t.he accountable
officer has received public funds but that
when demand therefor is made, he is unable to satisfactorily
account for the same. (Sarigumba vs. Sandiganbayan, G.R. Nos.
154239-41, 16 February 2005, 451 SCRA 533)
Petitioner should have cited the case of People vs. Tolentino
which held that previous demand is not necessary for violation of
article 217 in spite of the last paragraph of the said provision. The
last paragraph of article 217 provides only for a rule of procedural
law. More recently, in the case of Nizurtado vs. Sandiga.ibayan,
the Court stated in this regard that "(d)emand merely raises a
prima facie presumption that missing funds have been put to
p':lrsonal use. The demand itself, however, is not an element of,
and not indispens able to constitute, malversation." (Morang
Water District i;s. Office of the Deputy Ombudsman, G.R No.
116754, 17 J1arch 2000, 328
SCRA363)
Anent the last element, we have held that to justify
conviction for malversation of public funds, the prosecution has
only to prove that the accused received public funds or property
and that he could not account for them or did not have them in his
possession and could not give a reasonable excuse for the
disappearance of the same. An accountable public officer may be
convicted of malversa tion even if there is no direct evidence of
misappropriation and the only evidence is that there is a shortage
in his accounts which he has not been able to explain
satisfactorily. (Estrella vs. Sandiganbayan, G.R. No. 125160, 20
,June 2000, 334 8CRA 46)
It must be emphasized that the prima facie presumption arises
only if there is no issue as to the accuracy, correctness, and regular
ity of the audit findings and if the fact that funds are missing is
indubitably established. (Enriquez us. People, G.R. No. 119239,
09
May 2000, 331 SCRA 538)
Mere absence of funds is not s..ifficient proof of conversion;
neither is the mere failure of the public officer to tum over the
funds at any given time sufficient to make even the prima facie
case. In fine, conversion must be proved. However, an
accountable officer may be convicted of malversation even in the
absence of direct proof of misappropriation so long as there is
evidence of shortage in his
.account which he is unable to explain.
Demand to produce public funds under a public officer's cus
tody:is· not an essential element of the felony. The Jaw createsa
prima. fa.cie presumption of connivance if the public officer fails to
produce public funds under his custody upon demand
therefor.
124 UPDATES IN CRIMINAL LAW
Accordingly, if the accused is able to present adeqm,te evidence
SPECIFIC CRIMES 123
(Pondevidu vs. Sandiganbayan,G.R. Nos. 160929-31 l6Au,1ust 200f
467 SCRA 219) ' 0
:>,
. Article 217, as amended by Republic Act 1060, no longer re
qmres pro?f by the .state tha theaccused actually appropriated, t-
Ook, r m1sapprop:1ated pubhc funds or property. Instead, a ·pre
sumption, though disputable and rebuttable, was installed that upon
demand by any duly authorized officer, the failure of a public officer
t-0 ?ave di..! forthcoming any public funds or property - with which
said officer rs accountable - should be prima facie evidence that he
had Pt:t such missing funds or properties to personal use. ,When
these circumstances are present, a "presumption of law" arises that
the e was mal ersation f public fu ds or properties a; decreed by
Article 217. A presumpt10n of law" 1s sanctioned by a statute pre·
scnbmg that "a certain inference must be made whenever facts
appear which furnish the basis of the interference." This is to be set
apart fro a"pre.sumption of fact" which is a "[conclusion] drawn
from particular circumstances, the connection between them and
the sought for fact having received such a sanction in experience as
to have become recognized as justif:ying the assumption." When
there 1s a presumption of law, the onus probandi (burden of
pro f), generally imposed upon the State, is now shifted to the party
agamst whom the interference is made to adduce satisfactory evi
de ce to rebut the presumption and hence, to demolish the prima
facte case.
After the government auditors discovered the shortage and
demanded an explanation, petitioner \Va-aeon was not able to make
mo 1ey re_adil): a:'ailable, immediately refund .the shortage, 1 or ex
plam. satisfa tonly the cash deficit. These facts .or circumstances
constitute prima facie evidence that he converted·such funds to his
personal use. (Wa-acon vs. People, G.R. No. 164575 06 December
2006) '
Presumption of conversion or misappropriation is disputable.
The presumptio of conversion incarnated in Article 217,
para graph (4) of the vi d Penal Code is - by its very
nature - rebuttable. To put 1t differently, the presumption under
the law is not conclusive but disputable by satisfactory evidence to
the effect that the accused did not utilize the public funds or
property for his personal use, gain or benefit. (Agullo vs.
Sandiganbayan, G.R: No. 132926, 20 July 2001, 361 SCRA 556)
that can nullify any likelihood that he had put the funds or property to
personal use, then that presumption would be at an end and the prima
facie case is effectively negated. This Court has repeatedly said that
when the absence of funds is not due to the personal use thereof by the
accused, the presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all. (Davalos
us. People, G.R. No. 145229, 20 April 2006, ,J88 SCRA.. 84)
Granting of "vales" may amount to malversation of public
funds.
The granting of "vales" had been held in .'\ieneses vs.
Sandiganbayan to be contrary to law, however:
"The grant of loans through the "vale" syst( m is a
clear case of an accountable officer consenting to the im·
proper or unauthorized use of public funds by other per
sons, which is punishable by the law. To tolerate such
practice is to give a license to every disbursing officer to
conduct a lending operation with the use of public funds.
"There is no law or regulation allowing accountable
officers to extend loans to anyone against "vales" or chits
given in exchange by the borrowers. On the other
hand,
the General Auditing Office (now the Commission on Au
dit) time and again, through repeated office memoranda
and rulings had warned against the acceptance of "vales"
or chits by any disbursing officer because such transac
tic>ns are really forms of loans (Memorandum Circular
No. 570, June 24, 1968, General Auditing Office)."
The alleged acquiescence of petitioner's superior, even if
true, is not a valid defense. AB Ilogon vs. Sandiganbayan teaches:
"The fact that petitioner did not personally use the
rniJsing funds is not a valid defense and will not excul
pate him from his criminal liability. And as aptly found
by respondent Sandiganbayan, 'the fact that (the)
hnmedi ate superiors of the accused (petitioner herein)
have ac· quiesced to the practice of giving out cash
advances for convenience did not legalize the
disbursements.'" (Chan vs. Sandiganbayan, G.R. No.
149613, 09 August 2005,
466 SCRA 190)
SPECIFIC CRIMES 125
Restitution, not a valid defense in malversation.
Case law has it that the individuals' taking of fund is com·
pleted and is consummated even if the severance of the funds from
the possession was only for an instant. Restitution of the said
amount aft.er the consummation of the crimes is not a ground for
acquittal of the sai1l crimes. (Pondevida vs. Sandiganbayan, G.R.
Nos. 160929-
81, 16 August 2005, 467 SCRA 219) .. .
Failure of accountable officer to render
accounts.
There are four elements of the crime under Article 2i8.' First
the offend':!r is a public officer. Second, he must be an accountabl
officer for public funds or property. Third, the offender is required
b law r regulation to r nder accounts to the COA, or to a provin
cial auditor. Fourth, he fails to render an account for a period of two
months after such accounts should be rendered. (Campomanes vs.
People, G.R. No. 161950, 19 December 2006) .
Technical Malversatlon.
The essential elements of the crime of technical malversation
defined in Article 220 ofth Revised Penal Code are:
1. That the offender is a public officer;
2. That there is public fund or property under his adminis-
tration;
3. That such public fund or property has been appropriated
by law or ordinance;
4. That he applies the same to a public use other than that
for which such fund or property has been appropriated by law or
ordinance. ·
Appellant contendi; that the prosecution was unable· U· :
prove
the second and third elements of the crime charged. She argued
that the public funds in question, having been established t.o form
part of savings, had therefore ceased to be appropriated by law or
ordinance for any specific purpose.
The Court; finds merit in appellant's submission:
As found by the Sandiganbayan no less, the amount of forty
thousand pesos (P40,000.00) originally intended to cover the
salary differentials of thirty-four (84) secondary school teachers
whose em-

126 UPDATES IN CRIMINAL LAW
ployment status were converted to Instructor I, were sourced from
the "lump sum appropriation" authorized on page 370 (should be
page 396) of R.A. No. 6688 and the current savings under personal
services f said school.
XXX
The Court notes that there is no particular appropriation for
salary differentials of secondary school teachers of the Sulu State
College in R.A. No. 6688. The third element of the crime of
technical malversation which requires that the public fund used
should have been appropriated by law, is therefore absent. The
authorization given by the Department of Budget and Management
for the use of the forty thousand pesos (P40,000.00) allotment for
payment of sal ary differentials of 34 secondary school teachers is
not ar:. ordinance. or law contemplated in Article 220 of the
Revised Penal Code.
The Court has unequivocably ruled in Parungao vs.
Sandiganbayan that in the absence of a law or ordinance appropri
ating the public fund allegedly technically malversed (in that case,
the absence of any law or ordinance appropriating the CRBI fund
for the concreting of Barangay Jalung Road), the use thereof for
another public purpose (there, for the payment of wages of laborers
working on projects other than the Barangay Jalung Ro:1d) will not
make the accused guilty of violation of Article 220 of the Revised
Penal Code.
Appellant herein, who used the remainder of the forty thou
sand pesos (P40,000.00) released by the DBM for salary differen
tials, for the payment of the tenninal leave benefits of other school
teachers of the Sulu State College, cannot be held guilty of technical
malversation in the absence, as here, of any provision in R.A. No.
6688 specifically appropriating said amount for payment of salary
differentials only. In fine, the third and fourth elements of the crime
defined in Article 220 of the Revised Penal Code are lacking in this
case. Acquittal is thus in order. (Abdulla vs. People, C.R. No. 150129,
06 April 2005, 455 SCRA 78)
It is clear that for technical malversation to exist, it is neces
sary that public funds or properties had been diverted to any public
use other than that provided for by law or ordinance. To constitute
the crime, there must be a diversion of the funds from the purpose
for which they had been originally appropriated by law or ordi
nance. (Tetangco us. Ombudsman, G.R. No. 156427, 20January
2006, 479 SCRA 249;
SPECIFIC CRIMES 127
CRIMES AGAINST PERSONS I. . - '
Parricide.
The elements of the crime of parricide are:(1) a person is·killed·
(2) the deceased is killed by the accused; and (3) the deceased is th
father, mother or child, whether legitimate or illegitimate of the
accused or any of his ascendants or descendants, or hi1;1 spo se. The
key element here is the relationship of the offender wiih the'victim.
(People vs. Matyaong, G.R. No. 140206, 21 June 2002, 359
SC1lii.
392; People t·s. Ayuman, G.R. No. 133436, 14 April 2004 427. SCRA
248) . . 1 , '.
' . ,i'
,
'
Death Inflicted under exce;>tlonal circumstances.
By invoking this defense, appellant waives his right,to the.
constitutional presum:)tion of innocence and bears the burden of
proving the following: · ·
1. That a legally married person (or a parent) surprises his
pouse (or his daughter, under 18 years of age and living with him),
m the act of committing sexual intercourse with another person.
2. That he or she kills any or both of them or inflicts upon
any or both of them any serious physical injury in the act or
immedi ately thereafter.
3. That he has not promoted or facilitated the.prostitution
of his wife (or daughter) or that he or she has not consented to the
infidelity of the other spouse. (People vs. Puedan, G.R. No.
139576, 02 September 2002, 388 SCRA 266)
Intent to klll, essential element of homicide and murder.
An essential element of murder and homicide, wh ther in their
consummated, frustrated or attempted stage, is intent of the offend ers
to kill the victim immediately before or simultaneously with the
infliction of injuries. Intent to kill is a specific intent which the
prosecution must prove by direct or circumstantial evidence, while
general criminal intent is presumed from the commission of a felony
by dolo.
In People vs. Delim, the Court declared that evidence to prove
intent to kill in crimes against persons may consist, inter alia, in the
means used by the malefactors, the nature, location and number of
 128 UPDATES IN CRIMINAL LAW
wounds sustained by the victim, the conduct of the malefactors
before, at the time, or immediately after the killing of the victim,
the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate
act of the malefactors, intent to kill is presumed. (Rivera vs.
People, G.R. No. 166326, 25 January 2006, 480 SCRA 188)
"By means of motor vehicle" as a qualifying circumstance in mur
der.. a
· The trial court imposed the death penalty on the ground that
the qualifying circumstance of use of motor vehicle is present. Rufino,
however, argues that the use of a motor vehicle was only incidental,
considering that he resorted to it only to enable him to go after Joseph
after he failed to catch up with the latter. The fallacy of this argument
is obvious.
The evidence shows that Rufino deliberately used his truck in
pursuing Joseph. Upon catching up with him, Rufino hit him with
the truck, as a result of which Joseph died instantly. It is therefore
clear that the truck was the means used by Rufino to perpetrate the
killing of Joseph.
The case of People vs. Munoz cited by Rufino find;; no applica
tion to the present case. In the said case, the police patrol jeep was
merely used by the accused therein in looking for the victim and in
carrying the body of the victim to the place where it was dumped.
The accused therein shot the victim, which caused the latter's death.
In the present case, the truck itself was used to kill fae victim by
running over him.
Under Article 248 of the Revised Penal Code, a person who
kills another "by means of a motor vehicle" is guilty of murder.
Thus, the use of motor vehicle qualifies the killing to murder.
(People vs. Mallari, G.R. No. 145993, 17 June 2003, 404 SCRA
170)
Outraging or scoffing at the corpse of the victim.
The mere decapitation of the victim's head constitutes outrag
ing or scoffing at the corpse of the victim, thus qualifying the
killing to murder. In this case, accused-appellant not only
beheaded Elsa. He further cut up her body like pieces of meat.
Then, he strewed the dismembered parts of her body in a deserted
road in the country side, leaving them to rot on the ground.
(People vs. Whisenhunt, G.R. No. 123819, 14 November 2001,
386 SCRA 586)
SPECIFIC CRIMES 129
Death caused/Physical injuries inflicted in a tumultuous affray;
tumultuous affray, defined.
A tumultuous affray takes place when a quarre. l occurs be:
tween several persons who engage in a confused and tumultuou
manner, in the course of which a person is killed or ""ounded and
the author thereof cannot be ascertained. The quarrel in the instant
case is between a distinct group of individuals, one of whom was
sufficiently identified as the principal author of the killing/as
against a common, particular victim. It is not, as the defense
suggests, a "tumultuous affray" within the meaning of Art. 251 of
The Revised Penal Code, that is, a meke or free-for-all, where
sever l persons not comprising definite or identifiable groups
attack one another in' a confused and disorganized manner,
resulting iri the death or in jury of one or some of them. (People
vs. Unlagada, G.R. No.141080, 17 September 2002, 389 SCRA
224)
: "•':IT
To be convicted of discharge of firearm, there must b .n Intent
to
kill.
Absent an intent to kill in firing the gun towards the victim,
petitioner should be held liable for the crime of illegal discharge
of firearm und.er Article 254 of the Revised Penal Code. The
elements
of this crime are: (1) that. the offender discharges a firearm rui.ai.nfil
or at another person; and (2) that the offender has no intention to
kill that person. Though the information charged the petitioner with
murder, he could be validly convicted of illegal discharge of firearm,
an offense which is necessarily included in the crime of unlawful
killing of a person. (Dado vs. People, G.R. No. 131421, 18 November
2002, 392 SCRA 46)
Slight physical injuries.
When there is no evidence of actual incapacity of the offended
party for labor or of the required medical attendance, the offense is
only slight physkal injuries, xxx. (Li vs. People, G.R. No.·127962, 14
April 2004, 427 SCRA 217)
Rape.
Republic Act No. 8385, otherwise also known as the "Anti•
Rape Act o[ 1997," has incorporated a new chapter in the Revised
Penal Code. In a new provision, designated Article 266-A, the crime
130 UPDATES IN CRIMINAL LAW
of rape is committed either by sexual intercourse or by sexual as
sault. Rape by sexual intercourse, pursuant to the first paragraph
of the article, is committed bya man who shall have ca1nal
knowl· edge of a woman (People us. Buban, G.R. No. 166895,
24 January 2007) under any of the following circumstances; uiz.:
(a) Through force, threat, or intimidation;
(b) When the offended party is deprived of reason or other
wise 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.
The last of the enumeration, item (d) above, constitutes what
is so often referred to as statutory rape. Rape by sexual assault,
mentioned in the second paragraph of the same article, is commit
ted by any person who, under any of the aforestated
circumstances, inserts his penis into another person's mouth or
anal orifice, or any instrument or object into the genital or anal
orifice of another per son. (People vs. Olaybar, G.R. Nos. 130630-
31, 01 October 2003, 412 SORA490)
Guiding principles In the review of rape cases.
In the review ofrape cases, we are almost invariably guided by
the following principles: (1) an accusation for rape can be made with
facility; it is difficult to prove but more difficult for the person ac
cused, though innocent, to disprove it; (2) in view of the intrinsic
nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the prosecution must stand
or fall on its own merits and cannot be allowed to draw strength
from the weakness of the evidence for the defense. (People us. Oga,
G.R. No. 152302, 08 June 2004, 431 SORA 354) Therefore, the cred
ibility of the private complainant is crucial to the outcome of these
cases for it is well-settled that conviction or acquittal depends al most
entirely on the credibility of the victim':; testimony. (People vs.
Buates, G.R. Nos. 140868-69, 05August 2003, 408 SCRA 278)
SPECIFIC CRIMES 1:n
Consummated rape.
In People vs. Campuhan, we ruled that rape is·consummated.
"by the slightest penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis." There n d not be full
and complete penetration of the victim's vagina for r ptito be con
summated. (People vs. Jalosjos, G.R. Nos. 132876-76,
16Nouember 2001, 869 SCRA 179) Penile invasion necessarily
entails contact with the labid, Even the briefest of contact&,
without .laceration. of the hymen, is :ieemed to be rape. (People
vs. Basquez, G.R. No. 144035, 27 Septer>iber 2001, 366 SORA
154) . i;. 1 .• , ,!,.,,
As testified to by Lanie, "the tip" of appellant's penisw·
lls1tii.:1
serted into her vagina, El.Sa result of which she felt pain.'fn other
words, there was no full penetration, and. this ezj>laiiui''wnf her
hymen remained intact. Nonetheless, carnal knowledge. wai,' con
summated by the entry of i•the tip" of appellant's private or
gan into the labia or pudendum of Lanie's genitaliat."It is well-'
settled that full penetration is not required to consu ate carnal
knowledge, as proof of entrance showing the slightest penetration
of the male organ within the labia or pudendum of the female
organ is sufficient. (People us. Dalisay, G.R. No. 133926, 06
August 2003, 408 SCRA375)
Force or intimidation.
The force employed in rape cases may be physical and actual
or psychological and addressed to the mind of the complainant. Both
have the same effect on the rape victim. In the latter case,'however,
we have consistently held that the force or intimidation must be of
such character as to create real apprehension of dangerous conse
quences or Rerious bodily harm that would overpower the mind of
the victim and prevent her from offering resistance'. The test is
whether the threat or intimidation produces a reasonable fear in
the mind of the victim that if ahe resists or does not yield to the
desires of th0 accused, the threat would be carried out. It is not.
necessary, therefore, that the force or intimidation employed be so
great or be of such character that it can not be resisted..It is only
necessary that the force or intimidation be sufficient to consummate
the purpose of the accused. Hence, the victim need not resist unto
death or sustain physical injuries in the hands of the rapist. ,,,·
Intimidation and oercion must be viewed in the light of the
victim's perception and judgment at the time of the rape and not by
132 UPDATES IN CRIMINAL LAW
any hard-and-faRt rule. It depends on several factors like
difference in age, size, and strength of the parties, and their
relationship. (People vs. Oga, G.R. No. 152302, 08 June 2004, 431
SCRA 354)
What Is statutory rape?
In statutory rape, mere sexual congress with a woman below
twelve years of age consummates the crime of statutory rape re
gardless of her consent to the act or lack of it. The law presumes
that a woman of tender age does not possess discernment and is
incapable of giving intelligent consent to the sexual act. Thus, it
was held that carnal knowledge of a child below twelve years old
even if Rhe is engaged in prostitution is still considered statutory
rape. The application of force and intimidation or the deprivatie,n
ofrcason of the victim becomes irrelevant. The absence of
struggle or outcry of the victim or even her passive submission to
the sexual act will not mitigate nor absolve the accused from
liability. (People us. Jalosjos, G.R. Nos. 132875-76, 16 November
2001, 369 SCRA 179)
The gravamen of the offense of rape is sexual congress with a
woman by force and without consent. If the woman is under 12
years of age, proof of force and consent becomes immaterial not
only because force is not an element of statutory rape, but the
absence of a free consent is presumed. Conviction will therefore
lie, provided sexual intercourse is proven. But if the woman is 12
years of age or over at the time she was violated, sexual
intercourse must be proven and also that it was done through
force, violence, intimidation or threat. (People vs. Dimaano, G.R.
No. 168168, 14 September 2005, 469 SCRA 647)
Liability of several accused in multiple rape.
We have repeatedly held that in cases of multiple rape, each
of the defendants is responsible not only for the rape committed by
him but also for those committed by the others. Accused-appellant,
therefo e, is responsible not only for the rape committed
personally by him but also for the two other counts of rape
committed by his co accused. (People vs. Plurad, G.R. Nos. 138861-
63, 03 December 2002, 393 SCRA 306)
Rape may be committed by a woman.
Under the Revised Penal Code, however, an accused may be
considered a principal by direct participation, by inducement, or by
SPECIFIC CRI11ES 188
indispensable c:ioperation. This is true in a charge of rape against a
woman, provided of course a man is charged together: with, her.
Thus, in two cases this Court convicted the woman as a principal by
direct participation since it was proven that she held driwnthe'com
plainant in order to help her co-accused spouse consummate;the·
offense. ,, •·
In People vs. Villamala., the Court found the husband and
wife guilty for raping their neighbor and "kumare" in this factual
setting, viz.: the wiie visited the victim at her home on the pretext
of inquir ing as to the whereabouts of her husband. Once inside,
she whistled for her husband and he immediately appeared at the
doorstep. The wife then suddenly pinned her "kumare" to the floor.
The husband forcefully removed the victim's skirt and panties,
removed his shorts, placed himself on top of the victim and
consummated the rapeuln the more rec3ntPeople vs. Saba, the
accused married couple victim ized a fourteen (14) year-old
epileptic who stayed at their home for treatment by the wife who
was a reputed healer. On the p text of conducting a healing
session, the wife ordered the victim to lie down on the floor then
pinned the victim's hands to the floor and covered her mouth while
her husband removed his pants and briefs and the victim's pantief'.
and raped the young girl. These two cases show not only the
podsibility but the reality of rape committed by a woman together
with ·a man. (People us. dela Torre, G.R. No. 121213, 13 January
2004, 419 SCRA 18)
Rape may now be commlttud in any of the followlng manner:
An act of sexual assault under the second paragraph of the ar
ticle can be committed by any person who, under the
circumstances mentioned in the first paragraph of the law, inserts
his penis into the mouth or anal orifice, or any instrument or
object into the genital or anal orifice, of another person. The law,
unlike rape under the first paragraph of Article 2 6-A of the Code,
has not made any distinction
on the sex of either the offender or the victim. (Ordinario vs; People;
G.R. Nos. 155415, 20 May 2004, 428 SCRA 778)
Inserting a finger inside the genital of a woman is rape
through sexual assault within the context of paragraph 2 of Ar
ticle 266-A of the Revised Penal Code. (People vs. Soriano, G.R.
Nos. 142779-95, 29 August 2002, 388 SCRA 140)
Appellant maintains that the test of moral certainty and 'stan
dard of proof beyond reasonable doubt required for conviction in

134 TiPDATES IN CRIMINAL LAW
criminal cases have not been satisfactorily attained. He argues that
assuming he is found guilty, the evidence adduced by the prosecu·
tion only establishes that he inserted his finger in ,Joylene's
vagina, an offerise which falls squarely under paragraph 2 of
Article 266-A of the Revised Penal Code. He contends that the
dealh penalty im posed upon him should be reduced accordingly
pursu,mt to Article 266-:S which provides that "object rape" under
para raph 2 of Ar· tide 266-A shall be punished by prision may0r.
XXX
. The foregoing testimonies presented by the prosecution, estab
ltshed that appellant tried to insert his penis into Joylene's private
parts. He was unsuccessful so he inserted his finger instead. This
shows that appellant is guilty only of attempted rape, and not con·
summated rape as found by the trial court and the Court of Appeals.
XXX
Appellant's act would have constituted wnsummaled rape
through sexual assault under Republic Act No. 8353 or the Anti
Rape Law of 1997. However, since the offense occurred 0n December
28, 1996 or prior to the efTectivity of the Anti-Rape Law of 1997, the
same finds no application in this case. (People vs. Miranda, G.R No.
169078, 10 A1arch 2006, 484 SCRA 55.5)
Degree of resistance by the victim.
Any physical overt act manifesting resistance against the
rape in any degree from the victim is admissible as evidence of
lack of consent. Tenacious resistance. however, is not required.
Neither is a determined and persistent physical struggle on the part
of the vic tim necessary. (People us. Gondaway, G.R. Nos. 144344-
68, 23 July 2002, 385 SCRA 155)
. The seeming lack of an effective struggle did not mean that
appellant's sexual advances did not constitute rape. Physical resis
tance need not be proved in rape when intimidation is exercised
upon the victim and she submits herself, against her will, to the
rapist's advances because of fear for her life and personal safety. It
suffices that the intimidation producmi fem· in the mind of the
vie• tim that if she did not submit to the bestial demands of the
accused, something worse would befall her at the time she was being
mo· lested. (People us. Gutierrez, G.R. Nos. 147656-58, 09 May 2003,
389
SCRA.268)
18'6 UPDATES IN CRIMINAL LAW
SPECIFIC CRn1ES 136
In incestuous rape of a minor, actual force or intimidation need
not even be employzd where the overpowering moral influence of
appellant, who is private complainant's father, would·suffice.,The
moral and physical dominion of the father is sufficient to cow the
victim into submission to his beastly desires. (People vs. Dimaano,
G.R. No. 168168, 14 September 2005, 469 SCRA 647)
"Sweetheart" defense.
In rape, the "sweetheart" defense must be proven by compel
ling evidence: first, that the accused and the victim were
loyers;'.and., second, that she consented to the alleged sexual
relations. The sec ond is as important as the first, because this Court
has held roften enough that love is not a license for lust. xxx.
BesidE.s, e en if he and the victim were really, swe th t ,'.
such a fact would not necessarily establish consent.. It has.been.
consistently ruled that a love affair does not justify rape, f r the
beloved cannot be sexually violated against her will." The fact that a
woman voluntarily goes out on a date with her lover does not give
him unbrid:ed license to have sex with her against her will'. Thia
truism was reiterated in People vs. Dreu, from which we quote: ..
"A sweetheart cannot be forced to have sex against her will.·
Definitely, a man cannot demand sexual gratification from a
fiancee and, worse, employ violence upon her on the pretext of
love. Love is not a license for lust." (People vs. Bautista, G.R. No.
140278,· 03 June 2004, 430 SCRA 469)
Moral character of victim is lmmaterlal.
Suffice it to state that such debasement of her charact<:lr
does not necessarily cast doubt on her credibility, nor does it
negate the existence of rape. It is a well-established rule that in the
prosecu tion and conviction of an accused for rape, the victim's
moral charac ter is immatedal, there being absolutely no nexus it
between and the odious deed £om.mitted. Even a prostitute or a
woman of loose morals can be tpe victim of rape, for she can stilla
refuse' man's lustful advances. (People us. Agsaooy, G.R. Nos.
132125-26, 03 June 2004, 430 SCRA 450)
Forclble abduction may be absorbed In rape.
(A}ccused-appellant could only be convicted for the crime of
rnpe. in t.E>nd oft.ht> <'ompl('x crimt> of forclhl(l nhduction with rnpfl.
Indeed, it would appear from the records that the mair objectiv of
the accused when the victim was taken to the house of Mila Salva':1-
on was to rape her. Hence, forcible abduction is absorbed in the cnme
 ofrape. (People vs. Lining, G.R. No. 138401, 11 July 2002, 384
SCRA
427)
CRIMES AGAINST PERSONAL LIBERTY
AND SECURITY
Essence of kidnapping and serious Illegal detention.
The essence of the crime of kidnapping and serious illegal
de tention as defined and penalized in Article 267 of the Revised
Penal Code is the actual deprivation of the victim's liberty
coupled with
· proo beyond reasonable doubt of an intent o the accused .to effect
the same. It is thus essential that the followmg be established ? Revised Penal Code. (People vs. Cortez, G.R. Nos. 131619-20, 01
the prosecution: (1) the offender is a private individu.al; (2) he
kid naps or detains another, or in any other manner deprives th
latter of his liberty; (3) the act of detention or kidnapping must be
llegal; and (4) in the commission of the offense, any of the four
circum
SPECIFIC CRIMES 137
explained that she did not attempt to leave the premises for fear
that the appellants would make good their threats to kill her should
she do so. Her fear is not bi:i.seless as the appellants knew where
she· resided and they had earlier announced that their intention in
look ing for Lolita's cousin wa1,1 to kill him on sight. Certainly,
fe,ar has. been known to render people immobile. Indeed, appeals
to the fears· of an individual, such as by threats to kill or similar
threats, are equivalent to the use of actual force or violence which
is one of the elements of the crime of kidnapping under Article
267(3) of the·
February 2000, 324 SCRA 335)
In cases of kidnapping, if the person detained is a child, the
question is whether thBre was actual deprivation of th.e child's
lib erty, and whether it was. the intention of the accused to
deprive.the
parents of the custody of the child. (People vs. Suriaga ' a:R. No.
123779, 17 April 2002, 381 SCRA 159) .

If kidnapping is done for the purpose of extorting ransom; any of

the four circumstances under Art. 267 is not necessary. ··,
stances enumerated in Article 267 be present, namely: (a) that the ' . ' ' . ' ' .. \ - . ''

kidnapping or detention lasts for more than five (5) days; or (b)! But if the kidnapping was done for purpose of extorting
the
hat
it is committed simulating public authority; or Cc) that any Pablo Torra], she
senous physical injuries are inflicted upon the person kidnapped
or e tained or threats to kill him are made; or (d) that the person
kid napped or detained is a minor, female, or a public officer.
(People vs. Rodrigo, G.R. No. 173022, 23 January 2007; People
vs. Silongan,
G.R. No. 137182, 24 April 2003, 401 SCRA 459; People vs.
Enriquez,
G.R. No. 158797, 29 July 2005, 465 SCRA 407)

Intent to deprive victim of his liberty has to be established.

For the crime of kidnapping to prosper, the intent of the ac
cused to deprive the victim of his liberty, in any manner, has to
be established by indubitable proof. However, it is not ne essary
that the offended party be kept within an enclosure t re trict her
ref;· dom of locomotion. In the case at bar, the depnvat10n of
Lohtas liberty was amply established by evidence. When the
appellants failed to find Lolita's cousin, they forcibly dragged her
to the moun· tains and kept her in the house of the Torrals.
Ap;dlant Cortez even bound her hands with a belt. Although at
the time of the res cue, she was found outside the house talking to
ransom, the fourth element is no longer necessary. (People vs.
Silongan, G.R. No. 137182. 24April 2003, 401 SCRA 459)

Victim need not. e placed In an enclosure.

. 1 f' 1 .•• ;!
Sweet was deprived of her liberty. True, she was·treated
well.1 However, there is still kidnapping. For there to he
kidnapping, it is not neceosary that the victim be placed in an
enclosure.,It is enough that the victim is restrained from going
home. Given Sweet's tender age, when Jocelyn left her in Niu's
house, at a distant place in Tondo, Manila, unknown to her, she
deprived Sweet of the freedom to leave the house at will. It is not
necessary that the detention be prolonged. (People vs. Acbangin,
G.R. Ne. 117216, 09 August 2000, 887 8CRA. 454)
The duration of the detention even if only for a few hours does
not alter the nature of th" crime committed. The crime of kidnap·
ping is committed by depriving the victim of liberty whether he is
placed in an enclosure or simply restrained from going home. As
squarely expr0ssed in Article 267, above-quoted the penalty of
death is imposabk where the detention is committed for the
purpose of
138 UPDATES IN CRIMINAL LAW
extorting ransom, and the duration of the detention is not material.
(People us. Pauillare, G.R. No. 129970, 05 April 200V, 329 SCRA
684)
Meaning of ransom.
.The corpus delicti in the crime of kidnapping for ransom is the
fact that an individual has been in any manner deprived of his
liberty for the purpose of extorting ransom from the victim or any
other person. Whether or not the ransom is actually paid to or re
ceived by the perpetrators is ofno moment. In People us. Salimbago,
the Court stressed: "x x x No specific form of ransom is required to
consummate the felony of kidnapping for ransom so long as it was
intended as a bargaining chip in exchange for the victim's freedom.
In municipal criminal law, ransom refers to the money, price or
consideration paid or demanded for redemption of a captured per son
or persons, a payment that releases from captivity." (People us.
Castro, G.R. No. 132726, 23 July 2002, 385 SCRA 24) It may include
benefits.not necessarily pecuniary which may accrue to the kidnap·
per as a condition for the victim's release. (People us. Ejandra, G.R.
No. 134203, 27 May 2004, 429 SCRA 364)
The purpose of the offender in extorting ransom is a qualifying
circumstance which may be proved by words or ovei t acts before,
during or after the kidnapping and detention of the victim. Neither
actual demand for nor actual payment of ransom is necessary for
the crime tobe committed. (People us. Martinez, G.R. No. 137519, 16
March 2004, 425 SCRA 528)
Kidnapping and failure to return a minor.
Kidnapping and failure to return a minor under Article 270
of the Revised Penal Code has two essential elements, namely: (1)
the offender is entrusted with the custody of a minor person: and
(2) the offender deliberately fails to restore the said minor to his
parents or guardians. What is actually being punished is not the
kidnapping of the minor but rather the deliberate failure of the
custodian of the minor to restore the latter to his parents or
guardians. The word deliberate as used in Article 270 must imply
something more than mere negligence - it must be premeditated,
headstrong, foolishly daring or intentionally and maliciom,ly
wrong. (People i;s. Pastrana,
G.R. No. 143644, 14 August 2002, 387 SCRA 342; People us.
Bernardo,
G.R. No. 144316.. 11 ,\forch 2002, 378 SCRA 708)
SPECIFIC CRIMES 139
Trespass to dwelling.
The petitioner argues that the Court of Appeals committed :
reversible error in susti>.ining the lower court, since' in.the
ptpceeci-·
ings below, there was a grave :misapprehension of facts by both the·
MeTC and RTC in finding that he committed trespass to dwelling
despite the glaring proof that his entry wasjustifiable under para
graph 4, Article 11 of the Revised Penal Code -tci prevent an
immi nent danger to property. He stresses that while he did enter
the unit, he did so with the aid of barangay officers and.for the
sole purpose of turning off the faucet that was causing the
flooding of the
L . .··
Howevt3r, still incumbent upon the prosecution. is to establi h
the criminal intent and the guilt of the accused beyond reasonable
doubt. Criminal cases rise and fall on the strength of the evidence of
the prosecution and not the weakness of the evidence of the defense
or the lack of it. In the prosecution for trespass, the material fact or
circumstance to be conside1·ed is the occurrence of the trespass. The
gravamen of the crime is violation of possession or the fact of having
caused injury to the right of the possession. xxx.
What remains now is the issue of whether the entry of peti
tioner Marzalado, Jr., was legally justified. We rule that it is, based
on the circumstances of this case. ' · ·
certified by Baranga.y Lupon Secretary Romulo E. Ragaya,
the unit rented by Albano was "forcibly opened by the owner be
cause of the strong water pressure coming out of the faucet:.. " As
Albano herself admitted. she and her children already left; the unit
when the electricity supply was cut off in the month of September.
Hence, nobody was left to attend to the unit, except during some
nights when Albano's maid slept in the unit. Clearly, Marzalado, Jr.,
acted for the justified purpose ofavoiding further flooding-and dam•
age to his mother's property caused by the open faucet. No criminal
intent could be clearly imputed to petitioner for the remedial action
he had take!l. There was an exigency that had to be addressed to
avoid damage to the !eased unit. There is nothing culpable concern"
ing Marzalado, Jr.'s judgment call to enter the unit and tum off the
faucet instead of closing the inlet valve as suggested by the OSG·.
Thus, we tii:d the evidence on record insufficient to hold. p ti
tioner guilty of the offense charged. Palpable doubt exists in our
mind as to the guilt of petitioner. In our view, the Court of Appeals
erred in afiirming the Decision of the Regional Trial Court and of
UPDATES IN CRIMINAL LAW
140

the Metropolitan Trial Court when it ound petit!on r guilty of Quali·
tied Trespass to Dwelling. In a situation o at l>1gu!ty, where the act
of the accused permits of two possible s1gn1fication, on culpable d
another innocent the ambiguity should be resolved 1 favor of
: accused. The evid nce in this case simply fails to convince u of
his guilt beyond reasonable doubt. (Marzalado vs. People, G.R. o.
152997, 10 November 2004, 441 SCRA 595)
Grave coercion.
Fi t,that the offender has prevented another fro:n doi!-1g
some thing not prohibited by law, or that he has compelled him to
:o something against his will, be it right o! wrong; .second, that
te.
revention or compulsion is effected by violence, e th r Y tenal
tree or such display of force as would produce i t11nidat1on and
control over the will of the offended party; and third, that t e of
fender who has restrained the will and liberty of another did so
without any right or authority of law. (People vs. Santos, G.R. No.
140074, 27 February 2002, 378 SCRA 157)
Unjust vexation.
Article 287 of the Revised Penal Code reads:
"Art. 287. Light coercions. - Any perso , who Y
means of violence, shall seize anything belongmg to his
debtor for the purpose of applying the same to the pay
ment of the debt, shall suffer the pena ty of arresto
mayor in its minimum period and a fine equivalent to
the value of the thing, but in no case less than 75 pesos.
Any other coercions or unjust vexations shall be pun
ished by arre8to menor or a fme ranging from5 to 200
pesos, or both."
The second paragraph of the Article is broad enough to inclu e
cJ
an human conduct which, although not productive of so e physi or
material harm, could unjustifiably annoy or ex an innocent erson.
t
Compulsion or restraint need not be lleg d in the Info a for the crime
of unjust vexation may exist without compulsion oiistraint.
However, in unjust vexation, being a fe ony. by dolod.
malice is an inherent element of the crime. Good fa1t isa goo
defense to a charge for unjust vexation beca se goo faith nega:
malice. The paramount question to be considered is whether
142 UPDATES IN CRIMINAL LAW
.Malou, after the incident in question, cried while relating to er
classmates what she perceived to be a sexual attack and the fact
SPECIFIC CRIMES 141
offender's act caused annoyance, irritation, torment, distress or dis
turbance to the mind of the person to whom it is directed. The main
purpose of the law penalizing coercion and unjust vexation is. pre
cisely to enforce the principle that no person may take the law into
his hands and that our government is one of law, not of men..It is
unlawful for any person to take into his own hands the administra
tion ofjustiro. (Maderazo 118, People, G.R. No•.165 5, 26 September
2006)
Petitioner admitted having ordered the cutting of the electric,
water and tehiphone lines of complainant's business establishment
because the lines crossed his property line. He failed, however,
to show evidenr-e that he had the necessary permit or
authorization to
relocate the lines. Also, he timed the interruption of electric; water
and telephone services during peak hours of the operation of busi
ness of the complainant. Thus, petitioner's· act unjustly ·annoyed or
vexed the complainant. Consequently, petitiorier Ong Chiu Kwan is
liable for unjust vexation. (Ong Chiu. Kwan 118. Court 'of Appeals,
G.R. No. 113006, 23 November 2000, 345 SCRA 586) ..
The information filed against petitioner contained an allega tion
that he forcefully covered the face of Malou with a piece of cloth
soaked in chemical. And during t!1e trial, Malou testified about the
pressing against her face of the chemical-soaked cloth and having
struggled after petitior,er held her tightly and pinned her down.
Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed·, they constitute un
just vexation punishable as light coercion under the second' para
graph of Article 287 of the Revised Penal Code. In·the context of
the constitutional provision assuring an accused of a crime the
rigl:>.t to
be informed of the nature and cause of the accusation, it cannot be
said that petitioner was kept in the dark of the inculpatory acts for
which he was proceeded against. To be sure, the information against
petitioner contains sufficient details to enable him to make his de
fense. As aptly observed by then Justice Ramon C. Aquino, there is
no need to allege malice, restraint or compulsion in an information
.for unjust vexation. As it were, unjust vexation exists even without
the element of restraint or compulsion for the reason that this term is
broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy
or irritate an innocent person. The paramount question is whether the
offender's act causes annoyance, irritation, tormei;it, distress or
disturbance to the mind of the person to whom it is directed. Tl>.at
that shefiled a case for attempted rape proved beyond cavil that
she was disturbed, if not distressed by the acts of petitioner.
(Baleros vs. People, G.R. No. 138033, 22 February 2006, 483
SCRA 10)

CRIMES AGAINST PROPERTY
In robbery, intent to gain is presumed from the unlawful taking of
personal property belonging to another.
Animus lucrandi, or intent to gain, is an internal act which
can be established through the overt acts of the offender. Although
proof as to motive for the crime is essential when the evidenc ?f
the theft is circumstantial, the intent to gain or animus /w:randi 1s
the usual motive to be presumed from all furtive taking of useful
prop· erty appertaining to another, unless special circumstances
reveala different intent on the part of the perpetrator. xxx (T)he
intent to gain may be presumed from the proven unlawful taking.
(People us. Del Rosario, C.R. No. 13 1086 1 20 June 2001, 3.59 SCRA
ffi6)
Although proof of motive for the crime is essent al when the
evidence of the robbery is circumstantial, intent to g:-un or ammuB
lucrandi may be presumed from the furtive .taking of useful prop·
erty pertaining to another, unless special circumstances reveala.
different intent on the part of the perpetrator. The intent to gam
may be presumed from the proven unlawful taking. Tn. the case at
bar, the act of taking the victim's wristwatch by one .of the ccused
Cergontes while accused-appellant Reyes poked a kmfe behmd
hun sufficiently gave rise to the presumption. (People vs. Reyes,
G.R. No.135682, 26 March 2003, 399 SCRA 528)
The person divested of personal property need not be the
owner thereof.
In robbery by the taking of property through _intimi_dation or
violence it is not necessary that the person unlawf..11ly divested of
the per;onal property be the owner thereof. Artie!,, 293 of the Re
vised Penal Code employs the phrase ''belonging tu another" and
this has been interpreted to merely require that the property taken
does not belong to the offender. Actual possession o the property by
the person dispossessed thereof suffices. In fact, 1t has been held
that robbery may be committed against a bailee ora person who
SPECIFIC CRIMES 143
himi;elf has stolen it. So long as there is apoderamiento of personal
property from anotlwr a1,·ainst the latter's will through violence or
intimidation, with animo de lucro, robbery is the offense imputable
to the offender. If the victim is killed on the occasion or by reason of
the robbery, the offense is converted into the composite crime of
robbery with homicide. (People us. Reyes, G.R. No.135682, 26 March
2003. ,'"!99 SCRA 52R)
Not a case of robbery if no violence or intimidation was exerted
against or on th.a victim.
On the trial court's sentence of robbery in Criminal Case No. Q-
96-64618, we agree with the recommendation of the Office of the
Solicitor Ge:1eral that Edgar Suela should be acquitted. The OSG
explained:
"Simple robbery il:! committed by means of violence
against or intimidation of persons as distinguished from .
the use of force upon things, but the extent of the violence;,...
or intfr1idation does not fall under pars. 1 to 4 of Article
294 (Revised Penal Code) [p. 175, Criminal Law, Book II,
Vol. IV, Ambrosio Padilla, 1990].
"Unfortunately, in the case at bar, the prosecution
failed to prove that appellant Edgar Suela employed
force or intimidation on private complainant Rosas by
instill ing fear in his mind so as to compel the latter to
cough out the amount of P200,000.00. Instead, what was
established was that he had agreed to give the
P200,000.00 in ex· change for information regarding the
identity and where abouts of those who robbed him and
killed his friend (TSN, November 4, 1996, p. 7; TSN,
November 5, 1996, pp. 4-9). There was no showing that
appellant Edgar Suela had exerted intimidation on him
so as to leave him no choice but to give the money.
Instead, what is clear was that the giving of the money
was done not out of fear but because it was a choice
private complainant opted because he wanted to get the
information being offered to him for the consideration of
P200,000.00 (TSN, November 4, 1996, pp. 5-17; ibid.,
Decision, p. 15). In fact, the money was delivered not
due to fear but for the purpose of possibly having a lead
in solving the case and to possibly bring the culprit to
justice (ibid.). As such, the elements of simple
 UPDATES IN CRIMINAL LAW
144
robbery have not been established in the instant case,
hence,·appellant Edgar Suela hould be acquitterl of that
· charge:" (People vs. Suela, G;R. Nos. 133570-71, 15 Janu-
ary 2002, 373 SCRA 163)
Essentlal elements of robbery with homicide.
To sustain a conviction of the accused for robbery with homi
cide, the prosecution was burdened to prove the essen::,ial elements
of the crime, viz.: (a) the taking of personal property with the use of
violence or intimidation against a person; (b) the property thus taken
belongs to another; (c) the taking is characterized by intent to gain
or animus lucrandi; and (d) on the occasion of the robbery or by
reason thereof, the crime of homicide, which is therein used ina
generic sense, was committed. (People vs. Reyes, G.R. No. 153119, 13
April 2004, 427 SCRA 28)
The accused must be shown to have the principal purpose of
committing robbery, the homicide being committed either by
reason of or on occasion of the robbery. The intent to rob must
precede the taking of human life. So long as the intention of the
felons was to rob the killing may occur before, during or after the
robbery. The ori al design must have been robbery, and the homic
de, even i it precedes or is subsequent to the robbery, must have a
direct relation to, or must be perpetrated with a view to
consummate the robbery. The taking of the property should not be
merely an afterthought which arose subsequently to the killing.
(People vs: Lara, G.R. No.
171449, 23 October 2006)
Intent to take personal property belonging to another with intent
to gain must precede the killing.
In robbery with homicide, the original criminal design of the
malefactor is to commit robbery, with homicide perpetrated on the
occasion or by reason of the robbery. The intenl to commit robbery
must precede the taking of human life. The homicide may take place
before, during or after the robbery. It is only the result obtained,
without reference or distinction as to the circumi,tnnces, causes,
modes or persons intervening in the commission of the crime that
has to be taken into consideration. There is no such felony of rob
berv with homicide through reckless imprudence or simple n,!gli
ge;ce. The constitutive elements of the crime, namely, robbery and
homicide, must be consummated. (People vs. Herna.ndez, G.R. No.
139697, 15 ,June 2004, 432 SCRA 104)
SPECIFIC CRIMES 145
accused must be shown to have the principal,purpose of
comm1ttmg bbery, the homicide being committed either by.reason
of or on occasion of the robbery. The homicide may precede
robbery or may occur thereafter. What is essential is that there is a
nexus an intrinsic connection between the ·robbery and ithe
killing. Th
latter may be done prior to or subsequent to the former.' How
ver. t e intent to commit robbery must precede the
\iictini'
taking of the
hfe. Furthermore, the constituted crimes of robbery and homicide
must be consummated. (People vs. Reyes, G.R; No. 153119, 13 April
2004, 427 SCRA 28) ·,·· '· ··
A conviction for robbery with homicide requires e tude th t
the r b?ery. is the main P!,lrpoae and objective of the malefactor and
the killmg 1a merely incidental to the robbery. The animo lucrandi
must precede the killing. If the original design does not comprehend
robbery, but robb ry !ollows the homicide either as an afterthought
or .merely as an mcident of the homicide, then the malefact:or is
guilty of two separate crimes, that of homicide or murder and rob
bery, and not of the special complex crime of robbery with homicide
a single and indivisible offense. It is the intent of th actor to rob
which supplies the conn0ction between the homicide and the rob
bery necessary to constitute the complex crime of robbery with ho·
micide. ·
However, the law does not require that the sole.motive of the
male actor is robbery and commits homicide. by reason or on·the
occasion thereo£ In People vs. Ti,dula, et al., this Court ruled that
even if the ::nalefactor intends to kill and rob another. it does not
prec u.de his conviction for the special complex crime of:0bbery with
homicide. In People vs. Damaso, this Court held that the fact that
th? intent of the felons was tempered with a desire also to avenge
gnevances against the victim killed, does not negate the conviction
of the accus d and punishment for robbery with homicid9.
A conviction for robbery vrith homicide is proper even if the
homicide is committed before, during or after the commission of the
robbery. The homicide may be committed by the actor at the spur of
t e moment or by mere accident. Even if two or more persons are
killed and a woman is raped and physical injuries are inflicted on
anot rnr, on the oc asiun or by reason of robbery, there is only one
pecial complex cnme of robbery with homicide. What is primordial
1s the result obLained without reference or distinction as to the cir
cumstances, cause, moues or persons intervening in the commission
of the crime.

146 UPDATES IN CRIMINAL LAW
It should therefore be concretdy established that robbery wa,;
the principal purpose of the accused and that homicide was
commit ted either by reason of or on the occasion of such robbery.
xxx.
The records are bereft of any evidence to prove that the aspor
tation ofDemarayo's service firearm was the prime motive of accused
appellants. Although it may be true '.-.hat they were seen grabbing
the gun from the victim as the latter was lying prone on the ground,
it could be possible that it was done to prevent him from retaliating
as he was still conscious after sustaining the first gunshot wound.
The taking of the gun might have been an afterthought and not the
real purpose of the crime. It can therefore be seen that the prosecu
tion failed to establish convincingly that the homicide was commit ted
for the purpose or on the occasion of robbing the victim. As such,
accused-appellants should properly be convicted of the separate of
fenses of Homicide and Theft, which were both duly proved. (Peopie
vs. Milliam, G.R. No. 129071, 31 January 2000, 324 SCRA 155)
"By reason or on occasion of."
A homicide is considered as having been committed on the
occasion or by reason of the robbery when the motive of the offender
in killing the victim is to deprive the latter of his property, to elimi·
nate an obstacle to the crime, to protect his possession of the loot, to
eliminate witnesses, to prevent his being apprehended or to insure
his escape from the scene of the crime. (People vs. Reyes, G.R. No.
153119, 13 April 2004, 427 SCRA. 28)
In charging robbery with homicide, the on us probandi is to
establish: (a) the taking of personal property with th use of vio
lence or intimidation against a person; (b) the property belongs to
another; (c) the taking is characterized by animus lucrandi; (d) on
the occasion of the robbery or by reason thereof, the crime of homi
cide, which is used in the generic sense, has been committed. (People
vs. Rania, G.R. No. 129113, 17 September 2002, 389 SCRA 45;
People
vs. Gonzales, G.R. No. 142932, 29 May 2002, 382 SCRA 694) In
robbery, the amount of money and the number of personal belong
ings taken are inconsequential in proving the commission of the
crime, as what is vital is that thetaking and the intent to gain have
been proved. (People vs. Carino, G.R. No. 141737, 20 March
2002,
393 SCRA 595)
The phrase "by reason" covers homicide commit.Led before or
after the taking of personal property of another, as long as the mo-
SPECIFIC CRIMES 147
fr,:e of the ? ender in killing a person before the robbery is to de prive
he v1ct.nr: ?f is ersonal property which is sought 'to be ac
complished by ehmmatmg an obstacle or opposition or in killing a
person fter the robbery to do away with a witness or t-0 defend the
P.ossess10;1. tJf the .stolen property: Thus, it matters not thii't the vic
ti.m .wa killed pnor to the taking of the personal propertiei{ofthe
victim. (People vs. Torres, G.R. No. 130661 27 June 2001 ·959 SCRA
767,1 ' J.it,'),',
. In rob ery wit homicide, what is essential is that there be a
d7r ct relation, an mtimate connection between robbery ·arid the
killing, whether he latter be prior or subsequent to the forin i'· or
whe_ther both cnrne be committed at the same time." (Peo le·' vs
Maxwn, G.R. No. 13S145, 19 July 2001, 361 SCRA 414) It is neces
sary that th?re must have been an intent on the part of the riffend .
ers t-0 comm1t_robbery from the.outset and, on occasion or by1 rea on
thereof a kilhng takes place. The original design must have been
robbery, and the homic de, even i it precedes br is subsequent to th
rob.bery, must have a direct relation to, or must be perpetrated with
a v1ew to consummate the robbery. The taking of the property sh6uld
ot be merely an aftc:thought which arose subsequent to the kiU mg.
(People v.::. ConseJero, G.R. No. 118334 20 Februa""' 2001 352
SCRA 276) _ ' , ., ''
. In thi sr cie of offense, the phrase "by reason" covers homi-
cide committed before or after the taking of personal property of
anot er, as long as .the moti:e of the offender (in killing a person
befo1e he robbery) 1s to depnve the victim of his personal property
wlnch_ 1.s sought to be accomplished by eliminating an obstacle or
oppo1:,1t1on, or to do away with a witness or to defend the possession
of stolen property.
. Obviously, the killing of Carlos Deveza and the shooting of
Wilfredo Dazo were perpetrated by reason of or on the
occasion of
the robbery. Thus, t e physical injuries sustained by Dazo are deemed
a.bsorbed m the cmne of robbery with homicide. Taken in its·en
tirety, the overt acts of accused-appellant Legaspi prove that the
lone motive for the killing of Deveza and the shooting of Dazo was
for the purpose of consummating and ensuring·the suece s of the
robbery. '
In the final analysis, the shooting of Dazo was do e in1 order
to rlof?nd tho po11111,11Hion of t,ho stolen proporty, It wne therefore
an act which tended to insure the successful termination of the
robbery
148 UPDATES IN CRIMINAL LAW
and secure to the robber the possession and enjoyment of the goods
taken. (People us. Legaspi, G.R. No. 117802, 27April 2000, 331
SCRA 95)
Where homicide is perpetrated with a view to rob, the offense
is robpecy 'ith homicide. But if robbery was an afterthought and a
minor incident in the homicide, there are two distinct offenses.
(People vs. Temanel, G.R. Nos. 97138·39, 28 September 2000, 341
SCRA 319)
Appellant likewise argues that he should have been charged
with the crime of robbery with homicide instead of two (2) counts of
murder and one (1) count of theft. We do not agree. The special
complex crime of robbery with homicide is primarily a crime against
property, and not against persons, homicide being am .1re incident of
the robbery with the latter being the main purpose and object of the
criminal. (People vs. Navales, 266 SCRA 569 [1997}) In the case at
bar, the evidence on record shows that appellant stole the camera
and cash only as an afterthought. His primary purpose was to kill
Laura and her 5-year old daughter, Lara, after he panicked. Hence,
the prosecution was correct when it did not charge appe1lant with
the special complex crime of robbery with homicide. (People us.
Cruz, G.R. No. 127789, 03 April 2002, 380 SCRA 13)
Homicides or murders and physical injuries, irrespective of their
numbers, committed on the occasion or by reason of the robbery
are merged in the composite crime of robbery with homicide.
The crime committed is the special complex crime of robbery
with homicide defined and penalized in Article 294 uf the Revised
Penal Code. The trial court correctly considered the crime as rob
bery with homicide and not"robbery with triple homicide" as
charged in the information. The term "homicide" in Article 294(1)
is used in its generic sense, embracing not only the act which
results in death but also all other acts producing anything short of
death. Neither is the nature of the offense altered by th number of
killings in connec tion with the robbery. (People vs. Zuela, G.R.
No. 112177, 28 Janu ary 2000, 323 SCRA 589) Stated differently,
the horn:cides or mur ders and physical injuries, irrespective of
their numbers, committed on the occasion or by reason of the
robbery are merged in the com posite crime of robbery with
homicide. (People vs. Dinamling, G.R. No. 134605, 12 March
2002, 379 SCRA 107)
SPECIFIC CRIMES 149
Robbery with homicide is committed even if the victim of the
rob bery is different from the victim of homicide. ' -"c
Robbery with homicide is committed even if the victim of the
robbery is different from the victim of homicide, as long as the homi·
cide is committed by reason or on the occasion of the robbery. It is
not even necessary that the victim of the robbery is the very person
the malefactor intended to rob. For the conviction of the special
complex. crime, the robbery itself must be proved as conclusively as
any other element of the crime. (People vs. Daniela, G.R. No.139230,
24 April 2003, 401 SCRA 519)
If two or more malefactors conspired to commit robbery, hat
would be their criminal liability with respect to the homicide com
mitted on the o ,,casion thereof by anyone of them?
.-. '
In a long line of cases, this Court has ruled that whenever
homicide is committed as a consequence or on the occasion of the
robbery, all those who took part as principals in the robbery will also
be held guilty as principals in the special complex crime of robbery
with homicide although they did not take part in the homicide,
unless it is clearly shown that they endeavored to prevent the homi
cide. (People vs. Napalit, G..R. No. 142919, 04 February 2003, 396
SCRA 687)
(W)henever a homicide is committed as a consequence of or on
the occasion of a robbery, all those who took part in the asportation
will be held guilty of the special complex crime of robbery with
homicide, even if they did not all actually take part in the homicide,
unless it appears that those who did not do so endeavored to
prevent the killing. (People vs. Lago, G.R. No. 121272, 06 June
2001, .'358 SCRA 550; People vs. Liad, G.R. Nos. 133815-17, 22
March
2001, 855 SCRA 1]: People vs. Pedroso., G.R. No. 125128, 19 ,July
2000, 336 SCRA 163)
If robbery with· homicide Is accompanied by rape, the latter of
fense shall be ,rettted as an aggravating circumstance.
Parenthetically, we note that the trial court inaccurately
desig· nated the crime committ.ed as "robbery with homicide and
rape." When the special complex crime of robbery with homicide
is accom panied by another offense like rape or intentional
mutilation, such additional offense is treated as an aggravating
circumstance which
150 UPDATES IN CRIMINAL LAW SPECIFIC CRIMES 151

would result in the imposition of the maximum penalty of death.
(Pe'/Jple us. Fabon, G.R. No. 133226, 16 March 2000, 328 SCRA
302)
Qualifying circumstances attendant to the killing may be treated
as generic aggravating circumstances.
When the killing is committed by reason or on t.he occasion
of the robbery, the qualifying circumstances attendant to the
killing would be considered as generic aggravating circumstunces.
(People us. Montinola, G.R. Nos. 131856-57, 09 July 2001, 360
SCRA 631)
Elements of robbery with rape.
To sustain a conviction for robbery with rape, it is
imperative that the robbery itself must be conclusively
established. To support a conviction therefor, proof of the rape
alone is not sufficient. Rob bery with rape occurs when the
following elements are present: (1) personal property is taken with
violence or intimidation against persons, (2) the property taken
belongs to another, (3) the taking is done with animo lucrandi, and
(4) the robbery is accompanied by rape. (People us. Domingo, G.R.
No. 143660, 05 June 2002, 383 SCRA
43)
original plan was to commit rape, but the accused aft.er
committing the rape also committed robbery when the opportunity
presented itself, the robbery should be viewed as a separate and
distinct crime.
A painstaking assessment of the evidence in this ·case··con
vinces us that ROGELIO committed two separate offenses of rape
and theft, and not the special complex crime of robbery with rape.
Immediate1y after ROGELIO put his arms around MARITES and
directed the knife at her neck, he dragged M.ARITES to the
vacant space in ABC Commercial Complex and removed her
clothes..These acts clearly showed that ROGELIO had in mind
sexual gratifica tion. This intent was further established by the fact
that when' M.ARITES offered to give her ring to ROGELIO, the
latter did not take it and instead replied, "Mamaya na iyan"; "That
will come lat.er on because l will give it back to you but you have
to follow me first." Again, when ROGELIO removed his pants,
M.ARITES told.him to get her bag if he needed money; but
ROGELIO replied "I do not need money." After giving vent to his
lustful desire, he snatched the victim's shoulder bag, which as then
on her right foot, and then he ran away. Clearly then, the taking of
personal property waf:!·notthe original evil plan of ROGELIO. It
was an afterthought following the '·;, ; . '
rape. ·'·l{'

