Art 25; Penalties; subsidiary penalty

1989 No. 7:
Pedro was convicted of the crime of damage to property through reckless
imprudence for bumping the car of Jose and the court of sentenced him to pay a fine of
P3,000. Pedro failed to pay the amount of the fine for he was insolvent. Later, the court
ordered the incarceration of Pedro so that the latter could serve subsidiary imprisonment
to satisfy the fine. Pedro filed a petition for habeas corpus alleging that his confinement is
illegal. Will the petition prosper? Give your reasons.
Answer:
The petition for habeas corpus will prosper. Subsidiary penalty is not an accessory
penalty which inheres to a principal penalty and may therefore be imposed even if it is
not expressly provided in the sentence. It is a penalty in lieu of the penalty imposed in the
sentence. Hence, unless the judgment or sentence expressly provides for subsidiary
imprisonment, the culprit cannot be made to undergo the same {People vs. Fajardo, 65
Phil. 639).
In this case, the court merely sentenced Pedro to pay a P3,000.00 fine. It was only
LATER that the Court ordered the incarceration of Pedro to serve subsidiary
imprisonment AFTER Pedro failed to pay the amount of the fine. Subsidiary
imprisonment cannot be imposed unless it is expressly provided in the sentence.
Art 25; Penalties; successive service of sentence
1980 No. VI
(b) An accused was found guilty of double murder and was meted out two
sentences of reclusion perpetua. How would the accused serve the sentences?
Answer
(b) The rule is if two or more penalties in view of their nature cannot be served
simultaneously, such must be served successively in the order of severity in accordance
with the scale of the severity of penalties provided in Art. 70 R.P.C., but in no case is he
to serve more than three times the most severe penalty, and which is not to exceed 40
years. If the penalties are the same, such is to be considered as the most severe penalty.
(Aspra vs. Director of Prisons, 85 Phil. 737), In the problem, two penalties of
reclusion perpetua were imposed upon the accused. In view of their nature, these
penalties cannot be served simultaneously. Reclusion perpetua has a duration of thirty
years, Multiplied by 3 (three times the most severe penalty) the result is 90 years. The
accused should serve however imprisonment not exceeding 40 years, (Art. 70 R.P.C.)
Art 25; Penalties; three-fold rule
1985 No. 7
Finding Carlos Torres guilty of ROBBERY as charged, Judge Cruz nevertheless
dismissed the case against him it appearing from the evidence that Carlos Torres had
already been previously convicted in fifteen (15) other criminal cases and sentenced to a
total penalty of 305 years,... his HONOR ruling that anyway the total penalty which he
may be compelled to serve cannot in any case exceed forty (40) years under the "three-
fold rule".
Comment on the legality of His HONOR'S aforesaid pronouncement.
 Answer:
The dismissal of the robbery case by Judge Cruz is improper and irregular.
Dismissal is inconsistent with the finding of guilt of the accused. The duty of the Court is
to apply the law and to impose the penalty provided upon the accused found guilty of the
crime charged. The reason that the accused, Carlos Torres, had been previously convicted
in fifteen (15) other crimes and sentenced to a total penalty of three hundred five (305)
years and the total penalty that the accused may be compelled to serve cannot exceed
forty (40) years under the three-fold rule, does not find application in law. The threefold
rule applies to the service of the penalties and not in the imposition of the penalties.
(People vs Escares 102 Phil. 677).
Art 25; Indeterminate Sentence Law
1975 No. VII
The purpose of the Indeterminate Sentence Law is "to uplift and redeem valuable
human material and prevent unnecessary and excessive deprivation of personal liberty
and economic unusefullness". Explain how the law achieves that purpose.
Answer
The Indeterminate Sentence Law provides for an indeterminate sentence which
has a minimum and a maximum. After the prisoner has served the minimum, depending
upon his conduct and behavior during confinement, he may be released on parole. The
law, therefore, encourages the prisoner to reform. Once released on parole, provided the
conditions are not violated, he will no longer serve the remainder of the sentence. The
law hence treats the accused first as an individual and second as a member of society. It
shortens his term of imprisonment, depending upon his behavior.
Art 25; Indeterminate Sentence Law
1983 No. 11
A convict serving sentence for robbery escaped from the penitentiary and killed a
rival gang member. Found guilty of homicide, he was given a straight prison term. He
moved for reconsideration, contending that not being a habitual delinquent, he was
entitled to an indeterminate sentence.
Decide with reasons.
Answer
The convict is not entitled to an indeterminate sentence because when he
committed the crime of homicide he escape from the penitentiary while serving the
sentence for robbery. Section 2 of the Indeterminate Sentence Law enumerates the cases
in which the law cannot apply and one of those is if the offender escaped from
confinement or evaded his sentence.
Art 25; Indeterminate Sentence Law
1988 No. 4:
a) State the application of the Indeterminate Sentence Law.
Answer:
a) The Indeterminate Sentence Law applies in cases where the penalty imposed is
more than one year and the ISL shall apply where there is a minimum penalty which is
not lower than the penalty next lower in degree provided by law
and the maximum not higher than the maximum penalty provided by law in cases of
felonies but when it comes to statutory offenses it must be lower than the minimum
penalty provided by law and not higher than the maximum penalty provided by law
except in the following cases as provided by section 2 of Art. 4103:
1. life imprisonment
2. those convicted of treason, conspiracy or proposal to commit treason
3. to those convicted of misprision of treason, rebellion, sedition or espionage
4. to those convicted of piracy
5. those who are habitual delinquents
6. to those who shall have escaped from confinement or evaded sentence
7. to those who having been granted conditional pardon by the Chief Executive
shall have violated the terms thereof
8. to those whose maximum term of- imprisonment does not exceed one year,
not to those already sentenced by final judgment at the time of approval of this Act,
except as provided in Section 5 hereof.
Art 25; Indeterminate Sentence Law
1989 No. 8:
Andres is charged with an offense defined by a special law. The penalty
prescribed for the offense is imprisonment of not less than five (5) years but not more
than ten (10) years. Upon arraignment, he entered the plea of guilty.
a) In the imposition of the proper penalty, should the Indeterminate Sentence
Law be applied?
b) If you were the judge trying the case, what penalty would you impose on
Andres?
Answer:
a) The Indeterminate Sentence Law should be applied in this case. By express
provision of said law (section 1) it is applicable to offenses punished by special laws. The
indeterminate sentence in such cases shall consist of a maximum term which shall not
exceed the maximum fixed by the special law and a minimum term which shall not be
less than the minimum term prescribed by the same.
If I were the judge trying the case, I would impose a penalty consisting of any
duration not less than 5 years as minimum term and any duration not more than 10 years
as maximum term. It could be five years and 1 day to 7 years; 7 years, six months and 1
day to 9 years; or any other sentence where the minimum term is not less than 5 years
and the maximum term not more than 10 years.
Art 25; Indeterminate Sentence Law
1990 No. 12;
a) Carlos was charged and convicted of murder. He was sentenced to life
imprisonment and to indemnify the offended party in the amount of P30,000. He sought a
reconsideration of the penalty on the ground that he should be entitled to the benefits of
the Indeterminate Sentence Law. Decide with reasons.
 b) Suppose that instead of filing a motion for reconsideration he applies for
probation. If you were the judge, will you grant the same? Explain your answer.
Answer;
a) Carlos is not entitled to avail of the Indeterminate Sentence Law because
Section 2 of said law specifically disqualifies and disallows application thereof to persons
sentenced to life imprisonment.
Art 25; Indeterminate Sentence Law
1991 No, 6:
A was charged with homicide. During the trial, un-contradicted evidence
consisting of medical certificates were presented showing that the accused had sustained
injuries in ten (10) previous occasions while engaged in fisticuffs with different persons.
He was also confined at the National Mental Hospital for mental ailment diagnosed as
"homicidal and suicidal instincts." During his second confinement thereat, he escaped.
