BAR 2012 – CRIMINAL LAW

ANSWERS

ESSAY QUESTIONS:

I
a) What are the elements of the crime of bigamy? (5%)

ANSWER:
The elements of bigamy are:
1. That the offender has been legally married;
2. That said first marriage has not been legally dissolved, or in case his or
her spouse is absent, the absent spouse has not been judicially declared
presumptively dead;
3. That he contracts a subsequent or second marriage; and
4. That the subsequent or second marriage would have been valid had it
not been for the existence of the first marriage.

b) If you were the judge in a bigamy case where the defense was able to prove that the
first marriage was null and void or a nullity, wouldyou render a judgment of conviction
or acquittal? Explain youranswer.
(2%)

ANSWER:
If I were the judge, I would render a judgment of conviction. Proof that the first
marriage is null and void or a nullity is not a defense in bigamy.
Article 349, RPC is clear: Any person who contracts a second marriage without
first having a judicial declaration of the nullity of his or her first marriage, albeit on its
face void and inexistent, is guilty of bigamy.
Parties to the marriage are not permitted to judge for themselves its nullity, for
the same must be submitted to the judgment of competent courts. Only when the
nullity of the marriage is so declared by the court can it be held as void. As long as the
previous marriage was not lawfully dissolved or judicially declared void, contracting a
new marriage constitutes bigamy. (Lasanas vs. People, GR#159031, June 23, 2014)

c) Assuming the existence of the first marriage when accusedcontracted the

second marriage and the subsequent judicialdeclaration of nullity of the second
marriage on the ground ofpsychological incapacity, would you render a judgment
ofconviction or acquittal? Explain your answer.
(3%)

ANSWER:
If I were the Judge, I would still render a judgment of conviction. A subsequent
judicial declaration of nullity of the second marriage on the ground of psychological
incapacity is absolutely of no moment in so far as the State’s penal laws are
concerned. Since a marriage contracted during the subsistence of a valid marriage is
automatically void for being bigamous, the nullity of the second marriage is not per se
an argument for the avoidance of criminal liability for bigamy. (Tenebro vs. CA, GR
150758, February 18, 2004)
It is a settled rule that criminal culpability attaches to the offender upon the
commission of the offense. Hence, the crime of bigamy is committed by a person from
the time he contracts the second marriage while his first marriage exists. The finality
of the judicial declaration of nullity of his second marriage does not impede the filing
of a criminal charge for bigamy against him.(James Walter Capili vs. People, GR
183805, July 3, 2013)

II
a) What is a privileged mitigating circumstance? (5%)
ANSWER:
A privileged mitigating circumstance is that which if present or attendant in the
commission of a felony shall affect the imposition of penalty as to degree.

b) Distinguish a privileged mitigating circumstance from an ordinarymitigating

circumstance as to reduction of penalty and offsettingagainst aggravating
circumstance/s. (5%)

ANSWER:
The distinctions between ordinary and privileged mitigating circumstances are
as follows:

1. As to offsetting: An ordinary mitigating circumstance can be offset by a

generic aggravating circumstance WHEREAS a privileged mitigating circumstance
cannot be offset by any aggravating circumstance.
2. As to reduction of penalty: An ordinary mitigating circumstance, if not
offset by an aggravating circumstance, has the effect of lowering the imposable penalty
to its minimum period WHEREAS a privileged mitigating circumstance has the effect
of lowering the imposable penalty by one to two degrees.

Ill
a) Is the crime of theft susceptible of commission in the frustratedstage? Explain your
answer in relation to what produces the crime oftheft in its consummated stage and
by way of illustration of thesubjective and objective phases of the felony.
(5%)

ANSWER:
NO, the crime of Theft has no frustrated stage.
In the case of Valenzuela vs. People(GR 160188, June 21, 2007), the Supreme
Court ruled that unlawful taking is the element that produces the felony of Theft in its
consummated stage. Once unlawful taking is complete, theft is consummated.
Unlawful taking is deemed complete from the moment the offender gains possession of
the thing, even if he has no opportunity to dispose of the same. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted
theft. Thus, theft cannot have a frustrated stage. Theft can only be attempted or
consummated.

b) What are the constitutional provisions limiting the power of Congressto enact penal
laws? (5%)

ANSWER:
1. The penal law must be general in its application, otherwise, it would
violate the equal protection clause.
2. The penal law must not be an ex post facto law.
3. The penal law must not be a bill of attainder or one which punishes
without due process.
4. The penal lawmust not impose cruel, unusual, or degrading punishment.

IV
A postal van containing mail matters, including checks and treasurywarrants,
was hijacked along a national highway by ten (10) men, two (2) ofwhom were armed.
They used force, violence and intimidation againstthree (3) postal employees who were
occupants of the van, resulting in theunlawful taking and asportation of the entire van
and its contents.

a) If you were the public prosecutor, would you charge theten (10) men who hijacked
the postal van with violationof Presidential Decree No. 532, otherwise known asthe
Anti--Piracy and Anti-Highway Robbery Law of1974? Explain your answer.
(5%)
ANSWER:
No. If I were the public prosecutor, I would charge theten men of violation of RA
6539, The Anti-Carnapping Act. All the elements of carnapping are present. (1) there
was actual taking of a motor vehicle, the postal van; (2) the postal van belonged to
another; (3) the taking was done with intent to gain; and (4) the taking was done
without the consent of the owner and with force, violence and intimidation against the
3 van employees who were occupants thereof.
It is not highway robbery under PD 532 because there was no showing that the
10 men were a band of robbers organized for the purpose of committing robbery
indiscriminately. What was shown is one isolated hijacking of a postal van, hence,
carnapping.

b) If you were the defense counsel, what are the elementsof the crime of highway
robbery that theprosecution should prove to sustain a conviction?
(5%)

ANSWER:
The elements of highway robbery under PD 532 are:
1. That there is unlawful taking of property of another;
2. That said taking is with intent to gain;
3. That said taking is done with violence against or intimidation of persons
or force upon things or other unlawful means; and
4. That it was committed on any Philippine highway.
To sustain a conviction for highway robbery, the prosecution must prove that
the accused were organized for the purpose of committing robbery indiscriminately. If
the purpose is only a particular robbery, the crime is only robbery, or robbery in band
if there are at least four armed men. (People vs. Mendoza, GR 104461, February 23,
1996; Filoteo, Jr. vs. Sandiganbayan, GR 79543, October 16, 1996)

V
a) Who is an accomplice? (5%)

ANSWER:
An accomplice is one who, not being a principal, cooperates in the execution of
the offense by previous or simultaneous acts. (Article 18, RPC)

b) Distinguish an accomplice from a conspirator as to their knowledge ofthe criminal

design of the principal, their participation, the penalty tobe imposed in relation to the
penalty for the principal, and therequisites/elements to be established by the
prosecution in order tohold them criminally responsible for their respective roles in
thecommission of the crime. (5%)

ANSWER:
The distinctions between a conspirator and an accomplice are as follows:
1. As to knowledge of the principal’s criminal design: A conspirator knows
the criminal design because he was part of the planning and decision to commit the
crime; WHEREAS an accomplice knows the criminal design because he was informed
by the principal and he concurred with it.
2. As to their participation: A conspirator authors the commission of the
crime; WHEREAS an accomplice is a mere instrument who performs acts which are
not indispensable, previous or simultaneous, to the commission of the crime.
3. As to the penalty to be imposed: The penalty to be imposed on a
conspirator is the of the same degree as that of the principal WHEREAS the penalty to
be imposed on an accomplice is one degree lower than that of the principal.
4. As to the elements to be established by the prosecution:
To convict one as a conspirator, the elements are: (a) that two or more persons come to
an agreement; (b) that the agreement concerns the commission of felony; and (c) that
these persons decide to commit the felony; WHEREAS the elements to be proved to
convict one as an accomplice are: (a) that there is a community of design between the
principal and the accomplice; (b) that the accomplice performs acts previous or
simultaneous to the commission of the crime; and (c) that the acts performed by an
accomplice is related to those of the principal.

VI
a) What is the fundamental principle in applying and interpreting criminallaws,
including the Indeterminate Sentence Law? (5%)

ANSWER:
The fundamental principle in applying criminal laws is the Doctrine of Pro Reo
which provides that penal laws shall always be construed liberally in favor of the
accused. In dubio pro reo, i.e., when in doubt, rule for the accused. This is in
consonance with the constitutional guarantee that an accused is presumed innocent
until proven guilty beyond reasonable doubt.

b) How is the Indeterminate Sentence Law applied in imposing asentence?

(5%)

ANSWER:
Under the Indeterminate Sentence Law, there are two formulae for
determining the indeterminate penalty to be imposed on the convict – that for felonies
under the RPC and that for crimes defined by special penal laws.
If the crime is penalized by the RPC, the maximum term of the sentence shall
be that penalty provided for by law after appreciating all the attending circumstances
surrounding the commission of the crime, while the minimumterm of the sentence
shall be one degree lower than the maximum, the range of the minimum left to the
sound discretion of the court.
If the crime is penalized by special laws,the minimum of the indeterminate
penalty should not be less than the minimum of the penalty prescribed by the law and
the maximum of the indeterminate penalty should not be beyond or should not exceed
that of the maximum of the penalty prescribed by the special law.(Section 1,
Indeterminate Sentence Law)

VII
a) Who are brigands? (5%)

ANSWER:
When more than 3 armed persons form a band of robbers for any of the
following purposes: (1) to commit robbery in the highway; (2) to kidnap persons for the
purpose of extortion or to obtain ransom; or (3) to attain by means of force and
violence any other purposes, they shall be deemed highway robbers or brigands.
(Article 306, RPC)

b) Distinguish brigandage from robbery in band as to elements, purposeof the

offender, and agreement among the offenders. (5%)

ANSWER:
The following are the distinctions between brigandage and robbery in band:
1. As to elements:The elements of brigandage are: (a) that there be at least 4
armed persons; (b) that they form a band of robbers; and (c) that their purpose is
either to commit robbery in the highway, or to kidnap persons for the purpose of
extortion or to obtain ransom, or to attain by means of force and violence any other
purposes, WHEREAS the elements of robbery in band are: (a) that there be at least 4
armed persons: and (b) that they took part in the commission of a robbery.
2. As to purpose of the offenders: In brigandage, the purpose of the
brigands is either to commit robbery in the highway, or to kidnap persons for the
purpose of extortion or to obtain ransom, or to attain by means of force and violence
any other purposes, WHEREAS in robbery in band, the purpose of the robbers is to
commit robbery, not necessarily in the highway.
 3. As to agreement among the offenders: In brigandage, the agreement
among the brigands is to commit robbery in the highway, WHEREAS in robbery in
band, the agreement among the robbers is to commit only a particular robbery.

VIII
a) Who is a habitual delinquent? (5%)

ANSWER:
The offender is a habitual delinquent if within a period 10 years from the date of
his last conviction or last release from jail of any of the crimes of serious physical
injuries, less serious physical injuries, robbery, theft, estafa, or falsification, he shall
be found guilty of any of these crimes a third time or oftener. (Article 64, RPC)

b) Distinguish habitual delinquency from recidivism as to the crimescommitted, the

period of time the crimes are committed, the numberof crimes committed, and their
effects in relation to the penalty tobe imposed on a convict.
(5%)
ANSWER:
The following are the distinctions between recidivism and habitual delinquency:

1. As to the crimes committed: In recidivism, the crimes are only required to be

embraced in the same title of the Revised Penal Code WHEREAS in habitual
delinquency, the crimes are specified as serious physical injuries, less serious physical
injuries, robbery, theft, estafa, and falsification.
2. As to the period of time the crimes are committed: In recidivism, there is no
required period of time between the first crime which must be a conviction by final
judgment and the second crime WHEREAS in habitual delinquency, each crime must
be committed within a period 10 years from the date of his last conviction or last
release from jail.
3. As to the number of crimes committed: In recidivism, there must be at least 2
crimes committed WHEREAS in habitual delinquency, there must be at least 3 crimes
committed.
4. As to the effect on the imposable penalty: Recidivism is a generic aggravating
circumstance which will increase the imposable penalty to its maximum period if not
offset by an ordinary mitigating circumstance WHEREAS habitual delinquency is a
special or extraordinary aggravating circumstance which will bring about the
imposition of an additional penalty for the third or subsequent crime. It cannot be
offset by any mitigating circumstance.

IX
a) Define conspiracy. (5%)

ANSWER:
There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit. (Article 8, RPC)

b) Distinguish by way of illustration conspiracy as a felony from conspiracy as a

manner of incurring liability in relation to the crimes of rebellion and murder.
(5%)

ANSWER:
Illustration of conspiracy as a felony – A, B, C, D, and E conspired to overthrow
the government. For merely conspiring, they are already liable of Conspiracy to
Commit Rebellion penalized under Article 136, RPC. Here, conspiracy is a crime by
itself because the law penalizes the mere act of conspiring, without need for the
offenders to actually commit rebellion, the crime agreed upon.
Illustration of conspiracy as a manner of incurring liability – A, B, and C
conspired to kill X. They agreed to wait in ambush for X in a dark portion of the street
where he usually passes by. For merely conspiring, they are not yet liable. Here,
conspiracy is only a means of committing a crime because the law does not penalize
conspiracy to commit murder. For A, B, and C to become liable, they must actually
commit the crime agreed upon, murder.

X
a) Explain and illustrate the stages of execution of the crime ofhomicide, taking into
account the nature of the offense, the essential element of each of the stages of
execution and the manner ofcommitting such intentional felony as distinguished from
felonycommitted through reckless imprudence. (5%)

ANSWER:
Illustration of an intentional felony, homicide and its 3 stages: attempted,
frustrated and consummated.
X, with intent to kill, shot Y.
If Y sustained a non fatal wound near the shoulder, X is liable of Attempted
Homicide. X’s act of shooting Y is an overt act directly connected to homicide,
however, he was not able to perform all the acts of execution to bring about homicide
by reason some cause or accident other than his spontaneous desistance, i.e., the
wound inflicted is non fatal.
If Y sustained a fatal wound on the chest that could have caused his death were
it not for the immediate medical operation performed on him, the crime committed is
Frustrated Homicide. It is frustrated because when X inflicted a fatal gunshot wound
on Y, X has already performed all the acts of execution to bring about homicide,
however, homicide is not produce by reason of a cause independent of the will of the
perpetrator, i.e., an immediate medical operation done on the victim.
If Y died, X is liable of homicide because X has already performed the
acts/elements necessary for the accomplishment of homicide.

Illustration of a felony committed though reckless imprudence.

X was driving his car recklessly when he hit a pedestrian.
If the pedestrian died, X is liable of Reckless Imprudence resulting in Homicide.
Since the victim died, even if there was no intent to kill, the felony resulting from the
imprudence is homicide because intent to kill becomes a general criminal intent which
is presumed by law.
If the pedestrian did not die, X is liable of Reckless Imprudence resulting in
Physical Injuries. Since there was no intent to kill on the part of X, the felony resulting
from the imprudence would only be physical injuries. There is no such crime as
Reckless Imprudence resulting in Frustrated or Attempted Homicide because there
was no intent to kill on the part of the accused.

b) AA was arrested for committing a bailable offense and detained insolitary

confinement. He was able to post bail after two (2) weeks of detention. During the
period of detention, he was not given anyfood. Such deprivation caused him physical
discomfort. What crime, if any, was committed in connection with the solitary
confinement andfood deprivation of AA? Explain your answer.
(5%)

ANSWER:
The crime committed is Violation of RA 9745, The Anti-Torture Act. Food
deprivation and confinement in solitary cell are considered as physical and
psychological torture under Section 4(2) of RA 9745.

