2020 BAR EXAMINATIONS TRIAL

CRIMINAL LAW
(PART 2)

LEGAL EDGE BAR REVIEW CENTER

legaledge8@gmail.com
0942-949-9176 / 0917-894-5356

B.19

Tatiana testified that she met Berlin for the first time on November 6, 2018 when she attended her
cousin Tokyo's birthday party. The next day, November 7, 2018, she saw Berlin again, when she visited
her friend Nairobi at her house. Tatiana narrated that she went to the kitchen to drink water. She saw
Berlin following her. After drinking, Berlin kissed her on the nape and simultaneously told her to keep
silent. Then, Berlin slid his finger in her vagina, while mashing her breasts. Tatiana attempted to remove
his hands, but he forced himself.

In the criminal proceedings brought against him, Berlin contends that assuming a crime was committed,
it should only be acts of lasciviousness under Article 336 of the Revised Penal Code and not child
abuse under RA 7610, since the elements of child abuse are not attendant. According to Berlin, for
him to be liable under RA 7610, it must also be shown that Tatiana was "exploited in prostitution or
subjected to other sexual abuse" aside from being subjected to acts of lasciviousness, since these are
separate and distinct elements.

Is the contention of Berlin correct? Explain (3%)

SUGGESTED ANSWERS:

The contention of Berlin is mistaken. Inserting a finger in a 12-year-old girl's vagina and mashing her
breasts are not only acts of lasciviousness but also amounted to child abuse punished under Republic
Act No. 7610.

Under Section 5(b) of RA 7610, the elements of sexual abuse are: (1) the accused commits the act of
sexual intercourse or lascivious conduct; (2) the said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; (3) the child, whether male or female, is below 18 years
of age.

In the case of People vs. Villacampa, the second element is that the act is performed with a child
exploited in prostitution or subjected to other sexual abuse. To meet this element, the child victim must
either be exploited in prostitution or subjected to other sexual abuse. The Court held that the fact that
a child is under the coercion and influence of an adult is sufficient to satisfy this second element and
will classify the child victim as one subjected to other sexual abuse.

Thus, the allegations are sufficient to classify the victim as one "exploited in prostitution or subject to
other sexual abuse." This is anchored on the very definition of the phrase in Sec. 5 of RA 7610, which
encompasses children who indulge in sexual intercourse or lascivious conduct (a) for money, profit, or
any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. (Perez
vs. People, G.R. No. 201414, April 18, 2018)

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B.20

Laurel was a proprietor of a stall in Paco Market, Manila. He availed of Philam Life's Tri-Life Plan and
Excelife Gold Package offered by Frank. Laurel consistently paid the quarterly premiums from February
2019 to November 2019. On November 19, 2019, Frank offered Laurel an investment opportunity with
Philam Life Fund Management. Frank informed Laurel that the proceeds of her investment may be
channeled to pay for her insurance premiums. Enticed by the offer, Laurel tendered ₱200,000.00 to
Frank, who in turn issued Philam Life receipts. A few months later, Laurel discovered that her insurance
policies had lapsed due to non-payment of premiums. Meanwhile, in May 2020, Laurel received a letter
from Philippine Money Investment Asset Management (PMIAM), thanking her for investing in the
company. Laurel confronted Frank on why her investment was diverted to PMIAM. Frank explained
that PMIAM investments would yield a higher rate of return. Frank was charged before the RTC for
Estafa under Art. 315 2(a).

In praying for his acquittal, Frank asserts that he did not employ any deceit in soliciting Laurel's
investment as nothing in the records shows that he used a fictitious name or that he pretended to
possess power, agency, or certain qualifications and that he acted in good faith, when he decided to
place Laurel's investment in PMIAM.

a) Rule on the liability, if any, of Frank. Explain. (3%)

b) What is/are the distinction/s of estafa under Art. 315 1(b) and estafa under Art. 315 2(a). (2%)

SUGGESTED ANSWERS:

a) Frank will not be held liable for estafa through misappropriation but for other deceits under Art.
318 of the Revised Penal Code as amended.