Upon conviction, the prosecutor objected to the application of the Indeterminate
Sentence Law contending that the accused is a habitual delinquent and an escapee from
the National Mental Hospital.
If you are the Judge, rule on the objection.
Answer:
The objection should be overruled. A could not be legally considered a habitual
delinquent. Habitual delinquency cannot be validly invoked without being alleged in the
Information and proven during the trial. Besides there is no indication that A was
convicted within ten (10) years from last conviction or release, three times or oftener of
the crimes of robbery, theft, estafa, physical injuries or falsification.
Being an escapee from the Mental Hospital will not disqualify him from the
application of the ISL as Section 2 thereof contemplates having escaped from
confinement or evaded sentence. Confinement presupposes imprisonment by virtue of a
final judgment.
Art 25; Indeterminate Sentence Law
1994 No. 11:
Itos was convicted of an offense penalized by a special law. The penalty
prescribed is not less than six years but not more than twelve years. No modifying
circumstance attended the commission of the crime.
If you were the judge, will you apply the Indeterminate Sentence Law? If so,
how will you apply it? Answer;
If I were the judge, I will apply the provisions of the Indeterminate Sentence
Law, as the last sentence of Section 1 Act 4103, specifically provides the application
thereof for violations of special laws.
Under the same provision, the minimum must not be less than the minimum
provided therein (six years and one day) and the maximum shall not be more than the
maximum provided therein, i.e. twelve years. (People vs. Rosalina Reyes, 186 SCRA
184)
Art 25; Indeterminate Sentence Law
1999 No VIII
 Andres is charged with an offense defined by a special law. The penalty
prescribed for the offense is imprisonment of not less than five (5) years but not more
than ten [10) years. Upon arraignment, he entered a plea of guilty. In the imposition of
the proper penalty, should the Indeterminate Sentence Law be applied? If you were the
Judge trying the case, what penalty would you impose on Andres? (4%)
SUGGESTED ANSWER:
Yes, the Indeterminate Sentence Law should be applied because the minimum
imprisonment is more than one (1) year.
If I were the Judge, I will impose an indeterminate sentence, the maximum of
which shall not exceed the maximum fixed by law and the minimum shall not be less
than the minimum penalty prescribed by the same. I have the discretion to impose the
penalty within the said minimum and maximum.
Art 25; Indeterminate Sentence Law
1999 No XII
Under what circumstances is the Indeterminate Sentence Law not applicable?
(2%)
A was convicted of illegal possession of grease guns and two Thompson sub-
machine guns punishable under the old law [RA No,4] with imprisonment of from five
(5) to ten (10) years. The trial court sentenced the accused to suffer imprisonment of five
(5) years and one (1) day.
Is the penalty thus imposed correct? Explain. (3%) SUGGESTED ANSWER:
Indeterminate Sentence Law does not apply to:
1. Persons convicted of offenses punished with death penalty or life
imprisonment;
2. Those convicted of treason, conspiracy or proposal to commit
treason;
3. Those convicted of misprision of treason, rebellion, sedition or
espionage;
4. Those convicted of piracy;
5. Those who are habitual delinquents;
6. Those who shall have escaped from confinement or evaded
sentence;
7. Those who violated the terms of conditional pardon granted to them by the
Chief Executive;
8. Those whose maximum term of imprisonment does not exceed one
year;
9. Those who, upon the approval of the law (December 5, 1933). had
been sentenced by final Judgment;
10. Those sentenced to the penalty of destierro or suspension.
The penalty imposed, being only a straight penalty, is not correct because it does
not comply with the Indeterminate Sentence Law which applies to this case. Said law
requires that if the offense is punished by any law other than the
Revised Penal Code, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum penalty fixed by the law and
the minimum shall not be less than the minimum penalty prescribed by the same.
Art 25; Indeterminate Sentence Law
2002 No III
A. How are the maximum and the minimum terms of the indeterminate sentence
for offenses punishable under the Revised Penal Code determined? (3%)
SUGGESTED ANSWER:
For crimes punished under the Revised Penal Code, the maximum term of the
Indeterminate sentence shall be the penalty properly imposable under the same Code after
considering the attending mitigating and/or aggravating circumstances according to Art,
64 of said Code. The minimum term of the same sentence shall be fixed within the
range of the penalty next lower in degree to that prescribed for the crime under the said
Code.
B. Under the law, what is the purpose for fixing the maximum and the minimum
terms of the indeterminate sentence? (2%)
SUGGESTED ANSWER:
The purpose of the law in fixing the minimum term of the sentence is to set the
grace period at which the convict may be released on parole from imprisonment, unless
by his conduct he is not deserving of parole and thus he shall continue serving his prison
term in Jail but in no case to go beyond the maximum term fixed in the sentence.
Art 25; Indeterminate Sentence Law; exceptions
2003 No XIII.
When would the Indeterminate Sentence Law be inapplicable? 4%
SUGGESTED ANSWER:
The Indeterminate Sentence Law is not applicable to:
(1) those persons convicted of offenses punished with death penalty or life-
imprisonment or reclusion perpetua;
(2) those convicted of treason, conspiracy or proposal to commit treason;
(3) those convicted of misprision of treason, rebellion, sedition or espionage;
(4) those convicted of piracy;
(5) those who are habitual delinquents;
(6) those who shall have escaped from confinement or evaded sentence;
(7) those who having been granted conditional pardon by the Chief
Executive shall have violated the terms thereof;
(A) those whose maximum term of imprisonment does not exceed one
year;
(9) those already sentenced by final judgment at the time of approval of
this Act; and
 (10) those whose sentence imposes penalties which do not involve
imprisonment, like destierro.
Art 25; Probation Law
1984 No 11
Under the probation law, the filing of an application for probation "shall be
deemed a waiver of the right to appeal."
Is this waiver mandatory or irrevocable? Explain. A. Furnished by Office of
Justice Palma,
Despite the provision in the Probation Law that the filling of an application for
probation "shall be deemed a waiver of the right to appeal", it has been held that such a
waiver is not irrevocable, hence an accused may withdraw his application for probation
and instead opt to pursue appeal from conviction. (Yusi
v. Morales, 121 SCRA 853). For the purposes of probation what the law gives more
importance to is the offender, not the crime (To v. Cruz Pano, 120 SCRA 8). In line
with the public policy behind probation, the right of appeal should not be irrevocably lost
from the moment a convicted accused files an application for probation. Appeal and
probation spring from the same policy, considering justice, humanity and compassion
{Yusi v. Morales, Supra).
B. Comments and Suggested Answer
The waiver provided in the Probation Law is not irrevocable. The offender may
still withdraw his application for probation and file an appeal if the period to do so has
not yet prescribed. Probation Law is interpreted liberally in favor of the accused. It is not
served by a harsh and stringent interpretation of its provisions. Appeal and probation
spring from the same policy considerations of justice, humanity and compassion. If it
appears that the application for probation was improvidently filed by the offender who
was assisted by counsel de oficio and not by his counsel of record who was in a better
position to consider fully the strength of a possible appeal, being fully familiar with the
case, the waiver rule cannot be considered irrevocable. (Yusi et al vs. Judge Morales L-
61958, April 28, 1983, 121, SCRA 653).
Art 25; Probation Law
1989 No, 20:
"A" was charged with theft and upon arraignment, pleaded guilty to the charge.
He was detained for failure to post bail. After "two (2) months, a decision was rendered,
sentencing "A" to an indeterminate sentence of six (6) months and one (1) day as a
minimum, to one (1) year and one (1) month as maximum, and to pay the offended party
the amount of P700, On January 16, 1985, the very day the sentence was read to "A," the
Judge issued a Commitment Order addressed to the Provincial Jail Warden. On January
28", 1985, "A applied for probation but his application was denied on the ground that the
sentence of conviction became final and executory on January 16, 1985, when "A"
commence to serve his sentence, a) Is "A" eligible for probation? b) What is the purpose
of the probation law?
