Special Penal Laws Reviewer, Part 1
INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)
WHEN AN ACCUSED IS SENTENCED TO RECLUSION
PERPETUA, HE IS NOT ENTITLED TO THE
APPLICATION OF THE INDETERMINATE SENTENCE
LAW
Accused-appellant cannot avail of the benefits of the
Indeterminate Sentence Law because Indeterminate
Sentence Law does not apply to persons convicted of
offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, ’98)
APPLICATION OF INDETERMINATE SENTENCE LAW
EXPLAINED
In the case of People vs. Gabres, the Court has had occasion
to so state that —
"Under the Indeterminate Sentence Law, the maximum term
of the penalty shall be 'that which, in view of the attending
circumstances, could be properly imposed' under the
Revised Penal Code, and the minimum shall be within the
range of the penalty next lower to that prescribed' for the
offense. The penalty next lower should be based on the
penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the
commission of the crime. The determination of the minimum
penalty is left by law to the sound discretion of the court and
it can be anywhere within the range of the penalty next
lower without any reference to the periods into which it
might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum term of
the indeterminate sentence.
"The fact that the amounts involved in the instant case
exceed P22,000.00 should not be considered in the initial
determination of the indeterminate penalty; instead, the
matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the
full indeterminate sentence. This interpretation of the law
accords with the rule that penal laws should be construed in
favor of the accused. Since the penalty prescribed by law for
the estafa charge against accused-appellant is prision
correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional
minimum to medium. Thus, the minimum term of the
indeterminate sentence should be anywhere within six (6)
months and one (1) day to four (4) years and two (2)
months . . ."
(People v. Saley; GR 121179, July 2, ’98)
INDETERMINATE SENTENCE LAW; APPLICABLE
ALSO IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence
Law is applicable to the case now before us. Apparently it
does, since drug offenses are not included in nor has
appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does
not involve reclusion perpetua or death, provided, of course,
that the penalty as ultimately resolved will exceed one year
of imprisonment. The more important aspect, however, is
how the indeterminate sentence shall be ascertained. It is
true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised
Penal Code, states that "if the offense is punished by any
other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term
prescribed by the same" We hold that this quoted portion of
the section indubitably refers to an offense under a special
law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code, as discussed in
the preceding illustrations, such that it may be said that the
"offense is punished" under that law. There can be no
sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary
because of the nature of the former type of penalties under
said laws which were not included or contemplated in the
scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next
lower to that prescribed by the Code for the offense," as is
the rule for felonies therein. In the illustrative examples of
penalties in special laws hereinbefore provided, this rule
applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No.
4103 as earlier noted, this holding is but an application and
is justified under the rule of contemporanea expositio.
Republic Act No. 6425, as now amended by Republic Act
No. 7659, has unqualifiedly adopted the penalties under the
Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of
determining the maximum of said sentence, we have applied
the provisions of the amended Section 20 of said law to
arrive at prision correccional and Article 64 of the Code to
impose the same in the medium period. Such offense,
although provided for in a special law, is now in the effect
punished by and under the Revised Penal Code.
(People v Martin Simon)
WHEN THE BENEFITS OF INDETERMINATE
SENTENCE LAW IS NOT APPLICABLE;
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or
proposal to commit treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116),
rebellion (Art. 134), sedition (Art. 139), or espionage
(Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who
evaded sentence.
g. Those granted conditional pardon and who violated the
terms of the same (Art. 159). (People v. Corral, 74
Phil. 359).
h. Those whose maximum period of imprisonment does not
exceed one year.
i. Those who are already serving final judgment upon the
approval of the Indeterminate Sentence Law.
j. those offenses or crimes not punishable by imprisonment
such as distierro and suspension.
RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF
THE INDETERMINATE SENTENCE
Recidivists are entitled to an indeterminate sentence. (People
v. Jaramilla, L-28547, Feb. 22, 1974). Offender is not
disqualified to avail of the benefits of the law even if the
crime is committed while he is on parole. (People v.
Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De
Guzman)
NATURE OF PENALTY OF RECLUSION PERPETUA
In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme
Court declared that despite the amendment of Article 27 of
the Revised Penal Code, reclusion perpetua remained an
indivisible penalty. Hence, the penalty does not have any
minimum, medium and maximum period. Hence, there is no
such penalty of medium period of reclusion perpetua.
(People versus Tiburcio Baculi, 246 SCRA)
IMPOSITION OF WRONG PENALTY: IT DOES NOT
OBTAIN FINALITY
Suppose the court imposed a penalty of 25 years of reclusion
perpetua for the crime of rape and the accused did not
appeal, does the judgment become final and executory? No,
such judgment is null and void because it imposed a non-
existent penalty. Hence, the court may nevertheless correct
the penalty imposed on the accused, that is, reclusion
perpetua, it is merely performing a duty inherent in the
court. (People versus Nigel Gatward, GR No. 119772-73,
February 7, 1997)
DIFFERENCE BETWEEN RECLUSION PERPETUA
AND LIFE IMPRISONMENT
The penalty of reclusion perpetua is different from life
imprisonment. The former carries with it accessory
penalties, whereas life imprisonment does not carry with it
any accessory penalties; reclusion perpetua is that provided
for under the Revised Penal Code and under crimes defined
by special laws using the nomenclature under the Revised
Penal Code ; life imprisonment is that provided for
violations of the Revised Penal Code. Reclusion Perpetua
may be reduced by one or two degrees while life
imprisonment cannot be so reduced. (People -vs- Rolnando
Madriaga, GR No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE
IMPRISONMENT OF RECLUSION PERPETUA
Reclusion perpetua has accessory penalties while life
imprisonment does not. However, life imprisonment does
not have a fixed duration or extent while reclusion perpetua
has a duration of from twenty years and one day to forty
years. life imprisonment may span the natural life of the
convict. (People -versus- Rallagan, 247 SCRA 537)
RECLUSION PERPETUA AND LIFE IMPRISONMENT
CANNOT BE INTER-CHANGE WHEN IMPOSED AS
PENALTY
Where the law violated provides for the penalty of reclusion
perpetua, impose the said penalty and not the penalty of life
imprisonment. Where the law imposes the penalty of life
imprisonment, do not impose reclusion perpetua. (People
-vs- Rolando Madriaga, 211 SCRA 698)
THE REASON WHY RECLUSION PERPETUA HAS A
RANGE DESPITE THE SAME BEING INDIVISIBLE
There we also said that "if reclusion perpetua was
reclassified as a divisible penalty, then Article 63 of the
Revised Penal Code would lose its reason and basis for
existence." The imputed duration of thirty (30) years of
reclusion perpetua, therefore, only serves as the basis for
determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties. (People -vs- Aspolinar Raganas, et al., GR No.
101188, October 12, 1999)
RARE CASE OF APPLICATION OF RPC IN A
SUPPLETORY CHARACTER DESPITE THE PENALTY
BEING LIFE IMPRISONMENT
Where the accused committed qualified violation of PD 704
(fishing with the use of explosives), the imposable penalty
for which is life imprisonment to death. If the accused is
entitled to a mitigating circumstance of voluntary surrender,
the court should impose life imprisonment applying, in a
suppletory character, Articles 13 and 63 of the Revised
Penal Code. (People -vs- Priscilla Balasa, GR No. 106357,
September 3, 1998)
ACCUSED WHO IS SENTENCED TO RECLUSION
PERPETUA IS STILL ENTITLED TO EITHER FULL OR
¾ OF HIS PREVENTIVE IMPRISONMENT
If, during the trial, the accused was detained but, after trial,
he was meted the penalty of reclusion perpetua, he is still
entitled to the full credit of his preventive imprisonment
because Article 29 of the Revised Penal Code does not
distinguish between divisible and indivisible penalties.
(People -vs- Rolando Corpuz, 231 SCRA 480)

QUALIFIED THEFT
QUALIFIED THEFT IS PENALIZED BY RECLUSION
PERPETUA IF AMOUNT INVOLVED IS OVER
P22,000.00
Under Article 309 of the Revised Penal Code, the maximum
of the penalty for qualified theft is prision mayor to
reclusion temporal. However, under Article 310 of the
Revised Penal Code, the penalty for the crime shall be two
(2) degrees higher than the specified in Article 309 of the
Code. Under Article 74 of the Revised Penal Code, the
penalty higher by one degree than another given penalty, and
if such higher penalty is death, the penalty shall be reclusion
perpetua of forty (40) years with the accessory penalties of
death under Article 40 of the Revised Penal Code. The
accused shall not be entitled to pardon before the lapse of
forty (40) years. (People -vs- Fernando Canales, 297 SCRA
667)
THE PROBATION LAW (P.D. 968) AND ITS
AMENDMENTS
PROBATION, ITS MEANING
A disposition under which a defendant, after conviction and
sentence, is subject to conditions imposed by the Court and
under the supervision of a probation officer.
PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender
by providing him with personalized
community based treatment;
b. to provide an opportunity for his reformation and
reintegration into the community;
c. to prevent the commission of offenses.
SUBMISSION OF PETITION AND TIME OF FILING
OFPETITION
The petition or application for probation must be filed
directly with the Court which sentenced the accused within
15 days from date of promulgation of the decision
convicting the accused, or in short within the period to
appeal otherwise the judgment shall become final and the
accused shall be deemed to have waived his right to
probation.
EFFECT OF FILING OF PETITION FOR PROBATION
Upon filing of petition for probation, the court shall suspend
the execution of sentence.
Likewise, the filing of a petition for probation shall be
deemed a waiver of the right to appeal and in case an appeal
is made immediately after conviction, a filing of petition for
probation still within the period to appeal, that is within
fifteen days from date of promulgation shall be deemed a
withdrawal of the appeal.
PENDING RESOLUTION OF PETITION, WHAT ARE
THE PRIVILEDGE THAT MAYBE GIVEN TO THE
ACCUSED-PETITIONER?
1. if the accused, prior to the promulgation of decision of
conviction is out on bail, he may be allowed on
temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed
temporary liberty, if he cannot post a bond, on
recognizance of a responsible member of a community who
shall guarantee his appearance whenever
required by the court.
IN CASE THE APPLICANT FOR PROBATION CANNOT
BE PRODUCED BY THE CUSTODIAN ON
RECOGNIZANCE, WHAT HAPPENS?
The custodian must be asked to explain why he should not
be cited for contempt for failing to produce the probationer
when required by the court; Summary hearing will be held
for indirect contempt, and if custodian cannot produce the
petitioner, nor to explain his failure to produce the petitioner,
the custodian on recognizance shall be held in contempt of
court.
WHAT IS A POST SENTENCE INVESTIGATION
REPORT?
It is a report of the Parole and Probation Officer after
conducting post sentence investigation and interviews
containing the circumstances surrounding the offense for
which the petitioner was convicted. The findings should be
drawn from the court records, police records, statement of
defendants, the aggrieved party and other persons who may
know the petitioner and all other matters material to the
petition.
It will also include the psychological and social information
regarding the probationer; evaluation of the petitioner;
suitability for probation; his potential for rehabilitation; and
may include the program for supervision and suggested
terms of conditions of probation and a recommendation
either to deny or grant the probation.
WHAT ARE THE MANDATORY CONDITIONS OF
PROBATION?
a. To present himself to the probation officer concerned for
supervision within 72 hours from receipt of said
order and
b. to report to the probation officer at least once a month
during the period of probation.
WHAT ARE THE OTHER CONDITIONS OF
PROBATION?
a. cooperate with a program of supervision;
b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge
said employment without prior written
approval of the probation officer;
d. comply with a program of payment of civil liability to the
victim of his heirs;
e. undergo medical, psychological or psychiatric
examination and treatment and/or enter and remain in a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;
g. attend or reside in a facility established for instruction or
recreation of persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker
to visit his home and place of work;
k. reside at premises approved by the court and not to
change his residence w/o prior written approval; and
l. satisfy any other condition related to the rehabilitation of
the probationer and not unduly restrictive of his
liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )
RULES ON OUTSIDE TRAVEL OF PROBATIONER
A probationer who desires to travel outside the jurisdiction
of the city or provincial probation officer for not more than
30 days, the permission of the parole and probation officer
must be sought. If for more than thirty (30) days, aside from
the permission of the parole and probation officer, the
permission of the court must likewise be sought.
EFFECT OF APPEAL BY THE ACCUSED OF HIS
CONVICTION
a. If the accused appeals his conviction for the purpose of
totally reversing his conviction, he is deemed to have waived
his right to probation.
b. The rule that if the accused appeals his conviction only
with respect to the penalty, as he believes the penalty is
excessive or wrong, as the penalty is probationable, and the
appellate court sustains the accused may still apply for
probation, has already been abandoned. An appeal therefore,
irrespective of its purpose, to overturn the entire decision or
only with respect to penalty is a waiver to probation, has
already been abandoned. An appeal therefore, irrespective of
its purpose, to overturn the entire decision or only with
respect to penalty is a waiver to probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
The investigation report and the supervision and history of a
probationer obtained under PD No. 968 and under these
rules shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the probation
administration or the court concerned the court which
granted the probation or where the probation was transferred
may allow the probationer to inspect the aforesaid
documents or his lawyer, whenever such disclosure may be
desirable or helpful to them.
Any government office may ask for the records of probation
from the court for its official use or from the administrator.
Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL
NATURE OF PROBATION RECORDS. The penalty of
imprisonment ranging from six months and one day to six
years and a fine ranging from hundred to six thousand pesos
shall be imposed upon any person who violates Section 17
hereof.
MODIFICATION OF CONDITION OR PERIOD OF
PROBATION
The court, on motion, or motu propio may modify the
conditions of probation or modify the period of probation as
circumstances may warrant.
WHO ARE DISQUALIFIED TO UNDERGO
PROBATION
1. Those sentenced to serve a maximum term of
imprisonment of more than six years.
2. Those convicted of any offense against the security of the
state;
3. Those who have been previously convicted by final
judgment of an offense punished by imprisonment of not
less than one moth and one day and/or a fine of not less than
P200.00;
4. Those who have been once on probation under the
provisions of this decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.
PERIOD OF PROBATION
1. If the probationer has been sentenced to an imprisonment
of not more than one year, the probation shall not exceed
two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not be less
than the period of subsidiary imprisonment nor more than
twice of the subsidiary imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:
"Sec. 4. Grant of Probation. - Subject to the provisions of
this Decree, the trial court may, after it shall have convicted
and sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of
conviction.
"Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
"An order granting or denying probation shall not be
appealable."
Thus, a person who was sentenced to destierro cannot apply
for probation. Reason: it does not involved imprisonment or
fine. (PD 1990)
JURISPRUDENCE
UNDERLYING PHILOSOPHY OF PROBATION
The underlying philosophy of probation is indeed one of
liberality towards the accused. It is not served by a harsh and
stringent interpretation of the statutory provisions. Probation
is a major step taken by our Government towards the
deterrence and minimizing of crime and the humanization of
criminal justice. In line with the public policy behind
probation, the right of appeal should not be irrevocably lost
from the moment a convicted accused files an application for
probation. Appeal and probation spring from the same policy
considerations of justice, humanity, and compassion. (Yusi v
Morales, 4/28/83)
PROBATION IS NOT A RIGHT BUT A PRIVILEGE
Probation is a mere privilege and its grant rests solely upon
the discretion of the court. As aptly noted in U.S. vs.