**********
 BAR 2013 – CRIMINAL LAW
ANSWERS

ESSAY QUESTIONS:
I.
Bruno was charged with homicide for killing the 75-year old owner ofhis
rooming house. The prosecution proved that Bruno stabbed the ownercausing his
death; and that the killing happened at 10 in the evening in thehouse where the victim
and Bruno lived. Bruno, on the other hand,successfully proved that he voluntarily
surrendered to the authorities; that hepleaded guilty to the crime charged; that it was
the victim who first attackedand did so without any provocation on his (Bruno's) part,
but he prevailedbecause he managed to draw his knife with which he stabbed the
victim. Thepenalty for homicide is reclusion temporal.
Assuming a judgment of conviction and after considering theattendant
circumstances, what penalty should the judge impose? (7%)

ANSWER:
The Judge should impose an indeterminate penalty of arresto mayor in any of
its period as the minimum term of the sentence to prision correccional in its medium
period as the maximum term of the sentence. Bruno was entitled to 2 privileged
mitigating circumstances of incomplete self-defense and the presence of 2 ordinary
mitigating circumstances without any aggravating circumstance which under Articles
69 and 64(5), RPC, respectively, would lower the prescribed penalty for homicide –
reclusion temporal – to prision correccional.
There is incomplete self-defense because Bruno proved the presence of unlawful
aggression, as it was the victim who first attacked him, and did so without provocation
on Bruno’s part. There is, however, no reasonable necessity of the means employed to
prevent/repel the unlawful aggression because Bruno used a knife to stab the
weaponless aggressor. In addition, Bruno proved the presence of 2 other mitigating
circumstances, namely: voluntary surrender and voluntary plea of guilt.
There are no aggravating circumstances present because it was not shown that
Bruno disregarded the age of the victim or that nighttime facilitated the commission.
Further, dwelling cannot be appreciated as an aggravating circumstance because the
crime happened in the house where both Bruno and the victim lived.
Applying the Indeterminate Sentence Law, the maximum term of the
indeterminate penalty should be within the range of prision correccional in its medium
period and the minimum term should be within the range of the penalty next lower in
degree or arresto mayor in any of its period.
II.
While walking alone on her way home from a party, Mildred wasseized at gun
point by Felipe and taken on board a tricycle to a house somedistance away. Felipe
was with Julio, Roldan, and Lucio, who drove thetricycle.
At the house, Felipe, Julio, and Roldan succeeded in having sexualintercourse
with Mildred against her will and under the threat of Felipe'sgun. Lucio was not
around when the sexual assaults took place as he leftafter bringing his colleagues and
Mildred to their destination, but he returnedeveryday to bring food and the news in
town about Mildred's disappearance.For five days, Felipe, Julio and Roldan kept
Mildred in the house and tookturns in sexually assaulting her. On the 6th day,
Mildred managed to escape;she proceeded immediately to the nearest police station
and narrated her ordeal.
 What crime/s did Felipe, Julio, Roldan, and Lucio commit andwhat was their
degree of participation? (7%)

ANSWER:
Felipe, Julio, Roldan and Lucio are all liable for the special complex crime of
Kidnapping and Serious Illegal Detention with Rape. It was sufficiently proved that the
4 accused kidnapped Mildred and held her in detention for 5 days and carnally
abused her. Since it is a special complex crime, no matter how many times the victim
had been raped, the resultant crime is only one kidnapping and serious illegal
detention with rape. The composite acts are regarded as a single indivisible offense
with only one penalty. It is illegal detention and not forcible abduction since it was
evident that the intent was to detain the victim.
As to the degree of their participation, Felipe, Julio, Roldan and Lucio are all
liable as principals. There was implied conspiracy as they acted toward a single
criminal design or purpose. (People vs. Mirandilla, Jr., GR 186417, July 27, 2011)
Although Lucio was not around when the sexual assaults took place, there is
complicity on his part as he was the one who drove the tricycle at the time the victim
was seized and he returned everyday to bring food and news to his conspirators.

III.
Modesto and Abelardo are brothers. Sometime in August, 1998 whileAbelardo
was in his office, Modesto, together with two other men in policeuniform, came with
two heavy bags. Modesto asked Abelardo to keep thetwo bags in his vault until he
comes back to get them. When Abelardo laterexamined the two bags, he saw bundles
of money that, in his rough count,could not be less than P5 Million. He kept the
money inside the vault andsoon he heard the news that a gang that included Modesto
had been engaged in bank robberies. Abelardo, unsure of what to do under the
circumstances, kept quiet about the two bags in his vault. Soon after, the police
captured,and secured a confession from, Modesto who admitted that their loot
hadbeen deposited with Abelardo.
What is Abelardo's liability? (7%)

ANSWER:
Abelardo is not criminally liable.
He is not liable as an accessory because he has no knowledge of the
commission of the crime of robbery. Mere presumption will not suffice. Moreover,
granting for the sake of argument that his act would amount to that of an accessory–
concealing the body of the crime or the effects or instruments thereof to prevent its
discovery (Article 19, par.2, RPC) – he is exempted from criminal liability, being the
brother of Modesto. (Article 20, RPC)
He is also not liable as a fence under PD 1612, the Anti Fencing Law. The
elements of fencing are: (1) that a crime of robbery or theft has been committed; (2)
that the accused,who was not a principal or accomplice in the crime of robbery or
theft, buys, receives, possesses, keeps, acquires, conceals, sells, disposes, or buys and
sells, or in any other manner deals with any article, item or object that is the proceeds
of robbery or theft; (3) that the accused knows or should have known that the thing in
his possession is the proceeds of robbery or theft; and (4) that there is, on the part of
the accused, intent to gain, for himself or for another. Although the first 3 elements
are present, the last element of intent to gain is absent. Abelardo kept quiet about the
2 bags of money in the vault because he was unsure of what to do under the
circumstances.

IV.
In her weekly gossip column in a tabloid, Gigi wrote an unflatteringarticle about
Pablo, a famous singer, and his bitter separation from his wife.The article portrayed
Pablo as an abusive husband and caused him to loselucrative endorsement contracts.
Pablo charged Gigi with libel. In herdefense, Gigi countered that she did not commit
libel because Pablo hasattained the status of a public figure so that even his personal
life has become a legitimate subject of public interest and comment.
Is Gigi correct? (7%)
ANSWER:
No. Gigi is not correct.
Gigi was attacking the personal life of Pablo as a husband and not his public
life as a famous singer. She portrayed Pablo as an abusive husband that caused him
to lose lucrative endorsement contracts. Such defamatory utterances are not
protected. Any attack upon the private character of a public figure on matters which
are not related to their works would constitute libel. (Sazon vs. CA, GR 120715, March
29, 1996; Fermin vs. People, GR 157643, March 28, 2008)

V.
Michael was 17 years old when he was charged for violation of Sec. 5of R.A.
9165 (illegal sale of prohibited drug). By the time he wasconvicted and sentenced, he
was already 21 years old. The court sentencedhim to suffer an indeterminate penalty
of imprisonment of six (6) years andone (1) day of prision mayor, as minimum, to
seventeen (17) years and four(4) months of reclusion temporal, as maximum, and a fine
of P500,000.Michael applied for probation but his application was denied because
theprobation law does not apply to drug offenders under R.A. 9165. Michael then
sought the suspension of his sentence under R.A. 9344 or theJuvenileJustice and
Youth Welfare Code.
Can Michael avail of the suspension of his sentence providedunder this law?
(7%)

ANSWER:
The benefits of a suspended sentence can no longer apply to Michael. Under
Section 40, RA 9344 as amended, the suspension of sentence lasts only until the
offender reaches the maximum age of 21 years. Since Michael was already 21 years
old, he can no longer be given a suspended sentence. However, in lieu of confinement
in a regular penal institution, Michael may serve his sentence in an agricultural camp
and other training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD. (Section 51, RA 9344 as
amended; People vs. Jacinto, GR 182239, March 16, 2011; People vs. Salcedo, GR
186523, June 22, 2011; Padua vs. People, GR 168546; July 23, 2008; People vs. Sarcia,
GR 169641, September 10, 2009)

VI.
Roberto bought a Toyota Fortuner from Inigo for P500,000. Whiledriving his
newly-bought car, Roberto met a minor accident that made theexamination of his
vehicle's Registration Certificate necessary. When thepoliceman checked the plate,
chassis and motor numbers of the vehicleagainst those reflected in the Registration
Certificate, he found the chassisand motor numbers to be different from what the
Registration Certificatestated. The Deed of Sale covering the sale of the Fortuner,
signed by Inigo,also bore the same chassis and motor numbers as Roberto's
RegistrationCertificate. The chassis and motor numbers on the Fortuner were
found,upon verification with the Land Transportation Office, to correspond to avehicle
previously reported as carnapped.
Roberto claimed that he was in good faith; Inigo sold him a carnapped vehicle
and he did not know that he was buying a carnapped vehicle.
If you were the prosecutor, would you or would you not charge
Roberto with a crime? (7%)

ANSWER:
If I were the public prosecutor, I would charge Roberto of violation of PD 1612,
The Anti-Fencing Law.The elements of fencing are: (1) that a crime of robbery or theft
has been committed; (2) that the accused, who was not a principal or accomplice in
the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals,
sells, disposes, or buys and sells, or in any other manner deals with any article, item
or object that is the proceeds of robbery or theft; (3) that the accused knows or should
have known that the thing in his possession is the proceeds of robbery or theft; and (4)
that there is, on the part of the accused, intent to gain, for himself or for another.
 All the elements are present. Someone carnapped theToyota Fortuner, and sold
it to Roberto who did not take part in the commission of the crime. Roberto should
have known that the car was stolen because it was not properly documented as the
deed of sale and registration certificate did not reflect the correct numbers of the
vehicle’s engine and chassis. Apparently, he made no effort to check the papers
covering his purchase.
Roberto’s claim of good faith has no merit because PD 1612 is a malum
prohibitum, therefore, good faith is not a defense. (Dimat vs. People, GR 181144,
January 25, 2012)

VII.
Miss Reyes, a lady professor, caught Mariano, one of her students, cheating
during an examination. Aside from calling Mariano's attention, she confiscated his
examination booklet and sent him out of the room, causing Mariano extreme
embarrassment.
In class the following day, Mariano approached Miss Reyes and without any
warning, slapped her on the face. Mariano would have inflicted grave injuries on Miss
Reyes had not Dencio, another student, intervened. Mariano then turned his ire on
Dencio and punched him repeatedly, causing him injuries.
What crime or crimes, if any, did Mariano commit? (7%)

ANSWER:
Mariano is liable of 2 counts of Direct Assault.
The elements of Direct Assault are: (a) that the accused makes an attack,
employs force, makes a serious intimidation ora serious resistance; (b) that the person
assaulted is a person in authority or his agent; (c) that at the time of the assault the
person in authority or his agent is engaged in the performance of his official duties or
that the assault was on the occasion of the performance of his official duties; (d) that
the accused knows that the person he is assaulting is a person in authority or his
agent in the exercise of his duties; and (e) that there is no public uprising.
The first Direct Assault is qualified by laying of hands on a person in authority.
Mariano slapped Ms. Reyes, a person in authority underArticle 152, RPC, while she
was in the performance of her official duties.
The second Direct Assault was committed when Mariano repeatedly punched
Dencio who became an agent of a person in authority when he came to the aid of Ms.
Reyes, a person in authority who was a victim of direct assault.

VIII.
William is the son-in-law of Mercedes who owns several pieces ofreal property.
In 1994, William's wife, Anita, died. In 1996, William causedthe preparation of a
Special Power of Attorney (SPA) giving him theauthority to sell two (2) parcels of land
registered in the name of Mercedes.The signature of Mercedes in the SPA was forged
and, through this forgedSPA and without the consent and knowledge of Mercedes,
Williamsucceeded in selling the two (2) parcels for Php 2,000,000. He pocketed
theproceeds of the sale.
Mercedes eventually discovered William's misdeeds and filed acriminal
complaint. William was subsequently charged with estafa throughfalsification of
public document.
Was the criminal charge proper? (7%)

ANSWER:
Yes, the criminal charge of estafa through falsification of public document is
proper. William forged the signature of his mother in law in the Special Power of
Attorney, a public document, as a necessary means to sell her properties without
remitting the proceeds thereof, thereby committing estafa. Although the relationship of
affinity created between Wiliam and his mother in law survived the death of his wife
Anita, the absolutory cause under Article 332(1), RPC does not apply to him. Said
absolutory cause is strictly limited to the simple cases of theft, estafa/swindling, and
malicious mischief. It does not apply where any of these crimes is complexed with
another crime. (Intestate Estate of Manolita Gonzales vda. De Carungcong vs. People,
GR 181409, February 11, 2010)
 IX.
Roman and Wendy are neighbors. On Valentine's Day, without priornotice,
Roman visited Wendy at her condo to invite her to dinner, butWendy turned him down
and abruptly left, leaving her condo door unlocked.Roman attempted to follow, but
appeared to have second thoughts; hesimply went back to Wendy's condo, let himself
in, and waited for herreturn. On Wendy's arrival later that evening, Roman grabbed
her frombehind and, with a knife in hand, forced her to undress. Wendy had nochoice
but to comply. Roman then tied Wendy's hands to her bed andsexually assaulted her
five (5) times that night.
Roman was charged with, and was convicted of, five (5) counts ofrape, but the
judge did not impose the penalty of reclusion perpetua for eachcount. Instead, the
judge sentenced Roman to 40 years of imprisonment onthe basis of the three-fold rule.
Was the judge correct? (7%)
ANSWER:
The judge is not correct. The Three Fold Rule applies to service of sentence, not
on the imposition of penalty. The computation under the three-fold rule is for the
prison authorities to make.The court must impose all penalties for all the crimes the
accused have been found guilty of. The court must impose a penalty for each rape.
The proper penalty, therefore, is reclusion perpetua for each count of rape.

X.
Frank borrowed Pl,000,000 from his brother Eric. To pay the loan,Frank issued
a post-dated check to be presented for payment a month afterthe transaction. Two
days before maturity, Frank called Eric telling him hehad insufficient funds and
requested that the deposit of the check bedeferred. Nevertheless, Eric deposited the
check and it was dishonored.When Frank failed to pay despite demand, Eric filed a
complaint against himfor violation ofBatas Pambansa Big. 22 (The Bouncing Checks
Law).
Was the charge brought against Frank correct? (7%)

ANSWER:
Yes, the charge is correct. Violation of Batas Pambansa Big. 22, The Bouncing
Checks Law,is malum prohibitum which is committed by mere issuance of a check
without sufficient funds. Good faith is not a defense. As long as the check was issued
on account or for value, the purpose for which the check was issued, the terms and
conditions relating to the issuance are irrelevant to the prosecution of the offender.
Hence, the request of Frank to defer the deposit of the check as it has insufficient
funds will not militate against the prosecution for violation of BP 22.

XI.
Assume that you are a member of the legal staff of Senator Salcedowho wants
to file a bill about imprisonment at the National Penitentiary inMuntinlupa. He wants
to make the State prison a revenue earner for thecountry through a law providing for
premium accommodations for prisoners(other than those under maximum security
status) whose wives are allowedconjugal weekend visits, and for those who want long-
term premiumaccommodations.
For conjugal weekenders, he plans to rent out rooms with hotel-likeamenities at
rates equivalent to those charged by 4-star hotels; for long-termoccupants, he is
prepared to offer room and board with special meals in airconditioned single-
occupancy rooms, at rates equivalent to those charged by3-star hotels.
What advice will you give the Senator from the point of view ofcriminal law,
taking into account the purpose of imprisonment (7%)and considerations of ethics and
morality (3%)? (10%total points)

ANSWER:
I would advise Senator Salcedo not to file the said bill. First, the bill is
unconstitutional as it violates the equal protection clause of the Constitution. It will
create economic inequality in our criminal justice system. Rich prisoners will enjoy
better amenities and privileges than those who are poor.Second, the bill will defeat the
purpose of penalties in criminal law, which is to secure justice, retribution, and
reformation.

-0-0-0-0-

BAR 2014 – CRIMINAL LAW

ANSWERS

I.
Ms. A had been married to Mr. B for 10 years. Since their marriage,Mr. B had
been jobless and a drunkard, preferring to stay with his“barkadas” until the wee
hours of the morning. Ms. A was the breadwinnerand attended to the needs of their
three (3) growing children. Many times,when Mr. B was drunk, he would beat Ms. A
and their three (3) children, andshout invectives against them. In fact, in one of the
beating incidents, Ms. Asuffered a deep stab wound on her tummy that required a
prolonged stay inthe hospital. Due to the beatings and verbal abuses committed
against her,she consulted a psychologist several times, as she was slowly beginning
tolose her mind. One night, when Mr. B arrived dead drunk, he suddenlystabbed Ms. A
several times while shouting invectives against her.
Defending herself from the attack, Ms. A grappled for the possession of aknife
and she succeeded. She then stabbed Mr. B several times which causedhis
instantaneous death. Medico-Legal Report showed that the husbandsuffered three (3)
stab wounds.
Can Ms. A validly put up a defense?Explain. (5%)

ANSWER:
Yes, Ms. A can put up the defense of battered woman syndrome. She is
suffering from physical and psychological or emotional distress resulting from
cumulative abuse by her husband. She even consulted a psychologist several times, as
she was slowly beginning to lose her mind. Under Section 26, RA 9262 of The Anti-
Violence against Women and their Children Act, “victim survivors who are found by
the court to be suffering from battered woman syndrome do not incur any criminal
and civil liability notwithstanding the absence of any of the elements for the justifying
circumstance of self-defense under the Revised penal Code.”