Persons who receive money for investment in a particular company but divert the same to
another without the investor's consent may be held criminally liable for other deceits under Article
318 of the Revised Penal Code. Article 318 of the Revised Penal Code is broad in scope
intended to cover all other kinds of deceit not falling under Articles 315, 316, and 317 of the
Revised Penal Code.

In this case, although there is no proof that Frank used a fictitious name or pretended to possess
power, influence, qualifications, property, credit, agency, or business in soliciting Laurel's
money, he should nevertheless be held criminally liable for misrepresenting to Laurel that the
latter's money would be invested in Philam Life Fund Management and that its proceeds may
be utilized to pay for private his insurance premiums.

Laurel accepted the investment opportunity offered by Frank due to the promise that her money
would be invested in Philam Life, a company with which she had existing insurance policies. She
parted with her funds because of the representation that her investment's earnings would be
conveniently channeled to the payment of her insurance premiums. (Osorio vs. People, GR. No.
207711, July 02, 2018)

b) As to the nature of the act, what is penalized in estafa under Article 315 1(b) is the act of
misappropriation or conversion of anothers property as if it were ones own, or of devoting it to a
purpose or use different from that agreed upon. To misappropriate for ones own use includes
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not only conversion to ones personal advantage, but also every attempt to dispose of the
property of another without a right (Norma C. Gamaro and Josephine G. Umali vs. People of the
Philippines, G.R. No. 211917, February 27, 2017).

On the other hand, in estafa under Article 315 2(a) the offender primarily employs fraud or deceit
which in its general sense, is deemed to comprise anything calculated to deceive, including all
acts, omissions and concealment involving a breach of legal or equitable duty, trust, or
confidence justly reposed, resulting in damage to another, or by which an undue and
unconscientious advantage is taken of another (People of the Philippines vs. Roasario Baldjay,
G.R. No. 220458, July 26, 2017).

As to its concept, in estafa under Article 315 1(b) the money, goods or other personal property
must be received by the offender under certain kinds of transaction transferring juridical
possession to him. The offender acquires both physical possession and juridical possession
when the thing is received from the offended party arose from a trust, commission or for
administration (Margie Balerta vs. People of the Philippines, G.R. No. 205144, November 26,
2014).

In contrast, in estafa under Article 315 2(a) it is essential that such false statement or fraudulent
representation constitutes the cause or only motive which induced the complainant to part with
the thing. If there is no such prior or simultaneous false statement of fraudulent representation,
any subsequent act of the offender, however fraudulent or suspicious it may appear, cannot
serve as basis for prosecution of estafa (Maria C. Osorio vs. People of the Philippines, G.R No.
207711, July 2, 2018).

As to the act punishable, what is punished in estafa under Article 315 1(b) is the act of converting
or misappropriating the thing received in trust, or in commission, or for administration, or any
other obligation with the duty to make delivery of, or to return the same. On the other hand, what
is punished in estafa under Article 315 2(a) is the employment of deceit whether by words or
conduct, by false or misleading allegations, or by concealment of that which should have been
disclosed which deceives or is intended to deceive another.

B.21

On February 17, 2001, at around 5:00 p.m, Cardo was at the gate of the house, drunk, when AAA
arrived. Cardo intercepted her at the garage area. He held a knife to her back and dragged her to his
room. Then he locked his room and blocked its door using his bed. He undressed her, pulled down his
pants, cut her underwear using his knife, and then inserted his hand in her vagina. AAA felt pain and
struggled. Then, Cardo inserted his penis into her vagina. Shortly after, Chief of Police called on Cardo
to release AAA. In response, Cardo demanded that the police first produce the men who raped his
girlfriend, Aliana. When Aliana arrived, Cardo refused to release AAA unless Aliana admitted that she
had been raped. Aliana then admitted that she was raped. In the meantime, Cardo inserted his penis
in AAA's vagina again, holding a knife to her neck. The Mayor's arrival interrupted the rape. He tried,
but failed, to convince Cardo to release AAA. Then, to electrocute those who might enter the room,
Cardo installed electric wires on the door. The police officers forcibly entered Cardo's room, breaking
the window and the door.

a) What is/are the crime/s committed by Cardo, if any? Explain. (3%)

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b) What is/are the distinction/s of slight illegal detention and serious illegal detention? (2%)

SUGGESTED ANSWERS:

a) Cardo committed two (2) counts of rape and one (1) count of slight illegal detention.