In robbery with rape, intent to take personal property belonging Significantly, the constitutive element of violence or intimida
to
another must precede the rape. the rape. If the
In the special complex crime of robbery with rape, the true
intent of the accused must first be determined, because their intent
determines the offense they committed. This felony contemplates
a situation where the original intent of the accused was to take,
with intent to gain, personal property belonging to another; and
rape is committed on the occasion thereof or as an accompanying
crime. In other words, the offenders had an intent to take personal
property belonging to another, and such intent preceded the rape.
(People us. Domingo, G.R. No. 143660, 05 June 2002, 383 SCRA
43)
The special complex crime of robbery with rape defined in
.Ar ticle 293 in relation to paragraph 2 of Article 294 of the
Revised Penal Code, as amended, employs the clause "when the
robbery shall have been accompanied with rape." In other words,
to be liable for such crime, the offender must have the intent to
take the per sonal property of another under circumstances that
makes the tak ing one of robbery, and such intent must precede
tion against persons in robbery was not present at the time.of the
snatching of the shoulder bag of M.ARITES. The force or intimida•
tion exerted by .ROGELIO against the victim was for a reason for,:
eign to the fact·or the taking of the bag. It was for the purpose of
accomplishing his lustful desire. Hence, it cannot be considered for.
the purpose of classifying the crime as robbery. Accused-appellant
may thus be held liable for simple theft only, in addition to the crime
ofrape. (People us. Moreno, G.R. No. 140033, 25 January 2002, 374
SCRA667)
152 UPDATES IN CRIM I NAl, LAW
If two or more malefactors conspired to commit robbery, what
would be their criminal liabllity with respect to the rape
committed on the occasion thereof by anyone of them?
We have previously ruled that once conspiracy is established
between two accused in the commission of the crime ofrobbery, they
would be both equally culpable for the rape committed by one of
them on the occasion of the robbery, unless any of them proves that
SPECIFIC CRIMES 163

he endeavored to prevent the other from committing the rape. The

rule,in this jurisdiction is that whenever a rape is committed as a herein accused-appellant sb.ould not be considered as aggravating.
consequence, or on the occasion of a robbery, all those who took (People? us. Regala, G.R. No. 180508, 05 April 2000, 329 8CRA707)
part therein are Hable as principals of the crime of robbery with
rape, although not all of them took part in the rape. (People vs. Theft.
Verceles. G.R. No. 180650, 10 September 2002, 388 SCRA 515)
Based on Article 308 of the Revised Penal Code the elements
of the crime of theft may be deduced as follows: '
Multiplicity of rapes can neither affect the criminal liability of ,
the accused nor be appreciated as an aggravating 1. That there be taking of personal property;'
circumstance.
2. That said property belongs to another;
It is to be noted that the accused in this case were originally 3. That the taking be done with intent to gain;
indicted for the felony of robbery with multiple rape, a special com
plex crime punishable under Art. 294, par. 1 of the Revised Penal 4. That the taking be done without the consent of the owner;
Code and which is committed "when the robbery sh,1Jl have and
been
accompanied by rape." The said provision, needless to say, covers an "anomalous situation" where from the standpoint of the gravity
cases of multiple rapes. This is primarily due Lo the fact that
1
of the ·offense, robbery with one rape would be on the same level
the juridical concept of this crime does not limit the corn-ummation as robbery with multiple rapes. However, the remedy lies with the
of rape agajnst one single victim or to one single act, making other legislature. A penal law is liberally construed in favor of the of
rapes in excess of that number as separate, independent offense or fender and no person should be brought within its terms ifhe isnot
offenses. All the rapes are merged in the composite, intc)grated clearly made so by the statute.
whole that is robbery with rape, so long as the rapes acCJmpanied
In view of the foregoing, the additional rape committed
the robbery. It does not matter too whether the rape occurred by
before. during, or after the robbery. (People vs. Seguis, G.R. No.
135034, 18 January 2001, 349 SCRA 547)
In People vs. Regala, it was held that "there is no law
providing that the additional rape/s or homicide/s should be
considered as aggravating circumstance. The enumeration of
aggravating circum stances under Article 14 of the Revi,=;ed Penal
Code is exclusive as opposed to the enumeration in Article 13 of the
same Code regard ing mitigating circumstances where there is
specific paragraph (para graph 10) providing for analogous
circumstances." (People us. Gano, G.R. No. 134373, 28 February
2001, 353 SCRA 126)
It is true that the additional rapes (or killings in the case of
multiple homicide on the occasion of the robbery) would result in
 5. That the taking be accomplished ,vithout the use of vio-
ler.ce against or intimidation of persons or force upon things.
(R.ebucan us. People, G.R. Nn. 164545. 20 November 2006)
For one to be guilty 0ftheft, the accused must have an intent
to steal ( animus furandi) personal property, meaning the intent to
de prive an.ot'1 r of his ownership/lawful possession of personal
prop erty .wh1c mtent 1s apart from, but concurrent with the
general cnmmal mtcnt which is an essential element of a felony of
dolo (dol s malus). The animo being a state of the mind may be
proved by direct or circumstantial evidence, inclusive of the
manner and conduct of the accused before, during and after the t
king of the personal property. General criminal intent is·
presumed or inferred
from the very fact t.hat the wrongful act is done since .one is pre
sumed to have willed the natural consequences of his own acts.
Likewise, animus furandi is presumed from the taking of personal
property without the consent of the owner or lawful possessor
thereof. The same may be rebutted by the accused by evidence that he
took the personal property under a bona fide belief that he owns the
prope1ty. (Gaviola us. People, G.R. No. 163927, 17 January 2006
480 SCRA 436) . . .. .,
'
To sustain a conviction for theft, the following elements
must be present: (1) personal property of another person must be
taken without the latter's consent; (2) the act of taking the
personal prop
?rtr o.f an.othe must be done without the use of violence against
or mti mdat:on ot persons nor force upon things; and (3) there
must be an intention to gain from the taking of another person's
personal property. (Lucas vs. Court of Appeals, G.R. No. 148859,
24 Septem· ber 2002, 389 SCRA 749) · .· • , , · ,
154 UPDATES IN CRIMINAL LAW
Presumption of possession of stolen property.
\\,'
• ·1 · The fact that the stolen motorcycle was found in the possession
of accused-appellant created the disputable presumption that he
stole the same. If a person is found in possession of stolen goods
after the commission of the crime, that person is called upon to give
an explanation for his possession. (People vs. dela Cruz, G.R. No.
125936, 23 February 2000, 326 SCRA 324)
Quallfled theft.
Theft is qualified when any of the following circumstances is
present: (1) the theft is committed by a domestic servant; (2) the
theft is committed with grave abuse of confidence; (3) the
property stolen is either a motor vehicle, mail matter or large
cattle; (4) the property stolen consists of coconuts taken from the
premises of a plantation; (5) the property stolen is fish taken from
a fishpond or fishery; and (6) the property was taken on the
occasion of fire, earth quake, typhoon, volcanic eruption, or any
other calam:ity, vehicular accident or civil disturbance. (People
vs. Bustinera, G.R. No. 148233, 08 June 2004, 431 SCRA 284)
"With grave abuse of confidence."
While the mere circumstance that the petitior,er is an em
ployee or laborer of DLPC does not suffice to create the relation
of confidence and intimacy that the law requires to designate the
crime as qualified theft, it has been held that access to the place
where the taking took place or access to the stolen items changes
the complex· ion of the crime committed to that of qualified theft.
(Cariaga vs. Court of Appeals, G.R. No. 143561, 09 June 2001,
358 SCRA 583)
The crime perpetuated by appellant against his employer, the
Philippine Commercial and Industrial Bank (PCIB), is crualified
theft. Appellant could not have committed the crime hac he not been
holding the position ofLuneta Operation Officer which gave him not
only sole access to the bank vault but also control of the access of all
bank employees in that branch, except the Branch Manager, to con
fidential and highly delicate computerized security systems designed
to safeguard, among others, the integrity of telegraphic fund trans
fers and account names of bank clients. The management of the
PCIB reposed its trust and confidence in the appellant as its Luneta
Branch Operation Officer, and it was this trust and confidence which
156 UPDATES IN CRIMINAL LAW
SPECIFIC CRIMES 155
he exploited to enrich himself to the damage and prejudice ofPCIB
in the amount of P6,000,000.00. (People vs. Sison, G.R. /llo. 123183,
19 January 2000, 322 SCRA 345) · \.
Taking money in his possession by receiving teller,.of bank: is
qualified theft.
In the present case, what is involved is the possession of
money in the capa,;:ity of a bank teller. In People vs. Locson cited
above, this Court considered deposits received by a teller in behalf
of a bank as being only in the material possession of the teller.
This interpreta tion applies with equal force to money received by
a bank teller at the beginning of a business day for the purpose of
se1vicing with drawals. Such is only material possession. Juridical
possession re.· mains with the bank. In line with the reasoning of
the Court in the above-cited cases, beginning with People vs. De
Vera, if the teller appropriates the mom,y for personal gain then
the felony committed is theft and not estafa. Further, since the
teller occupies a position of confidence, and the bank places
money in the teller's possession due to the confidence reposed on
the teller, the felony of qualified theft would be committed.
(Roque vs. People, G.R. No. 138954, 25 November 2004, 444
SCRA 98)
Occupation of real property or usurpation of real rights In prop·
erty.
The requisites of usurpation are that th·e accused took
posses sion of another's real property or usurped real rights in
another's property; that the possession or usurpation was
committed with violence or intimidation and that the accused had
animo lucrandi. In order to sustain a conviction for "usurpacion
de derecho reales," the proof must show that the real property
occupied or usurped belongs, not to the occupant or usurper, but to
some third person, and that the possession of the usurper was
obtained by means of intimidation or violence done to the person
ousted of possession of the property.
More explicitly, in Castrodes vs. Cubelo, the Court stated
that the elements of the offense are:(1) occupation of another's real
prop· erty or usurpation of a real right belonging to another
person; (2) violence or intimidation should be employed in
possessing the real property or in usurping the real right; and (3)
the accused should be animated by the intent to gain. (Quinao vs.
People, G.R. No. 139603, 14 July 2000, 335 SCRA 741)
Estafa In general.
• '·,,.,J.l'or charges of estafa to prosper, the following elements
must be present:{1) that theaccused defrauded another by abuse
of confi dence or by means of deceit, and (2) that damage or
prejudice ca pable of pecuniary estimation is caused to the
offended party or third person. (People vs. Remullo, G.R. No.
124443, 06 June 2002, 383SCRA93)
Estafa through conversion or misappropriation.
The elements of estafa under Article 315, par. l(b) of the Re
vised Penal Code are the following: (1) that money, goods or other
personal property is received by the offender in trust, or on
commis sion or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same; (2)
that therebe misappropriation or conversion of such money or
property by the offender or denial on his part of such receipt; (3)
that such misap propriation or conversion or denial is to the
prejudice of another; and (4) that there is a demand made by the
offended party on the offender. (Pucay vs. People, G.R. No.
167084, 31 October 2006; Perez vs. People, G.R. No. 150443, 20
January 2006, 479 SCRA 209; Dela
Cruz vs. People, G.R. No. 150439, 29 July 2005, 465 SCRA 190)
"Convert" or "misappropriate."
The words "convert" and "misappropriate" as used in the
aforequoted law connote an act of using or disposing of another's
property as if it were one's own or of devoting it to a i:,urpose or
use different from that agreed upon. To "misappropriate" a thing
of value for one's own use or benefit, not only the conversion to
one's per sonal advantage but also every attempt to dispose of the
property of another without a right. Misappropriation or
conversion may be proved by the prosecution by direct evidence
or by circumstantial evidence. (Lee vs. People, G.R. No. 157781, 11
April 2005, 455 SCRA
256)
A fiduciary relationship between the complainant and the
accused
is an essential element of estafa by misappropriation or conver·
sion.
The findings of the RTC and the Court of Appeals that peti
tioners committed estafa rest on the erroneous belief that private
complainant Fodorico, duo t.o hiR right to commiAAion, alrnady
owned 50% of the amount paid by the City Government of Puerto
Princesa
SPECIFIC CRIMES 157
to LMICE by virtue of Check No. 611437, so that the collection
and deposit of the said check by petitioners under the accourit
ofLMICE constituted misappropriation or conversion of private
complainant Federico's commission.
However, his right to a commission does not make private i:om
plainant Federico a joint owner of the money paid to.LMICE by.the
City Government of Puerto Priucesa, but merely establishes the
relation of agent and principal. It is unequivocal that an agency
existed between LMICE and private complainant Federico. Article
1868 of tho Civil Code defines agency as a special contract whereby
"a person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority
of the lattar." Although private complainant Federico never had the
opportunity to operate as a dealer for LMICE under the terms of the
Dealership Agreement, he was allowed to act as a sales agent for
LMICE. He can negotiate for and on behalf of LMICE for the refill
and delivery of fire extinguishers, which he, in fact, did on two
occasions -with Landbank and with the City Government of Puerto
Princesa. Unlike the Dealership Agreement, however, the agree
ment that private complainant Federico may act as sales agent of
LMICE was based on an oral agreement.
As a Hales agent, private complainant Federico entered into
negotiatior,s with prospective clients for and on behalf of his
princi pal, LMICE. When negotiations for the sale or refill of fire
extin guishers were successful, private complain.ant Federico
prepared the necessary documentation. Purchase orders, invoices,
and receipts were all in the name ofLMICE. It was LMICE who
had the primary duty of picking up the empty fire extinguishers,
filling them up, and delivering the refilled tanks to the clients,
even though private com plainant Federico personally helped in
hauling and carrying the fire extinguishers during pick-up from
and delivery to clients.
All profits made and any advantage gained by an agent in the
execution of his agency should belong to the principal. In the instant
case, whether the transactions negotiated by the sales agent were
for the sale of brand new fire extinguishers or for the refill of empty
tanks, evidently, the business belonged to LMICE. Consequently,
payments made by clients for the fire extinguishers pertained to
LMICE. When petitioner Huertazuela, as the Branch Manager of
LMICE in Puerto Princesa City, with the permission of petitioner
Murao, the Role proprietor of LMICE, personally picked up Check
No. 611437 from the City Government of Puerto Princesa, and
158 UPDATES IN CRIMINAL LAW
deposited the same under the Current Account of LMICE with
PCIBank, he was merely collecting what rightfully belonged to
LMICE. Indeed, Check No. 611437 named LMICE as the lone
payee. Private complainant Federico may claim commission,
allegedly equivalent to 50% of the payment received by LMICE from
the City Government of Puerto Princesa, based on his right to just
compen sation under his agency contract with LMICE, but not as the
auto· matic owner of the 50% portion of the said payment.
Since LMICE is the lawful owner of the entire proceeds of
the check payment from the City Government of Puerto Princesa,
then the petitioners who collected the payment on behalf of
LMICE did not receive the same or any part thereof in trust, or on
commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same to
private complain ant Federico, thus, the RTC correctly found that
no fiduciary rela tionship existed between petitioners and private
complainant Federico. A fiduciary relationship between the
complainant and the accused is an essential element of estafa by
misappropriation or con version, without which the accused could
not have committed estafa. (Murao vs. People, G.R. No. 141485, 30
,lune 2005, 462 SCRA 3661
No estafa if transaction is one of sale.
We reiterate that the contract between Skiva and Aurora was
one of sale. After the perfection of the contract of sale, Mr. Werner
Lettmayr, representing Aurora/l;ni-Group, requested Skiva for ad
vance payment in order to procure the raw materials needed for the
700-dozen ladies' jeans. It was also Mr. Lettmayr who suggested
that the advance payment be made to the joint account of himself
and his wife, together with petitioner and his wife. As requested,
$41,300.00 was transmitted by Skiva as advance payment.
Despite the payment, there was delay in the performance of
contract on the part of Aurora/Uni-Group. Petitioner and the
OSG contend that un der these facts, Skiva has no cause to
complain that petitioner com mitted estafa. We agree. In Abeto
vs. People, we held that "an ad vance payment is subject to the
disposal of the vendee. If the trans action fails, the obligation
to return the advanc payment en sues but this obligation is
civil and not of criminal nature;" In fine, the remedy of Skiva
against Aurora/Uni-Group for breach ing its contract is a civil,
not a criminal suit. (Salazar vs. People, G.R. No. 149472, 18
August 2004, 437 SCRA 41)
SPECIFIC CRIMES 159
Facts: Quilatan delivered pieces of jewelry to Serona to be
sold on commission basis. They agreed that Serona shall remit!pay
ment or return the pieces of jewelry if not sold to Quilatan,"both
1,vithin 30 days from receipt of the items. Thereafter, Serona. en
trusted the jewelry to Labrador for the latter to sell on commission
basis. Serona was not able to collect payment from Labrador, which
caused her to likewise fail to pay l,,er obligation to Quilatan. Subse
quently, the latter sent a formal letter of demand to Serona for
failure to settle her obligation.
Is Serona guilty ofEstafa through conversion or misappropria
tion?
Ruling; No. The elements of estafa through misappropriation
or conversion as defined in Article 315, par. l(b) of the Revised
Penal Code are: (1) that. the money, good or other personal
property is received by the offender in trust, or on commission, or
for admin istration, or under any other obligation involving the
duty to make delivery of, or to return, the same; (2) that there be
misappropria tion or conversion of such money or property by the
offender or denial on his part of such receipt; (3) that such
misappropriation or con version or denial is to the prejudice of
another; and (4) that there is a demand made by the offended party
on the offender. While the first, third and fourth elements are
concededly present, we find the second element of
misappropriation or conversion to be lacking in the case at bar.
Petit10ner did not ipso facto commit the.crime of estafa through
conversior or misappropriation by delivering t.he jewelry to a sub
agent for sale on commission basis. We are unable t-0 agree with the
lower courts' conclusion that this fact alone is sufficient ground for
holding that petitioner disposed of the jewelry "as if it were heri:1,
thereby committing conversion and a clear breach of trust."
It must be pointed out that the law on agency in our jurisdic
tion allows the appointment by an agent of a substitute or sub-
agent in the absence of an express agreement to the contrary
between the agent and the principal. In the case at bar, the
appointment of La brador as petitioner's sub-agent was not
expressly prohibited by Quilatan, s the acknowledgment receipt,
Exhibit B, does not con tain any such limitation. Neither does it
appear that petitioner was verbally forbidden by QuilataTh from
passing on the jewelry to an other person before the
acknowledgment receipt was executed or at any other time. Thus,
it cannot be said that petitioner's act of en trusting the jewelry to
Labrador is characterized by abuse of confi-
160 UPDATES IN CRIMINAL LAW
dence because such an act was not proscribed and is, in fact,
legally sanctioned.
The essence of estafa under Article 315, par. l(b) is the
appro priation or conversion of money or property received to the
prejudice of the owner. The words "convert" and
"misappropriated" connote an act of using or disposing of
another's property as if it were one's own, or of devoting it to a
purpose or use different from that agreed upon. To misappropriate
for one's own use includes not only conver· sion to one's personal
advantage, but also every attempt to dispose of the property of
another without right.
In the case at bar, it was established that the inability of peti
tioner as agent to comply with her duty to return either the pieces
of jewelry or the proceeds of its sale to her principal Quilatan was
due, in turn, to the failure of Labrador to abide by her agreement
with petitioner. Notably, Labrador testified that she obligated
herself to
sell the jewelry in behalf of petitioner also on commission basis or
to
return the same if not sold. In other words, the pieces of jewelry
were given by petitioner to Labrador to achieve the very same end
for which they were delivered to her in the first place. Consequently,
there is no conversion since the pieces of jewelry were not devoted to
a purpose or use different from that agreed upon.
Similarly, it cannot be said that petitioner misappropriated
the jewelry or delivered them to Labrador "without right." Aside
from the fact that no condition or limitation was imposed on the
mode or manner by which petitioner was to effect the sale, it is
also consis tent with usual practice for the seller to necessarily
part with the valuables in order to find a buyer and allow
inspection of the items for sale. (Serona vs. Court of Appeals, G.R.
No. z304g3, 18 November 2002, 392 SCRA 35)
To be liable for estafa, the offender must have juridical and physi
cal possession of the thing received by him.
When the money, goods, or any other personal property is re
ceived by the offender from the offended party (1) in trust; or (2) on
commission; or (3) for administration, the offender acquires both
material or physical possession andjuridical possession of the thing
received. ,Juridical possession means a possession which gives the
transferee a right over the thing which the transferee may set up
even against the owner. In this case, petitioner was a cash
custodian who was primarily responsible for the cash-in-vault.
Her possession
SPECIFIC CRIMES 161
of the cash hcilonging to the bank is akin to that of a bank teller,
both being mere bank employees. ;, , :•1;.:,.1::i;,
Jn People vs. Locson, the receiving teller of a bank misappropri
ated the money received by him for the bank. He was found liable
for qualified theft on the theory that the possession. of theJell.er is the
possession of the bank. We explained in Locson th o.t -:-,: '. _. 1,.11
"The money was in the possession of the d fend nt· 1•
as receiving teller of the bank, and the possession of the ·
defendant was the possession of the bank. When the de
fendant, with grave abuse of confidence, removed ;the.,,
mcney and appropriated it to his own use wit}:l t1t the
consent of the bank, there was the taking·or
apodefamie11io. contemplated in the definition of the crime
oftliefti"' ,:ii :n.
, ,.·' ;: '- : i ,.ti:< n:, - ·1
In the subsequent case of Guzman vs. Court,of .(t.ppea s, li rav
elling sales agent misappropriated or failed to return,to his principal
the proceeds of things or goods he was C(?mmissioned or a)lth,orized
tosell. He was, hov,ever, found liable for estafa under Article'315(1)
(b)
of the Revised Penal Code, and not qualified theft. In the:
Gzi.zman
case, we explained the distinction between possession of a hank teller
and an agent for purposes of determining criminal liability :.. ' ··
"The case cited by the Court of Appeals (People v;.
Lacson, 57 Phil. 325), in support of its theory that appel lant
only had the material possession ofthf,l merchandise he
was selling fo:· his principal, or their proceeds, is not ir·i
point. In said case, the receiving teller of a bank who ' '
misappropriated money received by him for the
bank,·was· held guilty of qualified theft on the theory
that the pos·-· session of the teller is the possession of the
bank. Thereis an essential distinction between the
possession by a ·re ceiving teller of funds received from
third persons paid to the bank, and an agent who receives
the proceeds of sales of merchandise delivered to him in
agency by his princi pal. In the former case, payment by
third persons to the. teller is payment to the bank itself;
the teller is a mere custodian or keeper of the funds
received, and has no indei:endent right or title to retain
or possess the same as
against the bank. An agent, on the other hand, can even,,·
assert, as against his own principal, an independent, au
tonomous, right to r2tain money or goods received in con
sequence of the agency; as when the principal fails to
reimburse him for advances he has made, and indemnify
162 UPDATES 1:,.; CRIMINAL
SPECIFIC CRIMES 163
LAW

him for damages suffered without his fault (Article 1915,

[N]ew Civil Code; Article 1730, old).H
Estafa by means of false pretenses.
The 1::lements of estafa or swindling under paragraph
," I•, (a ,of
2 )
Petitioner herein being a mere cash custodian had no juridical Article 315 of the Revis,3d Penal Code are the following: ,;
possession over the missing funds. Hence, the element of juridical
1. That there must be a false pretense, fraudulent act or
possession being absent, petitioner cannot be convicted of the crime fraudulent means. ..,,. :· ,,
of estafa under Article 315, No. l(b) of the Revised Penal Code.
(Chua-Burce vs. Court of Appeals, C.R. No. 109595, 27 April 2000, 2. 'rhat such false pretense, fraudulent act or fraudulent
331 SCRA 1) means must be made or executed prior to or simultaneously with
the commission of the fraud. ', >' •,' ''

Demand, not necessary in estafa by misappropriation. 3. That the offended party must have relied on the false
pretense, •raudulent act, or fraudulent means, that is, he•·,was 'in
(I)n Tubbs us. People and Court of Appeals, this Court ruled
duced to part with his money or property because of the false pre-
that "the law does not require a demand as a condition precedent to tense, fraudule.:1t act, or fraudulent means. , ,,., , ·· ii
the crime of embezzlement. It so happens only that failure to ac 4. That as a result thereof, the
, ,.', ·, I·
party.suffered dam-
count,
circumupon demand for funds and property held in trust, is offended
stantial evidence of misappropriation." 627)
In Benito Sy y Ong vs. People and Court of Appeals, we also
held that in a prosecution for estafa, demand is not nE\Cessary
when there is evidence of misappropriation. (Salazar us. People,
C.R. No. 149472, 15 October 2002, 391 SCRA 162)
Demand is not an element of the felony or a Ct'ndition prece
dent to the filing of a criminal complaint for estafa. Indeed, the
accused may be convicted of the felony under Article 315, paragraph
l(b) of the Revised Penal Code if the prosecution proved misappro
priation or conversion by the accused of the money (Jr property sub
ject of the Information. In a prosecution for estafa, demand is not
necessary where there is evidence of misappropriation or conver
sion. However, failure to account upon demand, for funds or prop erty
held in trust, is circumstantial evidence of misappropriation. (Cosme
us. People, C.R. No. 149753, 27 November 2006)
Demand need not be formal. It may be verbal. In Barrameda
vs. Court of Appeals, the Court ruled that even a query as to the
whereabouts of the money is tantamount to a demand. (Lee vs.
People, G.R. No. 157781, 11 April 2005, 455 SORA 256)
In an agency for the sale of jewelry, it is the agent's duty to
return the jewelry on demand of the owner. The demand for the
return of the thing delivered in trust andthe failure of the accused.
agent to account for it are circumstantial evidence of misappropria
tion. (Bonifacio vs. People, G.R. No. 153198, 11 July 2006, 494
SCRA
age. (Lorenzo us. People, G.R. No. 152335, 19 DecJritber 2005;
478 SCRA 462; People us. Hernandez,· C.R. Nos. 141221-36, ,07
March 2002, 378 SCRA 593; Erquictga vs. Court of Appeals, C.R.
No. 124513,
17 October 2001, 367 SCIU 357)

Meaning of fraud.
Fraud, in its general sense, is deemed to comprise anything
calc-:.ilated to deceive, including all acts, omissions and
concealment involving a breach of legal or equitable duty, trust or
confidence justly rep0sed, resulting in damage to another, or by
which an un due and unconscientious advantage is taken of
another. It' 1.s a ge neric term embracing all multifarious means
which human ingenu ity can device, and which are resorted to by
one individual to secure an advantage over another by false
suggestions or by suppression of truth and includes all rnrprise,
trick, cunning, dissembling and any unfair way by which another
is cheated. Deceit is a species of fraud.
Swindling or estafa by means of false pretenses o .fraudulent
acts executed prior to or simultaneously with the commission of the
fraud is comml:tted "[b]y using fictitious name, or falsely pretending
to possess po ver, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by other·siniilar 1
deceits."
XXX. .. ;!J ···l
..... . :<· \,.
These four elements are present in the instant case: (1) False
'pretenses were employed by petitioner and his co-accused to
deceive private complainant into purchasing the stolen Nissan
Pathfinder;
(2) False pret nses were employed prior to, and simultaneously
with,
 164 UPDATES IN CRIMINAL LAW
the fraudulent sale of the Nissan Pathfinder; (3) Private complain•
ant relied on false pretenses of petitioner and co-acr.used, inducing
him to part with his money due to the misrepresentation employed
by the perpetrators of the fraud; and (4) As a result of false pre·
tenses and misrepresentations by petitioner and co-accused, private
complainant suffered damages in the amount of P480,000.00. (Sim
vs. Court of Appeals, G.R. No. 159280, 18 May 2004, -128 SCRA 459)
Meaning of deceit.
Deceit refers to a "false representation of a matter of fact
(whether by words or conduct, by false or misleading allegations,
or by concealment of that which should have been disclosed)
which deceives or is intended to deceive another so that he shall
act upon it to his legal injury." (Jose us. People, G.R. No. 148371,
12 August 2004, 436 SCRA 294)
False pretense is any deceitful practice or device by which
an other is led to part with the property in the thing taken.
The deceit or false pretense employed by petitioners is the
fact that they assured complainant that the amount of
P330,000.00 de livered to them and accused Victoria by
Evangeline was to pay the back taxes of a certain parcel of land so
that a title may be secured and complainant will be given 2,500
square meters of the subject land.
The failure of petitioners and accused Roberto in not paying
the back taxes and in misappropriating the money to their own
personal use, constitute the crime ofEstafa. Even if the land exists,
the crime of Estafa is committed when petitioners and accused
Roberto convinced complainant to part with her money on the
basis of their assurance that they will pay the back taxes due on
the land so as to secure a title over the land and a portion
then,oftitled in the name of complainant. (Pablo vs. People, G.R.
No. 138090, 11 Novem ber 2004, 442 SCRA 146)
Deceit or false pretenses, committed simultaneously with the
fraud, must be the efficient cause or primary consideration
which in· duced the offended party to part with his money or
property.
While it may be said that them was fraud or deceit committed
by Rosemarie in this case, when she used the surname "Villaflor" t-0
give her semblance of authority to sell the subject 2-storey house,
166 UPDATES r:,.;- CRIMI1'1AL LAW
SPECIFIC CRIMES 165
such fraud or deceit was employed upon the Canlas spouses who
were the ones who parted with their money when they bought the
house. However, the Information charging Rosemarie of estafa in
the present case, alleged damage or injury not upon the Canlas
spouses, but upon private complainant, Anita Manlangit. Since the
deceit or fraud was not the efficient cause and did not induce
Anita Manlangit to part with her property in this case, Rosemarie
cannot be held liable for estafa. (Gonzaludo vs. People, G.R. No.
150910, 06 February 2006, 481 SCRA 56.9j
Gullibility of offended party, not a defense in estafa.
Indeed, private reBpondent has shown her gullibility and per
haps even foolishness in believing petitioner and in consequently
parting with her PI04,000; others more sensible might not have
done so in a similar situation. But such naivete cannot absolve peti
tioner of criminal liability. It has been established with moral cer
tainty that she inte::itionally committed a crime in violation of the
law enacted precisely to protect not only the wary and·the wily, but
more so the gullible and the guileless. (Jose vs. People, ·a.R. No.
148371, 12 August 2004, 436 SCRA 294) ' ··I
'.1,11, ··;c;! ·/'.· :;
In estafa, the person prejudiced or the immediate victim <>f the
fraud need not be the owner of the goods misappropriated./:.'·
\ '• '
Article 315 of the Revised Penal Code provides that "any per
son who shall r,lefraud another by any means mentioned [in Article
315]" may be held liable for estafa. The use by the law of the word
"another" instead of the word wowner" means that as an element of
the offense, loss should have fallen upon someone other than the
perpetrator of the crime. (Salazar us. People, G..R. No. 149472, 15
.October 2002, 391 SCRA 162) ·
A person who has committed illegal recruitment may be charged
and convicted separately of the crime of illegal recruitment under
the Labor Code and estafa under the Revised Penal Code.
It is well-settled that a person who has committed illegal re
cruitment may be charged and convicted separately of the crime of
illegal recruitment under the Labor Code and esta.fa under para
graph 2(aJ of Article ;:J15 of the Revised Penal Code. The reason for
the rule is that the crime of illegal recruitment is malum prohibi·
tum where the criminal intent of the accused is not necessary for
conviction, while the crime of estafa is malum t11 se where the crimi
nal intent of the accused is necessary for conviction. In other words,
a person convicted under the Labor Code may also be convicted of
offenses punishable by other laws. (People vs. Comila, G.R. No. 171448,
28 February 2007; People vs. Logan, G.R. Nos. 13S030-S3, 20 July
2001, 361 SCRA 581)
Estafa by postdating or issuing a check.
Article 315(2)(d) of the RPC penalizes any person who defrauds
another by postdating a check or issuing a check in payment of an
obligation when the offender has no funds in the bank or his funds
deposited therein are not sufficient to cover the amount of the check.
(Chua vs. People, G.R. Nos. 150.926 and 30, Of:i March 2006, 4R4
SCRA 161)
The elements of estafa under Article 315, paragraph 2(d) of the
Revised Penal Code, as amended, are the following: (1) postdating
or issuing checks in payment of an obligation contracted at the time
the checks were issued; (2) lack or insufficiency of funds to cover
said checks: 1,:3) knowledge on the part of the drawer of check,-: of
such lack or insufficiency of funds; and (4) damage capable of pecu
niary estimation to the payee thereof. Underlying all these must be
the presence of fraud or deceit. (Flores vs. People, G.R. Nos. 146921·
22, 31 January 2002, 375 SCRA 491; Peopie us. G1dion, G.R. No.
141183, 18 January 2001, 349 SCRA 610)
All the elements of the crime of estafa under par. 2(d) of Art.
315 RPC are present in this case. The evidence showed and peti tio;er
Chua admitted issuing the questioned checks in favor of pri vate
respondent in exchange for the imported goods she obtained from the
latter. It is likewise not disputed that the checks she issued bounced or
were dishonored due to insufficicrn;y (If funds and/or because her
bank account had already been closed by the bank due to lack of
funds. As a result, private respondent suffered damage. She had to
close down her business because she could not recoup her losses due
to the huge amount petitioner owed her. (Chua vs. People, G.R. Nos.
150926 and 30, 06 March 2006, 484 SCRA 161)
All these elements are present in this case. The prosecution
proved that the checks were issued in payment of a simultaneous
obligation, i.e., the checks were issued in payment for the ring. The
checks bounced when Elizabeth deposited them for the reason "A£.
count Closed." There is no showing whatsoever that before peti-
168 UPDATES IN CRIMINAL LAW
Check must not be in payment of a pre-existing obligation.
SPECIFIC CRIMES 167
tiom,r handed and endorsed the checks to Elizabeth, she took steps
to ascertain that Potenciana has sufficient funds in her account. Upon
being informed that the checks bounced, she failed to give an
adequate explanation V'hy Potenciana's accountwasclosed. In Echaus
vs. Gou.rt of Appeals, we ruled that "the fact that the postdated checks
... were not covered by sufficient funds, when they fell due, in the
absence of any explanation or justification by petitioner, satisfied
the elem<,nt of deceit in the crime of estafa, as defined in paragraph
2 of Article 315 of the Revised Penal Code." (Ramos·Andan vs. People,
G.R. No. 136388. 14 Afarch 2006, 484 SCRA 611)
"At the time the obligation was contracted."
The first element of the offense requires that the dishonored
check musL have been postdated or issued at the time the
obligation was contracted. In other words, the date the obligation
was entered into, being the very date the check was issued or
postdated, is a material ingredient of the offense. (People vs.
Dinglasan, G.R:No. 133645, 17 September 2002, 389 SCRA 71)
Postdatiny or issuing a check in payment of an obligation must
be the efficient cause of defraudatlon. ·1
To cor,stitute estafa under this provision the act of postdating
or issuing a check jn payment of an obligation must be the efficient
cause of defraudation, and as such it should be either prior to, or
simultaneous with thF! act of fraud. The offender must be able to
obtain money or property from the offended party because of the
issuance of a check w ether postdated or not. That is, the latter
would not have parted with his money or other property were it·not
for the issuance of the check. · ,1 ..•
To be sure, negotiability is not the gravamen of the crime of
estafa through bouncing checks. It is the fraud or deceit employed
.by the accused in issuing a worthless check that is penalized.,
I.' Deceit, to constitute estafa, should be the efficient a se f
defraudation. It must have been committed either prior or
siniulta' neous with the defraudation complained 0£ There must"be
coneomi• t.ance: the issuance of a check should be the means t.o
obtain 'money or property froi:n the payee. Hence, a check issued
in payment of a pre-existing obligation does not constitute estafa
even if there is no fund in the bank to cCJver the amount of the
checki (People vs. Reyes, G.R. No. 154159, 31 March 2005, 454
SCRA 635) ···. · ,,,; ·.
,,,,,wThe check should have been issued as an inducement for the
surrender by the party deceived of his money or property, and not
in payment of a pre-existing obligation. (People vs. Nagrampa,
G.R. No. 146211, 06 August 2002, 386 SCRA 412)