Answer:
a) A is still eligible for probation since he filed his application for probation
within 15 days from the promulgation of the judgment. Under the Probation Law; the
accused may apply for probation WITHIN THE PERIOD FOR PERFECTING AN
APPEAL which is 15 days from promulgation or notice thereof.
 The judge committed an error in issuing a Commitment Order on the same day of
promulgation. A commitment order for the convict to begin serving his sentence can be
validly issued only if the period for perfecting an appeal has expired with no appeal being
taken. The fact that in compliance with such-order, which is void, the accused
commenced to serve his sentence does not bar him from availing himself of the benefits
of the Probation Law.
It is true that under the new Rules on Criminal Procedure it is provided that a
judgment in a criminal case becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served, or the
accused has applied for probation (Sec. 7, Rule 120). But Section 9 of the same Rule
provides that "nothing in this Rule shall be construed as affecting any existing provision
in the law governing suspension of sentence, probation or parole."
The probation law does not speak of filing an application for probation BEFORE
judgment has become final. It only speaks of filing the application WITHIN THE
PERIOD FOR PERFECTING AN APPEAL. There is nothing in the Probation Law that
bars an accused who has commenced to serve his sentence from filing an application for
probation provided he does so WITHIN THE PERIOD FOR PERFECTING AN
APPEAL.
What the Probation Law provides is that no application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment or
conviction. It does not say that no application shall be entertained if the judgment has
become final because the convict has commenced to serve his sentence.
b) The purposes of the Probation Law are:
1. to promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
2. to provide an opportunity for the reformation of a penitent offender
which might be less probable if he were to serve a prison sentence; and
3. to prevent the commission of offenses.
Art 25; Probation Law
1990 No. 12;
a) Carlos was charged and convicted of murder. He was sentenced to life
imprisonment and to indemnify the offended party in the amount of P30,000. He sought a
reconsideration of the penalty on the ground that he should be entitled to the benefits of
the Indeterminate Sentence Law. Decide with reasons.
b) Suppose that instead of filing a motion for reconsideration he applies for
probation. If you were the judge, will you grant the same? Explain your answer.
Answer;
b) I will not grant the application for probation as it is clear in the Probation Law
that the benefits thereof shall not apply to those sentenced to serve a maximum term of
imprisonment of more than six (6) years, (P.D. 1990).
Art 25; Probation Law
1991 No. 13:
a) Boyet Mar was charged with consented abduction by a 17-year old
complainant. The accused made wedding arrangements with the girl, but her
parents insisted on the prosecution of the case. To avoid further embarrassment of a court
trial for him and the girl, the accused entered a plea of guilty. He then filed a petition for
probation before serving sentence, but the court denied the petition on the ground that "it
would be better for the accused to serve sentence so that he would reform himself and
avoid the scandal in the community that would be caused by the grant of the petition."
The accused served sentence but he brought the matter to the Supreme Court in a
petition for certiorari.
Did the trial court act correctly in denying the petition for probation?
Answer:
The trial court acted incorrectly. In Balleta us. Leviste, 92 SCRA 719, the Judge
precisely denied the petition for probation on the same excuse stated in the problem.
The Supreme Court held that an accused must fall within any one of the disqualifications
stated in Section 9 of P.D. 960 in order to be denied probation,
Art 25; Probation Law
1993 No. 2:
Juanito was found guilty of Robbery by the RTC of Manila and sentenced to four
(4} Years, two (2) months and one (1) day of prision correctional as minimum to eight
(8) years and twenty (20) days of prision mayor as maximum. Juanito appealed to the
Court of Appeals which found him guilty only of Theft and sentenced him to a straight
penalty of one (1) Year. The decision of the appellate court was promulgated in May,
1993.
1) Is Juanito entitled to the benefits of the Probation Law which became
effective on Jan. 3, 1978? Why?
2) Suppose the prison term imposed by the RTC in the above example is only
two (2) years as minimum to six (6) years as maximum and Juanito did not appeal. When
he applied for probation. It was discovered that in March, 1960, a Municipal Court has
sentenced him to a six-month imprisonment for less serious physical Injuries which he
fully served. May his application for probation be granted? Reason out.
Answer;
1) Juanito is not entitled to probation because the law, as amended, requires the
filing of the application within the period for perfecting an appeal.
2) He is not entitled to the Probation Law because Section 9 (c) provides that
probation shall not be extended to those "who have previously been convicted by final
judgment of an offense punishable by Imprisonment of not less than one (1) month and
one (1) day or a fine of not more than P200.00."
Art 25; Probation Law
1981 No. 9
Isidro, 21, was convicted of Consented Abduction and sentenced to an
indeterminate penalty of three (3) months and one (1) day of arresto mayor, as minimum,
to two (2) years, four (4) months and one (1) day of prision correctional, as maximum.
Isidro did not appeal but he filed a petition for probation. The probation officer
recommended favorable action on the application stating that the accused did not intend
to cause a grave wrong and had the potential of a good probationer.
The trial court denied probation on the ground that it would be better for the
accused to serve his sentence so that he could reform himself and correct his selfish
tendencies. Admittedly, Isidro does not fall within any of the classes of disqualified
offenders under the Probation Law.
Would you sustain the action of the trial Judge in a Certiorari case assailing it?
Reasons.
Answer
I will not sustain the action of the trial judge. His denial of the application for
probation because it would be better for the accused to serve his sentence so that he could
reform himself and correct his selfish tendencies was arbitrary, capricious and whimsical.
He should have considered the recommendation of the Probation Officer which was made
after a post investigation of the offender in accordance with the Probation Law, that the
offender was entitled to probation because he had not intended to commit a grave
wrong when he committed the
crime of consented abduction and that he had the potential of a good probationer.
(Balleta Jr. vs. Judge Leviste, 92 SCRA 715 (1979).
Art 25; Probation Law
1984 No. 15
On a plea of guilty, X was convicted of homicide through reckless imprudence
and was sentenced to a prison term. The judgment made no pronouncement regard* ing
his civil liability. X forthwith applied for probation,
The following day, the private prosecutor, who was not given the chance to
present evidence on X's civil liability, filed a motion to set the case for the reception of
said evidence. Although supported by the fiscal, the motion was denied by the judge on
the ground that it was filed out of time. According to the judge, "the prosecution should
have asked for leave to prove the civil liability of the defendant before judgment was
rendered, not thereafter, for a hearing for that purpose after judgment would in effect
nullify the order of suspension of the sentence and would defeat the very purpose of the
Probation Law."
Was the denial of the motion in accordance with law? Explain.
Answer
A. Furnished by Office of Justice Palma,
No, The denial of the motion was not proper. In Bud-long vs. Apalisok (122
SCRA 935), it was held that probation affects only the criminal aspect of the case.
The suspension of the sentence imposed on the accused who is granted probation, has no
bearing on his civil liability.
The court must hear the civil aspect of the case where accused pleads guilty and at
the same time.
In the example given, the judgment was not final. Hence, the court should have
re-opened the case for reception of evidence in support of the civil aspect. It would be
contrary to the rule against multiplicity of suits should the private prosecutor be
compelled to institute a separate civil action for the recovery of the civil liability, either
on the concept principle of ex-delicto or ex-quasi-delicto, since the same acts may be
both considered as delict or quasi-delict giving rise to civil liability.
B. Comments and Suggested Answer
The denial of the motion was not in accordance with law. The granting of
probation affects only the criminal liability of the offender. This is shown by the statutory
definition of probation which is a disposition under which the defendant after convicton
and sentence is released subject to the conditions imposed by the court and to the
supervision of the probation officer. The "conviction and sentence" phrase shows that
probation affects only the criminal aspects of the case. The suspension of the sentence
imposed on the accused who is granted probation has no bearing on his civil liability.
There is no legal basis in the conclusion of the trial court that a hearing to prove the civil
liability of the accused would nullify the order of suspension of the sentence and would
defeat the very purpose of the Probation Law. The denial of the motion would violate the
right of the complainant to due process. The motion was filed on the day after the
judgment of conviction was rendered and hence before it became final. Besides the civil
liability of the accused is not part of the penalty for the crime committee. It is personal
to the offended party. (Burlong vs. Apalisok L-60151 June 24,1983, 122 SCRA 935).