Durken, this discretion is to be exercised primarily for the
benefit of organized society and only incidentally for the
benefit of the accused. (Tolentino v. Alconcel, G.R. No.
63400, 3/18/83). Even if a convicted person is not included
in the list of offenders disqualified from the benefits of a
decree, the grant of probation is nevertheless not automatic
or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA
526)therefore a petition for probation may be denied by the
Court.
MAIN CRITERION FOR DETERMINING WHO MAY BE
GRANTED PROBATION.
The main criterion laid down by the Probation law in
determining who may be granted probation is based on the
penalty imposed and not on the nature of the crime. By the
relative lightness of the offense, as measured by the penalty
imposed, more than by its nature, as the law so ordains the
offender is not such a serious menace to society as to be
wrested away therefrom, as the more dangerous type of
criminals should be. Hence, in the case at bar, the first
reason given by the respondent judge for his denial of the
petition for probation that, "probation will depreciate the
seriousness of the offense committed" would thus be writing
into the law a new ground for disqualifying a first-offender
from the benefits of probation. (Santos v. Cruz-Pano,
1/17/83)
TIMELINESS OF FILING APPLICATION FOR
PROBATION
The accused must file a Petition for Probation within the
period for appeal. If the decision of conviction has become
final and executory, the accused is barred from filing a
Petition for Probation (Pablo Francisco v. C.A., 4/6/95).
ORDER DENYING PROBATION NOT APPEALABLE,
REMEDY CERTIORARI
Although an order denying probation is not appealable, the
accused may file a motion for Certiorari from said order
(Heirs of Francisco Abueg v. C.A., 219 SCRA 78)
EFFECT OF FILING PETITION FOR PROBATION,
WAIVER OF RIGHT TO APPEAL AND FINALITY OF
JUDGEMENT
A judgment of conviction becomes final when the accused
files a petition for probation. However, the judgement is not
executory until the petition for probation is resolved. The
filing of the petition for probation is a waiver by the accused
of his right to appeal the judgement of conviction (Heirs of
Francisco Abueg v. C.A., supra).
MULTIPLE CONVICTIONS IN SEVERAL CASES
PROBATIONABLE IF PENALTY FOR EACH
CONVICTION IS PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties
imposed but to take each penalty, separately and distinctly
with the others. Consequently, even if petitioner was
supposed to have served his prison term of one (1) year and
one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve
the prison term for "each crime committed on each date of
each case, as alleged in the information(s)," and in each of
the four (4) informations, he was charged with having
defamed the four (4) private complainants on four (4)
different, separate days, he was still eligible for probation, as
each prison term imposed on petitioner was probationable.
(Francisco v. CA; 4/16/95)
REASON FOR FIXING CUT OFF POINT AT A
MAXIMUM OF SIX YEARS IMPRISONMENT FOR
PROBATION.
Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that
those sentenced to higher penalties pose too great a risk to
society, not just because of their demonstrated capability for
serious wrongdoing but because of the gravity and serious
consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who
have been convicted of grave felonies as defined in Art. 9 in
relation to Art. 25 of The Revised Penal Code, and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is
principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to
a maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and thus
may avail of probation
VIOLATION OF RA 6425, A VALID CAUSE FOR
DISMISSAL IN SERVICE IN THE GOVERNMENT
DESPITE PROBATION
Drug-pushing, as a crime, has been variously condemned as
"an especially vicious crime," "one of the most pernicious
evils that has ever crept into our society." For those who
become addicted to it "not only slide into the ranks of the
living dead, what is worse, they become a grave menace to
the safety of law-abiding members of society," while
"peddlers of drugs are actually agents of destruction. The
deserve no less than the maximum penalty [of death]."
There is no doubt that drug-pushing is a crime which
involves moral turpitude and implies "every thing which is
done contrary to justice, honesty, modesty or good morals"
including "acts of baseness, vileness, or depravity in the
private and social duties which a man owes to his fellowmen
or to society in general, contrary to the accepted rule of right
and duty between man and man." Indeed nothing is more
depraved than for anyone to be a merchant of death by
selling prohibited drugs, an act which, as this Court said in
one case,"often breeds other crimes. It is not what we might
call a 'contained' crime whose consequences are limited to
that crime alone, like swindling and bigamy. Court and
police records show that a significant number of murders,
rapes, and similar offenses have been committed by persons
under the influence of dangerous drugs, or while they are
'high.' While spreading such drugs, the drug-pusher is also
abetting, through his agreed and irresponsibility, the
commission of other crimes." The image of the judiciary is
tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law (P.D. No. 968, as
amended) is to save valuable human material, it must not be
forgotten that unlike pardon probation does not obliterate the
crime of which the person under probation has been
convicted. The reform and rehabilitation of the probationer
cannot justify his retention in the government service. He
may seek to reenter government service, but only after he
has shown that he is fit to serve once again. It cannot be
repeated too often that a public office is a public trust, which
demands of those in its service the highest degree of
morality. (OCA v. Librado 260 SCRA 624, 8/22/96)
PETITIONER MAY STILL EXHORT OFFENDER TO
PERFORM CERTAIN ACTS DESPITE DISCHARGE
FROM PROBATION IN CERTAIN CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation
without any infraction of the attendant conditions therefor
and the various certifications attesting to his righteous,
peaceful and civic-oriented character prove that he has taken
decisive steps to purge himself of his deficiency in moral
character and atone for the unfortunate death of Raul I.
Camaligan. The Court is prepared to give him the benefit of
the doubt, taking judicial notice of the general tendency of
the youth to be rash, temerarious and uncalculating. Let it be
stressed to herein petitioner that the lawyer's oath is not a
mere formality recited for a few minutes in the glare of
flashing cameras and before the presence of select witnesses.
Petitioner is exhorted to conduct himself beyond reproach at
all times and to live strictly according to his oath and the
Code of Professional Responsibility. And, to paraphrase Mr.
Justice Padilla's comment in the sister case of Re: Petition of
Al Argosino To Take The Lawyer's Oath, Bar Matter No.
712, March 19, 1997, "[t]he Court sincerely hopes that" Mr.
Cuevas, Jr., "will continue with the assistance he has been
giving to his community. As a lawyer he will now be in a
better position to render legal and other services to the more
unfortunate members of society". (In Re: Cuevas, Jr.;
1/27/98)
EXPIRATION OF PERIOD OF PROBATION IS NOT
TERMINATION, ORDER OF COURT REQUIRED
The mere expiration of the period for probation does not,
ipso facto, terminate the probation. Probation is not co-
terminus with its period, there must be an order from the
Court of final discharge, terminating the probation. If the
accused violates the condition of the probation before the
issuance of said order, the probation may be revoked by the
Court (Manuel Bala v. Martinez, 181 SCRA 459).
ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing
Law) is “the act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or
in any manner deal in any article, item, object or anything of
value which he knows or should be known to him, or to have
been derived from the proceeds of the crime of robbery or
theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).
BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING
LAW
Presidential Decree No. 1612 or commonly known as the
Anti-Fencing Law of 1979 was enacted under the authority
of therein President Ferdinand Marcos. The law took effect
on March 2, 1979. The Implementing Rules and Regulations
of the Anti-Fencing Law were subsequently formulated and
it took effect on June 15, 1979.
THE PURPOSE OF ENACTING PD 1612
The Anti-Fencing Law was made to curtail and put an end to
the rampant robbery of government and private properties.
With the existence of "ready buyers", the "business" of
robbing and stealing have become profitable. Hence, a law
was enacted to also punish those who buy stolen properties.
For if there are no buyers then the malefactors could not
profit from their wrong doings.
WHAT IS FENCING LAW AND HOW IT CAN BE
COMMITTED
"Fencing" is the act of any person who, with intent to gain
for himself or for another, shall buy receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or
in any other manner deal in any article, item, object or
anything of value which he knows, or should be known to
him, to have been derived from the proceeds of the crime of
robbery or theft. A "Fence" includes any person, firm,
association corporation or partnership or other organization
who/ which commits the act of fencing.
WHO ARE LIABLE FOR THE CRIME OF FENCING;
AND ITS PENALTIES:
The person liable is the one buying, keeping, concealing and
selling the stolen items. If the fence is a corporation,
partnership, association or firm, the one liable is the
president or the manager or the officer who knows or should
have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of
the crime of fencing. Their penalty depends on the value of
the goods or items stolen or bought:
a. The penalty of prision mayor, if the value of the property
involved is more than 12,000 pesos but not exceeding
22,000 pesos; if the value of such property exceeds the latter
sum, the penalty provided in this paragraph shall be imposed
in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed
shall not exceed twenty years. In such cases, the penalty
shall be termed reclusion temporal and the accessory penalty
pertaining thereto provided in the Revised Penal Code shall
also be imposed.
b. The penalty of prision correccional in its medium and
maximum periods, if the value of the property robbed or
stolen is more than 6,000 pesos but not exceeding 12, 000
pesos;
c. The penalty of prision correccional in its minimum and
medium periods, if the value of the property involved is
more than 200 pesos but not exceeding 6,000 pesos;
d. The penalty of arresto mayor in its medium period to
prision correccional in its minimum period, if the value of
the property involved is over 50 but not exceeding 200
pesos;
e. The penalty of arresto mayor in its medium period if such
value is over five (5) pesos but not exceeding 50 pesos.
f. The penalty of arresto mayor in its minimum period if
such value does not exceed 5 pesos.
RULES REGARDING BUY AND SELL OF GOODS
PARTICULARLY SECOND HAND GOODS
The law requires the establishment engaged in the buy and
sell of goods to obtain a clearance or permit to sell "used
second hand items", to give effect to the purpose of the law
in putting an end to buying and selling stolen items. Failure
of which makes the owner or manager liable as a fence.
The Implementing Rules provides for the guidelines of
issuance of clearances or permits to sell used or secondhand
items. It provided for the definition of the following terms:
1. "Used secondhand article" shall refer to any goods, article,
items, object or anything of value obtained from an
unlicensed dealer or supplier, regardless of whether the same
has actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons,
partnership, firm, corporation, association or any other entity
or establishment not licensed by the government to engage
in the business of dealing in or of supplying the articles
defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to
include any individual dealing in the buying and selling used
secondhand articles, as defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one
purchases used secondhand articles for the purpose of resale
to third persons;
5. "Station Commander" shall refer to the Station
Commander of the Integrated National Police within the
territorial limits of the town or city district where the store,
establishment or entity dealing in the buying and selling of
used secondhand articles is located.
PROCEDURE FOR SECURING PERMIT/CLEARANCE
The Implementing Rules provided for the method of
obtaining clearance or permit. No fee will be charged for the
issuance of the clearance/permit. Failure to secure
clearance/permit shall be punished as a fence, that may
result to the cancellation of business license.
1. The Station Commander shall require the owner of a store
or the President, manager or responsible officer in having in
stock used secondhand articles, to submit an initial affidavit
within thirty (30) days from receipt of notice for the purpose
thereof and subsequent affidavits once every fifteen (15)
days within five (5) days after the period covered, which
shall contain:
a. complete inventory of such articles including the names
and addresses from whom the articles were acquired.
b. Full list of articles to be sold or offered for sale including
the time and place of sale
c. Place where the articles are presently deposited.
The Station Commander may, require the submission of an
affidavit accompanied by other documents showing proof of
legitimacy of acquisition.
2. Those who wish to secure the permit/clearance, shall file
an application with the Station Commander concerned,
which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the
name and address of the unlicensed dealer or supplier from
whom such article was acquired.
c. Include the receipt or document showing proof of
legitimacy of acquisition.
3. The Station Commander shall examine the documents
attached to the application and may require the presentation
of other additional documents, if necessary, to show
satisfactory proof of the legitimacy of acquisition of the
article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of
legitimacy of acquisition, he shall cause the publication of
the notice, at the expense of the one seeking
clearance/permit, in a newspaper of general circulation for
two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they
were acquired
> that such articles are to be sold or offered for sale to the
public at the address of the store, establishment or other
entity seeking the clearance/permit.
4. If there are no newspapers in general circulation, the party
seeking the clearance/permit shall, post a notice daily for
one week on the bulletin board of the municipal building of
the town where the store, firm, establishment or entity is
located or, in the case of an individual, where the articles in
his possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of
publication or of the notice, no claim is made to any of the
articles enumerated in the notice, the Station Commander
shall issue the clearance or permit sought.
6. If before expiration of the same period for the publication
of the notice or its posting, it shall appear that any of the
articles in question is stolen property, the Station
Commander shall hold the article in restraint as evidence in
any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the
circumstances of each case permit. In any case it shall be the
duty of the Station Commander concerned to advise/notify
the Commission on Audit of the case and comply with such
procedure as may be proper under applicable existing laws,
rules and regulations.
7. The Station Commander shall, within seventy-two (72)
hours from receipt of the application, act thereon by either
issuing the clearance/permit requested or denying the same.
Denial of an application shall be in writing and shall state in
brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station
Commander may appeal the same within 10 days to the
proper INP (now PNP) District Superintendent and further to
the INP (now PNP) Director. The decision of the Director
can still be appealed top the Director-General, within 10
days, whose decision may be appealed with the Minister
(now Secretary) of National Defense, within 15 days, which
decision is final.
PRESUMPTION
Mere possession of any good, article, item, object or
anything fo value which has been the subject of robbery or
thievery, shall be prima facie evidence of fencing.
ELEMENTS
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft, buys, receives,
possess, keeps, acquires, conceals, sells, or disposes, or buys
and sells, or in any manner deals in any article, item, object
or anything of value, which has been derived from the
proceeds of the said crime;
3. The accused knows or should have known that the said
article, item, or object or anything of value has been derived
from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for
himself or for another. (Dizon-Pamintuan vs People, GR
111426, 11 July 94)
As regards the first element, the crime of robbery or theft
should have been committed before crime of fencing can be
committed. The person committing the crime of robbery or
theft, may or may not be the same person committing the
crime of fencing. As in the case of D.M. Consunji, Inc., vs.
Esguerra, quantities of phelonic plywood were stolen and the
Court held that qualified theft had been committed. In
People vs. Lucero there was first a snatching incident, where
the bag of Mrs. Maripaz Bernard Ramolete was snatch in the
public market of Carbon, Cebu City, where she lost a
Chinese Gold Necklace and pendant worth some P4,000.00
to snatchers Manuel Elardo and Zacarias Pateras. The
snatchers sold the items to Manuel Lucero. Consequently,
Lucero was charged with violation of the Anti-Fencing Law.
However, in this case, no eyewitness pointed to Lucero as
the perpetrator and the evidence of the prosecution was not
strong enough to convict him.