II.
Macho married Ganda, a transgender. Macho was not then aware thatGanda
was a transgender. On their first night, after their marriage, Machodiscovered that
Ganda was a transgender. Macho confronted Ganda and aheated argument ensued. In
the course of the heated argument, a fight tookplace wherein Ganda got hold of a knife
to stab Macho. Macho ran awayfrom the stabbing thrusts and got his gun which he
pointed at Ganda just tofrighten and stop Ganda from continuing with the attack.
Macho had nointention at all to kill Ganda. Unfamiliar with guns, Macho
accidentallypulled the trigger and hit Ganda that caused the latter’s death.
What was thecrime committed? (4%)
ANSWER:
Macho committed the crime of Homicide. Since death resulted from Macho’s act
of accidentally pulling the trigger of the gun, homicide is committed. Here, intent to
kill is a general criminal intent which is presumed by law because the victim died.

III.
City Engr. A, is the city engineer and the Chairman of the Bids andAwards
Committee (BAC) of the City of Kawawa. In 2009, the City ofKawawa, through an
ordinance, allotted the amount of P100 million for theconstruction of a road leading to
the poblacion. City Engr. A instead,diverted the construction of the road leading to his
farm. Investigationfurther showed that he accepted money in the amount of P10
million eachfrom three (3) contending bidders, who eventually lost in the bidding.
Audit report likewise showed that service vehicles valued at P2million could not
be accounted for although reports showed that these werelent to City Engr. A’s
authorized drivers but the same were never returned.Further, there were funds under
City Engr. A’s custody amounting to P10million which were found to be missing and
could not be accounted for. Inanother project, he was instrumental in awarding a
contract for the construction of a city school building costing P10 million to a close
relative, although the lowest bid was P8 million. Investigation also revealed that
CityEngr. A has a net worth of more than P50 million, which was way beyondhis
legitimate income. (8%)

(A) If you are the Ombudsman, what charge or charges will you fileagainst City
Engr. A?
(B) Suppose the discovered net worth of City Engr. A is less thanP50 million, will
your answer still be the same?

ANSWER:
(A) If I am the Ombudsman, I would file a case of Plunder under RA 7080
against City Engineer A. Engr. A is a public officer who amassed, accumulated or
acquired ill-gotten wealth through a combination of overt or criminal acts of misuse,
misappropriation, conversion, or malversation of public funds, receiving kickbacks
from persons in connection with a government contract or project by reason of his of
office or position, and illegally or fraudulently conveying or disposing of assets
belonging to the national government, in the aggregate amount or total value of at
least P50 million.
(B) Yes, my answer will still be the same. City Engr. A’s net worth being less
than P50 million is not determinative of his liability. What is the material is the fact
that he acquired, amassed and accumulated ill-gotten wealth of more than P50million.
The basis of plunder is the combination of criminal acts or series of acts that
accumulated at least P50million. The predicate crimes are already absorbed in the
crime of plunder.

IV.
Madam X, a bank teller, received from depositor Madam Y a checkpayable to
cash in the amount of P1 million, to be deposited to the accountof Madam Y. Because
the check was not a crossed check, Madam Xcreditedthe amount to the account of her
good friend, Madam W, by accomplishing adeposit slip. Seven (7) days after, Madam X
contacted her good friend,Madam W and told her that the amount of P1 million was
wrongfullycredited to Madam W, thus, Madam X urged Madam W to withdraw
theamount of P1 million from her account and to turn over the same to MadamX. As a
dutiful friend, Madam W readily acceded. She was gifted byMadam X with an
expensive Hermes bag after the withdrawal of the amount.
What crime/s, if any, did Madam X and Madam W commit? Explain.
(5%)

ANSWER:
Madam X committed the crime of Qualified Theft under Article 310, RPC. When
Madam X, a bank teller, received the check payable to cash in the amount of P1million
for deposit to the account of Madam Y, what was transferred to her was merely the
physical or material possession thereof. Hence, her subsequent misappropriation of
the amount shall constitute theft, qualified by grave abuse of confidence. There is
grave abuse of confidencebecause the relationship of guardianship, dependence, and
vigilance between the depositor and the bank created a high degree of confidence
between them which Madam X, as the bank teller representing the bank, abused.

V.
Congress passed a law reviving the Anti-Subversion Law, making it acriminal
offense again for a person to join the Communist Party of thePhilippines. Reporma, a
former high-ranking member of the CommunistParty, was charged under the new law
for his membership in the CommunistParty when he was a student in the 80’s. He
now challenges the chargeagainst him.
What objections may he raise? (3%)

ANSWER:
Reporma may raise the argument that one of the limitations on the power of
Congress to enact a penal is that it cannot pass an ex post facto law. An ex post facto
law is a law which makes an act criminal although at the time it was committed, it
was not yet so. Charging Reporma under this new law for his previous membership in
the Communist Party would be unconstitutional. The retroactive application of the law
cannot be prejudicial to the accused.

VI.
A was caught peeping through a small hole in the bathroom doorwhile a young
16-year-old lady was taking a bath. A is liable for:
(1%)
(A) Violation of R.A. 9262 or Violence Against Women and theirChildren
(B) Violation of R.A. 7610 – Child Abuse Law
(C) Light coercion
(D) Acts of lasciviousness

VII.
Filthy, a very rich businessman, convinced Loko, a clerk of court, toissue an
order of release for Takas, Filthy’s cousin, who was in jail for adrug charge. After
receiving P500,000.00, Loko forged the signature of thejudge on the order of release
and accompanied Filthy to the detention center.
At the jail, Loko gave the guard P10,000.00 to open the gate and let Takasout.
What crime or crimes did Filthy, Loko, and the guard commit?
(4%)
ANSWER:
Filthy is liable of:
(1) Delivery of prisoners from Jail, Article 156, RPC, because he assisted in the
removal of Takas, a detention prisoner, from jail.
(2) Corruption of Public Officials, Article 212, RPC, because he gave
P500,000.00 to the clerk of court, under circumstances in which said public officer
would be liable of direct bribery.
(3) Falsification of Public Document, Article 172(1), RPC, as a principal by
inducement because he gave the clerk of court P500,000.00 to induce him to forge the
signature of the judge in the order of release.

Loko is liable of:

(1) Direct Bribery, Article 210, RPC, because he accepted P500,000.00 in
consideration of the execution of an act which constitutes a crime, i.e., forging the
signature of the judge in the order of release that would enable Takas to get out of jail,
in connection with the performance of his duty as a clerk of court.
(2) Falsification of Public Document, Article 171, RPC, because he took
advantage of his position as a clerk of court in forging the signature of the judge in the
order of relase.
(3) Delivery of Prisoners from Jail, Article 156, RPC, because he assisted in the
removal of Takas from jail by forging the signature of the judge in the in the falsified
order of release.
 The guard is liable of:
(1) Direct Bribery, Article 210, RPC, because he agreed to open the gate and let
Takas out in consideration of P10,000.00.
(2) Infidelity in the Custody of Prisoners, Article 223, RPC, because he, as the
custodian of Takas, connived or consented to his escape by opening the gate.

VIII.
Pretty was a campus beauty queen who, because of her looks andcharms,
attracted many suitors. Having decided that she would become anun, Prettyturned
down all her suitors. Guapo, one of her most persistentsuitors, could not handle
rejection and one night, decided to accost Prettyasshe walked home. Together with
Pogi, Guapo forced Prettyinto his car anddrove her to an abandoned warehouse where
he and Pogi forced Pretty todance for them. Later, the two took turns in raping her.
After satisfyingtheir lusts, Guapo and Pogi dropped her off at her house.
(4%)

(A)What crime or crimes did Guapo and Pogi commit?

(B)Pretty, after the ordeal, decided to take her own life by hangingherself one
hour after the rape. Would Guapo and Pogi beliable for Pretty’s death? Explain.

ANSWER:
(A) Guapo and Pogi committed the complex crime of Forcible Abduction with
Rape. They abducted Pretty against her will and with lewd design, and thereafter rape
the her. Forcible abduction was a necessary means to commit the crime of Rape. Since
there is conspiracy, Guapo and Pogi are responsible not only for the rape each
personally committed but also for the rape committed by his co-conspirator.
(B) Guapo and Pogi would not be held liable for the death of Pretty. Suicide is
an efficient intervening cause that has broken the causal connection between the
rapes and the death.In People vs. Napudo (GR 168448, October 8, 2008), the victim
committed suicide due to rape. The accused was only charged with and convicted of
rape.

IX.
A, B, and C agreed to rob the house of Mr. D at 10 o’clock in theevening, with C
as the driver of the tricycle which they would use in goingto and leaving the house of
Mr. D, and A and B as the ones who would enterthe house to get the valuables of Mr.
D. As planned, C parked the tricycle ina dark place, while A andB entered the house
thru an open door. Onceinside, A entered the master’s bedroom and started getting all
the valuableshe could see, while B entered another room. While inside the room, B
saw amale person and immediately B brought out his gun but he accidentallypulled
its trigger. The bullet went through the window, hitting a neighbour that killed him.
Neighbors were then awakened by the gunfire andpolicemen were alerted. Not long
after, policemen arrived. A and Bpanicked and got hold of a young boy and shouted to
the policemen whowere already outside of the house that they would harm the boy if
thepolicemen did not disperse. A and B demanded that they should be allowedto use a
vehicle to bring them to a certain place and that would be the timethat they would
release the young boy. The policemen acceded. In themeantime, C was arrested by the
policemen while he was about to flee,while A andB, after releasing the young boy, were
arrested.
What crime/s did A, B, and C commit, and what modifyingcircumstances
attended the commission of the crime/s? (6%)

ANSWER:
A, B, and C committed the crime of robbery with homicide under Article 294,
RPC. The criminal design was to rob but in the course of said robbery, B accidentally
pulled the trigger of his gun hitting and killing a neighbour of the victim. Even if said
death is accidental, the crime is still robbery with homicide because the killing took
place by reason or on occasion of the robbery. The term “homicide” is used in its
generic sense, which includes accidental death.
A, B, and C are all liable as principals because they are conspirators. They all
agreed to the commission of the crime.
 The aggravating circumstance of dwelling is present because the crime was
committed inside the dwelling of the offended party who has not given the any
provocation.

X.
Loko advertised on the internet that he was looking for commercialmodels for a
TV advertisement. Ganda, a 16-year-old beauty, applied forthe project. Loko offered
her a contract, which Ganda signed. She wasasked to report to an address which
turned out to be a high-end brothel.Ganda became one of its most featured attraction.
What is Loko’s liability, if any? What effect would Ganda’s minority have on
Loko’s liability? (4%)

ANSWER:
Loko is liable of the crime of Trafficking in Persons under RA 9208. He
recruited, offered and hired Ganda by means of fraud or deception for the purpose of
exploitation or prostitution. By means of deceit, i.e., in the guise of making her a
commercial model,Loko recruited Ganda for the purpose of prostitution.
Ganda’s minority is a qualifying circumstance. Under Section 6, RA 9208, when
the trafficked person is a child, the crime committed is Qualified Trafficking in
Persons,penalized by life imprisonment.

XI.
A, in a public place, fired his gun at B with the intention of killing B,but the
gun did not fire because the bullet is a dud. The crime is:
(1%)
(A) attempted homicide
(B) grave threat
(C) impossible crime
(D) alarm and scandal

XII.
Sexy boarded a taxi on her way home from a party. Because she wasalready
tipsy, she fell asleep. Pogi, the taxi driver, decided to takeadvantage of the situation
and drove Sexy to a deserted place where he rapedher for a period of two (2) weeks.
What crime did Pogi commit? (4%)

ANSWER:
Pogi committed the special complex crime of Kidnapping and Serious Illegal
Detention with Rape.
All the elements of Kidnapping and Serious Illegal Detention are present. Pogi, a
private individual, kidnapped and detained Sexy by bringing her to a deserted place.
Said detention is illegal and is serious because it lasted for more than 3 days and the
victim is a female.
The special complex crime of Kidnapping and Serious Illegal Detention with
Rape resulted because Sexy, the victim of the kidnapping and detention, was raped as
a consequence of the detention. (Article 267, last par., RPC) Since it is a special
complex crime, regardless of the number of times the victim had been raped, there is
only one single indivisible offense of Kidnapping and Serious Illegal Detention with
Rape.

XIII.
Puti detested Pula, his roommate, because Pula was courting Ganda,whom Puti
fancied. One day, Puti decided to teach Pula a lesson and wentto a veterinarian (Vet) to
ask for poison on the pretext that he was going tokill a sick pet, when actually Puti
was intending to poison Pula.The Vet instantly gave Puti a non-toxic solution which,
when mixedwith Pula’s food, did not kill Pula. (4%)
(A) What crime, if any, did Puti commit?
(B) Would your answer be the same if, as a result of the mixture, Pula got an
upset stomach and had to be hospitalized for 10days?

ANSWER:
 (A) Puti committed the impossible crime of murder. All the elements of an
impossible crime are present. Puti’s act of mixing a solution with Pula’s food would
have been murder, a crime against persons. The act was done evil intent which is to
kill Pula. However, the crime was not accomplished because of the employment of
ineffectual means, i.e., the solution turned out to be non-toxic which would not kill
Pula. And said act would not fall under any other provision of the RPC.
(B) No, my answer would not be the same. If as a result of the mixture, Pula
got an upset stomach and had to be hospitalized for 10 days, the crime committed by
Puti is Less Serious Physical Injuries. It is not an impossible crime because the last
element of an impossible requires that the act performed should not constitute a
violation of another provision of the RPC.

XIV.
Malo, a clerk of court of a trial court, promised the accused in a drugcase
pending before the court, that he would convince the judge to acquithim for a
consideration of P5 million. The accused agreed and delivered themoney, through his
lawyer, to the clerk of court.
The judge, not knowing of the deal, proceeded to rule on the evidenceand
convicted the accused. (4%)

(A) Malo was charged with violation of Section 3(b), Republic Act(R.A.) No.
3019, which prohibits a public officer from directlyor indirectly requesting or receiving
any gift, present, sharepercentage or benefit wherein the public officer, in his
officialcapacity, has to intervene under the law. He was later chargedalso with indirect
bribery under the Revised Penal Code. Maloclaims he can no longer be charged under
the Revised PenalCode for the same act under R.A. 3019. Is he correct?
(B) Malo was charged with estafa under Article 315 because
hemisrepresented that he had influence, when he actually hadnone. Is the charge
correct?