No criminal liability for estafa if postdated checks were issued as
a guarantee for the payment of loan or as evidence of indebted
ness.
The transaction between appellant and the Abagat spouses, in
our view, was one for a loan of money to be used by appellant in her
business and she issued checks to guarantee the payment of the
loan. As such, she has the obligation to make good the payment of
the money borrowed by her. But such obligation is civ.1! in character
and in th absence of fraud, no criminal liability under the Revised
Penal Code arises from the mere issuance of postdated checks as a
guar ntee ofrepayment. (People vs. Cuyugan, G.R. Nos. 146641-43,
18 November 2002.. 392 SCRA 140; Timbal vs. Court of Appeals,
G.R. No. 136487, 14 December 2001, 372 SCRll. 358)
In effect, therefore, appellant issued the checks as evidence of
indebtedness to cover the value of the jewelry. It ha:; been ruled in
this connection that a drawer who issues a check dS security or
evidence of investment is not liable for Estafa. fPeople us. Dimalanta,
G.R. No. 157039, 01 October 2004, 440 SCRA 55)
No estafa, if payee knew that the postdated check was not yet
funded at the time of issue and that it would be funded only on a
particular date.
As regards the first reason of the trial court in holding appel
lant liable for Estafa, we find that appellant did not deceive com•
plainant JCT by stating that she had sufficient funds in the bank on
the date of issuance of the check. JCT knew that the postdated
check was not yet funded as of the date of its issuance and that it
would be funded on July 30, 1991. xxx.
AB regards the second reason of the trial court for holding
appellant liable for Estafa, we note that appellant no longer depos
ited the amount necessary to cover the first check within three days
from receipt of the verbal notice of dishonor of said check because
complainant JCT had accepted the replacement checks and surren·
· Under the circumstances of this case, the fact that appellant no
SPECIFIC CRIMES 169
dered the first check to appellant, which indicated that JCT, no
longer held appellant liable for the payment of her obligation nder
thefir ch k . ,· . · ..
It has been established that after the dishonor of the first
check, PCIB Check No. 142254, Remedios Torres, JCT's acting man
ager, verbally informed appellant at JCT's office that she was un
able to encash said check due to insufficiency of funds, but she did
not demand that appellant make good PCIB Check No. 142254 within
three days from receipt of said notice. Instead, on the same occasion,
Torres accep ed PCIB Check No. 145452 dated August 20, 1991 for
P50,000 and PCIB Check No. 145454 dated August 22, 1991 for
P39,800 as Lhe replacement of PCIB Check No. 142254, which first
check she surrendered to eppellant. ,JCT was then holding appel
lant liable for payment under the replacement checks, PCIB Checks
Nos. 145452 and 145454, and no longer under PCIB Check No.
142254.xxx
In accepting the two replacement checks and surrendering the
first check to appellant instead of demanding payment under the
first check (PCIB Check No. 142254) on the same day that JCT's
Acting Manager informed appellf,,nt of the dishonor of the first check
JCT led appella:1t to believe that she no longer had to deposit th
necessary amount t-0 cover the first check within three days from
the verbal notice of dishonor. On July 31, 1991, appellant's balance
in her account with PCIB Isulan Branch was P78,400. It is possible
that appellant could have deposited Pll,400 to make good the first
check worLh P89,800 if JCT made it clear that it was demanding
payment under the first check.
It would have been different if JCT accepted the replacement
checks thr,,e days after appellant's receipt of the verbal notice of
dishonor of the first check, because by then the prima facie evidence
of deceit arrainst appellant for failure to deposit the amount neces
sary to cover the first check within three days from receipt of the
notice of dishonor, under Article 315, paragraph 2(d) of the Revised
Penal Code, would have been established.
longer deposited the amount necessary to cover the first check, PCIB
Check No. 142254, within the required period cannot be con
sidered prima facie evidence of deceit against appellant. For it was
due to complainant JCT'r; own act of accepting the replacement
checks and surrendering the first check to appellant that appellant
was no
170 UPDATES IN CRIMINAL LAW
longer obliged to deposit the amount necessary to over t?e first
check within three days from receipt of the verbal notice of d1shon?r
as0 J CT was no longer holding her liable for payment under the
said check. The surrender of the first check, PCIB Check No. 142 54,
appellant would explain why the prosecution failed to submit said
in
check evidence, and merely relied on testimonial evidence to provt
the issuance of the check.
· lri failing to prove the element of deceit by appellant, the pros-
ecution failed to prove beyond reasonable doubt that appe1Ia1:t is
guilty of Estafa under Article 315, paragraph 2(d), of the ReVIsed
Penal Code. (People us. Juliano, G.R. No. 134120, 17 January 2005,
448 SCRA 370)
· • We held in Pacheco vs. Court of Appeals, that there is no estafa
through bouncing checks when it is shown.that priva e complainant
knew that the drawer did not have sufficient funds m the bank at
the time the check was issued to him. Such knowledge negates thP,
element of deceit and constitutes a defense in estafa through bounc·
ing checks. (People us. Reyes, G.R. No. 154159, 31 March 2005, 454
SCRA635)
Prima facie evidence of deceit.
Under Article 315(2)(d), failure of the drawer 0f the check to
deposit an amount sufficient to cover the check within three s
from receipt of notice from the bank and/or payee or holder that said
check has been dishonored for lack or insufficiency o: funds shall be
prima facie evidence of deceit constituting false pretense or fraudu
lent act. (People vs. Dinglasan, G.R. No. 133645, 17 September 2002;
Flores vs. People, G.R. Nos. 146921-22, 31 January 2U02, 375 SCRA
491; People vs. Holzer, G.R. No. 132323, 20 July 2000, 336 SCRA
819)
Deceit and damage are essential elements of estafa by postdating
a check.
Deceit and damage are essential elements of the offense and
must be established by satisfactory proof to warrant conviction. Th s,
the drawer of the dishonored cLeck is given three days from rece:pt
of the notice of dishonor to cover the amount of the check.
Otherw1Se aprima facie presumption of deceit arises. (People vs.
Ojeda, G.R. Nos. 104238-58, 03 dune 2004, 430 SCRA 436;
172 UPDATES IN CRIMINAL LAW
SPECIFIC CRIMES 171
Good faith, a defense in estafa by postdating a check..
There can be no estafa if the accused acted in good faitli'l:l&
cause good faith negates malice and deceit. Good faith is an 'intan
gible and abstract quality with no technical meaning or·statutory
definition, and it encompasses, among other things, an honest b'e
lief, the absence of malice and the absence of design to defraud or
to seek an unconscionable advantage. An individual's personal
good faith is a concept of his own mind, therefore, may not
conclusively be determined by his protestations alone. It implies
honesty. of in tention and freedom from knowledge of
circumstances.which ought to put the holder upon inquiry. The
essence of good faith lie in an honest belief in the validity of one's
right, ignorance o( a superior daim, and absence of intention to
overreach another. (Recuerdo vs. People, G.R. No. 168217, 27 June
2006, 493 SCRA 517)
., ',. I
The prosecution failed to prove deceit in this case. The prima
facie presumption of deceit was successfully rebutted by appellant's
evidence of good faith, a defense in estafa by postdating a check.
Good faith may be demonstrated, for instance, by a debtor's offer. to
arrange a payment scheme with his creditor. In this case,,the,debtor
not only made arrangements for payment; as complainant herself
categorically iitated, the debtor-appellantfully paid the entire amount
of the dishonored checks.
It must be noted that our Revised Penal .Code was enacted to
penalize unlawful acts accompanied by evil intent denominated as
crimes mala in se. The principal consideration is the existence of
malicious intent. There ts a concurrence of freedom, intelligence and
intent which together make up the "criminal mind" behind' the
"crimi nal act." Thus, to constitute a crime, the act must, generaily
and in most cases, be accompanied by a criminal intent. Actus non
facit reum, nisi mens sit rea. No crime is committed if the mind of the
person performing the act comphined of is innocent. AB we held in
Tabuena vs. Sandiganbayan: xxx.
The rule was reiterated in People vs. Pacana, although this
case involved falsification of public documents and estafa:
"Ordinarily, evil intent must unite with an unlawful
act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal
mind is wa:iting."
American jurisprudence echoes the same principle. It adheres
to the view that criminal intent in embezzlement. is not based on
technical mistakes as to the legal effect of a transaction honestly
entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose.
The accu;;ed may thus prove that he acted in good faith and
that he had no intention to convert the money or goods for his per
sonal benefit. We are convinced that 1:1.ppellant was able to prove
the absence of criminal intent in her transactions with Chua. Had her
intention been tainted with malice and deceit, appel1a,'1t would not
have exerted extraordinary effort to pay the complainant, given her
own business and financial reverses. (People vs. Oieda. G.R. Nos.
104238-58, 03 June 2004, 430 SCH.A 436)
Furthermore, we find that appellant acted in good faith during
the transaction. After the first check was dishonored, she exerted
best efforts to make good the value of the check, albeit only to the
extent of P25,000.00. Good faith is a defense to a charge ofEstafa by
postdating a check. This may be manifested by appellant's act ef
offering to make arrangements v.cith complainant as to the manner
of payment. (People vs. Dimalanta, G.R. No. 157039, 01 October
2004, 440 SCRA 55)
Novation, not a mode of extinguishing criminal liability.
The execution of the Kasunduan sa Bayarun does not consti
tutea novation of the orit:,rinal agreement between petitioner ar,d
private complainant. Said Kasunduan did not change the object or
principal conditions of the contract between them. The change in
manner of payment of petitioner's obligation did not render the
Kasunduan incompatible with the original agreement, and hence,
did not extinguish petitioner's liability to remit the proceeds of the
sale of the jewelry or to return the same to private complainant.
In any case, novation is not one of the grounds prescribed by
the Revised Penal Code for the extinguishment of criminal liability.
(Ocampo-Paule vs. Court of Appeals, G.R. No. 145872, 04 February
2002, 376 SCRA 83) As held by this Court, novation "may prevent
the rise of criminal liability as long as it occurs pri0r to the filing of
the criminal information in court. In other words, novation does not
extinguish criminal liability but may only prevent its rise."
(Diongzon
vs. Court of Appeals, 321 SCRA 477, 484 {1999))
SPECIFIC CRIMES 173
eimbursement or restitution does not extinguish criminal llabll·
1ty. ,11 ,,
The_ reimbursement or restitution to the offended party of t e
s.u s. swmdled by the petitioner does not extinguish the criminal
ha b1hty of th e l a tt er. It onl y extinguishes pro tanto the civil 1·
bil't o
M . t f : . . ia ai nd
ry.over, es a a 1s a pubhc offense which must be prosecuted·
pumsh d by the State on its own motion even though complete
reparat10n had been made for the loss or damage suffered by· the
offended party. n,ie. co_ns t of the private complainant to petitioner's
payment o her ...:1v1l hab1hty pendente lite does not entitle the latter
to an. ac :11ttal. Subse uent payments does not obliterate the
crimi.; nal hab1bty already 1 curred. Criminal liability for estafa'
is hot
aff cted by a compromise between petitioner and the private com
plama_:1t,on the forn:ds civil liability. !Recuerdo vs. People, G.R.No.
1682 I 1, 27 June 2006, 493 BCRA 517)
"Other dec&its,''
. The fal e.or fraudulent representation by a seller that h t h
ofier_s for sa1e is b_rand new (when, in fact, it is not) is one of those
deceitful acts envisag.ed :n paragraph 1, Article 318 of the Revised
Penal Code. The provu,1on reads: ·
"Art. 318. Other '1eceits. - The penalty of arresto
mayor and a fine of not less than the amount of the dam-
ge can ed and not more than twice such amount shall be
1mposec. upon any person who shall defraud or damage
nother by any other deceit not mentioned in the preced
mg articles of this chapter." ',(,
XXX
. For one to be liable for "other deceits" under the law, it i
qllll'ed. that the prosecution must prove the following essential ele
ents.(a) false pretense, fraudulent act or pretense other than tho e
m the preceding articles; (b) such false pretense, fraudulent act or
pretense 1!1uE;t be made or executed prior to or simultaneously
with the comm1ss!On of the f au?; and.<c) as a result, the
offended party suffered damage or preJud1ce. It 1s essential that
such false state ent or raudulent representation constitutes the
very cause or the
.only motive for the private complainant to part with her property.
· The provision includes any kind of conceivable deceit other
than those enumerateo. in Articles 315 to 317 of the Revised Penal
174 UPDATES IN CRIMINAL LAW
Code. It is intended as the catchall provision for that purpose with
its broad scope and intendment.
XXX
It is true that mere silence is not in itself concealment. Con
cealment which the law denounces as fraudulent implies a purpose
or design to hide facts which the other party sought to know.
Failure to re eal a fact which the seller is, in good faith, bound to
disclose may generally be classified as a der:eptive act due to its
inherent capacity to deceive. Suppression of a material fact which
a party is bound in good faith to disclose is equivalent to a false
representa tion. Moreover, a representation is not confined to
words or positive assertions; it may consist as well of deeds, acts
or artifacts ofa nature calculated to mislead another and thus allow
the fraud-fea,
sor to obtain an undue advantage.
Fraudulent nondisclosure and fraudulent concealment are of
the same genre. Fraudulent concealment presupposes a duty to dis
close the truth and that disclosure was not made when opportunity
to:speak and inform was presented, and that the party to whom the
duty of disclosure, as to a material fad was due, was induced thereby
to act to his injury.
Article 1389 of the New Civil Code provides that failure to
disclose facts when there is a duty to reveal them constitutes fraud.
Ina contract of sale, a buyer and seller do not deal from equal
bargaining positions when the latter has knowledge, a material fact
which, if communicated to the buyer, would render the grounds
unacceptable or, at least, substantially less desirable. If, ina con
tract of sale, the vendor knowingly allowed the vendee to be de
ceived as to the thing sold in a material matter by failing to disclose
an intrinsic circumstance that is vital to the contract, knowing that
the vendee is acting upon the presumption that no such fact exists,
deceit is accomplished by the suppression of the trutt1
In the present case, the petitioner and Azotea knew that the
van had figured in an accident, was damaged and had to be re·
paired. Nevertheless, the van was placed in the showroom, thus
making it appear to the public that it was a brand new unit. The
petitioner was mandated to reveal the foregoing facts to the
private complainant. But the petitioner and Azotea even
obdurately declared when they testified in the court a quo that the
vehicle did not figure in an accident, nor had it been repaired; they
maintained that the van was brand new, knowing that the private
comphiinant was go.
SPECIFIC CRIMES 175
ing to use it for 'i1er garment business. Thus, the private .complain
ant bought the van, believing it was brand new. •· ;,: ·,1 ,:
. SignificaD:tly, even w en the petiti<!ner was apptised that the
pnvate complainant had discovered the van's defects, the petitioner
agreed to replace the van, but changed his mind and insisted that it
mm1t be first sold. · · , ,,., ·
The petitioner is not relieved of his criminal liabilit r /d ceit
ful conce lment of material facts, even if the private complainant
made a visual inspection of the van's interior and exterior before
she agreed to buy it and failed to inspect its under chassis. Case
law has it that where the vendee made only a partial
investigation.a d re lies, in part, upon the representation of the
vendee, an js:deceived by such rep::-esentation to his injury, he
may maintain an action for such deceit. The seller cannot be heard
to say that the vendee should not have relied upon the fraudulent
concealment; that negligence, on the part of the vendee, should not
be a defense in order to .pre vent the ver..dor from unjustifiably
escaping with the fruits .of. the
fraud. · ·
/·; d ,' I
.
In one ca&e, the defendant who repainted an automobile
worked it over to resemtile a new one and delivered it to the plai tiff
was found to have warranted and represented that the automobile
being sold was new. i'his was found to be "a false representation of
an existing fact; and, if it was material and induced the plaintiff to
accept something ent.irel: 0 different from ,that which he had con•
tracted for, it clearly was a fraud which, upori its discovery and a
tender of the property back to the seller, [it] entitled the plaintiff to
rescind the trade and recover the purchase money." ·
n the petitioner's insistence that the private complainant
was proscribed from charging him with estafa based on the
principle of caveat emptor, ,case law has it that this rule only
requires the pur cha er o exercise such care and attention as is
usually exercised by ordmanly rudent men in like business affairs,
and only applies to defects which are open and patent to the
service of one exercising such care, In an avuncular case, it was
held that:
"... The rule of caveat emptor, like the rule of sweet
charity, has often been invoked to cover a multitude of'
sins; but we think its protecting mantle has never been
stretched to this extent. It can only be applied where it is
shown or conceded that the parties to the contract stand
on equal footing and have equal knowledge or equal
means
176 UPDATES IN CRIMINAL LAW
·of knowledge and there is no relation of trust or confi-
. Di dence between them. But, where one party undertakes to
sell to another property situated at a distance and of
which he has or claims to have personal knowledge and
of which the buyer knows nothing except as he is
informed by the seller, the buyer may rightfully rely on
the trnth of the seller's representations as to its kind.
quality, and value made in the course of negotiation for
the purpose of in ducing the purchase. If, in such case,
the representations prove to be false, neither law nor
equity will permit the seller to escape responsibility by
the plea that the buyer ought not to have believed him or
ought to ha'1 e applied to other sources to ascertain the
facts... "
It bears stressing that Azotea and the petitioner had every
opportunity to reveal to the private complainant that the van was
defective. They resolved to maintain their silence, to the prejudice
of the private complainant, who was a garment merchant and who
had no special knowledge of parts of motor vehicles. Based on
the sur rounding circumstances, she relied on her belief that the
van was brand new. In fine, she was the innocent victim of the
petitioner's
fraudulent nondisclosure or concealment.
The petitioner cannot pin criminal liability for his fraud ent
omission on his general manager, Azotea. The two are equally hable
for their collective fraudulent silence. Case law has it that wherever
the doing of a certain act or the transaction of a given affair, or the
performance of certain business is confided to an agent, the author
ity to so act will, in accordance with a general rule often referred to,
carry with it by implication the authority to do all of the collateral
acts which are the natural and ordinary incidents of the main act or
business authorized. (Guinhawa vs. People, G.R. No. 162822, 25
August 2005. 468 SCRA 278)
Arson.
In prosecutions for arson, proof of the crime charged is com·
plete where the evidence establishes: (1) the corpus delicti, that is, a
fire because of criminal agency; and (2) the identity of the defen·
dants as the one responsible for the crime. Corpus delicti means the
substance of the crime, it is the fact that a crime has actually been
committed. In arson, the corpus delicti rule is generally satisfied by
proof of the bare occurrence of the fire and of its having been inten-
SPECIFIC CRIMES 177
tionally caused. Even !:he uncon:'oborated testimony of a single wit
ness, if credible, may he enough to prove the corpus delicti..and to
warrant conviction. (Pl:/ople vs. Acosta, G.R. No. 126351, 18 Febru·
ary 2000, 326 SCRA 49; People vs. Oliva, G.R. No. 122110, 26 Sep-
tember 2000, 341 SCR.A 78) ,
In cases where both burning and death occur, in order to deter
mine what crime/crimes was/were perpetrated ,- whether, arsf)n,
murder or arson and homicide/murder, it is de rigueur to ascertain
the main objective of the malefactor: (a) if the main objective is the
burning of the building or edifice, but death results by reasorN'>r·on
the occasion of arson, the crime is simply arson, and th resulting
homicide is absorbed; (h) if, on the other hand, the main objective is
to kill a particu}ar person who may he in a building or edifice, when
fire is resorted to as the means to accomplish such goal·the crime
committed is murder only; lastly, (c) if the objective :is, likewise;·to
kill a particular person, and infact the offender hd already dbne1
b,
but fire is resorted to as a means to cover up the killing, then there
are two separate and distinct crimes committed - homicide/murder
and arson. (People vs. Malngan, G.R. No. 170470, ·26' September
2006) . · · '
CRIMES AGAINST CHASTITY
Concubinage.
Facts: An Information for Concubinage was filed in court
against X and his paramour, Z. Later, X filed a petition for declara
tion of nullity of his marriage with Y. If the court where the
petition was filed would declare that the marriage is void ab
initio,·may such judicial pronouncement be used by X and Z as a
defense in the Concubinage case?
Ruling: No. With regard to petitioner's argument that he
could be acquitted of the charge of concubinage should his
marriage be declared null and void, suffice it to state that even a
subsequent pronouncemee that his marriage is void from the
beginning is not a &fun .x . ·. ·
Thus, in the case at :Jar it must also be held that parties to the
marriage should not be permitted to judge for themselves its
nullity, for the same must be submitted to judgment of thl:l
competent courts and only when the nullity of the marriage is so
declared can it be held as void, and so long as there is no such
declaration the pre-
178 UPDATES IN CRIMINAL LAW
sumption is that the marriage exists for all intents A.nd purposes.
Therefore, he who cohabits with a woman not his wife before the
judicial declaration of nullity of the marriage assumes the risk of
being prosecuted for concubinage. (Beltran us. People, G.R. No.
137567, 20 June 2000, 334 SCRA 106)
Acts of lasciviousness.
The elements of said crime are: (1) that the offender commits
any act oflasciviousness or lewdness; (2) that it is done: (a) by
using force and intimidation, or (b) when the offended party is
deprived of reason or otherwise unconscious, or (c) when the
offended party is under 12 years of age; and (3) that the offended
party is another person of either sex. In acts oflasciviousness, the
acts complained of are prompted by lust or lewd design where the
victim has not en couraged such acts. In cases of acts of
lasciviousness, the offender is deemed to have accomplished all
the elements necessary for the existence of the felony once he has
been able, by his overt acts, to actually achieve or attain his
purpose. (People us. Perez, G.R. Nos. 141647-51, 06 March 2002,
378 SCRA 476)
Concept of "lewd design."
The term "lewd" is commonly defined as something indecent
or obscene; it is characterized by or intended to excite crude
sexual desire. That an accused is entertaining a lewd or unchaste
design is necessarily a mental process the existence of which can
be inferred by overt acts carrying out such intention, i.e., by
conduct that can only be interpreted as lewd or lascivious. The
presence or absence of lewd designs is inferred from the nature of
the acto themselves and the environmental circumstances. What is
or what is not lewd con duct, by its very nature, cannot be
pigeonholed into a precise defini tion. AI, early as U.S. us. Gomez,
,ve had already lamented that -
"It would be somewhat difficult to lay down any
rule specifically establishing just what conduct makes
one ame nable to the provisions of article 439 of the
Penal Code. What constitutes lewd or lascivious
conduct must be de termined from the circumstances of
each case. It may be
. quite easy to determine in a particular case that certain
acts are lewd and lascivious, and it may be extremely
difficult in another case to say just where the line of
SPECIFIC CRIMES 179
demarcation lies between such conduct and the amorous, .
advances of an ardent lover." (Amployo vs. People, G.R. ,:1r.;11
No. 157718, 26April 2005, 457 SCRA 282) .. ,, , 0
Simple secuction.
. Eq lly untenable is the argument of the appellant that, if he
1s at all h ble for anything, it should only be for simple seduction.
l!nder Article 338 of the Revieed Penal Code, to constitute 'seduc
tion, there must in all cases be some deceitful promise or·hlduce
ent. The woma should have yielded because of thi .promi e. or
nducement. I this Cat:ie, the appellant claims that the acts of
sexual intercourse wtth the priva.te complainants were in exchange
. fo:r money. He declared that, pnor to every sexual intercourse Liza
with
and Ann , he would promise them P20. However, aside from his
bar testimony, the appellant presented no proof that priv com:
pl mants' conse t was secured by means of such promis . As aptly
te
opined by the tnal court, the money given by the appellant to pri v
te complai ants was not intended to lure them to have sex,with
him. Rather, 1t was for the purpose of buying their silence to
ensure that:1obody discovered his dastardly acts. The evidence for
the pros ecution .WflS more than enough to show that th'e:<eiement
of volunt nness on the part of private complainants !was totally ab
sent. Liza and Anna's respective testimonies established 'tliat'the
appellan had sexual intercourse with them without their'cotfseri.t
and against th jr will. Considering that the· victims' accounts· of
what the ap ellant did to them were absolutely credible and believ
able, the tnal court correctly convicted. (People vs. Pascua; G.R.
Nos. 128159-62, 14 July 2003, 406 SCRA 103) - ' ·:,.' :·
Forcible abduction.
. The elements of the crime of forcible abduction, as defined in
Article ?12 of the Revised Penal Code, are: (1) that the person ab
ucted 1s any woman, regardless of her age, civil status, or reputa
tion; (2) that she is laken against her will: and (3) thRt the abduc
tion. is with lewd designs. On the other hand, rape is committed by
having carnal knowledge of a woman by force or intimictation, or
w he n th e woman is deprived of reason or is unconsc ious
or,when
h . s de 1s un er twelve years of age. , •
, All these elements were proven in this case. The victim, who is
a woman, was laken against her will, as shown by the fact that she
 180 UPDATES IN CRIMINAL LAW
was intentionally directed by accused-appellant to a vacant hut. At
her'tender age, Magdalena could not be expected to physically
resist coniridering that the lewd designs of accused-appellant
could not have been apparent to her at that time. Physical
resistance need not be demonstrated to show that the taking was
against her will. The employment of deception suffices to
constitute the forcible taking, especially since the victim is an
unsuspecting young r,irl. Consider ing that it was raining, going to
the hut was not unusual to Magdalena, as probably the purpose
was to seek shelter. Barrio girls are particularly prone to
deception. It is the taking advantage ofth ir innocence that makes
them easy culprits of deceiving minds. Finally, the evidence
shows that the taking of the young victim against her will was
effected in furtherance of lewd and unchaste designs. Such lewd
designs in forcible abduction is established by the actual rape of
the victim. (People vs. Ablaneda, G.R. No. 131914,
30 April 2001, 357 SCRA 479)
If the main intention In abducting the victim is tc rape her, of·
fender can be convicted only for rape.
(A)ccused-appellant could only be convicted for the crime of
rape, instead of the complex crime of forcible abdudion with rape.
Indeed, it would appear from the records that the main objective of
the accused when the victim was taken to the house of Mila
Salvacion was to rape her. Hence, forcible abduction is absorbl.ld
in the crime ofrape. (People vs. Lining, G.R. No. 138401, 11 July
2002, 384 SCRA
427; People vs. Napud, G.R. No. 123058, 26 September 2001, 366
SCRA25)
CRIMES AGAINST THE CIVIL
STAfUS OF PERSONS
Bigamy.
In Marbella-Bobis vs. ]]obis, we laid down tne elements of
bigamy, thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse has not been
preemptively declared dead;
SPECIFIC CRIMES 181
(8) he contract.s a subsequent marriage; and · .· · -
(4) the subsequent marriage would hav be n ·v lid J:ila.
1 it
not been for the existP.nce of the first. (Morigo vs. People, G)i."No.
145226, 06 February 004, 422 SCRA 376)
For the accused to be held guilty of big my, the
prosecution'is burdened to prove the felony: (a) he/she has been
legally married; and ( ) he/sh contracts a subsequent marriage
without the former mamage havmg been lawfully dissolved. The
felony is consummated on.the cele?ra ion of the second marriage
or subsequent m'arriage.
It 1s 7sse ntial _m the prosecution for bigamy that the alleged
second arnage, having all the essential requirements, would be
valid were
it not for the subsistence of the first marriage. mt
It does not
mat r whether the first marriage is void or voidable because such
marnages ha e j.u di7a l effects until lawfully dissolved by a
court of competent Junsd1ction. (Manuel us. People, G.R. No.
165482; 29
November 2005, 476 SCRA 461) . .
.,
u.bsequent Judicial declaration of the nulllty of the first
m·arrlage
1s immaterial. · · · , ..
'.fl1e subs quent j?dicial declaration of the nullity of th.e first
marn ge V11 as immaterial because prior to the declaration of nullity,
the me had already been consummated. Moreover, ·petitioner's
as ert1on would only delay the prosecution of bigamy cases consid
enng that an accussd could simply file a petition to declare his
previous marriage void and invoke the pendency of that action as a
prejudicial question in the criminal case. We cannot allow that.
!he outcome of the civil case for annulment of petitioner's
ma:i:iage ,to. Narcisa had no bearing upon the determination of
peti_tioner s 1 ocen or guilt in the criminal case for bigamy, be
cau::;e all that :s required for the charge of bigamy to prosper is
that the first mamage be subsisting at the time the second
marriage is contracted.
. Thus, under the law, a marriage, even one which is void or
vmdabl , shall be eemed valid until declared otherwise in a judicial
proceedi g. In thi case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is,
both the first and Lhe second marriage were subsisting before the
first marriage was annulled. (People vs. Abunado, G.R.No. 159218,
30 March 2004, 426 SCRA 562) .·
182 UPDATES IN CRIMINAL LAW
Mere. private act of signing a marriage contract bears no sem
blaoc:e to a valid marriage and thus, needs no judicial
declaration of nullity.
The first element of bigamy as a crime requires that the ac
cused must have been legally married. But in this case, legally speak
ing, the, petitioner was never married to Lucia Bar..-ete. Thus, t? re
is no first marriage to speak of. Under the principle of retroactiVIty
of a marriage being declared void ab initio, the two were never
married "from the beginning." The contract of marriage is null; it
bears no legal effect. Taking this argument to its logical conclusion,
for legal purposes, petitioner was not married to Lucia at the time
he contracted the marriage with Maria Jececha. The existence and
the validity of the first marriage being an essential e1 ement of the
crime of bigamy, it is but logical that a conviction for said offense
cannot be sustained where there is no marriage to Hpeak of. The
petitioner, must, perforce be acquitted of the instant charge.
The present case is analogous to, but must be distinguished
from Mercado vs. Tan. In the latter case, the judicial declaration of
nullity of the first marriage was likewise obtained after the second
marriage was already celebrated. We held therein that:
"A judicial declaration of nullity of a previous mar
riage is necessary before a subsequent one can be
legally contracted. One who entered into a subsequent
marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statutes as
'void."'
· It bears stressing though that in Mercado, the nrst marriage
was actually solemnized not just once, but twice; first before a judge
where a marriage certificate was duly issued and then again six
months later before a priest in religious rites. Ostensibly, at least,
the first marriage appeared to have transpired, although later de
clared void ab initio.
In the instant case, however, no marriage ceremony at all was
performed by a duly authorized solemnizing officer. Petitioner and
Lucia Barrete merely signed a marriage contract on their own. The
mere private act of signing a marriage contract bears no sembla ce
to a valid marriage and thus, needs no judicial declaration ofnulhty.
Such act alone, without more, cannot be deemed to constitute an
SPECIFIC CRIMES 183
ostensibly valid marriage for which petitioner might be held liable
for bigamy unless he first secures a judicial declaration of nullity
before he contracts a subsequent marriage. (Morigo vs. People;
G.R. No. 145226, 06 February 2004, 422 SCRA 376)
Dissolution of first marriage obtained abroad, not a defense.
In his comment, respondent Judge stated: "That the accused
married Manuel P. Diego in the honest belief that she was free
to.do so by virtue of the decree of divorce is a mistake of fact."
This Co11rt, in People vs. Bitdu, carefully distinguished
between a mistake of fact, which could be a basis for the defense of
good faith in a bigamy case, from a mistake of law, which does not
excuse a person, even a lay person, from liability. Bitdu held
that.even if the accused, who had obtained a divorce under the
Mohammedan cus tom, honestly believed :hat in contracting her
second marriage she was not committing any viol&tion of the law,
and that she had no criminal intent, the same does not justify her
act. This Court fur ther stated therein that with respect to the
contention that .the accused acted in good faith in contracting the
second marriage; be lieving that she had been validly divorced from
her first husband, it is sufficient to suy that everyone is presumed to
know the law, and the fact that one does not know that his act
constitutes a violation of the law does not exempt him from the
consequences thereof.
Moreover, squarely applicable to the criminal case for bigamy,
is People vs. Schneckenburger, where it was held that the accused
who secured a foreign divorce, and later remarried in the Philip pines,
in the belief that the foreign divorce was valid, is liable for bigamy.
(Diego vs. Castillo, A.M. No. RTJ-02-1673, llAugust 2004, 436 SCRA
67)
CRIMES AGAINST HONOR
Libel.
Libel is defined under Article 353 of the Revised Penal Code as
"a public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circum
stance tending to cause the dishonor, discredit or contempt of a
natural or juridical person, or to blacken the memory of one who is
dead." ·
184 UPDATES IN CRIMINAL LAW
Defamation; when actionable.
' ·ir: Defamation, which includes libel and slander, means the of
fense of injuring a person's character, fame or reputation through
false and malicious statements. It is that which t8nds to injure
reputation or to diminish the esteem, respect, good will or confi
dence in the plaintiff or to excite derogatory feelings or opinions
about the plaintiff. It is the publication of anything which is injuri
o,us to the good name or reputation of another or tends to bring
him into disrepute. Defamation is an invasion of a relational
interest since it involves the opinion which others in the
community may
have, or tend to have, of the plaintiff.
, It must be stressed that words which are merely insulting are
not actionable as libel or slander per se, and mere words of general
abuse however opprobrious, ill-natured, or vexatious, whether writ ten
or spoken, do not constitute a basis for an action for defamation in
the absence of an allegation for special damages. The fact that the
language is offensive to the plaintiff does not make it actionabfo by
itself. (MVRS Publications, Inc. us. Islamic Da'wah Council of the
Phils'. Inc., G.R. No. 135306, 28 January 2003, 396 SCRA 210)
Elements of libel.
To be liable for libel under Article 353 of thEc Revised Penal
Code, the following elements must be shown to exist. (a) the allega
tion of a discreditable act or condition concerning annther; (b) publi
cation of the charge; (c) identity of the person defamed; and (d)
existence of malice. (Magno us. People, G.R. No. 133896, 27
January 2006, 480 SCRA 276)
Thus, for an imputation to be libelous, it must be defamatory,
malicious, published, and the victim is identifiable. (Binay us.
Secre tary of Justice, G.R. No. 170643, 08 September 2006)
The imputation must be defamatory.
An allegation made by a person against another is considered
defamatory if it ascribes to the latter the commission of a crime;
the possession of a vice or defect, whether real or imaginary; or
any act, omission, condition, status or circumstance which tends
to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead. Brillante's statements
during the Janu ary 7, 1988 press conference and in the open
letter explicitly
SPECIFIC CRIMES 186
referred to reprehe:r,sibl.; acts allegedly committed by Binay, Prudente
and their associates, such as the use of goons to threaten ,Binay's
opponents in the election and the plotting of Syjuco's assassination.
(Brillante us. Court of Appeals, G.R. Nos. 118757 and 121571, 19
October 2004, 440 SCRA 541) . ·. ; '"' r ;
In determining whether a statement is defamatory, the words
used are to be construed in their entirety and should be taken in
their plain, natural ar,d ordinary meaning as they would naturally
be understood by persons reading them, unless it appears that they
were used and understood in another sense. (Binay vs. Secretary
• '
of
Justice, G.R. No. 170643, 08 September ;· ,• ;; ..
2006)
{•
For the purpose of determining the meaning of any publication
alleged to be libelous, we laid down the rule in Jimenez vs.Reyes, to
wit: f"'
"In Towney us. Simonson, Whitcomb & Hurley Co.
(109 Minn., 341), the court had the following to say on
this point: 'In determining whether the specified matter
is'libelous per se, two rules of construction are conspicu. - . :
ously applicabie: (1) That construction must be adopted1 ' '
which will give to the matter such a meaning as is iiafo
ral and obvious in the plain and ordinary sense in which
the public would naturally understand what was uttered;
(2) The published matter alleged to be libelous must be
construed as a whole.'"
In applying these rules to the language of an alleged libel, the
court will disregard f.ny subtle or ingenious explanation offered by
the publisher on being called to account. The whole question being
the effect the publication had upon the minds of the readers, and
they not having been assisted by the offered explanation in reading
the article, it comes too late to have the effect ofremoving the sting,
if any there be, from the words used in the publication.
Gauging from the above-mentioned tests, the words used in
the letter dated August 18, 1995 sent by petitioner to respondent is
defamatory. In using words such as "lousy," "inutile," "carabao En
glish," "stupidity," and "satan," the letter, as it was written, casts
aspersion on the character, integrity and reputation of respondent
as a lawyer which exposed him to ridicule. No evidence aliunde
r,eed be adduced to prove it. (Buatis vs. People, G.R. No. 142509,
24 March 2006, 485 SCRA 275)
186 UPDATES IN CRIMINAL LAW
In libel cases, the question is not what the writer of the libel ous
material means, but what the words used by him mean. (Figueroa us.
People, G.R. No. 159813, 09 August 2006)
When Is there publication?
Publication, in the law of libel, means the making of the defa
matory matter, after it has been written, known to someone other
than the person to whom it has been written. If the statement is
sent straight to a person for whom it is written there is no publica
tion of it. The reason for this is that "a communication of the defa
matory matter to the person defamed cannot injure his reputation
though it may wound his self-esteem. A man's reputation is not the
good opinion he has of himself, but the estimation in which others
hold him."
In People us. Siluela, the Court ruled that sending an ·.msealed
libelous letter to the offended party constitutes publication. In the
present .case, there is no dispute that the unsealed envelope con
taining the libelous letter was handed by Dolores to Evelyn
Arcartado.
Contextually, there was a reasonable probability that the contents
of the unsealed envelope, particularly the libelous letter, could have
been exposed to be read by Evelyn before delivering the same to
Cerelito.
XXX
Writing to a person other than the person defamed is sufficient
to constitute publication, for the person to whom the letter is ad
dressed is a third person in relation to its writer and the person
defamed therein. Fe, the wife, is, in context, a third person to whom
the publication was made. (Magno us. People, G.R. No. 133896, 27
January 2006, 480 SCRA 276)
It is enough that the author of the libel complained of has
communicated it to a third person. Fr..rthermore, the letter, when
found in the mailbox, was open, not contained in an envelope thus,
open to public. (Buatis us. People, G.R. No. 142509, 24 March 2006,
485 SCRA 275)
There is publication if the defamatory material is communi
cated to a third person, i.e., a person other than the person to
whom the defamatory statement refers. In the cases at bar, it was
proven that Brillante uttered defamatory statements during the
press con ference attended by some fifty journalists and caused the
open let-
SPECIFIC CRIMES 187
ter to be published in several newspapers, namely, News-1bday,
People's Journal, Balita, Malaya and Philippine Daily lnqui er,;rr
Further, Brillante himself admitted that he named; Binay,
Prudente and their associates as the persons who participated in
the planning of the election-related terrorism and the assassination
of Syjuco not only in his open letter but also during the press
confer
ence. (Brillan:te vs. Court of Appeals, G.R. Nos. 118757 and 121571,
19 October .'JOO.t, 440 SCRA 541) · ·: 1' ·d·i, 1: • ·; ' 1
,1!"·'.i
Malice.
Thus, the determinf.tion ofBriUante's culpability for libel
hinges on the question
. ofwhether his statements were made with
malice.
.
Malice is a term used to indicate the fact that. the offender is
prompted by personal ill-will or spite and speaks not in response
to duty, but merely to injure the reputation of the person defamed;
it implies an intention to do ulterior and unjustifiable harm. It is
present when it is shown that the author of the Hbelous remarks
made such remarks wit.Ii knowledge that it was false or with reck
less disregard as to the truth or falsity thereof. (Brillante us. Court
of Appeals, G.R. Nos. 118757 and 121571, 19 October 2004, 440
SCRA541)
Presumption of malice.
Article 354 of the Reviged Penal Code states, as a general
rule, that every defamatory imputation is presumed to be
malicious, even if true, ifno good intention and justifiable motive
is shown.
AB an exception to the rule, the presumption of malice is done
away with when the defamatory imputation qualifies as privileged
communication. (Brillante us. Court of Appeals, G.R. Nos. 118757
and 121571, 19 October 2004, 440 SCRA 541)
Thus, when the imputation is defamatory, the prosecution need
not prove malice on the part of petitioner (malice in fact), for the law
already presumes that petitioner's imputation is malicious (malice
in law). A reading of petitioner's subject letter-reply showed that he
malevolently castigated respondent for writing such a demand let
ter to Mrs. Quingco. There was nothing in the said letter which
showed petitioner's goud intention and justifiable motive for writing
the same in order to overcome the legal inference of malice. (Buatis
us. People, G.R. No. 142509, 24 March 2006, 485 SCRA 275)
188 UPDATES IN CRIMINAL LAW
Privileged communication.
·iPrivileged communication may either be absolutely privileged
or conditionally privileged. The Court in Orfanel us. P opZ: of the
Philippines differentiated absolutely privileged commumcat10n from
conditionally privileged communication in this manner:
"... A communication is said to be absolutely privi
leged when it is not actionable, even if its author acted
in bad faith. This class includes statements made by
mem bers of Congress in the discharge of their functions
as such official communications made by public officers
in the erformance of their duties, nd allega ions ?r state
ments made by the parties or their counsel in their plead
ings or motions or during the hearing of judicial
nroceed ings, as well as the answers given by witnesses
in r ply to
·questions propounded to them, in the course of said pro
ceedings, provided that said allegations or statemen s
are relevant to the issues, and the answers are responsive
or pertinent to the questions propounded to said
witnesses. Upon the other hand, conditionally or
.qualifiedly privileged communications are those
which, altho gh containing defamatory imputations,
would not be act10n able unless made with malice or
bad faith." (Emphasis
supplied.)
Conditionally or qualifiedly privileged communications are
those mentioned in, Article 354 of the Revised Penal Code, to wit:
1. A private communication made by a perso.n to an-
other in the performance of any legal, moral, or s0cial duty;
and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial, legi lative, or other
official proceedings which are not of confidential nature, r of
any statement report, or speech delivered in said proceedmgs,
or of any act erformed by public officers in the exercise of
their functions.
Brillante claims that he wrote the open letter and uttered the
statement complained of during the January 7, 1988 press confer
ence out of a social duty to disclose to all concerned the dangers to
which he and his fellow candidate Syjuco were exposed in view of
the concerted actions of Binay and Prudente. In effect, he argue.q
SPECIFIC CRIMES 189
that his defan,atory statements and utterances fall under Article
354, No. 1 and are in the nature of privileged communication; hence,
malice c1:1nnot be presumed but must be established beyond reason-
able doubt. · ·· · ·;
In order to prove that a statement falls within the purview of a
qualifiedly privileged communication under Article 354, No. l, the
following requisites must concur: (1) the person who made the com
munication had a legal, mo!'al, or social duty to make the communi
cation, 01' at least, had an interest to protect, which interest may
either be his own or of the one to whom it is made; (2) the communi
cation is addressed to an: officer or a board, or superior, having some
interest or duty in the matter,' and who has the power to furnish the
protection sought; and (3) the statements in the communication' are
mad'? in good faith and without malice. · · '· ·, 1 ' 1 '
1•
With respect to the first requisite, the Court in U.S.,us. Canete
clarified that the interest sought to be protected by the person mak ing
the communication need not be his own, but may refer: to an interest
shared by the other members of society.
H may therefore be argued that Brillante's statements, which
according to h m were made in order to protect himself and Syjuco
as Binay's ri':'ala in the 1988 elections, as well as to protect the
electorate from possible acts of terrorism by Binay, Prudente and
their associates and from casting their votes for undeserving
candi dates, satisfy the fo st requisite.
However, as the Solicitor General noted, Brillante's statements
were based merely on unconfirmed intelligence reports. His belief in
such intelligence reports hardly justifies the publication of such se
rious imputations against his political rivals. As a journalist and as
a candidate for public office, Brillante should have known that it is
neces.:,ary to further verify the truth or at least the reliability of the
intelligence reports beiore making them public. His hasty publica tion
thereof negates the existence of good faith and justifiable mo tives.
The pronouncement of the Court in U.S. us. Gal 'a is enlight-
ening: · ·-· 1
". . . Every communication is privileged which is
made in good faith with a view to obtain redress for some
injury received or to prevent or punish some public abuse.
The privilege should not be abused. If such communica•
190 UPDATES IN CRIMINAL LAW
tion be made maliciously and without probable cause, the
·pretense under which it is made, instead of furnishing a
defense; will aggravate the case of the defendant. And a
party will be taken to have acted maliciously ifhe
eagerly seizes on some slight and frivolous matter, and
without any inquiry into the merits, without even
satisfying him self that the account of the matter that has
reached him is' correct, hastily concludes that a great
public scandal has been brought to light which calls for
the immediate intervention of the people... " (Citations
omitted.1
It is, however, the absence of the second element ofa privileged
communication that unequivocally negates the characterization of
Brillante's statements as privileged communication.The law requires
that for a defamatory imputation made out of a legal, moral or social
duty to be privileged, such statement must be communicated only to
the person or persons who have some interest or duty in the matter
alleged, and who have the power to furnish the protection sought by
the author of the statement.
In the cases at bar, although the open letter was primarily
addressed to then President Aquino, the communication thereof was
not limited to her alone. It was also published in several newspa
pers of general circulation and was thus made known to the general
public. Even if the interest sought to be protected belongs not just to
Brillante but to the public in general, certainly, the general public
does not have the power to remedy the alleged danger.;i sought to be
prevented by Brillante in publishing the open letter or in uttering
similar statements during the January 7, 1988 press conference.
Brillante employed the shotgun approach to disseminate the infor
mation which essentially destroyed the reputations of the complain
ants. His lack of selectivity is indicative of malice and is anathema
to his claim of privileged communicat10n.
In Daez us. Court of Appeals, Daez was charged with libel for
publishing a letter which accused the Mayor of Meycauayan, Bulacan
of corruption. The letter addressed to the Mayor was sent not only
to him but also to the J\lunicipal Court, Municipal Council and Chief
of Police of Meycauayan, Bulacan. Daez contended therein that he
was not guilty of libel because he was not motivated by malice or ill
will in publishing the letter, but rather, he did it out of good inten
tions and a social duty to bring about reforms in the administration
of the municipal government of Meycauayan, Bulacan. The Court
affirmed his conviction for libel and held:
SPECIFIC CRIMES 191
"... The goodness of the intention is not always
sufficient by its lf to justify the publication of an injuri- ·
ous fact; thus the goodness of the end is not a sufficient
motive to warrant the employment of illicit means to ob
a·
tain it. The existence of justifiable motives is question
which has to be decided by taking into consideration not
only the intention of the autl:1or of the publication but all
the uther circumstances of each particular case: : .'>:.. corn
'
munication made bona fide upon any subject'matter''iii'
which the party communicating has. an interest', or''t:n
reference to which he has a duty, is privileged, if made. to'
a person r;iaving a corresponding interest or duty, altlfough
it contained criminatory matter.which -without this piivi. -'
lege would be slanderous and actionable. However, writ! . a
ter, letter containing libelous matter cannot be classifiect
as privileged when it is published and circulated a'rhong
a
the public... AB a rule, it is the right and duty of 1citii eh
to make a complaint of any misconduct on the, part' of
public officials, which comes to his notice, to those
charged with supervision over them. Such a
communication is qualifiedly privileged and the author is
not guilty oflibel. The rule on privilege, however, imposes
an additional re quirement. Such complaints should be
addressed solely to some official having jurisdiction to
inquire into the charges, or power to redress the grievance
or has some duty to perform or interest in connection
therev,rith. In the in stant case, none of the persons to
whom the letter was sent, was vested with the power of
supervision over the mayor or the authority to investigate
the charges made against the latter." (Citations omitted.)
Thus, the Court agrees with the finding of the Court of Appeals
that the E"tate:ments made by Brillante during the press conference
and in the onen letter do not qualify as privileged communication,
Indeed, the purpose of affording protection to privileged
com munication is to permit. all interested persons or citizens with
griev ances to freely communicate, with immunity, to the persons
who could furnish the protection asked for. However, to shield
such privi lege from abuse, the law itself requires at all times that
such peti tions or communications shall be made in good faith or
with justifi able motives. If it is established that the
communication was made maliciously or to persons who could not
furnish the protection sought,
192 UPDATES IN CRIMINAL LAW
then the author thereof cannot seek protection under the law. As
was explained by the Court in Canete:
"Th'e plainest principles of natural right and sound
public policy require that the utmost possible frl)edom
should be accorded every citizen to complain to the super
vising, removing and appointing authorities of th3 mis
con :uct of the public officials with whom he com s into
contact, and like considerations make it equally ;)roper
that members of a religious organization should enjoy
equal freedom in bringing to the attention of the church
authorities the misbehavior of their spiritual.leaders or of
fellow-members. Manifestly, the right must be exercised
in good faith, and may not with impunity be made the
occasion for the venting of private spite. It is subject to
the limitation and restriction that such complaints must
b ·rii.ade to a functionary having authority to redress the
evils complained of; that they must be made in go•>d faith
and that they must not be actuated by malice."
The Court in Lu Chu Sing us. Lu Tiong Gui clarified that the
fact that a communication is privileged does not mean that it is not
actionable; the privileged character of the communication simply
does away with the presumption of malice, and the phintiff has to
prove the fact of malice in such case.
However, since the open letter and the statements uttered by
Brillante during the January 7, 1988 press conference are defama tory
and do not qualify as conditionally privileged communication, malice·
is presumed and need not be proven separately from the existence of
the defamatory statement. (Brillante us. Court of Ap peals, G.R.
Nos. 118757 and 121571, 19 October 2004, 440 SCRA
541)
Moreover, the law requires that for a defamatory imputation
made out of a legal, moral or social duty to be privileged, such
statement must be communicated only to the person or persons who
have some interest or duty in the matter alleged, and who have the
power to furnish the protection sought by the author of the state
ment. A written letter containing libelous matter cannot be classi fied
as privileged when it is published and circulated among the public. In
this case, petitioner admitted that he dictated the letter to one of her
secretaries who typed the same and made a print out of the
computer. While petitioner addressed the reply-letter to respon-
SPECIFIC CRIMES 193
dent, the same letter showed that it was copy furnished to all con
cerned. His lack of selectiV!ty is indicative of malice and is anath
ema to his claim of privileg d communication. Such publication
had already created upon the minds of the readers a circumstance
which brought discredit and shame to respondent's reputation.
(Buatis vs. People, G.R. No. 142509, 24 March 2006, 485 SORA
275)"'.
"Political libel."
Neither does the Court find any basis in law to uphold
Brillante's proposition that his statemants made during the January
7, 1988 press conference and those in his open letter constitute
"political libel" and should thuo bfi exempt from liability.
Unfounded and ma licious statements made by one against another
in the course of an election campaign, or by reason of differences
in political views are not per se constitutionally protected speech.
Our laws on defamation provide for sanctions against unjustified
and malicious,injury to a person's reputation and honor. Although
wider. latitud , s given to defamatory utterances against public
officials in connection with or relevant to their performance of
official duties, or against public figures in rtilation to matters of
public interest involving them, such
defamatory utterances do not automatically fall within the ambit of
constitutior,ally protected speech. If the utterances are false, mali
cious or unrelated to a public officer's performance of his duties, the
same may give r·:se to criminal and civil liability. (Brillante vs.
Court of Appeals, G.R. Nos. 118757 and 121571, 1'9 October
2004, 440 SCRA.541)
Penalty for libel.
The penalty for libel by means of writing or similar means is
prision correccional in its minimum and medium periods, or a fine
ranging from 200 to G,000 pesos, or both, in addition to the civil
action which may be brought by the offended party. It is likewise
settled that a single defamatory statement, if published several times,
gives rise to as many offenses as there are publications. This is the
"multiple publication rule" which is followed in our jurisdiction, as
explained in Soriano vs. Intermediate Appellate Court: '
I :;
"We follow the "multiple publication" rule in the Phil
ippines. Thus, in the cases of Montinola D. Montalvo (34.:
Phil. 662, [1916)) and United States vs. Sotto (36 Phil. 389
194 UPDATES IN CRIMINAL LAW
[1917]), this Court ruled that each and every publication
•.of the same libel constitutes a distinct offense. Stated
more succinctly for purposes of ascertaining jurisdiction
under Art. 860 of the Revised Penal Code, as amended,
every time the same written matter is communicated such
communication is considered a distinct and separate pub
lication of the libel.
"We explained this as follows:
The common law as to causes of action for
tort arising out of a single publication was to the
effect that each communication of a written or
printed mat ter was a distinct and separate
publication of a libel contained therein, giving rise
to a separate cause of action. This rule ('multiple
publication' rule) is still followed in
severalAmericanjurisdictions, and seems to be
favored by the American Law Institute. Other
jurisdictions have adopted the 'single publication'
rule which originated in New York, under which
any single integrated publication, such as one
edition 0f a news paper, book, or magazine, or one
broadcast, is treated as a unit, giving rise to only
one cause of action, regardless of the number of
times it is exposed to different people... (50 Am.
Jur. 2d 659 cited in Time, Inc. us. Reyes, 39 SCRA
801, 813 [1971]). (Brillante us. Court of Appeals,
G.R. Nos. 118757 and 121571, 19 October 2004,
440 SCRA 541)
However, upon motion for reconsideration subsequently
filed by Brillante, the Supreme Court modified its earlier ruling in
the Brillante case, thus;
«we believe, however, that the penalty of imprison
ment imposed against Brillante should be re..examined
and reconsidered. Although this matter was neither
raised in Brillant.e's petition nor in the instant motton,
we ad vert to the well-established rule that an appeal in
a crimi nal proceeding throws the whole case open for
review of all its aspects, including those not raised by
the parties.
"In Mari us. Court of Appeals, petitioner therein was
found guilty of slander by deed penalized under Art. 359
SPECIFIC CRIMES 195
of the Revised Penal Code (Penal Code) by either impris-··, ··
onment or fine. In view of the fact that the offen!ie was
done in the heat of anger and in reaction to a perceived
provocation, the Court opted to impose the penalty offine. ,,
instead of imprisonment.
"In this case, Brillante claims that on. January 6,
1988, his friend's house wa5 bombed resulting in the
death of three people. This incident. allegedly impelled.
him, qut of moral and social duty, to call a press
conference on January 7, 1988 with the intention of
exposing what he believed were terrorist acts committed
by private.respon- dents against the electorate o.fMakati
City. . ·
'We find that the circumstances surrounding the
writing of the open letter on which the libelous publica• tions
were based similarly warrant the impo1 sit ion of the penalty
of fine only, instead of both imprisonment and; ·. fine, in
accordance with Art. 355 of the Penal Code: The
intensely feverish passions evoked during the election pe-·
riod in 1988 must have agitated petitioner into writing .
his open letter. · · '
"Moreover, while petitioner failed to prove all the
elements of qualified privileged communication under par.
1, Art. 354 of the Penal Code, incomplete privilege should
be appreciated in his favor, especially considering the
wide. latitude traditionally given to defamatory utterances
against public officials in connection with or relevant to
their performance of official duties or against public fig
ures in relation to matters of public interest involving
them. '·· '·
"The foregoing circumstances, in our view, justify
the deletion of the penalty of imprisonment and the re
tention of the meted fine only." (Brillante us. Court of
Appeals, G.R.Nos.118757 and 121575, 11 November 2005,
474 SCRA 480)
The couits are given the discretion to choose ,vhether :to im
pose a single penalty or conjunctive penalties; that is, w ether to
impose a penalty of fine, or a penalty of imprisonment only, or a
penalty of both fine and imprisonment. (Buatis us.,People, G.R.
No. 142509, 24 March 2006, 485 SCRA 275) .
196 UPDATES IN CRIMINAL LAW
Defamatory statements against public officials.
In the recent case of Vasquez vs. Court of Appeals, et al., we
ruled that:,
"The question is whether from the fact that thestate
ments were defamatory, malice can be presumed so that
it was incumbent upon petitioner to overcome such pre
sumption. Under Art. 361 of the Revised Penal Code, if
the defamatory statement is made against a pt..blic offi
cial with respect to the discharge of is official dtdes and
functions and the truth of the allegation is shown, the
accused will be entitled to an acquittal even though he
does not prove that the imputation was published with
good motives and for justifiable ends."
Moreover, this Court has ruled in a plethora of cases that in
libel cases against public officials, for liability to arise, the alleged
defamatory statement must relate to official conduct, even if the
defamatory statement is false, unless the public official concerned
proves that the statement was made with actual malice, that is.
with knowledge that it was false or not. Herc peti ti.oner failed to
prove actual malice on the part of the private respondents. (Jalandoni
vs. Hon. Secretary of Justice, G.R. Nos. 115239-40, 02 March
2000, 327 SCRA 107J
"Actual malice" rule applies also to public figu es.
The Supreme Court has extended the "actual malice" rule to
apply not only to public officials, but also to public figures. In Ayer
Productions Pty. Ltd. vs. Capulong, the Court cit d with approval
the following definition of a public figure propounded by an Ameri
can textbook on torts;
"A public figure has been defined as a person who,
by his accomplishments, fame, or mode of living, or by
adopting a profession or calling which gives the public a
legitimate interest in his doings, his affairs, and his char
acter, has become a 'public personage.' He is, in other
words, a celebrity. Obviously to be included in this cat·
egory are those who have achieved some degree of
reputa tion by appearing before the public, as in the case
of an actor, a professional baseball player, a pugilist, or
any other entertainer. The list is, however, broader than
this.
SPECIFIC CRIMES 197
It includes public officers, famous inventors and explor ers,
war heroes and even ordinary soldiers, an infant., '
prodigy, and no less a personage than the Grand Exalted .
Ruler of a lodge. It includes, in short, anyone who has
arrived at a position where public attention' is focused
upon him as a person." ··· '·" '
XXX
We considered the following proposition as settled in this
juris diction: that in order to justify a conviction for criminal libel
against a public figure, it must be e tablished beyond reasonable
doubt that the libelous statements were made or published with
actual malice, meaning knowledge that the statement was false or
with reckless disregard as to whether or not it was true. As applied
t-0 the present petition, there are two main determinants: whether
complainant is a public figure, and assuming that he is, whether
the publication of
the subject advertisement was made \vith actual malice. xxx.
There should be little controversy in holding that complainant
is a public figure. He is a broadcast joumalist hosting two radio
programs aired over a large portion of the Visayas and Mindanao.
XXX.
As it has been established that complainant was a public fig
ure, it was incumbent upon the prosecution to prove actual malice
on the part of Lim and petitioner when the latter published the
article subject matter of the complaint. Set otherwise, the prosecu
tion must have established beyond reasonable doubt that the defen
dants knew the statements in the advertisement was false or none
theless proceeded with reckless disregard as to publish it whether
or not it was true.
It should thus proceed that if the statements made against the
public figure are essentially true, then no conviction for libel can be
had. Any statement that does not contain a provably false factual
connotation will receive full constitutional protection. (Guinggui11.g
vs.Court of Appeals, G.R. No. 128959, 30 September 2006, 471
SCRA
196)
Venue of criminal and civil actions In libel cases.
The possible venues for the institution of the crhninal and the
civil aspects of said case are concisely outlined in Article 360, of the
Revised Per.al Code, as amended by Republic Act No. 4363. ' ,',, ,
198 UPDATES IK CRIMINAL LAW
In Agbayani vs. Sayo, we summarized lhe foregoing rule in the
following manner:
"1. Vvnether the offended party is a public official or a
private person, the criminal action may be filed in the Cour: of
First Instance of the province or city where the libelous article
is printed and first published.
"2. If the offended party is a private individual, the crimi
,nal action niay also be filed in the Court of First Instance oft
e province wh•e heactually resided at the time of the
commis sion of the offense.
"3. If the offended party is a public officer whose office
is in Manila at the time of the commission of the offense, the
action mav be filed in the Court of First Instance of Manila.
. "4. If the offended party is a public officer holding office
outside of Manila the action may be filed in the Court of First
Instance of the pr vince or city where he held office at the time
of the commission of the offense."
In the case at bar, private respondent was a privntc citizen at
the time of the publication of the alleged libelous article, hence, he
could only file his libel suit in the City of Manila where Abante was
first published or in the province or city where he actually resided at
the time the purported libelous article was printed.
A perusal, however, of the information involved in this
case easily reveals that the allegations contained therein are utterly
insuffi.cie t to vest jurisdiction on the RTC of Quezrm City. Other
than perfunctorily stating "Quezon City" at the beginning o_f the
information, the assistant city prosecutor who prepared the infor
mation did not bother to indicate whether the juriodiction of RTC
Quezon City was invoked either becau eAbante ":'as printed in hat.
place or private respondent was a resident of said city at th tune
the claimed libelous article came out. As these matte1·s deal with the
fundamental issue of the court's jurisdiction, Article 360 of the Re
vised Penal Code, as amended, mandates that either one of these
statements must be alleged in the information itself and the ab
sence of both from the very face of the information renders the latter
fatally defective. Sadly for private respon ent, t e information fil d
before the trial court falls way short of this reqmrement. The asSlS·
tant city prosecutor's failure to properly lay the asis for i;ivokll:g
the jurisdiction of the RTC, Quezon City, effectively demed said
court of the power to take cognizance of this case.
· SPECIFIC CRIMES 199
For the guidance, therefore, of both the bench and the bar,
this Court finds it appropriate to reiterate our earlier
pronouncement in the case of Agbayani, to wit:
"In order to obviate controversies as to the venue, of.
the criminal action for written defamation, the complaint
or information should contain allegations as to whether,
at tbe time the offense was committed, the offended
party, was a public officer or a private individual and
where he was actually residing at that time. Whenever
possible; the place where the written defamation was
print<1d and"
first published should likewise be alleged. That allega- ··
tion would be a sine qua non if the circumstance _as to
where the libel was printed and first published is used as
the basis of the venue of the action." (Macasaet vs.
People,,.,·.
G.R. No. 156747, 23 February 2005, 452 SCRA 255).. , ,..
Oral defamation or slander.
Slander is libel committed by oral (spoken) means, instead of
in writing. The term oral defamation or slander as now understood,
has been defined as the speaking of base and defamatory words
which tend to prejudice another in his reputation, office, trade, busi
ness or means of livelihood.
There is grave slander when it is of a serious and insulting
nature. The gravity 1,f the oral defamation· depends not only: (1)
upon the expressions used, tut also, (2) on the personal relation.a
of the accused and the offended party, and (3) the circumstances
sur rounding the case. Indeed, it is a doctrine of ancient
respectability that defamatory words will fall under one or the
other, depending not only upon their sense, grammatical
significance, and accepted ordinary mean ng judging them
separately, but also upon the spe cial circumstances of the case,
antecedents or relationship between
the offended party and the offender, which might tend to prove the
intention of the offender at the time. (Villanueva usPeople, G.R.
No. 160351, 10 April 2006, 487 SCRA 42)
In Rryes us. People, we ruled that the expression-"putang ina
mo" is a common enough utterance in the dialect that is often em
ployed, not really to slander but rather to express angei: or
displea sure. In fact, more often, it is just an expletive that
punctuates one's expression of profanity. We do not find it
seriously insulting that after a previous incident involving his
200 UPDATES IN CRIMINAL LAW
on seeing Atty. Escolango would utter words expressing anger. Obvi
ousl)\•the intention was to show his feelings of resentment and not
necessarily to insult the latter. Being a candidate running for vice
mayor, occasional gestures and words of disapproval or dislike of his
person are not uncommon. (Pader vs. People, G.R. No. 139157, 08
February 2000, 325 SCRA 117)
r
Malice as an element in oral defamation.
To say that a person is a thief is irrefragably grave oral defa
mation. This imputes to him a crime that is dishonorable or con-
temptuous.
It must be remembered that every defamatory imputation is
presumed to be malicious, even ifit be true, ifno good intention and
justifiable motive for making it is shown. And malice may be in
ferred from the style and tone of publication subject to certain ex
ceptions which are not present in the case at bar. Indeed, calling
Daylindaa thief is defamation against her character and reputation
sufficient to cause her embarrassment and social humiliation.
(Canal vs. People, G.R. No. 163181, 19 October 2005, 473 SORA
403)
Slander by deed.
Slander by deed is a crime against honor, which is committed
by performing any act, which casts dishonor, discredit, or contempt
upon another person. The elements are: (1) that the offender per
forms any act not included in any other crime against honor, (2) that
such act is performed in the presence of other person or persons,
and (3) that such act casts dishonor, discredit or contempt upon the
offended party. Whether a certain slanderous act constitutes slan der
by deed of a serious nature or not, depends on the social stand ing
of the offended party, the circumstances under which the act was
committed, the occasion, etc. It is libel committed by actions rather
than words. The most common examples are slapping some· one or
spitting on his/her face in front of the public market, in full view ofa
crowd, thus casting dishonor, discredit, and contempt upon the
person of another. (Villanueva vs. People, G.R. }lo 160351, 10
April 2006, 487 SCRA 42)
Pointing.a dirty finger may constitute slander by deed.
Pointing a dirty finger ordinarily connotes the phrase "Fuck
You," which is similar to the expression "Puta" or "Puta.ng Ina mo,"
father, a drunk Rogelio Fader
SPECIFIC CRIMES 201
in local parlance. Such expression was not held to be·libelous in
Reyes v Pe ple, wh re the Court said that:"This is a common
enough• expression m the dialect that is often employed, not really
to slan der but rather to express anger or displeasure. It is seldom
if ever. en in its literal sense by the hearer, that is, as a
reflectio on th; virtues of a mother." Following Reyes, and in light
of the fact that
the_r wa a perce ve provocation coming from complainant,
P;t1tioner s act of pointing a dirty finger at complainant constitutes
slDlple slander by deed, it appearing from the factual milieu ofthe
case that the a-:t complained of was employed by petitioner "to
ex press anger •.lr displeasure" at complainant for procrastinating
the approv l of his leave monetization. While it may have cast
dishonor, d1scred1t or contempt upon complainant, said act is not
of a serious nature, thus, the penalty shall be arresto menor m
aning, imprison ment from one day to 30 days or a fine not
exceeding P200.00. (Villanueva vs. People, G.R. No. 160351, 10
April 2006, 487 SCRA
42) . · ,; .,· .. , ..
QUASI-OFFENSES
Imprudence and negligence.
Art. 305 of the Revised Penal Code, as amended states that
ck.less I?prudence consists in voluntarily, but withou't malice, do
mg or fail ng to do an act from which material damage results by
reason f inexcusable lack of precaution on th part of the person
performmg such act. Compared to intentional felonies such as ho
micide or murder, what takes the place of the element of malice or
intention to commit a wrong or evil is the failure of the offender to
take precautions .due to lack of skill taking into account his
employ ment, r occupation, degree of intelligence, physical
condition, and other circumstances regarding persons, time, and
place;
The elements of reckless imprudence are apparent in the acts
done by accused-appellants which, because of their lack of medical
skill in treathg the victim of his alleged ailment resulted in the
latter's death. As already stated, accused-appellants none of whom
is ,a 1edic.al practitioner, belong to a religious grou , known as the
Miss10nanes of Our Lady of Fatima, which is engaged in faith heal
ing. (People vs. Carmen, G.R. No. 137268 26 March 2001 355
SCRA
267) ' '
nder Article 365 of the Revised Penal Code, criminal negli
gence 1s treated as a mere quasi offense, and dealt with separately
202 UPDATES IN CRIMINAL LAW
SPECIFIC CRIMES 203

from·willful offenses. It is not a question of classification or termi

nology. In intentional crimes, the act itself is punished; in negli (3) wher the defendant, to stop a fist fight, fired his .45
gEJnce or imprudence, what is principally penalized is the mental caliber pistol twice in the air, and, as the bout continued, he fired
attitude or condition behind the act, the dangerous recklessness, another shot at the ground, but the bullet ricocheted and hita by
lack of care or foresight, the imprudencia punible. Much of the con• stander who died soon thereafter. ( eople vs. Belbe,'!, G.R. No.
124670 21 June 2000, 334 SCRA 161)
fusion has arisen from the common use of such descriptive phrase
as 'homicide through reckless imprudence', and the like; when the '
strict technical sense is, more accurately, 'reckless imprudence re,;
suiting in homicide'; or 'simple imprudence causing dnmages to prop ; ' '.(, ·.,t, • .. ....,
erty."' (Rafael Reyes Trucking Corp. vs. People, G.R. No. 129029, 03 Violation of Article 365 of the RPC cannot absorb violation of spe
April 2000, 329 SCRA 600) cial laws.
On petitioners' claim that the charge for violation ,of Article
Higher penalty to be Imposed If the offender fails to lerid on. th 365 of the RPC "absorbs" the charges for violation of P.D. No.·1067
spot h.elp to the victim. P.D. No. 984, and R.A. NI). 7942, suffice it'to say that·a nia/a in
felony (such as Reckless Imprudence'Resulting·in Damage·to Prop
s
,' · ·Nothing is said by the CA decision regarding the limiting ele-:
ment in the last paragraph of Article 365, which reads:"The penalty erty) cannot absorb mala prohibita crimes (such ,as those violating
P.D. No. 1067, P.D. No. 984, and R.A. No. 7942). What makes .the
;
next higher in degree to those provided in this article shall be im·
posed upon the offender who fails to lend on the spot such help as former a felony is minal intent (dolo) or negligence (culpa); what
may be in his hands to give." xxx. · makes the latter cnmes are the special laws enacting them.
(Loney vs. People, G.R. No. 152644, 10 February 2006, 482 SCRA
The assistance required by Article 365, Revised Penal Code, is 194).
one which "may be in the hands of the offender to give." We must
therefore take into consideration the type and degree of assistance ,, '

that the offender, at the time and place of the incident, is capable of
giving.
Under the circumstances of this case, we find that petitioner
is not a hit-and-run driver. He exerted efforts to see to it that the
victim had been attended to. xxx.
· ·In sum, we hold that the attendant circumstance of failure to
lend assistance defined in the last paragraph of Article 365, Revised
Penal Code, was not adequately proved by the evidence for the pros
ecution. (Abueva vs. People, G.R. No. 134.387, 27 September 2002,
390SCRA 62)

Illustrations of reckless imprudence resulting in homicide:

(1) exhibiting a loaded revolver to a friend, who was killed by
the accidental discharge brought about by negligent handling; or
(2) discharging a firearm from the window of one's house
and killing a neighbor who just at the moment leaned over the
balcony front; or

SPECIAL LAWS
PROBATION LAW (P.O. NO. 968)
Dlsquallfiea offenders:
Under Section 9 of the Probation Law, P.D. No. 968, the
follow ing offenders cannot avail of the benefits of probation:
· a) those sentenced to serve a maximum tenn of imprison
mJnt of more than six years;
b) those convicted of subversion or any crime against the
national security or the public order;
c) those who have previously been convicced by final judg-
ment of an offense punished by imprisonment of not less than one
month and one day and/or fine of not less than two hundred pesos;
d) those who have been once on probation under the provi
sions of this Decree; and
e) those who are already serving sentence at the time the
substantive provisions of this Dl!Cree became apphcaLle pursuant to
Section 33 hereof.
Previous conviction relates to a crime other than that for which
the offender is applying for probation.
Section 9 paragraph (c) is in clear and plain langua e, to the
effect that a person who was previously convicted by fmal
Judgment of an offense punishable by imprisonment of not less
than one monf:11 and one day and/or a fine of not less than two
hur:d.red pesos, disqualified from applying for probatio . is pr
v1s1on of law 18 definitive and unqualified. There is nothmg m
Section 9, para ph
(c) which qualifie!' "previous conviction" as referring to a
.conviction fora crime which is entirely different from that for which
the of fender is applying for probation or a crime which arose
out ofa
204
SPECIAL LAWS 205
single act or transaction as petitioner would have the court to un
derstand. (Pablo vs. C stillo, G.R. No. 125108, 03 August 2000, 337
SCRA 176)
No application for probation shall be entertained or granted If the
accused has perfected an appeal from the judgment of_co x!ctlon.
Petitioners contend that they should be allowed to apply for
probation even if they had already appealed the decision ofthefti'ial
court. They argue that their case should be considered,an exception
to the general rule which excludes an accused who has appealed,his
comr:iction from the benefits of probation. In the case at bar1 the tri l
court senter,ced petitioners to a maximum term of eight years, which
was beyond the cover9.ge of the Probation Law. They only
became eligible fo:' probation after the Court of Appeals modified
the judg ment of the trial court and reduced the maximum term of
the pen alty imposed on them to one year, eight months and·
twenty-one days. They ::iubmit that the ruling in the case of
Francisco vs. CA is not applicable because in that case, the
accused appealed their con viction notwithstanding the fact that
the maximum term of the prison sentence imposed on them by the
trial court was less than six years.
In its Comment, the Office of the Solicitor General reiterates
the express provision of P.D. No. 968 prohibiting the grant of proba
tion to those who have appealed their convictions. It argues that,
even if the JJetitioners have appealed for the purpose of reducing an
incorrect penalty, this fact does not serve to remove them from the
prohibition in Section 4 of P.D. No. 968 for the law makes no such
distinction.
There is no question that petitioners appealed from the deci
sion of the trial court. This fact alone merits the denial of petition ers'
Application for Probation. Having appealed from the judgment of
the trial comt and having applied for probation only after the Court
of Appel'!ls had affirmed their conviction, petitioners were clearly
precluded from the benefits of probation. .,, , , ' ' ,.
Howevl:lr, petitionerl!.110W ask not to apply the letter of the
law, claiming that their situation should be considered an 'exception
to the rule. Their petition is without merit. · ' ·
Petitioners repeatedly assert that their application for proba
tion was made at the "first opportunity," undoubtedly invoking the
fourth "wheraas" clause of P.D. No. 1990, which reads:
 UPDATES IN CRIMINAL LAW
206
. "WHEREAS, probation was not intended 11s an es-
. f cape hatch and should not be used to obstruct nd delay
the administration of justice, but should be availed of at
the first opportunity by offenders who are willing to be
reformed and rehabilitated; xxx.''
To bolster this assertion, petitioners claim that what
prompted them to appeal the decision of the trial court was the
erroneous penalty imposed by the trial court.
Petitioners are not being very candid. In their appellant's brief
filed in CA-G.R. CR No. 20632, they raised the following assignment
of errors:
I the accused filed an application for probation. On the 14th day there.
THAT THE LOWER COURT ERRED IN
FINDING BOTH ACCUSED GUILTY OF THE
OFFENSE CHARGED BECAUSE THE EVIDENCE
AGAINST THEM LACKS MORAL CERTAINTY.
II
IF EVER ACCUSED ARE GUILTY, THE LOWER
COURT ERRED IN IMPOSING THE PROPER PRNAI,TY
AS PROVIDED BY LAW.
The fact that petitioners put the merits of their conviction in
issue on appeal belies their claim that their appeal was prompted
by what was admittedly an incorrect penalty. Certamly, the
protesta tions of petitioners connote a profession of gu1ltles ness, 1 f
not com plete innocence, and do not simply assail the ropnety of
the penal ties imposed. For sure, petitioners mver rnamfested that
they wen, appealing only for the purpose of correctmg a wron
penal-t to
reduce it to within probationable range. Hence, upon 1:nterpo.s ng
an appeal, more 80 after asserting their inn cence therein! petiti?
ners should be precluded from seeking probation. By perfo tmg
thell' ap peal, petitioners ipso facto relinquished the altern tiv r
medy of availing of the Probation Law, the purpose of which 1s
simply to
prevent speculation or opportunism on the part of an accus d who,
although already eligible, does not at once apply for probation,
but did so only after failing in his appeal.
'Although it has been suggested that an appeal sho d not
bar
the accused from applying for probation if the appeal is solely to
SPECIAL LAWS 207
reduce the penalty to within the probationable limit may be equi
table, we are not yet prepared to accept this proposition, specially
giv<'n the factual circumstances of this case. Had the petitioners'
appeal from the decision of the trial court raised the impropriety of
the penalty imposed upon them as the sole issue, perhaps this Court
would have been more sympathetic to their plight. Unfortunately,
their misrepresentation hus led to their own undoing. (Lagrosa vs.
People, G.R. No. 152044, O:J July 200,'J, 405 SCRA 357)
The filing of an application for probation is deemed a waiver of
the right to appeal. ''
Facts: On the date the judgment of conviction was promulgated,
from, accused withdrew ':laid application for probation and filed no
tice of appeal. The trial court denied accused's notice ofappeal.' '
Is the order denying the notice of appeal correct? ,
Ruling: Section 7, Rule 120, of the Rules on Crimfoai Proce
dure is explicit that a judgment in a criminal case becomes final
when the accused has applied for probation. This is totally in accord
with Section 4 of Presidential Decree No. 968 (Probation Law of
1976, as amended), which in part provides that thefiling of an appli·
cation for pr0bation is deeTPed a waiver of the right to appeal. Thus,
there was no more opportunity for petitioner to exercise her right to
appeal, the judgrri:,nt having become final by the filing of an applica
tion for probation. (Vicoy vs. People, G.R. No. 138203, 03 July 2002,
383 SCRA 707)
INDETERMINATE SENTENCE LAW (R.A. NO. 4103)'
f'pplying the ISLaw, how is the penalty for an offense
lniposedir
'. , '"I ' .'; 'I
Under the Indeterminate Sentence Law, the maximwn term.of
the penalty shall be "that which, in view of the attending circum
stances, 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 he ?enalty pres?ri?ed Y the Code for the, offen e. tho,u
first cons1denng any modifying circumstance attendant to the
coin· mission of the crime. The determination of the minimum
penalty is left by law to the sound discretion of the court and it
can be any-
 UPDATES IN CRIMINAL LAW
208
where within the range of the penalty next lower without any refer
ence t.o 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. (People vs.
Angeles, G.R. No. 132376, 11 April 2002, 380 SCRA 519; Marcelo
vs. Co 1.rt of Appeals,
G.R. No. 128513, 27 December 2000, 348 SCRA 470)
Not applicable to persons convicted of offenses punishable by
reclusion perpetua.
Section2 of the Indeterminate Sentence Law (Act No. 4103, as
amended) provides that it shall "not apply to persons convicted of
offenses punished with death penalty or life imprisonment; xx x." It
must be noted that appellants were convicted of murder which is
punishable with reclusion perpetua to death under the evis_ed
Pe nal Code. Thus, in the absence of any proven aggravating
c1rcum· stance, they were correctly sentenced by the trial cou
toreclusion perpetua. (People vs.Asuela, G.R. Nos. 140393-94, 04
February 2002,
376 SCRA 51)
· As correctly argued by the Solicitor General, Act No. 4103,
otherwise known as the Indeterminate Sentence Law, cannot be
applied in the case of appellants considering the pro,cription in
Sec.
2 thereof, viz.:
"This Act shall not apply to persons convicted of
offenses punished with death penalty or life-imprisonment
xxx
" drug without legal authority is punishable under the Dangerous
Indeed, in People vs. Asturias, Serrano vs. Court of Appeals,
People vs. Lampaza and People vs. Tan, to name a few cases, we in
effect equated the penalty of reclusion perpetua as synonymous to
life imprisonment for purposes of the Indeterminate Sentence Law,
and ruled that the latter law does not apply to persons convicted of
offenses punishable with the said penalty. Consequently, we affirm
the Court of Appeals in not applying the Indeterminate Sentence
Law, and in imposing upon appellants the penalty of reclusion
perpetua instead. (People vs. Enriquez, G.R. No. 158797, 29 July
2005,
465 SCRA 407)
Non-entitlement to
parole.
·· Persons sentenced to suffer the penalty of reclusion
perpetua
SPECIAL LAWS 209
9346, 8ec. 3 of which states that "[p)ersons convicted of offenses
punished with reclusion perpetua, or whose sentences will be re
d ced to reclusion pe:petua, by reason of this Act, shall not be eli gi?
le for parole under Act No. 4103, otherwise known as the Indeter..
mmat.e Sentence Law, as amended. ·
Moreover, it is settled that reclusion perpetua is an
indivisible penalty without a minimum or maximum period.
Parole, on the o.ther h nd, s extended only to those sentenced to
divisible penal ties as ts evtdent fro'll Sec. 5 of the
Indeterminate·sentence Law: which provides that it is only after
"any prisoner shall have served the minim·Jm penalty imposed
on him" that the Board oflndetermi nate Sentence may consider
whether such prisoner·may be granted parole. (People us.
Gardon, G.R. No. 169872, 27 September 2006)'
''
COMPREHENSIVE DANGEROUS DRUGS'.'·'
ACT OF 2002 (R.A. NO. 9165)
Elements of Illegal possession of dangerous drugs. ·T .. !
In a prosecution for illegal possession of a dangero s drug, it
must be shown that: (1) appellants were in possession of an item or
an obje t i entified to b a prohibited or regulated drug, (2) such
possession 1s not authorized by law, and (3) the appellants were
freely and consciously ware of being in possession of the drug.
We also note that the cnme under consideration is malum prohibi·
tum, hence, lack of criminal intent or good faith does not exempt
appellants from criminal liability. Mere possession of a regulated
Dr ugs Act. (People vs. Tiu, G.R. No. 149878, 01 July 2 003 405
w ,
SCRA
Meaning of possession.
Possession, under the law, includes not only ctu l
possession but also constructive possession. Actual possession
exists·when th drug is in the immediate physical possession or
control.of the,ac
·i cu.sed. On the ot;her hand, constructive possession exists when
? the drug is under the dominion and control of the accused or
\vhen he the right to exe.rcise dominion and control over th place
·whei'e
shall not be entitled to parole in view of Republic Act
(R.A.) No.
1t 1s found. Exclusive possession or control is not ·necessary.•The
210 UPDATES IN CRIMINAL LAW
dominion over the place where the contraband is located, is
shared with another.
Thus, conviction need not be predicated upon exclusive posses
sion, anda showing of non-exclusive possession would not exonerate
the accused. Such fact of possession may be proved by direct or
circumstantial evidence and any reasonable inference drawn there
from. However, the prosecution must prove that the accused had
knowledge of the existence and presence of the drug in the place
under his control and dominion and the character of the drug. Since
knowledge by the accused of the existence and charactt'f of the drugs
in the place where he exercises dominion and control is an internal
act, the same may be presumed from the fact that the dangerous
drug is in the house or place over which the accused has control or
dominion, or within such premises in the absence of any satisfactory
explanation. (People vs. Tira, G.R. No. 189615, 28 May 2004, 430
8CRA J.'34)
"Animus possldendi."
Anent the third element, we have held that possession of ille
gal drugs must be with knowledge of the accused 01 that animus
possidendi existed together with the possession or ·ontrol of said
articles. Knowledge refers to a mental state of aware,rnss ofa fact.
Since courts cannot penetrate the mind of an accused and thereafter
state its perceptions with certainty, resort to other evidence is nec
essary. Animus possidendi, as a state of mind, may be determined on
a case-to-case basis by taking into consideration the prior or con·
temporaneous acts of the accused, as well as the surrounding cir
cumstances. Its existence may and usually must be mferred from
the attendant events in each particular case.
The existence of animus possid.endi is only prima facie.
Thus, it is subject to contrary proof and may be rebutted by
evidence that the accused did not in fact exercise power and
control over the thing in question, and did not intend to do so.
Under the facts and circumstances obtaining in this case, we
find that appellant's explanation of how she came into possession
of the package without knowing that it contained "shabu" is
credible and sufficient to rebut the prima facie presumption of
animus possi dendi. Simply put, she just happened to be at the
wrong place at the wrong time. (People vs. Lagata, G.R. No.
135323, 25 .Tune 2003, 404
SCRA671)
accused cannot avoid conviction if his right to exercise control 'and
SPECIAL LAWS 211
"Possession of prohibited drugs" is a necessary element in \'sale of
. prohibited drugs." . . . .. :',t..,.\
. ,
More?, er, the prevailing doctrine is that "possession of prohib
ited drugs 1s a necessary clement in the offense of selling them,
e?'cept whe1:e .the seller 1s also found in possession of another
quan tity of prohibited drugs not covered by or included in the sale
and which are probably intended fo;: some future dealings or use by
the seller. (People vs. Balag-ey, G.R. No. 141532, 14April 2004,
4271SCRA
:384)
Presentation of a confidential informant or buy-bust moriey not
required; exceptions. · ·., '
Well-established is the rule that the presentation of a\onfi
denti l informant in a buy-bust operation is not always required,
especially when the sale was actually witnessed and adequately
roved by other prosecution witnesses. This rule admits of excep
t1ons: owever, as when the appellant vehemently denies selling
proh1b1ted drugs; and when the,.e are material inconsistencies in
the testimonies of the arresting officers.
_For. like reason, the presentation of the buy-bust money and
proof of its actual payment- pieces of evidence that are otherwise
not indispensable - become necessary if the constitutional presump
tion of innocence is to be overcome. In the present case the material
inconsistencies in the testimonies of the prosecution' witness and
the non-presentation of the buy-bust money raise reasonable doubts
about the occurrence of a buy-bust operation. (People vs. Balag-ey,
G.R. No. 14.15:32, 14April 2004, 427 8CRA ,384) • '
In the prosecution for the sale of dangerous drugs, th abs nce
of marked rwney does not create a hiatus in the evidence for the
prosecution as long as the sale of.dangerous drugs is adequately
proven and the drug subject of the transaction is present$i before
the court. Neither law nor jurisprudence requires the presentation
of any money used in the buy-bust operation. What is materi l to a
prosecution for illegal sale of dangerous drugs is the proof-that the
an action or sale actually took place, coupled with the pi:eeenta:
.
tion m court 'lf the corpus delicti as evidence. (Susan vs:People,'
G.R.
No. 152848, 12 July 2006, 494 SCRA 691) 1,. "f, 1 r<" '"
:'ili
' • ' ; 1, .. , ••• ,,, .• •
However, :"'here the informant is the only
eyewitness
illegal transaction, his testimony is essential and non-presentation
212 UPDATES IN CRIMINAL LAW
of the informant is fatal to the prosecution's cause. As held in People
vs. Zheng Bai Hui:
"Except when the appellant vehemently denies sell
ing prohibited drugs and there are material inconsisten
cies·in the testimonies of the arresting officers, or there
are reasons to believe that the arresting officers had mo
tives to testify falsely against the appellant, or that only
the informant as the poseur-buyer who actually
witnessed the entire transaction, the testimony of the
informant may be dispensed with as it will be merely c
rrob rative oft e apprehending officers' eyewitness
testlmomes. There 1s no need to present the informant in
court where the sale was actually witnessed and
adequately proved by pros
ecution witnesses."
In this case, Hairatul denied selling the shabu and testified
that the red Jollibee plastic bag which contained shabu was not
hers but Fatima's. Chieflnspector Muksan, th only eyewitness
presented by the prosecution, did not witness the entire
t:ansaction. Chief Inspector Muksan did not witness the most
crucial mo ent when the pusher handed over the shabu to the
buyer: When C 1ef Inspec· tor Muksan arrived at the scene, the
red Jolhbee plastic bag con· taining the shabu was already in the
possession of the informant. Thus, the testimony of the informant
is essential in this case to prove with certainty the identity of the
seller of the shabu. (People
vs. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478)
The Court is sharply aware of the compelling considerations
why confidential informants are usually not presented by the pro
ecution. One is the need to hide their identity and preserve their
invaluable service to the police. Another is the necessity to protect
them from being objects or targets of revenge by the criminals
they implicate once they become known. All these
conEideration.s, h?w· ever, have to be balanced with the right of
an accu:;ed to a fair tnal.
The ruling of the U.S. Supreme Court in Roviar? v . U. . on
informer's privilege is instructive. In said case, the prmc1pal 1_ssue
on certiorari is whether the United States District Court committed
reversible error when it allowed the Government not to disclose the
identity of an undercover employee who had played a material part
in bringing about the possession of certain drugs by the accused,
had been present with the accused at the occurrence of the alleged
crime, and might be a material witness to whether the accused
SPECIAL LAWS 213
knmvingly transported the drugs as charged. The Court, through
Mr. Justice Burton, granted certiorari in order to pass upon the
propriety of disclosure of the informer's identity.
Mr. Justice Burton explained that what is usually referred to
as the informer's privilege is in reality the Government's privilege to
withhold from disclosu:;:-e the identity of persons who furnish infor
mation of violations of law to officers charged with enforcement of
that law. The purpose of the privilege is the furtherance and protec
tion of the public interest in effective law enforcement. The privilege
recognizes the obligation of citizens to communicate their knowl edge
of the commission of crimes to law-enforcement officials and, by
preserving their anonymity, encourages them to perform that
obligation. · ,,,,; ,
It was held that the scope of the privilege is limited by its
underlying purpose. Thus, where the disclosure of the contents of
the communication will not tend to reveal the identity .of. an in
former, the contents are not privileged. Likewise, once the identity
of the informer has been disclosed to those who would have cause
to resent the communication, the privilege is no longer applicable.
A further limitation on the applicability of the privilege,
which arises from the fundamental requirements of fairness was
empha sized. Where the disclosure of an informer's identity, or the
contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of a
cause, the privi lege must give way. III these situations, the trial
court may require disclosure and dismiss the action if the
Government withholds the information.
In sum, there is no fixed rule with respect to disclosure of the
identity of an informer. The problem has to be resolved on a case
to case basis and calls for balancing the state interest in protecting
people from crimes against the individual's right to prepare his de
fense. The balance must be adjusted by giving due weight. to the
following factors, among others: (1) the crime charged, (2) the
pos sible defenses, (3) the possible significance of the informer's
testi mony, and (4) other relevant factors.
In tha case at bar, the crime charged against the appellants is
capital in character and can result in the imposition of the·death
penalty. They have foisted the defense of instigation which is in
sharp contrast to the claim of entrapment by the prosecution. The
prosecution has to prove all the material elements of the alleged