Cardo first committed the crime of rape. Initially, the forcible abduction was absorbed in the crime
of rape. However, the continued detention after the first rape is not absorbed in the crime of
rape.

The facts show that after raping AAA, Cardo continued to detain her and refused to release her
even after raping her. Thus, although the initial abduction of AAA may have been absorbed by
the crime of rape, the continued detention of AAA after the rape cannot be deemed absorbed in
it. Likewise, since the detention continued after the rape had been completed, it cannot be
deemed a necessary means for the crime of rape. (People vs. Concepcion, G.R. No. 214886,
April 04, 2018)

b) As to the law punishing said crimes, slight illegal detention is defined and penalized under Article
268 of the Revised Penal Code. Whereas, serious illegal detention is punishable under Article
267 of the same code.

As to its elements, slight illegal detentions partakes of a situation where (a) the offender is a
private individual; (b) he kidnaps or detains another, or in any other manner deprives him of his
liberty; (c) that the act of kidnapping or detention is illegal; and (d) the crime is committed without
the attendance of any of the circumstances enumerated in Article 267. In contrast, the elements
of kidnapping and serious illegal detention are (a) the offender is a private individual; (b) he
kidnaps or detains another, or in any other manner deprives the latter of his liberty; (c) the act of
detention or kidnapping is illegal; and (d) in the commission of the offense, any of the following
circumstances is present (1) the kidnapping lasts for three days; (2) it is committed simulating
public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or
detained or threats to kill him were made; or (4) the person kidnapped or detained is a minor,
female, or a public officer.

As to the penalty imposed, in slight illegal detention, the penalty of reclusion temporal shall be
imposed upon any private individual who shall commit said crime. The same penalty shall be
incurred by anyone who shall furnish the place for the perpetration of the crime. On the other
hand, in kidnapping and serious illegal detention, any private individual who shall kidnap or
detain another, or in any other manner deprives a person of liberty, shall suffer the penalty of
reclusion temporal in its maximum period to death.

As to the effect of release of the person, in slight illegal detention, the release of the person shall
mitigate criminal liability. Whereas, release of a person does not mitigate criminal liability in
kidnapping and serious illegal detention.

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B.22

Based on the collective testimonies of its witnesses, the prosecution alleged that at about 10:00 a.m.
on May 26, 2018, Mahinhin and her friend, Maganda, were walking along Agham Road, Diliman,
Quezon City when PO3 Malakas abducted them. Then PO3 Malakas demanded money for their
release. Police authorities set up an entrapment against PO3 Malakas which proved to be successful.
In the Decision dated October 20, 2018, the Regional Trial Court found PO3 Malakas guilty beyond
reasonable doubt of kidnapping for ransom. Accordingly, he was sentenced to the penalty of reclusion
perpetua. PO3 Malakas argues that it is absurd to convict him of kidnapping considering that Mahinhin
was caught in flagrante delicto during a buy-bust operation on the day of the alleged incident.
Furthermore, Mahinhin was found guilty of violation of Republic Act No. 9165.

a) Will Mahinhin’s apprehension for violation of RA 9165 automatically negate the criminal liability
for kidnapping against P03 Malakas? (2%)
b) Since PO3 Malakas is a police officer, can he still be indicted for kidnapping? (2%)

SUGGESTED ANSWERS:

a) Mahinhin’s apprehension for RA 9165 will not negate the liability for kidnapping of PO3 Malakas.
It does not exclude the possibility of the commission of the crime with which PO3 Malakas is
charged. The buy-bust operation carried out against Mahinhin and her kidnapping are events
that can reasonably coexist.

Furthermore, a violation of Republic Act No. 9165 bears no direct or indirect relation to the crime
of kidnapping. Mahinhin's arrest and conviction are immaterial to the determination of PO3
Malakas’ criminal liability.

In other words, Mahinhin's innocence or guilt would neither affirm nor negate the commission of
the crime of kidnapping against her. Therefore, the resolution of this case will depend solely on
whether the prosecution has established all the elements of kidnapping under Article 267 of the
Revised Penal Code.

b) Yes, PO3 Malakas can still be held liable for kidnapping.