ANSWER:
(A) No. Malo is not correct. One may be charged with violation of RA 3019 in
addition to a felony under the RPC for the same act. This is expressly provided for in
Section 3, RA 3019 which states: “In addition to acts or omissions of public officers
already penalized by existing laws, the following shall constitute corrupt practices of
public officers and hereby declared to be unlawful: xxx” Moreover, RA 3019 is a
special law, hence, the elements of the offense are not the same as those penalized
under the RPC.
(B) Yes, the charge is correct. Estafa is committed by any person who shall
ask money from another for the alleged purpose of bribing a government employee
when in truth the offender intended to convert the money for his own personal use
and benefit. (Article 315[2][c], RPC)

XV.
Which of the following is not a privilege mitigating circumstance?
(1%)
(A)17-year-old offender
(B)14-year-old offender
(C)incomplete self-defense
(D)incomplete defense of a relative
XVI.
Mr. Benjie is the owner of a hardware store specializing in the sale of plumbing
materials. On February 1, 2014, Mr. Ed, a friend and regularcustomer of Mr. Benjie,
visited the hardware store and purchased severalplumbing materials in the total
amount of P5 million. Mr. Benjie readilyaccepted Mr. Ed’s payment of three (3)
postdated checks in the amount ofP1 million Pesos each in view of the assurance of
Mr. Ed that the checkswill be honored upon presentment for payment. Mr. Benjie, as
aconsequence, immediately delivered the materials to the house of Mr. Ed.The
following day, Mr. Ed went back to Mr. Benjie to tender another two (2)postdated
checks in the amount of P1 million each to complete the payment,with the same
assurance that the checks will be honored upon presentmentfor payment. When the
checks were presented for payment, all weredishonored for insufficiency of funds and
corresponding notices of dishonourwere sent and received by Mr. Ed. One month after
receipt of the notices ofdishonor, Mr. Ed failed to make good the checks. Thereafter,
Mr. Benjiefiled before the public prosecutor’s office a complaint against Mr.
Ed,although no demand letter was earlier sent to Mr. Ed.
During the preliminary investigation, Mr. Benjie accepted severalamounts from
Mr. Ed as partial payments. The wife of Mr. Benjie protestedand insisted that the
complaint should continue despite the partial payments.On the other hand, Mr. Ed
counters that no demand letter was earlier sent tohim, that the obligation is merely
civil in character and that novation tookplace when Mr. Benjie accepted the partial
payments.
Discuss the criminalliability, if any, of Mr. Ed. (6%)

ANSWER:
Mr. Ed is liable of one count of Estafa under Article 315(2)(d) for the issuance of
the first 3 checks because he issued them simultaneous with the transaction in order
to defraud another. However, the 2 other checks had been issued in payment of a pre-
existing obligation, hence, estafa is not committed as the issuance of said checks was
not the efficient cause of defraudation.
Mr. Ed is also liable of 5 counts of violation of BP 22, The Bouncing Checks
Law, for the issuance of the 5 checks which were dishonoured for insufficiency of
funds. The gravamen of BP 22 is the issuance of a worthless or bum check;
deceit/fraud is not an element.
Mr. Ed’s defense of partial payments constituting novation and absence of
demand letter will not free him from the criminal liability already incurred. The partial
payments would only affect his civil liability while his claim of absence of demand
letter is negated by the receipt of notice of dishonour.

XVII.
Pierce is a French diplomat stationed in the Philippines. While onEDSA and
driving with an expired license, he hit a pedestrian who wascrossing illegally. The
pedestrian died. Pierce was charged with recklessimprudence resulting in homicide. In
his defense, he claimed diplomaticimmunity.
Is Pierce correct? (3%)

ANSWER:
Yes, Pierce is correct. Pierce, being a French diplomat stationed in the
Philippines, is exempted from the general application of our penal laws. He enjoys
diplomatic immunity from suit.

XVIII.
Manolo, an avid art collector, was invited to Tonio’s house. There,Manolo noticed
a nice painting that exactly looked like the painting whichhe reported was stolen from
him some years back. Manolo confronted Tonioabout the painting, but Tonio denied
any knowledge, claiming that he boughtthe painting legitimately from a friend. Manolo
later proved to Tonio thatthe painting was indeed the stolen painting.
(4%)
(A) What crime/s, if any, may Tonio be charged with?
(B) Manolo decided to take matters into his own hands and, onenight, broke
into Tonio’s house by destroying the wall andtaking the painting. What, if any, would
be the liability ofManolo?

ANSWER:
(A) Tonio may be charged with violation of PD 1612, The Anti-Fencing Law.
Under Section 5 of the said law, mere possession of any article, item, object, or
anything of value which has been the proceeds of robbery or thievery is prima facie
evidence of fencing. Since Tonio is in possession of a stolen painting, the law presumes
that he committed the crime of fencing.
 (B) Manolo is liable of Qualified Trespass to Dwelling under Article 280, RPC.
Trespass to dwelling is qualified by use of force and violence since Manolo entered the
house of Tonio against the will of the latter.

XIX.
Clepto went alone to a high-end busy shop and decided to take one ofthe
smaller purses without paying for it. Overcame by conscience, shedecided to leave her
own purse in place of the one she took. Her act wasdiscovered and Clepto was charged
with theft. She claimed that there wasno theft, as the store suffered no injury or
prejudice because she had left apurse in place of the one she took. Comment on
her defense. (3%)

ANSWER:
The defense of Clepto has no merit. Theft is already consummated from the
moment Clepto took possession of one of the smaller purses inside a high-end shop,
without paying for it. She took the personal property of another, with intent to gain,
without the consent of the latter. Damage or injury to the owner is not an element of
theft, hence, even if she left her purse in lieu of the purse she took, theft is still
committed.

XX.
Which of the following is not a qualifying aggravating circumstance?
(1%)
(A) treachery
(B) evident premeditation
(C) dwelling
(D) cruelty

XXI.
During trial for theft in 2014, the prosecution managed to show thataccused AA
has also been convicted by final judgment for robbery in 2003,but she eluded capture.
A subsequent verification showed that AA hadseveral convictions, to wit:
(1.) In 1998, she was convicted of estafa;
(2.) In 2002, she was convicted of theft;
(3.) In 2004, she was convicted of frustrated homicide;
The judge trying the theft case in 2014 is about to convict AA.
Whatcircumstances affecting the liability or penalty may the judge appreciateagainst
AA? (4%)

ANSWER:
The judge may appreciate the aggravating circumstance of recidivism. All the
elements of recidivism are present. AA is on trial for the crime of theft. He has already
been convicted by final judgment of robbery. Both robbery and theft are embraced in
the same title of the RPC. And, he is also about to be convicted of the crime of theft for
which he is on trial. AA is, therefore, a recidivist.
That more than 10 years has lapsed from the time he was convicted by final
judgment of robbery in 2003 to his trial for the crime of theft in 2014 is of no moment
because recidivism does not prescribed.

XXII.
Mr. Red was drinking with his buddies, Mr. White and Mr. Bluewhenhe saw Mr.
Green with his former girlfriend, Ms. Yellow. Already drunk,Mr. Red declared in a loud
voice that if he could not have Ms. Yellow, noone can. He then proceeded to the men’s
room but toldMr. White and Mr.Blue to take care of Mr. Green. Mr. Blue and Mr. White
asked Mr. Red whathe meant but Mr. Red simply said, “You already know what I
want,” andthen left. Mr. Blue and Mr. Whiteproceeded to kill Mr. Green and hurt
Ms.Yellow. (4%)
(A)What, if any, are the respective liabilities of Mr. Red, Mr. Whiteand Mr. Blue
for the death of Mr. Green?
(B)What, if any, are the respective liabilities of Mr. Red, Mr. Whiteand Mr. Blue
for the injuries of Ms. Yellow?
ANSWER:
(A) Mr. White and Mr. Blue are liable for the death of Mr. Green as principals
by direct participation. They were the ones who directly took part in the killing of the
victim. Mr. Red is not liable as a principal by inducement because his statement that
Mr. White and Mr. Blue were “to take care of Mr. Green” was not made directly with the
intent of procuring the commission of the crime. The words he uttered to Mr. White
and Mr. Blue: “You already know what I want,” may not be considered as powerful and
threatening so as to amount to physical or moral coercion.Likewise, there is no
showing that Mr. Red exercised moral ascendency or influence over Mr. White and Mr.
Blue.
(B) Mr. White and Mr. Blue are liable as principals by direct participation for
the crime of physical injuries for hurting Ms. Yellow. Their liability would depend on
the extent of the physical injuries inflicted – either serious, less serious, or slight
physical injuries. Mr. Red has no criminal liability because he did not participate in
the act of hurting Ms. Yellow.

XXIII.
Carla, four (4) years old, was kidnapped by Enrique, the tricycledriver engaged
by her parents to drive her to and from school every day.Enrique wrote a ransom note
demanding that Carla’s parents pay himP500,000.00 ransom in exchange for her
liberty. However, before theransom note could be received by Carla’s parents,Enrique’s
hideout wasdiscovered by the police. Carla was rescued while Enrique was
arrested.The prosecutor considered that the ransom note was never received byCarla’s
parents and filed a case of “Impossible crime to commit kidnapping”against Enrique.
Is the prosecutor correct? If he is not correct, can heinstead file a case of grave
coercion? (4%)

ANSWER:
The Prosecutor is not correct. There is no “Impossible crime to commit
kidnapping”. First, an impossible crime applies only to Crimes against Persons and
Crimes against Property under Titles 8 and 10 of the RPC, respectively. Kidnapping is
a Crime against Personal Liberty and Security under Title 9, RPC. Second, even if the
ransom note was not received by Carla’s parents, the crime of kidnapping and serious
illegal detention for ransom is already consummated. Under Article 267, RPC,
Kidnapping for Ransom is committed “when the kidnapping or detention is for the
purpose of extorting ransom from the victim or any other person.” To consummate the
crime, it suffices that the purpose is to extort ransom; it is not necessary that the
ransom note be received or that ransom be paid.
No, the Prosecutor cannot file a case of grave coercion because the crime
committed, as explained above, is kidnapping for ransom.

XXIV.
A, a young boy aged sixteen (16) at the time of the commission of thecrime, was
convicted when he was already seventeen (17) years of age forviolation of Section 11 of
R.A. 9165 or Illegal Possession of DangerousDrugs for which the imposable penalty is
life imprisonment and a fine.Section 98 of the same law provides that if the penalty
imposed is lifeimprisonmentto deathon minor offenders, the penalty shall be
reclusionperpetuato death. Under R.A. 9344, a minor offender is entitled to aprivileged
mitigating circumstance. (8%)
(A) May the privileged mitigating circumstance of minority beappreciated
considering that the penalty imposed by law is lifeimprisonment and fine?
(B) Is the Indeterminate Sentence Law applicable considering thatlife
imprisonmenthas no fixed duration and the DangerousDrugs Law is malum
prohibitum?
(C) If the penalty imposed is more than six (6) years and a notice ofappeal
was filed by A and given due course by the court, mayAstill file an application for
probation?
(D) If probation is not allowed by the court, how will A serve hissentence?

ANSWER:
 (A) Yes. As stated above, under Section 98, RA 9165, if the offender is a
minor, the penalty of life imprisonment shall be considered as reclusion perpetua. Now
that it has the nomenclature of penalties under the RPC, the modifying circumstances
therein may also be applied. Even if reclusion perpetua is a single indivisible penalty,
the privileged mitigating circumstance of minority would still be considered to lower
the imposable penalty. The rule in Article 63, RPC that if the penalty prescribed by law
is a single indivisible penalty, it shall be imposed regardless of mitigating and
aggravating circumstance refers only to ordinary mitigating circumstances.
(B) Yes. The Indeterminate Sentence Law is applicable even to special penal
laws.Since life imprisonment was converted into reclusion perpetua, which in turn
was graduated to reclusion temporal because of the privileged mitigating circumstance
of minority, the Indeterminate Sentence Law is applicable. (People vs. Mantalaba, GR
186227, July 20, 2011)
(C) Yes. A may still file an application for probation even if he filed a notice of
appeal. Section 42, RA 9344 provides: “The court may, after it shall have convicted
and sentenced a child in conflict with the law, and upon application at any time, place
the child on probation in lieu of service of his/her sentence taking into account the
best interest of the child. For this purpose, Section 4 of PD 968, otherwise known as
the Probation Law of 1976, is hereby amended accordingly.”
The phrase “at any time” mentioned in Section 42 means that the child in
conflict with the law may file an application for probation at any time, even beyond the
period for perfecting an appeal and even if the child has perfected the appeal from the
judgment of conviction.
(D) If probation is not allowed by the court, the minor offender shall serve
his sentence in agricultural camp or other training facility in accordance with Section
51 of RA 9344 as amended.

XXV.
Mr. Gray opened a savings account with Bank A with an initial
deposit of P50,000.00. A few days later, he deposited a check forP200,000.00 drawn
from Bank B and endorsed by Mr. White. Ten dayslater, Mr. Gray withdrew the
P200,000.00 from his account. Mr. White latercomplained to Bank B when the amount
of P200,000.00was later debited tohis account, as he did not issue the check and his
signature thereon wasforged. Mr. Gray subsequently deposited another check signed
by Mr.White for P200,000.00, which amount he later withdrew. Upon receivingthe
amount, Mr. Gray was arrested by agents of the National Bureau ofInvestigation
(NBI).Mr. Gray was convicted of estafa and attempted estafa, both throughthe use of
commercial documents. (4%)
(A)Mr. Gray claims as defense that, except for Mr. White’sclaimof forgery, there
was no evidence showing that he was theauthor of the forgery and Mr. White did not
suffer any injuriesas to the second check (attempted estafa). Rule on the defenseof Mr.
Gray.
(B)Mr. Gray claims that he was entrapped illegally because therewas no showing
that the second check was a forgery and,therefore, his withdrawal based on the
second check was a legalact. Is Mr. Gray correct?

ANSWER:
(A) The first defense of Mr. Gray that there was no evidence showing that he
was the author of the forgery has no merit. The law presumes that the possessor and
user of a falsified document is the falsifier or forger thereof. Likewise, his second
defense that Mr. White did not suffer any injuries as to the second check (attempted
estafa) has no merit. Damage or intent to cause damage is not considered in
attempted estafa. It is considered only in consummated estafa.
(B) Mr. Gray is not correct. The fact that the first check is forged justifies the
entrapment of Mr. Gray since there is already probable cause that the second check is
also a forgery. Further, granting for the sake of argument that the entrapment was
illegal, such will not validate the withdrawal based on the second check which is also
forged. His criminal liability in forging the second check is not affected by the alleged
illegality of the entrapment procedure.

XXVI.
 A was bitten by a dog owned by a neighbor. The following day,angered by the
incident, A took the dog without the knowledge of the owner,had it butchered and
cooked the meat. He then invited his friends to partakeof the dish with his friends who
knew fully well that the dog was takenwithout the knowledge of the owner. What are
the friends of Aliable for? (1%)
(A)Theft
(B)Malicious mischief
(C)Accessories
(D)Obstruction of Justice

BAR 2015 – CRIMINAL LAW

ANSWERS

I.

a) How are felonies committed? Explain each. (3%)

b) What is aberratio ictus? (2%)

SUGGESTED ANSWER:

A. Felonies are committed not only be means of deceit (dolo) but also by means of fault
(culpa).

There is deceit when the act is performed with deliberate intent and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or lack
of skill.
B. Aberratio ictus means mistake in the blow; when offender intending to do an injury
to one person actually inflicts it on another

II.

Distinguish between ex post facto law and bill of attainder. (3%)

SUGGESTED ANSWER:

Ex Post Facto Law Bill of Attainder

Definition Ex Post Facto Law is one which:
(1) Makes criminal an act done before
the passage of the law and which was
innocent when done, and punishes
such an act.
A legislative act that inflicts
punishment without trial, its
essence being the substitution of
legislative fiat for a judicial
determination of guilt.

(2) Aggravates a crime, or makes it

greater than it was, when committed;

(3) Changes the punishment and

inflicts a greater punishment than the
law annexed to the crime when
committed;

(4) 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;

(5) Assumes to regulate civil rights and

remedies only, in effect imposes
penalty or deprivation of a right for
something which when done was
lawful; and

(6) Deprives a person accused of a

crime some lawful protection to which
he has become entitled, such as the
protection of a former conviction or
acquittal, or a proclamation of
amnesty.[Reyes, The Revised Penal
Code citing
In re: Kay Villegas Kami, Inc.]

III.

The Regional Trial Court {RTC) found Tiburcio guilty of frustrated homicide and
sentenced him to an indeterminate penalty of four years and one day of prision
correccional as minimum, to eight years of prision mayor as maximum, and ordered
him to pay actual damages in the amount of 1125,000.00. Tiburcio appealed to the
Court of Appeals which sustained his conviction as well as the penalty imposed by the
court a quo. After sixty days, the Court of Appeals issued an Entry of Judgment and
remanded the records of the case to the RTC. Three days thereafter, Tiburcio died of
heart attack. Atty. Abdul, Tiburcio's counsel, filed before the RTC a Manifestation with
Motion to Dismiss, informing the court that Tiburcio died already, and claiming that
his criminal liability had been extinguished by his demise.

a) Should the RTC grant the Motion to Dismiss the case? Explain. (2.5%)

b) Assuming that Tiburcio' s death occurred before the Court of Appeals rendered its
decision, will you give a different answer? Explain. (2.5%)

SUGGESTED ANSWER:

a. The motion to dismiss should not be granted.