The second element speaks of the overt act of keeping,
buying, receiving, possessing, acquiring, concealing, selling
or disposing or in any manner deals with stolen items. It is
thus illustrated in the case of Lim vs. Court of Appeals,
where the accused, Juanito Lim stored and kept in his
bodega and subsequently bought or disposed of the nine (9)
pieces of stolen tires with rims owned by Loui Anton Bond.
The accused known or should have known that the goods
were stolen. As pointed out in the case of People vs.
Adriatico, the court in convicting Norma Adriatico, stated
that it was impossible for her to know that the jewelry were
stolen because of the fact that Crisilita was willing to part
with a considerable number of jewelry at measly sum, and
this should have apprised Norma of the possibility that they
were stolen goods. The approximate total value of the
jewelry were held to be at P20,000.00, and Norma having
bought it from Crisilita for only P2,700. The court also
considered the fact that Norma engage in the business of
buying and selling gold and silver, which business is very
well exposed to the practice of fencing. This requires more
than ordinary case and caution in dealing with customers. As
noted by the trial court:
". . . the Court is not inclined to accept the accused's theory
of buying in good faith and disclaimer of ever seeing, much
more, buying the other articles. Human experience belies her
allegations as no businessman or woman at that, would let
go of such opportunities for a clean profit at the expense of
innocent owners.’’
The Court in convicting Ernesto Dunlao Sr., noted that the
stolen articles composed of farrowing crates and G.I. pipes
were found displayed on petitioner's shelves inside his
compound. (Dunalao, Sr. v. CA, 08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the
third element was not proven. This case involves the selling
of alleged stolen Kenwood Stereo Unit in the store Danvir
Trading, owned by the spouses Muere. The store is engaged
in buying and selling of second hand merchandise located at
Pasay Road, Makati. The said stereo was bought from
Wynn's Audio, an existing establishment. The court held that
there is no proof that the spouses Muere, had knowledge of
the fact that the stereo was stolen. The spouses Muere
purchased the stereo from a known merchant and the unit is
displayed for sale in their store. These actions are not
indicative of a conduct of a guilty person.
On the same vein, the third element did not exist in the case
of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96)
where the subject of the court action are the alleged stolen
phelonic plywood owned by D.M. Consunji, Inc., later found
to be in the premises of MC Industrial Sales and Seato
trading Company, owned respectively by Eduardo Ching
and the spouses Sy. Respondents presented sales receipts
covering their purchase of the items from Paramount
Industrial, which is a known hardware store in Caloocan,
thus they had no reason to suspect that the said items were
products of theft.
The last element is that there is intent to gain for himself or
for another. However, intent to gain need not be proven in
crimes punishable by a special law such as the Anti-Fencing
Law. The crimes punishable by special laws are called "acts
mala prohibita". The rule on the subject is that in acts mala
prohibita, the only inquiry is that, has the law been violated?
(in Gatdner v. People, as cited in US v. Go Chico, 14 Phils.
134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable
by special statute like the Anti-Fencing Law. It is the act
itself which constitutes the offense and not the motive or
intent. Intent to gain is a mental state, the existence if which
is demonstrated by the overt acts of the person. The mental
state is presumed from the commission of an unlawful act.
(Dunlao v. CA) again, intent to gain is a mental state, the
existence of which is demonstrated by the overt acts of
person, as the keeping of stolen items for subsequent selling.
A FENCE MAY BE PROSECUTED UNDER THE RPC
OR PD 1612
The state may thus choose to prosecute him either under the
RPC or PD NO. 1612 although the preference for the latter
would seem inevitable considering that fencing is a malum
prohibitum, and PD No. 1612 creates a presumption of
fencing and prescribes a higher penalty based on the value of
the property. (supra)
MERE POSSESSION OF STOLEN ARTICLE PRIMA
FACIE EVIDENCE OF FENCING
Since Sec. 5 of PD NO. 1612 expressly provides that “mere
possession of any good, article, item, object or anything of
value which has been the subject of robbery or thievery shall
be prima facie evidence of fencing” it follows that the
accused is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery
or theft. The presumption does not offend the presumption
of innocence enshrined in the fundamental law.
DISTINCTION BETWEEN FENCING AND ROBBERY
PL
The law on fencing does not require the accused to have
participation in the criminal design to commit or to have
been in any wise involved in the commission of the crime of
robbery or theft. Neither is the crime of robbery or theft
made to depend on an act of fencing in order that it can be
consummated. (People v De Guzman, GR 77368).

Robbery is the taking of personal property belonging to
another, with intent to gain, by means of violence against or
intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with
intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any other manner deal in any article, item,
object or anything of value which he knows, or shall be
known to him, to have been derived from the proceeds of the
crime of robbery or theft.
FENCING AS A CRIME INVOLVING MORAL
TURPITUDE.
In violation of the Anti-Fencing Law, actual knowledge by
the "fence" of the fact that property received is stolen
displays the same degree of malicious deprivation of one's
rightful property as that which animated the robbery or theft
which by their very nature are crimes of moral turpitude.
(Dela Torre v. COMELEC 07/05/96)
Moral turpitude can be derived from the third element -
accused knows or should have known that the items were
stolen. Participation of each felon, one being the robber or
the thief or the actual perpetrators, and the other as the fence,
differs in point in time and degree but both invaded one's
peaceful dominion for gain. (Supra) Both crimes negated the
principle of each person's duty to his fellowmen not to
appropriate things that they do not own or return something
acquired by mistake or with malice. This signifies moral
turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from
running the position of Mayor in Cavinti, Laguna in the last
May 8, 1995 elections because of the fact of the
disqualification under Sec. 40 of the Local Government
Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement
for an offense involving moral turpitude..."
Dela Torre was disqualified because of his prior conviction
of the crime of fencing wherein he admitted all the elements
of the crime of fencing.
ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR
ANTI-FENCING
PD 1612, Section 2 thereof requires that the offender buys or
otherwise acquires and then sells or disposes of any object of
value which he knows or should he known to him to have
been derived from the proceeds of the crime of robbery or
theft. (Caoili v CA; GR 128369, 12/22/97)
PROOF OF PURCHASE WHEN GOODS ARE IN
POSSESSION OF OFFENDER NOT NECESSARY IN
ANTI-FENCING
The law does not require proof of purchase of the stolen
articles by petitioner, as mere possession thereof is enough
to give rise to a presumption of fencing.
It was incumbent upon petitioner to overthrow this
presumption by sufficient and convincing evidence. (Caoili
v. CA; GR 128369, 12/22/97)
BATAS PAMBANSA BLG. 22
BOUNCING CHECKS LAW
ACTS PUNISHABLE:
a. any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue
that he does not have sufficient funds in or credit with the
drawee bank, for the payment of such check in full upon its
presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds, or credit, or would
have been dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop
payment.
b. Any person who having sufficient funds in or credit with
the drawee bank when he makes or draws and issues a
check, shall fail to keep sufficient funds or to maintain a
credit to cover the full amount of the check if presented
within a period of ninety days from date appearing thereon,
for which reason, it is dishonored by the drawee bank.
HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
To establish her guilt, it is indispensable that the checks she
issued for which she was subsequently charged, be offered
in evidence because the gravamen of the offense charged is
the act of knowingly issuing a check with insufficient funds.
Clearly, it was error to convict complainant on the basis of
her letter alone. Nevertheless, despite this incorrect
interpretation of a rule on evidence, we do not find the same
as sufficiently constitutive of the charges of gross ignorance
of the law and of knowingly rendering an unjust decision.
Rather, it is at most an error in judgment, for which, as a
general rule, he cannot be held administratively liable. In
this regard, we reiterate the prevailing rule in our jurisdiction
as established by current jurisprudence. (Gutierrez v
Pallatao; 8/8/98)
NOTICE, AN INDISPENSABLE REQUISITE FOR
PROSECUTION
Section 3 of BP 22 requires that the holder of the check or
the drawee bank, must notify the drawer of the check that
the same was dishonored, if the same is presented within
ninety days from date of issuance, and upon notice the
drawer has five days within which to make arrangements for
the payment of the check or pay the same in full.
DUTY OF THE DRAWEE BANK
The drawee bank has the duty to cause to be written, printed
or stamped in plain language thereon, or attached thereto the
reason for the drawee’s dishonor or refusal to pay the same.
If the drawee bank fails to do so, prosecution for violation of
BP 22 may not prosper.
RULE IN CASE OF DISHONOR DUE TO STOP
PAYMENT
The drawee bank has not only the duty to indicate that the
drawer stopped the payment and the reason for the stop
payment. The drawee bank is further obligated to state
whether the drawer of the check has sufficient funds in the
bank or not.
AGREEMENT OF PARTIES REGARDING THE CHECK
IS NOT A DEFENSE
In the case of People vs Nitafan, 215 SCRA, the agreement
of the parties in respect to the issuance of the check is
inconsequential or will not affect the violation of BP 22, if
the check is presented to the bank and the same was
dishonored due to insufficiency of funds.
CHECKS ISSUED IN PAYMENT OF INSTALLMENT
Checks issued in payment for installment covered by
promissory note and said checks bounced, the drawer is
liable if the checks were drawn against insufficient funds,
especially that the drawer, upon signing of the promissory
note, closed his account. Said check is still with
consideration. (Caram Resources v. Contreras)
In this case, the Judge was even held administratively liable.
CHECK DRAWN AGAINST A DOLLAR ACCOUNT.
RULE:
A check drawn against a dollar account in a foreign country
is still violative of the provisions of BP 22 so long as the
check is issued, delivered or uttered in the Philippines, even
if the same is payable outside of the Philippines (De Villa v.
CA)
GUARANTEE CHECKS, DRAWER, STILL LIABLE
The mere act of issuing a worthless check is punishable.
Offender cannot claim good faith for it is malum prohibitum.
In the case of Magno vs CA, when accused issued a check as
warranty deposit for lease of certain equipment, even
knowing that he has no funds or insufficient funds in the
bank is not liable, if the lessor of the equipment pulled out
the loaned equipment. The drawer has no obligation to make
good the check because there is no more deposit to guaranty.
ISSUANCE OF GUARANTEE CHECKS WHICH WAS
DISHONORED IN VIOLATION AND PURPOSE OF THE
LAW
The intention of the framers of BP 22 is to make a mere act
of issuing a worthless check malum prohibitum. In
prosecutions for violation of BP 22, therefore, prejudice or
damage is not prerequisite for conviction.
The agreement surrounding the issuance of the checks need
not be first locked into, since the law has provided that the
mere issuance of any kind of check; regardless of the intent
of the parties, i.e., whether the check is intended merely to
serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the
check liable. (Lazaro vs CA, et al., GR 105461).
CAN A PERSON BE HELD LIABLE FOR ISSUING A
CHECK WITH SUFFICIENT FUNDS FOR VIOLATION
OF BP 22?
Yes. Paragraph 2 of Section 1 of BP 22 provides:
The same penalty shall be imposed upon any person who
having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to
keep sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is
dishonored by the drawee bank.
RULE ON RENDERING UNJUST JUDGMENT,
IGNORANCE, ETC. BY A JUDGE
In the case of De la Cruz vs. Concepcion this Court
declared:
"Mere errors in the appreciation of evidence, unless so gross
and patent as to produce an inference of ignorance or bad
faith, or of knowing rendition of an unjust decision, are
irrelevant and immaterial in an administrative proceeding
against him. No one, called upon to try facts or interpret the
law in the process of administering justice, can be infallible
in his judgment. All that is expected of him is that he follow
the rules prescribed to ensure a fair and impartial hearing,
assess the different factors that emerge therefrom and bear
on the issues presented, and on the basis of the conclusions
he finds established, with only his conscience and nowledge
of the law to guide him, adjudicate the case accordingly."
(Gutierrez v Pallatao; Adm. Matter #RTJ-95-1326, July 8,
1998)
DIFFERENCE BETWEEN ESTAFA AND VIOLATION
OF BP 22
In the crime of estafa, deceit and damage are essential
elements of the offense and have to be established with
satisfactory proof to warrant conviction. For violation of the
Bouncing Checks Law, on the other hand, the elements of
deceit and damage are neither essential nor required. Rather,
the elements of B.P. Blg. 22 are (a) the making, drawing and
issuance of any check to apply to account or for value; (b)
the maker, drawer or issuer knows at the time of issuance
that he does not have sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its
presentment; and, (c) the check is subsequently dishonored
by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not the
drawer, without valid reason, ordered the bank to stop
payment. (Uy v Court of Appeals, GR 119000, July 28,
1997)
JURISDICTION IN BP 22 CASES
In respect of the Bouncing checks case, the offense also
appears to be continuing in nature. It is true that the offense
is committed by the very fact of its performance
(Colmenares vs. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes
not only the fact of dishonor of a check but also the act of
making or drawing and issuance of a bouncing check
(People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA
523). The case, therefore, could have been filed also in
Bulacan. As held in Que vs. People of the Philippines, G.R.
Nos. 75217-18, September 11, 1987 "the determinative
factor (in determining venue) is the place of the issuance of
the check". However, it is likewise true that knowledge on
the part of the maker or drawer of the check of the
insufficiency of his funds, which is an essential ingredient of
the offense is by itself a continuing eventuality, whether the
accused be within one territory or another (People vs. Hon.
Manzanilla, G.R. Nos. 66003-04, December 11, 1987).
Accordingly, jurisdiction to take cognizance of the offense
also lies in the Regional Trial Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or
venue is determined by the allegation in the Information,
which are controlling (Arches vs. Bellosillo, 81 Phil. 190,
cited in Tuzon vs. Cruz, No. L-27410, August 28, 1975, 66
SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando
Pampanga and therefore within the jurisdiction of the Court
below.
This ruling was reiterated in the case of Lim vs. Rodrigo,
167 SCRA 487, where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra,
that as "violation of the bad checks act is committed when
one 'makes or draws and issues any check [sic] to apply on
account or for value, knowing at the time issue that he does
not have sufficient funds' or having sufficient funds in or
credit with the drawee bank . . . shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the
check if presented within a period of ninety (90) days from
the date appearing thereon, for which reason it is dishonored
by the drawee bank," "knowledge" is an essential ingredient
of the offense charge. As defined by the statute, knowledge,
is, by itself, a continuing eventuality, whether the accused be
within one territory or another. This being the case, the
Regional Trial Court of Baguio City has jurisdiction to try
Criminal Case No. 2089-R (688).
Moreover, we ruled in the same case of People v. Hon.
Manzanilla, reiterated in People vs. Grospe, supra, that
jurisdiction or venue is determined by the allegations in the
information. The allegation in the information under
consideration that the offense was committed in Baguio City
is therefore controlling and sufficient to vest jurisdiction
upon the Regional Trial Court of Baguio City.
In the case at bench it appears that the three (3) checks were
deposited in Lucena City. As to the second error wherein the
petitioner asserted that the checks were issued "as a
guarantee only for the feeds delivered to him" and that there
is no estafa if a check is issued in payment of a pre-existing
obligation, the Court of Appeals pointed out that the
petitioner obviously failed to distinguish a violation of B.P.