Although the crime of kidnapping can only be committed by a private individual, the fact that the
accused is a public official does not automatically preclude the filing of an information for
kidnapping against him. A public officer who detains a person for the purpose of extorting ransom
cannot be said to be acting in an official capacity.

In People v. Santiano, the Supreme Court explained that public officials may be prosecuted
under Article 267 of the Revised Penal Code if they act in their private capacity. (People v. PO3
Borja, G.R. No. 199710, August 02, 2017)

B.23

Atty. Matapang just received an outright dismissal of a complaint of his client. Aggrieved, Atty.
Matapang filed a Motion for Reconsideration. Atty. Matapang furnished copies of the Motion to the
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respondent, the Investigating Prosecutor, and the Office of the Secretary of Justice, Manila. The copy
of the Motion contained in a sealed envelope and addressed to the Office of the City Prosecutor of
Bright City was received by its Receiving Section. As a matter of procedure, motions filed with the said
office are first received and recorded at the receiving section, then forwarded to the Records section
before referral to the City Prosecutor for assignment to the handling Investigating Prosecutor. The
Motion for Reconsideration, among others included the following remarks--

“In the instant case, however, the Investigating Fiscal was not impartial and exhibited manifest bias for
20,000 reasons. The reasons were not legal or factual. These reasons were based on her malicious
and convoluted perceptions. If she was partial, then she is stupid. The Investigating Fiscal's stupidity
was clearly manifest in her moronic resolution to dismiss the complaint.

The Investigating Fiscal's wrongful assumption were tarnished with silver ingots. She is also an
intellectually infirm or stupidly blind.

For all the 20,000 reasons of the Investigating Fiscal, the slip of her skirt shows a corrupted and
convoluted frame of mind - a manifest partiality and stupendous stupidity in her resolution.

Lastly, the invocation of the dismissal of I.S. No. 03-1412 was a nail in the coffin for the idiocy and
imbecility of the Investigating Fiscal.

Investigating Fiscal's invocation of the dismissal of I.S. No. 03-1412 was clearly imbecilic and idiotic.

Thus, she should resign from the prosecutorial arm of the government and be a defense counsel. Then
her infirmed intellectual prowess and stupid assumptions be exposed in trial on the merits under which
complainant is afforded the due process requirement of the law. At that stage of trial, she would be
exposed as a fraud and a quack bereft of any intellectual ability and mental honesty.”

Can Atty. Matapang be held liable for libel? Explain. (3%)

SUGGESTED ANSWER

Yes, Atty. Matapang could be held liable for libel.

The statements in Atty. Matapang’s Motion for Reconsideration fall short of the test of relevancy. An
examination of the motion shows that the defamatory words and phrases used, even if liberally
construed, are hardly material or pertinent to his cause, which is to seek a reconsideration of the
dismissal of his estafa complaint and the disqualification of the Prosecutor from further acting on the
case. These statements are neither relevant grounds for a motion for reconsideration nor valid and
justifiable reasons for disqualification. These diatribes pertain to the Prosecutor’s honor, reputation,
mental and moral character, and are no longer related to the discharge of her official function as a
prosecutor. They are devoid of any relation to the subject matter of Atty. Matapang’s Motion that no
reasonable man can doubt their irrelevancy, and may not become the subject of inquiry in the course
of resolving the motion.

Atty. Matapang should bear in mind the rule that the pleadings should contain but the plain and concise
statements of material facts and not the evidence by which they are to be proved. If the pleader goes

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beyond the requirements of the statute, and alleges an irrelevant matter which is libelous, he loses his
privilege. (Belen vs. People, GR 211120, February 13, 2017)

B.24

The first incident happened in the last week of March 2016, at about 8:00 p.m. Mang Kanor called for
AAA and ordered her to sleep beside him in the makeshift room. The child obeyed her father. While
AAA was lying down, Mang Kanor pinned her to the ground with his arms and legs. To ensure his
success, he placed a lagting-a bolo used for cutting sugarcanes-a foot away from her head. AAA's
agony then began to unfold. Mang Kanor slid his leg down from her hip and removed her shorts and
underwear. Then, he stripped off his briefs and shorts and went on top of her. The child tried to push
him away, but she was powerless against the figure that lunged towards her. Holding his penis, Mang
Kanor inserted it into his child's vagina. AAA felt pain as he penetrated her. He continued to thrust her
until he ejaculated. Sexually satisfied at her daughter's expense, Mang Kanor cleaned out the sperm
left in her vagina. He threatened to kill anyone to whom she would report the incident. AAA kept quiet
out of fear. She was then only 16 years old.