Under the Revised Penal Code, criminal liability is totally extinguished by the death of
the convict, as to the personal penalties and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final
judgment.

In this case, the death of accused occurred after the final judgment. Hence, although
Tiburcio’s personal penalties have extinguished, the pecuniary penalties have not.

b. Yes, I will give a different answer. The motion to dismiss should be granted.

Under the Revised Penal Code, criminal liability is totally extinguished by the death of
the convict, as to the personal penalties and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final
judgment. (Art. 89, RPC)

In this case, death occurred before the rendition of the final judgment, hence, the
pecuniary penalties for the accused have extinguished.

IV.

Procopio, a call center agent assigned at a graveyard shift, went home earlier than
usual. He proceeded immediately to their bedroom to change his clothes. To his
surprise, he found his wife Bionci in bed making love to another woman Magna.
Enraged, Procopio grabbed a knife nearby and stabbed Bionci, who died.

a) What crime did Procopio commit, and what circumstance attended the case?
Explain. (3%)

b) Assuming that Procopio and Bionci were common-law spouses, will your answer be
the same? Explain. (2%)

SUGGESTED ANSWER:

a. Procopio committed the crime of parricide, since the act done was the killing of his
spouse. The crime was attended by the mitigating circumstance of that having acted
upon an impulse so powerful as naturally to have produced passion or obfuscation.
Only a few minutes have elapsed since Procopio acted upon having caught Bionci
making love with another woman.

Procopio cannot interpose the defense of death inflicted under exceptional circumstances
under Art. 247 since it may only be raised in case of a legally married person having
surprised his spouse in the act of committing sexual intercourse with another person. In
the given facts, sexual intercourse cannot be done since his wife Bionci and Magna are
both women.
b. No, my answer will not be the same. The crime committed is homicide, since
parricide is committed only as against one’s father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse.

V.

Dion and Talia were spouses. Dion always came home drunk since he lost his job a
couple of months ago. Talia had gotten used to the verbal abuse from Dion. One night,
in addition to the usual verbal abuse, Dion beat up Talia. The next morning, Dion saw
the injury that he had inflicted upon Talia and promised her that he would stop
drinking and never beat her again. However, Dion did not make good on his promise.
Just after one week, he started drinking again. Talia once more endured the usual
verbal abuse. Afraid that he might beat her up again, Talia stabbed Dion with a
kitchen knife while he was passed out from imbibing too much alcohol. Talia was
charged with the crime of parricide.

a) May Talia invoke the defense of Battered Woman Syndrome to free herself from
criminal liability? Explain. (2.5%)

b) Will your answer be the same, assuming that Talia killed Dion after being beaten up
after a second time? Explain. (2.5%)

SUGGESTED ANSWER:

a. No, Talia may not invoke the defense of Battered Woman Syndrome to free herself
from criminal liability.

In the case of People vs. Genosa, it was ruled that there must at least be two battering
cycles before a woman can be classified as a battered woman. In this case, there is
only one battering cycle. Hence, Talia cannot claim the said defense.

b. No, my answer will not be the same. In this case, Talia will be able to use the
defense of Battered Woman Syndrome.

VI.

Senator Adamos was convicted of plunder. About one year after beginning to serve his
sentence, the President of the Philippines granted him absolute pardon. The signed
pardon states: "In view hereof, and in pursuance of the authority vested upon me by
the Constitution, I hereby grant absolute pardon unto Adamos, who was convicted of
plunder in Criminal Case No. XV32 and upon whom the penalty of reclusion perpetua
was imposed." He now comes to you for advice. He wants to know if he could run for
senator in the next election.

a) What advice will you give Adamos? Explain. (2.5%)

b) Assuming that what Adamos committed was heading a rebellion for which he was
imposed the same penalty of reclusion perpetua, and what he received was amnesty
from the government, will your answer be the same? Explain. (2.5%)

SUGGESTED ANSWER:

a. Adamos can run for senator in the next election.

Under the Revised Penal Code, a pardon shall not work the restoration of the right to
hold public office, or the right of suffrage, unless such rights be expressly restored by
the terms of the pardon, or if such absolute pardon is granted after the convict had
served his sentence, since in the latter case, the rights to vote and to hold public office
are deemed restored (Pelobello vs. Palatino, p. 343). In this case, the pardon was
granted one year after beginning to serve his sentence. Hence, his right to hold public
office are deemed restored.

Pelobello vs. Palatino: Pardon granted after conviction frees the individual from all the
penalties and legal disabilities and restores him to all his civil rights. But unless
expressly grounded on the person's innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing. This must be constantly kept in mind
lest we lose track of the true character and purpose of the privilege.

However, note Article 41: Reclusion perpetua and reclusion temporal; Their accessory
penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry with
them that of civil interdiction for life or during the period of the sentence as the case may
be, and that of perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

b. Yes, my answer is the same. Adamos can run for senator in the next election.

Under the Revised Penal Code, amnesty is one of the modes of extinguishing criminal
liability. When granted, amnesty completely extinguishes the penalty and all its
effects, but it does not extinguish civil liability. It is granted to offenders who
committed political offenses, and its effect is to obliterate the act committed. Hence, in
this case, Adamos can run for senator by virtue of the amnesty granted him.

VII.

Taylor was convicted of a violation of the Election Code, and was sentenced to suffer
imprisonment of one year as minimum, to three years as maximum. The decision of
the trial court was affirmed on appeal and became final and executory. Taylor failed to
appear when summoned for execution of judgment, prompting the judge to issue an
order for his arrest. Taylor was able to use the backdoor and left for the United States.
Fifteen years later, Taylor returned to the Philippines and filed a Motion to Quash the
warrant of arrest against him, on the ground that the penalty imposed against him
had already prescribed.

a) If you were the judge, would you grant Taylor's Motion to Quash? Explain. (2.5%)

b) Assuming that instead of the United States, Taylor was able to go to another
country with which the Philippines had no extradition treaty, will your answer be the
same? Explain. (2.5%)

SUGGESTED ANSWER:

a. I will grant Taylor’s Motion to Quash.

Under the Revised Penal Code, the period of prescription of penalties shall commence
to run from the date when the culprit should evade the service of his sentence, and it
shall be interrupted if the defendant should give himself up, be captured, should go to
some foreign country with which this Government has no extradition treaty, or should
commit another crime before the expiration of the period of prescription.

In this case, the Philippines has an extradition treaty with the United States, hence
the prescription of the penalty began to run continuously from the date that Taylor
first evaded the service of his sentence.

b. No, my answer will not be the same.

In this case, since the country where Taylor went is one of which the Philippines has
no extradition treaty with, the prescription of the penalty was interrupted. Hence, the
motion to quash cannot be granted.
 VIII.

A typhoon destroyed the houses of many of the inhabitants of X Municipality.

Thereafter, X Municipality operated a shelter assistance program whereby
construction materials were provided to the calamity victims, and the beneficiaries
provided the labor. The construction was partially done when the beneficiaries stopped
helping with the construction for the reason that they needed to earn income to
provide food for their families. When informed of the situation, Mayor Maawain
approved the withdrawal of ten boxes of food from X Municipality's feeding program,
which were given to the families of the beneficiaries of the shelter assistance program.
The appropriations for the funds pertaining to the shelter assistance program and
those for the feeding program were separate items on X Municipality's annual budget.

a) What crime did Mayor Maawain commit? Explain. (2.5%)

b) May Mayor Maawain invoke the defense of good faith and that he had no evil intent
when he approved the transfer of the boxes of food from the feeding program to the
shelter assistance program? Explain. (2.5%)

SUGGESTED ANSWER:

A. Mayor Maawain committed the crime of Technical Malversation. Under the Revised
Penal Code, technical malversation is committed by an accountable public officer,
such public officer applies public funds or property under administration to some
public use, and that the public use for which such funds or property were applied
different from the purpose for which they were originally appropriated by law or
ordinance.

In this case, Mayor Maawain used public funds for a purpose different from that
stated by the ordinance on appropriation, hence he committed technical malversation.

B. No, Mayor Maawain cannot invoke the defense of good faith. Criminal intent is not
an element of technical malversation. The law punishes the act of diverting public
property earmarked by law or ordinance for a particular public purpose to another
public purpose. The offense in mala prohibita, meaning that the prohibited act is
not inherently immoral but becomes a criminal offense because the law forbids
its commission based on considerations of public policy, order and convenience.
(Ysidoro vs. People)

IX.

The Philippine Drug Enforcement Agency (PDEA) had intelligence reports about the
drug pushing activities of Rado, but could not arrest him for lack of concrete evidence.
SP03 Relio, a PDEA team leader, approached Emilo and requested him to act as
poseur-buyer of shabu and transact with Rado. Emilo refused, saying that he had
completely been rehabilitated and did not want to have anything to do with drugs
anymore. But he was prevailed upon to help when SP03 Relio explained that only he
could help capture Rado because he used to be his customer. SP03 Relio then gave
Emilo the marked money to be used in buying shabu from Rado. The operation
proceeded. After Emilo handed the marked money to Rado in exchange for the sachets
of shabu weighing 50 grams, and upon receiving the pre-arranged signal from Ernilo,
SP03 Relio and his team members barged in and arrested Rado and Ernilo, who were
both charged with violation of R.A. 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002.

a) What defense, if any, may Ernilo invoke to free himself from criminal liability?
Explain. (2.5%)

b) May Rado adopt as his own Ernilo's defense? Explain. (2.5%)

SUGGESTED ANSWER:

a. Ernilo may interpose the defense that there was instigation on the part of SPO3
Relio, hence he did not incur any criminal liability.

There was instigation in this case since the instigator induced the would-be accused
into the commission of the offense and himself becomes the co-principal. In this case,
the accused must be acquitted because the offender simply acts as a tool of the law
enforcers.

b. No, Rado cannot adopt Ernilo’s defense as his own.

In Rado’s case, there was entrapment. In entrapment, the law officers shall not be
guilty for the crime since the means originate from the mind of Rado, as the criminal.
In entrapment, ways and means are resorted to for the purpose of trapping and
capturing the lawbreaker in the execution of his criminal plan. It is not a bar to the
prosecution and the conviction of the lawbreaker.

X.

Honesto and Wilma were married but had been living separately due to irreconcilable
differences. Honesto later met Celia and fell in love with her. Thinking that he could
marry Celia if Wilma were to die, Honesto decided to kill Wilma. He secretly followed
Wilma for weeks to learn her daily routine. He decided to kill her at night on her way
home. On the night he was to kill Wilma, Honesto wore dark clothes so that he would
not be easily seen. He waited in the dark alley for Wilma to pass by. He saw someone
whom he thought looked like Wilma and shot her with a revolver. The bullet passed
through the person's head and grazed another passerby's arm. Some bystanders who
heard the shot were able to stop Honesto.

It turned out that Wilma did not report for work on that day, and the one who was
shot in the head was Melba, who died. The passerby whose arm was grazed by the
bullet required medical attendance for two days.

a) What crime(s) did Honesto commit? Explain. (2.5%)

b) Will your answer be the same, assuming that the other passerby was hit in the left
eye which caused his/her blindness? Explain. (2.5%)

SUGGESTED ANSWER:

A. Murder as to Melba, and slight physical injuries as to the passerby. In this case,
treachery attended the commission of the offense, thus qualifying the offense to
murder. Treachery is present since from the given facts: at the time of the attack, the
victim was not in a position to defend himself; and the offender consciously adopted
the particular means, method or form of attack employed by him. Also, slight physical
injuries was committed as to the passerby since the injuries sustained by him does
not prevent him from engaging in his habitual work.

B. In this case, the crime committed against the other passerby is serious physical
injuries. Under the Revised Penal Code, serious physical injuries is committed when if
in consequence of the act, the person injured shall have become blind.

XI.

Nel learned that Elgar, the owner of the biggest house in the place, would be out of
town for three days with no one left to watch the house. He called his friends Ben,
Ardo and Gorio and they planned to take the valuables in the house while Elgar was
away. Nel and Ben would go inside the house, Ardo would serve as the lookout, while
Gorio would stay in the getaway car. When Elgar left, they carried out their plan to the
letter. Nel and Ben went inside the house through the backdoor which was left
unlocked. None of the rooms and drawers inside were locked. They took the money,
jewelry and other valuables therefrom and immediately left using the getaway car.

After driving for about one kilometer, Nel realized he left his bag and wallet with IDs in
the house and so he instructed Gorio to drive back to the house. Nel just went in
thinking that the house was still empty. But to his surprise, Nel found Fermin seated
on a bench with Nel's bag and wallet beside him and appeared to be texting using his
smart phone. Nel took a golf club near him and hit Fermin with it. Fermin shouted for
help, but Nel kept hitting him until he stopped making noise. The noise alerted the
neighbor who called the police. Nel, Ben, Ardo and Gorio were caught. Fermin died.
What is the criminal liability of Nel, Ben, Ardo and Gorio? Explain. (5%)

SUGGESTED ANSWER:

Ben, Ardo and Gorio are criminally liable for the committing robbery, while Nel is
liable for committing the act of special complex crime of robbery with homicide. In this
case, when the killing was committed by Nel, it was no longer on the occasion of the
robbery, since the robbery was already consummated when he returned to retrieve his
belongings.“On the occasion” means immediately before, during or after. In this case,
they have already driven one kilometer before returning to the place where homicide
was committed.

XII.

Ando, an Indonesian national who just visited the Philippines, purchased a ticket for a
passenger vessel bound for Hong Kong. While on board the vessel, he saw his mortal
enemy Iason, also an Indonesian national, seated at the back portion of the cabin and
who was busy reading a newspaper. Ando stealthily approached Iason and when he
was near him, Ando stabbed and killed Iason. The vessel is registered in Malaysia. The
killing happened just a few moments after the vessel left the port of Manila. Operatives
from the PNP Maritime Command arrested Ando. Presented for the killing of Iason,
Ando contended that he did not incur criminal liability because both he and the victim
were Indonesians. He likewise argued that he could not be prosecuted in Manila
because the vessel is a Malaysian-registered ship. Discuss the merits of Ando's
contentions. (4%)

SUGGESTED ANSWER:

The contentions of Ando are untenable.

The crime was committed while the vessel was still in the internal waters of the
Philippines, hence, Ando may be prosecuted in the Philippines pursuant to the
territoriality rule.

Ando’s contention that the vessel is a Malaysian-registered ship is immaterial, since

the registration of the ship will only be significant if the crime was committed in the
high seas. The fact that both he and the victim were Indonesians are also immaterial
since pursuant to the generality rule, the penal laws of the Philippines shall be
applicable upon all who live and sojourn in Philippine territory. They are qualified as
sojourners for the application of the Revised Penal Code.

XIII.

Dora gave Elen several pieces of jewelry for sale on commission basis. They agreed
that Elen would remit the proceeds of the sale and return the unsold items to Dora
within sixty days. The period expired without Elen remitting the proceeds of the sale or
returning the pieces of jewelry. Dora demanded by phone that Elen turn over the
proceeds of the sale and return the unsold pieces of jewelry. Elen promised to do so
the following day. Elen still failed to make good on her promise but instead issued
post-dated checks. Thereafter, Dora made several more demands, the last of which
was in writing, but they were all unheeded. When the checks were deposited in Dora's
bank account, the checks were returned unpaid for insufficient funds. Elen was
charged with estafa and violation of Batas Pambansa Big. 22. Will the charges against
Elen prosper? Explain. (4%)

SUGGESTED ANSWER:

The estafa will not prosper, but the charge for B.P. 22 will prosper.

There is estafa in this case because Elen’s act of issuing the checks before the filing of
the criminal information constitutes novation, preventing the rise of criminal liability.
There was novation in this case since Dora accepted the checks issued by Elen as
payment for the pieces of jewelry. Thus, the element of misappropriation was not
present. Isip vs. People

However, the charge for B.P. 22 will prosper. To be liable for violation of B.P. 22, the
following essential elements must be present: (1) the making, drawing, and issuance of
any check to apply for account or for value; (2) the knowledge of the maker, drawer, or
issuer that at the time of issue he does not have sufficient funds in or credit with the
drawee bank for the payment of the check in full upon its presentment; and (3) the
subsequent dishonor of the check by the drawee bank for insufficiency of funds or
creditor dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment. Hence, based on the facts, Elen is liable for
violation of B.P. 22.