214 UPDATES IN CRIMINAL LAW
sale of shabu and the resulting buy-bust operation. Where the testi
mony of the informer is indispensable, it should be disclosed. The
liberty and the life of a person enjoy high importance in our scale of
values. It cannot be diminished except by a value of higher signifi
cance. (People vs. Ong, G.R. No. 137348, 21 June 2004, 432
SCRA
470)
ANTI-GRAFT AND CORRUPT
PRACTICES ACT (R.A. NO. 3019)
Jurisdiction of the Sandiganbayan over presidents, directors or
trustees, or managi,rs of government-owned or contmlled corpo
rations organized and incorporated under the Corporation Code
for purposes of the provisions of R.A. No. 3019.
is
·; It: not disputed that the Sandiganbayan has jurisdiction over
presid nts, directors or trustees, or managers of government-owned
or cont'rolled corporations with original charters whenever charges
of graft and corruption are involved. However, a que,,tion arises
whether the Sandiganbayan has jurisdiction over the same officers
in government-owned or controlled corporations organized and in
corporated under the Corporation Code in view of the delimitation
provided for in Article IX-B Section 2(1) of the 1987 Constitution
XXX,
The legislature, in mandating the inclusion of "presidents, di
rectors or trustees, or managers of government-owned or controlled
corporations" v.ithin the jurisdiction of the Sandiganbayan, has con
sistently refrained from making any distinction with respect to the
manner of their creation.
'The deliberate omission, in our view, clearly reveals the
inten tion of the legislature to include the presidents, directors or
trust ees, or managers of both types of corporations within the
jurisdic tion of the Sandiganbayan whenever they are involved in
graft and corruption. Had it been otherwise, it could have simply
made the necessary distinction. But it did not.
XXX
In Quimpo vs. Tanodbayan,. this Court, already mindful of the
pertinent provisions of the 1987 Constitution, ruled that the con
cerned officers of government-owned or controlled corporations,
whether created by special law or formed under the Corporation
SPECIAL LAWS 215
Code, come under the jurisdiction of the Sandiganbayan for pur poses
o the provisions of the Anti-Graft and Corrupt Practices Act. Othern'lse,
as we emphasized therein, a major policv of Govern ment, which. is
to eradicate, or at the very least minin{ize, the graft and corrupt10n
that has permeated the fabric of the public service like a malignant
social cancer, would be seriously undermined. In fact, Section 1 of
the Anti-Graft and Corrupt Practices Act embodies this pol)cy of the
government, that is, to repress certain acts not only of pubhc offict>!'S
but also of private persons constituting graft or corrupt practices or
which may lead thereto. ' ·'
The foregoing prono·-mcement has not outlived its usefulness.
On the contrary, it has become even more relevant today due to the
:am pant ca&es of s'Tafi and corruption that erode the people's faith
m overnment. or mdeed, a government-owned or controlled corpo
ration can conre1vably create as many subsidiary corporations un
de the Co_rporation Code as it might wish, use public funds, dis c
a: public. accountability and escape the liabilities and responsi
b1l1t1es proVIded by law. By including the concerned officers of
gov ernment-owned or contrnlled corporations organized and incorpo
rated under the Corporation Code \\'lthin the jurisdiction of the
Sandiganbayan, the legislature evidently seeks to avoid just that.
(People vs. Sandiganbayan and Alas, G.R. Nos. 147706-07, 16
Febru ary 2005, 451 SCRA 413)
Upon the flling of valid Information, preventive suspension of
ac cused public officer Is mandatory.
It is set.tied that once a court determines that the information
charging a public officer with an offense under R.A. No. 3019 or
Title 7, Book II of the Revised Penal Code, or any other offense
involving fraud upo? government or public funds or property is valid,
it is bound to 1s ue an order of preventive suspension of the accused
public officer 1s a matter of course. ·
The order of suspension pendente lite, while mandatory in na•
ture, is by no means automatic or self-operative. Before such sus
pension is imposed, a determination as to the validity of the infor
mation must first be made in a pre-suspension hearing. There is no
hard and fast rule as to the conduct of such hearing; as the Court
has previously explained in several cases: . . .
" ... No specific rilles need be laid down for such pre
suspension hearing. Suffice it to state that the accused
216 UPDATES I:K CRIMINAL LAW
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; that the acts
for which
. he stands charged do not constitute a violation of
the provisions of Republic Act 3019 or the bribery
provisions of the Revised Penal Code which would
warrant his mandatory suspension from office un
der Section 13 of the Act; or he may present a mo•
tion to quash the information on any of the grounds
, provided for in Rule 117 of the Rules of Court...
"Likewise, he is accorded the right to challenge
·.·the propriety of his prosecution on the ground that
the acts for which he is charged do not constitute a
violation of Rep. Act 3019, or of the provisions on
bribery of the Revised Penal Code, and the right to
present a motion to quash the information on any
other grounds provided in ltule 117 of the Rules of
court.
"However, a challenge to the validity of the
criminal proceedings on the ground that the acts for
which the accused is charged do not constitute a
violation of the provisions of Rep. Act 3019, or of
the provi sions on bribery of the Revised Penal
Code, should be treated only in the same manner as
a challenge to the criminal proceeding by way of a
motl.on to quash on the ground provided in
Paragraph (a), Sec tion 2 of Rule 117 of the Rules
of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of
the challenge to the validity of the criminal
proceeding, on such ground, should be limited to an
inquiry whether the facts alleged in the
information, if hypothetically admitted, con· stitute
the elements of an offense punishable under Rep.
Act 3019 or the provisions on bribery of the Revised
Penal Code." (Emphasis supplied).
It therefore suffices that the accused is afforded the opportu
nity of challenging the validity or regularity of the proceedings
against him and that theinformation charging the accused of any
of
SPECIAL LAWS 21'.1
the offenses mentioned under Section 13, R.A. No. 3019 is found to
be valid before the court suspends the accused pendente lite.1::,
XXX
Evidently erroneous is petitioners' contention thatthe offense
of falsification of public document alone, which according to them
is what is charged in the Information, would not warrant their
suspen si@ pende1-te lite. The Information alleges that
petitioners falsified Vallada's DTR by making entries therein to
make'it appear that he reported for work at the NFA in July 1991
when, in truth;and in fact, he did not. What was purportedly
falsified is a DTR which the government agency, concerned here,
as in other government; agen cies, had i;:, use in determining the
salary to be paid to the accused Ronaldo Vallada as its employee
for the period covered thereby, as well as his earned leave credits.
The falsification of one's DTR to cover up his absences or
tardiness automatically results in financial losses to the
governraent because it enables the employee concerned to be paid
salary and to earn leave credits for services which were never
rendered. Undeniably, the falsification of a DTR constifotes or
foists a fraud involving government funds.
Now, the issue of whether the motion to suspend petitioners
filed by Atty. Montera may validly trigger the assailed suspension
order.
A<J the offense for which petitioners are charged clearly falls
under Section 13, R.A. No. 3019, it follows·that their suspension
pendente lite is mandatory pursuant to the said law and pertinent
jurisprudence. The trial court is left with no alternative but to order
the suspension of the accused public officialpendente lite upon being
convinced that the information charges the accused .\vith acts of
fraud involving government funds. Its duty to order the suspension
of the accused pendente lite is mandatory in character and must be
issued by t,he court regardless of whether the prosecution files a
motion for the preventive suspension of the petitioners, or if the
motion is filed by the counsel of the government agency concerned,
with or without the conformity of the public prosecutor. In fact,
Section 13, R.A. No. 3019, as worded, allows the court to issue such
suspension order motu proprio.
The Court in Bolastig us. Sandiganbayan emphasized the man·
datory nature of the preventive suspension required under,Section
18 of R.A. No. 3019 in this ·. ' ·.
wise:
218 UPDATES IN CRIMINAL LAW
"[S]ection 13 of Republic Act No. 3019 makes it
man datory for the Sandiganbayan to suspend any public
of ficer against whom a valid information charging
violation of that law, Book II, Title 7 of the Revised
Penal Code, or any offense involving fraud upon
government or public funds· or property is filed. The
Court trying a case has
,; neither discretion nor duty to determine whether or not a
· 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. The presumption is that unless the accused is sus
, pended he may frustrate his prosecution or commit fur
. ther,acts of malfeasance or do both, in the same way that
upon a finding that there is probable cause to believe
that a crime has been committed and that the accused is
prob ably guilty thereof, the law requires the judge to
issue a warrant for the arrest of the accused. The law
does not
. require the court to determine whether the accused is
,. ,., likely to escape or evade the jurisdiction of the court."
Again, in Socrates vs. Sandiganbayan, the Court reiterated
the doctrine that the preventive suspension under Section 13, R.A.
No. 3019 is compulsory, thus:
"... [I]t is evident that upon a proper dewrmination
of the validity of the information, it becomes mandatory
for the court to immediately issue the suspension order.
The rule on the matter is specific and categorical. It
leaves no room for interpretation. It is not within the
court's discretion to hold in abeyance the suspension of
the ac cused officer on the pretext that the order denying
the motion to quash is pending review before the
appellate
courts... "
Once the information is found to be sufficient in form and sub
stance, then the court must issue the order of suspeusion as a mat ter
or course. There are no ifs and buts about it. This is because a
preventive suspension is not a penalty. It is not imposed as a result
of judicial proceedings. In fact, if acquitted, the official concerned
shall be entitled to reinstatement and to the salaries and benefits
which he failed to receive during suspension ... Taking into consider
ation 'the public policy involved in preventively suspending a public
officer charged under a valid information, the protectiun of public
220
SPECIAL LAWS 219
interest wiil definitely have to prevail over the private interest of
,,s
the accused. (Flores Layosa, G.R. No. 154714, -12 August 2004,
436 SCRA 337)
Suspension from office is mandatory whenever .a valid Infor
mation charges an incumbent public officer with (1) violation ofR.A.
No. 3019; (2) violation of Title 7, Book II of the RPC;,(8) any offense
involving fraud upon government; or (4) any offense'irivolving'fraud
upon public funds or property. While petitioner correctly contends
that the charge filed against him and his co-accused does not fall
under Title 7, Book II but under Title 4, Book II of the RPO, it
nevertheless involves "fraud upon government or public funds or
property." · '" ·· ·,;r;·
·: . . (, . • : . •. ·.· . ; .. ff·
As used in Section 13, the term "fraud" is understood ,in its
generfo sense, that is, referring to "an instance or an act of
trickery or deceit especially when involving· misrepresentation.
The'_ Infor
mation alleges that petitioner and his co-accused "feloniously
ma[d]e it appear in official documents that municipal
funds·totalling[thirty thousand pesos] (P30,000.00) were expended
for the purchase of lumber from Estigoy Lumber when, in truth
and in fact, as both accused well knew, said lumber were actually
purchased from Rowena Woodcraft, a single proprietorship owned
by accused Rowena G. Bustillo." This suffices to classify the
charge as "involving fraud
upon government" as contemplated in Section 13.. (Bustillo us.
Sandiganbayan, G.R. No.146217, 07 April 2006, 486 SCRA 545)
Section 3(b).
Elemehts: (1) the offender is a public officer; (2) ·who requested
or received a gift, a present, a share, a percentage, or a benefit; (3) on
behalf of the offender or any other person; (4) in connection with a
contract or transaction with the government; (5) in which the public
officer, in aa official capacity under the law, has the. right to inter
vene. (Garcia_ vs, Sandiganbayan, G.R. No. 155574, 20 November
2006; Chang vs. People, G.R. No. 165111, 21 July 2006, 496BCRA
321) .
Section 3{e).
To eRtablish probable cause for.Violation of Section 3[e] ofR.A.
No. 3019, the following elements must be present:
(1) The accused is a public officer or a private person charged
in com,piracy with the former;
UPDATES!:'< CRIMINAL LAW

(2) The 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;
(4) Such undue injury is caused by giving unw2rranted ben
efits, advantage or preference to such partie,; and
(5) That the public officer has acted with manifost partiality,
evident bad faith or gross inexcusable negligence.
The causing of undue injury or the giving of any unwarranted
benefits, advantage or preference through manifest partiality, evi dent
bad faith or gross inexcusable negligence constitutes the very act
punished under the foregoing section. (Go us. Office of the Om·
budsman, G.R. No. 139399, 17 October 2003, 413 SCRA 608)
Section 3(e) ofR.A No. 3019 may be committed either by
dolo, as when the accused acted with evident bad faith or manifest
par tiality, or by culpa as when the accused committed gross
inexcusable negligence. There is "manifest partiality" when there
is a clear, notorious or plain inclination or predilection to favor one
side or person rather than another. "Evident bad faith" connotes
not only bad judgment but also palpably and patently fraudulent
and dis honest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. It contemplates a
state of mind affirmatively operating with furtive design or with
some motive or self-interest or ill will or for ulterior purposes.
"Gross inexcusable negligence" refers to negligence characterized
by the want of even the slightest care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully
nnd intention ally, with conscious indifference to consequences
insofar as other persons may be affected. (Uriarte us. People, G.R.
No. 169251, 20 December 2006)
"Undue Injury."
Petitioner complains that she found it "difficult and burden
some to prosecute her case against the insurers ... not to mention
that she had been rendered despondent by the loss of her business
due to conflagration." Such difficulty and burden, however, do not,
per se, constitute the undue injury contemplated by law.
222 UPDATES IN CRIMINAL LAW
"Evident bad faith."
SPECIAL LAWS 221
Jurisprudence has consistently interpreted the term "undue
injury" as synonymous to "actual damage." In Llorente, Jr. us.
Sandiganbayan, we explained the concept of "undue injury" as an
element of the offense punishable under Section 3[e) of Rep. Act
No. 3019, to wit:
"Undue has been defined as 'more than necessary, not
proper, [or) illegal;' and injury as 'any wrong or dam age
done to another, either in his person, rights, reputa tion or
property[;) [that is, the] invasion of any legally protected
interest of another.' Actual damage, in the con text of these
definitions, is akin to that in civil law."
Petitioner may have been fraught with attending and litigat ing
her claims against each of the fourteen insurers as well as the insurance
adjusters, in<!ividually, but inconvenience is certainly not constitutive
of undue injury. (Go us. Office of the Ombudsman, G.R. No. 139399, 17
October 2003, 413 SCRA 608) ·
The use of the disjunctive term "or" connotes that either act
qualifies as a violation of Section 3, paragraph (e), or as aptly held
in Santiago, as two (2) different modes of committing the offense.
This does not however indicate that each mode constitutes a
distinct offense, but rather, that an accused may be charged under
either mode or uuder both. (Euangelista us. People, G.R. Nos.
108135-36, 14 August 2000, 337 SCRA 671; Uriarte us. People, G.R.
No. 169251, 20 December 200C.
The use of the phrase "causing undue injury" therein rlari ei ther
be interpreted as another mode of violating the statute, irr addi tion to
the giving of unwarranted benefits, advantage and prefer ence to the
casuals, .QI as a consequence of the act of giving unwa'.t· ranted be
1efits, advantage and preference. Specifically, for hiring some one
hundred and ninety-two (192) casuals and the charging of their
honoraria and salaries to the peace and order fund,·petitioner gave
them unwarranted benefits, advantage and preference mid. caused
undue injury to the Municipality ofMalita; m: thereby caused undue
injury to the Municipality ofMalita. In either case, the Infor mation
will not suffer any defect, as it is clear that petitioner is charged with
violation of Sec. 3, par. (e), ofR.A No. 3019, as amended, with either
mode of commission obtaining or with both manners of violation
concurring. (Bautista us. Sandiganbayan, G.R. No. 136082,
12 May 2000, 332 SCRA 126)
Under Section 3(e) of R.A. No. 3019, as amended, bad faith alone
on the part of petitioner is not sufficient to make her liable. Such bad
faith must be evident. Nowhere in the records of this case is such bad
faith evident. We therefore agree with the findings of SPO II Jurado,
Jr. that there is nothing in the records that show Cabahug acted in bad
faith, or even with gross inexcusable negli gence. In the absence of
evident bad faith, she cannot, be held liable for violation of Section
3(e) ofR.A. No. 8019, as amended. (Cabahug vs. People, G.R. No.
132816, 05 February 2002, 376 SCRA 113)
Bad faith does not simply connote bad judgment or negligence; it
imputes a dishonest purpose or some moral obliquity and con scious
doing of a wrong; a breach of sworn duty through some mo tive or
intent or ill will; it partakes of the nature of fraud. (Spiegel vs.
Beacon Participations, 8 NE 2nd Series, 895, 10U7) It contem plates a
state of mind affirmatively operating with furtive design or
some motive of self-interest or ill will for ulterior purposes. (Air
France vs. Carrascoso, 18 SORA 155, 166-167) Evident bad faith
connotes a manifest deliberate intent on the part of the accused to
do wrong or cause damage.
In this case, the petitioner was the presiding judge of the MCTC
of San Roque-Mondragon, Northern Samar and acted in that capac ity
when he received the Pl,000.00 from Castillo and Cardenas. The
petitioner acted with evident bad faith from the time he received
Vicario's Pl,000.00 cash bail on June 4 and June 5, 1990, and re fused
to have the amount deposited either with the nearest collector of
internal revenue, the municipal treasurer of Mondragon, or pro vincial
treasurer of Northern Samar as provided for in Section 11,
Rule 114 of the Rules of Court. Even after the provis10nal dismissal
of Criminal Case No. 5671 on September 14, 1990, the petitioner
refused to return the amount despite the demands ofVicario, Castillo
and Cardenas that the money be returned. Vicario suffered undue
injury when the petitioner retained the Pl,000.00 for his personal use.
(Sidro us. People, G.R. No. 149685.. 28 April 2004, 428 SCRA
182)
Recall that at the time of purchase of the typewriters, the peti
tioner was then the Assistant Regional Director of DS\iVD Region 2;
Tuguegarao, Cagayan. She was Chairman of the Procurement Board
and member/signatory of the Inspection and Acceptance Committee.
She accepted the secondhand typewriters, contrary to the require-
SPECIAL LAWS 223
ment to buy brand new units, and allowed payment for them at the
price of brand new ur.its. She admitted that the specification for
the typewriters should be brand new. The Sandiganbayan found
the typewriters that were paid for were secondhand, rebuilt and.
reeo,n ditioned. These findings of fact are binding on us. We find
no reason to reject these findings as these were based o n the
.
Inspection Report
Without hesitation we find that this transaction defrauded and
caused injury to the government. The Sandiganbayan·reported that
based on ':.he Prices Comparison of Agency Purchase Price
Against Re-canvassed Prices on Re-conditioned Items, the
government·paid P239,490 for the deliveries or P97,690 more than
the actual cost of P141,800 of the rebuilt/reconditioned
typewriters,, giving unwar ranted benefits to San Sebastian
Marketing and Jessie,Callangan; The amount of P97,690 represents
the actual damage suffered by the government in this anomalous
transaction. · ' '
In our view, petitioner not only failed in duty as Chairman
her
of the Procurement Board and member/signatory ,of the Inspection
and Acceptance Committee, she also clearly acted with evident bad
faith. Bad faith does not simply connote bad judgment or
negligence. It imputes a dishonest purpose or some moral obliquity
and con" scious wrongdoing. It partakes the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive
design or with some motive, self-interest or ill will, or for ulterior
purposes. Verily, petitioner must answer for her acts and
omissions. (Dugaydn vs. People, G.R. No. 147333, 12 August
2004, 436 SCRA 262)' '
.. ,
Illustrative case:
r:. , i . . ·
It is undisputed that petitioner is a public officer: as in fact.he
is an official of the Department of Public Works .and. Highways
(DPWH) and Program Director of the Mt. Pinatubo Rehabilitation
Project Management Office (:\IPR-PMO). The first element
required for the commission of the offense is thus clearly extant.
'';' ·1 : ::, t;, ":.. .··; i':
The second element enumerates the different modes bi .which
the offense rn; y be committed. These three modes, i.e., manifest
partiality, evident bad faith and inexcusable negligence, are'd stinct
and different from each other. Proof of the existence·of any·ofth se
inodes w onld suffice. The use of the three phrases "manifest partial
ity," "evident bad faith" and "inexcusable negligence" in the same
Information does not mean that it thereby charges three ·distinct
224 UPDATES IN CRIMINAL LAW
offenses but only implies that the offense charged may have been
committed through any of the modes provided by the law.
In Criminal Case No. 23539, the Information alleged
"evident bad faith" or "inexcusable negligence" as the modes by
which peti tioner·and his co-accused allegedly committed the
crime. The pros ecution was able to prove that petitioner was one
of the officials of the DPWH who recommended the defective
design plan of the Megadike. It was upon his recommendation that
the design plan was eventually approved by the DPWH Secretary.
Such act of peti tioner may have constituted evident bad faith or
inexcusable negli gence inasmuch as this design plan proved to be
defective. Likewise, the testimonial and documentary evidence
presented by the pros ecution (such as the notice of award to
Atlantic Erectors, the con tract between DPWH and Atlantic
Erectors, the disbursement vouch· ers) disclosed the role played
by petitioner in allowing the contrac tor to infringe the material
stipulations of the contract that caused the eventual collapse of the
Megadike. As correctly held by the re spondent court, the
prosecution's evidence established 3. prima facie proof of
petitioner's guilt.
The third element of the offense penalized in Section 3(e) is
satisfied when the questioned conduct causes undue injury to any
party, including the government, or gives any unwarranted
benefit, advantage or preference. Proof of the extent or quantum
of damage is thus not essential, it being sufficient that the injury
suffered or benefit received can be perceived to be substantial
enough and not merely negligible.
Again, the prosecution's evidence satisfactorily demonstrated
that petitioner allowed Atlantic Erectors to collect and receive the
net amount of P12,697,197.61 despite the breach of .:ontract com
mitted by it. Indubitably, the government suffered undue injury and
losses. (Soriquez vs. Sandiganbayan, G.R. No. 15352tJ, 25 October
2005, 474 SCRA 222)
The act of refunding the amount subject of the prosecution does
not absolve the offender from criminal liability.
It is puerile for petitioner to contend that Kelly Lumber's act
of refunding the amount subject of double payment argues against
the idea of the government suffering damages. The injury suffered
by the government is beyond cavil. This conclusion was aptly
explained by the Sandiganbayan in the following wise:
225
SPECIAL LAWS
"Damage to the government in that instance [refer-
ring to the alleged double payment) is inevitable for the
simple reason that money taken from the coffers was used
by someone else for about two years and without paying
intere11t and without authority for its use. (N.B. 19 March
1997 is only two months short of two years from filing of ' ·
this case)." ··i Y• ·:
MoreovBr, refund of the amount subject of the prosecution is
not one of tl,ose enumerated under Article 89 of the Revised Penal
Code which would totally extinguish criminal liability. Article B9 of
the Revise0 Penal Code applies in a. suppletory character as pro·
vided fo1· under Article 10 of the same Code. (Cruz vs.
Sandiganbayan, G.R. No. 134493, 16August 2005, 467 SCRA 52) , ''
1,0\.. '.·, 1
Section 3(g).
The elements of the crime of violating Section. 3(g) of RA No.
3019, as amended, are as follows: (1) the offender is a public officer,
(2) who enters into a contract or transaction on behalf of the govern·
ment, and (3) the contract or transaction is grossly and manifestly
disadvantageous to the government. Manifest means "obvious to the
understanding, evident to the mind x x x and is synonymous with
open, clear. visible, unmistakable, indubitable, evident and self-evi
dent." Gro1:,s means "flagrant, shameful, such conduct as is not to be
excused." (Morales vs. People, G.R. No. 144047, 26 July 2002, 385
SCRA259J .
Section 3(h).
The essential elements set out in the afore-quoted legislative
definition of the crime of violation of Section 3(h) of the Anti-Graft
Law are as follows: ·
"l. The accused is a public officer;
"2. He has a direct or indirect financial or pecuniary interest
in any business, contract, or transaction; ;,,
"3. He either:
"a. intervenes or takes part in his official capacity in
connection with such interest; or ·
"b. is prohibited from having such interest by the Con
stitution or by any law."

226 UPDATES IN CRIMINAL LAW
There are, therefore, two modes by which a public officer who
has a direct or indirect financial or pecuniary interest in any busi·
ness, contract, or transaction may violate Section 3(h) of the Anti
Graft Law. The first mode is if in connection with his pecuniary
interest in any business, contract or transaction, the public officer
intervenes or takes part in his official capacity. The second mode is
when he is prohibited from having such interest by the Constitution
or any law.
We quote herein the Sandiganbayan's declaration regarding
petitioners' culpability anent the first mode:
"... [T]hat portion of the Information which seeks
to indict the spouses Teves for his causing the issu
ance of a business permit/license to operate the
Valencia cockpit on or about February 4, 1992 is not
well founded.
"... Mayor Edgar Teves could not have issued a
permit to operate the cockpit in the year 1992 be
cause as of January 1, 1992 the license could f,e issued
only by the Sangguniang Bayan. He may have issued
the permit or license in 1991 or even before that when
he legally could, but that is not the charge. The charge
is for acts committed in 1992." [Emphasis supplied).
The Sandiganbayan found that the charge against Mayor
Teves for causing the issuance of the business permit or license to
operate the Valencia Cockpit and Recreation Center is "not well-
founded.'' This it based, and rightly so, on the additional finding
that only the Sangguniang Bayan could have issued a permit tu
operate the Valencia Cockpit in the year 1992. Indeed, under
Section 447(3) of the LGC of 1991, which took effect on 1
January 1992, it is the Sangguniang Bayan that has the authority
to issue a license for the establishment, operation, and
maintenance of cockpits. Unlike in the old LGC, Batas Pambansa
Blg. 337, wherein the municipal mayor was the presiding officer
of the Sangguniang Bayan, under the LGC of 1991, the mayor is
not so anymore and is not even a member of the Sangguniang
Bayan. Hence, Mayor Teves could not have inter vened or taken
part in his offi:ial capacity in the issuance of a cockpit license
during the material time, as alleged in the informa tion, because
he was not a member of the Sangguniang Bayan.
A fortiori, there is no legal basis to convict Teresita Teves as a
co-conspirator in the absence of a finding that Mayor Teves himself
228 UPDATES IN CRIMINAL LAW
SPECIAL LAWS 227
is guilty of the offense chacged. In short, the Sandiganbayan cor·
rectly absolved the petitioners of the charge based on the first
mode. And there is no m,ed to belabor this point. "'"
The Sandiganbayan, however, convicted the petitioner of,vio
lation of Section 3(h) of the Anti-Graft Law based on the second
mode. It reasoned that the evidence overwhelmingly evinces that
Mayor TeveiJ had a pecuniary interest in the Valencia Cockpit, which
is prohibitec under Section 89(2) of the LGC of 1991. '
The information accuses petitioner Edgar Teves, the Mu ici
pal Mayor of Valencia, Negros Oriental, of causing, ."while in the
performance and taking advantage of his official functions, and con
spiring and confederating with his wife . . . the issuance of the
appropriate business permiUJicense to operate the Valencia. P,ockpit
and Recreation Center in favor of one Daniel Teves." The last part of
the dispositive portion of the information states .that "said cused
Edgar Y. Teves having a direct financial or pecuniary interest
therein connidering the fact that said cockpit arena is actually owned
and operat,·d by him and accused Teresita Teves." ··
A careful reading of the information reveals that the afore
quoted last µart thereof is merely an allegation of the second· ele
ment of the crime, which is, that he has a direct or indirect "finan
cial or pecuniary interest in any business, contract or transaction."
Not by any stretch of imagination can it be discerned or construed
that the afore-quoted last part of the information' charges the peti
tioners with the second mode by which Section 3(h) of the Anti-
Graft Law may be violated. Ience, we agree with the petitioners
that the charge was for unla,vful intervention in the issuance of the
license to operate the Valencia Cockpit. There was no charge for
possession of pecuniary interest prohibited by law.
However, the evidence for the prosecution has established
that petitioner Edgar Teves, then mayor of Valencia, Negros
Oriental, owned the cockpit in question. In his sworn application
for registra tion of cockpit filed on 26 September 1983 with the
Philippine Gamefowl Commission, Cubao, Quezon City, as well
as in his re newal application dated 6 January,.1989 he
stated:that·he is the owner and manager of the said cockpit.
Absent any evidence that he divested himself of his ownership
over the cockpit, his oWfiership thereof is rightly to be presumed
because a thing once proved to exist continues as long e.s is usual
with things of that nature. His affidavit dated 27 September 1990
declaring that effective January
1990 he"turned over the management of the cockpit to
Mrs. Teresita
Z.Teves for the reason that [he] could no longer devote a full
time as manager of the said entity due to other work pressure" is
not suffi cient proof that he divested himself of his ownership
over the cock pit. Only the management of the cockpit was
transferred to Teresita Teves effective January 1990. Being the
owner of the cockpit, his inte.,rest over it was direct.
Even if the ownership of petitioner Edgar Teves over the
cock pit were transferred to his wife, still he would have a direct
interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from 1983
up to 1992, and as such their property relation can be presumed
to be that of conjugal partnership of gains in the absence of
evidence to the contrary. Ar ticle 160 of the Civil Code provides
that all property of the marriage is presumed to belong to the
conjugal partnership unless it be proved that it pertains
exclusively to the husband or to the wife. And Sec tion 143 of the
Civil Code declares all the property of the conjugal partnership
of gains to be owned in common by the husband and wife.
Hence, his interest in the Valencia Cockpit is direct and is,
therefore, prohibited under Section 89(2) of the LGC of 1991,
which reads:
"Section 89. Prohibited Business and Pecuniary In
terest. - "(a) It shall be unlawful for any local gov
ernment official or employee, directly or indirectly,
to:
"(2) Hold such interest8 in any cockpit or other
games licensed by a local government unit... "
[Emphasis supplied].
The offense proved, therefore, is the second mode of
violation of Section 3(h) of the Anti-Graft Law, which is
possession of a prohib ited interest. (Teves vs. Sandiganbayan,
G.R. No. 154182, 17 Decem ber 2004, 447 SCRA 309)
Prescription of offenses punishable under R.A. No. 3019.
The petitioner, however, vehemently denies having any knowl
edge of the crime at the time it was allegedly committed by the
respondent. It claims that the crime charged in the Informati0n
should be deemed as discovered only on May 13, 1987 when the
then
SPECIAL LAWS 229
Solicitor General, Francisco Chavez, filed a complaint with the
Presi dential Commission on Good Government (PCGG) against the
respondent, for violation of the provision of R.A. No. 3019, as
amended.
We are not convinced. This Court takes notice of the fact
that the subje t Deed of Sale dated December 29, 1975 relative to
the sale of the parcels of land by the National Steel Corporation to
the Philippine Smelters Corporation, was registered shortly
thereafter in the Registry of Deeds of the Province ofCamarines
Norte. Subse quently, the 0riginal Certificate of Title No. 0440 in
the name of the National Steel Corporation was cancelled and in
lieu thereof Trans fer Certificate of 'l'itle·No. 13060 was issued in
the name 'of the vendee Philippine Smelters Corporation. On
February 28, 1977, the Philippine Smelters Corporation even filed
an action for quieting of title with the then Court of First Instance
ofCamarines Norte, dock eted therein as Civil Case No. 2882,
which case forms the basis for the Sandiganbayan to deduce that
the subject Deed of Sale may be deemed registered on the said
date, at the latest.
While petitioner may not have knowledge of the alleged crime
at the time of its commission, the registration of the subject Oeed of
Sale with the Registry of Deeds constitutes constructive notice
thereof to the wnole world including the petitioner. Well entrenched
is the jurisprudential rule that registration of deeds in the public
real estate registry is a notice thereof to the whole world. The
registra tion is a constructive notice of its contents as well as all
interests, legal and equitable, included therein. All persons are
charged with the knowledge of what it contains. Hence, even if the
period of pre scription is reckoned from February 28, 1977, the crime
had already prescribe<l when the Information in this case was filed
with the Sandiganbayan on October 27, 1988. (People vs. Pacificador,
G.R. No. 139405, 13 March 2001, 354 SCRA 310)
ANTI-PLUNDER LAW (R.A. NO. 7080)
The legislative declaration in R.A. No. 7659 that plunder is a
heinous offense implies that it is a malum in se. For when the acts
punished are inherently immoral or inherently wrong, they are
mala in se and it does not matter that such acts are punished in a
special law, especially since i:.1 the case of plunder the predicate
crimes are mainly mala in se.(Estrada vs. Sandiganbayan, G.R. No.
148560, 19 November 2001, 369 SCRA 394)
230 UPDATES IN CRIMINAL LAW
ILLEGAL POSSESSION OF FIREARMS
LAW (R.A. NO. 8294)
Incidentally, with the enactment on June 6, 1997 of Republic
Act No. 8294 which also considers the use of explosives as an aggra
vating circumstance, there is a need to make the necessary clarifica
tion insofar as the legal implications of the said amendatory law vis
a-vis the;qualifying circumstance of "by means of explosion" under
Artfole 248 of the Revised Penal Code are concerned. Corollary
thereto is the issue of which law should be applied in the instant
case.
RA. No. 8294 was a reaction to the onerous and anachronistic
penalties imposed under the old illegal possession of firearms law,
P.D. No. 1866, which prevailed during the tumultuoi;.s years of
the Marcos dictatorship. The amendatory law was enacted, not to
de criminalize illegal possession of firearms and explosives, but to
lower their penalties in order to rationalize them into more
acceptable and realistic levels.
, This legislative intent is conspicuously reflected in the reduc
tion of the corresponding penalties for illegal possession of firearms,
or ammunitions and other related crimes under the amendatory
law. Under Section 2 of the said law, the penalties for unlawful
possession of explosives are also lowered. Specifically, when the ille
gally possessed explosives are used to commit any of the crimes
under the Revised Penal Code, which result in the death of a person,
the penalty is no longer death, unlike in P.D. No. 1866, but it shall
be considered only as an aggravating circumstance. Sect.ion 3 of P.D.
No. 1866 as amended by Section 2 ofR.A. 8294 now rt:lad,;:
"Section 2. Section 3 of Presidential Decree No.
1866, as amended, is hereby further amended to read as
fol lows:
"Section 3. Unlawful Manufacture,
Sale,Acquisition, Disposition or Possession of
Explosives. - The penalty of prision mayor in its
maximum period to reclusion tempo ral and a fine of
not less than Fifty thousand pesos (P50,000.00) shall be
imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dis pose 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
SPECIAL LAWS 281
capable of producing destructive effect on contiguous i,i;• ·
objects or causing injury or death to any person.'• •· w,ibn: ·
, . . , ,., 3 r· ·, '•' ,':,,
"When a person commits any of the crimes.defined · · · ·
in the Revised Penal Code or special law with the U:se of' ·
the aforementioned explosives, detonation agen 'or in ·.· '
cendiory devises, which results in the death ofa y pers9n '.:'·'
or persons, the use of such explosives, detonation agents'
or incendiary devices shall be considered as an aggravat-
ing circumstance. (shall be punished with the penalty of
death is DELETED.)" : :·«·
XXX
With the removal of death as a penalty and the in ertion of
the term "xxx ai; an aggravating circumstance," the unmistakable
im port is to ciowngrade the penalty for illegal possession o(e
plosives and consider its use merely as an aggravating
circumstance.
Clearly, Congress intended R.A. No. 8294 to reduce the penalty
for illegal pos:'!ession of firearms and explosives. Also, Congress
clearly intended R.A. No. 8294 to consider as aggravating
circumstance, instead. of a separate offense, illegal possession of
firearms and ex plosives when ·..mch possession is used to commit
other crimes under the Revised Penal Code.
It must be made ci.ear, however, that R.A. No. 8294 'did not
amend the definition of murder under Article.248, but merely made
the use of explosives an aggravating circumstance when resorted to
in committing "any of the crimes defined in the Revised Penal Code."
The legislative purpose is to do away with the use of explosives as a
separate crime and to make such use merely an aggravating circum
stance in the commission of any crime already defined in thEi' Re
vised Penal Code. Thus, R.A. No. 8294 merely added the use of unli
censed explosives as one of the aggravating circumstances specified
in Article 14 of the Revised Penal Code. Like the aggravating cir
cumstance of "explosion" in paragraph 12, "evident premeditation"
in paragraph 13, or "treachery" in paragraph 16 of Article 14, the
new aggravating circumstance added by R.A. No. 8294 does not
change the definition of murder in Article 248.
Nonetheless, even if favorable to the appellant, R.A. No. 8294
still cannot be made applicable in this case. Before the use of unlaw
fully possessed explosives can be properly appreciated as an aggra
vating circumstance, it must be adequately established that the pos-
232 UPDATES IN CRIMINAL LAW
SPECIAL LAWS 233

session was illegal or unlawful, i.e., the accused is without the corre
sponding authority or permit to possess. This follows the same req sion" in acc\Jrdance with Article 248(3) of the Revised Penal Code.
uisites in the prosecution of crimes involving illegal possession of The same, having been alleged in the Information, may be properly
firearm which is a kindred or related offense under P.D. No. 1866, as considered as appellant was sufficiently informed of the nature of
the accusation against him. (People vs. Comadre, G.R. No. 153559,
08.
amended. This proof does not obtain in the present ase. Not only June 2004, 431 SCRA 366) .. . . .:. . , , , . . .
was it not alleged in the information, but no evidence was adduced ,, ,, : ,·,

by the··prosecution .to show that the possession by appellant of the Where murder or homicide is committed with the··use· of an
explosive was unlawful. unlicensed firearm, the sP.parate penalty for illegal' possession·•of
It is worthy to note that the above requirement vfillegality is
firearm shE.ll no longer be meted out since it becomes :merely 'a
special aggravating circumstance. The penalty for illegal possession
borne out by the provisions of the law itself, in conjunction with
of firearms shall be impooed in all other cases where none •o{the
the pertinent tenets of legal hermeneutics.
crimes enumerated under R.A. No. 8294 is committed. The intent of
A reading of the title ofR.A. No. 8294 will show that Congress is to tr.;3at the offense of illegal possession of firearm and
thequali fier "illegal/unlawful ...possession" is followed by "of the commission of homicide or murder with the use of unlicensed
firearms, am
munition, or explosives or instruments..." Although the term firearm as a single ·
: : I ,- :
offense.
ammu
nition is separated from "explosives" by the disjunctive word "or," The inapplicability of R.A. No. 8294 having been made
it does not mean that "explosives" are no longer included in the mani: fest, the crime committed is Murder committed "by means
items which can be illegally/unlawfully possessed. In this context, of explo-
the dis junctive word "or" is not used to separate but to signify a
succession or to conjoin the enumerated items together. Moreover,
Section 2 of
R.A. No. 8294, subtitled; "Section 3. Unlawful Manufacture, Sale,
Acquisition, Disposition or Possession of Explosives," clearly refers
to the unlawful manufacture, sale, or possession of explosives.
What the law emphasizes is the act's lack of authority. Thus,
when the second paragraph of Section 3, P.O. No. 1866, as amended
by R.A. No. 8294 speaks of "the use of the aforementioned explo
sives, etc." as an aggravating circumstance in the commission of
crimes it refers to those explosives, etc."unlawfully" manufactured,
assembled, dealt in, acquired, disposed or possessed mentioned in
the first paragraph of the same section. What is per se aggravating
is the use of unlawfully "manufactured ... or possessed" explosives.
The mere use of explosives is not.
The information in this case does not allege that appellant
Antonio Comadre had unlawfully possessed or that he had no au
thority to possess the grenade that he used in the killing and at
tempted killings. Even ifit were alleged, its presence was not
proven by the prosecution beyond reasonable doubt. Rule l l O of
the 2000 Revised Rules on Criminal Procedure requires the
avcrment of ag gravating circumstances for their application.
 In view of this provision, the Court has held in a number·of cases
that there can be no separate conviction of the crime of illegal
possession 0f firearm in a ca!:le where another crime, as indicated in
R.A. No. 8294 (murder or homicide under Section 1, and rebellion
msurrect10n, sedition or attempted coup d'etat under Section 3), is
. . . '
committed. (People us. Candido, G.R. Nos. 134072-73, 10 June 2002,
383 SCRA 2.96) . .,

ANTI-FENCiNG LAW (P.O. N0.1612). ,.

Elements of fencing.
The essential elements of the crime of fencing are as follows:
(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 o:r theft, buys, receives, possesses, keeps, acquires, con ceals,
sells or ctisposes, or buys and sells, or in any manner deals in any
article, item; object or anything of value, which has been derived from
the procef".ds of the crime of robbery or theft; (3) the accused knew or
should have shown that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or
theft; and f-t) there is, on the part of the accused, intent to gain for
himaelf or for another_ Fencing is malum prohibitum, and
P.D. No. 1612 creates a prima facie presumption of fencing from
evidence of possession by the accused of any good, article, item,
object or anything of value which has been the subject ofrobbe:ry or
theft, and prescribes a higher penalty based on the value of the
 SPECIAL LAWS 235
UPDATES IN CRIMINAL LAW
234

property. The stolen property subject of the charge is not in ispe s
able .to prove fencing. It is merely corrobor tive of the testimonies
and other evidence adduced by the prosecution to pro\'e the cnme of
fencing.
We agree with the trial and appellat: courts that the rosecu tion
mustered the requisite quantum of ev1den e, o the b s1s of the
testimony of Jovita, that Pacita stole the subJect Je¥Jelry rom th
locked cabinet in the main house of her then employ8r. Jovita testi
fied on her ownership of the jewelry and the los t!1ereof, a d nar
rated that Pacita had access to the cabinet contammg the pieces of
jewelry.·
· We, however, agree with the petitioner that the de is_ion oft!1e
RTC ofRizal Branch 76, in Criminal Case No. 200? convictmg Pac
ta of theft does ot constitute proof against him in this c;:rne, that
Paci had, indeed, stolen the jewelry. There is no showing that
the said decision in Criminal Case No. 2005 was ?'lrelld (i,na!
and executory when the trial court rendered its_deci ion in J was no unlawful taking. A felonious taking may be defined
"Unlawful taking."
SEE asserted that on 7 November 1992 he turned over posses
sion of his Mitsubishi Galant to 'l'AN for test-driving only, but.the
latter did not return the same aft.er the lapse of notjust several
hours but a number of months. SEE formally filed the complaint
carnapping on 2 June 1993. In the meantime, during the seven
for
month interval when the car was allegedly in TAN's possession: (1)
SEE had persistently and perseveringly attempteq to,:talk to and
see TAN but the latter adamantly refused to responp... to his. tele-.
phone calls or personally receive him in his visits; (2) SEE was.able
to register the car with the r:ro on 5 March 1993; and (3) SEE had
seen his car on 19 May 1993 from a distance of :some· five feet,
parked at the rear ofTAt 's warehouse and in the initial stages of
dismantling. SEE also bP-lievcd that "being a friend,·[TAN] eventu
ally would come around to returning the car to him."
Even solely from this testimony, this.Court firids· that there
·as
act of depriving another of the possession and dominion of movable
the

instant case. (Francisco us. People, G.R. No. 146084, 12 July2 , property without his privity and consent and without animus revel"
434 SCRA 122) : tendi. Thus. an unlawful taking takes place when the owner or ju
ridical possessor does not give his consent to the taking; or, if the
consent was given, it was vitiated; or in the case of Roxas; Trinidad
ANTI-CARNAPPING LAW (R.A. NO. 6539)
and de Vera, where an act by the receiver soon after the actual
transfer of possession constitutes unlawful taking. In the last sce
Carnapping defined. nario, the receiver's act could be considered as having been executed
without the consent of the giver. SEE's testimony clearly evinced
P reR
veepu bl1.and
nt ing Act'N·o 653 9 Carnapping",
c Penalizing
· ,
otherwise known as "A
defines n Ac t
. "carnappmg
, , " aso his assent to 'l'AN's taking of the car not only at the time he yielded
h t k ·
t e J:e m,,,. the physical possession thereof for the alleged test-driving but even
with intent to gain. of a motor vehicle belonging to ano her z there after, for he neither withheld his consent nor withdrew the
zth ul tfa latter's consent. or by means o[.1.Jiole ce against r same during the seven month period the car was with TAN;At the
intmudatwn of persons. or b'V using force upon things. More very least, SEE tolerated TAN's possession of the car. A contrary
speufically, the ele- conclu sion inspires only disbelief For if the car was truly
ments of the crime are as follows: carnapped, why did SEE wait for seven months before he reported
the same? Fur ther, TAN's alleged refusal to meet SEE despite his
1. That there is an actual taking of the vehicle; repeated at tempts to do so should have sufficiently alerted him of
2. That the offender intends to gain from the taking of the tlie former's supposed malevolent intent, yet he still did not report
the taking. Even if he failed to report the taking, months after the
vehicle; alleged test driving, he had allegedly seen his car in the initial stages
3. That the vehicle belongs to a person other than the of: of dis memberment on 19 May 1993 yet, again, he did not report
fender himself; the camapping on that day nor on the next, but much later on 7 June
- That the taking is without the consent of.the owner t? 1993 or almust a month thereafter. (People vs. Tan, G.R. No.
ereof; 135904, 21 January 2000, 323 SCRA 30)
or that the taking was committed by means of v10 ence against r
intimidation of persons, or by using force upon things. (People i:s.
Garcia, G.R. No. 138470, 01 April 2003, 400 SCRA 229)
286 UPDATES IN CRIMINAL UW
While the nature of appellant's possession of the taxi was ini·
tially lawful as he was hired as a taxi driver and was ent s d
ossession thereof, his act of not returning it to its owner, which 1s
:Ontrary tocompany practice and against the owner's consent trans
formed the character of the possession into an unlawful one. (People
vs. Bustinera, G.R. No. 148233, 08 June 2004, 431 SCRA 284)
Unlawful taking is deemed complete from the moment the offender
gains possession of the motor vehicle, even if he has no
opportu•
nity dispose of the same.
Unlawful taking is the taking of a vehicle without. t e co.nsent
of the owner, or by means of violence against or mtim1dation of
persons, or by using force upon things; it is deemed omplete ?°om
the moment the offender gains possession of the thmg, ev n if he
has. no opportunity to dispose of the same. (People vs. Garcia, G.R.
No. 138470, 01 April 2003, 400 SCRA 229)
Intent to gain Is presumed from the unlawful takln 1 of motor ve•
hlcle.
Intent to gain, or animus lucrandi, as an element of the crime
of carnapping, is an internal act and hence presumed from .the '":"
lawful taking of the vehicle. Unlawful taking, or apoderamiento, 1s
the taking of the vehicle without the consent of the owner, or.by
means of violence against or intimidation of persons, or by usmg
force upon things; it is deemed co plete from the moment t e of
fender gains possession of the thing. even ifhe has no opportunity
to
dispose of the same. (People vs. Ellasos, G.R. No. 139323, 06 June
2001, 358 SCRA 516)
"Gain."
Appellant assails the trial court's concl':si n that there. was
intent to gain \vi.th the mere taking of the taxi without the owner'
consent. He maintains that his reason for failing to return the trun
was his inability to remit the boundary fee, his earnings t at .day
not having permitted it; and that there was. no intent to gam s1 ce
the taking of the taxi was not permanent m character, he having
returned it.
Appellant's position does not persuade.
SPECIAL LAWS 237
Intent to gain or animus lucrandi is an internal act, presumed
from the unlawful taking of the motor vehicle. Actual gain is irrel
evant as the important consideration is the intent to gain. The term
"gain" is not merely limited to pecuniary benefit but also includes
the benefit which in any other sense may be derived. or expected
from the act which is performed. Thus, the mere use of the thing
which was taken without the owner's consent constitutes gain.
In Villacorta vs. Insurance Commission which. was reiterated
vs
in Association of Baptists for World Evangelism; Inc.' Fieldmen's
Insurance Co, Inc., Justice Claudio Teehankee (later Chief Justice),
interpreting the theft clause of an insurance policy, explained that,
when one takes the motor vehicle of another without the·latter's
consent even if the motor vehicle is later returned, there"is. theft,
there being intent to gain as the use of the thing unlawfully"'taken
constitutes gain: · ·
Assuming, despite the totally inadequate evidence, that the
taking was ''temporary" and for a "joy ride," the Court' sU1itains
as the better view that which holds that when a person; either
with' the
object of going to a certain place, or learning how to drive, or e'rijoy
ing a free ride, takes possession of a vehicle belonging.to another,
without the consent of its owner, he is guilty of theft because by
taking possession of the personal property belonging to another and
using it, his intent to gain is evident since he derives therefrom
utility. satisfaction, enjoyment and pleasure. Justice Ramon
C.Aquino cites in his work Groizard who holds that the. use of
a thing consti· vs
tutes gain and Cuello Calon who calls it "hurt. de uso." (People
Bustinera, G.R. No. 148233, 08 June 2004, 431 SCRA 284)
The unlawful taking of motor vehicles Is now covered by the
ntl camapping law and not by the provisions of the RPC·on
qualified theft or robbery. · · ·· · " : '' 1
·i .. \ ·w
In the 2000 case of People vs. Tan where the accused took a
Mitsubishi Gallant and in the later case of People vs. Lobitcinia
which involved the taking of a Yamaha motorized tricycle;this Court
held that the unlawful taking of motor vehicles is now covered.by
the anti-carnapping law and not by the provisions on qualified theft or
robbery. : r.'r
1
"There is no aq,,uing that the anti-carnapping la is a
special law, different from the crime of robbery and theft in
cluded in the Revised Penal Code. It particularly addresses
the