Art 25; Probation Law
1985 No. 2
Arthur, a 17 year old student and aggrieved by the death of his only
brother in a previous rally at the hands of the police, fired at a motorcycle cop passing by
their place. He, however, missed his target and instead hit Jason, a passerby, who died
instantaneously.
(A) As an investigating fiscal, what charge or charges will you file against
Arthur? Reasons.
(B) Upon arraignment, Arthur pleaded guilty and invoked the additional
mitigating circumstance of voluntary surrender. As a judge and applying the
Indeterminate Sentence Law, what penalty will you impose upon Arthur? Discuss.
(C) May Arthur apply for and be entitled to probation under P.D. 968, as
amended by P.D. 1251 and Batas Pambansa 76?
Answer:
(C) Arthur may apply for and be entitled to probation if the maximum of the
indeterminate sentence does not exceed six years and one day. (Pres. Decree 968 as
amended by Pres. Decree 1257 and Batas 76).
Art 25; Probation Law
1986 No. 6:
Aristides was found guilty by the trial court of challenging Bodinus to a duel
and scoffing at Bodinus because of the latter's refusal to accept the challenge. The court
sentenced Aristides to a penalty of imprisonment from four months and one day to two
years and four months. In the dispositive portion of the decision, the court found
Aristides entitled to probation and suspended the execution of the sentence for a period of
two years. Aristides did not appeal the decision.
State the purposes of the Probation Law and explain whether or not the action of
the Judge promotes or serves these purposes.
Answer:
The purposes of the Probation Law are:
1. To promote the correction and rehabilitation of the offender by
providing him with individualized treatment;
2. To provide an opportunity for the reformation of a penitent offender
which might be less probable if he were to serve a prison sentence;
3. To prevent the commission of offenses.
The action of the judge certainly promotes or serves these purposes because it
gives a first time offender a second chance to maintain his place in society, through a
process of reformation, which is better achieved, when he is not mixed with hardened
criminals. The accused is afforded to reform and rehabilitate himself without the stigma
of a prison record.
However, probation cannot be granted without an application filed by the offender
after conviction and sentence. Besides, if probation is granted, mandatory and optional
conditions must be provided in the order of the court,
Art 25; Probation Law
1988 No. 4:
b) Who are the offenders disqualified from availing themselves of the
benefits of the probation law (P.D. 968, as amended)?
Answer:
b) The following offenders are disqualified from availing of the benefits of the
Probation Law:
1. those sentenced to serve maximum term of imprisonment of more than six
years;
2. those convicted of subversion or any crime against the national security of the
public order;
3. those who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and or a fine of not
less than two hundred pesos;
4. those who have been once on probation under the provisions of this decree;
and
5. those who are already serving sentence at the time the substantive provisions
of this decree applicable pursuant to Section 33 of P.D. 968.
Art 25; Probation Law
1995 No. 3:
In a case for violation of Sec. 8, RA 6425, otherwise known as the Dangerous
Drugs Act. accused Vincent was given the benefit of the mitigating circumstances of
voluntary plea of guilt and drunkenness not otherwise habitual. He was sentenced to
suffer a penalty of six (6) years and one (1) day and to pay a fine of P6,000.00 with the
accessory penalties provided by law, plus costs. Vincent applied for probation. The
probation officer favorably recommended his application.
1. If you were the Judge, what action will you take on the application? Discuss
fully.
2. Suppose that Vincent was convicted of a crime for which he was sentenced
to a maximum penalty of ten (10) years. Under the law, he is not eligible for probation.
He seasonably appealed his conviction. While affirming the judgment of conviction, the
appellate court reduced the penalty to a maximum of four (4) years and four (4) months
taking into consideration certain modifying circumstances. Vincent now applies for
probation.
How will you rule on his application? Discuss fully. Answer:
1. If I were the judge, I will deny the application for probation. The accused is
not entitled to probation as Sec. 9 of the Probation Law, PD NO. 968, as amended,
specifically mentions that those who "are sentenced to serve a maximum term of
imprisonment of more than six years" are not entitled to the benefits of the law.
2. The law and jurisprudence are to the effect that appeal by the accused from a
sentence of conviction forfeits his right to probation.(Sec. 4, PD No. 968. as amended by
PD 1990; Bernardo us. Balagot; Francisco vs. CA: Llamado vs. CA; De la Cruz vs.
Judge Callejo, CA case).
 N.B. to No. 2.
This is the second consecutive year that this question was asked. It is the sincere
belief of the Committee that there is a need to re-examine the doctrine. Firstly, much as
the accused wanted to apply for probation he is proscribed from doing so as the
maximum penalty is NOT PROBATIONABLE. Secondly, when the maximum penalty
was reduced to one which allows probation it is but fair and just to grant him that right
because it is apparent that the trial judge committed an error and for which the accused
should not be made to suffer. Judicial tribunals in this jurisdiction are not only courts of
law but also of equity. Thirdly, the judgment of the appellate court should be considered a
new decision as the trial court's decision was vacated; hence, he could take advantage of
the law when the decision is remanded to the trial court for execution (Please see
Dissenting opinion in Francisco vs. CA).
It is suggested, therefore, that an examinee answering in this tenor should be
credited with some points.
Art 25; Probation Law
1997 No. 9:
The accused was found guilty of grave oral defamation in sixteen (16)
informations which were tried jointly and was sentenced in one decision to suffer In each
case a prison term of one (1) year and one (1) day to one (1) year and eight (8) months of
prision correccional. Within the period to appeal, he filed an application for probation
under the Probation Law of 1976, as amended. Could he possibly qualify for
probation?
Answer:
Yes. In Francisco vs. Court of Appeals, 243 SCRA 384, the Supreme Court held
that in case of one decision imposing multiple prison terms, the totality of the prison
terms should not be taken into account for the purposes of determining the eligibility of
the accused for the probation. The law uses the word "maximum term", and not total
term. It is enough that each of the prison terms does not exceed six years. The number of
offenses is immaterial for as long as the penalties imposed, when taken Individually and
separately, are within the probationable period.
Art 25; Probation Law; applicability
2003 No XIV.
Juan was convicted of the Regional Trial Court of a crime and sentenced to
suffer the penalty of imprisonment for a minimum of eight years. He appealed both his
conviction and the penalty imposed upon him to the Court of Appeals. The appellate
court ultimately sustained Juan's conviction but reduced his sentence to a maximum of
four years and eight months imprisonment. Could Juan forthwith file an application for
probation? Explain. 8%
SUGGESTED ANSWER:
No, Juan can no longer avail of the probation because he appealed from the
judgment of conviction of the trial court, and therefore, cannot apply for probation
anymore. Section 4 of the Probation Law, as amended, mandates that no application for
probation shall be entertained or granted if the accused has perfected an appeal from the
judgment of conviction.
Art 25; Probation Law; barred by appeal
 2001 No XVII
A, a subdivision developer, was convicted by the RTC of Makati for failure to
issue the subdivision title to a lot buyer despite full payment of the lot, and sentenced to
suffer one year Imprisonment. A appealed the decision of the RTC to the Court of
Appeals but his appeal was dismissed. May A still apply for probation? Explain. (5%)
SUGGESTED ANSWER:
No, A is no longer qualified to apply for probation after he appealed from the
judgment of conviction by the RTC. The probation law (PD 968, as amended by PD1990)
now provides that no application for probation shall be entertained or granted if the
accused has perfected an appeal from the judgment of conviction (Sec. 4, PD 968).
Art 25; Probation Law; effect of application
1992 No. 9:
Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of
Manila. He was imposed the indeterminate penalty of imprisonment of 3 years, 2 months
and 1 day as minimum and six years as maximum, both of prision correctional and was
ordered to indemnify the offended party in the amount of P3,000.00. He filed an
application for probation upon the promulgation of the judgment.