XIV.

Dela convinced Nita to work in Taiwan, promising Nita that she would take care of the
processing of the necessary documents. Dela collected P120,000.00 from Nita
purportedly for the processing of her papers. Upon receipt of the money, Nita was
made to accomplish certain forms and was told that she would be deployed to Taiwan
within one month. After one month, Nita followed up on her application. Dela made
some excuses and told Nita that the deployment would be delayed. Another month
passed and Dela made other excuses which made Nita suspicious. Nita later
discovered that Dela was not licensed to recruit. Nita confronted Dela and demanded
the return of her money. Dela promised to return the same in a week's time.

a) A week later, Dela was nowhere to be found. What crime(s) did Dela commit?
Explain. (2.5%)

b) Will your answer still be the same, assuming that the promise to deploy for
employment abroad was made by Dela to Celia, Digna and Emma, in addition to Nita,
and from whom Dela also collected the same amount of processing fee? Explain.
(2.5%)

SUGGESTED ANSWER:

A. Dela committed the crime of illegal recruitment and estafa. The crime of illegal
recruitment is committed when two elements concur, namely: (1) the offender has no
valid license or authority required by law to enable one to lawfully engage in
recruitment and placement of workers; and (2) he undertakes either any activity
within the meaning of "recruitment and placement" defined under Article 13 (b), or any
prohibited practices enumerated under Article 34 of the Labor Code. [

Also, Dela committed estafa under paragraph 2(a) of the Revised Penal Code, with the
following elements: (a) that there must be a false pretense or fraudulent representation
as to his power, influence, qualifications, property,credit, agency, business or
imaginary transactions; (b) that such false pretense or fraudulent representation was
made or executed prior to or simultaneously with the commission of the fraud; (c) that
the offended party relied on the false pretense, fraudulent act, or fraudulent means
and was induced to part with his money or property; and (d) that, as a result thereof,
the offended party suffered damage. All the elements are present in this case. (Sy vs.
People)

“We point out that conviction under the Labor Code for illegal
recruitment does not preclude punishment under the Revised Penal Code for
the crime of estafa.4 We are convinced that the prosecution proved beyond
reasonable doubt that appellant violated Article 315(2)(a) of the Revised
Penal Code, as amended, which provides that estafa is committed by any
person who defrauds another by using a fictitious name; or by falsely
pretending to possess power, influence, qualifications, property, credit,
agency, business; by imaginary transactions or similar forms of deceit
executed prior to or simultaneous with the fraud.

The appellant’s act of falsely pretending to possess power and

qualifications to deploy the complainants to Hongkong, even if he did not
have the authority or license for the purpose, undoubtedly constitutes estafa
under Article 315(2)(a) of the Revised Penal Code. The elements of deceit
and damage are clearly present; the appellant’s false pretenses were the very
cause that induced the complainants to part with their money. (People vs. Jaurigue)”

B. In this case, Dela committed the crime of large-scale illegal recruitment and
estafa.The illegal recruitment is large scale since it was committed against three
persons.

XV.

Dancio, a member of a drug syndicate, was a detention prisoner in the provincial jail
of X Province. Brusco, another member of the syndicate, regularly visited Dancio. Edri,
the guard in charge who had been receiving gifts from Brusco everytime he visited
Dancio, became friendly with him and became relaxed in the inspection of his
belongings during his jail visits. In one of Brusco's visits, he was able to smuggle in a
pistol which Dancio used to disarm the guards and destroy the padlock of the main
gate of the jail, enabling Dancio to escape. What crime(s) did Dancio, Brusco and Edri
commit? Explain. (5%)

SUGGESTED ANSWER:

Brusco committed the crime of Delivery of Prisoner from Jail because he caused or
helped in the escape Dancio.If the firearm is unlicensed, it shall be appreciated as an
aggravating circumstance. He is also liable for the crime of Corruption of a Public
Officer for giving gifts to Edri.

As for Dancio, as detention prisoner, it depends on whether he knew of the plan of

Brusco to allow him to escape. If he has knowledge, he is also liable for Delivery of
Prisoner from jail as principal by indispensable cooperation. If he was not aware, his is
not liable, since there is no law punishing that act. p. 112

Edri is liable for indirect bribery, since he is a public officer who received gifts by
reason of his office.p. 229.

XVI.

Erwin and Bea approached Mayor Abral and requested him to solemnize their
marriage. Mayor Abral agreed. Erwin and Bea went to Mayor Abral's office on the day
of the ceremony, but Mayor Abral was not there. When Erwin and Bea inquired where
Mayor Abral was, his chief of staff Donato informed them that the Mayor was
campaigning for the coming elections. Donato told them that the Mayor authorized
him to solemnize the marriage and that Mayor Abral would just sign the documents
when he arrived. Donato thereafter solemnized the marriage and later turned over the
documents to Mayor Abral for his signature. In the marriage contract, it was stated
that the marriage was solemnized by Mayor Abral. What crime(s) did Mayor Abral and
Donato commit? Explain. (4%)

SUGGESTED ANSWER:

Mayor Abral is liable for the performance of an illegal marriage ceremony, since he
authorized the performance of the marriage ceremony without ensuring that the
requirements of the law are complied with. p. 492

Donato is liable for the crime of usurpation of official functions since he performed the
marriage ceremony, which properly pertains to the mayor, under pretense of official
position and without being lawfully entitled to do so. p. 151

XVII.

After a heated argument over his philandering, Higino punched on the head his wife
Aika, who was six and a half months pregnant. Because of the impact, Aika lost her
balance, fell on the floor with her head hitting a hard object. Aika died and the child
was expelled prematurely. After thirty-six hours, the child died.

a) What crime(s) did Higino commit? Explain. (2.5%)

b) Assuming that when the incident occurred, Aika was only six months pregnant, and
when she died, the fetus inside her womb also died, will your answer be different?
Explain. (2.5%)

SUGGESTED ANSWER:

A. Higino is liable for the special complex crime of Homicide with infanticide. There is
no showing that Aika is his spouse, which would qualify the crime to parricide, nor is
there a showing that the qualifying aggravating circumstances are present which
would qualify the crime to murder. Also, since the fetus lived for 36 hours upon
expulsion from the womb, it is considered to have acquired a separate civil
personality, hence the crime of infanticide was committed..

B. My answer will be the different. In this case, the crime committed was a complex
crime of Homicide with Unintentional Abortion. Higino killed Aika, hence the crime of
homicide. Also, he intentionally used violence upon Aika, a pregnant woman, without
intending an abortion, and the fetus was expelled from her womb and died. In this
case, the child had an intrauterine life of less than seven months, and there is no
showing that it lived for more than 24-hours. Hence, the crime is unintentional
abortion instead of infanticide.

XVIII.

Lito, a minor, was bullied by Brutus, his classmate. Having had enough, Lito got the
key to the safe where his father kept his licensed pistol and took the weapon. Knowing
that Brutus usually hung out at a nearby abandoned building after class, Lito went
ahead and hid while waiting for Brutus. When Lito was convinced that Brutus was
alone, he shot Brutus, who died on the spot. Lito then hid the gun in one of the empty
containers. At the time of the shooting, Lito was fifteen years and one month old. What
is Lito's criminal liability? Explain. (4%)

SUGGESTED ANSWER:
Lito is criminally liable for the crime of murder. Lito’s act of waiting in the abandoned
building and hiding the gun in one of the empty containers shows that he is a minor
fifteen years old above acting with discernment. This shows that he fully appreciates
the consequences of his unlawful act. Thus, he may be subjected by the court to
diversion proceedings pursuant to the Juvenile Justice and Welfare Act of 2006.

XIX.

Bruno, a taxi driver, had an indebtedness in the sum of P10,000.00 which would
become due in one week. He was starting to worry because he still had not raised the
amount to pay for his debt. Every day, he had prayed for divine intervention. One
night, while returning the taxi to the garage, he found a wallet on the back seat.
Inspecting it, he learned that it contained exactly P l0,000.00 cash, the amount of his
obligation, and IDs. Thinking it was divine intervention, and that his prayers were
answered, he took the money and used it to pay his debt.

a) What crime, if any, did Bruno commit? Explain. (2.5%)

b) Assuming that instead of using the money, Bruno turned over the wallet and its
contents to the nearby police station, and it was the chief of police of that station who
appropriated the money for his own benefit, what crime was committed by the chief of
police? Explain. (2.5%)

SUGGESTED ANSWER:

A. Bruno committed theft. Under the Revised Penal Code, any person who, having
found lost property, shall fail to deliver the same to the local authorities or its owner,
is liable for the crime of theft.

B. The chief of police committed the crime of malversation. Under Article 217 of the
Revised Penal Code, the crime is committed when the following elements are present:
that the offender is a public officer; that he had the custody or control of funds or
property by reason of the duties of his office; that those funds or property were public
funds or property for which he was accountable and that he appropriated, took,
misappropriated or consented or, through abandonment or negligence, permitted
another person to take them. In this case, when Bruno turned over the wallet and its
contents, he became the person accountable for the lost properties. Thus, his act of
appropriating the money for himself makes him liable for the crime of malversation.

XX.

Senio planned to burn Bal' s house. One evening, during a drinking spree at his
house, Senio told his friends what he intended to do and even showed them the
gasoline in cans that he would use for the purpose. Carlo, a common friend of Senio
and Bal, was present at the drinking spree. He was still sober when Senio told them
his plans. Before going home, Carlo warned Bal that Senio would burn his house and
had already bought gasoline that would be used for the purpose. Bal reported the
matter to the police authorities. Meanwhile, Senio went to Bal' s house and proceeded
to pour gasoline around the walls of the house and it was at that point when he was
caught by the police. What crime did Senio commit, if any? Explain. (3%)

SUGGESTED ANSWER:

Senio did not commit any crime.

In this case, Senio tried to commit arson, but the same was not consummated due to
the acts independent of his will. However, he cannot be liable for frustrated arson
since there is no crime of frustrated arson. The crime of arson is only punished at its
consummated stage.
The crime is classified only as frustrated arson, inasmuch as the defendant performed
all the acts conceive to the burning of said house, but nevertheless., owing to causes
independent of his will, the criminal act which he intended was not produced. The
offense committed cannot be classified as consummated arson by the burning of said
inhabited house, for the reason that no part of the building had yet commenced to burn,
although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near
partition of the entresol, the partition might have started to burn, had the fire not been
put out on time. (US vs. Valdes y Guilgan)

XXI.

Filipino citizens Hector and Wendy were married in New York, and have been living
happily in Manila for the last three years. Hector was removing junk from his
basement when he came across an unlabeled recordable cd. He put it in his
computer's DVD drive to check its contents. To his surprise, he saw a video of Wendy
and another man Ariel, in the act of sexual intercourse in the master's bedroom of his
house. Angered by what he saw, he filed a complaint for adultery against Wendy and
Ariel. During the course of the trial, and again to the surprise of Hector, it was proved
that Wendy was born male and underwent sex reassignment later in life.

a) May Hector's charge of adultery against Wendy and Ariel prosper? Explain. (3%)

b) What is an impossible crime? Can there be an impossible crime of adultery? (2%)

SUGGESTED ANSWER:

a. No, Hector’s charge of adultery against Wendy and Ariel will not prosper.

To convict a woman for adultery, it is necessary that: she is a married woman; she
unites in sexual intercourse with a man not her husband. On the other hand, to
convict a man for adultery, it is necessary that he had actual intercourse with a
married woman; and that he commits the act with the knowledge that said woman is
married.

In this case, it was proven that Wendy is not a woman, hence he cannot commit
adultery since the Revised Penal Code requires a married woman. Moreso that this
would mean that Wendy’s marriage with Hector is void ab initio. As to Ariel, he cannot
be liable for adultery since he cannot have sexual intercourse with Wendy, since
Wendy is not a woman.

b. There is an impossible crime when the following requisites are present:

(1) That the act performed would be an offense against persons or property.
(2) That the act was done with evil intent.
(3) That its accomplishment is inherently impossible, or that the means employed is
either inadequate or ineffectual.
(4) That the act performed should not constitute a violation of another provision of the
RPC.

No, there cannot be an impossible crime of adultery, since one of the requisites of an
impossible crime is that the act performed would be an offense against persons or
property. Adultery is a crime against chastity.

XXII.

Charlie was charged for the qualified rape of AAA. The Information alleged that AAA
was 14 years old at the time the crime was committed and that Charlie was AAA's
stepfather. The presentation of AAA's birth certificate during the trial duly established
the following: (1) that AAA was indeed 14 years old at the time of the rape; and (2) that
AAA's mother is BBB and her father was the late CCC. BBB and Charlie only became
live-in partners after CCC's death. The RTC found Charlie guilty of qualified rape. On
appeal, the Court of Appeals convicted Charlie of simple rape. Charlie appealed before
the Supreme Court. How will you rule and why? (3%)

SUGGESTED ANSWER:

I will dismiss the appeal of Charlie.

The findings of the trial court are binding upon the Court. However, Charlie should be
convicted of qualified rape. Under the new rape law, rape is qualified when the victim
is under 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 of the victim.

BAR 2016 – CRIMINAL LAW

ANSWERS

Explain the application of the Indeterminate Sentence Law (ISL). (5%)

SUGGESTED ANSWER:

Indeterminate Sentence Law (ISLAW): How to determine maximum and minimum

penalties
(Act no 4103 as amended)

The Indeterminate Sentence Law is mandatory in all cases, EXCEPT if the accused will
fall in any of the following exceptions:

1. if sentenced with a penalty of death or life imprisonment

2. if convicted of treason, conspiracy, proposal to commit treason
3. if convicted of misprision of treason, sedition, rebellion or espionage
4. if convicted of piracy
5. if the offender is a habitual delinquent
6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief executive
8. where the maximum term of imprisonment does not exceed 1 year (important!)
9. if convicted by final judgement at the time of the effectivity of Act No. 4103
10. if penalized with suspension or destierro

If accused fall in any of the foregoing exceptions. DO NOT APPLY ISLAW!

ISLAW applies to offenses punished by Special Law and Revised Penal Code.

Why is ISLAW mandatory?

In the application of the Indeterminate Sentence Law the judge will get the maximum
penalty and likewise the minimum penalty. If the accused was already able to serve
the minimum term of his indeterminate sentence and upon the approval of the Board,
the accused now becomes eligible for parole. ISLAW is favorable to the accused.

If the accused was granted parole and violated some conditions of the parole,
What will happen?
A warrant of arrest will be issued by the court and the accused will be made to serve
the rest of the remaining or unexpired portion of his sentence. (But in probation you
go back to number 1, serving of sentence will be from the beginning)

Application of ISLAW:

How to get maximum and minimum penalty in Special Law:

1. The maximum penalty should NOT exceed the maximum provided for by that law.
2. The minimum penalty should NOT fall below the minimum provided by the law.

How to get maximum and minimum penalty in Revised Penal Code:

Example: In the crime of homicide, under the Revised Penal Code, the offender is
sentenced to reclusion temporal.
The maximum penalty under the Indeterminate Sentence Law is reclusion temporal.
But reclusion temporal is a divisible penalty consisting of maximum, medium and
minimum periods. Which period will we place the maximum term of the Indeterminate
Sentence?

Guide for determining the maximum penalty:

1. Determine the entire range of the penalty
2. Determine if there is mitigating or aggravating circumstance

Which period will the maximum penalty be placed?

In pursuant to art 64, when there is no mitigating and no aggravating circumstance, it
should be placed at the medium period. Thus, the maximum penalty for the example
above is reclusion temporal in the medium period.

What is the minimum penalty now?

In getting the minimum penalty, the rule is to simply get the penalty one (1) degree
lower from the maximum penalty without taking into account the mitigating and
aggravating circumstance. Thus, the penalty one degree lower from reclusion
temporal, without taking into account any mitigating or aggravating circumstance, is
prision mayor. Prision mayor is now the minimum penalty for our example.

Important: If your maximum penalty is wrong, it follows that the minimum penalty
will also be wrong.

Again, prision mayor is a divisible penalty. Which period can it be placed?

Under the Indeterminate Sentence Law, it would depend upon the discretion of the
court on which period to place it. Thus, the minimum penalty is prision mayor in any
of its period.