Blg. 22 from estafa under Article 315 (2) [d] of the Revised
Penal Code. It further stressed that B.P. Blg. 22 applies even
in cases where dishonored checks were issued as a guarantee
or for deposit only, for it makes no distinction as to whether
the checks within its contemplation are issued in payment of
an obligation or merely to guarantee the said obligation and
the history of its enactment evinces the definite legislative
intent to make the prohibition all-embracing. (Ibasco vs CA,
9/5/96)
ACTUAL KNOWLEDGE OF INSUFFICIENCY OF
FUNDS ESSENTIAL IN BP 22
Knowledge of insufficiency of funds or credit in the drawee
bank for the payment of a check upon its presentment is an
essential element of the offense. There is a prima facie
presumption of the existence of this element from the fact of
drawing, issuing or making a check, the payment of which
was subsequently refused for insufficiency of funds. It is
important to stress, however, that this is not a conclusive
presumption that forecloses or precludes the presentation of
evidence to the contrary. (Lim Lao v CA; 6/20/97)
WHEN LACK OF KNOWLEDGE AND LACK OF
POWER TO FUND THE CHECKS IN CASES OF BP 22 A
DEFENSE
After a thorough review of the case at bar, the Court finds
that Petitioner Lina Lim Lao did not have actual knowledge
of the insufficiency of funds in the corporate accounts at the
time she affixed her signature to the checks involved in this
case, at the time the same were issued, and even at the time
the checks were subsequently dishonored by the drawee
bank.
The scope of petitioner's duties and responsibilities did not
encompass the funding of the corporation's checks; her
duties were limited to the marketing department of the
Binondo branch. Under the organizational structure of
Premiere Financing Corporation, funding of checks was the
sole responsibility of the Treasury Department. (Lim Lao v
CA; 6/20/97
LACK OF ADEQUATE NOTICE OF DISHONOR, A
DEFENSE
There can be no prima facie evidence of knowledge of
insufficiency of funds in the instant case because no notice
of dishonor was actually sent to or received by the petitioner.
The notice of dishonor may be sent by the offended party or
the drawee bank. The trial court itself found absent a
personal notice of dishonor to Petitioner Lina Lim Lao by
the drawee bank based on the unrebutted testimony of
Ocampo "(t)hat the checks bounced when presented with the
drawee bank but she did not inform anymore the Binondo
branch and Lina Lim Lao as there was no need to inform
them as the corporation was in distress." The Court of
Appeals affirmed this factual finding. Pursuant to prevailing
jurisprudence, this finding is binding on this Court. (Lim
Lao v CA; 6/20/97)
ANTI-GRAFT & CORRUPT PRACTICES ACT
(RA NO 3019)
ANTI-GRAFT AND CORRUPT PRACTICES ACT
Corrupt practices of public officers.
(a) Persuading, inducing or influencing another public
officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.
(b) Directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit, for himself or for any
other person, in connection with any contract or transaction
between the Government and any other part, wherein the
public officer in his official capacity has to intervene under
the law.
(c) Directly or indirectly requesting or receiving any gift,
present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in
any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof or
within one year after its termination.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions.
( f ) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested
in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or
giving undue advantage in favor of or discriminating against
any other interested party.
(g) Entering, on behalf of the Government, into any contract
or transaction manifestly and grossly disadvantageous to the
same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary
interest in any business, contract or transaction in connection
with which he intervenes or takes part in his official
capacity, or in which he is prohibited by the Constitution or
by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which
he is a member, and which exercises discretion in such
approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or
group.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
( j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for
or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who
is not so qualified or entitled.
(k) Divulging valuable information of a confidential
character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such
information in advance of its authorized release date.
UNEXPLAINED WEALTH, MEANING
Prima facie evidence of and dismissal due to unexplained
wealth. If in accordance with the provisions of RA 1379, a
public official has been found to have acquired during his
incumbency, whether in his name or in the name of other
persons, an amount of property and/or money manifestly out
of proportion to his salary and to his other lawful income,
that fact shall be a ground for dismissal or removal.
Note: Unsolicited gifts or presents of small or insignificant
value shall be offered or given as a mere ordinary token of
gratitude or friendship according to local customs or usage
shall be exempted from the provision of this act.
MEANING OF “CAUSING UNDUE INJURY”
The act of giving any private party any unwarranted benefit,
advantage or preference is not an indispensable element of
causing any undue injury to any part, although there may be
instances where both elements concur. (Santiago vs
Garchitorena, et al., 2 Dec. 93).
In Mejoroda v Sandiganbayan, the Supreme Court has ruled
that the offender in causing undue injury does not refer only
to those who are in charge of giving permits, licenses or
concessions but all acts of public officers or employees
which have caused undue injury to others.
ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF
RA 3019
a. the offender is a public officer;
b. the said officer has neglected or has refused to act without
sufficient justification after due demand or request has been
made upon him;
c. reasonable time has elapsed from such demand or request
without the public officer having acted on the matter
pending before him;
d. such failure to so act is for the purpose of obtaining
directly or indirectly from any person interested in the matter
some pecuniary or material benefit or advantage in favor of
an interested party or discriminating against another.
Coronado v Sandiganbayan.
WHERE PUBLIC OFFICER ACTED WITH MANIFEST
PARTIALITY, EVIDENT BAD FAITH, OR
INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(e). Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions.
VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES
PROOF OF THE FOLLOWING FACTS, VIZ:
a. the accused is a public officer discharging administrative
or official functions or private persons charged in conspiracy
with them;
b. the public officer committed the prohibited act during the
performance of his official duty or in relation to his public
position;
c. the public officer acted with manifest partiality evident
bad faith or gross, inexcusable negligence; and
d. his action caused undue injury to the government or any
private party, or gave any party any unwarranted benefit,
advantage or preference to such parties.
CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e)
OF RA 3019. MEANING.
Section 3 enumerates in eleven subsections the corrupt
practices of any public officer declared unlawful. Its
reference to any public officer is without distinction or
qualification and it specifies the acts declared unlawful. We
agree with the view adopted by the Solicitor General that the
last inclusion of officers and employees of offices or
government corporations which, under the ordinary concept
of “public officer” may not come within the term. It is a
strained construction of the provision to read it as applying
exclusively to public officers charged with the duty of
granting license or permits or other concessions. (Mejorada
v Sandiganbayan, 151 SCRA 399).
SUSPENSION UNDER R.A. 3019 MANDATORY BUT
COURTS ARE ALLOWED TO DETERMINE
WHETHER INFORMATION IS VALID OR NOT
It is well settled that Section 13 of RA 3019 makes it
mandatory for the Sandiganbayan (or the Court) to suspend
any public officer against whom a valid information
charging violation of this law, Book II, Title 7 of the RPC,
or any offense involving fraud upon government or public
funds or property is filed in court. The court trying a case
has neither discretion nor duty to determine whether
preventive suspension is required to prevent the accused
from using his office to intimidate witnesses or frustrate his
prosecution or continue committing malfeasance in office.
All that is required is for the court to make a finding that the
accused stands charged under a valid information for any of
the above-described crimes for the purpose of granting or
denying the sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235
SCRA 103).In the same case, the Court held that "as applied
to criminal prosecutions under RA 3019, preventive
suspension will last for less than ninety (90) days only if the
case is decided within that period; otherwise, it will continue
for ninety (90) days." (Conducto v. Monzon; A.M. No. MTJ-
98-1147, July 2, 1998)
PUBLIC OFFICER MAY BE SUSPENDED FROM HIS
PRESENT POSITION EVEN IF THE CRIME WHICH HE
IS BEING CHARGED WAS COMMITTED DURING HIS
PREVIOUS TERM
Judge Monzon's contention denying complainant's Motion
for Suspension because "offenses committed during the
previous term (is) not a cause for removal during the present
term" is untenable. In the case of Rodolfo E. Aguinaldo vs.
Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the
Court held that "the rule is that a public official cannot be
removed for administrative misconduct committed during a
prior term since his re-election to office operates as a
condonation of the officer's previous misconduct committed
during a prior term, to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no
application to criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco
vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21
SCRA 1292, that "The ruling, therefore, that 'when the
people have elected a man to office it must be assumed that
they did this with knowledge of his life and character and
that they disregarded or forgave his faults or misconduct if
he had been guilty of any' refers only to an action for
removal from office and does not apply to a criminal case"
Clearly, even if the alleged unlawful appointment was
committed during Maghirang's first term as barangay
chairman and the Motion for his suspension was only filed
in 1995 during his second term, his re-election is not a bar to
his suspension as the suspension sought for is in connection
with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-
98-1147, July 2, 1998)
RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING
ONLY HIS ADMINISTRATIVE LIABILITY BUT
NOT HIS CRIMINAL LIABILITY
As early as 18 December 1967 in Ingco v. Sanchez, 17 this
Court explicitly ruled that the re-election of a public official
extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office,
thus:
The ruling, therefore, that — "when the people have elected
a man to his office it must be assumed that they did this with
knowledge of his life and character and that they disregarded
or forgave his faults or misconduct if he had been guilty of
any" — refers only to an action for removal from office and
does not apply to criminal case, because a crime is a public
wrong more atrocious in character than mere misfeasance or
malfeasance committed by a public officer in the discharge
of his duties, and is injurious not only to a person or group
of persons but to the State as a whole. This must be the
reason why Article 89 of the Revised Penal Code, which
enumerates the grounds for extinction of criminal liability,
does not include reelection to office as one of them, at least
insofar as a public officer is concerned. Also, under the
Constitution, it is only the President who may grant the
pardon of a criminal offense. (Conducto v. Monzon; A.M.
No. MTJ-98-1147, July 2, 1998)
PRE-CONDITION OF SUSPENSION (PREVENTIVE)
UNDER SEC. 13, RA 3019
It is mandatory for the court to place under preventive
suspension a public officer accused before it. Imposition of
suspension, however, is not automatic or self-operative. A
pre-condition thereof is the existence of a valid information,
determined at a pre-suspension hearing. Such a hearing is in
accord with the spirit of the law, considering the serious and
far-reaching consequences of a suspension of a public
official even before his conviction, and the demands of
public interest for a speedy determination of the issues
involved in the case. The purpose of the pre-suspension
hearing is basically to determine the validity of the
information and thereby furnish the court with a basis to
either suspend the accused and proceed with the trial on the
merits of the case, or refuse suspension of the latter and
dismiss the case, or correct any part of the proceeding which
impairs its validity. The accused should be given adequate
opportunity to challenge the validity or regularity of the
criminal proceedings against him; e.g. that he has not been
afforded the right to due preliminary investigation; that the
acts imputed to him do not constitute a specific crime (under
R.A. 3019 or the Revised Penal Code) warranting his
mandatory suspension from office under Section 13 of the
Act; or that the information is subject to quashal on any of
the grounds set out in Rule 117 of the Rules of Court. But
once a proper determination of the validity of the
information has been made, it becomes the ministerial duty
of the court to forthwith issue the order of preventive
suspension. The court has no discretion, for instance, to hold
in abeyance the suspension of the accused official on the
pretext that the order denying the latter's motion to quash is
pending review before the appellate courts. (Segovia v.
Sandiganbayan; GR 124067, Mar. 27, 1998)
GUIDELINES TO BE FOLLOWED IN PREVENTIVE
SUSPENSION CASES
"In the leading case of Luciano, et al. vs. Mariano, et al. (L-
32950, July 30, 1971, 40 SCRA 187), we have set out the
guidelines to be followed by the lower courts in the exercise
of the power of suspension under Section 13 of the law, to
wit:
(c) By way of broad guidelines for the lower courts in the
exercise of the power of suspension from office of public
officers charged under a valid information under the
provisions of Republic Act No. 3019 or under the provisions
of the Revised Penal Code on bribery, pursuant to section 13
of said Act, it may be briefly stated that upon the filing of
such information, the trial court should issue an order with
proper notice requiring the accused officer to show cause at
a specific date of hearing why he should not be ordered
suspended from office pursuant to the cited mandatory
provisions of the Act. Where either the prosecution
seasonably files a motion for an order of suspension or the
accused in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order of the
trial court would no longer be necessary. What is
indispensable is that the trial court duly hear the parties at a
hearing held for determining the validity of the information,
and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the
validity of the information or withhold such suspension in
the contrary case.
(d) No specific rules need be laid down for such pre-
suspension hearing. Suffice it to state that the accused
should be given a fair and adequate opportunity to challenge
the validity of the criminal proceedings against him, e.g.,
that he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not
constitute a violation of the provisions of Republic Act No.
3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office
under Section 13 of the Act, or he may present a motion to
quash the information on any of the grounds provided in
Rule 117 of the Rules of Court. The mandatory suspension
decreed by the act upon determination of the pendency in
court or a criminal prosecution for violation of the Anti-
Graft Act or for bribery under a valid information requires at
the same time that the hearing be expeditious, and not
unduly protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the trial court, say, finds the
ground alleged in the quashal motion not to be indubitable,
then it shall be called upon to issue the suspension order
upon its upholding the validity of the information and setting
the same for trial on the merits.' (Segovia v. Sandiganbayan)
WHEN MAY A PUBLIC OFFICER BE LIABLE FOR
CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA
3019
xxx xxx xxx
(c) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
offices or government corporations charged with the grant of
licenses or permits or other concessions."
To hold a person liable under this section, the concurrence of
the following elements must be established beyond
reasonable doubt by the prosecution:
"(1) That the accused is a public officer or a private person
charged in conspiracy with the former;
(2) That said public officer commits the prohibited acts
during the performance of his or her official duties or in
relation to his or her public positions;
(3) That he or she causes undue injury to any party, whether
the government or a private party; and
(4) That the public officer has acted with manifest partiality,
evident bad faith or gross inexcusable negligence." (Llorente
v. Sandiganbayan; GR 122166, Mar. 11, 1998)
MEANING OF BAD FAITH UNDER SECTION 3(e) OF
RA 3019
"Bad faith does not simply connote bad judgment or
negligence; it imputes a dishonest purpose or some moral
obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of
the nature of fraud. (Spiegel v Beacon Participations, 8 NE
2nd Series 895, 1007). It contemplates a state of mind
affirmatively operating with furtive design or some motive
of self interest or ill will for ulterior purposes (Air France v.
Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of the
accused to do wrong or cause damage."
In Jacinto, evident bad faith was not appreciated because the
actions taken by the accused were not entirely without
rhyme or reason; he refused to release the complainant's
salary because the latter failed to submit her daily time
record; he refused to approve her sick-leave application
because he found out that she did not suffer any illness; and
he removed her name from the plantilla because she was
moonlighting during office hours. Such actions were
measures taken by a superior against an erring employee
who studiously ignored, if not defied, his authority.