The Regional Trial Court found that accused relationship with AAA was not duly alleged in the
Informations. Thus, his relationship with the victim cannot qualify the crimes of rape. Ruling otherwise
would deprive him of his constitutional right to be informed of the nature and cause of accusation
against him. Was the RTC ruling Correct? (3%)

SUGGESTED ANSWERS:

Yes, the ruling of the RTC is correct. Mang Kanor, the accused, committed two (2) counts of simple
rape, not qualified rape. The crime of qualified rape under Article 266-B(1) of the Revised Penal Code
consists of the twin circumstances of the victim's minority and her relationship to the perpetrator, both
of which must concur and must be alleged in the information. It is immaterial whether the relationship
was proven during trial if that was not specifically pleaded for in the information. (People vs. Armodia,
June 7, 2017 G.R. No. 210654)

B.25

Customs Examiner Mapagmatyag testified that at around 5:23 p.m. on February 24, 2019 at the Ninoy
Aquino International Airport Terminal 1, Tagapuslit, a Kenyan national, who arrived from Kenya via
Dubai, was apprehended for carrying shabu. Mapagmatyag then prepared an Inventory Report. Upon
testing samples, the white crystalline substance yielded positive for methamphetamine hydrochloride
or shabu. The test results showed that the seized items contained shabu, with a confirmatory test
yielding the same outcome. In its January 16, 2020 Decision, the Regional Trial Court found
Tagapuslit guilty beyond reasonable doubt of the crime charged. It found that Tagapuslit had known
she was in possession of illegal drugs considering that animus possidendi is presumed. Moreover, the
trial court ruled that the presumption of regularity of duty on the airline personnel's placing of the bag
tags at the airport of origin established that Tagapuslit was the real owner of the luggage.

(a) What are the elements of illegal transportation of drugs? (2%)

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(b) Tagapuslit claims that prosecution was not able to establish his ownership of the drugs seized,
hence he should be acquitted. Rule on the contention. (2%)
(c) What is the concept of chain of custody? (2%)

SUGGESTED ANSWERS:

a) The illegal transportation of dangerous drugs is punished under Section 5 of the Comprehensive
Dangerous Drugs Act. The essential element for the crime of illegal transportation of dangerous
drugs is the movement of the dangerous drug from one (1) place to another. To establish the
accused's guilt, it must be proven that: (1) the transportation of illegal drugs was committed; and
(2) the prohibited drug exists.

b) Proof of ownership of the dangerous drugs seized is immaterial. What is important is that the
prosecution prove the act of transporting as well as the identity and integrity of the seized drugs.
This is because the confiscated drug is the corpus delicti of the crime. Since it is not readily
identifiable by sight or touch and may be easily tampered with, its preservation is paramount.
The chain of custody ensures that there would be no unnecessary doubts concerning the identity
of the evidence. The act of transporting illegal drugs is a malum prohibitum. Consequently,
proof of ownership and intent are not essential elements of the crime.

c) Chain of custody is the duly recorded authorized movements and custody of seized items at
each stage, from seizure to receipt in the forensic laboratory to safekeeping to presentation in
court for destruction. Such record of movements and custody of seized items 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 used in court
as evidence, and the final disposition.