238 UPDATES IN CRIMINAL LAW
'·taking, with intent to gain, of a motor vehicle belonging to
another without the latter's consent, or by means of violence
against or intimidation of persons, or by using force upon
things. But a careful comparison of this special law with the
crimes of robbery and theft readily reveals their common
features and
·. characteristics, to wit: unlawful taking, intent to gain, and that
personal property belonging to another is taken without the
latter's consent. However, the anti-carnapping law particularly
deals with the theft and robbery of motor vehicles. Hence e.
motor vehicle is said to have been carnapped when it has been
taken, with intent to gain, without the owner's consent, whether
, the taking was done with or without the use of force upon
,· things. Without the anti-carnapping law, such unlawful taking
• of a motor vehicle would fall within the purview of either theft
1 .·
or robbery which was certainly the case before the enactment
of said statute."
j{is to b.e noted, however, that while the anti-carnapping law
penalizes the unlawful taking of motor vehicles, it ucepts from its
coverage certain vehicles such as roadrollers, trolleyi,, street-sweep
ers, sprinklers, lawn mowers, amphibian trucks and cranes if not
used on public highways, vehicles which run only on rails and tracks,
and tractors, trailers and tractor engines of all kinds and used ex
clusively for agricultural purposes. By implication, the theft or rob
bery of the foregoing vehicles would be covered by Article 310 of the
Revised Penal Code, as amended and the provisions on robbery, re-
speC!ively.
From the foregoing, since appellant is being accused of the
unlawful taking of a Daewoo sedan, it is the anti-.;arnapping law
and not the provisions of qualified theft which would apply as the
said motor vehicle does not fall within the exceptious mentioned in
the anti-carnapping law. (People vs. Bustinera, G.R. No. 148233, 08
June 2004, 431 SCRA 284)
The person unlawfully divested of the motor vehicle need not be
the owner thereof.
Moreover, it must be stressed that the acts committed by ap
pellant constituted the crime of carnapping even if the deceased was
the driver of the vehicle and not the owner. The Hettled rule is that,
in crimes of unlawful taking of property through intimidation or
violence, it is not necessary that the person unlav{ully divested of
the personal property be the owner thereof. \Vhat is simply required
SPECIAL LAWS 239
is that .the property taken does not belong to the offender. Actual
possession of the property by the person dispossessed suffices: :5o
long as there is apoderamiento of personal property from· another
against the latter's will through violence or
intimidation,with·a.nimo de lucro, unlawful taking of a property
belonging to another1s imi putable to the offender. (People us.
Garcia, G.R. No. 138470 01 April 2003, 400 SCM 229) ' ',...,.1 ...,::'.'
Qualified carnapping.
It ecomes qualified when in the course of the commission or
on occasion of the camapping, the owner, driver or occupant of
the carnapped vehic e is killed or raped. When the carnapping is
tjuali fled: the.penalty 1mpost.ble is reclusion perpetua to death.
(People us. Lobitania, G.R. No. 142380, 05 September 2002,
388'SCRA 417)
ANTI-PIRACY AND ANTI-HIGHWAY.
ROBBERY LA\IV (P.O. NO. 532)
Highway robbery,brigandage is defined in Section 2(e) of P.D.
o. 532 _entitled "Anti-Piracy and Anti-Highway Robbery Law" as
(t)he seizure of any person for ransom, extortion or other unlawful
p rposes, or the taking away of the property of another by means of
violence against or intimidation of person or force upon things or
ot er unl wful meanst committed .by any person on a11y Philippine
1ghway. The robbery must be directed not only against specific,
1 ten e or preconceived victims, but against any and all prospec:
t1ve victims. (People us. Cerbito, G.R. No. 126397, 01 February
2000
824 SCRA 304) . • .. l . '
.. But that the accused was guilty of Highway Robbery with Ho
m1c1de under P.D. No. 532 was erroneous. As held in a number of
cases, conviction for highway robbery requires proof that se·veral
accused were organized for the purpose of committing it indiscrimi
nately. Ther is no proof in the instant case that the accused and his
cohorts organized them3elves to commit highway robbery. Neither i
there proof that they attempted to commit similar robberies to show
the indisc riminate" perpetration thereo£ On the other hand 'what
4
the pros cution establish,ed was only a single act ofrobbery a ainst
the particular persons 0£ the Tactacan spouses. Clearly, this single
act of depredation is not what is contemplated under P.D: No. 532 as
its objective is to deter and punish lawless elements who commit
240 UPDATES IN CRIMINAL LAW
acts of depredation upon persons and properties of innocent and
defenseless inhabitants who travel from one place to another
thereby disturbing the peace and tranquility of the nation and
stunting the economic and social progress of the people. (People
us. Reanzares, G.R. No. 130656, 29 June 2000, 334 SCRA 624)
Number of offenders, not an essential element in highway rob
bery.
In the case of People us. Puna, it was held thi:i.t P.D. No. 532
amended Art. 306 of the Revised Penal Code and that it is no longer
required that there be at least four armed persons forming a band of
robbers. The number of offenders is no longer an essential element
of the crime of highway robbery. Hence, the fact that. there were
only three identified perpetrators is of no moment. P.D. No. 532
only requires proof that persons were organized for the purpose of
com mitting highway robbery indiscriminately. "The robbery
must be di rected not only against specific, intended or
preconceived victim , but against any and all prospective victims."
(PeoplP us. .A.gomo·o, G.R. No. 131829, 23 June 2000, 334 SCRA
279)
ANTI-CATTLE RUSTLING LAW (P.O. NO. 533)
The crime is committed if the following elements concur: (1) a
large cattle is taken; (2) it belongs to another; (3) th, taking is done
without the consent of the owner; (4) the taking is done by any
means, methods or scheme; (5) the taking is 'Nith or without intent
; and (6) the taking is accomplished with or without violence
or intimidation against person or force upon things. (Canta us.
People, C.R. No. 140937, 28 February 2001, 353 SCRA 250!
ILLEGAL RECRUITMENT (under R.A. NO. 8042)
Illegal recruitment, how proved.
It is well-settled that to prove illegal recruitment, it must be
shown that appellant gave complainants the distinct impression
that he had the power or ability to send complainants abroad for
work such that the latter were convinced to part with their money
in order to be employed. Appellant's act of promising the private
complainants that they will be deployed abroad within three
months after they have paid the cash bond clearly shows that he is
engaged
SPECIAL LAWS
241
in illegal recruitment. (People us. Gasacao, G.R.. No. 168445, 11
November 2005, 474 SCRA 812)
. The failure of the prosecution to adduce in evidence any re ceipt
or d?curnent signed by appellant where he acknowledged to ave
.received money and liquor does not free hini' from criminal hab1
1ty. E:7en in the absence of money or other valuables given as consi?
eration for he "snrvices" of appellant, the latter is-considered
as bemg engage::! m recruitment activities. (People vs. Jamilosa,
G.R. No. 169076, 23 January 2007)
'
Mere employee may be liable for illegal recruitment.
held
. Even Hssuming that appellant was a mere employee, such iact
1S nota sh1eld
against his Conviction for large Scale illegal recruit
ment. In the case of People us. Cabais, we have held that an em
ployee ofa company or corporation engaged in iHegal recruittnent
may be held liabl as principal, together with his employer, ifit is
shown that he actively and consciously participated in the recruit
ment proce.'ls. (People us. Gasacao, G.R. No. 168445, 11 November
2005'. 474 SCRA 812) The culpability of the employee therefore hinges
on his. k?ow1edge of the offense and his active participation' in its
cornm1ss10n .. Wh re it is hown that the employee was merely acting
unde: thed r1 cc 10n of his superiors and was unaware that his acts
nstituteda cnme, he may not be held liable for an act done for and in
behalf of his employer. (People us. Corpuz, G.R. No. 148198, 01
October 200.'3, 412 SCRA 479)
Large scale illegal recruitme11t.
. lllega recruitment is deemed committed in large scale if com m
tted agamst three or more persons individuaHy or.asa group. In this
case,. flve co:rr...plainants testified against appellant's acts of ille gal
recruitment, thereby rendering his acts tantamount to economic abo
age. Under Sectfon 7(b) of RA No. 8042, the penalty of,life
1mpnsonment and a fine of not Jess than P500,000.00 nor more than
Pl,000.?00.00 shall be imposed if illegal recruitment constitutes
economic sabotage. (People us. Gasacao, G.R. No. 168445, 1J
Novem-
ber 2005, 474 SCRA. 812) . .
To prove illegal recruitment in large scale, the pro c tion is
burdened to prove three (3) essential elements, to wit:{1) the
person charged undertook a recruitment activity under Article
13(b) or any
242 UPDATES IN CRIMINAL LAW
prohibited practice under Article 34 of the Labor Code; (2)
accused did not have the license or the authority to lawfully
engage in the recruitment and placement of workers; and (3)
accused committed the same against three or more persons
individually or as a group. (People us. Jamilosa, G.R. No. 169076,
23 January 2007)
BOUNCING CHECKS LAW (B.P. BLG. 22)
Essence of B.P. Big. 22.
The act sought to be prevented by the law is the act of making
and issuing a check with the knowledge that, at the time f issue,
th.e
drawer issuing the check does not have sufficient funds m or
.credit with the bank for payment and the check was subsequently
d1shon· ored upon presentment. What the law punis es is the
issuance oa worthless check and not the purpose for which such
check was is sued nor the terms or conditions relating to its
iss11;ance. The th st of the law is to prohibit, under pain of penal
sanctions, the aki g of worthless checks and putting them in
circulation. The cnme 1s one against public order and is malum
prohibitum. The law is in· tended to safeguard the interests of the
banking system and the legitimate checking account user. It is not
intended nor designed to coerce a debtor to pay his debt, nor to
favor or encoura_ge those "':ho seek to enrich themselves through
manipulation and circumvent10
of the purpose of the law. (Sia vs. People, G.R. No. 149696, 28 April
2004, 428 SCRA 206)
The gravamen of the offense under B.P. Blg. 22 is the act of
making or issuing a worthless check or a che k that is dishonore
upon presentment for payment. The act effectively .declares the o
fense to be one of malum prohibitum. The only vahd querr th n is
whether the law has been breached, i.e., by the mere act of1ssumga
bad check, without so much regard as to the criminal intent of the
issuer. (Meriz vs. People, G.R. No. 134498, 18 November 2001, 368
SCRA.524)
Such practice is deemed a public nuisance, a crime against
public order to be abated. The mere act of issuing a worthless check,
either as a deposit, as a guarantee, or .even as an e-v d nce ofa pr
existing debt or as a mode of payment 1s covered by L.f. Blg. 22. Itis
a crime classified as malum prohibitum. The law is broad enough to
include, within its coverage, the making and issuing of a check by
one who has no account with a bank, or where such account was
SPECIAL LAWS
already closed when the check was presented for payment. (Ruiz
vs.
People, G.R. No. 160893, 18 November 2005, 475 SCRA 476),.,..,
:· ··1 ;:, ',
Elements of violation of B.P. Big. 22.
. ·; l,.f:,t
The law enumerates the elements of violation of B.I . B1g, 22,
namely: (1) th making, drawing and issuanc1o of any check to apply
for account or for value; (2) the knowledge of the maker; drawer, or
issuer that at the time of issue he does not have sufficient funds in
or credit with .:::1e drawee bank for the payment of the,check in full
upon its presentment; and (3) the subsequent disho.nor of the check
by the drawee bank for iDsufficiency of funds or credi cir dishonor
for the samB reason had not the drawer, without anY valid
cause,
ordered the hank to stop payment. (Bayani vs. People, G.R: No. 154947,
11 August 2004, 436 SCRA 113; Rico vs. People, G.R. No. 137191, 18
November 2002, 392 SCRA 61)
The description in the Information of the check must conform
with the check submitted In evidence by the prosecution. .
·
The first element, i.e., making, drawing, and issuance of any
check, requires that the check be properly described in the
Informa tion to inform the accused of the nature and cause of the
accusation against him. Without a sufficient identification of the
dishonored check in the Information, the conviction of the accused
shotild'be set nside for being violative of the constitutionar
. ':
requirement of due process.
.
In the instant case, petitioner should be acquitted in Criminal
Case Nos. Q-93-43437 and Q-93-43442, because the date of the
check and the amo·..mt thereof as stated in the Informations vary with
the exhibits submitted by the prosecution, which inconsistencies
violate petitioner's constitutional right to be informed of the nature of
the offense charged.
The Information in Criminal Case No. Q-93-43437, described
Check No. 492615 as d,1ted October 15, 1902, for P3,117.00. The
records, however, show that said check differ from Exhibit "I," be
cause the date and amount stated therein are October 17, 1992 and
3,117.50, respectively. Likewise in Criminal Case No. Q-93-43442,
the date of Check No. 492580 as reflected in the Information is
September 28, 1992, while Exhibit "D" shows October 2, 19.92.
As held in Dico vs. Court of Appeals citing Alonto vs. People,
these inconsistencies justify the acquittal of the accused. Thus
244 UPDATES IN CRIMINAL LAW
"In the information filed by Felipe C. Belcina, Pros
ecutor II, the check involved is described as Far East
Bank and Trust Company (FEBTC) Check No. 364903
dated 12 May 1993 in the amount of F'l00,000 payable to
Equi table Banking Corporation. However, after going over
the 'records of the case, the parties, including the courts,
over looked the fact that the check being identified in
court was different from that described in the information.
The prosecution marked as its Exhibit "B" FEBTC Check
No. 369403 dated 12 May 1993 in the amount of Pl00,000
payable to Equitable Banking Corporation. The issue as
to the identity of the check, though not raised as an error,
, should be considered in favor of the petitioner.
"The variance in the identity of the check nullifies
petitioner's conviction. The identity of the check enters
into the first element of the offense under Section 1 ofB.P.
Blg. 22 - that a person draws or issues a check on ac
count or for value. There being a discrepancy in the iden
tity of the checks described in the information and that
presented in court, petitioner's constitutional right to be
informed of the nature of the offense charged will be vio
lated if his conviction is upheld,''
In the case ofAlonto us. People, this Court had this to say
when there was a variance involving the date as regards the check
de scribed in the information and that adduced in evidence:
"This Court notes, however, that under t1'e third
, count, the information alleged that petitioner issued a
; check dated 14 May 1992 whereas the documentary evi
dence presented and duly marked as Exhibit "I" was BPI
Check No. 831258 in the amount of P25,000 dated 05
April 1992. Prosecution witness Fernando Sardes con
firmed petitioner's issuance of the three BPI checks (Ex
hibits G, H, and I), but categorically stated that the third
check (BPI Check No, 831258) was dated 14 !\fay 1992,
which was contrary to that testified to by private com
plainant Violeta Tizon, i.e., BPI Check No. 831258 dated
05 April 1992. In view of this variance, the conviction of
petitioner on the third counl (Criminal Case No. Q-93-
417ii 1) C'lllllll>t 1,,, f'IIRtniJH,rl, lf iR 011 fhiR l!l'!llHHl thnt
petitioner's fourth assignmenL of el'l'or lH lcm11blc;, 111 Lhnt
the prosecution's exhibit, i.e.. Exhibit "I" (BPI Check No.
SPECIAL LAWS 245
831258 dated 05 April 1992 in the amount of P25,000) is ·i .. ,,,
excluded by the law and the rules on evidence. Since the,·,,,,·,,
identity of the check enters into the first essential ele.: ,,,. i
ment of the offense under Section 1 ofB.P. Big. 22, that is,,,t,,,.
that e. person makes, draws or issues a check on account·.,,
or for value, and the date thereof involves its second ele
ment, namely, that the time of issue the maker: drawet
. '
or 1sRuer knew that he or she did not have sufficient funds,
to cover the same, there is a violation of petitioner's cori,-
stituti.onal right to be informed of the nature of the of
fense charged in view of the aforesaid variance, thereby,,
rendering the conviction for the third count fatally defer.•·'
tive." (Ongson vs. People, G.R. No.156169, 12August 2005,,
464 SCRA 656) ,,
"For account or value."
We have held that upon issuance of a check, in the absence of
evidence to the contrary, it is presumed that thesame was issued for
valuable consideration, which may consist either in some right, in
terest, profit or benefit accruing to the party who makes the con tract,
or somt.:forbearance, detriment, loss or some responsibilit1i to act., or
labor, or service given, suffered or undertaken by the other side. It is
an obligation t,o do, or not to do in favor of the party who makes the
contract, such as the maker or endorser. (Ongson vs. People, G.R.
No. 156169, 12 August 2005, 464-SCRA 656)
Presumption of Issuer's knowledge of Insufficiency of funds.
For this presumption to arise, the prosecution must prove the
following: (a) the check is presented within ninety (90) days from
the date of the check; (b) the drawer or maker of the check receives
notice that, such check has not been paid by the drawee; and (c) the
drawer or maker of the check fails to pay the holder of the check the
amount due thereon, or make arrangements for payment in full
within five (5) banking days after receiving notice that such check
has not been paid by the drawee. In other words, the presumption iB
brought into existence only after it is proved that the issuer had
received a notice of dishonor and that within five days from receipt
thereof, he.failed to pay the amount of the check or to make arrange·
ments for its payment. The presumption or prima facie evidence as
provlclNI in t.hlA net.ion c11nnot. 11riiie, if Auch notice of non-payment.
by the drawee bank is not sent to the maker or drawer, or ff there it1
246 UPDATF.S IN CRIMINAL LAW
no proof as to when such notice was received by the drawer, since
there would simply be no way of reckoning the crucial 5-day
period. Furthermore, the notice of dishonor must be in writing; a
verbal notice is not enough. (Ongson vs. People, G.R. No.
1B6169, 12 August 2005, 464 SCRA 6561
Because this element involves a state of mind which is
difficult to establish, Section 2 of the law.creates a prima facie
presumption of such knowledge. xxx. The presumption that the
issuer had knowl edge of the insufficiency of funds is brought into
existence only after it is proved that the issuer had received a
notice of dishonor and that, within five days from receipt
thereof, he failed to pay the amount of the check or to make
arrange ment for its payment. Where the presumption of
knowledge of insufficiency of funds does not arise due to the
absence of notice of
dishonor of the check, the accused should not be held liable for tJie
offense defined under the first paragraph of Section 1 ofB.P. Blg. 22.
x x x. In other words, if such notice of non-payment by lhe drawee
bank is not sent to the maker or drawer of the bum check, or if there
is no proof as to when such notice was received by the drawer, then
the presumption ofknowledge as provided in Section 2 of B.P. Blg.
22 cnnnot arise, since there would simply be no way of reckoning the
crucial five-day period. (Rico vs. People, G.R. No. 137191, 18
Novem· ber 2002, 392 SCRA 61; Danao vs. Court of Appeals, G.R.
No. 1223B3, 06 June 2001, 358 SCRA 450)
The presumption that the issuer has knowledge of the insuffi
ciency of funds is brought into existence only after it is proved
that the issuer had received notice of dishonor and that within 5
banking days from receipt thereof, he failed to pay the amount of
the check or to make· arrangement for its payment. The
prosecution is burdened to prove these acts that give rise to the
prima facie pre sumption. (Vergara vs. People, G.R. No. 160328,
04 February 2005, 450 SCRA 495)
. With the onset of the presumption, the burden of evidence is
shifted on the drawer/maker of the check to prove that, when he
issued the subject check, he had no knowledge that he had insuffi
cient funds in the drawee bank to answer for the amount due. The
notice of dishonor may be sent to the drawer or maker by the drawee
bank, the holder of the check, or the offended party, either by per•
sonal delivery or by registered mail. The drawer or maker of a check
has a right, under the law, to demand that a written notice of dis-
SPECIAL LAWS 247
honor be se 1t to and received by him to enable him to avoid indict
ment for violation ofB.P. Big. 22. (Sia vs. People, G.R. No. 149695,
28 April 2004, 428 SCRA 206)
Finally, it is worth mentioning that notice of dishonor is re
quired under both par. 2(d)Art. 315 of the RPC and Sec. 2 ofB.P. Blg.
22. \Vhile the RPC prescribes that the drawer of the check must
deposit the amount needed to cover his check within three days from
receipt of notice of dishonor, B.P. Big. 22, on the other hand, requires
the maker or drawer to pay the amount of the check withi:nfive·days
from receipt of .notice of dishonor. Under both laws; notice of dis
honor is necessary for prosecution (for estafa and violation ofB.P.
Blg. 22). Witho,.;t proof of notice of dishonor, knowledge of insuffi
ciency of funds cannot be presumed and no crime (whether estafa or
violation of BP 22) can be deemed to exist. (People vs. Ojeda, G.R.
Nos. 104238-58, 03 June 2004, 430 SCRA 436)
Doctrine that a mere employee tasked to sign checks In blanks
may not be deemed to have knowledge of the Insufficiency of
funds applies only to corporate checks. ·
Petitioner's insistence that since he is not an owner of Unlad,
he could not have had any knowledge as to the insufficiency of funds
is devoid of merit. As clarified in Lao vs. Court of Appeals, the very
case petitioner is invoking, the doctrine that a mere employee tasked
to sign checks in blanks may not be deemed to have knowledge of
the insufficiency of funds applies only to corporate checks and not to
personal checks. In this case, what is involved is a personal and not a
corporate check. (Lee vs. Court of Appeals, G.R. No. 145498, 17
Janu ary 2005, 448 SCRA 455)
Demand or 11otice of dishonor must be In writing.
As heldb Domagsang vs. Court of Appeals, while Section 2 of
B.P. Blg. 22 indeed does not state that the notice of dishonor be in
writing, this must be taken in conjunction with Section 3 of the law,
i.e., "that where there are no sufficient funds in or credit with such
drawee bank, such fact ,;hall always be explicitly stated in the notice
of dishonor or refusal." A mere oral notice or demand to pay
would appear to be insufficient for conviction under the law. In
our view, both ihe spirit and the letter of the Bouncing Checks
Law require for the act tu be punished thereunder not only that
the accused
issued a check that is dishonored, but also that the accused has
248 UPDATES IN CRIMINAL LAW
actually been notified in writing of the fact of dishonor. The consis
tent rule is that penal statutes must be construed strictly against
the State and liberally in favor of the accused. (Rico vs. People,
G.R. No. 137191, 18 November 2002, 392 SCRA 61)
There must also be proof of receipt of notice.
In recent cases, we had the occasion to emphasfae that not
only must there be a written notice of dishonor or demand letters
actu ally receh·ed by the drawer of a dishonored check, but there
must also be proof of receipt thereof that is properly authenticated,
and not mere registered receipt and/or return receipt. (Danao vs.
Court of Appeals, G.R. No. 122353, 06 June 2001, 358 SCRA 450)
Moreover, in Lina Lim Lao vs. CA (274 SCRA 572 [1997)), we
emphasized that "the full payment of the amount appearing in the
check within five banking days from notice of dishonor is a 'complete
defense.' The absence of a notice of dishonor necessarily deprives an
accused an opportunity to preclude a criminal prosecution. Accord
ingly, procedural due process clearly enjoins that a notice of dis
honor be actually served on petitioner. Petitioner has a right to
demand - and the basic postulate of fairness require - that the
notice of dishonor be actually sent to and received by her to afford
her the opportunity to avert prosecution under B.P. Blg. 22.'' (Ting
vs. Court of Appeals, G.R. No. 140665, 13 November 2000, 344 SCRA
551)
In other words, the prima facie presumption arises when a
check is issued. But the law also provides that the presumption
does not arise when the issuer pays the amount of the check or
makes arrangement for its payment "within five banking days
after receiv ing notice that such check has not been paid by the
drawee." Verily,
B.P. Blg. 22 gives the accused an opportunity to satisfy the
amount indicated in the check and thus avert prosecution.
(Vergara vs. People, G.R. No. 160328, 04 February 2005, 450 SCRA
495)
In the case of Del Rosario vs. Cedillo, A.M. No. MTJ-04-
1557, 21October 2004, the Supreme Court ruled that the
respondent Judge correctly dismissed the criminal aspect of the
BP 2'2 cases for failure to establish that Estrella received the
notice of dishonor in the form of a demand letter. The
presentation of the said letter and the regis try receipt, with an
unauthenticated signature, do not meet the required proof beyond
reasonable doubt that Estrella received such
SPECIAL LAWS 249
notice, especially con.,idering that she denied receipt thereof. The
rule is that receipts for registered letters and return receipts do not
prove themselves; they must be properly authenticated in order to
serve as proof of receipt. of the letters. Moreover, the 'prosecution
never made an effort to identify the person who allegedly received
the letter and signed the registry receipt as "A. Estrella."The
matter of which among the accused, Estrella herself or her
authorized agent signed the registry receipt was never proven by
the pros cution: ·:·
The prosecution claimed that the demand letter was sent by
registered mail. To prove this, it presented a copy of the demand
let ter as well as the registry return receipt bearing a signature
which was, however, not even authenticated or identified. A
registry receipt alone is insufficient as proof of mailing. "Receipts
for registered letters and return receipts do not prove themselves;
they must be properly authenticated in order to serve as proof of
receipt of the letters."
It is clear from the foregoing that complainant merely pre
sumed that appellant received the demand letter prepared and sent
by her laWYer. She was not certain if appellant indeed received
the notice of dishonor of th& checks. All she knew was that. a
demand letter was sent by her laWYer to the appellant. In fact,
right after complainant made that presumption, her laWYer filed
the criminal cases against appellant at the Fiscal's office without
any confirms-· tion that the demand letter supposedly sent through
registered mail was actually r(ceived by appellant. ·
With the evident lack of notice of dishonor of the checks, appel
lant cannot be held guilty of violation of B.P. Big. 22. The lack of
such notice violated appellant's right to procedural due process. "It
is a general rule that when service of notice is an issue, the person
alleging that the notice was served must prove the fact of service."
The burden of proving receipt of notice rests upon the party assert ing
it and the quantum ofproofrequired for conviction in this crimi nal
case i.s proof beyond reasonable doubt.
When, during the trial, appellant denied having·received the
demand letter, it became incumbent upon the prosecution to prove
that the demand letter was indeed sent through registered mail and
that the same was received by appellant. But it did not. Obviously, it
relied merely on the weakness of the evidence of the defense.
This Court therefore cannot, with moral certainty, convict ap
pellant of violation of RP. Blg. 22. The evident failure of the prosecu-
250 UPDATES IN CRIMINAL LAW
tion to establish that she was given the requisite notice of dishonor
justifies her acquittal. x.xx.
Stated otherwise, responsibility under B.P. Blg. 22 was per
sonal to appellant; hence, personal knowledge o:' the notice of
dishonor was necessary. Consequently, while there may have been
constructive notice to appellant regarding the insufficiency of her
funds in the bank, it was not enough to satisfy the requirements of
procedural due process. (People vs. Ojeda, G.R. No8. 104238-68, 03
June 2004, 430 SCRA 436)
Notice of dishonor to the corporation is not notice to the em
ployee or officer who drew or Issued the corporate- check.
Thus, if the drawer or maker is an officer of a corporation, the
notice of dishonor to the said corporation is not notice to the em
ployee or officer who drew or issued the check for and in its behalf.
The Court explained in Lao us. Court of Appeals, to wit:
"In this light, the postulate of Respondent Court of
Appeals that '(d)emand on the Corporation constitutes
demand on appellant (herein petitioner),' is erroneous.
Premiere has no obligation to forward the notice addressed
to it to the employee concerned, especially because the
corporation itself incurs no criminal liability under B.P.
Blg. 22 for the issuance of a bouncing check. Responsibil
ity under B.P. Blg. 22 is personal to the accused; hence,
personal knowledge of the notice of dishonor is necessary.
Consequently, constructive notice to the corporation is not
enough to satisfy due process. Moreover, it is petitioner,
as an officer of the corporation, who is the latter's agent
for purposes of receiving notices and other do!'.Umcnts,
and not the other way around. It is but axiomatic that
notice to the corporation, which has a personality distinct
and separate from the petitioner, does not constitute no·
tice to the latter."
In this case, the prosecution failed to present any employee
of the PT&T to prove that the telegrams from the offended party
were in fact transmitted to INSURECO and that the latter received
the same. Furthermore, there is no evidence on record that the
peti tioner ever received the said telegrams from INSURECO, or
that separate copies thereof were transmitted to and received by
the
SPECIAL LAWS · 251
petitioner. (Marigomen vs. People, G.R. No. 153451, 26 May 2005,
459 SCRA 169) :
Caso where demand or notice of dishonor was dlspe sed with.
Facts: Petitioner and Josefina went to the house o( Myrna.
Josefina, introduced the petitioner to Myrna as her best friend and a
good payer. Josefina told Myrna that petitioner wanted her checke
encashed. In view of Josefina's assurance that petitioner is trust·
worthy, Myrna agreed to encash the checks. Petitioner then issued
to Myrna three postdated checks. When Myrna presented the checks
for payr.nent to the drawee bank, they were dishonored as they were
drawn against insufficient funds.,,
AB Myrna did not know petitioner's address,·she
immediately informed Josefina about. the dishonored checks. The
latter told Myrna not to worry and repeated her assurance that
petitioner is her best friend and a good paye1 Myrna tried to
get·petitioners address from
,Josefina, but the latter refused and instead made the assurance
that she will inform petitioner that the checks were dishonored.
\Vhen ,Josefina failed to abide by her promise, Myrna, without send..
ing any notice to petitioner, filed a criminal complaint to violation of
B.P. Big. 22 against the latter.
Will the complaint prosper despite the absence of demand or
notice of dishonor sent to petitioner?
Ruling: YES. We likewise find no reason to sustain petitioner's
contention that she was not given any notice of dishonor. Myrna had
no reason to be suspicious of petitioner. It will be recalled that
Josefina Dimalanta assured Myrna that petitioner is her"best friend"
and "a good payer," Consequently, when the checks bounced, Myrna
would naturally turn to Josefina for help. We note that Josefina
refused to give Myrna petitioner's address but promised to inform
petitioner about the dishonored checks. (Yulo vs. Peop'le, G.R,,No, :
142?f!2,p4 March 2005, 452 SCRA 705) . ., .. , . . . , ,,
Consequence of payee's failure to present the check for payment
within ninety-:{90) days. i: 1 .! ; •• ··.·
Contrary to petitioner's assertions, nowhere in s id ovi icin
does the law require a maker to maintain funds in his bank account
for only 90 days. Rather, the clear import of the law is to establish a
prima facie presumption of knowledge of such immfficiency of funds
252 UPDATES IN CRIMINAL LAW
under the following conditions: (1) presentment within 90 days
from date of the check, and (2) the dishonor of the check and
failure of the maker to make arrangements for payment in full
within 5 banking days after notice thereof. That the check must be
deposited within ninety (90) days is simply one of the conditions
for the prima fade presumption of knowledge of lack of funds to
arise. It is not an element of the offense. Neither does it discharge
petiti.oner from his duty to maintain sufficient funds in the
account within a reasonable time thereof. Under Section 186 of
the Negotiable Instruments Law, "a check must be presented for
payment within a rtiasonable time after its issue or the drawer will
be discharged from liability thereon to the extent of the loss
caused by the delay." By current banking practice, a check
becomes stale after more than six (6) months, or 180 days. Private
respondent herein deposited the checks 157 days after the date of
the check. Hence said checks cannot be considered
stale. Only the presumption of knowledge of insufficiency of funds
was lost, but such knowledge could still be proven by direct or
cir cumstantial evidence. (People vs. Nagrampa, G.R. No.
146211, 06
Au.gust 2002, 386 SORA 412; Wong vs. Court of Appeals, G.R. No.
117857, 02 February 2001, 351 SCRA 100)
Payment as a defense.
· Only a full payment of the face value of the check at the timeof
its presentment or during the five-day grace period could exonerate
the accused from criminal liability. A contrary interpretation would
defeat the purpose of Batas Pambansa Blg. 22, that of safeguarding
the interest of the banking system and the legitimat8 public check ing
account user, as the drawer could very well have himself exoner ated
by the mere expediency of paying a minimal fraction of the face
value of the check.
Neither could the subsequent payment of the amount due on
the check during the pendency of the case against the accused result
in freeing him from criminal liability because the same had already
attached after the check was dishonored. Said subsequent payments
can only affect hid civil, not criminal, liability. A subsequent pay
ment by the accused would not obliterate the criminal liability there
tofore.already incurred.
It is well to note that the gravamen of Batas Pambansa Blg. 22
is the issuance of a check, not the nonpayment of an obligation.
(Macalalag vs. People, G.R. No. 164358, 20 December 2006)
254 UPDATES IN CRIMINAL LAW
SPECIAL LAWS
Payment of the amount due on the check within the flve•day
period from notice of the dishonor given to the drawer, a valid
defense. · · , ,, ; ,
Emphasizing the intent of the State in providing a five-day
banking period from notice of dishonor of a check within which the
maker 11r drawer may pay the amount due or make arrangements
with the drawee hank for its payment, the Court declared in Lao vs.
Court of App2als: ·· ·· · '
' ;;
"It. has been observed that the State, under this stat- ·
ute, actually offers the violator "a compromise by allow
ing him to perform some act which operates to preempt
the criminal action, and ifhe opts to perform it the action
is abated." This was also compared "to certain laws allow-, .
ing illegal posse86ors of firearms a certain period of time··.
to surrender the·illegally possessed firearms to the Gov . '·
emment, without incurring any criminal liability." ·
If the maker or drawer pays, or makes arrangements with the
drawee bank for the payment of the amount due within the five-
day period from notice of the dishonor given to the drawer, it is a
com plete defense; the accused may no longer be indicted for
violation of Section 1, B.P. Big. 22. If he is so indicted, he may set
up the pay ment of the amount due as a complete defense. (Sia vs.
People, G.R. No. 149696, 28April 2004, 428 SCRA 206)
Cause or reason for the Issuance of check is immaterial.
The purpose for which the check was issued and the terms and
conditions relating to its issuance are immaterial. What is primor dial
is that the issued checks were worthless and the fact of worth lessness
was known to the petitioner at the time of their issuance, as in this
case. This is because under Batas Pambansa Big. 22, the mere act of
issuing a worthless check is malum prohibitum. (Yulo vs. People, G.R.
No. 142762, 04 March 2005, 462 SCRA 705)
The Court has consistently declared that the cause or reason
for the issuance of the check is inconsequential in determining
crimi nal culpability under B.P. Blg. 22. The Court has since said
that a "check issued as an evidence of debt, although not intended
for encashment, has the same effect like any other check" and
must thus be held to be ",vithin the contemplation ofB.P. Blg. 22."
Once a check is presented for payment, the drawee bank gives it
the usual
course whether issued in payment of an obligation or just as a guar
anty of an obligation. B.P. Big. 22 does not appear to concern itself
with what might actually be envisioned by the parties, its primor
dial intention being to instead ensure the stability and commercial
value of checks as being virtual substitutes for currency. It is a
policy that can easily be eroded if one has yet to determine the
reason for which checks are issued, or the terms and conditions for
their issuance, before an appropriate application of the legislative
enactment can be made. (Meriz vs. People, G.R. No. 134498, 13 No
vember 2001, 368 SCRA 524)
What the law punishes is the issuance of a bouncing check
and not the purpose for which the check was issued, nor the terms
and conditions of its issuance. (Caras vs. Court of Appeals, G.R.
No. 129900, 02 October 2001, 366 SCRA 371) The agreement
surrounding the issuance of the checks need not be first looked
into since the law itself provides that regardless of the intent of
the parties, the mere issuance of any kind of check which is
subsequently dishonored makes the person who issued the check
liable. (Narte vs. Court of Appeals, G.R. No. 132552, 14 July 2004,
434 SCRA 336)
The checks issued, even assuming they were not intended to be
encashed or deposited in a bank, produce the same effect as ordi
nary checks. What the law punishes is the issuance of a rubber
check itself and not the purpose for which the check was issued nor
the terms and conditions relating to its issuance. This is not without
good reasons. To determine the purpose as well as the terms and
conditions for which checks are issued will greatly erode the faith
the public reposes in the stability and commercial value of checks as
currency substitutes, and bring about havoc in the trading and bank
ing communities. Besides, the law does not make any distinction as
to the kind of checks which are the subject of its provisions, hence,
no such distinction can be made by means of interpretation or appli
cation. What is important is the fact that petitioner deliberately
issued the checks in question and those checks were dishonored
upon presentment for payment. (Cueme vs. People, n.R. No.
133325, 30 June 2000, 328 SCRA 447)
Jurisprudence abounds with regard to the rule that B.P. 22
applies even in cases where dishonored checks are i;;sued merely in
the form of a deposit or a guarantee. The law does not make any
distinction as to whether the checks within its contemplation are
issued in payment of an obligation or merely to gua rnntee the said
SPECIAL LAWS 255
obligation. In accordance with the pertinent rule of statutory con
struction, inasmuch as the law has not made any distinction in this
regard, no such distinction can be made by means of interpretatio
or application. Further, it is the legislative intent to make the
prohi bition all-embracing, without making any exception from
the opera tion thereof in favor of a guarantee. Consequently, what
are impor tant are thefacts that the accuser! had deliberately
issued the checks in question to cover accvunts and that the
checks were dishonored upon presentment regardless of whether
or not the accused merely issued the checks as a guarantee.
(Alonto vs. People, G.R. No. 140078, 09 December 2004, 445 SCRA
624)
In People vs. Nita/an, this Court has ruled that a check issued
as an evidence of debt - though not intended to be presented for
payment - has the same effect as an ordinary check and would fall
within the ambit of B.P. Big. 22. Que vs. People has affirmed the
application of B.P. Blg. 22 to cases in which dishonored checks
have been issued in the form of deposit or guarantee. Indeed, the
law does not make any distinction between checks issued in
payment of an obligation and those made merely to guarantee that
obligation.
The claim that the prosecution failed to prove that the check
had been issued to apply on account or for value in favor of Paul
Gotianse is irrelevant. The law does not require that the payee of a
check be the same as the obligee of the obligation in consideration
for which the check has been issued. Pertinent is a criminal law
authority's explanation of the term to apply n account or for value:
"It should be noted that B.P. Big. 22 punishes the
making or drawing and issuing of any check that is sub
sequently dishonored, even in payment of pre-existing
ob· ligation, as indicated in Section 1 thereof by the.
phrase 'to apply on account.' Section 1 also punishes the
making or drawing and issuing of a check that is
subsequently dis honored, in payment of an obligation
contracted at the time of the issuance of the check, as
indicated by the words 'for value.' xx:x."
WbE;n the checks were issued by petitioner to Paul Gotianse as
payee, they were issued to apply "on account;" that is, to settle the
farmer's obligationb the latter's principal - Northern Hill Devel·
opment. In this regard, the Court also notes that the trial court
found that petitioner had agreed to settle his debt to the company
by issuing the checks payable to its agent, Gotianse. Clearly, the
256 UPDATES IN CRIMINAL LAW
prosecution proved the first element of a violation of B.P. Blg. 22.
(Ngo vs. People, G.R. No. 155815, 14 July 2004, 434 SCRA 522)
What tfi,e law punishes is the issuance itself of a bouncing check
no
and the purpose for which it was issued or of the terms and
conditions relating to its issuance. The mere act of issuing a worth
less· check, whether merely as an accommodation, is covered by
B.P. Blg.22. Hence, the agreement surrounding the issuance of a
check is irrelevant to the prosecution and conviction of the
petidoner. (Ruiz Vf!,_f'eople, G.R. No. 160893, 18 November 2005,
475 SCRA 476)
Check Is presumed to have been Issued for valuable consider
ation.
We have held that upon issuance of a check, in the absence
of evidence to the contrary, it is presumed that the same was
issued for valuable consideration.Valuable consideration, in turn,
may consist either in some right, interest, profit or benefit
accruing to the party who makes the contract, or some
forbearance, detriment, loss or some responsibility, to act, or
labor, or service given, suffered or undertaken by the other side. It
is an obligation to do, or not to do in favor of the party who makes
the contract, such as the maker or indorser.
In this case, petitioner himself testified that he signed several
checks in blank, the subject check included, in exchange for 2.5%
interest from the proceeds of loans that will be made from said
account. This is a valuable consideration for which the check was
issued. That there was neither a pre-eristing obligation nor an obli
gation incurred on the part of petitioner when the subject check was
given by Bautista to private complainant on July 24, 1993 because
petitioner was no longer connected with Unlad or Bautista starting
July 1989, cannot be given merit since, as earlier discussed, peti
tioner failed to adequately prove that he has severed his relation·
ship with Bautista or Unlad. (Lee us. Court of Appeals, G.R. No.
145498, 17 January 2005, 448 SCRA 455)
Good faith, not a defense In violation of B.P. Big. 22.
Regarding petitioner's allegation of good faith, suffice it to
say that such a claim is immaterial, the offense in question being
malum prohibitum. The gravamen of the offense is the issuance of
a bad check and therefore, whether or not malice and intent
attended such
SPECIAL LAWS 257
issuance is unimportant. (Josef us. People, G.R. No. 146424, ·18 No
vember 2005, 475 SCRA 417)
Knowledge of insufficiency of funds of payee, not a defense. ··
Assuming arguendo that the payee had knowledge that he had
insufficient funds at the time he issued the r.:heck, such
knowledge by the payee is.immaterial as deceit is not an essential
element of the offense under Batas Pambansa Bilang 22.The
gravamen of the offense is the issuance of a bad check; hence,
malice and intent in the issuance thereof are inconsequential.
(Rigor vs. People, G.R. No. 144887, 17 November 20(4, 442 SCRA
450) · ·
We not.e that we have held in previous cases that the drawer's
act oi notifying the payee at the time of the issuance of the check
that he doeR not have sufficient funds to cover the amount of such
check may operate to absolve the drawer from liability under B.P.
Elg. 22. However, it must be emphasized that in said. cases; the
checks were drawn and issued in good faith and without intention
on the part of their respective drawers to apply said checks for
account or for value. In Magno us. Court of Appeals, the rubber
checks were simply issued to cover a warranty deposit in a lease
contract returnable to the drawer upon the satisfactory completion
of the entire period of lease. The drawer did not benefit from the
deposit since the checks were used only as a deposit to serve as
security for the faithful performance of the drawer's obligation as a
lessee of an equipment. On the other hand, in !dos vs. Court of
Appeals, the subject check was issued for the mere purpose of evi
dencing the private complainant's share or interest in a partnership
he entered into with the drawer of the check. The check was
simply meant to show the drawer's commitment that when the
receivables of the partnership are collected and goods are sold and
only when such collection and sale were realized, would the
drawer give to the private complainant the net amount due him
representing his inter est in the partnership; it did not involve a
debt of or any amount due and payabk by the drawer. Thus, the
operative facts in the present case arc different. Herein petitioner
issued the subject check in ex change for cash given to him and his
mother and sister by private complainant. Hence, as distinguished
from Magno and !dos, it is clear that in the insta·.1t case the check
was intended to apply for account or for value. (Young V&. Court
o{Appeals, G.R. No. 140425, 10 March 2005, 453 SCRA 109)
268 UPDATES IN CRIMINAL UW evidence, provides that the introduction in evidence of the
unpaid

One who makes and Issues a check on an account of another

with
the latter's consent may be held liable for violation of B.P. Big.
22.
Considering that the law imposes a penal sanction on one
who draws and issues a worthless check against insuffici<mt
funds or a closed account in the drawee bank, there is, likewise,
every reason to penalize a person who indulges in the making and
issuing of a check on an account belonging to another with the
latter's consent, which account has been closed or has no funds or
credit with the drawee bank.
The evidence on record shows that the petitioner drew and
signed the subject check with the knowledge and consent of her
sister, Gina Parro, the owner of the check and UCPB Account No.
320-000534-5. Parro knew that the check was to be delivered by the
petitioner to the private complainant in payment of her P184,000.00
loan. Verily, Parro had full knowledge of the petitioner's acts, thus
approved and sanctioned them; as such, the check must be given
legal effect. The records show that the private complainant was
completely impervious of the fact that another person owned the
account against which the petitioner drew the check, und that such
account had already been closed when the check w2s delivered to
her. The private complainant believed all along that the check was
drawn against the petitioner's account with the UCPB. It was only
when the petitioner testified in the trial court that the private com
plainant became aware that such checking account belonged to the
petitioner's sister. (Ruiz us. People, G.R. No. 160893, 18 November
2005, 475 SCRA 476)
Granting arguendo that petitioner's version of the facts is true
- that her transaction was only with a certain Bernadette Montef
and not with private complainant Elmer Evangelista - the hard
fact remains that she issued eight (8) bouncing checks that went
into circulation. In net effect, what she did was to bonow from
Ruiz, to pollute the channels of trade and commerce, injuring the
banking system, and eventually hurting the welfare of society and
the public interest. (Saguitguit vs. People, G.R. No. 144054, 30
June 2006, 494
SCRA 128)

The drawee bank's representative need not be presented as a

wit·
ness to testify on the dishonor of th1;1 checks.
Section 3 of B.P. Big. 22, which is in the nature of a rule of
 SPECIAL UWS 269

and dishonored check with the drawee bank's refusal to pay

stamped or writte:'1 thereon or attached thereto, giving the·reason
therefor, shall constitute prima facie proof of the making or
issuance of,said check, and the due presentment to the drawee for
payment and the dishonor t.'iereof. While it is true that the
presumption isr merely prima facie, the accused must, nonetheless,
present,proof.,to,,the contrary to overcome this presumption.
(Garcia,vs. :C9urt1 of Appeals, G.R. No. 138197, 27 November 2002,
393 SCRA 79) ;<.
It is not required much less indispensable, for the prosecution
to present the drawee bank's representative as a· witness to testify
on the dishonor of the checks because of insufficiencj'offurtds. The
prosecution may present, as it did in·•this case,·only com•
plainant as a witness to prove all the elements ofthe offense charged.
She is competent and qualified witness to testify that she deposited
,.;he checks to her account in a bank; that she subsequently received
from the bank the checks returned unpaid with a nQtation 'drawn
against insufficient funds' stamped or written on' the' dorsal side
0fthe checks themselves, or in a notice attached to the dishon ored
checks duly given to the complainant, and that petitiol:). r, failed to
pay complai."lant the value of the checks or make arrangements for
their payment in full within five (5) banking days after receiving
notice that such checks had not been paid by the drawee bank. . ,. ,•·. 'i''

Yolanda's testimony that when she deposited the checks to her

depository bank they we're dishonored due to "Account .Closed" thus
sufficed. (Recuerdo us. People, G.R. No. 133(!36, 22 January 2003,
395 SCRA 638)

Presentation of check in evidence, not a condition sine qua non

for conviction under 8.P. Big. 22.
Petitioner's insistence on the presentation of the check in evi
dence as a condition sine qua non for conviction under B.P. Blg. 22 is
wrong. Petitioner anchors his argu ent on Rule 130, Section 3, of the
Rules of Court, otherwise known as the best evidence rule. How ever,
the rule applies only where. the content of the document.is the subject
of the inquiry. Vv1lere the issue is the execution or exis nce.9f the
document or the circumstances surrounding its execution; the best
evidence rule does not apply and testimonial evidence is admis sible.
The grnvamen of the ofTenAe is the act of drawir\g and issuing a
worthless check. Hence, the subject of the inquiry is the. fact of
issuance or execution of the check, not its content. '" ' ·
260 UPDATES IN CRIMINAL LAW
Here, the due execution and existence of the check were
suffi ciently established. Cenizal testified that he presented the
originals of the check, the return slip and other pertinent
documents before the Office of the City Prosecutor of Quezon
City when he executed
his complaint-affidavit during the preliminary investigation. The
City Prosecutor found a prima facie case against petitioner for viola
tion of B.P. Blg. 22 and filed the corresponding information based on
the documents. Although the check and the return slip were among
the documents lost by Cenizal in a fire that occurred near his resi
dence on September 16, 1992, he was nevertheless ablu to adequately
establish the due execution, existence and loss of the check and the
return slip in an affidavit of loss as well as in his tei,timony during
the trial of the case. (Arceo vs. People, G.R. No. 142641, 17 July
2006, 495 SORA 204)
As a defense, "stop paymenf' order must be for a valid
reason.
As the evidence for the defonse showed, the closure of
petitioner's Account No. 845515 with Citibank was not for insuffi
ciency of funds. It was made upon the advice of the drawee bank, t.o
avoid payment of hefty bank charges each time petitioner issued a
"st.op payment" order to prevent encashment of postdated checks in
private respondent's possession. Said evidence contradicts the prima
facie presumption of knowledge of insufficiency of fonds. But it es
tablishes petitioner's state of mind at the time said checks were
issued on August 24, 1989. Petitioner definitely had no knowledge
that his funds or credit would be insufficient when the checks would
be presented for encashment. He could not have foreseen that he
would be advised by his own bank in the future, to close his account
to avoid paying the hefty banks charges that came with each "stop
payment" order issued to prevent private respondent from encashing
the 30 or so checks in its possession. What the prosecution has
established is the closure of petitioner's checking acco1mt. But this
does not suffice to prove the second element of the offense under
B.P. Blg. 22, which explicitly requires "evidence of knowledge of
insuffi cient funds" by the accused at the time the check or checks are
presented for encashment.
To rely on the presumption created by B.P. Blg. 22 as the pros
ecution did in this case, would be to misconstrue the import of re
quirements for conviction under the law. It must be stressed that
every element of the offense must be proved beyond reasonuble
doubt,
SPECIAL LAWS 261
never presumed. Fmthermore, penal statutes are strictly construed
against the State and liberally in favor of the accused. Und r the
Bouncing Checks Law, the punishable act must come clearly'
within both the spirit and letter of the statute. ' · ··
While
the B.P. Blg. 22 was enacted to safeguard '·,:"•.:' ' f•.'.:'
interest of the
banking system, it is difficult to see how conviction of the
accu!:J8d in this case will protect the sanctity of the financial
system; Moreoyer, protection must also be afforded the interest of
townhouse buyers under P.D. No. 957. A statute must be
construed in relation to other laws so as to carry out the legitimate
ends and purposes intended by the legislature. Courts will not
strictly follow the letter of one stat ute when it leads away from
the true intent oflegislature and when ends are incons stent with
the general purpose of.the act. ore so,
when it will mean the contravention of another valid stat'u.ti!'.'Both
laws have to be reconciled and given due effect: ' ' " ''''" 10 : ':w·1 '
Note that we have upheld a buyer's reliance on Section 23 of
P.D. No. 957 to suspend payments until such time as the owner or
developer had fulfilled its obligations to the buyer. This.exercise of a
statutory right to suspend installment payments, is
to our mind, a
valid defense against the purported violations of B.P.,Blg. 22 that
petitioner is charged with.
Given the findings of the HLURB as to incomplete features
in the construction of petitioner's and other units of the subject
condo minium bought on installment from FRC, we are of the
view. that petitioner had a valid cause to order his banli: to stop
payment. To say the least, the third element of"subsequent
dishonor of the check
... without, valid cause" appears to us not established by.the pros•
ecution. As already stated, the prosecution tried to ,establish' the
crime on a prima facie presumption in B.P. Big. 22. Here that pre·
sumption is unavailing, in the presence of a valid cause to stop
payment, thereby negating the third element of the crime. (Sycip
vs, Court of Appeals, G.R. No. 125059, 17 March 2000, 3.28 SCRA
447)
Actually, the check in question was not issued ·without suffi
cient funds and was not dishonored due to insufficiency of funds.
What was stamped on the check in question was "Payment Stopped
Funded" at the sams time "DAUD" meaning drawn against uncol
lected deposits. Even with U'.'lcollected deposits, the bank may honor
the check at its discretion in favor of favored clients, in which case
there would b,; no violation of B.P. Blg. 22. (Tan vs. People, C.R. No.
141466, 19 Jw:uary 2001, 349 SCRA 777)
 262 UPDATES IN CRIMINAL LAW
Venue of criminal action.
Violations of Batas Pambansa Bilang 22 are categorized as
transitory or continuing crimes. In such crimes, some acts material
and essential to the crimes and requisite to their consummation
occur in one municipality or territory and some in another, in which
event, the court of either has jurisdiction to try the cases, it being
understood that the first court taking cognizance uf the case ex cludes
the other. Hence, a person charged with a transitory crime may be
validly tried in any municipality or territory where the of fense was in
part committed. (Rigor vs. People, G.R. No. 144887, 17 November
2004, 442 SCRA 450)
Has Administrative Circular No. 12-2000 removed the penalty of
Imprisonment in violation of B.P. Big. 22?
The clear tenor and intention of Administrative Circular No. 12-
2000 is Ilfil to remove imprisonment as an alte"'native penalty, but to
lay down a rule of preference in the application of the penal ties
provided for in B.P. Blg. 22.
The pursuit of this purpose clearly does not foreclose the
possi bility of imprisonment for violators of B.P. Blg. 22. Neither
does it defeat the legislative intent behind the law.
Thus, Administrative Circular No. 12-2000 establishes a rule
of preference in the application of the penal provisions of B.P. Blg.
22 such that where the circumstances of both the offense and the of
fender clearly indicate good faith or a clear mistake of fact without
taint of negligence, the imposition of a fine alone should be consid
ered as the more appropriate penalty. Needless to say, the determi
nation of whether the circumstances warrant the imposition of a
fine alone rests solely upon the Judge. Should the Judge decide that
imprisonment is the more appropriate penalty, Administrative Cir
cular No. 12-2000 ought not be deemed a hindrance. (Lim vs. People,
G.R. No. 143231, 26 October 2001, 368 SCRA 436)
On the second assigned error, the petitioner faulted the trial
court for imposing a penalty of imprisonment instead of a penalty of
fine, and cites SC Circular No. 12-2000 to bolster his contention. He
suggests that since he is merely a first offender, he should be sen
tenced to pay a fine double the amount of the check.
''.
The Office of the Solicitor General, on the other hand, objects
to the petitioner's plea on the ground that when the latter drew and
264 UPDATES IN CRIMINAL LAW
SPECIAL LAWS 263
issued the dishonored check to the private complainant, he knew
that the residue of his funds in the drawee bank was insufficient to
pay the amount thereof.
Considering the facts and circumstances attendant in this case
we find the petitioner's plea to be barren of merit. Administrativ;
Circular No. 13-2001 provides:
"It is, therefore, understood that:
"1. Administrative Circular 12-2000 does not re
move imprisonment as an alternative penalty for viola-
tions of B.P. Blg. 22; ·· ·
"2. The Juciges concerned may, in the exercise of
s_oun discretion, a:id taking into consideration the pecu
har circumstances of each case, determine whether the
imposition of a fine alone would best serve the interest of
justice, or whether forbearing to impose imprisonment
would depreciate the seriousness of the offense, work vio:
lence on the social order, or otherwise be contrary to the
imperatives of justicl:l;
"3. Should only a fine be imposed and the accused
be unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code on subsidiary im-
prisonment." :·;,;
, ;r·
The records show that despite the numerous opportunities
'given to him by the trial court, the petitioner refused to adduce any
evi dence in his behalf. Moreover, the Court of Appeals found the
petitioner's appeal to be devoid of merit. Considering the factual
milieu in this case, there is every reason for the Court to reject the
plea for a peualty of fine and maintain the penalty of imprisonment
the trial court imposed on the petitioner. (Magdayao vs. People, G.R.
No. 152881, 17 August 2004, 436 SCRA 677)
However, in view of Supreme Court Administrative Circular
No. 12-200C, as clarified by Administrative Circular No. 13-2001
establishing a rule of preference in the application of the penaltie
provided for in B.P. Blg. 22; and the recommendation of the Solicitor
General in its Comment that the policy laid down in Vaca vs. Court
of Appeals, ar..d Lim vs. People, of redeeming valuable human mate
rial and preventing unnecessary deprivation of personal liberty and
economic usefulness, be considered in favor of petitioner who is not
shown to be a habitual delinquent or a recidivist, we find that the
penalty imposed by the Court of Appeals should be modified by
deletirtg the penalty of imprisonment and imposing only a fine of
P200,000.00. (Lee us. Court of Appeals, G.R. No. 145498, 17 January
I
2005, 448 SCRA 455)
Clearly, the imposition of either a fine or imp,isonment re
mains entirely within the sound discretion of the judge trying the
case, based on his assessment of the offender and the facts. Justice
Villarama premised his dissent on the absence of a distinction in
A.C. No. 12-2000 between which offenders deserve the relatively
lenient penalty of a fine and which deserve imprisonment. As AC.
No. 13-2001 states, the application of the circular is selective and it
is entirely up to the trial court judge to make that dh,tinction, given
the circumstances obtaining. (Josef vs. People, G.R. No. 146424, 18
November 2005, 475 SCRA 417)
RPC provisions on subsidiary imprisonment, applicable to B.P.
Blg.22.
This Court clarified in Administrative Circular No. 13-2001
dated February 14, 2001 that there is no legal obstac1e to the appli
cation of the RPC provisions on subsidiary imprisonment should
only a fine be imposed and the accused be unable to p y the fine.
This should finally dispel the petitioners' importunate claim that the
imposition of subsidiary imprisonment in this case is improper.
(Narte us. Court of Appeals, G.R. No. 132552, 14 Ju.ly 2004, 434
SCRA 336; Jao Yu vs. People, G.R. No. 134172, 20 September 2004,
438 SCRA 431)
Rule on the award of interest in the concept of actu;il and
compen•
satory damages.
When the obligation is breached, and it consists in the pay
ment of a sum of money, i.e., a loan or forbearance of money, the
interest due should be that which may have been stipulated in writ
ing. Furthermore, the interest due shall itself earn legal interest
from the time it is judicially demanded. In the absmce of stipula
tion, the rate of interest shall be 12% per annum to be computed
from default, i.e., from judicial or extrajudicial demand under and
subject to the provisions of Article 1169 of the Civil Code. (Tan vs.
People, G.R. No. 145006, 30August 2006)
oOo
APPENDIX "A"
REPUBLIC ACT NO. 9344
AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUS
TICE A.."'ID WELFARE SYSTEM, CREATING THE JUVENILE
JUSTICE AND WELFARE COUNCIL UNDER THE DEPART
MENT OF JUSTICE,APPROPRIATING FUNDS THEREFOR
AND FOR OTHER PURPOSES.
TITLE I
GOVERNING PRINCIPLES
CHAPTER I
TITLE, POLICY AND DEFINITION OF TERMS
SECTION 1. Short Title and Scope. - This Act shall be known
as the "Juvenile Justice and Welfare Act of 2006." It shall cover the
different stages involving children at risk and children in conflict
with the law from prevention to rehabilitation and reintegration.
SEC. 2. Declaration of State Policy. -The following State poli
cies shall be observed at all times:
(a) The State recognizes the vital role of children and youth
in nation building and shall promote and protect their physical,
moral spiritual, intellectual and social well-being. It shall inculcate
in the youth patriotism and nationalism and encourage their in
volvement in public and civic affairs.
(b) The State shall protect the best interests of the child through
measun:s that will ensure the observance of international standards of
child protection, especially those to which the Philip pines is a party.
Proceedings before any authority shall be conducted in the best
interest of the child and in a manner which allows the
265
 266 UPDATES IN CRIMINAL LAW
child to participate and to express himsel£'herselffreely. The
partici pation of children in the program and policy formulation
and imple mentation related to juvenile justice and welfare shall
be ensured by the concerned government agency.
(c) The State likewise recognizes the right of children to as
sistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty and exploitation, and other
conditions prejudicial to their development.
(d) Pursuant to Article 40 of the United Nations
Convention on the Rights of the Child, the State recognizes the
right of every child alleged as, accused of, adjudged, or
recognized as, having in fringed the penal law to be treated in a
manner consistent with the promotion of the child's sense of
dignity and worth, taking into ac count the child's age and
desirability of promoting his/her reintegra tion. Whenever
appropriate and desirable, the State shall adopt mea sures for
dealing with such children without resorting to judicial
proceedings, providing that human rights and legal safeguards are
fully respected. It shall ensure that children are dealt with in a
manner appropriate to their well-being by providing for, among
oth· ers, a variety of disposition measures such as care, guidance
and supervision orders, counseling, probation, foster care,
education and vocational training programs and other alternatives
to institutional care.
(e) The administration of the juvenile justice and welfare
system shall take, into consideration the cultural and religious per
spectives of the Filipino people, particularly the indigenous peoples
and the Muslims, consistent with the protection of the rights of
children belonging to these communities.
(f) The State shall apply the principles of restorative justice
in all its laws, policies and programs applicable to children in con·
flict with the law.
SEC. 3. Liberal Construction of this Act. - In r.ase of doubt,
the interpretation of any of the provisions of this Act, including its
imple menting rules and regulations (IRRs), shall be construed
liberally in
favor of the child in conflict with the law.
., SEC. 4. Definition of Terms. - The following terms as used in
this Act shall be defined as follows:
(a) "Bail" refers to the security given for the release of the
person in custody of the law, furnished by him/her 0r a bondsman, to
APPENDIXA 267
REPUBLIC ACT NO. 9344
guarantee his/her appearance before any court. Bail may be given
in the form of corporate security, property bond, cash deposit, or
recog nizance.
(b) "Best Interest of the Child" refers to the totality of the
circumstances and conditions which are most congenial to the sur
vival, protection and feelings of security of the·child and most en
couraging to the child's physical, psychological and
emotfonaldevel opment. It also means the least detrimental
available alternative for safeguarding the growth and
development of the child.
(c) "Child" refers to a person under the age of eightee
(18)
years.
.' ' .'. : ..
(d) "Child at Risk" refers to a child who is vulner bi to and
at the risk of committir g criminal offense because of personal,
fam ily and social circumstances, wch as, but not limited to, the
follow ing:
(1) being abused by any person through sexual, physi
cal, psychological, mental, economic or any other means and
the parents or guardian refuse, are unwilling, or unable to
provide protection for the child;
(2) being exploited including sexually or economically;
(a) being abandoned or neglected, and after diligent
search and inquiry, the parent or guardian cannot be found;
(4) coming from a dysfunctional or broken family or
with- out a parent or guardian;
(5) being out of school;
(6) being a streetchild;
(7) being a member of a gang;
(8) living in a community with a high level of criminal or
ity drug abu1:1e; and
(9) living in situations of armed conflict..
(e) "Child in conflict with the Law" refers to a child who is
alleged as, accused of, or adjudged as, having committed an offense
under Philippine laws.
(f) "Community-based programs" refers to the programs
pro vided in a community setting developed for purposes of
intervention
268 UPDATES IN CRIMINAL
LAW
and diversion, as well as rehabilitation of the child in conflict with
the law, for reintegration into his/her family and/or community.
(g) "Court" refers to a family court or in places where there
are no family courts, any regional trial court.
(h) Deprivation of Liberty" refers to any form of detention or
imprisonment, or to the placement of a child in conflict with the law
in a public or private custodial setting, from which the child in
conflict with the law is not permitted to leave at will by order of any
judicial or administrative authority.
(i) "Diversion" refers to an alternative, child appropriate pro
cess of determining the responsibility and treatment of a child in
conflict with the law on the basis of his/her social, cultural, eco
nomic, psychological or educational b::ickground v.rithout resorting
to formal court proceedings.
(j) "Diversion Program" refers to the program that the child
in conflict with the law is required to undergo after he/she is found
responsible for an offense without resorting to forma 1 court proceed
ings.
(k) "Initial Contact with the Child" refers t1) the
apprehen· sion or taking into custody of a child in conflict with the
law enforce ment officers or private citizens. It includes the time
when the child alleged to be in conflict with the law receives a
,mbpoena under Section 3(b) of Rule 112 of the Revised Rules of
Criminal Procedure or summons under Section 8(a) or Section 9(bJ of
the same Rule in cases that do not require preliminary investigation
or where there is no necessity to place the child alleged to be in
conflict with the law under immediate custody.
(1) "Intervention" refers to a series of ar.tivities which are
designed to address issues that caused the child to commit an of
fense. It may take the form of an individualized treatment program
which may include counseling, skills training, eduL:ation, and
other activities that will enhance his/her psychological,
emotional and
psycho-social well-being.
(m) "Juvenile Justice and Welfare System" refers to a system
dealing with children at risk and children in conflict with the law,
which provides child-appropriate proceedings, including programs
and services for prevention, diversion, rehabilitation, re-
integration and aftercare to ensure their normal growth and
development.
APPENDIXA 269
REPUBLIC ACT NO. 9344
.. (n). "Law Enforcement Officer" refers to the person in author
ity or his/her agent as defined in Article 152 of the Revised Penal
Code, including a barangay tanod. ·, ·
Co) "Offense" refers to any act or omission whether punish
able under special laws or the Revised Penal Code, as amended.
(p) "Recognizance'' refers to an undertaking in lieu of a bond
assumed by a parent or custodian who shall be responsible ·for the
appearance in court of the child in conflict with the law: when re•
quired. ' .,
(q) "Restora ive Just ce" refers to a principle which requires
a process of resolvmg conflicts with the maximum involvement of
the. victim, the 1ffencler and the community. It seeks to obtain epa
rat10n for th VIctim; reconciliation of the offender, the offended and
the community; and reassurance to the offender the he/she can be
7e integrate c. into society. It also enhances public safety by activat·
11:g the offender, the victim and the community in prevention strate·
gies.
(r) "Status Offenses" refers to offenses which discri inate
only aga_inst a c ild, while an adult does not suffer any penalty for
comm1ttmg f\1m1lar acts. These shall include curfew violations tru-
ancy, parental disobedience and the like. '
. . (s). "Youth Det.mtion Home" refers to a 24-hour child-caring
msti ut10n managed by accredited local government units (LGUs)
and hcensed and/or accredited nongovernmentorganizations (NGOs)
proV1dmg short-term r"!sidential care for children in conflict with
the law who are awaiting court disposition of their cases or transfer to
other agencies or jurisdiction.
(t) "Youth Rehabilitation Center" refers to a 24-hour resi
dential care facility managed by the Department of Social
Welfare and Development (DSWD), LOU.,, licensed and/or
accredited NGOs ni red by tho DSWD, which provides care,
treatment and reha bilitation services for \!hildren in conflict
with the law. Rehabilita tion services are provided under the
guidance of a· trained staff where resi ents are cai:ed for u der a
structured therapeutic envi· ronment with the end view
ofremtegrating them into-their families a commu ities as s ially
functioning individuals.. Physical·mo b hty remdents of
said centers may be restricted, pending court
dispos1t10n of the charges against them. . . ..
(u) "Victimless Crimes" refers to offenses where there is no
private offended party. ·
270 UPDATES IN CRIMINAL
LAW
CHAPTER2
PRINCIPLES IN THE ADMINISTRATION OF JUVENILE
JUSTICE AND WELFARE
SEC. 5. Rights of the Child in Conflict with the Law. - Every
child in conflict with the law shall have the following rights, includ
ing but not limited to:
(a) the right not to be subjected to torture or other cruel,
inhuman or degrading treatment or punishment;
(b) the right not to be imposed a sentence of capital punish·
mentor life imprisonment, without the possibility of release;
(c) the right not to be deprived unlawfully or arbitrarily, of
his/her liberty; detention or imprisonment being a disposition
oflast resort, and which shall be for the shortest appropriate period
of time;
(d) the right to be treated with humanity and respect for the
inherent dignity of the person, and in a manner which takes into
account the needs of a person of his/her age. In particular, a child
deprived of liberty shall be separated from adult offenders at all
times. No child shall be detained together with adult offenders. He/
She shall be conveyed separately to or from court. He/She shall
await hearing of his/her own case in separate holding area. A child
in conflict with the law shall have the right to maintain contact with
his/her family through correspondence and visits, save in excep·
tional circumstances;
(e) the right to prompt access to legal and other appropriate
assistance, as well as the right to challenge the legality of the depri
vation of his/her liberty before a court or other competent indepen
dent and impartial authority, and to a prompt decision on such ac
tion;
(f) the right to bail and recognizance, in appropriate cases;
(g) the right to testify as a witness in his/her own behalf
under the rule on examination of a child witness;
(h) the right to have his/her privacy respected fully at all
stages of the proceedings;
(i) the right to diversion if she/he is qualified and voluntar
ily avails of the same;
APPENDIXA 271
REPUBLIC ACT NO.
9344
(j) the right to be imposed a judgment in proportion to the
gravity of the offense where his/her interest the rights of the victim
and the needs of society are all taken into consideration by the
court, under the principle of restorative justice;
(k) the right to have restrictions on his/her personal liberty
limited to the minimum, and where discretior1 is given by law to
the judge to determine whether to impose fine or imprisonment,
the imposition offitte being preferred as the more appropriate
penalty;
(1) in general, the right to automatic suspension of sentence;
(m) the right tu pro·oation as an alternative to imprisonment
if qualified under the Probation Law;
(n) the right to be free from liability for perjury, conc
alment or misrepresentation; and
(o) other rights as provided for under existing laws, rules
and regulations. ·
The State further adopts the provisions of the United Nations
Standard Minimum Rules for the Administration of Juvenile Jus
tice or "Beijing Rules," United Nations Guidelines for the Preven
tion of Juvenile Delinquency or the "Riyadh Guidelines," and the
United Nations Rules for the Protection of Juvenile Deprived of
Liberty.
SEC. 6. Minimum Age of Criminal Resp9nsibility. - A child
fifteen (15) years of age or under at the time of the commission of
the offense shall be exempt from criminal liability. However, the
child shall be subjected to an intervention program pursuant to
Section 20 of the Act.
A child above fifteen (15) years but below eighteen (18) years
of age shall likewise be exempt from criminal liability and be sub·
jected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the
appropriate .0roceedings in accordance with this Act.
The exemption from criminal liability herein established does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws.
SEC. 7. Determination of Age. The child in conflict with the
law shall enjoy the presumption r,f minority. He/She shall enjoy all
the rights of a child in conflict with the law until he/she is proven to
 272 UPDATES IN CRIMINAL
APPENDIXA 27JI
LAW
REPUBLIC ACT NO. 9344