(Llorente v. Sandiganbayan)
WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e)
BUT UNDER SEC. (f) OF RA 3019
It would appear that petitioner's failure or refusal to act on
the complainant's vouchers, or the delay in his acting on
them more properly falls under Sec. 3[f]:
"(f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested
in the matter some pecuniary or material benefit or
advantage, or for purpose of favoring his own interest or
giving undue advantage in favor of or discriminating against
any other interested party."
Here, the neglect or refusal to act within a reasonable time is
the criminal act, not the causing of undue injury. Thus, its
elements are:
"1) The offender is a public officer;
2) Said officer has neglected or has refused to act without
sufficient justification after due demand or request has been
made on him;
3) Reasonable time has elapsed from such demand or request
without the public officer having acted on the matter
pending before him; and
4) Such failure to so act is 'for the purpose of obtaining,
directly or indirectly, from any person interested in the
matter some pecuniary or material benefit or advantage in
favor of an interested party, or discriminating against
another."
However, petitioner is not charged with a violation of Sec.
3[f]. Hence, further disquisition is not proper. Neither may
this Court convict petitioner under Sec. 3[f] without
violating his constitutional right to due process. (Llorente v.
Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS
SHALL ONLY BE FOR 60 DAYS
On the other hand, we find merit in petitioner's second
assigned error. The Sandiganbayan erred in imposing a 90
day suspension upon petitioner for the single case filed
against him. Under Section 63 (b) of the Local Government
Code, "any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days." (Rios v.
Sandiganbayan; GR 129913, Set. 26, 1997)
APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO
SUSPENSION
Since the petitioner is an incumbent public official charged
in a valid information with an offense punishable under the
Constitution and the laws (RA 3019 and PD 807), the law's
command that he "shall be suspended from office" pendente
lite must be obeyed. His approved leave of absence is not a
bar to his preventive suspension for as indicated by the
Solicitor General, an approved leave, whether it be for a
fixed or indefinite period, may be cancelled or shortened at
will by the incumbent. (Doromal v. Sandiganbayan; GR
85468, Sepr. 7, 1989)
UNDUE DELAY IN PRELIMINARY INVESTIGATIONS
VIOLATIVE OF DUE PROCESS AND A GROUND TO
DISMISS
After a careful review of the facts and circumstances of this
case, we are constrained to hold that the inordinate delay in
terminating the preliminary investigation and filing the
information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him.
Accordingly, the informations in Criminal Cases Nos.
10499, 10500, 10501, 10502 and 10503 should be
dismissed. In view of the foregoing, we find it unnecessary
to rule on the other issues raised by petitioner. (Tatad v.
Sandiganbayan)
DEATH PENALTY LAW
(RA 7659)
PROSTITUTES CAN BE A VICTIM OF RAPE
As to the suggestion that ANALIZA was a prostitute, that
alone, even if it be conceded, cannot absolve him of his
liability for rape. First, prostitutes can be victims of rape.
(People v. Alfeche)
REASON WHY DWELLING IS AN AGGRAVATING
CIRCUMSTANCE
Dwelling is considered an aggravating circumstance because
primarily of the sanctity of privacy the law accords to human
abode. The dwelling need not be owned by the victim. Thus,
in People v. Basa, dwelling was appreciated, although the
victims were killed while sleeping as guests in the house of
another. As aptly stated in People v. Balansit: "[O]ne does
not lose his right of privacy where he is offended in the
house of another because as [an] invited guest [or a
housemaid as in the instant case], he, the stranger, is
sheltered by the same roof and protected by the same
intimacy of life it affords. It may not be his house, but it is,
even for a brief moment, "home" to him. He is entitled to
respect even for that short moment." (People v. Alfeche)
WHEN RELATIONSHIP IS NOT AN ALTERNATIVE
CIRCUMSTANCE UNDER ART. 15 OF THE RPC
Clearly then, the father-daughter relationship in rape cases,
or between accused and Relanne, in this case, has been
treated by Congress in the nature of a special circumstance
which makes the imposition of the death penalty mandatory.
Hence, relationship as an alternative circumstance under
Article 15 of the Revised Penal Code, appreciated as an
aggravating circumstance, should no longer be applied in
view of the amendments introduced by R.A. No. 7659. It
may be pointed, however, that without the foregoing
amendment, relationship would still be an aggravating
circumstance in the crimes of rape (Article 335) and acts of
lasciviousness (Article 336). 57
If relationship in the instant case were to be appreciated
under Article 15 of the Revised Penal Code, the penalty
imposable on accused then would not be death, but merely
reclusion perpetua for, assuming that Relanne's testimony in
court would have confirmed what she narrated in her sworn
statement (Exhibit "C"), no circumstance then attended the
commission of the rape which could bring the crime under
any provision of Article 335 which imposes a penalty higher
than reclusion perpetua or of reclusion perpetua to death.
(People v. Manyuhod, Jr.)
WHEN OFFENDER IS STEP GRANDPARENT, HE IS
NOT CONSIDERED AN ASCENDANT UNDER RA 8353
AND RA 7659
The trial court has thus held incorrectly in considering
appellant, who is legally married to Roxan's natural
grandmother, as among those named in the enumeration.
Appellant is merely a step-grandparent who obviously is
neither an "ascendant" nor a "step-parent" of the victim. In
the recent case of People vs. Atop, 24 the Court rejected the
application of the mandatory death penalty to the rape of a
12-year old victim by the common-law husband of the girl's
grandmother. The Court said:
"It is a basic rule of statutory construction that penal statutes
are to be liberally construed in favor of the accused. Court's
must not bring cases within the provision of a law which are
not clearly embraced by it. No act can be pronounced
criminal which is not clearly made so by statute; so, too, no
person who is not clearly within the terms of a statute can be
brought within them. Any reasonable doubt must be resolved
in favor of the accused."
(People v. Deleverio)
RECLUSION PERPETUA IS LIGHTER THAN LIFE
IMPRISONMENT AND IF ONE IS SENTENCED TO
LIFE IMPRISONMENT AND LATER IMPOSED
RECLUSION PERPETUA TO SAME OFFENSE, THE
PENALTY THAT SHOULD BE IMPOSED IS
RECLUSION PERPETUA
Since reclusion perpetua is a lighter penalty than life
imprisonment, and considering the rule that criminal statutes
with a favorable effect upon the accused have, as to him, a
retroactive effect, the penalty imposable upon the accused
should be reclusion perpetua and not life imprisonment.
(People v. Latura)
JUSTIFICATION FOR THE IMPOSITION OF THE
DEATH PENALTY
Although its origins seem lost in obscurity, the imposition of
death as punishment for violation of law or custom, religious
or secular, is an ancient practice. We do know that our
forefathers killed to avenge themselves and their kin and that
initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in
the name of the state.
The dawning of civilization brought with it both the
increasing sensitization throughout the later generations
against past barbarity and the institutionalization of state
power under the rule of law. Today every man or woman is
both an individual person with inherent human rights
recognized and protected by the state and a citizen with the
duty to serve the common weal and defend and preserve
society.
One of the indispensable powers of the state is the power to
secure society against threatened and actual evil. Pursuant to
this, the legislative arm of government enacts criminal laws
that define and punish illegal acts that may be committed by
its own subjects, the executive agencies enforce these laws,
and the judiciary tries and sentences the criminals in
accordance with these laws.
Although penologists, throughout history, have not stopped
debating on the causes of criminal behavior and the purposes
of criminal punishment, our criminal laws have been
perceived as relatively stable and functional since the
enforcement of the Revised Penal Code on January 1, 1932,
this notwithstanding occasional opposition to the death
penalty provisions therein. The Revised Penal Code, as it
was originally promulgated, provided for the death penalty
in specified crimes under specific circumstances. As early as
1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870. (People v.
Echegaray)
WHY DEATH PENALTY IS NOT A CRUEL AND
UNUSUAL PUNISHMENT
"The penalty complained of is neither cruel, unjust nor
excessive. In Ex-parte Kemmler, 136 U.S., 436, the United
States Supreme Court said that 'punishments are cruel when
they involve torture or a lingering death, but the punishment
of death is not cruel, within the meaning of that word as used
in the constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of
life.'"
“as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to respect and
apply the law regardless of their private opinions," and this
we have reiterated in the 1995 case of People v. Veneracion.
(People v. Echegaray)
DEATH PENALTY WAS NOT ABOLISHED BUT
MERELY SUSPENDED
A reading of Section 19 (1) of Article III will readily show
that there is really nothing therein which expressly declares
the abolition of the death penalty. The provision merely says
that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes the Congress
hereafter provides for it and, if already imposed, shall be
reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough". (People v. Echegaray)
DEFINITION OF HEINOUS CRIMES
". . . the crimes punishable by death under this Act are
heinous for being grievous, odious and hateful offenses and
which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society."
(People v. Echegaray)
WHAT ARE THE CRIMES PUNISHABLE BY
RECLUSION PERPETUA TO DEATH UNDER RA 7659
Under R.A. No. 7659, the following crimes are penalized by
reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by
any of the following four circumstances: (a) the victim was
detained for more than three days; (b) it was committed
simulating public authority; (c) serious physical injuries
were inflicted on the victim or threats to kill him were made;
and (d) if the victim is a minor, except when the accused is
any of the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation
(Sec. 9);
(8) Destructive arson if what is burned is (a) one or more
buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use; (d) a
building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying
evidence Or a crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or factory of
explosive materials located in an inhabited place; or
regardless of what is burned, if the arson is perpetrated by
two or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a)
the rape is committed with a deadly weapon; (b) the rape is
committed by two or more persons; and (c) the rape is
attempted or frustrated and committed with homicide (Sec.
11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);
(12) Sale, administration, delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain
specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited
drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account
dangerous drugs confiscated by the arresting officer (Sec.
17);
(23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter (Sec.
19); and
(24) Carnapping where the owner, driver or occupant of the
carnapped motor vehicle is killed or raped (Sec. 20).
(People v. Echegaray)
WHAT ARE THE MANDATORY CRIMES
PUNISHABLE BY MANDATORY DEATH PENALTY
UNDER RA 7659
On the other hand, under R.A. No. 7659, the mandatory
penalty of death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and
he refrains from arresting or prosecuting an offender who
has committed a crime punishable by reclusion perpetua
and/or death in consideration of any offer, promise, gift or
present, he shall suffer the penalty for the offense which was
not prosecuted.
If it is the public officer who asks or demands such gift or
present, he shall suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is raped,
tortured or subjected to dehumanizing acts
"The penalty shall be death where the kidnapping or
detention was committed for the purpose of ransom from the
victim or any other person, even if none of the circumstances
above-mentioned were present in the commission of the
offense.
When the victim is killed or dies as a consequence of the
detention or is raped, or is subject to torture or dehumanizing
acts, the maximum penalty [of death] shall be imposed."
(Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts
penalized under this Article, death results, the mandatory
penalty of death shall be imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with
homicide and qualified
"When by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape
is committed with any of the following attendant
circumstances:
1. when the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent or the
victim.
2. when the victim is under the custody of the police or
military authorities.
3. when the rape is committed in full view of the husband,
parent, any of the children or other relatives within the third
degree of consanguinity.
4. when the victim is a religious or a child below seven (7)
years old
5. when the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of
the Philippines or the Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of the rape, the victim
has suffered permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and
transportation of prohibited drugs where the victim is a
minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to
the contrary, if the victim of the offense is a minor, or should
a prohibited drug involved in any offense under this Section
be the proximate cause of the death of victim thereof, the
maximum penalty [of death] herein provided shall be
imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of
prohibited drugs where the victim is a minor or the victim
dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, the maximum of the penalty [of death] shall be
imposed in every case where a prohibited drug is
administered, delivered or sold to a minor who is allowed to
use the same in such place.
Should a prohibited drug be the proximate case of the death
of a person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the
maintainer notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution
and transportation of regulated drugs where the victim is a
minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, if the victim of the offense is a minor, or should
a regulated drug involved in any offense under this Section
be the proximate cause of the death of a victim thereof, the
maximum penalty [of death] herein provided shall be
imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated
drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to
the contrary, the maximum penalty [of death] herein
provided shall be imposed in every case where a regulated
drug is administered, delivered or sold to a minor who is
allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a
person using the same in such den, dive or resort, the
maximum penalty herein provided shall be imposed on the
maintainer notwithstanding the provisions of Section 20 of
this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials,
employees or officers including members of police agencies
and armed forces
"The maximum penalties [of death] provided for in Section
3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and
Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III
[of the Dangerous Drugs Act of 1972] shall be imposed, if
those found guilty or any of the same offenses are
government officials, employees or officers including
members of police agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug
offenses with the mandatory death penalty if convicted are
government officials, employees or officers
"Any such above government official, employee or officer
who is found guilty of 'planting' any dangerous drugs
punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and
Sections 14, 14-A, 15, and 16 of Article III (of the
Dangerous Drugs Act of 1972) in the person or in the
immediate vicinity of another as evidence to implicate the
latter, shall suffer the same penalty as therein provided."
(Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken
by the offender of his public position, the penalty to be
imposed shall be in its maximum [of death] regardless of
mitigating circumstances.
The maximum penalty [of death] shall be imposed if the
offense was committed by any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two
or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission
of any crime." (Sec. 23)
(People v. Echegaray)
TWO INSTANCES WHEN DEATH MAY BE IMPOSED
WHEN CONSTRUED UNDER RA 7659
Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission
of the crime which indubitably characterize the same as
heinous in contemplation of R.A. No. 7659 that justify the
imposition of the death, albeit the imposable penalty is
reclusion perpetua to death. (People v. Echegaray)
WHY DEATH PENALTY IS IMPOSED ON HEINOUS
CRIMES
The death penalty is imposed in heinous crimes because the
perpetrators thereof have committed unforgivably execrable
acts that have so deeply dehumanized a person or criminal
acts with severely destructive effects on the national efforts
to lift the masses from abject poverty through organized
governmental strategies based on a disciplined and honest
citizenry, and because they have so caused irreparable and
substantial injury to both their victim and the society and a
repetition of their acts would pose actual threat to the safety
of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court
has no doubts as to the innate heinousness of the crime of
rape, as we have held in the case of People v. Cristobal.
(People v. Echegaray)
WHY RAPE IS A HEINOUS CRIME
"Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and charity. Rape
deeply wounds the respect, freedom, and physical and moral
integrity to which every person has a right. It causes grave
damage that can mark the victim for life. It is always an
intrinsically evil act . . . an outrage upon decency and dignity
that hurts not only the victim but the society itself." (People
v. Echegaray)
WHY CAPITAL PUNISHMENT SHOULD NOT BE
ABOLISHED
"Capital punishment ought not to be abolished solely
because it is substantially repulsive, if infinitely less
repulsive than the acts which invoke it. Yet the mounting
zeal for its abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve
the humane society we will have to retain sufficient strength
of character and will to do the unpleasant in order that
tranquillity and civility may rule comprehensively. It seems
very likely that capital punishment is a . . . necessary, if
limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to
indulge in the luxury of permitting a sense of false delicacy
to reign over the necessity of social survival." (People v.