B.26

On October 1, 2019, cousins Monica and Ross met Rachel and Phoebe, who convinced them to work
as caregivers in Korea with monthly salary of $1500.00. Rachel and Phoebe represented that they are
connected with PQR Manpower Agency with business address in Ermita, Manila as shown by their
calling cards. Since Monica and Ross are from Bulacan, they agreed to meet at the Korean restaurant
at SM North EDSA. Rachel and Phoebe told Monica and Ross that P60,000.00 placement fees should
be paid by each of them not later than November 30, 2019, so they could leave for Korea on or before
December 15, 2019. On November 30, 2019 the four (4) of them met again at the Korean restaurant
with Chandler and Joey, who were introduced to Monica and Ross as the Vice-President and Operation
Manager of the agency. Respectively, Monica and Ross paid P60,000.00 each to Rachel and Phoebe,
who handed the money to Chandler and Joey. They did not issue any receipt, as according to them
they were in hurry and promised to give them next time they meet. So, Monica and Ross submitted the
filled-up application forms and other documents and gave them to Chandler and Joey. A week before
December 15, 2019 Monica & Ross made follow-up calls to Chandler and Joey, who failed to heed
their calls. Rachel and Phoebe on the other hand assured them that their papers are being processed.
Monica and Ross became worried more so that they just borrowed the money they paid from loan
sharks. So, they went to the POEA and to their utter dismay discovered that PQR Manpower Agency
was not registered with the POEA nor were Rachel, Phoebe, Chandler, and Joey licensed to recruit

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workers for abroad. Monica and Ross filed their complaints with the POEA for Illegal Recruitment under
Republic Act 8042 and Estafa under Art. 315, par. 2(a) of the Revised Penal Code.

a) Rachel and Phoebe contend that they are merely employees of the company, they do not hold
any key position, nor were they responsible officers, as such they could not be held liable for
any crime. Is the point raised tenable? Explain. (2%)
b) Chandler and Joey on the other hand challenged the prosecution that since they are already
charged for violation of RA 8042, they could no longer be charged for estafa as it is will result to
double jeopardy. Is the point raised by the defense tenable? Explain. (2%)

SUGGESTED ANSWERS:

a) The point raised is untenable.

Under Section 6 of Republic Act No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995),
illegal recruitment refers to “any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring or processing workers and includes referencing, contact services, promising or advertising
from employment abroad, whether for profit as not, when undertaken by non-license or non-
holder of authority, contemplated under Article 13 (f) of the Labor Code.

It has clearly been shown that the act of Rachel and Phoebe falls under the foregoing definition.
They made Monica and Ross believe that they were lawfully engaged on recruitment of workers
abroad as can readily be seen in their calling cards and the representation they made to Monica
and Ross which turned out to be false.

Moreover, they are also liable for Estafa under Article 315, par. 2, a of the Revised Penal Code.
Estafa is committed by any person who uses a fictitious name, or falsely pretending to possess
power, influence, qualifications, property credit, agency, business or imaginary transactions, or
by means of other similar deceits. Clearly, Rachel and Phoebe pretended that their company
has the power to send them abroad and based on their representation the victims parted with
their money.

b) The indictment for separate violations for illegal recruitment under the Labor Code and Estafa
under the Revised Penal Code will not result to double jeopardy.

In this jurisdiction, it is settled that a person who commits illegal recruitment may be charged
and convicted separately of illegal recruitment under the Labor Code and estafa under par. 2 (a)
of Art. 315 of the Revised Penal Code. The offense of illegal recruitment is malum prohibitum
where the criminal intent of the accused is not necessary for conviction, while estafa is malum
in se where the criminal intent of the accused is crucial for conviction.

Conviction for offenses under the Labor Code does not bar conviction for estafa under par. 2(a)
of Art. 315 of the Revised Penal Code does not bar a conviction for illegal recruitment under the
Labor Code. It follows that one’s acquittal of the crime of estafa will not necessarily result in his
acquittal of the crime of illegal recruitment. (People of the Philippines vs. Erlinda A. Sison, G.R
No. 187160, August 9, 2017).

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B.27

Goku is the owner and sole proprietor of a sari-sari store located at the corner of a Road 1, Barangay
Tibay, Quezon City. On display at a conspicuous place outside his store are imported face masks with
a bold poster “IMPORTED FACE MASKS AT 50% OFF” thereby attracting the attention of passers-by.
It also caught the attention of PO3 Vegetta, one of the members of the team which investigated the
burglary of the bodega of XYZ Merchandising sole distributor of said branded imported face masks
located about 2 kms away from the sari-sari store. The heist occurred a week ago leading to the
apprehension of the culprits who were charged with Robbery. When PO3 Vegetta talked to Goku and
asked for the source of said items, he was shown a receipt in ready form that could be purchased from
bookstores indicating only the date, item and amount which he photographed. Upon showing it to XYZ`s
sales manager, he was informed that the receipt was not issued by them as they used company invoice
with the name and address of XYZ Merchandising in all their transactions. Hence, Goku was charged
with violation of PD 1612.