What is the legal effect of his application for probation on the judgment of
conviction? Does said application interrupt the running of the period of appeal?
Suggested Answer:
The filing of the application for probation is considered as a waiver of the right of
the accused to appeal; the decision has become final. In view of the finality of the
decision there is no period of appeal to speak of,
Art 25; Probation Law; effect of discharge
1983 No. 17
When a person convicted by final judgment is placed on probation and finally
discharged after the probation period, is he still required to satisfy his pecuniary liabilities
under the Revised Penal Code? Why?
Answer
Under the Probation Law (Presidential Decree No. 968 as amended by
Presidential Decree No. 1257) if the person who is placed on probation is finally
discharged, such will operate to fully discharge the offender of his liability for the fine
imposed. Under Art. 38 of the Revised Penal Code, fine is one of the pecuniary
liabilities of the offender. The other pecuniary liabilities which are reparation for
damages caused and indemnification for consequential damage. (Art 38, Supra) which
constitute the civil liability of the offender, are not extinguished because probation affects
only the criminal aspect of the case. This is clearly evident in the "conviction and
sentence" clause of the definition of probation under Presidential Decree No. 968.
(Budlong vs. Judge Apalisok L60151, June 24, 1983) (Note: The question should have
referred to the civil liability of the offender as that seems to be the intention of the
examiner)
Art 25; Probation Law; entitlement to probation; appeals
2002 No IV.
 A was charged with homicide. After trial, he was found guilty and sentenced to
six (6) years and one (1) day in prision mayor, as minimum, to twelve (12) years and
one (1) day of reclusion temporal, as maximum. Prior to his conviction, he had been
found guilty of vagrancy and imprisoned for ten (10) days of arresto manor and fined
fifty pesos (P50.00). Is he eligible for probation? Why? (3%)
SUGGESTED ANSWER:
No, he Is not entitled to the benefits of the Probation Law (PD 968, as amended)
does not extend to those sentenced to serve a maximum term of imprisonment of more
than six years (Sec. 9a).
It is of no moment that in his previous conviction A was given a penalty of only
ten (10) days of arresto mayor and a fine of P50.00.
B. May a probationer appeal from the decision revoking the grant of probation or
modifying the terms and conditions thereof? (2%)
SUGGESTED ANSWER:
No. Under Section 4 of the Probation Law, as amended, an order granting or
denying probation is not appealable.
Art 25; Probation Law; qualifications for probation
1994 No. 17:
On February 3, 1986, Roberto was convicted of arson through reckless
imprudence and sentenced to pay a fine of P15,000.00, with subsidiary imprisonment in
case of insolvency by the Regional Trial Court of Quezon City. On February 10, 1986, he
appealed to the Court of Appeals. Several months later, he filed a motion to withdraw the
appeal on the ground that he is applying for probation. On May 7, 1987, the Court of
Appeals granted the motion and considered the appeal withdrawn.
On June 10, 1987, the records of the case were remanded to the trial court.
Roberto filed a "Motion for Probation" praying that execution of his sentence be
suspended, and that a probation officer be ordered to conduct an Investigation and to
submit a report on his probation.
The judge denied the motion on the ground that pursuant to Presidential Decree
No. 1990, which took effect on July 16,1986, no application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment of
conviction.
Is the denial of Roberto's motion correct? Answer;
Yes. Even if at the time of his conviction Roberto was qualified for probation but
that at the time of his application for probation, he is no longer qualified, he is not entitled
to probation. The qualification for probation must be determined as of the time the
application is filed in Court (Bernardo vs. Judge, etal. GRNo. L86561,Nov, 10. 1992;
Edwin de la Cruz vs. Judge Callejo. et al, SP-19655, April 18, 1990, citing Llamado vs.
CA, et al, GR No. 84859, June 28, 1989; Bernardo us. Judge Balagot, etal, GR 86561,
Nov. 10, 1992).
Art 29; Destierro
1982 No. 15
May an accused person sentenced to destierro be credited with a portion of the
time during which he had undergone preventive imprisonment?
 If not, why not? If in the affirmative, what portion of the time of preventive
imprisonment should be credited to him?
Answer
An accused sentenced to destierro can be credited with a portion of his period of
preventive imprisonment in the service of the sentence consisting of deprivation of liberty
because destierro as a penalty involves also deprivation of liberty although partial.
(People vs. Bastasa et al, 88 SCRA 184).
Art 29; Preventive imprisonment
1980 No. VI
(a) Under Article 29 of the Revised Penal Code, offenders who have undergone
preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive
imprisonment. An accused was sentenced to "destierro" for having killed his wife under
exceptional circumstances. He had been preventively detained for a period of almost
twelve years. Would he be entitled to the benefits of Art. 29 in so far as his preventive
imprisonment is concerned?
Answer
(a) Article 29 as amended by R.A. No. 6127 provides that an offender who has
undergone preventive imprisonment shall be credited in the service of his sentence
consisting of deprivation of liberty, with the full time of the period of his preventive
imprisonment if he has agreed in writing to observe the rules of discipline applied to
convicted prisoners and four-fifth if there is no written commitment. The penalty of
destierro involves also deprivation of liberty (People vs. Abilong, 82 Phil. 172). The
problem does not show whether there is a written commitment. So, the deduction of the
full period of preventive imprisonment cannot technically be applied. However, the
period of preventive imprisonment is almost 12 years. Hence, even if four-fifth thereof
of 12 years is applied, the result will be more than 8 years. The duration of destierro is
from 6 months 1 day to 6 years. The accused therefore is entitled to be released because
the period of his preventive imprisonment exceeds the penalty of destierro imposed upon
him.
Art 29; Preventive imprisonment
1983 No, 10
Having caught A in flagrante delicto doing the sex act with his [B's] wife, B shot
and killed A while the latter was still in the compromising act. B was sentenced to
reclusion perpetua for murder after a protracted trial. It was only on appeal that he was
given the proper penalty of destierro under Article 247 of the Revised Penal Code.
During the pendency of the case, the accused was under preventive detention
which lasted for about eight years.
(a) In serving his sentence, is B entitled to credit for his preventive
imprisonment? Explain.
(b) What is the philosophy of the legal provision imposing the penalty of
destierro for the above crime?
Answer
 a) A can be credited for his preventive imprisonment. Destierro as a penalty
involves also deprivation of liberty. (People vs.. Bastasa (1979) of 6 O.G. 6844)
Art 29; Preventive imprisonment
1994 No. 3:
1) When is there preventive imprisonment?
2) When is the accused credited with the full time of his preventive
imprisonment, and when is he credited with 4/5 thereof?
Answer;
1) There is preventive imprisonment when [a) an offender is detained while the
criminal case against him is being heard, either because the crime committed is a capital
offense and not bailable, or even if the crime committed was bailable, the offender could
not post the required bail for his provisional liberty.
2) An accused is credited with the full time of his preventive imprisonment if
he voluntarily agreed in writing to abide by the rules of the institution imposed upon its
prisoners, provided that:
a) the penalty imposed on him for the crime committed consists of a
deprivation of liberty;
b) he is not disqualified from such credit for being a recidivist, or for having been
previously convicted for two or more times of any crime, or for having failed to surrender
voluntarily for the execution of the sentence upon being so summoned (Art. 29, RPC).
Where the accused however did not agree he would only be credited with 4/5 of
the time he had undergone preventive Imprisonment.
Art 39; Subsidiary imprisonment
1978 No. IV-a
A bus driver was found guilty of damage to property through reckless
imprudence. He was sentenced "to pay a fine of P5,000 and the costs". The driver
was insolvent and could not pay the fine.
May the driver be required to serve subsidiary imprisonment? Explain,
Answer
No, because subsidiary imprisonment in case of insolvency to pay the fine, is not
expressly provided in the sentence. (People vs. Fajardo, 65 Phil. 639).