Factors that could affect the imposition of minimum penalty:

1. Age
2. Conduct during trial
3. Mental or physical condition

Suppose in the example above, 1 aggravating circumstance was proven. What is now
the maximum penalty?
It would still be reclusion temporal, but it shall be placed in the maximum period
because of the presence of 1 aggravating circumstance.

How about the minimum penalty?

It would still be 1 degree lower from reclusion temporal, which is prision mayor. In
which period? It shall be discretionary upon the court.

(More examples)

1 mitigating but NO aggravating

maximum penalty: reclusion temporal in the minimum period
minimum penalty: prision mayor in any period

2 mitigating, NO aggravating (privileged mitigating)

maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period
The preceding example is an exception to the rule. If there is a privileged mitigating
circumstance, we take it into account first in order to obtain the proper maximum
penalty. Then, from that maximum penalty, we obtain the proper minimum penalty by
getting the penalty 1 degree lower. Same rule applies as to the period of the minimum
penalty.

Remember: It will never become a privileged mitigating circumstance if there is an

aggravating circumstance present. 8 mitigating and 1 aggravating will never become
privileged mitigating circumstance.

3 mitigating, NO aggravating
maximum penalty: prision mayor in the minimum period
minimum penalty: prision correctional any period
In the preceding example, there are 3 mitigating circumstance present and no
aggravating circumstance. The first two mitigating circumstance shall be a privileged
mitigating circumstance. Thus, the penalty will be reduced by 1 degree from reclusion
temporal to prision mayor. The 3rd mitigating circumstance shall place the penalty in
the minimum period.

4 mitigating, NO aggravating
maximum penalty: prision correctional in the medium period (2 privileged
circumstance. Thus we lower by 2 degrees)
minimum penalty: arresto mayor any period

5 mitigating, NO aggravating
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

At most we can only lower by 2 degrees. Thus, if there are 6 mitigating circumstance
and NO aggravating:
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

How is Indeterminate Sentence Law applied in complex crimes (Article 48)?

A complex crime is punished by the most serious offense and shall be imposed in its
maximum period.

Example: Estafa through falsification of public documents.

Under the Revised Penal Code, falsification of public documents (Article 171) is a more
serious offense punished by prision mayor than estafa (Article 315), punished only by
prision correctional.

Thus, applying the Indeterminate Sentence Law, the maximum penalty for estafa
through falsification of public documents shall be prision mayor in the maximum
period. Minimum penalty shall be prision correctional, any period.

Suppose there was 1 mitigating circumstance proven. Maximum penalty would still be
prision mayor in the maximum period. In pursuant to Article 48, even if there is a
mitigating circumstance present, it should still be imposed at the maximum period.

How about if there are 2 mitigating circumstance and no aggravating?

The rule is, if it is a privileged mitigating circumstance, we lower by the penalty by one
degree but still place it at the maximum period. Thus, the maximum penalty shall be
prision correctional in the maximum period.

4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period

-------------------------------
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)

II

[a] Define malfeasance, misfeasance and nonfeasance. (2.5%)

[b] Differentiate wheel conspiracy and chain conspiracy. (2.5%)

SUGGESTED ANSWER:

A. Malfeasance - Doing of an act which a public officer should not have done

Misfeasance - Improper doing of an act which a person might lawfully do

Nonfeasance - Failure of an agent to perform his undertaking for the principal

B. Wheel conspiracy vs. chain conspiracy

Wheel Conspiracy Chain Conspiracy

There is a single person or group (the
hub) dealing individually with two or
more other persons or groups (the
spokes); and
Shared criminal purpose; the
ringleader or group which deals with
other members or groups is called the
hub, while the other parties that
maintain the individual relationship
with the hub are the spokes.
There is successive communication and cooperation
in much the same way as with legitimate business
operations between manufacturer and wholesaler,
then wholesaler and retailer, and then retailer and
consumer. (Estrada vs. Sandiganbayan)
Usually involves distribution of narcotics or other
contraband.
Single conspiracy, wherein each person acts
separately and successively; each person is
responsible for a distinct act within the overall plan.
The chain conspiracy is a single conspiracy even
though each member of the conspiracy may not
know every other member or each member may not
be involved in all the activities of the conspiracy.

III

Pedro is married to Tessie. Juan is the first cousin of Tessie. While in the market,
Pedro saw a man stabbing Juan. Seeing the attack on Juan, Pedro picked up a spade
nearby and hit the attacker on his head which caused the latter's death.
Can Pedro be absolved of the killing on the ground that it is in defense of a relative?
Explain. (5%)

SUGGESTED ANSWER:

No, Pedro cannot be absolved of the killing on the ground of defense of a relative.

Under the Revised Penal Code, defense of a relative only applies if it is in defense of
the person or rights of his spouse, ascendants, descendants, or legitimate, natural or
adopted brothers or sisters, or his relatives by affinity in the same degrees.

In this case, Juan, as the first cousin of his wife, is not within the same degrees of
affinity as aforementioned. Hence, Pedro cannot avail of the ground of defense of a
relative.

He may, however, invoke the defense on the person or rights of a stranger, provided that
there is unlawful aggression and reasonable necessity of the means employed to
prevent and repel it, and that Pedro is not induced by any revenge, resentment or other
evil motive.

IV

Jojo and Felipa are husband and wife. Believing that his work as a lawyer is sufficient
to provide for the needs of their family, Jojo convinced Felipa to be a stay-at-home
mom and care for their children. One day, Jojo arrived home earlier than usual and
caught Felipa in the act of having sexual intercourse with their female nanny, Alma, in
their matrimonial bed. In a fit of rage, Jojo retrieved his revolver from inside the
bedroom cabinet and shot Alma, immediately killing her.

[a] Is Art. 247 (death or physical injuries inflicted under exceptional circumstances) of
the Revised Penal Code (RPC) applicable in this case given that the paramour was of
the same gender as the erring spouse? (2.5%)

[b] Is Felipa liable for adultery for having sexual relations with Alma? (2.5%)

SUGGESTED ANSWER:

A. No, Article 247 is not applicable in this case.

Under Article 247 of the Revised Penal Code, “any legally married person who having
surprised his spouse in the act of committing sexual intercourse with another person,
shall kill any of them or both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer the penalty of destierro.” In
this case, Article 247 cannot apply since sexual intercourse cannot be done by a
woman with another woman.

B. No, Felipa is not liable for adultery.

Under the Revised Penal Code, adultery is committed by any married woman who
shall have sexual intercourse with a man not her husband. In this case, Felipa was
caught in the act with another woman, and not with a man. Also, sexual intercourse
cannot be transpire between two people who are both women.

Governor A was given the amount of PIO million by the Department of Agriculture for
the purpose of buying seedlings to be distributed to the farmers. Supposedly intending
to modernize the farming industry in his province, Governor A bought farm equipment
through direct purchase from XY Enterprise, owned by his kumpare B, the alleged
exclusive distributor of the said equipment. Upon inquiry, the Ombudsman discovered
that B has a pending patent application for the said farm equipment. Moreover, the
equipment purchased turned out to be overpriced. What crime or crimes, if any, were
committed by Governor A? Explain. (5%)

SUGGESTED ANSWER:

Governor A committed the crime of technical malversation. Under the Revised Penal
Code, technical malversation is committed when the following elements are present:
the offender is a public officer; there are public funds or property under his
administration; such fund or property were appropriated by law or ordinance for a
particular public use; he applies such public fund or property to any public use other
than for which it was appropriated for. In this case, the P 10 Million given by the
Department of Agriculture was appropriated for the purpose of buying seedlings.
Thus, Governor A’s act of using these funds to buy farming equipment constitute
technical malversation.

Governor A is also liable for violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act (RA 3019). Under said law, the following are the elements of Section 3(e):
that the offender is a public offender; the act was done in the discharge of the public
officer’s official, administrative or judicial functions; the act was done through
manifest partiality, evident bad faith or gross inexcusable negligence; and the public
officer caused undue injury to any party, including the Government, or gave any
unwarranted benefits, advantage or preference. In this case, the failure to conduct a
public bidding, as well as the purchase of the overpriced equipment, caused undue
damage to the Government, while giving unwarranted benefits to his kumpare.

VI

Ofelia, engaged in the purchase and sale of jewelry, was charged with violation of PD
1612, otherwise known as the Anti-Fencing Law, for having been found in possession
of recently stolen jewelry valued at Pl 00,000.00 at her jewelry shop. Her defense is
that she merely bought the same from Antonia and produced a receipt covering the
sale. She presented other receipts given to her by Antonia representing previous
transactions. Convicted of the charge, Ofelia appealed, arguing that her acquisition of
the jewelries resulted from a legal transaction and that the prosecution failed to prove
that she knew or should have known that the pieces of jewelry which she bought from
Antonia were proceeds of the crime of theft.

[a] What is a "fence" under PD 1612? (2.5%)

[b] Is Ofelia liable under the Anti-Fencing Law? Explain. (2.5%)

SUGGESTED ANSWER:

A. Under P.D. 1612, "fence" includes any person, firm, association corporation or
partnership or other organization who/which commits the act of fencing.
"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.

B. Yes, Ofelia is liable under the Anti-Fencing Law.

Under P.D. 1612, 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. In this case, Ofelia was found in possession of recently stolen jewelry.
Hence, she is liable for violation of the Anti-Fencing Law.

VII
Val, a Nigerian, set up a perfume business in the Philippines. The investors would buy
the raw materials at a low price from Val. The raw materials consisted of powders,
which the investors would mix with water and let stand until a gel was formed. Val
made a written commitment to the investors that he would buy back the gel at a
higher price, thus assuring the investors of a neat profit. When the amounts to be paid
by Val to the investors reached millions of pesos, he sold all the equipment of his
perfume business, absconded with the money, and is nowhere to be found. What
crime or crimes were committed, if any? Explain. (5%)

SUGGESTED ANSWER:

Val committed the crime of estafa under par. 2(a) Article 315 of the Revised Penal
Code. The elements of estafa under said law are as follows: there must be a false
pretense, fraudulent acts or fraudulent means; such false pretense, fraudulent act or
fraudulent means must be made or executed prior to or simultaneously with the
commission of the fraud; the offended party must have relied on the false pretense,
fraudulent act or fraudulent means and was thus induced to party with his money or
property; and as a result thereof, the offended party suffered damage.

In this case, Val assured the investors that he would buy back the gel at a higher
price, thus inducing the investors to part with their money or property. Val’s act of
absconding and non-fulfillment of his promise caused damage to the investors.

VIII

Charges d'affaires Volvik of Latvia suffers from a psychotic disorder after he was
almost assassinated in his previous assignment. One day, while shopping in a mall, he
saw a group of shoppers whom he thought were the assassins who were out to kill
him. He asked for the gun of his escort and shot ten (10) people and wounded five (5)
others before he was subdued. The wounded persons required more than thirty (30)
days of medical treatment. What crime or crimes, if any, did he commit? Explain. (5%)

SUGGESTED ANSWER:

Volvik committed the crime of homicide and serious physical injuries. However, he is
exempt from criminal liability as an insane person at the time of the commission of the
act. Also, since a charges d’ affaires is not subject to the penal laws of the Philippines,
he is not criminally liable.

IX

A is the driver of B's Mercedes Benz car. When B was on a trip to Paris, A used the car
for a joy ride with C whom he is courting. Unfortunately, A met an accident. Upon his
return, B came to know about the unauthorized use of the car and sued A for qualified
theft. B alleged that A took and used the car with intent to gain as he derived some
benefit or satisfaction from its use. On the other hand, A argued that he has no intent
of making himself the owner of the car as he in fact returned it to the garage after the
joy ride. What crime or crimes, if any, were committed? Explain. (5%)

SUGGESTED ANSWER:

A committed a violation of the Anti-Carnapping Law and not qualified theft. The anti-
carnapping law is a special law which particularly addresses the taking of a motor
vehicle. The elements of carnapping are as follows: (1) the taking of a motor vehicle
which belongs to another; (2) the taking is without the consent of the owner or by
means of violence against or intimidation of persons or by using force upon things;
and (3) the taking is done with intent to gain.
The defense of A that he has no intent to make himself the owner is immaterial. In the
given facts, all the elements are present, including intent to gain. Intent to gain or
animus lucrandi is an internal act, presumed from the unlawful taking of the motor
vehicle. Actual gain is irrelevant; the term gain is not merely limited to pecuniary
benefit but also includes the benefit which in any other sense may be derived or
expected from the act which is performed. Thus, the mere use of the thing which was
taken without the owner’s consent constitutes gain.

In Villacorta v. Insurance Commission[55] which was reiterated in Association of

Baptists for World Evangelism, Inc. v. Fieldmens Insurance Co, Inc.,[56] Justice Claudio
Teehankee (later Chief Justice), interpreting the theft clause of an insurance policy,
explained that, when one takes the motor vehicle of another without the latters consent
even if the motor vehicle is later returned, there is theft, there being intent to gain as the
use of the thing unlawfully taken constitutes gain:

Assuming, despite the totally inadequate evidence, that the taking was temporary and
for a joy ride, the Court sustains as the better view[57] that which holds that when a
person, either with the object of going to a certain place, or learning how to drive, or
enjoying a free ride, takes possession of a vehicle belonging to another, without the
consent of its owner, he is guilty of theft because by taking possession of the personal
property belonging to another and using it, his intent to gain is evident since he derives
therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in
his work Groizard who holds that the use of a thing constitutes gain and Cuello Calon
who calls it hurt de uso. (People vs. Bustinera)

The Royal S.S. Maru, a vessel registered in Panama, was 300 nautical miles from
Aparri, Cagayan when its engines malfunctioned. The Captain ordered his men to drop
anchor and repair the ship. While the officers and crew were asleep, armed men
boarded the vessel and took away several crates containing valuable items and loaded
them in their own motorboat. Before the band left, they planted an explosive which
they detonated from a safe distance. The explosion damaged the hull of the ship, killed
ten (10) crewmen, and injured fifteen (15) others.

What crime or crimes, if any, were committed? Explain. (5%)

SUGGESTED ANSWER:

The crime committed is qualified piracy. Under the law, there is piracy when the whole
or part of cargo, equipment or personal belongings of a ship’s complement or
passengers is taken by means of violence against or intimidation of persons or force
upon things. The act was qualified since homicide was committed on the occasion of
the piracy.

XI

Angelino, a Filipino, is a transgender who underwent gender reassignment and had

implants in different parts of her body. She changed her name to Angelina and was a
finalist in the Miss Gay International. She came back to the Philippines and while she
was walking outside her home, she was abducted by Max and Razzy who took her to a
house in the province. She was then placed in a room and Razzy forced her to have
sex with him at knife's point. After the act, it dawned upon Razzy that Angelina is
actually a male. Incensed, Razzy called Max to help him beat Angelina. The beatings
that Angelina received eventually caused her death. What crime or crimes, if any, were
committed? Explain. (5%)

SUGGESTED ANSWER:

The crime commited by Max and Razzy as conspirators is murder. There is intent to
kill, and the killing was attended by the aggravating circumstance of treachery.
There is no rape in this case since rape under paragraph 1 of the Revised Penal Code
can only be committed against a woman. There is likewise no rape under paragraph 2
by sexual assault since the same is only committed by a person by inserting his penis
into another person’s mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person.

XII

Arnold, 25 years of age, was sitting on a bench in Luneta Park watching the statue of
Jose Rizal when, without his permission, Leilani, 17 years of age, sat beside him and
asked for financial assistance, allegedly for payment of her tuition fee, in exchange for
sex. While they were conversing, police operatives arrested and charged him with
violation of Section l0 of RA 7610 (Special Protection of Children against Child Abuse,
Exploitation and Discrimination Act), accusing him of having in his company a minor,
who is not related to him, in a public place. It was established that Arnold was not in
the performance of a social, moral and legal duty at that time.

Is Arnold liable for the charge? Explain. (5%)

SUGGESTED ANSWER:

No, Arnold is not liable for the charge. Section 10 (b) of RA 7610 provides that:

“(b) Any person who shall keep or have in his company a minor, twelve (12) years or
under or who in ten (10) years or more his junior in any public or private place, hotel,
motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor,
beach and/or other tourist resort or similar places shall suffer the penalty of prision
mayor in its maximum period and a fine of not less than Fifty thousand pesos
(P50,000): Provided, That this provision shall not apply to any person who is related
within the fourth degree of consanguinity or affinity or any bond recognized by law,
local custom and tradition or acts in the performance of a social, moral or legal duty.”