Echegaray)
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY
IN NEW LAW NOT FAVORABLE TO ACCUSED IT
SHOULD BE RETAINED
Appellant in this case was convicted and meted the penalty
of life imprisonment and fine of twenty thousand pesos
under RA 6425 for transporting more or less 6 kilos of
marijuana on July 1990. RA 7659, which took effect on
December 31/93, amended the provisions of RA 6425,
increasing the imposable penalty for the sale or transport of
750 grams or more of marijuana to reclusion perpetua to
death and a fine ranging from five hundred thousand pesos
to ten million pesos. Such penalty is not favorable to the
appellant as it carries the accessory penalties provided under
the RPC and has a higher amount of fine which in
accordance with ART 22 of the same code should not be
given retroactive effect. The court, therefore, finds and so
holds that the penalty of life imprisonment and fine in the
amount of twenty thousand pesos correctly imposed by the
trial court should be retained. (PP v Carreon, 12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT
WISDOM, EFFICACY OR MORALITY OF LAWS
It is a well settled rule that the courts are not concerned with
the wisdom, efficacy or morality of laws. That question falls
exclusively within the province of the Legislature which
enacts them and the Chief Executive who approves or vetoes
them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to
apply them. And for the guidance of the members of the
judiciary we feel it incumbent upon us to state that while
they as citizens or as judges may regard a certain law as
harsh, unwise or morally wrong, and may recommend to the
authority or department concerned, its amendment,
modification, or repeal, still, as long as said law is in force,
they must apply it and give it effect as decreed by the law-
making body. (People v. Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA
OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion
perpetua, therefore, is only to serve as the basis for
determining the convict's eligibility for pardon or for the
application of the three-fold rule in the service of multiple
penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS
KILLED DOES NOT ALTER CHARACTERIZATION OF
THE OFFENSE BUT CAN BE APPRECIATED AS
AGGRAVATING CIRCUMSTANCE.
While the number of persons killed does not alter the
characterization of the offense as robbery with homicide, the
multiplicity of the victims slain should have been
appreciated as an aggravating circumstance. This would
preclude an anomalous situation where, from the standpoint
of the gravity of the offense, robbery with one killing would
be treated in the same way that robbery with multiple
killings would be. (People V. Timple)
ROBBERY WITH HOMICIDE AND ROBBERY WITH
RAPE; PROVISION OF ARTICLE 294 OF THE REVISED
PENAL CODE AS AMENDED BY REPUBLIC ACT 7659
CANNOT BE APPLIED RETROACTIVELY; CASE AT
BAR.
Under Article 294 (1) of the Revised Penal Code, robbery
with homicide is punishable by reclusion perpetua to death.
In view, however, of the first paragraph of Section 19,
Article III of the 1987 Constitution, which provides that:
"Sec. 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall
death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced to
reclusion perpetua" (Emphasis supplied) only the penalty of
reclusion perpetua could be imposed by the trial court.
Hence, the attended aggravating circumstances in this case
had no impact upon the determination of the proper penalty
by the trial court. By Republic Act No. 7659 (effective 31
December 1993), Congress re-imposed the death penalty for
certain heinous crimes, including robbery with homicide and
robbery with rape. By the same statute, Article 294 of the
Revised Penal Code was amended to read as follows: "Any
person guilty of robbery with the use of violence against or
intimidation on any person shall suffer: 1. The penalty of
reclusion perpetua to death, when by reason or on occasion
of the robbery, the crime of homicide shall have been
committed, or when the robbery shall have been
accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code,
as amended by R.A. No. 7659, however, cannot be applied
retroactively in this case. To do so would be to subject the
appellant to the death penalty which could not have been
constitutionally imposed by the court a quo under the law in
effect at the time of the commission of the offenses. (People
v. Timple)
A PERSON MAY BE CONVICTED OF GRAVE
COERCION ALTHOUGH THE CHARGE IS
KIDNAPPING
The Information, dated March 24, 1992, filed against
Astorga contains sufficient allegations constituting grave
coercion, the elements of which were sufficiently proved by
the prosecution. Hence, a conviction for said crime is
appropriate under Section 4, Rule 120 of the 1988 Rules on
Criminal Procedure.
(People -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a. That any person is prevented by another from doing
something not prohibited by law, or compelled to do
something against his or her will, be it right or wrong;
b. That the prevention or compulsion is effected by violence,
either by material force or such a display of it as would
produce intimidation and, consequently, control over the will
of the offended party; and
c. that the person who restrains the will and liberty of
another has no right to do so or, in other words, that the
restraint is not made under authority of a law or in the
exercise of any lawful right.
(People -vs- Astorga)
ACTUAL DETENTION OR LOCKING UP, AN
ESSENTIAL ELEMENT OF KIDNAPPING
Actual detention or "locking up" is the primary element of
kidnapping. If the evidence does not adequately prove this
element, the accused cannot be held liable for kidnapping. In
the present case, the prosecution merely proved that
appellant forcibly dragged the victim toward a place only he
knew. There being no actual detention or confinement, the
appellant may be convicted only of grave coercion.
(People -vs- Astorga; GGR 110097, December 22, 1997)
DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425);
SECTIONS 15 AND 20 THEREOF AS AMENDED BY
R.A. NO. 7659.
In People vs. Martin Simon y Sunga, (G.R. No. 93028),
decided on 29 July 1994, this Court ruled as follows: (1)
Provisions of R.A. No. 7659 which are favorable to the
accused shall be given retroactive effect pursuant to Article
22 of the Revised Penal Code. (2) Where the quantity of the
dangerous drug involved is less than the quantities stated in
the first paragraph of Section 20 of R.A. No. 6425, the
penalty to be imposed shall range from prision correccional
to reclusion temporal, and not reclusion perpetua. The
reason is that there is an overlapping error, probably through
oversight in the drafting, in the provisions on the penalty of
reclusion perpetua as shown by its dual imposition, i.e., as
the minimum of the penalty where the quantity of the
dangerous drugs involved is more than those specified in the
first paragraph of the amended Section 20 and also as the
maximum of the penalty where the quantity of the dangerous
drugs involved is less than those so specified in the first
paragraph. (3) Considering that the aforesaid penalty of
prision correccional to reclusion temporal shall depend upon
the quantity of the dangerous drugs involved, each of the
component penalties thereof — prision correccional, prision
mayor, and reclusion temporal — shall be considered as a
principal imposable penalty depending on the quantity, such
that the quantity of the drugs enumerated in the second
paragraph should then be divided into three, with the
resulting quotient, and double or treble the same, as the
bases for determining the appropriate component penalty.
(4) The modifying circumstances in the Revised Penal Code
may be appreciated to determine the proper period of the
corresponding imposable penalty or even to effect its
reduction by one or more degrees; provided, however, that in
no case should such graduation of penalties reduce the
imposable penalty lower than prision correccional. (5) In
appropriate instances, the Indeterminate Sentence Law shall
be applied and considering that R.A. No. 7659 has
unqualifiedly adopted the penalties under the Revised Penal
Code with their technical signification and effects, then the
crimes under the Dangerous Drugs Act shall now be
considered as crimes punished by the Revised Penal Code;
hence, pursuant to Section 1 of the Indeterminate Sentence
Law, the indeterminate penalty which may be imposed shall
be one whose maximum shall be within the range of the
imposable penalty and whose minimum shall be within the
range of the penalty next lower in degree to the imposable
penalty. With the foregoing as our touchstones, and it
appearing that the quantity of the shabu recovered from the
accused in this case is only 0.0958 gram, the imposable
penalty under the second paragraph of Section 20 of R.A.
No. 6425, as further amended by Section 17 of R.A. No.
7659, should be prision correccional. Applying the
Indeterminate Sentence Law, the accused may then be
sentenced to suffer an indeterminate penalty ranging from
six (6) months of arresto mayor as minimum to six (6) years
of prision correccional as maximum.
WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED
THEFT. (STRAY DECISION)
In this case, the stolen property is a Yamaha RS motorcycle
bearing plate no. CZ-2932 with sidecar valued at
P30,000.00. Since this value remains undisputed, we accept
this amount for the purpose of determining the imposable
penalty. In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and
medium periods to be imposed in the maximum period.
Considering that the penalty for qualified theft is two
degrees higher than that provided for simple theft, the
penalty of prision mayor in its minimum and medium
periods must be raised by two degrees. Thus, the penalty
prescribed for the offense committed of qualified theft of
motor vehicle is reclusion temporal in its medium and
maximum periods to be imposed in its maximum period. (PP
-vs- Ricardo Dela Cruz alias Pawid, Manuel dela Cruz alias
Pawid, Danilo Dela Cruz and John Doe alias Henry
Balintawak and Orlando Padilla y Mendoza, Accused.
RICARDO DELA CRUZ alias Pawid, Accused-Appellant.
G.R. No. 125936 Feb. 23, 2000 )
PERIOD WHEN BAIL IS EFFECTIVE AFTER
CONVICTION IN LOWER COURTS
The bail bond that the accused previously posted can only be
used during the 15-day period to appeal (Rule 122) and not
during the entire period of appeal. This is consistent with
Section 2(a) of Rule 114 which provides that the bail "shall
be effective upon approval and remain in force at all stages
of the case, unless sooner cancelled, until the promulgation
of the judgment of the Regional Trial Court, irrespective of
whether the case was originally filed in or appealed to it."
This amendment, introduced by SC Administrative Circular
12-94 is a departure from the old rules which then provided
that bail shall be effective and remain in force at all stages of
the case until its full determination, and thus even during the
period of appeal.
Moreover, under the present rule, for the accused to continue
his provisional liberty on the same bail bond during the
period to appeal, consent of the bondsman is necessary.
From the record, it appears that the bondsman, AFISCO
Insurance Corporation, filed a motion in the trial court on
January 06, 1987 for the cancellation of petitioners' bail
bond for the latter's failure to renew the same upon its
expiration. Obtaining the consent of the bondsman was, thus,
foreclosed. ( Aniceto Sabbun Maguddatu and Laureana
Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
APPEALS (Fourth Division and People of the Philippines,
Respondents. G.R. No. 139599, Feb. 23, 2000)
WHEN ABUSE OF SUPERIOR STRENGTH IS
PRESENT.
We find, however, that the aggravating circumstance of
abuse of superior strength attended the killing. "To
appreciate abuse of superior strength as an aggravating
circumstance, what should be considered is not that there
were three, four or more assailants of one victim, but
whether the aggressors took advantage of their combined
strength in order to consummate the offense. It is therefore
necessary to show that the attackers cooperated in such a
way as to secure advantage of their superiority in strength."
In this case, appellants and their companions purposely
gathered together and armed themselves to take advantage of
their combined strength to ensure that Reynaldo Danao
would be able to kill the victim without any interference
from other bystanders.
However, not having been alleged in the Information, abuse
of superior strength can only be considered as a generic
aggravating circumstance. (PP -vs- CIELITO BULURAN Y
RAMIREZ and LEONARDO VALENZUELA Y
CASTILLO, Accused-Appellants. G.R. No. 113940, Feb.
15, 2000)
USE OF MOTOR VEHICLE AS QUALIFYING
AGGRAVATING CIRCUMSTANCE
The use of a motor vehicle qualifies the killing to murder if
the same was perpetrated by means thereof. (PP -vs-
THADEOS ENGUITO Defendant-Appellant. G.R. 128812,
Feb. 28, 2000)
ELEMENTS OF EVIDENT PREMEDITATION
(1) The time when the offender determined to commit the
crime; (2) an act manifestly indicating that the offender had
clung to his determination; and (3) sufficient lapse of time
between the determination and the execution to allow the
offender to reflect on the consequences of his act. (PP -vs-
ROGELIO GALAM, Accused-Appellant. G.R. No. 114740,
Feb. 15, 2000)
WHEN NIGHTTIME IS AGGRAVATING
Nighttime as an aggravating circumstance must have
specially been sought to consummate the crime, facilitate its
success or prevent recognition of the felon. (PP -vs-
CONSTANCIO MERINO and ARNULFO SIERVO,
Accused-Appellants. G.R. No. 132329, Dec. 17, 1999)
TREACHERY IS PRESENT ON SECOND STAGE OF
ACCIDENT
There is treachery when the offender commits any of the
crimes against the person employing means, methods or
forms in the execution thereof which tend directly and
specifically to insure its execution without risk to himself
arising form the defense which the offended party might
make. As earlier mentioned, the deceased was already
rendered completely helpless and defenseless when he was
stabbed by Pedro Lumacang. Although he was able to run a
short distance, he had absolutely no means of defending
himself from the three brothers who were armed with
hunting knives, bent on finishing him off. The wounded
victim had not even so much as a stick or a stone to parry off
their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying
circumstance, abuse of superior strength should not have
been considered separately inasmuch as it is absorbed in
treachery. (PP -vs- PEDRO LUMACANG, PABLO
LUMACANG and DOMINGO LUMACANG, Accused-
Appellants. G.R. No. 120283, Feb. 1, 2000)
WHY DWELLING IS AGGRAVATING
"The home is a sort of sacred place for its owner. He who
goes to another's house to slander him, hurt him or do him
wrong, is more guilty than he who offends him elsewhere."
(PP -vs- JOSE & NESTOR BiñAS, Accused-Appellant.
G.R. No. 121630, Dec. 8, 1999)
EVEN FRONTAL ATTACK WOULD AMOUNT TO
TREACHERY
Moreover, Milyn Ruales also testified that the knife used by
accused was hidden from view. Thus, Isabel Ruales was not
prepared for such a violent attack, especially considering
that, at the time, she was unarmed and was burdened with a
large basket filled with about six kilos of corn and dried fish
hanging from her shoulders and thus, could not have
possibly warded off the blow or run away from her assailant.
Although Milyn Ruales described the attack having been
frontal, this does not negate treachery since the essence of
treachery is the suddenness and unexpectedness of the
attack, giving the victim no opportunity to repel it or offer
any defense of his person. Thus, we hold that the trial court
correctly appreciated the qualifying circumstance of
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias
"ROGELIA SUELTO", G.R. No. 126097, Feb. 8, 2000)
DATE OF EFFECTIVITY OF RA 7659, ETC.
Republic Act No. 7659 took effect on 31 December 1993.
Accordingly, the said law only applies to crimes defined
therein, including rape, which were committed after its
effectivity. It cannot be applied retroactively because, to do
so, would go against the constitutional prohibition on ex post
facto laws. For this reason, in order for the death penalty to
be imposable, it is incumbent upon the prosecution to
establish beyond a shadow of doubt that the case of the
accused is already covered by Republic Act No. 7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS
ONE WHICH
(a) makes criminal an act before the passage of the law and
which was innocent when done, and punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when
committed;
(c) changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed;
(d) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law
required at the time of the commission of the offense;
(e) assuming to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for
something which when done was lawful; and
(f) deprives person accused of a crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (PP -vs- CHARITO ISUG
MAGBANUA, G.R. No. 128888, Dec. 3, 1999)
ILLEGAL POSSESSION OF FIREARMS
(REPUBLIC ACT NO. 8294)
SECTION 1. Section 1 Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. — The penalty of prision
correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed
upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or possess any low powered firearm, such
as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool
or instrument used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no other crime
was committed.