Art 39; Subsidiary imprisonment
1980 No. VIII
"P" was sentenced from six (6) years and one (1) day to twelve (12) years and one
(1) day, and ordered to pay a fine of P2,000.00.
May "P" be compelled to serve subsidiary imprisonment in case of failure to pay
the fine?
Answer
P cannot be compelled to serve subsidiary imprisonment. Art. 39 par. 3 (R.P.C.)
provides that there is no subsidiary imprisonment if the principal penalty is higher than
prision correccional. The penalty of 6 years 1 day to 12 years and
1 day is higher than prision correccional which has a maximum of 6 years only. The mere
addition of 1 day to 6 years is already higher than prision correccional and in such a case
there can be no subsidiary imprisonment for failure to pay the fine. (Rosario vs. Director
of Prisons, L-03463, March 6, 1950)
Art 39; Subsidiary imprisonment
1983 No. 13
Charged with estafa in September 1983, the accused was found guilty and
sentenced to an indeterminate penalty of 4 years, 2 months and 1 day of prision
correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum, and to
pay a fine of P3,000, aside from the indemnification of the victim, with subsidiary
imprisonment for both fine and indemnity in case of insolvency.
Was subsidiary imprisonment properly imposed? Explain.
Answer
Subsidiary imprisonment was not properly imposed because the principal penalty
which is 4 years, 2 months 1 day of prision correcional as minimum to 8 years and 1 day
of prision mayor as maximum, is higher than prision correcional. (Art, 39, par. 3, Rev.
Penal Code) Besides, there is no subsidiary imprisonment for indemnity, as subsidiary
imprisonment is limited to non-payment of fine. (Art. 39 as amended by Act 5465)
Art 45; when not subject to confiscation
1987 No XV:
Jose, Pedro and Juan, robbed ABC Bank of P200,000 and using a stolen car,
immediately proceeded to Quezon City. The police recovered the money and the car.
After the trial, during which the bank lawyer intervened as private prosecutor, the court
convicted Jose, Pedro and Juan of robbery and ordered the forfeiture of the money
(P200,000.00) and the car in favor of the government as proceeds and instrument of the
crime, respectively. The bank lawyer received copy of the judgment, but did not do
anything. Jose, Pedro and Juan did not appeal the judgment, and began service of
sentence. Two months later, realizing that the court did not order the return of the money
to the bank, the bank lawyer filed a motion for modification of the judgment and prayed
that the money be ordered returned to the bank. Two months later, Armando, the
owner of the stolen car, learned of the judgment even much later. He comes to you
seeking your well considered opinion on whether it is still possible to recover his car.
(a) As legal counsel, what will you tell him? Explain briefly.
(b) Under the facts given, would the bank be entitled to the return of the money?
Why?
Answer:
a) As legal counsel, I would advise Armando to file a civil action for the recovery
of his car against its legal custodian. The car was stolen and therefore it belonged to
Armando, an innocent party, who has not participated in the commission of the
robbery by Jose, Pedro and Juan. The car, is therefore, not subject to confiscation.
Art 47 & 83; Death penalty; crimes punishable
1988 No. 3:
 c) What offenses, if any, may be punished with the death penalty in our
jurisdiction at present? Explain.
Answer:
c) At present, no offense may be punished with the death penalty in our
jurisdiction at present. The 1987 Constitution has abolished the death penalty and the
abolition affects even those who has already been sentenced to death penalty. Therefore,
unless Congress enacts a law, no offense may be punished with the death penalty at
present. But until today, Congress has not yet passed a law to this effect.
Art 47 & 83; Death penalty; exceptions thereto
1998 No XIII.
1. Under Article 47 of RA. 7659, the death penalty shall be imposed In all cases
in which it must be imposed under existing laws. What are the exceptions to the
imposition of the death penalty? [3%]
Answer:
1. The death penalty shall not be imposed although prescribed under existing
laws:
(1) When the accused is less than 18 years of age at the time of the commission
of the offense;
(2) When the accused is more than 70 years of age already;
(3) When upon appeal or automatic review of the case by the Supreme Court,
the required majority vote for the imposition of the death penalty is not obtained.
Art 47 & 83; Death penalty; heinous crimes
1995 No. 1:
1. (a) When was the constitutional proscription against the imposition of the
death penalty lifted?
(b) When is the execution of the death penalty suspended under the Revised
Penal Code?
(c) When is the death penalty commuted under the same Code?
2. (a) What are heinous crimes?
(b) Name ten (10) specific heinous crimes. Answer:
1. (a) The constitutional proscription against the imposition of the death
penalty was lifted with the enactment of RA 7659, otherwise known as the Heinous
Crimes Law, which took effect fifteen (15) days after publication on December 16,
1993,that is on December 3l, 1993 (People vs. Martin Simon, 234 SCRA 555).
(b) Death penalty shall not be executed (a) upon a woman within three years
after date of the sentence, (b) while she is pregnant, (c) upon a person over 70 years
old (Art. 83 RPC), or (4) upon a convict who becomes insane after final sentence (Art.
79, RPC).
(c) When the convict reaches the age of 70 years the death sentence is
commuted to reclusion perpetua (Art. 83, RPC).
 2. (a) Heinous crimes are those which are punishable by death for being
grievous, odious and hateful offenses and which, by reason of their Inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered
society.
(b) The ten specific heinous crimes are:
1 Treason
2. Qualified Piracy
3 Qualified Bribery
4. Parricide
5. Murder
6. Kidnapping and Serious Illegal Detention
7. Robbery with Homicide 8 Destructive Arson
9. Rape committed by two or more persons, or with a deadly weapon or with
homicide
10. Plunder
Art 47 & 83; death penalty; heinous crimes
1997 No 10:
(a) What do you understand by the so-called heinous crimes?
(b) What are the instances when the death penalty could not be imposed,
although it should otherwise ordinarily be meted out?
Answer:
(a) Heinous crimes are those grievous, odious, and hateful offenses and which
by reason of their inherent or manifest wickedness, viciousness, atrocity, and perversity,
are repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society. They are punishable by reclusion
perpetua or life imprisonment to death. (WHEREAS CLAUSE. RA. 7659)
(b) 1. When the guilty party is below 18 years of age
at the time of the commission of the crime or when the offender is more than 70
years of age.
2. When upon appeal or automatic review of the case by the Supreme Court, the
required majority vote is not obtained for the imposition of the penalty, in which case the
penalty shall be reclusion perpetua.
Art 48; Aberratio ictus
1993 No. 12:
Explain and illustrate the following: 1) aberratio ictus, 2) impossible crime, and
3) subornation of perjury.
Answer;
1) Aberratio ictus - A fired a gun at his father to kill him but hit instead a
stranger.
Art 48; aberratio ictus
 1996 No. 2:
1) At the height of an altercation, Pedrito shot Paulo but missed, hitting Tiburcio
instead, resulting in the death of the latter. Pedrito, invoking the doctrine of aberratio
ictus, claims exemption from criminal liability.
If you were the judge, how would you decide the case?
Answer:
1) If I were the Judge, I will convict Pedrito and find him guilty of the complex
crime of Homicide with Attempted Homicide. The single act of firing at Paulo resulted in
the commission of two felonies, one grave (homicide) and the other less grave (attempted
homicide) thus falling squarely under Art. 48, RPC; hence, the penalty would be for the
more serious crime (homicide} in its maximum period (17 years 4 months and 1 day to
20 years).
Aberratio ictus (mistake in the blow) could not be used as a defense as it is not
an exempting circumstance. Pedrito is liable under the principle of Art. 4, RPC, which
makes a person criminally liable for all the natural and logical consequences of his
felonious act,
Art 48; Aberratio ictus vs error in personae
1994 No. 2;
1) Distinguish aberratio ictus from error in personae.