This law punishes a person who shall keep in his company a minor, 12 years or under
or in ten years or more his junior. In this case, Arnold is 25 years of age while Leilani
is 17. Neither is she 12 years or under. Thus, Leilani is only 8 years younger than
Arnold. Hence, Arnold cannot commit this act against Leilani.

XIII

Domingo is the caretaker of two (2) cows and two (2) horses owned by Hannibal.
Hannibal told Domingo to lend the cows to Tristan on the condition that the latter will
give a goat to the former when the cows are returned. Instead, Tristan sold the cows
and pocketed the money. Due to the neglect of Domingo, one of the horses was stolen.
Knowing that he will be blamed for the loss, Domingo slaughtered the other horse, got
the meat, and sold it to Pastor. He later reported to Hannibal that the two horses were
stolen.

[a] What crime or crimes, if any, did Tristan commit? Explain. (2.5%)

[b] What crime or crimes, if any, were committed by Domingo? Explain. (2.5%)

SUGGESTED ANSWER:

A. Tristan committed the crime of estafa with unfaithfulness or abuse of

confidence. Under this provision of the Revised Penal Code, the following are
the elements: money, goods or other personal property is received by the
offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same; there is
 misappropriation or conversion of such money or property by the offender, or
denial on his part of such receipt; such misappropriation or conversion or
denial is to the prejudice of another. Tristan’s act of selling the cows and
pocketing the money shows that the elements of estafa under this article are
present.

B. Domingo also committed the crime of estafa with unfaithfulness or abuse of

confidence. Under this provision of the Revised Penal Code, the following are
the elements: money, goods or other personal property is received by the
offender in trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return, the same; there is
misappropriation or conversion of such money or property by the offender, or
denial on his part of such receipt; such misappropriation or conversion or
denial is to the prejudice of another. Domingo’s act of selling the horse shows
that the elements of estafa under this article are present.

XIV

Dimas was arrested after a valid buy-bust operation. Macario, the policeman who
acted as poseur-buyer, inventoried and photographed ten (10) sachets of shabu in the
presence of a barangay tanod. The inventory was signed by Macario and the tanod,
but Dimas refused to sign. As Macario was stricken with flu the day after, he was able
to surrender the sachets to the PNP Crime Laboratory only after four (4) days. During
pre-trial, the counsel de oficio of Dimas stipulated that the substance contained in the
sachets examined by the forensic chemist is in fact methamphetamine hydrochloride
or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas
questioned the admissibility of the evidence because Macario failed to observe the
requisite "chain of custody" of the alleged "shabu" seized from him. On behalf of the
State, the Solicitor General claimed that despite non-compliance with some
requirements, the prosecution was able to show that the integrity of the substance
was preserved. Moreover, even with some deviations from the requirements, the
counsel of Dimas stipulated that the substance seized from Dimas was shabu so that
the conviction should be affirmed.

[a] What is the "chain of custody" requirement in drug offenses? (2.5%)

[b] Rule on the contention of the State. (2.5%)

SUGGESTED ANSWER:

A. "Chain of Custody" means the duly recorded authorized movements and

custody of seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of
seized item shall include the identity and signature of the person who held
temporary custody of the seized item, the date and time when such transfer of
custody were made in the course of safekeeping and use in court as evidence,
and the final disposition.

B. The contention of the State is not tenable. As held in the case of People vs. Sali:

“Given the flagrant procedural lapses the police committed in handling the seized
shabu and the obvious evidentiary gaps in the chain of its custody, a presumption of
regularity in the performance of duties cannot be made in this case. A presumption of
regularity in the performance of official duty is made in the context of an existing rule
of law or statute authorizing the performance of an act or duty or prescribing a
procedure in the performance thereof. The presumption applies when nothing in the
record suggests that the law enforcers deviated from the standard conduct of official
duty required by law; where the official act is irregular on its face, the presumption
cannot arise. In light of the flagrant lapses we noted, the lower courts were obviously
wrong when they relied on the presumption of regularity in the performance of official
duty.With the chain of custody in serious question, the Court cannot gloss over the
argument of the accused regarding the weight of the seized drug. The standard
procedure is that after the confiscation of the dangerous substance, it is brought to
the crime laboratory for a series of tests. The result thereof becomes one of the bases
of the charge to be filed.”

XV

Pedro, Pablito, Juan and Julio, all armed with bolos, robbed the house where Antonio,
his wife, and three (3) daughters were residing. While the four were ransacking
Antonio's house, Julio noticed that one of Antonio's daughters was trying to escape.
He chased and caught up with her at a thicket somewhat distant from the house, but
before bringing her back, raped her.

[a] What crime or crimes, if any, did Pedro, Pablito, Juan and Julio commit? Explain.
(2.5%)

[b] Suppose, after the robbery, the four took turns in raping the three daughters inside
the house, and, to prevent identification, killed the whole family just before they left.
What crime or crimes, if any, did the four malefactors commit? (2.5%)

SUGGESTED ANSWER:

A. Pedro, Pablito, Juan and Julio, committed a special complex crime of robbery with
rape. In People vs. Suyu, it was ruled that once conspiracy is established between
several accused in the commission of the crime of robbery, they would all be equally
culpable for the rape committed by anyone of them on the occasion of the robbery,
unless anyone of them proves that he endeavoured to prevent the others from
committing the rape. (People vs. Gallo, GR 181902)

B. In this case, the four conspirators committed a special complex crime of robbery
with homicide, with rape as an aggravating circumstance. The special complex crime
of robbery with homicide is committed when as in this case, homicide results or was
committed on the occasion of the robbery. (People vs. Hipona)

XVI

A is the president of the corporate publisher of the daily tabloid, Bulgar; B is the
managing editor; and C is the author/writer. In his column, Direct Hit, C wrote about
X, the head examiner of the BIR-RDO Manila as follows:

"Itong si X ay talagang BUWAYA kaya ang logo ng Lacoste T shirt niya ay napaka
suwapang na buwaya.Ang nickname niya ay si Atty. Buwaya. Ang PR niya ay 90% sa
bayad ng taxpayer at ang para sa RP ay 10% lang. Kaya ang baba ng collection ng
RDO niya. Masyadong magnanakaw si X at dapat tanggalin itong bundat na bundat
na buwaya na ito at napakalaki na ng kurakot."

A, B and C were charged with libel before the RTC of Manila. The three (3) defendants
argued that the article is within the ambit of qualified privileged communication; that
there is no malice in law and in fact; and, that defamatory comments on the acts of
public officials which are related to the discharge of their official duties do not
constitute libel.

Was the crime of libel committed? If so, are A, B, and C all liable for the crime?
Explain. (5%)

SUGGESTED ANSWER:
Yes, the crime of libel was committed, as the following elements of libel are present:
there must be an imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status or circumstance; the imputation must be made
publicly; it must be malicious; the imputation is directed at a natural person; and
such imputation tends to cause the dishonour, discredit or contempt of the person
defamed.

A, B, and C are all liable for the crime.

The defense of qualified privileged is not available. In order that the publication of a
report of an official proceeding may be considered privileged, the following conditions
must exist:

(a) That it is a fair and true report of a judicial, legislative, or other official
proceedings which are not of confidential nature, or of a statement, report or speech
delivered in said proceedings, or of any other act performed by a public officer in the
exercise of his functions;
(b) That it is made in good faith; and
(c) That it is without any comments or remarks. (Tulfo vs. People, GR
161032)

The articles in this case are not fair and true reports contemplated by the provision.
They provide no details of the acts committed by X.

To determine whether the defamatory statement was made with actual malice, the test
applied is the reckless disregard test. Under this test, it is determined whether the
offender had in fact written and published the subject articles with reckless disregard
of whether the same were false or not. In this case, A, B and C did not present
evidence to show that the accusations were true. Thus, they fail to meet the test.

As to the allegation that there is no libel since the defamatory comments on the acts of
public officials which are related to the discharge of their official duties, this only
holds true if the accused proves the truth of the imputation. However, in this case, the
accused did not show proof as to the truth of their imputation. p. 310 UST Reviewer

XVII

Braulio invited Lulu, his 11-year old stepdaughter, inside the master bedroom. He
pulled out a knife and threatened her with harm unless she submitted to his desires.
He was touching her chest and sex organ when his wife caught him in the act. The
prosecutor is unsure whether to charge Braulio for acts of lasciviousness under Art.
336 of the RPC; for lascivious conduct under RA 7610 (Special Protection against
Child Abuse, Exploitation and Discrimination Act); or for rape under Art.266-A of the
RPC. What is the crime committed? Explain. (5%)

SUGGESTED ANSWER:

Braulio committed acts of lasciviousness under the Revised Penal Code.

Under Article 336 of the Revised Penal Code on acts of lasciviousness, the following
elements must be present: (1) that the offender commits any act of lasciviousness or
lewdness; and (2) that it is done under any of the following circumstances: (a) by using
force or intimidation; (b) when the offended woman is deprived of reason or otherwise
unconscious; or (c) when the offended party is under twelve (12) years of age.

In the case of Amployo v. People,[13] the Court expounded on the definition of the term
lewd, thus:

The term lewd is commonly defined as something indecent or obscene; it is

characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the existence of
which can be inferred by overt acts carrying out such intention, i.e., by conduct that can
only be interpreted as lewd or lascivious. The presence or absence of lewd designs is
inferred from the nature of the acts themselves and the environmental circumstances.
What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a
precise definition. As early as U.S. v. Gomez we had already lamented that “It would be
somewhat difficult to lay down any rule specifically establishing just what conduct
makes one amenable to the provisions of article 439 of the Penal Code. What constitutes
lewd or lascivious conduct must be determined from the circumstances of each case. It
may be quite easy to determine in a particular case that certain acts are lewd and
lascivious, and it may be extremely difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous advances of an ardent lover.”

Section 5(b) of Republic Act 7610 states that: “Those who commit the act of sexual
intercourse of lascivious conduct with a child exploited in prostitution or subject to
other sexual abuse; Provided, That when the victims is under twelve (12) years of age,
the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be reclusion temporal
in its medium period.” Thus, the accused in this case should be prosecuted under the
Revised Penal Code.

The elements of rape under Art. 266-A are not present in this case: : (1) that the
accused had carnal knowledge of the victim; and (2) that said act was accomplished (a)
through the use of force or intimidation, or (b) when the victim is deprived of reason or
otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.
Based on the given facts, there was no carnal knowledge.

XVIII

Lina worked as a housemaid and yaya of the one-week old son of the spouses John
and Joana. When Lina learned that her 70-year old mother was seriously ill, she
asked John for a cash advance of P20,000.00, but the latter refused. In anger, Lina
gagged the mouth of the child with stockings, placed him in a box, sealed it with
masking tape, and placed the box in the attic. Lina then left the house and asked her
friend Fely to demand a P20,000.00 ransom for the release of the spouses' child to be
paid within twenty-four hours. The spouses did not pay the ransom. After a couple of
days, John discovered the box in the attic with his child already dead. According to
the autopsy report, the child died of asphyxiation barely minutes after the box was
sealed.

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

SUGGESTED ANSWER:

Lina liable as principal in the special complex crime of Kidnapping with Homicide.
Where the person kidnapped is killed in the course of the detention, regardless of
whether the killing was purposely sought or was merely an afterthought, the special
complex crime aforementioned is applicable.

Fely is liable as accessory in the special complex crime of Kidnapping with Homicide.
Under the Revised Penal Code, an accessory is one who, having knowledge of the
commission of the crime, and without having participated therein either as principals
or accomplices, take part subsequent to its commission by profiting themselves or
assisting the offender to profit by the effects of the crime. Fely’s act of soliciting
ransom is an assistance to help Lina profit from the effects of the crime. She is not
liable as principal or accomplice since the demand for ransom is not necessary to
consummate the offense. P. 243, UST Reviewer.

XIX
Romeo and Julia have been married for twelve (12) years and had two (2) children. The
first few years of their marriage went along smoothly. However, on the fifth year
onwards, they would often quarrel when Romeo comes home drunk. The quarrels
became increasingly violent, marked by quiet periods when Julia would leave the
conjugal dwelling. During these times of quiet, Romeo would "court" Julia with flowers
and chocolate and convince her to return home, telling her that he could not live
without her; or Romeo would ask Julia to forgive him, which she did, believing that if
she humbled herself, Romeo would change. After a month of marital bliss, Romeo
would return to his drinking habit and the quarrel would start again, verbally at first,
until it would escalate to physical violence.

One night, Romeo came home drunk and went straight to bed. Fearing the onset of
another violent fight, Julia stabbed Romeo while he was asleep. A week later, their
neighbors discovered Romeo's rotting corpse on the marital bed. Julia and the
children were nowhere to be found. Julia was charged with parricide. She asserted
"battered woman's syndrome" as her defense.

[a] Explain the "cycle of violence." (2.5%)

[b] Is Julia's "battered woman's syndrome" defense meritorious? Explain. (2.5%)

SUGGESTED ANSWER:

A. The cycle of violence characterizes the Battered Woman Syndrome. It has three
phases:

1. tension building phase – this is when the minor battering occurs. It could be verbal
or slight physical abuse or another form of hostile behavior. The woman usually tries
to pacify the batterer through a show of kind, nurturing behavior, or by simply staying
out of the way.

2. acute battering incident – characterized by brutality, destructiveness, and

sometimes, death. The battered woman deems this incident as unpredictable, yet also
inevitable. During this phase, she has no control; only the batterer may put an end to
the violence.

3. tranquil phase – the couple experience profound relief. On the one hand, the
batterer may show a tender and nurturing behavior towards his partner. He knows
that he has been viciously cruel and tries to make up for it, begging for her forgiveness
and promising to never beat her again.

To be classified as a battered woman, the couple must go through the battering cycle
at least twice.

B. Yes, the defense of Julia is meritorious.

Under the Anti-Violence Against Women and Children, victim-survivors who are found
by the courts to be suffering from battered woman syndrome do not incur any criminal
and civil liability notwithstanding the absence of any of the elements for justifying
circumstances of self-defense under the Revised Penal Code.
In this case, the facts show that Julia is a battered woman, having gone through the
cycle of violence at least twice: with the presence of the tension building phase, acute
battering incident and tranquil phase.

XX

A, an OFW, worked in Kuwait for several years as a chief accountant, religiously

sending to his wife, B, 80% of all his earnings. After his stint abroad, he was shocked
to know that B became the paramour of a married man, C, and that all the monies he
sent to B were given by her to C. To avenge his honor, A hired X, Y and Z and told
them to kidnap C and his wife, D, so that he can inflict injuries on C to make him
suffer, and humiliate him in front of his wife. X, Y and Z were paid P20,000.00 each
and were promised a reward of P50,000.00 each once the job is done.

At midnight, A, with the fully armed X, Y and Z, forcibly opened the door and gained
entrance to the house of C and D. C put up a struggle before he was subdued by A's
group. They boarded C and D in a van and brought the two to a small hut in a farm
outside Metro Manila. Both hands of C and D were tied. With the help of X, Y and Z, A
raped D in front of C. X, Y and Z then took turns in raping D, and subjected C to
torture until he was black and blue and bleeding profusely from several stab wounds.
A and his group set the hut on fire before leaving, killing both C and D. X, Y and Z
were paid their reward. Bothered by his conscience, A surrendered the next day to the
police, admitting the crimes he committed.

As the RTC judge, decide what crime or crimes were committed by A, X, Y and Z, and
what mitigating and aggravating circumstances will be applied in imposing the
penalty. Explain. (5%)

SUGGESTED ANSWER:

The crime committed is a special complex crime of Kidnapping with Homicide, with the
aggravating circumstance of rape. A is liable as principal by inducement and X, Y, and
Z as principals by direct participation.

The following aggravating circumstances are present: that the crime be committed in
consideration of a price, reward or promise, since promised a reward once the job is
done; that the wrong done in the commission of the crime be deliberately augmented
by causing other wrong not necessary for its commission, which is shown by the
torture that the accused did to C; that the act is committed with treachery; evident
premeditation; uninhabited place.

A can avail of the mitigating circumstance of voluntary surrender.

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