"The penalty of prision mayor in its minimum period and a
fine of Thirty thousand pesos (P30,000) shall be imposed if
the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber
and 9 millimeter such as caliber .40, .41, .44, .45 and also
lesser calibered firearms but considered powerful such as
caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst
of two or three: Provided, however, That no other crime was
committed by the person arrested.
"If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of rebellion or
insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor."
SECTION 2. Section 3 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition,
Disposition or Possession of Explosives. — The penalty of
prision mayor in its maximum period to reclusion temporal
and a fine of not less than Fifty thousand pesos (P50,000)
shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess
hand grenade(s), rifle grenade(s), and other explosives,
including but not limited to 'pillbox,' 'molotov cocktail
bombs,' 'fire bombs,' or other incendiary devices capable of
producing destructive effect on contiguous objects or
causing injury or death to any person.
"When a person commits any of the crimes defined in the
Revised Penal Code or special laws with the use of the
aforementioned explosives, detonation agents or incendiary
devices, which results in the death of any person or persons,
the use of such explosives, detonation agents or incendiary
devices shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of, or
incident to, or in connection with the crime of rebellion,
insurrection, sedition or attempted coup d'etat, such violation
shall be absorbed as an element of the crimes of rebellion,
insurrection, sedition or attempted coup d'etat.
"The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the explosives
owned by such firm, company, corporation or entity, to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs."
SECTION 3. Section 5 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 5. Tampering of Firearm's Serial Number. —
The penalty of prision correccional shall be imposed upon
any person who shall unlawfully tamper, change, deface or
erase the serial number of any firearm."
SECTION 4. Section 6 of Presidential Decree No. 1866, as
amended, is hereby further amended to read as follows:
"SECTION 6. Repacking or Altering the Composition of
Lawfully Manufactured Explosives. — The penalty of
prision correccional shall be imposed upon any person who
shall unlawfully repack, alter or modify the composition of
any lawfully manufactured explosives."
SECTION 5. Coverage of the Term Unlicensed Firearm. —
The term unlicensed firearm shall include:
1) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of
the crime.
RULE ON ILLEGAL POSSESSION OF FIREARMS
BEFORE AN ACCUSED
MAYBE CONVICTED
In crimes involving illegal possession of firearm, the
prosecution has the burden of proving the elements thereof,
viz:
a. the existence of the subject firearm; and
b. the fact that the accsused who owned or possessed it does
not have the license or permit to possess the same. (People v.
Castillo, 325 scra 613)
The essence of the crime of illegal possession is the
possession, whether actual or constructive, of the subject
firearm, without which there can be no conviction for illegal
possession.
After possession is established by the prosecution, it would
only be a matter of course to determine whether the accused
has a license to possess the firearm. (People v. Bansil, 304
scra 384)
Possession of any firearm becomes unlawful only if the
necessary permit or license therefor is not first obtained. The
absence of license and legal authority constitutes an essential
ingredient of the offense of illegal possession of firearm and
every ingredient or essential element of an offense must be
shown by the prosecution by proof beyond reasonable doubt.
Stated otherwise, the negative fact of lack or absence of
license constitutes an essential ingredient of the offense
which the prosecution has the duty not only to allege but
also to prove beyond reasonable doubt. (People v. Khor, 307
scra 295)
"To convict an accused for illegal possession of firearms and
explosives under P.D. 1866, as amended, two (2) essential
elements must be indubitably established, viz: (a) the
existence of the subject firearm or explosive which may be
proved by the presentation, of the subject firearm or
explosive or by the testimony of witnesses who saw accused
in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the
firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP
Firearms and Explosive Unit that the accused has no license
or permit to possess the subject firearm or explosive." (Del
Rosario v. People, 05/31/01)
We stress that the essence of the crime penalized under P.D.
1866 is primarily the accused's lack of license or permit to
carry or possess the firearm, ammunition or explosive as
possession by itself is not prohibited by law. (People v.
Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special
law, a malum prohibitum, and no malice or intent to commit
a crime need be proved. (People v. Lubo, 101 Phil. 179) To
support a conviction, however, there must be possession
coupled with intent to possess (animus possidendi) the
firearm. (Supra)
PRESENT MEANING OF ILLEGAL
POSSESSION OF FIREARM
Unlicensed firearm no longer simply means a firearm
without a license duly issued by lawful authority. The scope
of the term has been expanded in Sec.5 of R.A. 8294.
Thus, the unauthorized use of a weapon which has been duly
licensed in the name of its owner/possessor may still
aggravate the resultant crime. In the case at bar, although
appellants may have been issued their respective licenses to
possess firearms, their carrying of such weapons outside
their residences and their unauthorized use thereof in the
killing of the victim may be appreciated as an aggravating
circumstance in imposing the proper penalty for murder.
(Pp. V. Molina; Gr 115835-36; July 22, 1998)
ILLEGAL POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.
Where murder or homicide was committed, the separate
penalty for illegal possession shall no longer be meted out
since it becomes merely a special aggravating circumstance.
This statutory amendment may have been an offshoot of our
remarks in Pp. V. Tac-an and Pp. V. Quijada :
“Neither is the 2nd paragraph of Sec.1 meant to punish
homicide or murder with death if either crime is committed
with the use of an unlicensed firearm, i.e., to consider such
use merely as a qualifying circumstance and not as an
offense. That could not have been the intention of the
lawmaker because the term “penalty” in the subject
provision is obviously meant to be the penalty for illegal
possession of firearm and not the penalty for homicide or
murder. We explicitly stated in Tac-an :
There is no law which renders the use of an unlicensed
firearm as an aggravating circumstance in homicide or
murder. Under an information charging homicide or murder,
the fact that the death weapon was an unlicensed firearm
cannot be used to increase the penalty for the 2nd offense of
homicide or murder to death (or reclusion perpetua under the
1987 Constitution). The essential point is that the unlicensed
character or condition of the instrument used in destroying
human life or committing some other crime, is not included
in the inventory of aggravating circumstances set out in
Article 14 of the Revised Penal Code.
A law may, of course, be enacted making use of an
unlicensed firearm as a qualifying circumstance.” (People v.
Molina; GR 115835-36, July 22, 1998)
NEW PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely
bereft of relief. The enactment and approval on 06 Jun 1997
of RA 8294, being favorable to him, should now apply.
Under this new law, the penalty for possession of any low
powered firearm is only prision correccional in its maximum
period and a fine of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present
penalty that may be imposed is anywhere from two years,
four months and one day to four years and two months of
prision correccional in its medium period, as minimum, up
to anywhere from four years, two moths and one day to six
years of prision correccional in its maximum period, as
maximum.. The court in addition, may impose a fine
consistent with the principle that an appeal in a criminal case
throws the whole case open for review by the appellate
tribunal. (Mario Rabaja v CA, et al., Oct 8/97)
ACTS PUNISHABLE:
1. “upon any person who shall unlawfully manufacture, deal
in, acquire, dispose, or possess any low powered firearm,
such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition”
2. "If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall
be considered as an aggravating circumstance.”
3. "If the violation of this Section is in furtherance of or
incident to, or in connection with the crime of rebellion or
insurrection, sedition, or attempted coup d'etat, such
violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.”
4. "The same penalty shall be imposed upon the owner,
president, manager, director or other responsible officer of
any public or private firm, company, corporation or entity,
who shall willfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be
used by any person or persons found guilty of violating the
provisions of the preceding paragraphs or willfully or
knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of
their residence in the course of their employment.”
5. “The penalty of arresto mayor shall be imposed upon any
person who shall carry any licensed firearm outside his
residence without legal authority therefor”
6. “Any person who shall unlawfully tamper, change, deface
or erase the serial number of any firearm”.
7. “Any person who shall unlawfully repack, alter or modify
the composition of any lawfully manufactured explosives”.
MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum
prohibitum punished by a special law, in which case good
faith and absence of criminal intent are not valid defenses.
(People v De Gracia, 7/6/94)
1. Manufacture, deal in, acquire, dispose or possess. It is
these acts relative to firearms. The obvious underlying
principle is the undesirability of the proliferation of firearms
and their free traffic and possession. This is clear from the
first two “whereas” clause of P.D. 1866. It is then clear that
illegal possession, etc. is a malum prohibitum. For purpose
of simplicity we will confine our analysis to “possession”,
although what we will discuss hereunder applies to
manufacture, dealing in, acquiring or disposing as well.
1.1. it is not correct to say without qualification that “intent”
is immaterial. Intent as to possession is immaterial. Intention
to possess is material. Whatever the purpose of the
possession may be is consistently immaterial. That one was
in possession of an unlicensed firearms merely for one’s
protection without intending harm on anybody is a fruitless
defense. It is the clear doctrine of such cases as People v. de
la Rosa, 284 SCRA 158 that “mere possession without
criminal intent is sufficient on which to render a judgment of
conviction”.
1.2. HOWEVER, possession must be established beyond
reasonable doubt, and in view of the special meaning that
“possession” has in criminal law, discovery by police,
officers alone of a firearmin the baggage or gloves
compartment of a car will not necessarily be sufficient to
sustain a conviction of the car owner or driver. Essential to
the legal concept of “possession” in illegal possession cases
is animus possidendio. (People v. de la Rosa, supra; People
v. Sayang, 110 Phil 565).
1.3. How is animus possidendi established? There must be
proved either by direct or circumstantial evidence the
“intent” of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt
acts prior to or simultaneous with possession and other
surrounding circumstances. (People v. de la Rosa) when it is
established that the accused purchased the weapon in
question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that
an unlicensed firearms was under the apparent control and
power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14,
2001) holds that the “gravamen” for the offense of violation
of P.D.1866 is the possession of firearm without the
necessary permit and/or license. “The crime is immediately
consummated upon mere possession of a firearm devoid of
legal authority, since it is assumed that the same is possed
with “animus possidendi” Does it then follow that everyone
found with the firearm is in “possession” thereof for the
purpose of prosecution and conviction under P.D. 1866 as
amended by R.A. 8294? The results would be patently
absurd.
h. A person who finds a firearms and takes it with him to the
police station for the purpose of turning it over to the police
should be commended, rather than prosecuted.
ii. A person who is stopped at a check-point at which it is
discovered that there is firearms – placed either advertently
or inadvertently in his baggage compartment without his
knowledge - cannot be held liable for illegal possession.
iii. If the offender was in possession of an unlicensed only
on the occasion of the shooting for transitory purpose and
for the short moment in connection with the shooting, the
Supre Court held in People v. Macasling, 237 SCRA 299
that there was no evidence of “animus possidendi”.
iv. It then appears to be the more reasonable position that
where a person is apprehended with an unlicensed weapon,
animus possidendi will be disputably presumed. The accused
may controvert the presumption of animus possidendi. To
convict, the court needs proof beyond reasonable doubt of
animus possidendi.
1.4 What the prosecution must prove for it to succeed under
the law is two-fold: first, the existence of the firearm;
second, the absence of a license or a permit to possess.
(People v. Rugay, 291 SCRA 692)
a.) To prove the existence of the firearm, it is not absolutely
necessary that the object evidence be presented. It is very
well possible that the accused effectively conceals the
weapon before his apprehension. Incontrovertible
testimonial evidence may successfully established the
existence of the firearm. (People v. Narvasa, G.R. 132878
[November 16, 1998]),
b.) An interesting question arises. The present law makes
penalties depend on the caliberof the firearm, i.e, on whether
it is high-powered or low-powered In People v. Gutierrez,
G.R. 132878 (January 18, 1999) the Supreme Court ruled
that a U.S. carbine M1 caliber .30 was high-powered
because it was capable of ejecting more than one bullet in
one squeeze. If it is the criterion, then logically, caliber can
be established by teetimony establishing the manner in
which the firearm ejected bullets. The distinguishing
features of particularly firearms, furthermore, that may be
recited by keen observer sworn in a s witness my identify the
firearm as well as it caliber. This can be established by a
judicious combination of the testimonial evidence of
observers abd experts.
c.) A firearm is unlicensed when a certification from the
“Firearms and Explosives Unit” attests that no license has
been issued. There will still be a case for illegal possession if
one holding a firearm duly licensed carries it outside his
residence when he has no permit to carry it outside his
residence (Pastrano v. Court of Appeals, 281 SCRA 287). A
fortiori, the use of a licensed firearm by one not licensed or
permitted to use it would still be illegal possession.
d.) A security guard employed by a security agency and
issued a firearm by the agency has the right to assume that
the firearm issued to him is a licensed firearm. If it turns out
that the firearm is not licensed, there is no animus possidendi
of an unlicensed firearm. (Cuenco v. People, 33 SCRA 522).
The case is obviously different, however, if a police officer
leaves with a cousin for safekeeping his firearm. The cousin
knows fully well that he has no permit or authority to keep
the firearm. If he accepts to do this favor, he is indictable.
(People v. Sayong, 110 Phil 565)
2. Provided no other crime is committed. It is this proviso in
the amendatory law that has visited countless woes on
numerous judges and has occasioned not easily reconcilable
decisions by the Supreme Court .it is obviously a case of not
only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the
unlawful possession of a firearm, the penalties provided for
in the amended Section 1 shall be imposed: prision
correccional in its maximum period for low-powered
firearms, and prision mayor in its maximum periods for
high-powered firearms. Thus in People v. Nunez, G.R.
112092 (March 1, 2001) holds that a person may be
convicted of simple illegal possession if the illegal
possession is proved and the frustrated murder and murder
case – involving the use of the illegal possession – has not
been sufficiently proved. People v. Avecilla, G.R. 117033
(February 15, 2001) teaches that “the crime of illegal
possession of firearms, in its simple form, is committed any
of the crimes of murder, homicide, rebellion, insurrection,
sedition or attempted coup d’etat”.
2.2. It is also clear that where either homicide or murder is
committed with the use of an unlicensed firearm, such use
shall constitute an “aggravating circumstances”. It is well
known that R.A. 8294 was initiated by Senator Ramon
Revilla as a favor to his friend Robin Padilla who was then
serving sentence for illegal possession. It was therefore
meant to be more benevolent, as it is in the penalties it
impose. Senator Revilla, however, could not see far enough
(and regrettably neither could other legislators) and the
effect at least in the case of murder is that it may send the
accused to the lethal injection chamber where otherwise he
would not be meted out the death penalty. People v.
Montinola, G.R. 131856-57 (July 1, 2001) with the Chief
Justice himself as ponente illustrates the complication the
law has introduced. In this case, the accused had been
charged with two offenses: robbery with homicide and
illegal possession of firearms. During the pendency of the
case, the amended law came into force. The court then held
that insofar as R.A. 8294 was favorable to the accused in
that it spared him from separate prosecution for illegal
possession, the charge for illegal possession was dropped.