During the trial of the case, Goku interposed the defense that he obtained the items for value and was
duly receipted. He was not aware that it was stolen. As such, he is a buyer in good faith. Are Goku `s
contentions correct? Explain. (3%)

SUGGESTED ANSWER:

The defense of Goku is untenable. Under Section 2 (a) of Presidential Decree No. 1612 “Fencing” is
defined as 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 or object or anything of value which he knows, or should be known to him to have been
deceived from the proceeds of the crime of Robbery or Theft. Under Section 5 of same law, 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.

Since, in this case, evidence is clear that Goku obtained subject goods by way of an illegal transaction
having been covered by a fictitious receipt, the prima facie presumption under the law prevails. As held
in Ong vs. People, G.R. No. 190476, April 10, 2013 “In this case, the validity of the issuance of the
receipt was disputed and the prosecution was able to prove that Gold Link and its address were
fictitious, Ong failed to overcome the evidence presented by the prosecution and to prove the legitimacy
of the transaction. Thus, he was unable to rebut the, presumption under Section 5 of P.D. 1612 prima
facie.

B.28

Masipag is the owner and regular tricycle driver of a motorcycle with sidecar plying the route of Crucis
Street and other areas of Barangay AVID in Progressive City. During the General Enhanced Quarantine
period, he endeavored to secure the necessary permits to operate his tricycle in the authorized routem
within the hours allowed and complied with the precautions set by the authorities such as using
facemask, limited passenger load and installation of a plastic divider. All is going well until one early
evening a passenger hailed him and requested to be transported to a remote subdivision in the
barangay. Upon arriving at an isolated street with forest trees almost touching the already dimmed
street Lights, Mandurugas requested him to stop for a while allegedly to answer a call of nature and
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Masipag remained seated on his seat. However, to his utter surprise, Mandurugas pointed a gun at
him and told him “This is a hold-up, get down and I will take over! Keep your hands at the back and
walk away” Left with no choice, Masipag followed Mandurugas` orders. However after walking a few
steps, Mandurugas fired his gun at Masipag and shot him causing his instant death. Mandurugas drove
Masipag`s tricycle away to an unknown destination. Later on, Mandurugas was apprehended. During
inquest proceedings, the Prosecutor charged him with Murder and Carnapping (2 Informations) before
the RTC of Progressive City. Are the charges correct? (3%)

SUGGESTED ANSWER:

No, the charges are not correct. Instead, Mandurugas should be held liable for Qualified Carnapping
or Special Complex Crime of Carnapping with Homicide.

Under Section 2 of Republic Act No. 6539, as amended by Republic Act No. 1659 and RA 10883.
Carnapping under the law is defined as the taking with intent to gain of a motor vehicle belonging to
another without the latter`s consent or by means of violence or intimidation of persons, or by using force
upon things.

It becomes qualified when in the course of the commission or on the occasion of carnapping, the owner,
driver or occupant of the carnapped vehicle is killed or raped. In one case the Supreme Court held that
“Where accused- appellant and his companions shot the driver of the tricycle resulting in his death,
abandoned him and took possession of the vehicle, the crime committed is qualified carnapping.

Jurisprudence tells us that to prove the special complex crime of carnapping with homicide, there must
be proof not only of the essential elements of carnapping, but also that it was the original criminal design
of the culprit and the killing was perpetrated in the course of the commission of the carnapping or on
the occasion thereof.