Answer:
1) Aberratio ictus or mistake in the blow occurs when a felonious act missed
the person against whom it was directed and hit instead somebody who was not the
intended victim. Error in personae, or mistake in identity occurs when the felonious act
was directed at the person intended, but who turned out to be somebody else. Aberratio
ictus brings about at least two (2) felonious consequence, ie. the attempted felony on
the intended victim who was not hit and the felony on the unintended victim who was
hit. A complex crime of the first form under Art. 48, RPC generally result. In error in
personae only one crime is committed,
Art 48; Aberratio ictus, error in personae & praeter intentionem
1989 No. 1:
What do you understand by aberratio ictus; error in personae; and praeter
intentionem? Do they alter the criminal liability of an accused? Explain.
Answer:
Aberation ictus, error in personae and praeter intentionem are the three ways by
which a person may commit a felony although the wrongful act done is different from
that which he intended.
In aberratio ictus, there is a mistake in the blow meaning to say that the offender
intending to cause an injury to one person actually inflicts it on another because of lack of
precision, as far for example when A, intending to kill B, fires his gun at the latter but
because of poor aim or lack of precision, he hits C instead, who suffers serious physical
injury.
In error in personae, there is a mistake in the identity of the victim, as for instance,
when A, intending to kill B, his enemy lay in ambush for the latter to pass along a dark
alley. Because of the darkness, A fired his gun at a person
passing by, thinking him to be B. It turned out that the person shot was C, A's father.
In praeter intentionem, the injurious result is greater than that intended by the
offender, the act exceeds the intent, as for instance, where A, without intent to kill,
strikes B with his fist at the back of the head, causing B to fall down with his head
hitting the asphalt pavement, resulting in the fracture of his head that caused his death.
The presence of these circumstances will alter the criminal liability of the
accused. Thus:
In aberratio ictus, two offenses are actually committed by the offender, that which
he intended to commit and that which he actually committed. But if these two offenses
are both either grave or less grave, since they are produced by one single act, a complex
crime will result.
In the case of error in personae, the offender shall be guilty of the crime actually
committed by him, but the penalty to be imposed shall either be the penalty for the crime
actually committed or that for the crime intended to be committed. Which ever is lower,
but the same will be imposed in its maximum period.
In the case praeter intentionem, the offended, will incur criminal liability for the
felony actually committed by him, but he will be entitled to the mitigating circumstance
of not having intended to commit so grave a wrong as that which he committed.
Art 48; Aberratio ictus, Error in personae & praeter intentionem
1999 No VI
What do you understand by aberratio ictus: error in personae; and praeter
intentionem? Do they alter the criminal liability of an accused? Explain. (4%)
SUGGESTED ANSWER;
Aberratio ictus or mistake in the blow occurs when the offender delivered the
blow at his intended victim but missed, and instead such blow landed on an unintended
victim. The situation generally brings about complex crimes where from a single act, two
or more grave or less grave felonies resulted, namely the attempt against the Intended
victim and the consequence on the unintended victim. As complex crimes, the penalty
for the more serious crime shall be the one imposed and in the maximum period. It Is
only when the resulting felonies are only light that complex crimes do not result and the
penalties are to be imposed distinctly for each resulting crime.
Error in personae or mistake in identity occurs when the offender actually hit the
person to whom the blow was directed but turned out to be different from and not the
victim intended. The criminal liability of the offender is not affected, unless the mistake
in identity resulted to a crime different from what the offender intended to commit, in
which case the lesser penalty between the crime intended and the crime committed shall
be imposed but in the maximum period (Art. 49, RFC).
Praeter intentionem or where the consequence went beyond that intended or
expected. This is a mitigating circumstance (Art. 13. par. 3, RPC) when there is a
notorious disparity between the act or means employed by the offender and the resulting
felony, i,e., the resulting felony could not be reasonably anticipated or foreseen by the of
fender from the act or means employed by him.
Art 48; aberratio ictus; attempted murder with homicide
2000 No XIV
Despite the massive advertising campaign in media against firecrackers and gun-
firing during the New Year's celebrations, Jonas and Jaja bought ten boxes of super lolo
and pla-pla in Bocaue, Bulacan. Before midnight of December 31, 1999, Jonas and Jaja
started their celebration by having a drinking spree at Jona's place by exploding their
high-powered firecrackers in their neighborhood. In the course of their conversation,
Jonas confided to Jaja that he has been keeping a long-time grudge against his neighbor
Jepoy in view of the latter's refusal to lend him some money. While under the
influence of liquor, Jonas started throwing lighted super lolos inside Jepoy's fence to
irritate him and the same exploded inside the latter's yard. Upon knowing that the
throwing of the super lolo was deliberate, Jepoy became furious and sternly warned Jonas
to stop his malicious act or he would get what he wanted. A heated argument between
Jonas and Jepoy ensued but Jaja tried to calm down his friend. At midnight, Jonas
convinced Jaja to lend him his .45 caliber pistol so that he could use it to knock down
Jepoy and to end his arrogance. Jonas thought that after all, explosions were everywhere
and nobody would know who shot Jepoy. After Jaja lent his firearm to Jonas, the latter
again started throwing lighted super lolos and pla-plas at Jepoy's yard in order to provoke
him so that he would come out of his house. When Jepoy came out, Jonas immediately
shot him with Jaja's .45 caliber gun but missed his target. Instead, the bullet hit Jepoy's
five year old son who was following behind him, killing the boy instantaneously,
a) What crime or crimes can Jonas and Jaja be charged with? Explain.
(2%)
b) If you were Jonas' and Jaja's lawyer, what possible defenses would you
set up in favor of your clients? Explain. (2%)
c) If you were the Judge, how would you decide the case? Explain. (1%)
SUGGESTED ANSWER:
a) Jonas and Jaja, can be charged with the complex crime of attempted murder
with homicide because a single act caused a less grave and a grave felony (Art. 48. RPC).
Attempted murder Is a less grave felony, while consummated homicide is a grave
felony: both are punishable by afflictive penalties.
Art 48; Complex crime; incriminatory machination with unlawful arrest
1977 No. III-b
A police officer surreptitiously placed a marijuana cigarette in the breast pocket of
the polo shirt of a student and then arrested the student for illegal possession of marijuana
cigarette. For what crime or crimes will the police officer be liable? Reason fully.
Answer
The police officer will be liable for the complex crime of incriminatory
machination with unlawful arrest. (People v. Alagao, et al., L-20721, April 30, 1966).
The placing of marijuana cigarette in the breast pocket of the polo shirt of the student is
incriminatory machination, which is "planting evidence". The arrest of the student for
illegal possession of the marijuana cigarette is unlawful arrest.
The two acts followed closely each other. Incriminatory machination is the means to
commit unlawful arrest and is, therefore, a complex crime.
Art 48; Complex crimes; applies only to felonies; estafa & bp 22
1987 No. VIII;
Jose purchased roofing materials worth P20,000.00 from PY & Sons Construction
Company owned by Pedro, and paid the latter a check in the said amount. The following
day, Pedro deposited the check, but it was returned dishonored because it was drawn
against a closed account. Notwithstanding written demands, Jose failed to make good
said check. Atty. Saavedra, counsel for Pedro, filed two complaints against Jose with the
Office of the Provincial Fiscal, one for estafa under Article 315 of the Revised Penal
Code and another for violation of Batas Pambansa Blg, 22. Atty. San Pascual, counsel for
Jose, claimed that if his client was at all liable, he could only be liable for violation of
Batas Pambansa Blg. 22 and not for estafa under Article 315 of the Revised Penal Code
because one precludes the other and because Batas Pambansa Blg.
22 is more favorable to the accused as it carries a lighter penalty.-The investigating fiscal,
on his resolution, stated that only one crime was committed, namely, the complex crime
of estafa under Article 315 of the Revised Penal Code and violation of Batas
Pambansa Blg. 22 because the single act of issuing the bouncing check constitutes two
offenses, one under Article 315 of the Revised Penal Code and another under Batas
Pambansa Blg. 22.
If you were the Provincial Fiscal asked to review the matter, how would you
resolve it?
Answer:
The resolution of the investigating fiscal is erroneous. There is no complex crime
of estafa under Article 315 of the Revised Penal Code and the violation of BP 22. A
complex crime refers only to felonies which are punished in the Revised Penal Code.