be eighteen (18) years of age or older. The age of a child may be

determined from the child's birth Ct.!rtificate, baptismal certificate or
any other pertinent documents. In the absence of these documents,
age may be based on information from the child himselftherself,
testimonies of other persons, the physical appearance of the child
and other relevant evidence. In case of doubt as to the age of the
child, it shall be resolved in his/her favor.
Any person contesting the age of the child in eonflict with the
law prior to the filing of the information in any appropriate court
may file a case in a summary proceedings for the determination of
age before the Family Court which shall decide the case 'Yvithin
twenty-four (24) hours from receipt of the appropriate pleadings of
all interested parties.
If a case has been filed against the child in conflict with the
law and is pending in the appropriate court, the person shall file a
motion to determine the age of the child in the same court where
the case is pending. Pending hearing on the said motion,
proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers,
prm:ecutors,judges and other government officials concerned shall
exer all efforts at determining the age of the child in conflict with the
law.
TITLE II
STRUCTURES IN THE ADMINISTRATION
OF JUVENILE JUSTICE AND 'WELFARE
SEC. 8. Juvenile Justice and Welfare Council (JJWC). - A
Juvenile Justice and Welfare Council (JJWCJ is hereby created a::id
attached to the Department of Justice and placed under its adminis
trative supervision. The ,JJWC shall be chaired by an undersecretary
of the Department of Social Welfare and Development. It shall en
sure the effective implementation of this Act and coordination among
the following agencies:
(a) Council for the Welfare of Children (CWC);
(b) Department of Education (DepEd);
(c) Department oflnterior and Local Government (DILG);
(d) Public Attorney's Office (PAO);
(e) Bureau of Corrections (BUCOR};
(f) Parole and Probation Administration (PPA);
(g) National Bureau of Investigation (NBI); ,!
(h) Philippine National Police (PNP);
(i) Bureau of Jail Management and Penology (BJMP);
(j) Commission on Human Rights (CHR);
(k) Technical Education and Skills Development Authority
(TESDA);
(1) National Youth Commission (N"'YC); and
(m) Other institutions focused on juvenile justice and inter
vention programs.
The JJWC shall be composed of representatives, whose ranks
shE> 11 not be lower than director, to be designated by the concerned
heads of the follo,ving departments or agencies: ,.,,·
(a) Department of Justice (DOJ);
(b) Department of Social Welfare and Development (DSWD);
(cJ Council for the Welfare of Children (CWC);
(d) Department of Education (DepEd);
(e) Department of-the Interior and Local Government (DILG);
(f) Commission on Human Rights (CHR);
(g) National Youth Commission (NYC); and
(h) Two (2) representatives from NGOs, one to be designated
by the Secretary of justice and the other to be designated by the
Secretary of Social Welfare and Development.
The JJWC shall convene within fifteen (15) days from the ef
fectivity of this Act. The Secretary of Justice and the Secretary of
Social Welfare and Development shall determine the
organizational structure and staffing pattern of the JJWC.
The JJWC shall coordinate with the office of the Court
Admin istrator and the Philippine Judicial Academy to ensure the
realiza tion of its mandate and the proper discharge of its duties
and func tions, as herein provided.
SEC. 9. Duties and Functions of the JJWC. -The JJWC shall
have the following duties and functions:
274 UPDATES IN CRIMINAL LAW
(a) To oversee the implementation of this Act;
(b) To advise the President on all matters and policies relat
ing to juvenile justice and welfare;
(c) To assist the concerned agencies in the review and re
drafting of existing policies/regulations or in the formulation of new
ones in line with the provisions of this Act;
(d) To periodically develop a comprehensive 3 to 5-year na
tional juvenile intervention program with the participation of gov
ernment agencies concerned, NGOs and youth organizations;
(e) To coordinate the implementation of the juvenile inter
vention programs and activities by national government agencies
and other activities which may have an important bearing on the
success of the entire national juvenile intervention program. All
programs relating to juvenile justice and welfare shall be adopted
in consultation with the JJWC;
(f) To formulate and recommend policies and strategies in
consultation with children for the prevention of juvenile delinquency
and the administration of justice, as. well as for the treatment and
rehabilitation of the children in conflict with the law;
(g) To collect relevant information and conduct continuing
research and support evaluations and studies on all matters relat
ing to juvenile and welfare such aA, but not limited to:
(1) the performance and results achieved by juvenile
intervention programs and by activities of the local govern ment
units and other government agencies;
(2) the periodic trends, problems and causes of juvenile
delinquency and crimes; and
(3) the particular needs of children in conflict with the
law in custody.
The data gathered shall be used by the JJWC in the improve
ment of the administration of juvenile justice and welfare system.
The JJWC shall set up a mechanism to ensure that children
are involved in research and policy development.
(h) Through duly designated persons and with the assistance
of the agencies provided in the preceding section, to conduct regular
inspections in detention and rehabilitation facilities and to under-
APPENDIXA 275
REPUBLIC ACT O. 9344
take spot inspections on their own initiative in order to check com
pliance with the standards provided herein and to make the neces
sary recommendations to appropriate agencies;
(i) T(I initiate and coordinate the conduct of trainings for the
personnel of the agencies involved in the administration ofthejuve
nile justice and welfare system and the juvenile intervention pro
gram;
(j) To submit an an>1ual report to the President on the imple-
mentation of this Act; , · ) ri :, ·;
and .· .,: ,..
['
(k) To pe1:;"orm such other functions as may be necessary to
implement. the provisions of this Act. '
SEC. 10. Policies and Procedures on Juvenite Justice and Wel
fare. -Allgovernment agencies enumerated in Section 8 shall, with
the assistance of the JJWC and within one (1) year from the effec
tivity of thiR Act, draft policies and procedures consistent with the
standards set in the law. These policies and procedures shall be
modified accordingly in consultation ·with the JJWC upon the comple
tion of the r,ational juvenile intervention program as provided un-
der Section 9(d). ·
SEC. 11. Child Rights Center (CRC). - The existing Child
Rights Center of the Commission on Human Rights shall ensure
that the status, rights and interests of children are upheld iri accor
dance with the Constitution and international instruments on hu
man rights. The CHR sha11 strengthen the monitoring of govern
ment compliance of all treaty obligations; including the timely and
regular submission of reports before the treaty bodies, as well
as·the implementation and dissemination of recommendations and
conclu sions by government agencies as well as NGOs and civil
society.
TITLE III
PREVENTION OF JUVENILE DELINQUENCY
CHAPTERl
THE ROLE OF THE DIFFERENT SECTORS .
SEC. 12. The Family. The family shall be responsible for the
primary nurturing and rearing of children which is critical in delin
quency prevention. As far as practicable and in accordance with the
276 UPDATES IN CRIMINAL
LAW
procedure of this Act, a child in conflict with the law shall be main
tained in his/her family.
SEC. 13. The Educational System. - Educational institutions
shall work together with families, community organizations and
agen cies in the prevention of juvenile delinquency and in the
rehabilita tion and reintegration of child in conflict with the law.
Schools shall provide adequate necessary and individualized
educational schemes for children manifesting difficult behavior
and children in conflict with the law. In cases where children in
conflict with the law are taken into custody or detained in
rehabilitation centers, they should be provided the opportunity to
continue learning under an alterna tive learning system with basic
literacy program or non-formal edu cation accreditation
equivalency system.
SEC. 14. The Role of the Mass Media. -The mass media
shall play:an active role in the promotion of child rights and
delinquency prevention by relaying consistent messages through a
balanced ap proach. Media practitioners shall therefore, have the
duty to main tain the highest critical and professional standards in
reporting and covering cases of children in conflict with the law.
In all publicity concerning children, the best interest of the child
should be the primordial and paramount concern. Any undue,
misappropriate and sensationalized publicity of any case
involving a child in conflict with the law is hereby declared a
violation of the child's rights.
SEC. 15. Establishment and Strengthening of Local Councils
for the Protection of Children. Local Councils for the Protection of
Children (LCPC) shall be established in all levels of local govern
ment, and where they have already been established, they shall be
strengthened within one (1) year from the effecti'lity of this Act.
Membership in the LCPC shall be chosen from among the respon·
sible members of the community, including a representative from
the youth sector, as well as representative from the youth sector, as
well as representation from government and private agencies con
cerned with the welfare of children.
The local council shall serve as the primary agency to coordi
nate with and assist the LGU concerned for the adoption of a com·
prehension plan on delinquency prevention and to oversee its
proper implementation.
One percent (1%) of the internal revenue nllotment
ofharnngays, municipalities and cities shall be allocated for the
strengthening
APPENDIXA 277
REPUBLIC ACT NO.
9344
and implementation of th.e programs of the LCPC: Provided. That
the disbursement of the fund shall be made by the LOU concerned.
SEC. 16.Appointmen,t of Local Social Welfare and
Development Officer. -All LGUs shall appoint a duly licensed
social worker as its local social welfare and development officer
tasked to assist chil dren in conflict with the law.
SEC. 17. The Sangguniang Kabataan. - The Sangguniang
Kabataan (SK) shall coordinate with the LCPC in the formulation
and implementation of juvenile intervention and diversion
programs in the community.
CBAPTER2
COMPREHENSIVE JUVENILE
INTERVENTION PROGRAM
SEC. 18. Development of a Comprehensive Juvenile Interven
tion Program. - A comprehensive juvenile intervention program
covering at least a 3-year period shall be instituted in LGUs Crom
the barangay to the provincial level. · ,,.·
._ :•. '' (! :l -. l
The LGUs shall set aside an amount necessary to imple ent
their respective juvenile intervention programs to their annual bud-
get. -: · ,:,) - ..
The LGUs in coordination with the LCPC, shall' call··on 1 all
sectors concerned, particularly the child-focused institutions, NGOs,
people's organizations,educational institutions and-government agen
cies involved in delinquency prevention to participate in'the plan
ning process and implementation of juvenile intervention programs.
Such programs shall be implemented consistent with the national
program formulated and designed by the JJWC.
The implementation of the comprehensive juvenile interven tion
program shall be reviewed and assessed annually by.the LGUs in
coordination the LCPC. Results of the assessment shall be sub mitted
by the provincial and city governments to the J,JWC not later than
March 30 of every year.
SEC. 19. Community-based Programs on Juvenile Justice
and Welfare. Community-based programs on juvenile justice and wel
fare shall be instituted by the LGUs through the LCPC, school,
youth organizations and other concerned agencies. The LGUs shall
 278 UPDATES IN CRIMINAL
LAW
provide community-based services which respond to the special
needs, problems, interests and concerns of children and which offer
appro· priate counseling and guidance to them and their families.
These programs shall consist of three levels.
(a) Primary intervention includes general measures to pro-.
mote social justice and equal opportunity, which tackle perceived root
causes of offending;
(h) Secondary intervention includes measures to assist chil
dren at risk; and·
(c) Tertiary intervention includes measures to avoid unnec
essary contact with the formal j.1stice system and other measures to
prevent re-offending.
TITLE IV
TREATMENT OF CHILDREN BELOW THE AGE OF
CRIMINAL RESPONSIBILITY
SEC. 20. Children Below the Age of Criminal Responsibility.
If it has been determined that the children taken int.a custody is
fifteen (15) years old or below, the authority which will have an
initial contact with the child has the duty to immediately release
the child to the custody of his/her parents or guardian, or in the
absence thereof, the child's nearest relative. Said authority shall
give notice to the local social welfare and development officer
who will determine the appropriate programs in consultation ,vith
the child and to the person having custody over the chil<l. If the
parents, guardians or nearest relatives cannot he located, or if they
refuse to take custody, the child may be released to any of the
follov,ring: a duly registered non-governmental or religious
organization; a barangay official or a member of the Barangay
Council for the Pro· tection of Children (BCPC); a local social
welfare and development officer; or, when and where appropriate,
the DSWD. If the child referred to herein has been found by the
Local Social Welfare and Development Office to be abandoned,
neglected or abused by his parents, or in the event that the parents
will not comply with the prevention program, the proper petition
for involuntary commit· ment.shall be filed by the DSWD or the
Local Social Welfare and Development Office pursuant to the
Presidential Decree No. 603,
·otherwise known as "The Child and Youth Welfare Code.''
APPENDIX A 279
REPUBLIC ACT NO.
9344
TITLEV
JUVENILE JUSTICE AND \VELFARE SYSTEM
CHAPTER 1
INITIAL CONTACT WITH THE CHILD
SEC. 21. Procedure for Taking the Child into Custody. - From
the moment a child is taken into custody, the law enforcement of•
ficer shall:
(a) Explain to the child in simple language and in a dialect
the he/she c11n understand why he/she is being placed under custody
and the offense that heishc allegedly committed;
(b) Inform the child of the reason for such custody and
advise the child of his/her constitutional rights in a language or
dialect understood by him/her;
(c) Properly identity himself/herself and present proper iden·
tification to the child;
(d) Refrain from using vulgar or profane words and from
sexu ally harassing or abusing, or making sexual advances on the
child in conflict with the law;
(e) Avoid displaying or using any firearm, weapon, handcuffs
or other instruments of force or restraint, unless absolutely neces sary
and only after all other methods of control have been exhausted and
have failed;
(f) Refrain from subjecting the child in conflict ·with the
law to greater restraint than is necessary for his/her apprehension;
(g) Avoid violence or unnecessary force;
(h) Determine the age of the child pursuant to Section 7 of
this Act;
(i) Immediately but not later than eight (8) hours after ap
prehension, tur :. over custody of the child to the Social Welfare and
Development Office or other accredited NGOs, and notify the child's
parents/guardian and Public Attorney's Office of the child appre
hension. The social welfare and development officer shall explain to
the child and the child's parents/guardians the consequences of the
child's act with a view towards counseling and rehabilitation, diver-
280 UPDATES IN CRIMINAL
LAW
sion from the criminal justice system, and reparation, if appropri
ate;
(j) Take the child immediately to the proper medical and
health officer for a thorough physical and mental examination.
The examination results shall he kept confidential unless
otherwise or dered by the Family Court. Whenever the medical
treatment is re quired, steps shall be immediately undertaken to
provide the same;
· · (k) Ensure that should detention of the child in conflict with
the law be necessary, the child shall be secured in quarters
separate from that of the opposite sex and adult offenders;
(1) Record the following in the initial investigation:
(1) Whether handcuffs or other instruments ofrestraint
were used, and if so, the reason for such;
(2) That the parent or guardians of a chii.d, the DSWD,
and the PAO have been duly informed of the apprehension and
the details thereof; and
(3)The exhaustion of measures to determine the age
of a child and the precise details of the physical and
medical
· examination or the failure to submit a child to such examina
tion; and
(m) Ensure that all statements signed by the child during
investigation shall be witnessed by the child's parents or
guardians, social worker, or legal counsel in attendance who shall
affix his/her signature to the said statement.
A child in conflict with the law shall only be searched by a law
enforcement officer of the same gender and shall not be locked up in
a detention cell.
SEC. 22. Duties During Initial ln.vestigation. ·- The law en
forcement officer shall, in his/her investigation, determine where
the case involving the child in conflict with the law should be re
ferred.
The taking of the statement of the child shall be conducted in
the presence of the following: (1) child's counsel of choice or in the
absence thereof, a lawyer from the Public Attorney's Office; (2) the
child's parents, guardians, or nearest relative, as the case may be;
and (3) the local social welfare and development officer. In the ab·
sence· of the child's parents, guardian, or nearest relative, and the
APPENDIXA 281
REPUBLIC ACT NO.
9344
local social welfare and development officer, the investigation shall
be conducted in the presence of a representative of an NGO, reli gious
group, or member of the BCPC.
After t.he initial investigation, the local social worker conduct
ing the same may do either of the following:
(a) Proceed in accordance with Section 20 if the child. is 'fif.
teen (15) years or below or above fifteen (15) but below eighteen (18)
years old, who acted without discernment; and · ··'
,.,..· .. ,.
{b) If the child is above fifteen (15) years old helow.'eigh
but
teen (18) and who acted with discernment, proceed to diversion.un-
der the following chapter. . .
CHAPTER2
DIVERSION
SEC. 23. System of Diversion. - Children in conflict with the
law shall undergo diversion programs without undergoing court·pro-
ceedings subject to the conditions herein provided: · ··
(a) Where the imposable penalty for the crime committed is
not more than six (6) years imprisonment, the law enforcement of
ficer or Punong Barangay with the assistance of the local social
welfare and development officer or other members of the LCPC
shall conduct mediation, family conferencing and conciliation and,
where appropriate, adopt indigenous mode of conflict resolution in
accor dance with the best interest of the child with a view to
accomplish ing the objective of restorative justice and the
formulation of a di version program. The child and his/her family
shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not
more than six (6) years irr,prisonment, the local social welfare and
development officer shall meet with the child and his/her parents
or guardians for the development of the appropriate diversion and
re habilitation program, in coordination with the BCPC.
(c) Where the ,mposable penalty for the crime committed
exceeds six (6) years imprisonment, diversion measures may be re
sorted to only by the court.
SEC. 24. Stages Where Diversion May be Conducted. - Diver
sion may be conducted at the Katarungang Pambarangay, the police
282 UPDATES IN CRIMINAL
LAW
investigation or the inquest or preliminary investigation stage and
at all levels and phases of the proceedings including judicial level.
SEC 25. Conferencing, Mediation and Conciliation. - A child
in conflict with the law may undergo conferencing, mediation or
conciliation outside the criminal justice system or prior to his entry
into said system. A contract of diversion may be entered into during
such conferencing, mediation or conciliation proceedings.
SEC. 26. Contra.ct of Diversion. - If during the
conferencing, mediation or conciliation, the child voluntarily admits
the commis sion of the act, a diversion program shall be developed
when appro priate and desirable as determined under Section 30.
Such admis sion shall not be used against the child in any subsequent
judicial, quasi-judicial or administrative proceedings. The diversion
program shall be effective and binding if accepted by the parties
concerned. The acceptance shall be in writing and signed by the
parties con cerned and the appropriate authorities. The local social
welfare and development officer shall supervise the implementation
of the diver sion program. The diversion proceedings shall be
completed within forty-five (45) days. The period of prescription of
the offense shall be suspended until the completion of the diversion
proceedings but not to exceed forty.five (45) days.
The child shall present himselfi'herself to the competent au
thorities that imposed the diversion program at least once a month
for reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract
of diversion, as certified by the local social welfare and development
officer, shall give the·offended party the option to institute the ap
propriate legal action.
The period of prescription of the offense shnll be suspended
during the effectivity of the diversion program, hut not exceeding a
period of two (2) years.
SEC. 27. Duty of the Punong Barangay When There is No
Diver sion. - If the offense does not fall under Section 23(a) and (b),
or if the child, his/her parents or guardian does not consent to a
diver sion, the Punong Barangay handling the case shall, within three
(3) days from determination of the absence of jurisdiction over the
case or termination of the diversion proceedings, as the case may be,
forward the records of the case of the child to the law enforcement
officer, prosecutor or the appropriate court, as the case may be. Upon
UPDATES IN CRIMINAL
LAW
APPENDIXA R'?! 283
PUBLIC ACT NO. 9344
the issuance of the corresponding document, certifying to the fact
that no agreement has been reached by the parties, the case shall be
filed according to the regular. process.
SEC. 28. Duty of the Law Enforcement Officer When There is
No Diversion. If the offense does not fall under Section 23(a) and
(b), or if the child, his/her parents or guardian does' not consent.to a
diversion, the Women and Children Protection Desk of the PNP, or
other law enforcement officer handling the case shallt within three
(3) days from determination of the absence·of jurisdictfon··over·the
case or termination of diversion proceedings, forward the records of
the case of the child under custody, to the prosecutor or judge con
cerned for the conduct of inquest and/or preliminary investigation
to determine whet.her or not the child should remain under custody
in
and correspondingly charged coi:u.t. The docum nt transmitting
said records shall display the word "CHILD" in bold letters.
SEC. 29. Factors in Determining Diversion' Program. - In
determining whether diversion is appropria anqdesirable, the
fol- lowing factors shall be taken into consideration:. . .
(a) The nature and circumsta ces of the offense.charged;
(b) The frequency and the severity of the actj
(c) 'fhe circumstances of the child (e.g., age, maturity,
intelli gence, etc.);
(d) The influence of the family nd environment on the growth
of the child;
(e) The reparation of injury to the victim;
(f) The weight of the evidence against the child;
(g) The safety of the community; and
(h) The best interest on the child.
SEC. 30. Formulation of the Diversion Program. - In forrnU··
lating a diversion program, the individual characteristics and the
peculiar circumstances of the child in conflict with the law shall be
used to formulate an individualized treatment. The following fac tors
shall be considered in formulating a diversion program for the child:
(a) The child's feelings of remorse for the offense he/she com
mitted;
APPENDIXA 286
REPUBLIC ACT NO.
9344
 ·· (b) The parents' or legal guardians' ability to guide and
supervise the child; (1) Diversion programs specified under paragraphs (a)
(l) to (aJ(9) herein; and
(c) The victim's view about the propriety of the measures
to (2) Confiscation and forfeiture of the proceeds or instru-
be imposed; and ments of the crime. · .·.
(c) At the level of the appropriate court:
· (d) The availability of comm1mity-based program for the re- : ',.,..,,.,. "
ha 1;ation andreintegration of the child. (1) · Diversion progra::.1s specified under paragraphs (a)
and (b) '!bove; · · .
, · · SEC. 31. Kinds of Diversion Programs. - The diversion pro
gram shall include adequate socio-cultural and psychological re (2) Written or oral reprimand or citation;
sponses and services for the child. At the different stages where
{3) Fine;
diversion may be resorted to, the following diversion programs may
be agreed upon, such as, but not limited to: (4) Payment of the cost of the proceedings; or
(a) At the level of the Punong Barangay: (5) Institutional care and custody.
,,;1;1·!-
(1) Restitution of property;
CHAPTERS.
(2) Reparation of the damage caused;
PROSECUTION
(3) Indemnification for consequential damages;
(4) Written or oral apology; ' ',, f

SEC. 32. Duty of the Prosecutor's Office..- There shall be a

(5) Care, guidance and supervision orders; specially trained prosecutor to conduct inquest. preliminary investi
gation and prosecution of cases involving a child in conflict with the
(6) Counseling for the child in conflict with the law and
the child's family; law. If there is an allegation of torture or ill-treatment of a child in
conflict with the law during arrest or detention, it shall be the duty
(7) Attendance in training, seminars and lectures on: of the prosecutor to investigate the same. ·
(i) anger management skills; SEC. 33. Preliminary Investigation and Filing of Information.
- The prosecutor shall conduct a preliminary investigation in the
(ii) problems solving and/or conflict resolution
following instances: (a) when the child in conflict with the law
skills;
does not qualify for diversion; (b) when the child, his/her parents
(iii) values formation; and or gMrd ian does not agree to diversion as specified in Sections 27
and 28; and (c) when considering the; assessment and
(iv) other skills which will aid the child in dealing recommendation of the social worker, the prosecutor determines
with situations which can lead to repetition of the offense. that diversion is not appropriat. for the child in conflict with the
(8) Participation in available community-based pro law.
grams, including community service; or Upon serving subpoena and the affidavit of complaint, the pros
(9) Participation in education vocation and life skills ecutor shall notify the Public Attorney's Office of such service, as
pro grams. well as the perscnal information, and place of detention of the child
in conflict with the law.
(b) At the level of the law enforcement officer and the pros . ' .
ocutor: Upon determination of probable cause by the prosecutor, the
infom1ation against the child shall be filed before the Family Court
within forty-five (45) days from the stnrt. of the proHminnry
investi• gation.
286 UPDATES IN CRIMINAL
LAW APPENDIXA 287
REPUBLIC ACT NO.
9344
 CHAPTER4
COURT PROCEEDINGS
SEC. 34. Bail. - For purposes of recommending the amount of
bail, the privileged mitigating circumstance of minority shall be
considered.
SEC. 35. Release on Recognizance. - Where a child is
detained, the court shall order:
(a) the release of the minor on recognizance to his/her par
ents and other suitable persons;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth d tention
home/youth rehabilitation center.
The court shall not order the detention of a child in jail pend
ing trial or hearing of his/her case.
, SEC. 36. petention of the Child Pending Trial. -- Children de
tained pending trial may be released on bail or recognizance as
provided for under Sections 34 and 35 under this Act. In all other
cases and whenever possible, detention pending trial may be re
placed by alternative measures, such as close supervision,
intensive care or placement with a family or in an educational
setting or home. Institutionalization or detention of the child
pending trial shall be used only as a measure of last resort and for
the shortest possible period of time.
Whenever detention is necessary, a child always be detained in
youth detention homes established by local government, pursuant
to Section 8 of the Family Courts Act, in the city or municipality
where the child resides.
In the absence of a youth detention ho 1e the child in conflict
with the law may be committed to the care of the DS\.VD or a local
rehabilitation center recognized by the government in the province,
city or municipality within the jurisdiction of the court. The center
or agency concerned shall be responsible for the child's appearance
in,court. whenever required.
SEC. 37. Diversion Measures. - \,\There the maximum penalty
imposed by lnw iR chargnd i11 impri11onmnnt, of not morn thrrn
twolvo
(12) years, regardless of the fine or fine alone regardless of the
288 UPDATES IN CRIMINAL LAW
SEC. 41. Credit in Service of Sentence. - The child in conflict
with the law shall be credited in the services of his/her sentence with
the full time spent in actual commitment and detention under this Act.
amount, and before arraignment of the child in conflict with-the law,
the court shall determine whether or not diversion is appropriate:,
1
. --, .' I '1 ·,
SEC. 38. Automatic.Suspension of Sentence:..'..:..:.Ori. e ch,ild
the.com.mis
who is under eighteen (18) years of age at the time of the
sion of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may· have
resulted from the offense commit ed. However, instead of pronounc
ing the judgment of conviction, the court shall place the child in
·. conflict with the law under suspended sentence, ·without need
of application. Provided, however, that suspension of sentence shall
still be supplied even if the juvenile is already eighteen (18) ofage or
more at the time of the pronouncement of his/her guilt.
Upon suspension of sentence and after considering the
various circumstances of the child, the court, shall impose the
appropriate disposition measur&s as provided in the Supreme
Court Rule on Juvenile in Confiict with the Law.
SEC. 39. Discharge of the Child in ConfUct wit(th · L;aw. -
Upon the reco·,nmendation of the social worker .who has cus y
of the child thP court shall dismiss the case against the child
whose sentence'has·been suspended and against whom
disposition. mea sures have been issued, and shall order the final
discharge of the child if it finds the.t th,,; objective of the
disposition measures have been fulfilled. ·
The discharge of the child in conflict .with the law shall not
affect the civil liability resulting from the commission of the offense,
which shall be enforced in accordance with law.
SEC. 40. Return of the Child in Confiict with the Law to Court.
- If the court finds that the objective of the disposition measures
imposed upon the cr,ild in conflict with the law have not been ful
. filled, or if the child in conflict with the law has willfully failed to
comply with the conditions of his/her disposition or rehabilitation
program, the child in conflict with the law shall be brought before
the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall deter
mine whether to discharge the child in accordance with this Act, to
order exe<'ution of sentence, or to extend the suspended sentence for
n certain ripecified period or until the child reaches the maximum
age of twenty-one (21) years.
APPENDIXA 289
REPUBLIC ACT NO. 9344
TITLE VI
REHABILITATION AND REINTEGRATION
 SEC. 42. Probation as an Alternative to Imprisonment. -The
court may, after it shall have convicted and sentenced a child in
conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4 of
Presidential Decree No. 968, otherwise known as the "Probation
Law of 1976," is hereby amended accordingly.
CHAPTER5
CONFIDENTIALITY OF RECORDS
AND PROCEEDINGS
SEC. 43. Confidentiality of Records and Proceedings. - All
records and proceedings involving children in conflict with the law
from initial contact until final disposition of the case shall be
consid ered privileged and confidential. The public shall be
excluded dur ing the proceedings and the records shall not be
disclosed directly or indirectly to anyone by any of the parties or
the participants in the proceedings for any purpose whatsoever,
except to determine if the child in conflict with the law may have
his/her senteuce suspended or if he/she may be granted probation
under the Probation Law, or to enforce the civil liability imposed
in the criminal action.
The component authorities shall undertake all measures to
protect this confidentiality of proceedings, including non-disclosure
of records to the media, maintaining a separate police blotter for
cases involving children in conflict with the law anr1 adopting a
system of coding to conceal material information which will lead t.o
the child's identity. Records of a child in conflict with the law shall not
be used in subsequent proceeding for cases involving the same
offender as an adult, except when beneficial for the offender and
upon his/her written consent.
A person who has been in conflict with the law as a child
shall not be held under any provision of law, 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 thereto in
response
t.o any inquiry made to him/her for any purpose.
290 UPDATES IN CRIMINAL LAW
SEC. 50. Care and Maintenance of the Child in Confiict with the
Law. - The expenses for the care and maintenance of a child in
conflict with the law under institutional care shall be borne by his/
her parents or those persons liable to support him/her: Provided,
That in case his/her parents or those persons liable to support him/
her cannot pay all or part of said expenses, the municipality where
the offense was committed shall pay one-third (1/3) of said expenses
SEC. 44. Objective of Rehabilitation and Reintegration:. -
e objective of rehabilitation and reintegration of children
foconflict with the law is to provide them with interventions,
app;oachea ad
strategies that will enable them to improve their social funcfo:ming
with the end goal of reintegration to their families and as produc- tive
members of their communities.
,,, f
· · :
:ui) ";
SEC. 45. Criurt Order Required. - No child shall be received
in any rehabilitation or training facility \vithout a valid order,
issued by the court after a hearing for the purpose. The details of
this order shall be immediately entered in a register exclusively for
children in conflict with the law. No child shall be admitted in any
facility where there is no such register.
SEC. 46. Separate Facilities from Adults. - In all reh.ahiiita tion
or training facilities, it shall be mandatory that children shall be
separat.1:;d from adults unless they are members of the same fam ily.
Under no other circumstance shall a child in conflict with the law be
placed in the same confinement as adults. ···
The rehabilitation, training or confinement area of children in
conflict with the law shall provide a home environment where chil
dren !n conflict with the law can be provided with quality counseling
and treatment.
SEC. 47. Female Children. - Female children in conflict with
the law placed in an institution shall be given special attention as to
their personal needs and problems: They shall be handled by female
docton-, correction officers and social worke, s, and shall be accom
modated separ. tely from male children in conflict with the law.
SEC. 48. Gender-Sensitivity Training. - No personnel of reha
bilitation and training facilities shall handle children in con flict
with the law without. having undergone gender sensitivity train
ing.
SEC. 49. Establishment o{Youth Detention Hom.es. -The
LGUs shall set aside an amount to build youth detention homes as
man dated by the Family Courts Act. Youth detention homes may
also be established by private and NGOs licensed and accredited,
by the DSWD, in consultation with the JJWC.
APPENDIXA 291
REPUBLIC ACT NO. 9344
ian. the child in conflict with the law shall participate in commu
nity-based programs, which shall include, but not limited to,:
(1) Competency and life skills development;.
I·
(2) Socio-cultural aud recreational activities;
'
(3) Community volunteer proje cts;
or part thereof; the province to which the municipality belongs (4) Leadership training; , '.: ,r, r ·• f (, ·
shall pay one-third (1/3) and the remaining one-third (1/3) shall be
borne by the national government. Chartered cities shall pay two- (5) .Social services; r,1 ·1

thirds (2/3) of said expenses; and in case a chartered city cannot (6) Homelife services;
pay said expenses, part of the internal revenue allotments
applicable to the unpaid portion shall be withheld and applied to (7) Health services;
the settlement of (8) Spiritual enrichment; .and .
said obligations: Provided, further, That in the event that the child 1! ,I

in conflict with the law is not a resident of the municipality/city
where the offense was committed, the court, upon its determination
may require the city/municipality where the child in conflict with
the law resides to shoulder the cost.
All city and provincial governments must exert effort for the
immediate establishment of local detention homes for children in
conflict with the law.
SEC. 51. Confinement of Convicted Children in Agricultural
Camps and other Training Facilities. A child in conflict with the law
may after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution,
in an agricultural camp and other training facilities that may be
established, maintained, supervised and controlled by the BCCOR, in
coordination with the DSWD.
SEC. 52. Rehabilitation of Children in Confiict with the Law.
- Children in conflict with the law, whose sentences are suspended
may, upon order of the court, undergo any or a combination of
dispo sition measures best suited to the rehabilitation and welfare
of the child as provided in the Supreme Court Rule on Juvenile in
Conflict with the Law.
If the community-based rehabilitation is availed of by a child
in conflict with the law, he/she shall be released to parents, guard
ians,.relatives or any other responsible person in the community.
Under the supervision and guidance of the local social welfare and
development officer, and in coordination with his/her parents/guard-
292 UPDATES IN CRIMINAL
LAW
(9) Community and family welfare services.. ; ,, ;;,
In accordance therewith, the family of the child ii;i copflict wit
the law shall endeavorto actively participate in the com'munity:' based
rehabilitation. . ,.· ··, '' ,,'' ;r! i 1 •
Based on the progre,is of the youth in the conimi.iftity; aAinal
report will be forwa:r.ded by the local social welfare and development
officer to the court for final disposition of the case, ii". ru,,,d,
:, ' . , , ' ',. ., ·,, '·'fl1•ff;':,··
If the community-based programs are pr9yided as div rE!ion
measures unde:r:.Chapter II, title V, the programs enumer l:e . qye shall
be made available to the child in conflict with the law.,i,,,>:).
. ,. .. .
, I
SEC. 53. Youth Rehabilitation Center. -The youth rehabilita'{
tion center shall provide 24-hour group care, treatment and, reha:-'
bilitation services under the guidance of a trained staff where resi
dents are cared for under a. structured therapeutic environment
with the end view of reintegrating th in in their families and com
munities as socially functioning individuals. A quarterly report shall
be GubmittPd by the center to the proper court on the progress of the
children in the conflict with the law..Based on the progress of the
youth in the center, a final report will be forwarded to the court for
final disposition of the case. The DSWD shall establish youth reha
bilitation centers in each region of the country.
SEC. 54. Objectives ofCo,,;_munity:Based Prograrri.s. .....:fhe
ob- jective of community-based programs are as follows: · · ··
. . .... . ' ...)- ,
(a) Prevent disruption in the education or means ofHveli hood
of the child in c0nt1ict with the law in case he/she'is studying,
working or attending vocational learning institutions; .,. l .
APPENDJXA 293
REPUBLIC ACT NO.
9344

(b) Prevent separation of the child in conflict with the law
from his/her parents/guardians to maintain the support system fos
tered by their relationship and to create greater awareness of their
mutual and reciprocal responsibilities;
(c) Facilitate the rehabilitation and mainstreaming of the
child in conflict with the law and encourage community support
and involvement; and
(d) Minimize the stigma that attaches to the child in
conflict with the law by preventing jail detention.
SEC. 55. Criteria of Community-Based Prograrr.s. -Every
LGU shall establish community-based programs that will
focus on the rehabilitation and reintegration of the child. All
programs shall meet the criteria to be established by the
JJWC which shall take into account the purpose of the
program, the need for the consent of the child and his/her
 parents or legal guardians, and the participation of the child-
centered agencies whether public or private.
SEC. 56. After-Care Support Services for Children in Conflict
with the Law. - Children in conflict with the law whose cases have
been dismissed by the proper court because of good bel,.avior as per
recommendation of the DSWD social worker and/or any accredited
NGO youth rehabilitation center shall be provided-care services by
the local social welfare and development officer counseling and other
community-based services designed to facilitate social reintegration,
prevent re-offending and make the children productive members of
the community.
TITLE VII
GENERAL PROVISIONS
CHAPTER I
EXEMPTING PROVISIONS
SEC. 57. Status Offenses. - Any conduct not considered an
offense or not penalized if committed by an adult shall not be con
sidered. an offense and shall not be punished if committed by a child.
SEC. 58. Offenses Not Applicable to Children. - Persons below
eighteen (18) years of age shall be exempt from prosecution for the
294 UPDATES IN CRIMINAL
LAW
CHAPTER3
.,
PENAL PROVISION
crime of vagrancy and prostitution under Section 202 of the Revised
Penal Code, of mendicancy under Presidential Decree No. 1563, and
sniffing of rugby under Presidential Decree No. 1619, such prosecu
tion being inconsistent with the United Nations Conven_tion .on the
Rights of the Child: provided, that said persons sh.all un ergo app o-
priate counseling and treatment program. ,, : , . ,;
SEC. 59. Exemption from the Application of Death Penalty.,-'
The provisions of the Revised Penal Code, as amended, Republic Act
No. 9165, otherwise known as the Comprehensive Dangerous Drugs·
Act of 2002, and other special laws notwithstanding,·no death ,pen
alty shall be imposed upon children in conflict with;the law.· r I i, 1 1· ·
I
''.,:t·.,
, ''..
CHAPTER2
PROHIBITED ACTS
SEC 60. Prohibition Against Labeling and Shaming. - In the
conduct of the proceedings beginning form the initial contact with
the child, the competent authorities must refrain from branding or
labeling children as young criminals, juvenile delinquents, prosti
tutes or attaching to them in any manner any other derogatory
names. Li!{ewise, no discriminatory remarks and practices shall
be allowed particularly with respect to the child's class or ethnic
origin.
I
SEC. 61. Other Prohibited Acts. -The following and any other
similar acts shall be considered prejudicial and detrimentji.l to.the
psychological,emotional, social, spiritual, moral and physical health
and well-being of the child in conflict with the law and therefore,
prohibited:
• : I l ·• { I. "t,
(a) Employment of threats of whatever kind and nature;·· ·
(b) Employment l)f abusive, coercive and punitive measures
such as cursing, beating, stripping, and solitary confinement;
(c) Employment of degrading, inhuman and cruel forms of
punishment such as shaving the heads, pouring irritating, corrosive
or harmful sub-:,tances over the body of the child in conflict with the
law, or forcing him/her to walk around the community
wearing signs
which embarrass, humiliate, and degrade his/htir persoriality'and
dignity; and ,,.,;. '''
,d
(d) Compelling the child to perform involuntary servitude
in any and all forms under any and all instances.
APPENDIXA 295
REPUBLIC ACT NO, 9344
SEC. 62. Violation of the Provisions of this Act or Rules
or Regulations in General. Any person who violates any
provision of this Act or any rule or regulation promulgated in
accordance thereof shall, upon conviction for each act or omission,
be punished by a fine of not less than Twenty thousand pesos
(P20,000.0u) but not more than,Fifty thousand pesos (P50,000.00)
or suffer imprisonment of notless than eight (8) years but not more
than ter (10) years, or both such fine and imprisonment at the
discretion of the court, un less a higher penalty as provided for in
the Revised Penal Code or special laws. If the offender is a public
officer or employee, he/she shall, in addition to such fine and/or
imprisonment, be held admin istratively liable and shall suffer the
penalty of perpetual absolute disqualification.
CHAPTER4
APPROPRIATION PROVISION
SEC. 63. Appropriation. -The amount necessary to carry out
the initial implementation of this Act shall be charged to the office
of the President. Thereafter, such sums as may be necessary for the
continued implementation of this Act shall be included in the suc
ceeding General Appropriations Act.
An initial amount of Fifty million pesos (P50,000,000.00) for the
purpose of setting up the JJWC shall be taken from the proceeds of the
Philippine Charity Sweepstakes Office.
TITLE VIII
TRANSITORY PROVISIONS
SEC. 64. Children in Confiict with the Law Fifteen (15) Years
Old and Below. - Upon effectivity of this Act, cases of children
fifteen (15) years old and below at the time of the commission of the
crime shall immediately be dismissed and the child shall be referred
to the appropriate local social welfare development officer. Such of
ficer, upon thorough assessment of the child, shall determine whether
to release the child to the custody of his/her parents, or refer the
child to prevention programs as provided under this Act. Those
with suspended sentences and undergoing rehabilitation at the
youth rehabilitation center shall likewise be released, unless it is
contrary to the best interest of the child.
SEC. 55. Children Detained Pending Trial. - If the child is
detained pending trial, the Family Court shall also determine
whether or not continued detention is necessary and, if not,
determine appro priate alternatives for detention. If detention is
necessary and he/ she is detained with adults, the court shall
immediately order the transfer of the child to a youth detention
home. . r.
SEC. 66. Inventory of "Locked-up" and Detained Children in
Confiict with the Law. - The PNP, the BJMP and the BUCOR are
hereby directed to submit to the JJWC, within ninety (90) days from
the effectivity of this Act, an inventory of all children in conflict with
the law under their custody.
SEC. 67. Children Who Reach the Age of Eighteen (18) Years
Pending Diversion and Court Proceedings. - If a ch ld reaches the
age of eighteen (18) yP,ars pending diversion and court proceedings,
the appropriate diversion authority in consultation with the local social
welfare and development officer or the Family Court in con sultation
with the social Services and counseling Division (SSCD) of the
Supreme Court, as the case may be, shall determine the appro priate
disposition. In case the appropriate court executes the judg ment of
conviction and unless the child in conflict with the law has already
availed of probation under presidential Decree No. 603 or other
similar laws, the child may apply for probation if qualified under the
provisions of tlie Probation law.
SEC. 68. Children Who Have Been Convicted and are
Serving Sentence. Persons who have been convicted and are
serving sen tence at the time of the effectivity of this Act, and who
were below the age of eighteen (18) years at the time of the
commission of the offense for which they were convicted and are
serving sentence, shall likewise benefit from the retroactive
application of this Act. They shall be entitled to appropriate
dispositions provided under this Act and their se::itences shall be
adjusted accordingly. They shall be immediately released if they are
so qualified under this Act or other applicable law.
296 UPDATES IN CRIMINAL LAW
TITLE IX
FINAL PROVISIONS
SEC. 69. Rule Making Power. The JJWC shall issue the
IRRs for the implementation of the provisions of this Act within
ninety
(90) days from the effectivity thereof
SEC. 70. Separability Clause. If, for any reason, any section
or provision of this Act is declared unconstitutional or invalid by the
Supreme Court, the other sections or provisions hereof not affected
by such declaration shall remain in full force and effect.
SEC. 71. Repealing Clause. -All existing laws, orders,
decrees, rules and regulations or parts thereof inconsistent with
the provi sions of this Act are hereby repealed qr modified
accordingly.
SEC. 72. Effectivity. - This Act shall take effect after fifteen
(15) days from its publication in at least two (2) national newspa pers
of general circulation.
Approved: April 28, 2006.
APPENDIX "B"
REPUBLIC ACT NO. 9346
Al ACT PROHIBITI);G THE IMPOSITION OF DEATH PENALTY
IN THE PHILIPPINES.
SECTION l. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand One Hun
dred Seventy-Seven (R.A No. 8177), otherwise known as the Act
Designating Death by Lethal Injection, is hereby repealed. Republic
Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659),
otherwise known as the Death Penalty Law, and all other laws,
executive ord:>.rs and decrees, insofar as they impose the death pen
alty are here°')y repealed or amended accordingly.
SEC. 2. In lieu of the death penalty, the following shall be
imposed:
(a) the penalty of reclusion perpetua, when the law violated
makes use of the nomenclature of the penalties of the Revised
Penal Code; or
(b) the penalty of life imprisonment, when the law violated
does not make use of the nomenclature of the penalties of the Re
vised Penal Code.
SEC. 3. Persons convicted of offenses punished with reclusion
perpetua, or whose sentences will be reduced to reclusion perpetua,
by reason of this Act, shall not be eligible for parole under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as
amended.
SEC. 4. The Board of Pardons and Parole shall cause the publi
cation at lenst once a week for three consecutive wt1eks in a
newspa· per of general circulation of the names of persons convicted
of of fenses punished with reclusion perpetua or life imprisonment by
reason of this Act who are being considered or recommended for
297
298 UPDATES IN CRIMINAL LAW

commutation or pardon: Provided, however,That nothing herein shall

limit the power of the President to grant executive clemency under
Section 19, Article VII of the Constitution.
SEC. 5. This Act shall take effect immediately after its APPENDIX "C"
publica tion in two national newspapers of general circulation.
Approved: June 24, 2006. · REPUBLIC ACT NO. 9372 . 'I,'

AN A.CT TO SECURE THE STATE AND PROTECT OUR PEOPLE

FROM TERRORISM:

SECTION 1. Short Title.-This Act shall henceforth be known

,_: ·,,;
as the "Human Security Act of2007."
SEC. 2."Declaration of Policy. - It is declared a policy of the
State to protect life, liberty, and property from acts of terrorism, to
condemn terrorism as inimical and dangerous to the national secu
rity of the country and to the welfare of the people, and to make
terrorism a crime against the Filipino people, against humanity,
and against the law of nations. In the implementationof the policy
stated above, the State shall uphold the basic rights and
fundamental lib erties of the people as enshrined in the
constitution. The State rec ognizes that the fight against terrorism
requires a comprehensive approach, comprising political,
economic, diplomatic, military, and legal means duly taking into
account the root causes of terrorism without acknowledging these
as justificationa. for terrorist and/or criminal activities. Such
measures shall include conflict manage ment and post-conflict
peace-building, addressing the roots of con flict by building state
capacity and promoting eqv.itable economic development.
Nothing in this Act shall be interpreted as a curtail ment,
restriction or diminution of constitutionally recognized pow ers of
the executive branch of the government. It is to be understood,
however, that the exercise of the constitutionally recognized
powers of the executive department of the government shall not
prejudice respect for human rights which shall be absolute and
protected at all times.
SEC. 3. 'frrrorism. -Any person who commits .an act punish
able under any of the fol1owing provisions of the Revised Penal
Code:
A Article 122 !Piracy in General and Mutiny in the High
Seas or in the Philippine Waters);