In the case at bar, it would appear that the original intent of Mandurugas is to take away or carnap the
vehicle of Masipag, and in the course thereof the latter was killed. Thus, the crime of Qualified
Carnapping. Mandurugas could only be charged for Murder if his original intention was to kill Masipag
and another charge for simple carnapping if he took the vehicle as an afterthought after killing. (People
vs. Aquino, GR NO. 201092, January 15, 2014; People vs. Lobitania Sept. 5, 2002, 388 SCRA 417,432;
People vs. Tan, 323 SCRA 30, 39)

B.29

May Philippine courts exercise jurisdiction over an offense constituting psychological violence under
Republic Act No. 9262, otherwise known as the Anti-Violence Against Women and their Children Act
of 2004, committed through marital infidelity, when the alleged illicit relationship occurred or is occurring
outside the country? (2%)

SUGGESTED ANSWER:

Yes. The case may be filed within Philippine jurisdiction.

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In Section 7 of R.A. No. 9262, venue undoubtedly pertains to jurisdiction. Section 7 provides that the
case may be filed where the crime or any of its elements was committed at the option of the
complainant. The resulting mental or emotional anguish is analogous to the indispensable element of
damage in a prosecution for estafa.

What may be gleaned from Section 7 of R.A. No. 9262 is that the law contemplates that acts of violence
against women and their children may manifest as transitory or continuing crimes; meaning that some
acts material and essential thereto and requisite in their consummation occur in one municipality or
territory, while some occur in another. In such cases, the court wherein any of the crime's essential and
material acts have been committed maintains jurisdiction to try the case; it being understood that the
first court taking cognizance of the same excludes the other. Thus, a person charged with a continuing
or transitory crime may be validly tried in any municipality or territory where the offense was in part
committed.

It is necessary, for Philippine courts to have jurisdiction when the abusive conduct or act of violence
under Section 5(i) of R.A. No. 9262 in relation to Section 3(a), Paragraph (C) was committed outside
Philippine territory, that the victim be a resident of the place where the complaint is filed in view of the
anguish suffered being a material element of the offense.

We say that even if the alleged extra-marital affair causing the offended wife mental and emotional
anguish is committed abroad, the same does not place a prosecution under R.A. No. 9262 absolutely
beyond the reach of Philippine courts. (AAA vs. BBB, GR No.212448, January 11, 2018)

B.30

Distinguish Illegal Use of Public Funds or Property from Malversation under the Revised Penal Code.
(3%)

SUGGESTED ANSWER:

As to may commit, in both Illegal Use of Public Funds or Property and Malversation, the offenders are
accountable public officers.

As to the profit obtained, in Illegal Use of Public Funds or Property, the offender does not derive any
personal gain or profit, while in Malverstaion, the offender in certain cases profits from the proceeds of
the crime.

As to the subject matter, in Illegal Use of Public Funds or Property, the public fund or property is applied
to another public use, while in Malversation, the public fund or property is applied to the personal use
and benefit of the offender or of another person.

B.31

Is the nullity of the subsequent marriage a defense against bigamy? (2%)

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SUGGESTED ANSWER:

No. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the
nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy.
To hold otherwise would render the state’s penal laws on bigamy completely nugatory and allow
individuals to deliberately ensure that each contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and commitment (Tenebro vs. CA, GR No. 150758,
February 18, 2004)

B.32

a) When is unlawful taking deemed complete in robbery? (2%)

b) When is homicide said to have been committed by reason of on or on the occasion of robbery?
(2%)

SUGGESTED ANSWERS:

a) As to robbery with violence against or intimidation of persons, the taking is complete from the
moment the offender gains possession of the thing even if the culprit has no opportunity to
dispose of the same

As to robbery with force upon things, taking is complete when the thing is taken out of the building
to consummate the crime.

b) If it is committed: to facilitate the robbery or the escape of the culprit; o preserve the possession
by the culprit of the loot; to prevent discovery of the commission of robbery; to eliminate witness
to the commission of the crime (People vs. De Jesus, GR No. 134815, May 27, 2004)

It is not necessary to show that the sole purpose was robbery and by reason thereof, homicide
was committed. The law provides that there is robbery with homicide not only when “By reason”
of the robbery, homicide is committed but also “when on the occasion” thereof homicide is
committed (People vs. Alberca, GR No. 117106, June 26, 1996). Therefore, homicide maybe
before or after the robbery, provided, the robbery is not a mere afterthought (People vs. Pacapac,
GR No. 90623, September 7, 1995).

-NOTHING FOLLOWS-

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