Batas 22 which punishes the offense of issuing a worthless check is a special law. The
contention of Atty. San Pascual, counsel of Jose that his client should be liable only for
Batas 22 and for estafa under the Revised Penal Code because one precludes the other
and because Batas 22 is more favorable to the accused as it carries a lighter penalty
cannot also be sustained. Batas 22 specifically provides that liability under said act is
without prejudice to any liability for estafa under the Revised Penal Code. The check
issued by Jose in payment of roofing materials from PY and Sons was worthless. Said
bouncing check having been issued in payment of a simultaneous obligation constitutes
estafa under the Revised Penal Code and also the offense punished under Batas 22. There
is no identity of offenses. Damage is not an element of the offense punished in Batas 22
whereas in estafa damage is an element. Estafa is an act mala in se in which requires
intent as an element while the offense punished in Batas 22 is an act mala prohibita where
intent is not an element.
Art 48; Complex crimes; applies only to felonies; illegal possession of
firearms
1975 No. I
A shot and killed D with an unlicensed firearm. The Fiscal filed charges against A
— one for Homicide and another for Illegal Possession of Firearm. The defense counsel
contended that only one charge should have been filed —the complex crime of Homicide
with Illegal Possession of Firearm as the use of the
unlicensed firearm was a necessary means to commit the homicide. Is the contention
meritorious? Why?
Answer
a) The contention of defense counsel is not meritorious, A complex crime
refers only to felonies. (Art. 48, Revised Penal Code, People vs. Araneta, 48 Phil. 650).
The offender will be liable for two crimes. One for homicide, which is a felony punished
in the Revised Penal Code, and another for illegal possession of firearm, which is an
offense punished in a special law.
b) People vs. Alger, 92 Phil 227.
Art 48; Complex crimes; Coup d’etat & rebellion & sedition
2003 No X.
(b) Can there be a complex crime of coup d'etat with rebellion? 2%
(c) Can there be a complex crime of coup d'etat with sedition? 2%
SUGGESTED ANSWER:
(b) Yes, if there was conspiracy between the offender/ offenders
committing the coup d'etat and the offenders committing the rebellion. By conspiracy,
the crime of one would be the crime of the other and vice versa. This is possible
because the offender in coup d'etat may be any person or persons belonging to the
military or the national police or a public officer, whereas rebellion does not so require.
Moreover, the crime of coup d'etat may be committed singly, whereas rebellion
requires a public uprising and taking up arms to overthrow the duly constituted
government. Since the two crimes are essentially different and punished with distinct
penalties, there is no legal impediment to the application of Art. 48 of the Revised Penal
Code.
(c) Yes, coup d'etat can be complexed with sedition because the two crimes are
essentially different and distinctly punished under the Revised Penal Code. Sedition may
not be directed against the Government or non-political in objective, whereas coup d'etat
is always political in objective as it is directed against the Government and led by persons
or public officer holding public office belonging to the military or national police. Art. 48
of the Code may apply under the conditions therein provided.
ALTERNATIVE ANSWER:
The crime of coup d'etat cannot be complexed with the crime of rebellion because
both crimes are directed against the Government or for political purposes, although the
principal offenders are different. The essence may be the same and thus constitute only
one crime. In this situation, the two crimes are not distinct and therefore, may not be
proper to apply Article 48 of the Code.
Art 48; Complex crimes; either must not be slight
1989 No. 3:
Rodolfo, a policeman, was cleaning his service pistol inside his house when it fell
from his hand and fired. The bullet hit a neighbor on the stomach and a second neighbor
on the leg. The injuries sustained by the two neighbors required thirty-five (35)
days and nine (9) days of medical attendance, respectively. The investigating fiscal later
filed an information for frustrated homicide and slight physical injuries through reckless
imprudence against Rodolfo, Is the charge correct? Explain.
 Answer:
The charge is not correct.
One single act of accidental shooting cannot give rise to two felonies. One of
which is intentional and the other negligent. Frustrated homicide presupposes intent to
kill. The facts do not show any intent to kill on the part of Rodolfo. At most, he was
careless, and therefore only negligent.
Two separate crimes of serious physical injuries (against the first neighbor whose
injuries requires 35 days of medical attendance), and slight physical injuries (against the
second neighbor), both through reckless imprudence, were committed by Rodolfo.
Although both of these offenses were the result of one single act, a complex crime is not
committed because it is only when a single act constitutes two or more grave or less
grave felonies that a complex crime may be committed under the first clause of article
48, RPC, Slight physical injuries is not a grave or less grave felony.
Art 48; Complex crimes; either must not be slight: prescription
1980 No. X
"T" was charged in an Information with the complex crime of Reckless
Imprudence resulting in Damage to Property in the sum of P700.00 and Slight Physical
Injuries, both resulting from a single act of imprudence. The incident which gave rise to
the quasi-offense occurred on November 14, 1979. The accused was charged on March
14, 1980.
Should the resulting offenses be considered a complex crime subject to one
penalty?
Answer
The resulting offenses cannot be considered as a complex crime. The slight
physical injuries which resulted from a single act of imprudence which occurred on Nov.
14, 1979, prescribed already when the accused was charged on March 14, 19SO.
Slight physical injuries, being a light felony, prescribes in two months, (Art. 90,
R.P.C.). Another reason is that a complex crime exists if a single act results in two grave
or less grave felonies. If one of the resulting felonies is light, like slight physical injuries,
as stated in the problem there can be no complex crime. (Lontok vs. Gorgonio, L-37396
April 30, 1979)
Art 48; Complex crimes;
nature 1999 No XV
(a) A, actuated by malice and with the use of a fully automatic M-14 sub-
machine gun, shot a group of persons who were seated in a cockpit with one burst of
successive, continuous, automatic fire. Four (4) persons were killed thereby, each
having hit by different bullets coming from the sub-machine gun of
A. Four (4) cases of murder were filed against A.
The trial court ruled that there was only one crime committed by A for the
reason that, since A performed only one act, he having pressed the trigger of his gun
only once, the crime committed was murder. Consequently, the trial judge sentenced A
to just one penalty of reclusion perpetua.
Was the decision of the trial judge correct? Explain. (4%)
(b) What constitutes a complex crime? How many crimes maybe
involved in a complex crime? What is the penalty therefor? (4%)
SUGGESTED ANSWER:
(a) The decision of the trial judge is not correct. When the offender made use
of an automatic firearm, the acts committed are determined by the number of bullets
discharged Inasmuch as the firearm being automatic, the offender need only press the
trigger once and it would fire continually. For each death caused by a distinct and
separate bullet, the accused incurs distinct criminal liability. Hence, it is not the act of
pressing the trigger which should be considered as producing the several felonies, but
the number of bullets which actually produced them.
(b) A complex crime is constituted when a single act caused two or more grave
or less grave felonies or when an offense is committed as a necessary means to commit
another offense (Art. 48, RPC). At least two (2) crimes are involved in a complex
crime; either two or more grave or less grave felonies resulted from a single act, or an
offense is committed as a necessary means for committing another, The penalty for the
more serious crime shall be imposed and in its maximum period. (Art. 48, RPC)
Crimes against persons; homicide, infanticide; parricide;
murder 1999 No XVI
Who may be guilty of the crime of parricide? (3%)
A killed: (1) a woman with whom he lived without benefit of clergy, (2) their
child who was only two days old, (3) their daughter, and (4) their adopted son.
What crime or crimes did A commit? (3%)
SUGGESTED ANSWER:
(a) Any person who kills his father, mother, or child, whether legitimate or
illegitimate, or his ascendants or descendants, or spouse, shall be guilty of parricide.
 (Art. 246, RPC)
(b) A committed the following crimes:
1. Homicide or murder as the case may be, for the killing of his common- law
wife who is not legally considered a "spouse"
Infanticide for the killing of the child as said child is less than three (3) days old. (Art.
255, RPC) However, the p