299

300 UPDATES IN CRIMINAL LAW

 APPENDIXC
REPUBLIC ACT NO. 9372
B. Article 134 (Rebellion or Insurrection);
C. Article 134-a (Coup d'Etat), including acts committed by
private persons;
D. Article 248 (Murder);
E. Article 267 (Kidnapping and Serious Illegal Detention);
F. Article 324 (Crimes Involving Destruction, or under
(1) Presidential Decree No. 1613 (The Law on Arson);
(2) Republic Act No. 6969 (Toxic Substances and Haz
.ardous and Nuclear Waste Control Act of 1990);
(3) Republic Act No. 5207 (Atomic Energy Regulatory
and Liability Act of 1968);
(4) Republic Act No. 6235 (Anti-Hijacking Law);
(5) Presidential Decree No. 532 (Anti-piracy and Anti
highway Robbery Law of 1974); and
(6) Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession, Manu
facture, Dealing in, Acquisition or Disposition of Firearms,
Am munitions or Explosives), thereby sowing and creating a
condi tion of widespread and extraordinary fear and panic
among the populace, in order to coerce the government to give
in to an un lawful demand shall be guilty of the crime of
terrorism and shall suffer the penalty of forty (40) years of
imprisonrr.ent, without the benefit of parole as provided for
under Act No. 4103, other wise known as the Indeterminate
Sentence Law, as amended.
SEC. 4. Conspiracy to Commit Terrorism. Persons who con-
spire to commit the crime of terrorism shall suffer the penalty of
forty (40) years of imprisonment.
. There is conspiracy when two or more persons come to an agree
ment 'concerning the commission of the crime of terrorism as de
fined in Section 3 hereof and decide to commit the same.
SEC. 5. Accomplice. - Any person who, not being a principal
under Article 17 of the Revised Penal Code or a conspirator as de
fined in Section 4 hereof, cooperates in the execution of either the
crime of terrorism or conspiracy to commit terrorism by previous or
simultaneous acts shall suffer the penalty of from seventeen (17)
years, four (4) months one day to twenty (20) years of imprisonment.
j
l
302 UPDATES IN CRIMINAL LAW
authorized in writing by the Anti-Terrorism Council created in Sec
301
SEC. 6. Accessory. -Any person who, having knowledge. of
the commission of the crime of terrorism or conspiracy' to commit
terror ism, and without having participated therein, either as ptincipal
or accomplice under Articles 17 and 18 of the Revised .Penal .Code,
takes part subsequent to its commission in any of the·following
manner: (a) by profiting himself or assisting the offender to profit by
the effects of the crime; (b) by concealing or destr9ying the body of
the crime, or. the effects, or instruments thereof, in order to prevent
its discovery; (c) by harboring, concealing, or assisting in the escape
of the principal or conspirator of the crime, shall suffer the J)6nalty
often (10) years and one day to twelve (12) years ofimprisonmeµ,t.1
Notwithstanding the above paragraph, the penalties prescribed
for accesso1ies shall not be imposed upon those who 'are such'-with
respect to their spouses, ascendants, descendants, legitimate, natu
ral, and adopted brothers and sisters, or relatives by affinity within
the same degrees, with the single exception of accessories falling
within the pro7isions of subparagraph (a). ,,, , , , : , , , ,:<'.
SEC. 7. Surveillance of Suspects and Interception and
Record ing of Commurfoations. - The provisions of Republic Act
No: 4200 (Anti-wire Tapping Law) to the a
contrary
notwithstanding, police or law enforcement officia and the
members of his team may, upon a written order of the Court of
Appeals, listen to, fotercept and record, with the use of any mode,
form, kind or type of electronic or other surveillance equipment or
intercepting and tracking devices, or with the use of any other
suitable ways and means for that pur pose, any communication,
message, conversation, discussion, or spo ken or written word's
between members of a judicially declared 'and outlawed terrorist
organization, association, or group of persons' or of any person
charged wit!1 or suspected of the crime of terrorism or conspiracy to
commit terrorism. Provided, That surveillance, inter ception and
recording of communications between lawyers and cli ents, doctors
and patients, journalists and their sources arid confi dential business
correspondence shall not be authorizecl..
SEC. 8. Formal Application for Judicial Authorization. - The
written order of the authorizing division of the Court of Appeals to
track down, tap, liften to, intercept, and record communicat;ions,
messages, conversations, discussions, or spoken or written words of
any person s11spected of the crime of terrorism or the crime,ofcon
spiracy to commit terrorism shall only be granted by the authoriz
ing division of the Court of Appeals upon an ex parte written appli
cation of a police or of a law enforcement official who has been duly
APPENDIXC 303
REPUBLIC AC'f NO.
9372

tion 53 of this Act to file such ex parte application, and upon
exami nation under oath or affirmation of the applicant a:id the
witnesses he may produce to establish: (a) that there is probable
cause to believe based on personal knowledge of facts or
circumstances that the said crime of terrorism or conspiracy to
commit terrorism has been committed, or is being committed, or
is about to be committed;
(b) that there is probable cause to believe based on personal
knowl edge of facts or circumstances that evidence, whit:h is
essential to the'conviction of any charged or suspected person for,
or to the solu tion or prevention of, any such crimes, will be
obtained; and (c) that tl,lere is no other effective means readily
available for acquiring such evidence.
' ' · SEC. 9. Classification and Contents of the Order of the
Court.
..:..The written order granted by the authorizing division of the Court
of Appeals as well as its order, if any, to extend or renew the same,
the original application of the applicant, including his application to
extend or renew, if any, and the written authorizations of the Anti·
Terrorism Council shall be deemed and are hereby declared as clas
sified information: Provided, That the person being surveilled or
whose communications, letters, papers, messages, conversations, dis
cussions, spoken or written words and effects have been monitored,
listened to, bugged or recorded by law enforcement authorities has
the right to be informed of the acts done by the law enforcement
authorities in the premises or to challenge, if he or she intends to do
so, the legality of the interference before the Court of Appeals which
issued the written order. The written order of the authorizing divi
sion of the Court of Appeals shall specify the following: (a) the iden·
tity, such as name and address, if known, of the charged or sus·
pected person whose communications, messages, conve:i:sations,
dis cussions, or spoken or written words are to be tracked down,
tapped, listened to, intercepted, and recorded and, in the case of
radio, elec tronic, or telephonic (whether wireless or otherwise)
communica tions, messages, conversations, discussions, or spoken or
written words, the electronic transmission systems or tht> telephone
num bers to be tracked down, tapped, listened to, intercepted, and
re· corded and their locations or if the person suspected of the crime
of terrorism or conspiracy to commit terrorism is not fully known,
such person shall be subject to continuous surveillance provided
there is a reasonable ground to do so; (b) the identity (name,
address, and the police or law enforcement organization) of the
police or of the law enforcement official, including the individual
identity (names,
304 UPDATES IN CRIMINAL
LAW
1 addresses, and the police or law enforcement organization) :of the
mei:n,bers of his team,judicially authorized to track down, tap, listen
· mte cept, nd record the communications, messages; conversa
tions, d1scuss10ns, or spoken or written words; (c) the offense or
offenses committed, or being committed, or sought to be
prevented;
and (d) the length of time within which the authorization shall be'
used or carried out.
SEC. 10. Effective Pen:od of Judicial Authorizatio .:._ .ki.y'
JJ thorization granted by the authorizing division of the Court; of
1
A.pl° peals, pursuant t0; Sec. 9 (d) of this Act, shall only be effective
for th{
l ngth of time specified in the written order of the authorizing divi
s1 n of the Court of Appeals, which shall not exceed·a period· 9f
thirty (30) days from the date of receipt of the written order 6f th '
authorizing division of the Court of Appeals by the.applicant p lice'
or law enforcement official. The authorizing division of the Court'
of Appeals may extend or renew the said authorization for another'
non-extendible period, which shall not exceed thirty (30) days fro .
t e.e piration of the original peri?d: P ovided, That the a thori zii;ig 1
d1vis1on of the Court of Appeals 1s satisfied that such extension or
renewal is in the public interest: and Provided, further, That the
ex' parte plication. for extension or renewal, which must be filed
by. the onginal applicant, has been duly authorized in writing by the
Anti-Terrorism Council. In case of death of the original applicant or
in case he is physically disabled to file the application for extension
or renewal, the one next in rank to the original applicant among the
members of the team named in the original written order of the
uthorizing di:ision of the Court of Appeals shall file the applica
tion for extension or renewal: Provided, That, without prejudice to
the liability of the police or law enforcement personnel under Sec
tion 20 hereof, the applicant police or law enforcement
official·shall have thirty (30) days after the termination of the
period granted by the.Court of App.eats as provided in the
preceding paragraphs within which to file the appropriate case
before the Public Prosecutor's Office for any violation of this Act.
If no case is filed within the thirty (30)-day period, the ·applicant
police or law enforcement offi cial shall immediately notify the
person subject of the surveillance interception and recording of the
termination of the said surveil lance, interception and recording.
The penalty often (10) years and one day to twelve (12) years of
imprisonment shall be imposed upon the applicant. police or law
enforcement official who fails to notify
the person st1bject of the surveillance, monitoring, interception and
recording as specified above.
APPENDIXC 305
REPUBLIC ACT NO.
9372
 SEC. 11. Custody of Intercepted and Recorded
Communications.
-All tapes, discs,-and recordings made pursuant to the authoriza
tion of the authorizing division of the Court of Appeals, including
all excerpts and summaries thereof as well as all written notes or
memo randa made in connection therewith, shall, within forty-
eight (48) hours after the expiration of the period fixed in the
wntten order of the authorizing division of the Court of Appeals
or within forty eight (48) hours after the expiration of any
extemiion or renewal granted by the authorizing division of the
Court of Appeals, be de posited with the authorizing Division of
the Court of Appeals in a sealed envelope or sealed package, as
the case may be, and shall be accompanied by a joint affidavit of
the applicant police or law en forcement official and the members
of his team. In case of death of the' applicant or in case he is
physically disabled. to execute the required affidavit, the one next
in rank to the applicant among the members of the team named in
the written order of the authorizing division of the Court of
Appeals shall execute with the members of the team that required
affidavit. It shall be unlawful for any person, police officer or any
custodian of the tapes, discs and recording, and their excerpts and
summaries, written notes or memoranda to copy in whatever
form, to remove, delete, expunge, inc,nerate, shred or destroy in
any manner the items enumerated above in whole or in part under
any pretext whatsoever. Any person who removes, de letes,
expunges incinerates, shreds or destroys the items enumer ated
above shall suffer a penalty of not less than six (6) years and one
day to twelve (12) years of imprisonment.
SEC. 12. Contents of Joint Affidavit. - The joint affidavit of
the police or of the law enforcement official and the mdividual
mem·· bers of his team shall state: (a) the number of ' apes, discs,
and· recordings that have been made, as well as the number of
excerpts· and summaries thereof and the number of written notes
and memo randa, if any, made in connection therewith; (b) the
dates and times covered by each of such tapes, discs, and
recordings; (c) the number of tapes, discs, and recordings, as well
as the number of excerpts and summaries thereof and the number
of written notes and memo· randa made in connection therewith
that have been included in the deposit; and (d) the date of the
original written authorization granted by the Anti-Terrorism
Council to the applicant to file the ex parte application to conduct
the tracking down, tapping, intercepting, and recording, as well as
the date of any extension or renewal of the original written
authority granted by the authorizing division of the Court of
Appeals. The joint affidavit shall also certify under oath
306 UPDATES IN CRIMINAL
LAW
contents; (c) for replaying, divulging, and or reading any of the
that no duplicates or copies of the whole or any part of any of such
tapes, discs, and recordings, and that no duplicates or copies of the
whole or any part ofany of such excerpts, summaries, written notes,
and memoranda, have been made, or, if made, that all such dupli
cates and copies are included in the sealed envelope or sealed pack
age, as the case may be, deposited with the authorizing division of
the Court of Appeals. It shall be unlawful for any person, police or
law enforcement official to omit or exclude from the joint affidavit
any item or portion thereof mentioned in this Section. Any. person,
police or law enforcement. officer who violates any of the acts pro
scribed in the preceding paragraph shall suffer the penalty of not
less than ten (10) years and one day to twelve (12) years of impris
onment.
SEC. 13. Di.c;position of Deposited Materials. -The sealed en-·
velope or sealed package and the contents thereof, which are depos
ited with the authorizing division of the Court of Appeals, shall be
deemed and are hereby declared classified information, and the
sealed envelope or sealed package shall not be opened and its
contents (including the tapes, discs, and recordings and all the
excerpts and summaries thereof and the notes and memoranda made
in connec tion therewith) shall not be divulged, revealed, read,
replayed, or used as evidencti unless authorized by written order of
the authoriz ing division of the Court of Appeals, which written order
shall be granted only upon a written application of the Department
of Jus tice filed before the authorizing division of the·Court of
Appeals and only upon a showing that the Department of Justice has
been duly authorized in writing by the Anti-Terrorism Cou'ncil to file
the ap plication with proper written notice the person whose
conversation, communication, message discussion or spoken or
written words have been the subject of surveillance, monitoring,
recording and intercep tion to open, reveal, divulge, and use the
contents of the· sealed envelope or sealed package as evidence. Any
person, law enforce ment official or judicial authority who violates
his duty to notify in writing the persons subject of the surveillance
as defined above shall suffer the penalty of six (6) years and one day
to eight (8) years of imprisonment.
SEC. 14.Applicationto Open Deposited Sealed Enuelop or
Sealed Package. - The written application with notice to the party
con cerned to open the deposited sealed envelope or sealed
package shall clearly state the purpose or reason: (a) for opening
the sealed enve lope or sealed· package; (b) for revealing or
o.isclosing its classified
APPENDIXC 307
"lEPUBLIC ACT NO. 9372
lis tened to, intercepted, and recorded communications,
messages, con versations, discussions, or spoken or written words
(including any of the excerpts and summaries thereof and any of
the notes or memo· randa made in connection therewith); and (d)
for using any of said listened to, intercepted, and recorded
communica, ions, messages, conversations, discussions, or spoken
or written words (including any of the excerpts and summaries
thereof and any of the notes or memoranda made in connection
therewith) as evidence. Any person, law enforcement official or
judicial authority who violates his duty to notify as defined above
shall suffer the penalty of six (6) years and one day to eight (8)
years of imprisonment.
SEC. 15. Euidentiary Value of Deposited Materials. Any lis-
tened to, intercepted, and recorded communications, messages,
con versations, discussions, or spoken or written words, or any
part or parts thereof, or any information or fact contained therein,
includ ing their existence, content, substance, purport, effect, or
meaning, which have been secured in violation of the pertinent
provisions of this Act, shall absolutely not be admissible and
usable·as evidence against anybody in any judicial, quasi-judicial,
legislative, or admin istrative investigation, inquiry, proceeding,
or hearing.
SEC. 16. Penalty for Unauthorized or malicious
Interceptions and/or Recordings. Any police or law enforcement
personnel who, not being authorized to do so by the authorizing
division of the Court of Appeals, tracks down, taps, listens to,
intercepts, and records in whatever manner or form any
communication, message, conver sation, discussion, or spoken or
written word of a person charged with or suspected of the crime of
terrorism or the crime of con spiracy to commit terrorism shall be
guilty of an offense and shall suffer the penalty often (10) years
and one day to t,1elve (12) years of imprisonment. In addition to
the liability attaching to the of fender for the commission of any
other offense, the penalty of ten.
(10) years and one day to twelve (12) years of imprisonment and
the accessory penalty of perpetual absolute disqualification from
public office shall be imposed upon any police or law
enforcement person nel who maliciously obtained an authority
from the Court of Ap peals to track down, tap, listen to, intercept,
and record in whatever manner or form any communication,
message, conversation, discus s1on;'or ·spoken or written words
of a person charged with or sus pected of the crime of terrorism or
conspiracy to commit terrorism: Provided, That notwithstanding
Section 13 of this Act, the party
aggrieved by such authorization shall be allowed access to the
sealed envelope or sealed package and the contents thereof as
evidence for the prosecution of any police or law enforcement
personnel who maliciously procured said authorization.
SEC. 17. Proscription of Terrorist Organizations,
Associdtion, or Group of Persons. - Any organization, association,
or group of persons organized for the purpose of engaging in
terrorism, or which, although not organized for that purpose,
actually uses the acts to
terrorize mentioned in this Act or to sow and create a condition of
widespread and extraordinary fear and panic among the populace
in order to coerce the government to give in to an unlawful
demand shall, upon application of the Department of Justice
before a compe tent Regional Trial Court, with due notice and
opportunity to be heard given to the organ;zation, association, or
group of persons concerned, be declared as a terrorist and
outlawed organization, association, or group of persons by the
said Regional Trial Court:·
SEC. 18. Period of Detention Without Judicial Warrant of Ar
rest. - The provisions of Article 125 of the Revised Penal Code to
the contrary notwithstanding, any police or law enforcement. per
sonnel, who, having been duly authorized in writing, by the Anti
Terrorism Council h'.ls taken custody of a person charged with or
suspected of the crime of terrorism or the crime of conspiracy to
commit terrorism sha!l, without incurring any criminal liability for
delay in thP. delivery of detained persons to the proper judicial au
thorities, deliver said charged or suspected person to the. prriper
judicial authority within a period of three (8) days.counted from the
moment the said charged or suspected person has been''apprehended
or arrested, detained, and taken into custody by the said police,' or
law enforcE;ment personntll: Prouided, That the arrest of those
sus
pected of the crime of terrorism or conspiracy to commit terrorlsih
must result from the surveillance under Section 7 and
examfnatfon of bank deposits under Section 27 of this Act. The
police or '1a'w enforcement per.;,onnel concerned shall, before
detaining the·person suspected of the crime of terrorism, present
him or her before any judge at the latter's rGsidence or oft1ce
nearest the place where the arrest took !)lace at any time of the
day or night. It shall be the duty of the judge, among other things,
to ascertain the identity of the police or law enforcement
personnel and the person or persons they have arrested and
presented before him or her, to inquire ofthem the reasons why
they have arrested the person and determine·by questioning and
personal observation whether or not the suspect
 308 UPDATES IN CRIMINAL APPENDIXC 309
LAW REPUBUC ACT NO. 9372

has been subjected to any physical, moral or psychological torture

by whom and why. The judge shall then submit a written report of
what he/she had observed when the subject was brought before
J
him to the proper court that hasjurisdiction over the case of the
person thus arrested. the judge shall forthwith submit his/her
report within three (8) calendar days from the time the suspect was
brought to his/her residence or office. Immediately after taking
custody of a person charged with or suspected of the crime of
tP.rrorism or con
_spiracy to commit terrorism, the police or law enforcement
person nel hall notify in writing the judge of the court nearest the
place of apprehension or arrest: Provided, That where the arrest is
made during Saturdays, Sundays, holidays or after office hours,
the writ ten otice shall be served at the residence of the judge
nearest the place where the accused was arrested. The penalty
often (10) years ajid_one day to twelve (12) years of imprisonment
shall be imposed upon the police or law enforcement personnel

I
who fails to notify any judge as provided in the preceding
paragraph.
SEC. 19. Period of Detention in the Euent of an Actual or
Immi Mnt Terrorist Attack. - In the event of an actual or imminent
ter rorist attack, suspects may not be detained for more than three
(3)
·days without the written approval of a municipal, city, provincial or
regional official of a Human Rights Commission or judge of the I
I
municipal, regional trial court, the Sandiganbayan or a justice of
the Court of Appeals nearest the place of the arrest. If the arrest is
made during Saturdays, Sundays, holidays or after office hours, the
arresting police or law enforcement personnel shall bring the person
thus arrested to the residence of any of the officials mentioned above
that is nearest the place where the accused was arrested. The ap
proval in writing of any of the said officials shall be secured by the
police or law enforcement personnel concerned within five (5) days
after the date of the detention of the persons concerned: Provided,
however, That within three (3) days after the detention the suspects,
whose connection with the terror attack or threat ic; not established,
shall he released immediately.
SEC. 20. Penalty for Failure to Deliver Suspect to the Proper
Judicial Authority Within Three (8) Days. The penalty often (10)
years and one day to twelve (12) years of imprisonment shall be
imposed upon any police or law enforcement personnel who has
apprehended or arrested, detained and taken cu3tody of a person
charged with or suspected of the crime of terrorism or conspiracy to
commit terrorism and fails to deliver such charged or suspected
person to the proper judicial authority within the period of three (8) days.
SEC. 21. Rights of a Person Under Custodial Detention: .'111 . moment a
person charged with or suspected of the criµie of oi' ism or the crime of
conspiracy to commit terrorism is apprehezj.ded or Q.rl'ested and detained, he
shall forthwi be informed, :t,y arresting police or law enforcement officers or by
the PQlice 'or law, enforcement officers to whose custody the person.concerned
is· brought, of his or her right: (a) to be informed of the·nature and. cause of his
arrest, to remain silent and to have competent and independent counsel preferably
of his choice. If the person cannot
afford the services of c•,unsel of his or her choice, the ,police or l -yv
enforcement officers concemE.d shall immediately contact the free; legal assistance
unit of the Integrated Bar of the Philippines Jm]?) or the Public Attorney's Office
(PAO). It shall be the duty ofthe free
leg assistance unit of the IBP or the PAO thus contacted to imme•
diately visit the person(s) detained and provide him or her with legal assistance.
These rights cannot be waived except in writing and in the presence c,f the
counsel of choice; (b) informed• of the cause or causes of his detention in the
presence of his legal counsel;
(c) allowed to communicate freely with his legal counsel and to con fer with them
at any time without restriction; (d) allowed to commu nicate freely and privately
310 UPDATES IN CRIMINAL
LAW
the crime of terrorism or the crime of conspiracy to commit terror ism
has been placed under custodial arrest and detention shall keep a
securely and orderly maintained official logbook, which is hereby d
ared asapublic document and opened to and made available for the_
inspection and scrutiny of the lawyer or lawyers of the person un er
custody or any member of his or her family or relative by
consanguinity or affinity within the fourth civil degree or his or her
physician at any time of the day or night without any form of re
strict.ion. The logbook shall contain a clear and concise record of: (a)
th :.name, description, and address of the detained person; (b) the
da and exact time of his initial admission for custodial arrest and
detention; (c) the name and address of the physician or physicians
who e;amined him physically and medically; (d) the state· of his
health'and physical condition at the time of his initial admission for
custodial 'detention; (e) the date and time of each removal of the
detained person, from his cell for interrogation or for any purpose; (f)
tne·aate and time of his retum to his cell; (g) the name and address
ofthe physician or physicians who physically and medically exam
ined him after each interrogation;(h) a summary of the physical and
medical findings on the detained person after each ?f such interro
gation; (i) the names and addresses of his family members and near est
relatives, if any and if available; (j) the names and addresses of persons
who visit the detained person; (k) the date aud time of each of such
visits; (1) the date and time of each request of the detained person to
communicate and confer with his legal counsel or coun sels; (m) the
date and time of each visit, and date and time of each departure of his
legal counsel or counsels; and (n) all other impor tant events bearing
without restrictions with the members of his family or with his
nearest relatives and to be visited by them; and (e) allowed freely
to avail of the service of a physician or physi cians of choice.
SEC. 22. Penalty for Violation of the Rights of a DetaiMe;
Any police or law enforcement personnel, or any personnel of the' the
poliee or other law enforcement custodial unit that violates any of
the aforesaid rights of a person charged with or suspected of the
crime of terrorism or the crime of conspiracy to commit terrorism
shall be guilty of an offense and shall suffer the penalty of ten (10)
years and one day to twelve (12) years of imprisonment. Unless the
police or law enforcement personnel who violated the rights of a
detainee or detainees as stated above is duly identified, the same
penalty shall be imposed on the police officer or head or leader of
the law enforcement unit having custody of the detainee at the time
the. violation was done.
SEC. 23. Requirement for an Official Custodial Logbook and
Its Contents. -The police or other law enforcement custodial unit
in whose care and control the person charged with or suspected of
APPENDIXC 311
REPUBLIC ACT NO. 9372
on and all relevant details regarding the treat ment of the detained
person while under custodial arrest and deten tion. The said police
or law enforcement custodial unit shall upon demand of the
aforementioned lawyer or lawyers or members of the family or
relatives within the fourth civil degree of consanguinity or affinity
of the person under custody or his or her physician issue a certified
true copy of the entries of the logbook relative to the con cerned
detained person without delay or restriction or requiring any fees
whatsoever including documentary stamp tax, notarial fees, and
the like. This certified true copy may be attested by the person
who has custody of the logbook or who allowed the party
concerned to scrutinize it at the time the demand for the certifi0d
true copy is made. The police or other law enforcement custodial
unit who fails to con:1.ply with the preceding paragraph to keep an
official logbook shall suffer the penalty often (10) years and one
day to twelve (12) years of imprisonment.
 SEC. 24. No Torture or Coercion in Investigation and Interroga
tion. - No threat, intimidation, or coercion, an.d no act which will
inflict any form of physical pain or torment, or mental, moral, or
psychological pressure, on the detained person, which shall vitiate his
free-will, shall be employed in his investigation and interroga tion for
the c -i.me of terrorism or the crime of conspiracy to commit
terrorism; otherwise, the evidence obtained from said detained per son
resulting from such threat, intimidation, or coercion, or from. such
inflicted physical pain or torment, or mental, moral, or psycho logical
pressure, shall be, in its entirety, absolutely not admissible. and usable
as evidence in any judicial, quasi-judicial, legislative, or administrative
investigation, inquiry, proceeding, or hearing. , .
SEC. 25. Penalty for Threat, Intimidation, Coercion, or Torture
in the Inuest gation and Interrogation of a Detained Person. -Any
person or persons who use threat, intimidation, or coercion, or who
inflict physi al pain or torment, or mental, moral, or psychological
pressure, which shall vitiate the freewill of a charged or suspected
person under investigation and interrogation for the crime of terror
ism or the crime of conspiracy to commit terrorism shall be guilty of
an offense and shall suffer the penalty of twelve (12) years and one
day to twenty (20) years of imprisonment. When death or serious
permanent disability of said detained person occurs as a consequence
of the use of such threat, intimidation, or coercion, or as a conse·
quence of the infliction on him of such physical pain or torment, or as
a consequence of the infliction on him of such mental, moral, or
psychological pressure, the penalty shall be twelve (12) years and one
day to twenty (20) years of imprisonment.
SEC. 26. Restriction on Travel. - In cases where evidence of guilt
is not strong, and the person charged with the crime of terror ism or
conspiracy to commit terrorism is entitled to bail and is granted the
same, the court, upon application by the prosecutor, shall limit the
right of travel of the accused to within the municipal ity or city ,vhere
he resides or where the case is pending, in the interest of national
security and public safety, consistent with Ar ticle III, Ser.tion 6 of the
Constitution. Travel outside of said munici pality or city, without the
authorization of the court, shall be deemed a violation of the terms and
conditions of his bail, which shall then be forfeited as provided under
the Rules of Court. He or she may also be placed under house arrest
by order of the court at his or her usual place of residence. While
under house arrest, he or she may not use telephones, cellphones, e-
mails, computers, the internet or

312 UPDATES IN CRIMINAL
LAW
other means of communications with people outside the residence
until otherwise ordered by the court. The restrictions abovementioned
shall be terminated upon the acquittal of the accused or of the dis
missal of the case filed against him or earlier upon the discretion of
the court on motion of the prosecutor or of the accused.
SEC. ,27. Judicial Authorization Required to Examine Bank
Deposits, Accounts, and Records. - The provisions of Republic
Act No. 1405 as amended, to the contrary notwithstanding, the
justices of the Court of Appeals designated as a special court to
handle anti terrorism cases after satisfying themselves of the
existence of prob able cause in a hearing called for that purpose
that (1) a person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism, (2) of a judicially
declared and outlawed terrorist organization, association, or group
of persons, and (3) of a member of such judicially declared and
outlawed organization, association, or group of persons, may
authorize in writing any police or law enforce ment officer and the
members of his/her team duly authorized in writing by the anti-
terrorism council to: (a) examine, or cause the examination o( the
deposits, placements, trust accounts, assets and records in a bank
or financial institution; and (b) gather or cause the gathering of
any relevant information about such deposits, place ments, trust
accounts, assets, and records from a bank or financial institution.
the bank or financial institution concerned shall not refuse to
allow such examination or to provide the desired informa tion,
when so ordered by and served with the written order of the Court
of Appeals.
SEC. 28. Application to Examine Bank Deposits, Accounts,
and Records. - The written order of the Court of Appeals
authorizing the examination of bank deposits, placements, trust
accounts, as sets, and records: (1) of a person charged with or
suspected of the crime of terrorism or conspiracy to commit
terrorism, (2) of any judicially declared and outlawed terrorist
organization, association, or group of persons, or (3) of any
member of such organization, association, or group of persons in a
bank or financial institution, and the gathering of any relevant
information about the same from said bank or financial institution,
shall only be granted by the au thorizing division of the Court of
Appeals upon an ex parte applica tion to that effect of a police or
of a law enforcement official who has been duly authorized in
writing to file such ex parte application by the Anti-Terrorism
Council created in Section 53 of this Act to file such ex parte
application, and upon examination under oath or affir-
APPENDIXC 318
REPUBLIC ACT NO. 9372
mation of the applicant and the witnesses he may produce to estab lish
the facts that will jm;tify the need and urgency of examining and
freezing the bank deposits, placements, trust accounts, assets, and
records: (1) of the person charged with or suspected of the crime of
terrori:3m or conspiracy to commit terrorism, (2) of a judicially
declared and outlawed terrorist organization, association or group
of persons, or (3) r,f nny member of such organization, association, or
group of pers<",ns. '·
SEC. 29. Classificatior. and Contents of the Court Order Autho
rizing the Examination of Bank Deposits, Accounts, and Records. -
The written order granted by the authorizing division of the Court
of Appeals as well as its order, if any, to extend or renew the same,
the original ex pa.rte application of the applicant, including his ex
parte application to extend or renew, if any, and the written authori
zations of the Anti Terrorism Council, shall be deemed and are hereby
declared as classified information: Provided, That the person whose
bank deposits, placements, trust accounts, assets, and records have.
been examined, frozen, sequestered and seized by law enforcement
authorities bas the right to b<:l informed of the acts done by the law
enforcement authorities in the premises or to challenge, ifhe or she
intends to do so, the legality of the interference. The written order of
the authorizing division of the Court of Appeals designated to handle
cases involving terrorism shall specify: (a) the identity of the said:
(1) person charged with or suspected of the crime of terrorism or
conspiracy to commit terrorism, (2) judicially declared and
outlawed terrorist organization, association, or group of persons,
and (3) mem ber of such j11dicially declared and outlawed
organization, associa tion, or group of persons, as the case may be,
whose deposits, place ments, trust accounts, assets, and records are
to be examined or the information to be gathered; (b) the identity
of the bank or financial institution where such deposits,
placements, trust accounts, assets, and records are held and
maintained; (c) the identity of the persons who will conduct the
said examination and the gathering of the desired infonnation;
and (d) the length of time the authorization
shall be carried out.
SEC. 30. Effective Period of Court Authorization to Examine
and Obtain Information on Bank Deposits, Accounts, and Records.
- The authorization issued or granted by the authorizing division of
the Court of Appeals to examine c.r cause the examination of and to
freeze bank deposits, placements, trust accounts, assets, and
records, or to gather infor:nation about the same, shall be effective
for the
 314 UPDATES IN CRIMINAL
LAW
length of time specified in the written order of the authorizing divi
sion of the Court of Appeals, which shall not exceed a period of
thirty (30) days from the date of receipt of the written order of the
authorizing division of the Court of Appeals by the applicant police
or law enforcement official. The authorizing division of the Court of
Appeals may extend or renew the said authorization for another
period, which shall not exceed thirty (30) days renewable to another
thirty (30) days from the expiration of the original period, provided
that theauthorizing division of the Court of Appeals is satisfied that
such extension or renewal is in the public interest, and provided
further that theapplication for extension or renewal, which must be
filed by the original applicant, has been duly authorized in
writing by the Anti-Terrorism Council. In case of death of the original
appli cant or in case he is physically disabled to file the application for
extension or renewal, the one next in rank to the original applicant
among the members of the team named in the original written order
of the. authorizing division of the Court of Appeals shall file the
application for extension or renewal: Provided, That, without preju
dice to the liability of the police or law enforcement personnel under
Section 19 hereof, the applicant police or law enforn,ment official
shall have thirty (30) days after the termination of the p,ffiod granted
by the Court of Appeals as provided in the preceding paragraphs
within which to file the appropriate case before the Public
Prosecutor's Office for any violation of this Act. If no case is filed
within the thirty (30)-day period, the applicant police or law en.
forcement official shall immediately notify in writi11g the person
subject of the bank examination and freezing of bank depo its, place
ments, trust accounts, assets and records. The penalty of ten (10)
years and one day to twelve (12) years of imprisonment shall be
imposed upon the applicant police or law enforcement official who
fails to notify in writing the person subject of the bank examination
and freezing of bank deposits, placements, trnst accounts, assets
and records. Any person, law enforcement official or judicial author
ity who violates his duty to notify in writing as defined above
shall suffer the penalty of six (6) years and one day to eight (8)
years of imprisonment.
SEC. 31. Custody of Bank Data and Information Obtained af
ter Examination of Deposits, Placements, Trust Accounts, Assets and
Records. -All information, data, excerpts, summaries, notes, memo
randa, working sheets, reports, and other documents obtained from
the examination of the bank deposits, placements, trust accounts,
assets and records of: (1) a person charged with or suspected of
the
APPE1'"DIX C 315
REPUBLIC ACT NO.
9372
crime of terrorism or the crime of conRpiracy to commit terrorism,
(2) a judicially declared and outlawed terrorist organization, a so
ciation, or group of persons, or (3) a member f a y such o_rgamza
tion association or group of persons shall, within forty-eight (48)
'aou;s after the e piration of the period fixed in the written order
of the authorfaing division of the Court of Appeals or within
forty eight (48) hours after the expiration of the extension or
renewal granted by the authorizing division of the Court of
Appeals., be, de posited with the authorizing division of the Court
of Appeals m a sealed enveiope or sealed package, as the case
may be, and shall be accompanied by a joint affidavit of the
applicant police or la\'\" en forcement official and the persons
who actually conducted the ex amination of said bank deposits,
placements, trust accounts, assets and records.
SEC. 32. Contents of Joint Affidavit. -The joint affidavit
shall state: (a) the identifying marks, numbers, or symbols of the
deposits, placements, trust accounts, assets, and r.eco:ds
.exa_mmed; (b) the identity and adclress of the bank or financial
institution where such deposits, placements, trust accounts, assets,
and records· are held and maintained; (c) the number of bank
deposits, placements, trust acccunts, assets, and records
discovered, examined, and frozen; (d} the outstanding balances of
each of such deposits, placements, trust accounts asi!ets· (e) all
information, data, excerpts, summaries, notes, memora da, w
rking sheets, reports, documents, records xami ed and placed in
the sealed envelope or sealed package deposited with the
authorizinr; division of the Court of Appeals; .CD the ate of the
original written authorization granted by the Anti-Terronsm Coun:
cil to the applicant to file the ex parte application to conduct. the
examination of the said bank deposits, placements, trust accounts,
a sets andrecords as wdl as the date of any extension or r newal
of the original writte'n authorization granted by the authorizing
divi sion of thfl Court of Appeals; and (g) that the items
enumerated were all that were found in the bank or financial i
titution exam . ined at the time of the completion of the
examination. The joint affidavit shall also certify under oath that
no duplicates or copies of the information, data, excerpts,
summaries, notes, memorand , wo ing sheets, reports, and
documents acquired from the exanunation of the bank deposits,
placements, trust accounts, assets and ecords have been made or.
if made, that all such duplicates and copies are placed in the se led
envelope or sealed package deposited with·the authorizing
division of the Court of Appeals. It shall be unlawful for any
person, police officer or custodian of the bank data and informa•
316 UPDATES IN CRIMINAL
LAW
tion·obtained after examination of deposits, placements, trust ac
counts, assets and records to copy, to remove, delete, expunge,
incin
?rate, shred _or destroy in any manner the items enumerated above
m hole or, m part under any pretext whatsoever. Any person who
cop1 ,, removes, deletes, expunges incinerates, shreds or destroys
1?e items enumerated above shall suffer a penalty of not less than
six (6) years and one day to twelve (12) years of imprfaonment..
. SEC. 33: Disposition o/Bank Materials. -The sealed
envelope o s ed package and the contents thereof: which are
deposited wi,th the authorizing division of the Court of Appeals,
shall be deemed an4 hereby declared classified information, and
the sealed enve lo:(le.or sealed package shall riot be opened and
its contents shall not be di ged, revealed, read, or used as
evidence unless authorized in a v.:ntten order of the authorizing
division of the Court of Appeals hich written order shall be
granted only upon a written applica t:o:i .of the Department of
Justice filed before the authorizing divi sion of the Court of
Appeals and only upon a showing that the Dep.artmen of Justi
hasbeen duly authorized in writing by the Anti Terronsm
Council to file the application, with notice in writing to the
parl;Y concerned not later than three (3) days before the sched·
uled opening, to open, reveal, divulge, and use the contents of
the sealed envelop or se package as evidence. Any person,
law en• f?r ment. ffic1al or Jud1c1al authority who violates his
duty to no
tify m wnting as de ed above shall suffer the penalty of six (6)
years and one day to eight (8) years of imprisonment.
. ·sEd. 3 .AP_plicat nto Open Deposited Bank Materials.
-The wntten. application, W1th notice in writing to the party
concerned not later than three (3) days of the scheduled
opening, to open the se e . nvelope or sealed package shall
clearly state the purpose
,rei on: ( ) for ope ng t e sealed envelope or sealed package;
(b). foi: reveahng and disclosing its classified contents· and (c)
£ r us ng the classifie.d information, data, excerpts, summ ries,
0
note s, memoranda, working sheets, reports, and documents as
evidence.
. SEC. 3 . Evidentiary Value of Deposited Bank Materials. -
Any mfonnat10n, datB., excerpts, summaries, notes, memoranda,
work sheets, rep rts, or documents acquired from the
examination of the bank deposits, placements, trust accounts,
assets and records of: (1) a persoD: charged or suspected of the
crime of terrorism or the crime of consp1rac to commit
817
APPENDIXO
REPUBLIC ACT NO.
9372
which have been secured in violation of the provisions of this' Act,
shall absolutely not be admissible and usable as evidence ·against
anybody in any judicial, quasi-judicial, legislative, or adminis rative
investigation, inquiry, proceeding, or hearing. · , ,,:,.·. ; ,._,,..
SEC. 36. Penalty for Unauthorized or
Malicious·Exaini1U1tion ofa Bank or a Financial Institution. -Any
person, police1or law enforcemer.t personnel who exam:..oes the
deposits, placement!'!; trust accounts, assets, or records in a bank
or financial institutionrof: (1a) person charged-:with or suspected of
the crime of terrori&nt or,the crime of conspiracy to commit
terrorism, (2) a judicially'. declared and outlawed terrorist
organization, association, or. group, f.pe_r· sons, or (3)a member of
such organization, ass iation,:org:r:oup of persons, witho;ut being
authorized to do.so .by the. Cotµ'ti,of APP s, shall be guilty of an
offense and shall suffer the penaltY:-oFtenJlO) years and one
day.t.o twelve (12) years, ofimprisonmeµ.t :ln a(j.diti9p
to the liability.attaching to the offender for the commission 0£.anY
other offense, .the penalty of ten (10) years: and one day to twelv,e
(12) years of imprisonment shall be imposed upon any police .or
law enforcement personnel, who maliciously obtained an
authority from the Court of Appeals to examine the deposits, .
placements,1 trust accounts, assets, or records in a bank or
financial institutiqn of:p)a person chnrged with or suspected of
the crime of terrorism or.con· spiracy to commit terrorism, (2) a
judicially declared and outlawed
terrorism, (2) a judicially declared and out lawed
terronst organizati n, ssociation, or group of
persons, or (3) a member of such organization,
association, or group of persons,
terrorist organization, association, or group of persons, or (3a) mem· her of
such organization, association, or group of persons: Provided, That
notwithstandir..g Section 33 of this Act, the party aggrieved by such
authorization shall upon motion duly filed be allowed access to the sealed
envelope or sealed package and the contents thereof as evidence for the
prosecution of any police or law enforcement .per sonnel who maliciously
procured said authorization.
SEC. 37 Penalty of Bank Officials and Employees Defyinga Court
Authorization. - An employee, official, or a member ·or the board of dfrectors of
a l:ank or financial institution, who refuses to allow the examination
of the deposits, placements, trust accounts, assets, and records of:
(1) a person charged ,vith or suspected of the crime of terrorism or
the crime of conspiracy to commit terrorism, (2)a judicially
declared and outlawed terrorist organization, asso ciation, or gro\tp
of persons, or (3) a member of such judicially de clared and
outlawed organization, association, or group ofpersons in said
bank or financial institution, when duly served with. the written
order of the authorizing division of the Court of Appeals,

318 UPDATES IN CRIMINAL LAW

APPENDIXC 319
REPUBLIC ACT NO.
9372
proper di s1on of the Court of Appeals to allow the
shall be guilty of an offense and shall suffer the penalty of ten person accused of the cnm of terrorism or of the
(10) years and one day to twelve (12) years of imprisonment. crime of conspiracy to commit terrorism to Withdraw
such sums from sequestered or frozen deposits, place
. ·sE . 38. Penalt! for Fal_se or.Untruthful Statement or Misrep
ments, trust accounts, ass ts and records as may be
resentation of Material Fact in Joint Affidavits. - Any false or
necessary for the regular sustenance of his or her
uri tru state ent or misrepresentation of material fact in the family or to use any of his or her property that has
joint affidavits required respectively in Section 12 and Section been seized, sequestered or frozen for le!litimate
32 of this ct.s!tall constitute a criminal offense and the affiants purposes while his or her case is pending shall suffer
shall suffer the p:nalty of ten (10) years and one day t.o twelve
md1vidu ly he penalty of ten (10) years and one day to twelve (12) years of imprisonment.
(12) years of 1mpnsonment.
. SEC. 40. Nature of Seized, Sequestered and Frozen
. ·. SE : 39. Seizure and Sequestration. - The deposits and Bank De posits, Placement. , Trust Account11, Assets and
their Records. -The seized, sequestered and frozen bank
?utstanding balances, placements, trust accounts, assets, and records deposits, placements, tn1st accounts assets and records
1? an bipik or fin.anc al inst tution, moneys, businesses, transporta belonging to a person suspected of or charged
tion and commurucation eqmpment, supplies and other implements
and p rty of whatever kind and nature belonging: (1) to an;
person·suspec d of or cha ged before a competent Regional Trial
Court for the crime of terrorism or the crime of conspiracy to
commit
terro ; (2) to a judicially declared and outlawed organization,
ssociation, o group of persons; or (3) to a member of such
organiza• tion, associ tion, or group of persons shall be seized,
sequestered, and frozenm ord r o prevent their use, transfer, or
conveyance for purposes that are m1m1cal to the safety and
security of the people or injurious to the interest of the State. The
accused or a person sus pected of may withdraw such sums as
may be reasonably needed by the monthly needs of his family
including the services of his or her counsel and his or her family's
medical needs upon approval of the co?rt. He or she m also use
any of his property that fa under seizure or sequestration or frozen
because of his or her indictment asa terrorist upon permission of
the court for any legitimate reasdn.
rson who urtjustifiably refuses to follow the order of the

with the crime of terrorism or conspiracy to commit terrorism shall be deemed
as property held in trust by the bank or financial institu tion for such person and
the government during the pendency of the inves"tigation of the person suspected
of or during the pendency of the trial of the person charged with any of the said
crimes, as the case may be and their use or disposition while the case is pending
shall be subject to the approval of the court before which the case or cases are
pending.
SEC. 41. Disposition. o.f the Seized, Sequestered and Frozen Bank Deposits,
Placements, Trust Accounts, Assets and Record. - If the person
suspected of or charged with the crime of terrorism or con spiracy to commit
terrorism is found, after his investigation, to be innocent by the investigating
body, or is acquitted, after his arraign ment or his <'ase is dismissed before his
arraignment by a competent court, the seizure, sequestration and freezing of his
bank deposits, placements, trust accounts, assets and records shall.forthwith, be
deemed lifted by the investigating body or by the competent court, as the case
may be, and his bank deposits, placements; tl'.llst ac counts, ass€ ts and records
shall be deemed released from such sei zure, sequestration and freezing, and shall
be restored to him with• out any delay by:the bank or financial institution
concerned without any further action on his part. The filing of any appeal on
320 UPDATES IN CRIMINAL
LAW
ism or conspira y to commit terrorism after such suspected
person has.been found innocent by the investigating body or
after the case ag?1nst such charged person has been dismissed or
after he is ac quitted by a competent court shall suffer the
penalty of ten (10) years and one day to twelve (12) years of
imprisonment.
C. 4 . Penalty for the Loss, Misuse, Diversion or
Dissipation of Seized, Sequestered and Frozen Bank Deposits,
Placements, Trust Accounts, Assets and Records. - Any person
who is responsible for the 1 , misuse, diversion, or dissipation
of the whole or any part of the seized, sequestered and frozen
bank deposits, placements, trust a counts, 8:ssets and re.cords of
a person suspected of or charged with the cnme of terronsm or
conspiracy to commit terrorism shall s er t epenalty of ten (10)
years and one day to twelve (12) years of 1mpnsonment.
_SEC. 44. lnfidelity_in the Custody of Detained Persons. -Any
publ c.officer w o has direct custody of a detained per1mn under the
provisions of this Act and who by his deliberate act misconduct or
inexcusable negligence causes or allows the escape f rsuch detai
ed
person shall be guilty of an offense and shall suffer the penalty
motion-for reconsideration shall not state the release of said funds
from sei zure, sequestration and freezing. If the person charged
·with . the crime of terrorism or conspiracy to commit terrorism is
convicted by a final judgment of a competent trial court, his seized,
sequestered and frozen hank deposits, placements, trust accounts,
assets and records shall be automatically forfeited in favor of the
government. UP')n his or her acquittal or the dismissal of the
charges against him or her, the amount of Five Hundred
Thousand Pesos
{P500,000.00) a day for the period in which his properties, assets
or funds were seized shall be paid to him on the concept of
liquidated damages. The amount shall be taken from the
appropriations of the police or law enforcement agency that caused
the filing of the enu merated charges against him or her.
SEC. 42. Penalty for Unjustified Refusal to Restore or Delay in
Restoring Seized, Sequestered and Frozen Bank Deposits,
Placements, Trust Accounts, A.<u;ets and Records. -Any person
who unjustifiably refuses to restore or delays the restoration of
seized, sequestered and frozen bank deposits, placements, trust
accounts, assets and records of a person suspected of or charged
with the crime of terror-
APPENDIXC 321
REPUBLIC ACT NO.
9372
one day t.o twenty (20) years of imprisonment shall be imposed
upon any person who knowingly furni1:,hes false testimony,
forged docu ment or spurious evidence in any investigation or
hearing under
this Act.
SEC. 48. Cvntinuous Trial. - In cases of terrorism or con
spiracy to commit terrorism, the judge shall set the case for
continu ous trial on a daily basis from Monday to Friday or other
short-term
trial calendar so as to ensure speedy trial.
SEC. 49. Prosecution Under This Act Shall Be a Bar to
Another Prosecution Under the Revised Penal Code or Any Special
Pena.l Laws-. When a person has been prosecuted under a
provision of this Act, upon a valid complaint or information or other
formal charge sufficient it1 form and substance to sustain a
conviction and after the accused had pleaded to the charge, the
acquittal of the accused or the disrr.issal of the caee shall be a bar to
another prosecution for any offense or felony which is necessarily
included in the offense
charged under this Act.
SEC. 50. Damages for Unproven Charge of Terrorism-. Upon
of:
(a) tweJve (12) ye s and one day to twenty (20) yearn of
imprison ment, 1f the detained person has already been
convicted and sen tenced in a final judgment of a competent
court; and (b) six (6) years and one day to twelve (12) years of
imprisonment, if the detained person has not been convicted and
sentenced in a final judgment of a competent court.
SE . 6.lmmunity and Protection of Governmen.: Witnesses. -
'l'.he provisions of Republic Act No. 6981 (Witness Protection,
Secu n_ty and Benefits Act? to the contrary notwithstanding, the
immu mty of government witnesses testifying under this Act shall
be gov erns by Sections 17 and 18 of Rule 119 of the Rules of
Court; Provuled, however, That said witnesses shall be entitled to
benefits granted to witnesses under said Republic Act No. 698:...
. SEC. 46. Penalty far Unauthorized Revelation of Classified Ma
terials. -The penalty of ten (10) years and one day to tweive (12)
years of imprisonment shall be imposed upon any person, police or
law enforcement agent, judicial officer or civil servant who not
be
ing autho zed by the C?urt ?f Appeals to do so, reveal; in
any
manner.er form any classified mfonm1tion under this Act.
SEC. 47..Penalt for Furnishing False Evidence, Forged
Doell·
ment, or Spurious Evidence. -The penalty of twelve (12) years
and
322 UPDATES IN CRIMINAL
LAW
ally included in the appropriations of the said agency for the
com mg year.
SEC. 51. Duty to Record and Report the Name and Address
of the Informant. -The police or law enforcement officers to
whom the name of a suspect in the crime of terrorism was first
revealed shall record the real name and the specific address of the
informant. The police or law enforcement officials concerned shall
report the informant's name and address to their superior officer
who shall transmit the information to the Congressional Oversight
Commit tee or to the proper court within five (5) days after the
suspect was placed under arrest or his properties were sequestered,
seized or frozen. The name and address of the informant shall be
considered confidential and shall not be unnecessarily revealed
until after the proceedings against the suspect shall have been
terminated.
. SEC. 52. Applicability of the Revised Penal Code. The provi-
s10ns of Book I of the Revised Penal Code shall be applicable to this
Act.
acquittal, any person who is accused of terrorism shall be entitled to
the payment of damages in the amount of Five Hundred Thousand
Pesos (P500,000.00) for every day that he or she has been detained
or deprived of liberty or arrested without a warrant asa result of
such an accusation. The amount of damages shall be automatically
charged against the appropriations of the police agency or the Anti·
Terrorism Council that brought or sanctioned the filing of the
charges against the accused. It shall also be released within fifteen
(15) days from the date of the acquittal of the accused. The award of
damages mentioned above shall be without prejudice to the right of
the ac quitted accused to file climinal or administrative charges
against those responsible for charging him with the case of terrorism.
Any officer, employee, personnel, or person who delays the release
or refuses to release the amounts awarded to the individual
acquitted of the crime of<errorism as directed in the paragraph
immediately preceding shall suffer tlrn penalty of six (6) months of
imprisonment. If the deductions are less than the amounts due to the
detained persons, the amount needed to complete the compensation
shall be taken from the current appropriations for intelligence,
emergency, social or other funds of the Office of the President. In the
event that the amount cannot be covered by the current budget of the
police or law enforcement agency concerned, the amount shall be
automati-
APPENDIXC 323
REPUBLIC ACT NO.
9372
SEC. 53. Anti-Terrorism Council. -An Anti-
Terrorism Coun cil, hereinafter referred to, for brevity,
as the-"Council," is hereby created. The members of the
Council are: (1) the Executive Secre tary, who shall be
its chairperson; (2) the Secretary oJ' Justice who s all
be its Vice Chairperson; and (3) the Secretary of Forei
Af. fairs;.(4) the Secretary of National Defense; (5) the
Secretary of the Intenor and Local Government; (6) the
Secretary ofFir.ance; and (7) the National Security
Advisor, as its other members. The Council shall impl
m nt this Act a?-d assume the responsibilityfor the
proper and effective implementat10n of the anti-
terrorism policy of the coun try. The Council shall keep
records of its proceedings a·nd decisions. l records of
the Council shall be subject to such security classifica
tions as the Council may, in its judgment and
discretion, decide to adop.t to safeguard the safety of
the people, the security of the Re pu hc, nd the welfare
of the nation. The National Intelligence Co ordmatmgAgency shall
be the Secretariat of the Council. The Coun cil shall define the
powers, duties, and functions of the National Intelligence
Coordinating Agency as Secretariat of the Council. The
National u_reau of Investigation, the Bureau of Immigration, the
Office of ClVll Defense, the Intelligence Service of the Armed
Forces o the Philippines, the ti-Money Laundering Council, the
Philip pme Center on Transnational Crime, and the Philippine
National Police intelligence and investigative elements shall serve
as support agencies for the Council. The Council shall formulate
and adopt
324 UPDATES IN CRIMINAL
comprehensive, adequate, efficient, and effective antiterrorism
plans, programs, and ·counter-measures to suppress and eradicate
tex:ror ism in the country and to protect the people from acts of
terronsm. Nothing herein shall be interpreted to empower the
Anti-Terrorism Council to exercise any judicial or quasi-judicial
power or ip thority.
SEC. 54. Functions of the Council. - In pursuit of its
mandate in the previcus Section, the Cou.1cil shall have the
following func tions wit.h due regard for the rights of the people
as mandated by the Constitution and pertinent laws: · ' '"'. · ''')
·
•, ·' ,, ., ( . ·:··'' rr·
1. Formulate and adopt plans, programs arid
counter:mea-
sures against terrorists and acts of terrorism in the cohntry; ,.,,' .;.
2. Coordinate all national efforts to suppress and eradicate
acts of terrorism in the country and mobilize the entire nation.
against terrorism proscribed in this Act; ·
· 3. Direct the speedy investigation and prosecution of all per
sons accused or cietained for the crime of terrorism or conspiracy
to commit terrorism and other offenses punishable under this Act,
and monitor the progress of their cases;
4. Establish and maintain comprehensive data-base infor
mation systems on terrorism, terrorist activities, and counter-ter
rorism operations;
5. Freeze the funds property, bank deposits, placements, trust
accounts, assets and records belonging to a person suspected of or
charged with the crime of terrorism or conspiracy.to commit terror
ism,. pursuant to Republic Act No. 9160 otherwise known as the
Anti-Money Laundering Act of 2001, as amended;
6. Grant monetary rewards and other incentives to inform
ers who give vital information leading to the apprehension, arrest,
detention, prosecution, and conviction of person or persons who
are liable for the crime of terrorism or conspiracy to commit
terrorism;
7. Establish and maintain coordination with and the coop
eration anci assistance of other nations in the struggle against
inter national terrorism; and
8.. Request the Supreme Court to designate specific divisions
of the Court of Appeals and regional trial courts in Manila, Cebu
City and Cagayan de Oro City, as the case may be, to handle all
cases involving the crime of terrorism or conspiracy to commit ter
rorism and all matters incident to sajd crimes. The Secretary
:of
LAW
A
 PPENDIXC REPUBLIC ACT NO. 9372
Justice shall assign a team of prosecutors from: (a) Luzon to
handle terrorism cases filed in the regional trial court in Manila;
(b) from the Visayas to handle cases filed in Cebu City; and (c)
from Mindanao to handle cases filed in Cagayan de Oro City.
SEC. 55. Role of the Commission on Human Rights. The
Commission on Human Rights shall give the highest priority to the
investigation and prosecution of violations of civil and political
rights of persons in relation to the implementation of this Act; and
for this purpose, the Commission shall have the concurrent
jurisdiction to pro.secutE; public officials, law enforcers, and other
persons who may have violated the civil and political rights of
persons suspected of,
accused of, or detained for the crime of terrorism or conspiracy to
commit terrorism.
SEC. 56. Creation of a Grievance Committee. -There
ishereby created a Grievance Committee composed of the
Ombudsman, as chair, and the Solicitor General, and an
undersecretary from the Department of Justice (DOJ), as members, to
receive and evaluate complaints against the actuations of the police
and law enforcement officials in the implementation of this Act. The
Committee shall hold office in Manila. The Committee shall have
three (3) subcommittees that will be respectively headed by the
Deputy Ombudsmen in Luzon, the Visayas and Mindanao. The
subcommittees shall respectively hold office at the Offices of
Deputy Ombudsmen. Three (3) Assistant Solicitors General
designated by the Solicitor General, and the re gional prosecutors of
the DOJ assigned to the regions where the Deputy Ombudsmen hold
office shall be members there0f. The three
(3) subcommittees shall assist the Grievance Committee in receiv
ing, investigating and evaluating complaints against thii police and
other law enforcement officers in the implementation of the Act. If
the evidence warrants it, they may file the appropriate cases
against the erring police and law enforcement officers. Unless
seasonably disowned or denounced by the complainants, decisions
or judgments in the said cases shall preclude the filing of other
cases based on the same cause or causes of action aa those that
were filed with the Grievance Committee or its branches.
SEC. 57. Ban on Extraordinary Rendition. No person sus-
pected or convicted of the crime of terrorism shall be subjected to
extraordinary rendition to any country unless his or her testimony
is needed for terrorist related police investigations or jndicial trials
in the said country and unless his or her human righ Ei, including
the right against torture, and right to counsel, are officially assured
326 UPDATES IN CRIMINAL LAW
325
by the requesting country and transmitted accordingly and approved
by the Department of Justice. · ·
SEC. 58. Extra-Territorial Applic tion of this Act'..:._ Suhject),0
the provision of an existing treaty of which the Philippii:;i., .s is. a
signatory and to any contrary provision of any law ,of p1:;fe: ntial
application, the provisions of this Act shall apply: 1) 1 1yd11:tl
persons who commit any of the crimes defined and punished. ,t 1s
Act within the terrestrial domain, interior waters, maritime 8 e,
and airspace of the Philippines; (2) to individual per:sons.who 11a,l
though physically outside the territorial limits of the Philippin _s,
commit, conspire or plot to commit any of the crimes efined ,a!Jd
punished in this Act inside the territorial limits of the. Philippines;
(3) to individual persons who, although physically outside the
terri• torial limits of the Philippines, commit any of the said crimes
on board Philippine ship or Philippine airship; (4) to individual
persons who commit any of said crimes .within any embassy,
consulate, or diplomatic premises belonging to or occupied by the
Philippine gov ernment in an official capacity; (5) to individual
persons who, al though physically outside the territorial limits of
the Philippi:1 s, commit said crimes against Philippine citizens or
persons of Ph1hp pine descent, when their citizenship or ethnicity
was a factor in the commission of the crime; and (6) to individual
persons who, althoug physically outside the territorial limits of the
Philippines, commit said crimes directly against the Philippine
government.
SEC. 59. Joint Oversight Committee. -Tliere ishereby
created a Joint Oversight Committee to oversee the
implementation of this Act. The Oversight Committee shall be
composed of five (5) mem bers each from the Senate and the
House in addition to the Chairs of the Committees of Public
Order of both Houses who shall also Chair the Oversight
Committee in the order specified herein. The membership of
the Committee for every House shall.at least have two (2)
opposition or minority members. The Joint Oversight Com
mittee shall have its own independent counsel. The Chair of the
Committee shall rotate every six (6) months with the Senate
chair ing it for the first six (6) months and the House for the
next six (6) months. In every case, the ranking opposition or
minority member of the Committee shall be the Vice Chair.
Upon the expiration of one year after this Act is approved by
the President, the Committee shall review the Act particularly
the provisions that authorize the surveillance of suspects of or
persons charged with the crime of terrorism. To that end, the
Committee shall summon the police and
 APPENDIXC REPUBLIC ACT NO. 9372
327

law enforcement officers and the members of the Anti-Terrorism sion networks shall be done in the dominant language of the com
Council and require them to answer questions from the members of
munity. After the publication required above shall have been done,
Congress and1;o submit a written report of the acts they have done
the Act shall take effect two (2) months after the elections are held in
.in the implementation of the law including the manner in which
the May 2007. Thereafter, the provisions of this Act shall be auto
.persons. suspected of or charged with the crime of terrorism have matically suspendBd one month before and two months after the
.b en dealt with in their custody and from the date when the move holding of any elE> tion.
ments of the latter were subjected to surveillance and his or her Approved: March 6, 2007.
correspondences, messages, conversations and the like were
listened to or subjected to monitoring, recording and tapping.
Without preju dice to its submitting other reports, the Committee
shall render a semi-annual report to both Houses of Congress. The
report may include where necessary a recommendation to reassess
the effects of globalization on terrorist activities on the people,
provide u sunset
clause to or amend any portion of the Act or to repeal the Act in its
entirety. The courts dealing with anti-terrorism cases shall submit
to Congress and the President a report every six (6) months of the
status of anti-terrorism cases that have been filed with them start
ing from the date this Act is implemented.
SEC. 60. Separability Clause. - If for any reason any part or
provision of this Act is declared unconstitutional or invalid, the
other parts or provisions hereof which are not affected thereby
shall re main and continue to be in full force and effect.
SEC. 61. Repealing Clause. - All laws, decrees, executive or
ders, rules or regulations or parts thereof, inconsistent with the
provisions of this Act are hereby repealed, amended, or modified
accordingly.
SEC. 62. Special Effectiuity Clause. - After the bill shall have
been signed into law by the President, the Act shall be published in
three (3) newspapers of national circulation; three (3) newspapers
of local circulation, one each in Ilocos Norte, Baguio City anrl.
Pampanga; three (3) newspapers of local circulation, one each in
Cebu, Iloilo and Tacloban; and three (3) newspapers oflocal
circulation, one each in Cagayan de Oro, Davao and General
Santos City. The title of the Act and its provisions defining the acts
of terrorism that are pun ished shall be aired everyday at primetime
for seven (7) days, morn ing, noon and night over three (3) national
television and radio net works; three (3) radio and television
networks, one each in Cebu, Tacloban and Iloilo; and in five (5)
radio and television networks, one each· in Lanao del Sur, Cagayan
de Oro, Davao City, Cotabato City and Zamboanga City. The
publication in the nev,spapers of local circulation and the
announcements over local radio and televi-
 INDEX