Insofar, however, as it increased the penalty for robbery with
homicide, the aggravating circumstances of the use of
unlicensed weapon could not be appreciated. Rule 110,
Section 9 of the Revised Rules of Criminal Procedure will
apply: As an aggravating circumstances, the use of the
unlicensed weapon must be alleged in the information.
2.3 When the violation of the law penalizing unlicensed
weapon is “in furtherance of or incident to, or in connection
with the crimes of rebellion, insurrection, sedition or
attempted coup d’etat” then the violation is absorbed in the
main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in the
commission of other offenses other that homicide, murder,
rebellion, insurrection, sedition or attempted coup d’ etata?
People v. Walpandladjaalam, G.R. 1361149-51 ( September
19, 2000) provides the answer in the distinctively clear
language of Justice Panganiban: “The law is clear: the
accused can be convicted of simple illegal possession of
firearms, provided that “no other crime was committed by
the person arrested’. If the intention of the law in the second
paragraph were to refer only to homicide and murder, it
should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish,
neither should we.” In brief, where the accused commits a
crime other than those enumerated with the use of an
unlicensed weapon, no separate charge for such use will be
brought against him. Consistent with this is the disposition
by the Supreme court decreed: “Accordingly, all pending
cases for illegal possession of firearms should be dismissed
if they arose from the commission” of crimes other than
those indicated in Section 1 and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use
of an unlicensed weapon attends the commission of a crime,
no matter how trivial, the case of illegal possession recedes
into judicial irrelevance. The matter is definitely one that
calls for a curative statute and the Supreme Court has
referred the matter to the Congress for another look. One
moral lesson can be learned: Laws passed as favor to one’s
friend is a poor laws!
OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
The rule is that ownership is not an essential element of
illegal possession of firearms and ammunition. What the law
requires is merely possession which includes not only actual
physical possession but also constructive possession or the
subjection of the thing to one’s control and management.
INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS
ESSENTIAL
A distinction should be made between criminal intent and
intent to possess. While mere possession without criminal
intent is sufficient to convict a person for illegal possession
of firearms, it must still be shows that there was animus
possidendi or an intent to possess on the part of the accused.
There is no evidence of animus possedendi if the offender
was in possession of an unlicensed firearm only on the
occasion of the shooting for a transitory purpose and for the
short moment in connection with the shooting.
Lack of evidence is an essential element of the crime and
that the same must be alleged in the Information and duly
proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation
of PD 1866, as amended. One may be convicted of
possession of an unlicensed firearm even if he is not the
owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)
Even if the gun is "paltik," there is a need to secure license
for the gun, and if found without any license therefor, the
offender is liable for violation of PD 1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than
homicide or murder, such a direct assault with attempted
homicide, the use of an unlicensed firearm is neither an
aggravating circumstances nor a separate offense. Since the
law uses the word Homicide or Murder, possession of an
unlicensed firearm is not aggravating in Attempted
Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)
Where the accused was charged of Murder and violation of
PD 1866 and that, in the meantime, Republic Act 8294 took
effect, the accused should be convicted only of Murder. The
use of unlicensed firearm should not be considered as
aggravating because the Court will have to impose the death
penalty which cannot be allowed because, at the time of the
commission of the offense, the death penalty cannot as yet,
be imposed. However, in his concurring opinion, Chief
Justice Hilario Davide, Jr. declared that, under such a factual
milieu, the charge of violation of PD 1866 should continue
and if the accused is found guilty, he should be meted the
death penalty under Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
Where the prosecution failed to adduce the gun in evidence
coupled with the fact that per Certification of the FEU, " no
available information regarding the license for the gun and
the inconsistency in the evidence of the prosecution, the
latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Mere possession without criminal intent is sufficient on
which to render a judgment of conviction for violation of PD
1866, as amended. However, there must be animus
possedendi or intent to possess without any license or
permit. Good faith is not a defense. Neither is lack of
criminal intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)
Temporary, incidental, casual or harmless possession of
firearm is not punishable. Hence, stealing a firearm to render
the owner defenseless is not a crime under the law. (idem,
supra)
Possession includes actual physical possession and
constructive possession. The animus can be determined from
the overt acts of the accused prior to or coetaneous with and
other surrounding circumstances of such possession. Hence,
where the accused found a gun and was on his way to
deliver the gun to the police authority and was arrested, in
the process, there is no animus possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)
Even if a paltik is a homemade gun and thus illegally
manufactured nevertheless, the Prosecution is burdened to
prove that the accused has no license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as
amended the Prosecution must prove: (a) the existence of the
subject firearm; (b) the fact that the accused who owned or
possessed the firearm does not have the corresponding
license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Where the accused is convicted of violation of Republic Act
8294 and meted a penalty less than six (6) years, and a fine
of P15,000.00, he should be ordered to undergo subsidiary
imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA
290)
In the light of "People -vs- Martin Simon," 234 SCRA 555,
and Articles 13 and 14, in relation to Article 63, of the
Revised Penal Code and the Indeterminate Sentence Law for
violation of the Revised Penal Code may now be applied for
violation of PD 1866, as amended and Rep[ublic Act 6425,
as amended.
Even if a person is licensed to possess a firearms but brings
out firearm outside of his residence without permit therefor,
he is guilty of violation of the last paragraph of Section 1 of
PD 1866, as amended. A Mission Order cannot take the
place of a license. A Mission Order can only be issued to
one licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA
287)
If the accused borrowed a gun from another who is licensed
to possess firearm, may the former be liable for violation of
PD 1866, as amended? Yes. Even if the gun is licensed to
one and lends it to another, the latter is liable for violation of
PD 1866, as amended. A license to possess a firearm and a
permit to carry a licensed firearm outside of his residence is
not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in
evidence one may still be convicted of possession of an
unlicensed firearm as long as proof was adduced that the
acused was in possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)
NOTE: Under Republic Act 8294, the penalty depends upon
the caliber of the gun. Suppose there is no testimony as to
the caliber of the gun?
Where a security guard was given by his employer, a
security agency, a firearm, and the accused assumed that the
employer secured the license for the firearm but that it
turned out that the employer failed to get any license, the
security guard is not criminally liable. The security guard
has the right to assume that the security agency secured the
license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for
safekeeping and later the accused found in possession of the
gun, the accused is guilty of possession of unlicensed
firearm. To exculpate himself, the accused must prove
absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
A secured a loan from B and pledged his unlicensed firearm
as security for the loan. A promised to pay his loan and
retrieve the firearm as soon as he had money. B found in
possession of the unlicensed firearm. For the court to sustain
the contention of B is to authorize the indefinite possession
by B of the unlicensed firearm because there was no way to
determine when A could pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)
If a licensed firearm if used to commit Murder or Homicide,
such circumstances is merely a special aggravating
circumstance which must be alleged in the Information and
cannot be offset by any mitigating circumstance. (People
-vs- Meriato Molina, et al., G.R. No. 115835, July 22, 1998;
People -vs- Narvasa, G.R. no. 128618 November 18, 1998)
The Decision of the Supreme Court in People -vs- Paterno
Tac-an, 182 SCRA 601; People -vs- Jesus Deunida, and
People -vs- Barros and People -vs- Daniel Quijada 259
SCRA 191 had been overtaken by Republic Act 8294.
Under the amendment, the death penalty may now be
imposed if the accused is convicted of Murder with the use
of licensed or unlicensed firearms.
As long as the accused is proved to have been in possession
of the unlicensed firearm even if the firearm is not adduced
in evidence, conviction under the law is proper.
(People -vs- Felicisimo Narvasa, supra)
Republic Act 8294 took effect on July 6, 1997.
If the accused is charged of Murder and violation of PD
1866 and during the trial, Republic Act 8294 took effect, the
accused cannot be convicted of violation of PD 1866, as
amended. Neither should the possession of an unlicensed
firearm be considered as an aggravating circumstance as it
will be less favorable to the accused. If the accused used a
sumpak to kill the victim, the prosecution must prove that he
had no license or permit to possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627
where the accused was convicted of Murder and violation of
PD 1866 and during the pendency of the appeal, Republic
Act 8294 took effect. Our Supreme Court affirmed the
conviction of the Accused of two (2) crime of Homicide and
violation of PD 1866, as amended, and applied the penalty
for the crimes under the amendment.
In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our
Supreme Court En Banc declared that where the accused
was convicted of said crio,es, by the Trial Court but that
during the pendency of the appeal, with the Supreme Court,
Republic Act 8294 took effect, the accused should only be
convicted of Murder with the use of an unlicensed firearm as
mere a special aggravating circumstance.
Murder, under Republic Act 8294, is used in its generic term
and, hence, includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)
A United States carbine M1, caliber .3-0 is a high-powered
gun because it is capable of emitting two or three bullets in
one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
It is not necessary that the firearm be produced and offered
in evidence for Republic Act 8294 to apply. It is not enough
that there is evidence of the existence of the gun which can
be established either by testimony or presentation of the gun
itself.
Possession of an unlicensed firearm and used in killing is a
special aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)
The Decision of the Supreme Court in People versus Rex
Bergante, et. al., GR No. 120369, February 27, 1998, that
the use of an unlicensed firearm to commit murder is only a
generic aggravating circumstance is no longer true.
Possession under the law may either be actual physical
possession or constructive possession. However, although
the crime under PD 1866, as amended, is malum prohibitum,
however, there must be animus possidendi, or intent to
possess. Animus possidendi may be inferred from the fact
that an unlicensed firearm is under the apparent control and
power of the accused. however, animus possidendi may be
contradicted if a person in possession of an unlicensed
firearm does not assert a right thereto.
If the possession of an unlicensed gun is merely temporary,
incidental or transient, the same is not punishable under PD
1866. However, the law does not provide for a fixed period
of time for one to be deemed in "possession" of an
unlicensed firearm. (People -vs- Rolando Verches, 233
SCRA 174). Each factual milieu must be considered.
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL
POSSESSION OF FIREARMS)
P.D. 1866, which codified the laws on illegal possession of
firearms, was amended on June 6, 1997 by Republic Act
8264. Aside from lowering the penalty for said crime, R.A.
8294 also provided that if homicide or murder is committed
with the use of an unlicensed firearm, such use shall be
considered as a special aggravating circumstance. This
amendment has two (2) implications: first, the use of an
unlicensed firearm in the commission of homicide or murder
shall not be treated as a separate offense, but merely as a
special aggravating circumstance; second, as only a single
crime (homicide or murder with the aggravating
circumstance of illegal possession of firearm) is committed
under the law, only one penalty shall be imposed on the
accused.
Prescinding therefrom, and considering that the provisions
of the amendatory law are favorable to herein appellant, the
new law should be retroactively applied in the case at bar. It
was thus error for the trial court to convict the appellant of
two (2) separate offenses, i.e., Homicide and Illegal
Possession of Firearms, and punish him separately for each
crime. Based on the facts of the case, the crime for which the
appellant may be charged is homicide, aggravated by illegal
possession of firearm, the correct denomination for the
crime, and not illegal possession of firearm, aggravated by
homicide as ruled by the trial court, as it is the former
offense which aggravates the crime of homicide under the
amendatory law.
EVEN IF ACCUSED ADMITTED THAT HE HAS NO
LICENSE, SUCH ADMISSION IS NOT SUFFICIENT
PROOF OF ILLEGAL POSSESSION OF FIREARM
Hence, in the case at bar, although the appellant himself
admitted that he had no license for the gun recovered from
his possession, his admission will not relieve the prosecution
of its duty to establish beyond reasonable doubt the
appellant's lack of license or permit to possess the gun. In
People vs. Solayao, we expounded on this doctrine, thus:
"x x x by its very nature, an admission is the mere
acknowledgement of a fact or of circumstances from which
guilt may be inferred, tending to incriminate the speaker, but
not sufficient of itself to establish his guilt." In other words,
it is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself,
insufficient to authorize conviction. From the above
principles, this Court can infer that an admission in criminal
cases is insufficient to prove beyond doubt the commission
of the crime charged.
"Moreover, said admission is extrajudicial in nature. As
such, it does not fall under Section 4 of Rule 129 of the
Revised Rules of Court which states:
An admission, verbal or written, made by a party in the
course of the trial or other proceedings in the same case does
not require proof.
"Not being a judicial admission, said statement by accused-
appellant does not prove beyond reasonable doubt the
second element of illegal possession of firearm. It does not
even establish a prima facie case. It merely bolsters the case
for the prosecution but does not stand as proof of the fact of
absence or lack of a license." (emphasis supplied) (PP -vs-
JULIAN CASTILLO Y LUMAYRO, G.R. No. 131592-93,
Feb. 15, 2000)
LICENSE?
In the case of an explosive, a permit or license to possess it
is usually granted to mining corporations, military personnel
and other legitimate users. (PP -vs- BERNIE CORTEZ Y
NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000)
UNDER R.A. 8294 A SEPARATE CONVICTION FOR
ILLEGAL POSSESSION OF FIREARMS AND FOR
HOMICIDE IS NOT ALLOWED
With respect to the conviction of accused-appellant for
illegal possession of firearms under P.D. No. 1866, it was
held in the case of People vs. Molina and reiterated in the
recent case of People vs. Ronaldo Valdez, that in cases
where murder or homicide is committed with the use of an
unlicensed firearm, there can be no separate conviction for
the crime of illegal possession of firearms under P.D. No.
1866 in view of the amendments introduced by Republic Act
No. 8294. Thereunder, the use of unlicensed firearm in
murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a
separate offense. Furthermore, the penalty for illegal
possession of firearms shall be imposed provided that no
crime is committed. In other words, where murder or
homicide was committed, the penalty for illegal possession
of firearms is no longer imposable since it becomes merely a
special aggravating circumstance. (PP -vs- AUGUSTO
LORETO RINGOR, JR., G.R. No. 123918, Dec. 9, 1999)

ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS

To convict an accused for illegal possession of firearms and
explosive under P.D. 1866 as amended, two (2) essential
elements must be indubitably established, viz: (a) the
existence of the subject firearm or explosive which may be
proved by the presentation of the subject firearm or
explosive or by the testimony of witnesses who saw accused
in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the
firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP
Firearms and Explosives Unit that the accused has no license
or permit to possess the subject firearm or explosive.
In the case at bar, the prosecution failed to prove the second
element of the crime, i.e., the lack of license or permit of
appellant Cortez to possess the hand grenade. Although the
hand grenade seized by PO2 Santos from appellant was
presented in court, the records bear that PO2 Santos did not
submit the grenade to the PNP Firearms and Explosives Unit
for verification. This explains why no certification or
testimony was adduced by the prosecution at the trial to
prove that appellant Cortez was not licensed to possess the
explosive. The failure of the prosecution to adduce this fact
is fatal to its cause. We stress that the essence of the crime
penalized under P.D. 1866 is primarily the accused's lack of
license or permit to carry or possess the firearm, ammunition
or explosive as possession by itself is not prohibited by law.

MAY EXPLOSIVES BE GIVEN A PERMIT OR