A.M. No. MTJ04-1557, 248

Abandonment, 119,120
Cases
Abarquez vs. People, 84
Abdulla vs. People, 126
Abueva vs. People, 202
Acufta va. Deputy Ombudsman,
115 Adaza vs. Sanrliganbayan, 110
Ar;bayani vs. Sayo, 198 · .1
Agullo vs. Sandiganbayan,
123 Alonto vs. People, 243,
244, 255 Amployo VF. People,
179 Andrada vs. People, 10,
47, 66 Angcaco vs. People, 31
Arceo vs. People, 260·
Arriola vs. Sandiganbayan, 121
Astorga vs. People, 107, 108,
109
Ayer Productions Pty. Ltd. vs. Capulong vs. Capulong, 196
Baleros vs. People, 10, 142
Balunueco vs. CA, 29
Barrameda vs. Court of Appeals, 162
Barriga vs. Sandiganbayan, 121
Basilio vs. Court of Appeals, 105
Bautista vs. Sandiganbayan, 221
Baxi.nela vs. People, 32
Bayani vf. People, 243
Beltran vs. People, 178
Benito Sy y Ong vs. People and Court of Appeals, 162
Bernardino vs. People, 111
Binay vs. Secretary of Justice, 184, 185
Bolastig vs. Sandiganbayan, 217
Bonifacio vs. People, 162
Brillante vs. Court of Appeals, 102, 185, 187, 192, 193, 194,
195 Buatis vs. People, 185,186,187,193,195

329
330 UPDATES IN CRIMINAL LAW INDEX 331

Bustillo vs. Sandiganbayan,

219
Flores vs. Peop1e, ,• i •·
166
Cabahug vs. People, 222 Fortuna vs. People, 53 · ,,r,-1,.,,
Cabanlig vs. Sandiganbayan, 35 Franci co vs. Court of Appeals, 101; 205 · .,':l""'ff · '·'
Cabarlo vs. People, 120 Francisco vs. People, 234 ",,.: ·
Cabuslay vs. People, 22, 23 r ,· Garcia
Calimutan vs. People, 3 vs. Court of Appeals, 19, 85, 113;259' ,,,,::
Campomanes vs. People, 125
Canal vs. People, 200
Garcia vs. Sandiganbayan, 119, 219 : ,£
Go vs. Office of the Ombusdman, 220 ·1 '.
Cano vs. People, 23 Gonzabdo s. People, 112, 165
Canta vs. People, 50 Guingguing vs. Court of Appeals, 197 ·r
Guinhawa vs. People, 176 ,,,,, ,,
Caras vs. Court of Appeals, 254 Guiyab vs. People, 2 ,· .. , ," if
1
"r
,
Cariaga vs. Court of Appeals, 154 Guzman vs. Court of Appeals, 161 ,:· .,, · ·
Casitas vs. People, 22 Idos vs. Court of Appeals, ,· :
Castrodes vs. Cubelo, 257 Ilogon vs. , ,. ,, 1 •
155 Sandiganbayan, 124
Chan vs. Sandiganbayan, 124 122 Evangelista vs. People, 221 Fernando vs. Court of Appeals,
Chang vs. People, 41, 219 118 Figueroa vs. People, 186
Chua vs. People, 166 l lor1lnll11 1111. lli11111l11lnn11, I Ii>
Chua-Burce vs. Court of Appeals, 162 Flores vs. Lnyosn, i l!J
Cosme vs. People, 162
Cruz vs. Sandiganbayan, 225
Cueme vs. People, 254
Daez vs. Court of Appeals, 190
Danao vs. Court of Appeals, 246
DaV'alos vs. People, 50, 124
De Guzman vs. People, 99
Del Castillo vs. Torrecampo and People, 103
Del Rosario vs. Cedillo, 248
Dela Cruz vs. People, 156
Dico vs. Court of Appeals,
243 Diego vs. Castillo, 118,
183
Diongson vs. Court of Appeals, 172
Domagsang vs. Court of Appeals, 247
Echaus vs. Court of Appeals, 167
Enriquez vs. People, 122
Erquiaga vs. Court of Appeals,
163 Estrada vs. Sandiganbayan,
229 Estrella vs. Sandiganbayan,
 Inting vs. Tanodbayan, 112 ndiganbayan, 50 Ladiana vs.
., \,1, '·' People, 47 Ladonga vs.
Jalandoni vs. Hon. Secretary of People, 17, 20 Lagrosa vs.
Justice, 196· People, 207
,Tao Yu vs. People, 264 Lao vs. Court of Appeals, 247,250,253
•·'\i·,d.1: Lapuz vs. Court of Appeals, 96
Jimenez vs. Reyes, 185 Lee vs. CJurt of Appeals, 247, 256, 264
,.,. · ,. •,;: Jose vis. People, Lee vs. People, 156, 162
36, 164, 165 Li vs. People. 15, 16, 129
Josef vs. People, 257,264 Lim vs. People, 262, 263
K Llave vs. People, 37
i Llorente, Jr. vs. Sanliganbayan, 221
m Loney vs. People, 203
p Lorenzo vs. People, 163
o Lu Chu Sing vs. Lu Tong Gui, 192
Lucas vs. Court of Appeals, 153
v Lumancas vs. Intas, 112, 113
s Macalalag vs. People, 252
. Macasaet vs. People, 199
S Maderazo vs. Pe<'ple, 141
a Mnwln.vnp 1111. Pl'oplf', 2fi:l
M11g111111uo VH. l'rniplc1, I io
INDEX 333
332 UPDATES IN CRIMINAL LAW

People vs. Abuyen, 69

Magno vs. Court of Appeals, 257
People vs. Aca-ac, 13
Magno vs. People, 184, 186 Mamangun
People vs. Acbangin, 137
vs. People, 31
Manahan vs. CA, 23 v t
Manuel vs. People, 3, 181 Marbella- s a
Bobis vs. Bobis, 180 Marcelo vs. . d
Court of Appeals, 208 Mari vs. o
Court of Appeals, 54, 194 P
Marifosque vs. People, 119 e v
Marigomen vs. People, 251 o s
Marzalado vs. People, 140 Meneses p .
vs. Sandiganbayan, 124 Meriz vs. l
People, 242 e S
Meriz vs. People, 254 , a
Monteverde vs. People, 93 n
Morales vs. People, 225 2 d
Morigo vs. People, 181, 183 5 i
Morong Water District vs. Office of the Deputy Ombudsman, 5 g
122 N a
Murao vs. People, 158 , · i n
MVRS Publications, Inc. vs. Islamc Da'wah Council of the z b
Phils., 184 u a
Narte vs. Court of Appeals, 254, 264 Ngo r y

an, 122 Nueva Espana vs. People, 106
Ocampo-Paule vs. Court of Appeals, 172
Ongson vs. People, 245, 246
Ordinario vs. People, 133
Orfanel vs. People of the Philippines, 187
Pablo vs. Castillo, 205
Pablo vs. People, 164
Pacheco vs. Court of Appeals, 170
Pader vs. People, 200
Pangan vs. Gatbalite, 103
Pangoronan and MMTC vs. People, 106
Parunga vs. Sandiganbayan, 126 People
vs. Abatayo, 67
People vs. Ablaneda, 180
People vs. Abubu, 95
People vs. Abunado, 181
People vs. Abungan, 98
884 UPDATES IN CRIMINAL LAW
People vs. Bernardo, 138
People vs. Beruega, 63
People vs. Biso, 61 People
vs. Bitdu, 183 People vs.
Bon, 1
People vs. Brecinio, 48
People , s. Acosta, 107, 177
People vs. Agomo-o, 240
People vs. Agsaoay, 135
People vs. Almazan, 12
People vs. Ambrocio, 64
People vs. Amion, 53
People vs. Am.ores, 13
People va. Ancheta, 58, 76
People vs. Angeles, 2C8
People vs. Annibong, 27
People vs. Antonio, 25, 51, 86
People vs. Aquinde, 77
People vs. Aquino, 115 People
vs. Arizobal, 55, 57 People ··1•,:, I
vs. Amante, 24 People vs. ,. r . • ,: 11
Arondain, 47 People vs.
1
Arrojado, 57 People vs.
Asturias, 208 People vs.
Asuela, 208 People vs.
Ayuman, 127 People vs.
Bagano, 18
People vs. Balag-ey, 211
People vs. Balleras, 68
People vs. Baltazar, 68
People vs. Bangcado, 18, 53
People vs. Barcelon, 63 ('•
People vs. Baroy, 58, 79, 81
People vs. Basite, 47, 49
People vs. Basquez, 131
People vs. Bates, 45 People
vs. Bayotas, 135 People vs.
Bayotas, 97, 98 People vs.
Bejo, 70
People vs. Belaro, 74
People vs. Belbes, 203
People vs. Belga, 62
People vs. Bello, 14
People vs. Beltran, 23, 42, 49,
66
People vs. Bernal, 61, 81
P . Buates,
14 People
e 130 vs.
o PeopleBuluran,
p vs. 72 People
l Buban,vs.
e 130 Bumidang,
People77 People
v vs. vs. Buntag,
s Bulan,15
People vs. Bustinera, 21,154,236,237,238 People INDEX 886
vs. Cabais, 241
People vs. Caballero,10, 12
People vs. Cabarefio, 5 People vs. Corpuz, 241
People vs. Cabical, 47 People vs. Cortez, 82, 108, 137 ·1
People vs. Caguing, 25 People vs. Cortezano, 48 ·,'!
People vs. Cajara, 59 People People vs. Costales, 76
vs. Calago, 70 People vs. People vs. Court of Appeals and Tangan, 24, 27,
Callet, 42 42 People vs. Cuyugan, 168
People vs. Calongui, 56, 82 People \·s. Dacibar, 56
People vs. Calpito, 63 People People vs. Dacillo, 59, 83
vs. Campomanes, 62 People People vs. Dagani, 22, 26, 70 .,I . ...:
vs. Campuhan, 131 People People vs. Dalisay, 131
vs. Candido, 233 People vs. People vs. Damaso, 145
Caratao, 72 People vs. People vs. Daniela, 149
Carino, 146 People vs. People vs. Dawaton, 50, 68
Carmen, 201 People vs. People vs. De Mesa, 53 ·1''i',';
Castillano, 48 People vs. People vs. De Vera, 155
Castro, 138 People vs. People vs. Del Rosario, 142
Catapang, 76 People vs. People vs. Dela Cruz, 7, 24, 47, 48, 69, 154
Catian, 77 People vs. People vs. Dela Torre, 55, 133
Cerbito, 239 People vs. People vs. Delim, 127
Choa, 116 People vs. Cirilo, People vs. Delima, 34
76 People vs. Delmindo, 67
People vs. Coca, 68 People vs. Delos Santos, 1, 96
People vs. Comadre, 16, 59, 94, 233 People vs. Dijan, 30
People vs. Comila, 166 People vs. Dimaano, 89, 132, 135
People vs. Compo, 16, 84 People vs. Dimailig, 61
People vs. Concepcion, 22, 38
People vs. Dimalanta, 168, 172
People vs. Consejero, 147
People vs. Dinamling, 148
People vs. Dinglasan, 167, 170
People vs. Discalsota, 73 People
vs. Domingo, 150 People vs.
Doquefia, 36
People vs. Dreu, 135
People vs. Dueno, 62
People vs. Ifumadag, 71
People vs. Duroham, 51
People vs. Ejandra, 138
People vs. Ellasos, 236
People vs. Emperador, 76
People vs. Enfectana, 22, 23, 24, 36
People vs. Enguito, 44, 78
People vs. Enriquez, 136, 208
People ,s. Escarlos, 24, 25, 72
388 UPDATES IN CRIMINAL LAW INDEX 337

People vs. Escote, 76 People vs. Ladjaalam, 80

People vs. Estrada, 35 People vs. Lagata, 35, 210
People vs. Evina, 51, 88 People v1.<. Lago
People vs. Fabon, 150 People vs. Lampaza, 208
People vs. Fabro, 14 People vs. Lara, 144 ,,, .
People vs. Forca, 18 People vs. Latupan, 89, l14
People vs. Galano, 1 People vs. Legazpi, 148 '
People vs. Gallego, 26 People vs. Librando, 58
People vs. Gano, 152 People vs. Lining, 136, 18C
People vs. Ganohon, 69 People vs. Listerio, 12
People vs. Garalde, 85 People vs. Lizada, 6
People vs. Garcia, 85, 96, 234, 236, 238 People vs. Lobitania, 237,239
People vs. Gardon, 209 People vs. Lobrigas, 63
People vs. Garin, 75 People vs. Lobrigo, 84
People vs. Gasacao, 241 People vs. Locsin, 155 ,!,,

People vs. Geneblazo, 25 People vs. Logan, 166

People vs. Genosa, 28, 46 People vs. Lopez, 44
People vs. Genoza People vs. Loreto, 65
People vs. Gondaway, 134 People vs. Loterono, 68, 75
People vs. Gonzalez, 12, 17, 43, 72, 94, 146 People vs.·Lumintigar, 72
People vs. Guerrero, 24, 60, 79 People vs. Magayac, 53
People vs. Gulion, 166 People vs. Magbanua, 70
People vs. Gutierrez, 71, 134 People vs. Malejana, 44, 74
People vs. Guzman, 65 People vs. Mallari, 128
People vs. Hammer, 66 People vs. Malngan, 177
People vs. Hapa, 15 People vs. Mamerto, 79
People vs. Hernandez, 13,144, 163 People vs. Mandao, 17
People vs. Hijapon, 77 People vs. Manij&s, 16
People vs. Holzer, 170 People vs. Mapalo, 16
People vs. Hormina, 67 People vs. Marcos, 82
People vs. Ignacio, 48 People vs. Mariano, 87
People vs. Ilo, 71 People vs. Marquita, 57, 81
People vs. Jalosjos, 131, 132 People vs. Martinez, 138
People vs. Jamilosa, 241, 242 People vs. Mateo, 93
People vs. Jamon, 63 People vs. Matyaong, 127
People vs. Jorolan, 69 People vs. Maxion, 147
People vs. Jubail, 212 People vs. Mazo, 70
People vs. Juliano, 170 People vs. Melendres, 55
;\
People vs. Kinok, 68 People vs. Mendez, 29, 72
People vs. Lab-eo, 44 ;i People vs. Mendoza, 51
People vs. Labuguen, 63 People vs. Milliam, 146 ., I

People vs. Lacson, 161 1 People vs. Mirador, 74

i
338 UPDATES IN CRIMINAL LAW
People vs. Miranda, 134
People vs. Molas, 64
People vs. Molina, 59
People vs. Mondijar, 60, 68
People vs. Montinola, 49, 54, 150
People vs. Moreno, 151
People vs. Muerong, 68
People vs. Munoz, 128
People vs. Nagrampa, 168,252
People vs. Napalit, 149
People vs. Napud, 180
People vs. Natividad, 68
People vs. Navales, 148
People vs. Nitafan, 255
People vs. Novio, 91
People vs. Nuevo, 51
People vs. Obedo, 88
People vs. Oga, 130, 132
People vs. Ojeda, 170, 172, 250
People vs. Olarte, 100
People vs. Olaybar, 130
People vs. Oliva, 109, 177
People vs. Ong, 214
People vs. Ortiz, 68
People vs. Oscar, 13
People vs. Pablo, 62
People vs. Pacana, 171
People vs. Pacificador, 16, 88, 229
People vs. Pacis, 40
People vs. Pagador, 12
People vs. Palaganas, 11, 27,
52 People vs. Pancho, 10
People vs. Panida, 20
People vs. Paragas, 51
People vs. Parazo, 55
People vs. Parreno, 77
People vs. Pascua, 179
People vs. Pastrana, 138
People vs. Pateo, 23
People vs. Patriarca, 103
People vs. Pavillare, 138
People vs. Pedroso, 149
340 UPDATES IN CRIMINAL
LAW
INDEX 339
People vs. Peralta, 16, 32
People vs. Perreras, 55
People vs. Perez, 178
People vs. Perreras, 56
People vs. Piedad, 68
People vs. Piliin, 66
People vs. Pilola, 5, 84
People vs. Plurad, 132
People vs. Po Giok To, 112
People vs. Puedan, 127
People vs. Pugador, 12
People vs. Puno, 240
People vs. Quening, 66
People ve.. Quesada, 65
People vs. Quimzon, 48, 87
People vs. Quirol, 15
People v&. Rabadan and Olaybar, 13
People vs. Rabanal, 24, 26
People vs. Ragundiaz, 82
People vs. Ramirez, 90
People vs. Ramos, 18, 66,
G8 People vs. Ranis, 146
People vs. Reanzares, 240
People vs. Reforma, 67
People vs. Regala, 152, 153
People vs. Remullo, 156
People vs. Rendaje, 67
People vs. Reyes, 54, 100, 142, 144, 145, 167, 170
People vs. Rios, 56
People vs. Robifios, 35, 91
People vs. Roche, 83
People vs. Rodrigo, 136
People vR. Royeras, 13
People vs. Rubiso, 24
People vs. Saba, 133
People vs. Sades, 73
People vs. Salimbago, 138
People ve. Sarhson, 75
People vs. San Juan, 25
People vs. Sandiganbayan, 215
People vs. Sanidad, 96
People vs. Sansaet, 64
People vs. Santos, People People
140 People vs. vs. vs. Siao,
Sara, 3 People vs. Seguis 77
Sebastian, 60 , 152 People
vs. Silongan, 109,136, 137
People vs. Silva, 58, 68
People vs. Silvela, 186
People vs. Sison, 155
People vs. Soriano,
133 People vs. Sta.
Maria, 41 People vs.
Suela, 51, 144 People
vs. Suriaga, 137 People
vs. Sy, 41
People vs. Taan, 69
People vs. Taboga,
54 People vs. Tadeo,
79 People vs.
Talavera, 69 People
vs. Tampis, 19
People vs. Tan, 31, 208, 235,
237 People vs. Tafio, 56
People vs. Tayaba, 13
People vs. Tayco, 101
People vs. Tejero, 25
People vs. Temanel,
148 People vs.
Templo, 73 People
vs. Tidula, 145
People vs. Ting Lan Uy, 120
People vs. Tira, 210
People vs. Tiu, 209
People vs. Tolentino, 84, 86, 122
People vs. Torpio, 43,
60 People vs. Torres,
147 People vs. Tuvera,
92 People vs. Ubaldo,
27 People vs. Uganap,
60 People vs. Ulep, 33
People vs. Umayam,
67 People vs.
Unlagada, 129 People
vs. Valenzuela, 73
People vs. Valledor, 7,
35 People vs. Vasquez,
83
S
INDEX
a
g
ui
People vs. Velasquez, 97 tg
People vs. Ventura, 62, 66 · ui •. ; i"
People vs. Verceles, 152 t
v
1f ,fl People vs. Vicente, 26, s.
73 People vs. Villamala, P
133 People vs. Villamor, 52, e
53 People vs. Villanueva, 58 o
People vs. Wad-as, 68 pl
People vs. Whisenhunt, e,
128 People vs. Yu, 15 2
People vs. Zacarias, 5
90 People vs. Zeta, 8
47
People vs. Zheng Bai Hui,
212 People vs. Zuela, 148
Perez vs. Court uf Appeals,
8, 9 Perez vs. People, 156
Philippine Rabbit Bus Lines vs. People,
105 Pomoy vs. People, 32
Pondevida vs. Sandiganbayan, 123,
125 Pucay vs. People, 156
Quimpo va. Tanodbayan,
214 Quinao vs. People,
155 Quifion vs. People,
120, 121
Quir..to vs. Andres, 4, 104
Rafael Reyes Trucking Corp. vs. People,
202 Ramos-Andan vs. People, 167
Rebucan vs. People, 153
Recebido vs. People, 100,
111
Recuerdo vs. People, 171, 173, 259
Rendon vs. Court of Appeals, 105
Reodica vs. Court of Appeals, 96
Reyes vs. People, 199,201
Rico vs. People, 243, 246,
248 Rieta vs. People, 88
Rigor vs. People, 257,262
Rimano vs. People, 27
Rivera vs. People, 7, 110, 128
Romera. vs. People,
42, 43 Roque vs.
People, 155 Roviaro
vs. U.S., 212 Ruiz vs.
People, 243, 258
 341
342 UPDATES 1N CRIMINAL LAW
Salazar vs. People, 158, 162, 165
Sanchez vs. People, 25 ,.,; , H·
Santos VB, Sandiganbayan,ru
Sarigumba vs. Sandiganbayan, 120, 122
Senoja vs. People, 26
Serona vs. Court of Appeals, 160
Serrano vs. Court of Appeals, 208
Sia vs. People, 242,247,253
Sidro vs. People, 222
Sim vs. Court of Appeals, 18,
164 Simangan vs. People, 78
Sison vs. David, 115
Socrates vs. Sandiganbayan,
218 Soriano vs. Court of
Appeals, 96
Soriano vs. Intermediate Appellate Court,
193 Soriquez vs. Sandiganbayan, 224
Spiegel vs. Beacon Participations,
222 Sullon vs. People, 68
Suson vs. People, 211
Sycip vs. Court of Appeals, 261
Tabuena vs. Sandiganbayan, 171
Tan vs. People, 264
Tawney vs. Simonson, Whitcomb & Hurley Co., 185
Tetangco vs. Ombudsman, 126
Teves vs. Sandiganbayan, 17, 228
Timbal vs. Court of Appeals, 168
Time, Inc. vs. Reyes, 194
Ting vs. Court of Appeals,
248 Toledo vs. People, 21, 38
Tubbs vs. People and Court of Appeals, 162
Ty vs. People, 30, 40
U.S. vs. Camiloy, 65
U.S. vs. Canete, 189
U.S. vs. Diana, 5
U.S. vs. Garcia, 13
U.S. vs. Gomez, 178
Uriarte vs. People, 220, 221
Vaca vs. Curt of Appeals,
263 Vasquez vs. Court of
Appeals Velasco vs. People,
2, 7, 66 Vergara vs. People,
248
Vicoy vs. People, 207
844 UPDATES IN CRIMINAL LAW
INDE
X
Villacorta vs. Insurance Commission, 237
Villanueva vs. People, 199, 200
Villanueva vs. Secretary of iJustice, 113, 114,
116 Wa-acon vs. People , 123
Wong vs. Court of Appeals
Young vs. Court of Appeals,
257· Yu vs. People, 20
Yulo vs. Paople,
251,253 Abortion
unintentional, 91
Absolute privilege, 116
Abuse of superior strength, 63, 65
attendance of, 63
circumstance of, 63, 64, 65
distinguished from treachery, 64
is absorbed in treachery, 77
Accessories
two classes of, 86
who are exempt from criminal liability, 87
Accessory acts, 86
Accident, 38
meaning of, 38
Accomplice(s), 83, 84
conspirators distinguished from, 85
Acquittal, 101, 130, 243, 250
Act of aggression, 23, 24, 25, 26, 95, 96
Act(s) of execution, 6, 7, 8, 9, 10, 11, 84
Act(s) or omission(s), 2, 3, 96, 97, 104, 163,183,223
Acts of lasciviousness, 178
Actual force or violence, 108, 137
Actual incapacity, 129
Actual physical restraint, 108
Actus non facit reum, nisi mens sit rea, 3,
171 Administrative Circular
No. 12-2000, 262, 263, 264
No. 13-2001, 264
Advantage of superior strength, 63, 64, 65
Affidavit of desistance, 89
Affirmative defense, 22
Afflictive penalties, 93
Aggravating circumstance(s), 50, 51, 52, 54, 55, 56, 57, 58, 61, 62, 63,
67,68, 76, 77, 78, 79,80,81,88,89,90,91, 149,152,208,230,
231,232
 INDEX 845
generic,51,52,54,57,59,75,76,150
must be alleged in the information, 50
special, 51, 52, 79, 88, 233 Band
Aleviosa, 54, 73 meaning ot: 58
Alibi, 22, 109 Batas Pambansa
Aliunde, 116, 185 Blg.22,20,242,247,248,249,250,252,254,255,256,257,259,
Alteration, 112, 113 260,261,262,263,264
Altercation, 71, 72 elements of violation of, 243
Alternative circumstance(s) , 81 essence of, 242
ofrelationship, 82 Sec. 1, 245, 253
Amnesty, 103 Sec. 2, ?47
Analogous circumstances, 152 Sec. 3,258
Animo de lucro, 143, 238 Blg. 195,88
Animo lucrandi, 150, 155, 237 Blg. 337, .226
Animus furandi, 153 Battered woman syndrome
Animus lucrandi, 142, 146, 236 as a defense, 28, 29
Animus possidendi, 210 definition, 29
Animus revertendi, 235 not a justifying circumstance, 27
Annulment, 181 Battery, 29
Anti-carnapping law, 21,237,238 Bigamy, 180, 181, 182, 183
Anti-Graft and Corrupt Practices Act, 214, Bill of Rights, 1
215 Anti-Graft Law, 226,226,227, 228 Bribery, 216
Anti-Rape Act of 1997, 129 Brigandage, 239
Anti-Rape Law of 1997, 134 Buy-bust
Anti-violence Against Women and Their Children Act of 2004, 28 money, 211
Apoderamiento,143, 236, 239 operation, 41,211
Apoderamiento,161 CA-G.R. CR No. 20632, 206
Appellate court, 234 Capital punishment, 93
Appellate court, 99 Carnal knowledge, 8, 9, 13, 130, 131, 132, 179
Arguendo,25,27,257,258 Carnapping, 234
Arresto mayor, 140, 173 defined, 234
Arresto menor, 80, 93,140,201 qualified, 239
Arson, 176, 177 Caveatempto1·,175
Assertion of a falsehood, 113 Certiorari, 212
willful and deliberate, 113, 115 Check(s), 166,167,168,169,170,172,242,243,244,245,246,247,
Attendant circumstance(s), 71 248,249,251,252,253,254,255,256,257,258,259,260,261,
Attenuating circumstance, 49 262
Autopsy bad,242,256
report, 87 bouncing, 30, 170, 242, 250
Avoidance of greater evil, 30 corporate, 247
Avuncular case, 175 dishonored,170, 171,248,251,254,259
Award of interest, 264 ordinary, 264
personal, 247
postdated,40,167,168

..i
4
346 UPDATES IN CRIMINAL LAW
 postdating or issuing, 166, 167 INDEX ,347
replacement, 168, 169
worthless, 242, 258 ; r· '
Chief Executive, 86, 90,103 essence of, 94
City Fiscal's Office, 102 penalty in, 97
Civil action, 98, 104, 116, 193, 197 special, 76, 148, 149, 150, 151, 152 1.
Civil awards, 51 Complex crime, 52, 54, 55, 76, 91, 93, 94, 95, 96, 97, 135,' 145,:148,
Civil case, 149,151'.), 151,180
181 Civil Concealing, 86
Code Concubinage,177,178
Article 160,228 Confederation, 79
Article 1155, 98 Confession of guilt,
Article 1157',.97 49
Article 1169, 264 Confidence,155,163
Article 1389, 174 abuse of, 20, 57, 154, 161
Article 1915, 162 Confidential informant, 211
Civil indemnity, 103 Congress,188,231,233 ·
Civil liability or Civil liabilities, 21, 29, 97, 98, 99, 103, 104, 105, Conjugal partnership, 228
106, Connivance, 122
173,193 Consent, 153, 235
arising from crimes, lack of, 134
103 basis of, 104 Conspiracy,5, 13,15,16,17,18, 19,83,95,151
ex delicto in senso strictiore, implied, 18
97 subsidiary, 105 liability of Ciffenders where there is,
Civil prosecution, 37 18 must be aJl.':lged in the
Civil Service Rules and Regulations, 112 information, 19
Coercion, 131, 141 quantum of proof required in establishing, 16
grave,14 to commit a felony, 14
0 light, Conspirator(1:1) ,
140 distinguished from accomplices, 85
Cognizance,16,17, 198,262 Constitution of 1987
Collateral acts, 176 Article JX-B
Commission of the crime, 11, 12, 13, 14, 15, 16, 17, 18, 29, 35, 36, Sec. 2,214
40, Contemplated crime, 81
42,43,44,45,50,53,54,55,56,57,58,63,65, Contempt, 184, 200
79,81,82,83,84, Contract of sale, 158
85,88,89,90,145,146,151,154 Contracts, 97
principals in the, 82 Conversion, 157, 159, 162
Commission of the offense, 6, 15, 18, 19, 37, 40, 42, 49, 82, 120, estafa through, 156
136, presumption of, 123
198,223 proof of, 122
Common crimes, 109 Convert, 156, 160, 172
Complaint, 50, 101, 199, 229, 251 Conviction, 1, 12, 13, 16, 80, 87, 101, 103, 106, 116, 118, 122, 130,
administrative, 114 132,133,135,144,145,149,150,153,166,170,177,182,190,
criminal, 102 197,204,205,207,209,210,241,243,244,245,249,256,260,
filing of, 100, 101, 102 261
private, 89 Corporation Code, 214, 215
Complex crime(s), 52, 95, 96, 135, 145, 149, 180
848 UPDATES IN CRIMINAL LAW
 INDEX 349

Corpse of the victim

outraging or scoffing at the, 128
minimum age of, , 37
Cruelty, 78, 79 1'1 •
Corpus delicti, 36, 87, 88, 138, 176, 177, Cumulative provocation, :· ;y
211 45
Counter-affidavit, 115 Damage(s), 4, 51, 113, 155, 156, 162, 165, 166, 170, 173, 201; 202,
Coup d'etat, 233 222, 224, 225 I '
Court of Appeals (CA), 8, 92, 134, 139, 156, 191, 202, 205, 208, actual, 98,221,264
263, compensatory, 264
264 consequential, 104, 105
automatic review of death penalty cases by the, exemplary, 51
92 Courts of First Instance (CFI), 102, 198 moral, 98
Craft, 62 reparation of the, 104, 105
Crime(s) against honor, 54, 200
Crime(s) against persons, 54, 64, 127
special, 184.
I 1 ,I

Crime(s) against property, 54, 75, 76,

to
142 propertyi96
Criminal act(s), 5, 7, 57, 60, 78, 81, 83 Criminal responsibility, 18, 37, 66, 100
execution of, 60
joint, 18
Criminal action, 98, 104, 106,
262 dismissal of a, 89
Criminal agency, 176
Criminal Case(s) , 92, 98, 105, 134, 139, 181, 183, 249
No. 2005, 234
No. 5671, 222
No. 23539, 224
No. Q-93-41751, 244
No. Q-93-43437, 243
No. Q-93-43442, 243
No. Q-96-64618, 143
Criminal design, 83, 84, 85, 144
Criminalintent,22,35,40,60,61,84,
120,139,165,166,171,172,
203,209
Criminal law(s), 1, 255
municipal, 138
Criminal liability, 3, 5, 22, 37, 38, 39, 42, 46, 50, 79, 87, 99, 124,
149,
151,152,161,165,168,172,173,175,176,224,225,241,250,
252,253
extinction of, 97
of the accused,
152 Criminal mind,
171
Criminal offense(s), 89, 94, 102, 118
Criminal proceeding(s), 105, 194, 216
Criminal prosecution, 37, 102, 103, 115, 116
Criminal resolution, 83, 84, 94
Dangerous drugs, 14 ' · ..., material, 186
·;: statement(s), 186, 189, 192, 193, 196
Death penalty, 92, 94, 134, 208 · '" : · ·· utterances, 193, 195
·' i implication of the abolition of the, 93 ·: ':;-nr1· words,
'· Deceit(s) (dolo), 2, 3, 96, 114, 120, 153, 163, 164, 165, 167, 169,
199 Defense
170, 173,203,220 . I ', ' 1i
ofrelativerc, 29
meaning of, 164 of strangers, 30
Deceitful concealment, 175 Defense ofinducement, 41
Deceitful promise, Defraudation, 167
179 Deed of sale, Degree of assistance, 202·
229 Degree of perversity, 58
Defamation,184,199 Delict, 99
oral, 199, 200 Delusion, 81
written, 199 Demand, 162
Defamatory, 184, 185, 187, 196 Denuncia, 102
imputation, 184, 187, 188, 190, 192, 200
350 UPDATES IN CRIMINAL LAW Efficient intervening cause, 4
Employee, 105,106,107,110,111,119,121,212,217,218,241,247,
250
Department of Budget and Management (DBM), 126 Employer(s) , 241
Department of Education, Culture .a:nd Sports (DECS), due diligence of, 105
115 Department of Public Works and Highways (DPWH) , not a party to criminal case filed against its employees, 105
223, 224 Department of Trade and Industry, 217 subsidiary civil liability of, 105, 106
Destruction of the body of the crime, Entrapment, 40
86 Detention Environmental circumstances, 178
arbitrary, 107, 108 Error of judgment, 93
illegal, 107, 108, Estafa, 156, 158, 159,160, 161, 162, 165, 166, 167, 168, 170, 171,
136 when is there, 175,
106 247
Direct appellate review, by means of false pretenses, 163
92 Direct assault, 80,
109 Direct bribery
elements of, 118
Direct proof, 14, 15
Dirty finger, 200
Disposition
final, 93
Dispositive portion of decision, 105
Divorce,183
Doto malus,153
Doto, 2, 3
Dominion, 210, 235
physical, 135
right to exercise, 209
Drawn against uncollected deposit (DAUD), 261
Due diligence, 105
Dwelling, 55, 56, 57
inherent in certain crimes,
57 what includes, 56
 INDEX 351 requisites of, 61
Exceptional circumstances, 127
Executive Judge, 47
by poi.tdating or issuing a check, 166 · · Exempting circumstance(s), 35, 38,
Evidence, 1, 3, 12, 14, 15, 16, 20 , 234, 242, 243, 244; 39 basis of accident as an, 38
244, 258 External act(s),<J, 9, 23, 61
circumstantial, 36, 127, 156:162 · Extortion, 239
convincing, 22 Factual circumstance(s), 32, 62, 207
direct, 36, 156 False pretense, 163, 164, 173
disposal of, 36 False representation, 164, 173, 174, 175
documentary, 224 Falsificatfon, 110, 111, 171,
lack of, 108 217 by making
of deceit, alteration, 112 elements
169, 170 of of, 111
good faith, of public or official documents,
171 112 Fault(culpa),4,31,38,96,
ofrnisappropriation,162 120,203
positive, 61 Fear, 134
prosecution's, 224 as a determinative factor in arbitrary detention, 108
testimonial, 170, 259 uncontrollable, 38, 39
weakness of, 249 Felonious act, 4
Evident baJ faith, 220, 222, 223, 224 Felony or Felonies, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 55, 81, 84,
Evident premeditation, 59, 60, 61, 62 86, 87;
essence of, 60 90,91.96,103, 120,122,144,152,155,181,201,203
not presumed from mere lapse of time, 61 attempted, 5, 8, 11
distinguished from frustrated felony, 11
352 UPDATES IN CRIMINAL LAW Fraud,62,163,164,165,167,168,173,174,175,217,219,222
mea
ning, 163
essential elements, 5 Fraudulen
by dolo, 2, 3, 114, 127, 140 t
culpable, 3, 38 concealment, 176
frustrated, 10, 11 machination, 130
intentional, 2, 3, 38 nondisclosure, 176
light, 96 silence, 176
more grave and/or less grave, 91, 93, 94, 96 Freedom oflocomotion, 108, 136
ofdolo, 153 Frontal attack, 73
Fencing, 233, 234 Fulfillment of duty, 31, 33, 34
elements of, as distinguished from self-
233 Fiduciary defense, 33 Fundamental Law,
relationship 92, 106
Finaljudgnient,59,97,99,102,204 Furtive design, 220, 222, 223
Fine,93,140,173,193,195,201,204,230,241,262,263,264 General Auditing Office (now the Commission on Audit or
Force,130,131,132,135,137,140,151,179,234 COA) , 124,125
Forcible abduction, 57, 96, 97,136, 179, Inspection Report of the, 223
180 may be absorbed in rape, 135 Good faith, 115,118,171,172,174,183,189,191,256,257
. with rape, 135 Government Auditing Code of the
Forgery, 111 Philippines Sec. 101, 121
Fortuitous circumstance, 38 Graft and corruption, 214
Gravamen;132,139,167,242,256,259 INDEX 353
Grave abuse of authority, 130
Grave abuse of confidence, 20, 154, 156
Grave misapprehension, 139
Habitual delinquency, 41
Habituality, 59
Harboring, 85
Harmless innuendo,
17 Heinous
crime, 57
offense, 229
plan, 60
Homicide, 5, 10, 12, 34, 54, 55, 75, 76, 79, 85, 88, 99, 127;143, 144,
145,146,147,148,149,152,177,202,233
attempted, 12, 80
multiple, 80
frustrated, 10, 12
multiple, 96
through reckless imprudence, 202
with serious physical injuries, 96
Identification, 2
Ignominy, 77
Illegal discharge of firearm,
129 Illegal drugs, 40, 41
Illegal possession of dangerous drugs, 209
Illegal possP.ssion of explosives, 231
Illegal possession offirP-arm(s), 79, 80, 230,231,233
Illegal recruitment, 165
Illegal recruitment, 240,241
large scale, 241
Illegal sale of dangerous drugs, 211
Iloilo Provincial Mobile Force Company, 31
Imminent danger, 23, 24, 26, 28, 71
to property, 139
Impairment of memory, 45
Imprisonment, 21, 194, 195, 204, 263, 264
lmprudence,3,201,202
lmprudencia punible, 202
Impunity, 58,192
lnculpatory acL, 141
Indemnification, 104, 105
Indeterminate Sentence Law (ISLaw),
207,208,209 Indeterminate sentence, 208
Board of, 209
Indicia, 27
854 UPDATES IN CRIMINAL INDEX 355
LAW
Indictment, 19 Indispen
Indirect bribery, 119 sable
cooperation, 133
Inducement,41,62, 132,133,168,179
Inexcusable lack of precaution, 201 essencP. of, 13G
Information, 50, 51, 88, 100, 101, 165, 177, 198, 199, 215, 216, for ransom, 88, 138
217, of a minor, 138
218,219,223,227,228,229,233,243,244,260 La Trinidad Municipal Ordinance No. 1-91, 110
Informer's identity, 213 Labor Code, 165, 166
Injury or Injuries, 3, 4, 5, 11, 12, 21, 22, 26, 29, 31, 33, 34, 38, Article 13,241 .\[

39, 42, Article 34,

88,104,127,165,174,220,221,222,224,231,259 242 Lack of ,/,'

fatal, 14, 22 foresight, 3 Lack

legal, 164 of skill, 3
malicious, 193 Law on agency, 159
minor, 11, 12 Law,97
physical, 12, 22 Lewd design, 178, 180
undue,220,221 Lex specialus derogant generali, 20
Insanity, 35 Libel,100, (:
Insolvency, 106 115,116,183,184,185,186,194,197
Insurrection, 233 criminal, 197
Intent to gain, 142, 144, 146, 155, 172, 236, 237, 238, 240 elements, 184
Intentional mutilation, 149 penalty for, 193
Intercalation, 112 political, 193
Intermediate review, 92 Life imprisonment, 89, 92, 93, 208
Lower court, 206
Mala in se, 203,
229 Mala prohibita
rimes, 203
Internal act, 142 Malefactor(s), 14, 15, 18, 53, 58, 60, 61, 81, 83, 85, 127, 128, 145,
Intimidation, 109, 130, 131, 132, 134, 135, 140, 142, 143, 150, 149,
151, 151,177
153,155,179,234,236,238,239,240 Malice, 2, 3,114, 115, 1'10, 1-41, 171, 172, 184, 187,188,189, 190,
Intoxication, 81 192,
Investigation, 40 193,196,200,201,256
Judicial declaration, 181, 182, actual, 196, 197
183 Judicial determination,'117 as an element in oral defamation, 200
Judicial notice, 103 lack of, 115
Judicial proceedings, 113, 181, 188 presumption of, 187, 192
Juridical person, 183 Malicious intent, 171
Juridical possession, 155, 160 Malum in se. 166, 229
Jurisdiction, 22, 55, 118, 152, 159, 181, 191, 193, 194, 198, 214, Malum prohibitum. 165,209,233, 242, 253, 256
215, Malversation
218,26 of public funds, 50,119,121,122,
2 124 restitution, not a valid defense
Jurisprudence,2,13,14,51,56,62,80,106,108,172,211,221,254 in, 125
Justice of the Peace Court, 102 technical, 125, 126
Justifying circumstance(s), 21, 22, 29, 30, 33, Manifest partiality, 220, 223
34 Juvenile Justice and Welfare Act of 2006, Marriage,177,178, 180,181,182,183
37 Kidnapping,108,109,137,138 certificate, 182
and failure to return a minor, 138 contract, 182
356 UPDATES IN CRIMINAL LAW INDEX 367.

Material possession or Physical possession, criminal, 120,201

155 Medical intervention or attendance, 10 inexcusable, 220, 223, 224 't .:;·
Medico legal
malversation through,
expert, 87
120 Negotiable Instruments
Memorandum Circular No. 570, 124 Law
Mensrea,40 Sect 186,252 · ,, . ,
Metropolitan Trial Court (MeTC), 139, 140 Nighttime, 76 ,,
Minority, 35 Nocturnity, 58
Misappropriated, 120, 123, 160, 161, 165 Normal equanimity, 44, 45, 4EI . 1 • ••
Misappropriation, 119,120,122,123,156,157,158,159,162 Notary public, 110
Mitigating circumstance(s), 41, 42, 42, 43, 44, 46, 47, 48, 49, 50, Notice of appeal, 207· , · ",.,.;. •, :
51, Notice of dishonor, 168, 169,170,245,246,247,248,249, 250,,251,
52
253
generic, 76, 91
Notice of non-payment, 245
of passion and obfuscation, 44 Notorious inequality, 63
ordinary, 52
Novation, 172
Mode of attack, 69, 71, 72, 73 Obscene publications, 117
Modifying circumstance, 207 Official position, 110, 111, 121
Moral assistance, 17 OMB-ADM-1-99-0387, 114, 115
Moral certainty, 133 Onus probandi, 123
Moral character, 135 Overt act(s), 2, 5, 6, 8, 9, 11, 14, 17, 21, 83, 134, 138, 142
Moral influence, 135 Pardon,90,103
Moral pain, 78
by the offended party, 89
Moro Islamic Liberation Front, 109 vs. Amnesty, 103
Moro National Liberation Front, 109 Parole, 208, 209
Motion to fix bail, 47 Parricide, 86, 91, 127
Motive, 1,2 Passion and/or obfuscation, 42, 43, 44, 76
lack of, 2 can co-exist with "illness of the offender" , 45
proof of, 1 Passional obfuscation, 44
Motor vehicle, 154, 236, 237, 238 Peculiar circumstances, 263
by means of, 128
Pecuniary
unlawful taking, 237
benefit, 237
use of, 78
estimation, 156
Motu proprio, 217 interest,225,226,228
Municipal Circuit Trial Court, 222 Penal law(s), 1, 20, 35, 80, 152
Municipal court, 100, 102, 190 interpretation of, 1
Municipal Trial Court, 100 retroactive effect on,
Murder(s), 1, 5, 7, 62, 64, 65, 66, 69, 79, 80, 85, 94, 95, 109, 127,
88
148,
Penal sanction, 258
177,231,232,233
Penalties in general, 88
attempted, 7, 12
Pendente lite, 215, 217
complex crime of, 95 Perjury, 113, 114, 115
frustrated, 10, 12 complaint for, 114, 116
Negligence, 3, 4, 31, 38, 96, 119, 120, 175, 201, 202, 203, 262
essence of, 114
358 UPDATES IN CRIMINAL LAW
prosecutions for, 114
 requisites of, 113 a&,•, INDEX 359
what is an affidavit executed upon a material matter?,
114 Perpetual penalties (penal perpetua), 90
Personal Data Sheet, 112 Criminal Liability, 3
Personal liberty and security, Exemrting Circumstances, 35
136 Extinction of Criminal, 97 i ·.·
Personal property or Personal properties, 142, 143, 141, 146, Felonies, 1
147, Justifying Circumstances, 21
150,151,153,159,160,238 Mitigatin.g Circumstances,
Persons criminally liable, 82
41 Penalties in Ge eral, 88
Philippine Commercial and Industrial Bank (PCIB), 154,
Persons Criminally Liable, 81
155 Philippine Natioiial Police (PNP), 31, 74 Preliminary exlimination, 101
Physical activity of deed, 9 Preliminary investigation, 100, 101, 102, 260
Physical assault, 22, 24, 28 Prescription, 98, 100, 101 .
Physical injury or Physical injuries, 12, 80, 93, 96, 127, 129, of offenses, 99, 228
145, 147 inflicted in a tumultuous affray, 129 computation of, 100
serious, 96, 127 of penalties, 102, 103
slight, 12, 80, 93, 96, 129 period of, 102
Physicalpain, 78 Prescriptive period, 88, 100, 101, 102
Physical resistance, 180 of a criminal offense, 102
Plain criminal proclivity, Presidential Commission on Good Government (PCGG), 229
41 Plea of guilty, 49, 50 Presidential Decree
Plea ofnot guilty, 49 No. 532, 239,
Police officer, 119 240
Political motivation, 109 No. 533,240
Political offense(s), No. 957,261
103 Possession Sec. 23,261
actual, 209 No. 968,204
meaning, 209 Sec. 4, 205, 207
constructive, 209 Sec.9,204
of prohibited drugs, 211 Sec. 33,205
Possession of stolen property, No. 984,203
154 Power of supervision, 191 No. 1067,
Power to acquit, 101 203
Power to convict, No.1563,37
101 Power to
No. 1612,
remedy, 190
233
Prejudice,113,155,156,159,160,173,175,199
No. 1619, 37
Preliminary consideration, 1
No. 186G,79,230,232
Aggravating Circumstances, 50
Sec. 3,232
Alternative Circumstances, 81
No. 1990, 205
Civil Liability, 103
No. 7942, 203
· · Conspiracy, 13
Consummated, Frustrated and Attempted Felonies, 5 Presidential
Decree No.
1455, 121
Presumption of fact, 123
Presumption of innocence,
127
Presumption of knowledgie of in!'lufficiency of funds, 246, 251, 252,
 o . l-91350
360 UPDATES IN CRIMINAL LAW mutiple;; 193, 194
single, 194

Presumption of law, 123

Preventive suspension, 215
Principal(s), 82, 85, 233
assisting in the escape of the principals, 85
by direct participation, 82, 83, 84, 132,
133
Prision correccional, 80, 193
Prision mayor, 80, 93, 134, 230
Private act, 103, 181, 182
Private complainant(s), 7, 49, 98, 104, 111, 113, 130, 135, 143,
156,
157,158,163, 164;'165; 170,172,174,175,240,257,258
Private individual, 121
Privileged communication, 188, 190, 191, 193
Pro reo principle, 94
Probation Law, 204, 205, 206, 207
Probation, 204, 205, 207
application for, 205
Promissory note, 39
Prosecutfon(s); 2, 14; 49,1 67, 98/101, 116, 134, 135, 139, 146,
148,
162,166,170,171,176,179,181,197,202,211,218,224,225,
234,241,243,245,246,249,250,256,259,260
Provincial auditor, 125
Provocation, 22, 27, 29, 33, 42, 43, 45, 55, 56, 57, 70, 72, '/3, 201
Proximate cause, 4
Psychological paralysis, 45, 46
Public fund(s), 122, 123, 124, 125, 215, 218, 219
misappropriated, 123
Public interest, 110, 195, 213, 218, 258
Public morals, 117
Public officer(s), 34, 52, 86, 107, 109, 110, 117, 118, 119, 120,
121,
123,125,215,218,219,220,223,225,226
accountable, 120, 121, 122, 125
meaning of, 118
Public official(s), 112, 192, 198, 217
defamatory statements against, 196
Public order, 109, 204
Public position(s), 52, 220
abuse of, 52, 53
Public prisonage, 196
Public registry, 100
Publication, 186, 194, 195
 INDEX 361 may be committed by a woman, 132
multiple, ..:32, 152
statutory, 130, 132
Qualifying circumstance(s), 51, 60, 72, 79, 128, 150 ··: Rational equivalence, 26
Qualifying privilege, 116 •i Real property or Real properties, 99,
Quasi-contracts, 97 155 Rebellion, 109, 233
Quasi-delicts, 97 Recidivism, 41, 59
Quasi-recidivism, 52 Reckless disregard, 197
Question of law, 39 Recklessimprudence,96, 144,201,202
Raison d'etre, 6 resulting in damage to property, 203
Ransom, 88, 137, 138, 239 • resulting to homicide, 202
extorting, 137, 138 Reclusion perpetua, 89, 90, 91, 92, 93, 97, 208, 209, 239
meaning, 138 Reclusion temporal, 21, 89,230
Rape,8,9, 13,77,89,96,97, 129,130,133,134, 136;145,150, Regional Trial Court (RTC), 139, 156, 158, 198,
151, 233 decision of the, 139
152,180 Regional Trial Court, 47
additional, 152 Registry of deeds, 229
attempted, 8, 10, 134, Reimbursement, 50, 173
142 cases Reiteracion, 59
guiding principles in the review of, 130 Remedy, 75, 152, 190
consummateci, 131 Reparation, 104, 105
incestuot•.s, 135 Republic Act.
frustrated 1 13 No. 1060, 123
362 UPDATES IN CRIMINAL LAW No. 9346, 93 0 5,
Sec. 3,209 173
Resistance R not a valid
No.3019,214,215,216,219,221,225,228 degree of, 134 e defense in
Sec.11, 88 physical, 134 s malversati
Sec.13,216,217,218 tenacious, 134 t on, 125
No.3815, 1 R i Retal
No.4103,207,209 es t iation
Sec.2,208 p u , 26,
Sec. 5,209 o t 48,
No. 4363, 197 n i 70
No. 6425 d o distinguis
Sec. 21, 14 e n hed, 26
No. 6539, 21, 234 nt , Rev
No. 6688, 126 C ersi
No. 7080, 229 o ble
9 erro
No. 7659, 90, 91 ur 9 r,
No.8042,240,241 t , 212
No.8294,79,80,230,231,232,233 of Revis
Sec.2,230,232 A 1 ed
Sec. 3, 230, 232 p 0 Penal
No. 8353, 134 p 4 Code
No. 8385, 129 ea , (RPC
No. 9165, 209 ls, ), 1,
No. 9262, 28 2 9, 19,
5 1 29,
No. 9344, 37
0
 55, 79, 89, 94, 171, 207, 231, INDEX. 363
263,264
Article 3, 3
par. 2, 2
Article 8, 13
Article 4
Article 9, 93
par. 1, 5 Article 10, 19, 20, 225
Article 6, 8 Article 11
par.1, 21
par. 4,139 ,: .f) :(

Article 12, 35, 37, 38

Article: 13, 42, 49, 152
par. 9, 45 .. ' \ '' j If (i

p3.r. 10, 45
Article 14, 55, 57 , 79, 152
par. 1,,:51
par. 2, 51
par. 3, 51 '',.: !/.,
par. 4, 51
par. 5, 51
par. 6, 51
par. 9, 51, 58 ; :/
par. 10, 51, 59
par. 14,
51
par.15,65
par. 18,
51
par. 19, 51
par. 20, 51
Article 15, 82
Article 18, 5, 84
Article 19
par. 3, 86
Article 20, 87
Article 25, 93
Article 27, 90
Article 36, 103
Article 39,:w
Article 40,.93
Article 47, 93
Article 48, 52, 91, 93, 95, 96
Article 63, 76, 90, 91·
Article 70, 90
Article 81, 93
Article 82, 93
Article 83, 93
Article 84, 93
364 UPDATES IN CRIMINAL INDE 8611
LAW X
Article 89, 99, 225 Articlo 335, 8, 90, 97 •( 'i
Article 90, 100 Article 338, 179
Article 91, 99, 100, 101 Article 842, 179
Article 93, 102, 103 Article 353, 183, 184
Article 100, 103 Article 354, 186, 187, 188
Article 102, 103, 105 par.1,
Article 108, 104, 105 189
Article 110, 88 Article 355, 195 ,.; q
Article 1!57, 102
Article 359, 194
Article 160, 52 : ':•
[.
Article 360, 194, 197, 198
Article 171, 110, 111, 112,
Article 361, 196
113 ''i,
Article 365, 201, 202, 203
Article 172, 110, 113
Book II
par. 2, 112, 113
Title 4,219
Article 201, 117
Title 7,215,218,219
Article 203, 119
Revised Rules of Criminal Procedure of 2000
Article 204, 118 , '.I
Rule 115 ·
Article 210, 118, 119 : .'
I

Sec. 1, 19
Article 211, 119
Article 217, 120, 121, 122, Revised RulP,s on Criminal Procedure of '. ',

123 2000 Rule 110, 232 ··:l

Article 218, 125
Article 220, 125, 126
Article 248,128,230,231, 233
par. 5, 79
Article 251, 129
Article 266-A, 129, 133
par. 2,134
Article 266-B, 134
Article 267, 136, 137
1
Rightofsuffrage, 103 ·, • i,: .,;:;
Right to appeal, 99,207 · · 1 ·:. ·' 1 :,,:i" ·<
Right to indemnity, 99 ' ' 1 ·• "·· :vn
Robbery or Robberies, 54,, 55, 57, 58, 75, 76,109, 142,
143,144;145,
146, 147, 148, 150, 151,152,233,237,238 ' . ..· i
highway, 22;9, 240 · · · '!'
with homicide, 54, 55, 57, 58, 75, 76, 14 , 144; 145, 146, 147,
14 149 '·'If

Article 270, 138 essential elements of, 144

Article 287, 140, 141 with multiple rape, 152
par.1, with rape, 150, 152
143 with tiiple homicide, 148
par. Rules of Court
4,143 Rule 114
Article 293, 142, 150 Sec. 11,222
Article 294, 148, 150, 152 Rule 117, 216
Article 306, 240 Sec.2,216
Article 308, 153 Rule 130
Article 310, 238 Sec.3,259
Article 315, 156, 165, 173 Rules on Criminal Procedure of
par. 1, 159, 160, 161, 162 1985 Rule 111
par.
2,163,165,166,167,170,246
Article 173 Sec.
317,173 1,98
Article 318 Rule 120
par. l, Sec.
 7,207 • ·1·1 l

366 UPDATES IN CRIMINAL LAW

INDEX 367

Sandiganbayan (SB), 214,223,224,226,227 CrimeEJ Against Public Interest,

Sangguniang Bayan, 226 ·' f.·1 110 Crimes Against Public Morals,
Sedition, 233 117 Crimes Against Public Order,
Self..defense,21,22,23,23,24,25,27,28,29,34,42,63,99 109
fulfillment of duty as distinguished from, Crimes Against tlie Civil Status of Persons, 180
33 incoplete, 41 Crimes Against the Fundamental Law of the State, 1061
requisites, 22 Crlmes Committed by Public Officers, 118 ··
retaliation distinguished from, 26 Quasi-Offenses, 201
Sexual act, 132 Speedy investigation, 86
Sexual assault, 130, 133, 134 Spirit oflawlessness or revenge, 43, 44
Sexual attack, 142 Spontaneous desistance, 6, 8, 11, 12
Sexual gratification, 135 · Statute of limitations, 38
Sexualintercourse,9,96, 127,130,132,179 Stop payment, 260
Simple seduction, 179 Subsidiary imprisonment, 20, 264
Sine qua non, 2, 23, 24, 29, 199, 259 Substantial justice, 1
Single criminal impulse, 94, 95 Subversion, 204
Slander, 184,199,200,201 Sufficient provocation, 42, 42, 43
by deed, 200, 201 Suicide,
Social duty, 188, 189, 195 39
Solicitor General, 7, 8, 92, 102, 189, 208,229,263 Suppletor
Office of the, (OSG), 139, 143, 205, 262 y
Sound discretion, 32, 117, 207 applicdtion, 20
Special circumstances, 142 character, 225
Special Laws, 19, 20, 21, 89, 203, 204 effect, 20, 21
Anti-Carnapping Law, 234 Supreme Court Circular No. 12-2000, 262, 263
Anti-Cattle Rustling Law, Supreme Court, 48, 55, 92, 248
240 Anti-Fencing Law, 233 Sweetheart defense, 135
Anti-Graft and Corrupt Practices Act, 214 Swindling, 163
Anti-Piracy and Anti-Highway Robbery Law, Testimony, 7, 28, 31, 46, 72, 86, 87, 116, 130, 177,179,211,212,
239 Anti-Plunder Law, 229 234,235,259,26
Bouncing Checks Law, 242,247,261 0
Comprehensive Dangerous Drugs Act of 2002, contradictory, 116
209 Illegal Possession of Firearms Law, 230 Theft,99,146,151, 153,161,233,237,238
Illegal Recruitment, 240 qualified, 154, 155, 161
Threat,22,23,24,28,32,39,40,42,l30,131,132
Transitory or continuing crimes, 262
Travesty, 92 ·1·
Treachery, 10, 54, 55, 59, 64, 66, 67, 69, 70, 71, 72, fa, 74,''75i231_
Indeterminate Sentence Law, abuse of superior strength is absorbed in 77 · · ·'1 .
207 Probation Law, 204 ·· cannot co-exist with passion of obfuscati n, 76 · · ..· "' ··
Specific Crimes, 107 essence of, 67, 68 ·r·1 · ; ..·,.·
Crimes Against Chastity, evidence of, 74
instances
68 here the killing is intended with
177 Crimes Against Honor,
183
Crimes Against Personal Liberty and Security, 136 Crimes Against Persons, 127
Crimes Against. Property, 142 firing of warning shots does not neces rily negat'e th
presence of, 74
may be appreciated even if the attack is frontal, 73