Application of penalties : Delito continuado

A continuing crime, by reason of its nature, never prescribes.

A continued (continuous or continuing) crime is defined as a single crime,
consisting of a series of acts but all arising from one criminal resolution.
Although there is a series of acts, there is only one crime committed; hence,
only one penalty shall be imposed. When the actor, there being unity of purpose
and of right violated, commits diverse acts, each of which, although of a delictual
character, merely constitutes a partial execution of a single particular delict, such
concurrence or delictual acts is called a "delito continuado". In order that it may
exist, there should be "plurality of acts performed separately during a period of
time; unity of penal provision infringed upon or violated and unity of criminal
intent and purpose, which means that two or more violations of the same penal
provision are united in one and the same intent leading to the perpetration of the
same criminal purpose or aim.

G.R. No. 109266, December 2, 1993

MIRIAM DEFENSOR SANTIAGO, petitioner, vs. HON. JUSTICE
FRANCIS GARCHITORENA, SANDIGANBAYAN (First Division) and
PEOPLE OF THE PHILIPPINES, respondents.

EN BANC, QUIASON, J.:

FACTS

Petitioner Miriam Defensor Santiago was charged in Criminal Case No.

16698 of the Sandiganbayan with violation of Section 3(e) of R.A. No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, allegedly committed by her favoring "unqualified" aliens
with the benefits of the Alien Legalization Program. Petitioner filed
with SC a petition for certiorari and prohibition to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 on the
ground that said case was intended solely to harass her as she was then
a presidential candidate. She alleged that this was in violation of
Section 10, Article IX-C of the Constitution which provides that "(b)ona
fide candidates for any public office shall be free from any form of
harassment and discrimination." The petition was dismissed. She then
filed a motion for inhibition of Presiding Justice Garchitorena. The
Sandiganbayan (First Division), of which Presiding Justice
Garchitorena is a member, set the criminal case for arraignment.
Petitioner moved to defer the arraignment on the grounds that there
was a pending motion for inhibition, and that petitioner intended to file
a motion for a bill of particulars. The Sandiganbayan (First Division)
denied the motion to defer the arraignment. Petitioner filed a motion
for a bill of particulars, (In civil actions a bill of particulars is a written
demand for the specifics of why an action at law was brought) stating
that while the information alleged that petitioner had approved the
application or legalization of "aliens" and gave them indirect benefits
and advantages, it lacked a list of the favored aliens. According to
petitioner, unless she was furnished with the names and identities of
the aliens, she could not properly plead and prepare for trial. Upon
motion of petitioner in G.R. No. 107598 (Miriam Defensor Santiago v.
Sandiganbayan, et al.), SC directed the Sandiganbayan (First Division)
to reset the arraignment to a later date and to dispose of the two
incidents pending before it (Re: disqualification of Presiding Justice
Garchitorena and the motion for the bill of particulars). At the hearing
on November 13, 1992 on the motion for a bill of particulars, the
prosecution stated categorically that they would file only one amended
information against petitioner. However, on December 8, 1992, the
prosecution filed a motion to admit the 32 Amended Informations
(Criminal Cases Nos. 18371 to 18402). The Sandiganbayan (First
Division) promulgated a resolution, admitting the 32 Amended
Informations and ordering petitioner to post the corresponding bail
bonds within ten days from notice. Petitioner's arraignment on the 32
Amended Informations was set for April 12, 1993 at 8:00 A.M. Hence,
petitioner filed this petition for certiorari under Rule 65 of the Revised
Rules of Court to set aside: (a) the Resolution dated March 3, 1993 in
Criminal Case No. 16698 of the Sandiganbayan (First Division) and to
declare Presiding Justice Francis Garchitorena of the Sandiganbayan,
disqualified from acting in said criminal case; and (b) the Resolution of
said court promulgated on March 14, 1993, which deemed as "filed" the
32 Amended Informations against petitioner.

ISSUE Whether the filing of 32 Amended Informations against the

petitioner was proper.
RULING
No. Technically, there was only one crime that was committed in
petitioner's case, and hence, there should only be one information to be
filed against her. The 32 Amended Informations charge is what is
known as delito continuado or "continued crime" and sometimes
referred to as "continuous crime." According to Cuello Calon, for delito
continuado to exist there should be a plurality of acts performed during
a period of time; unity of penal provision violated; and unity of criminal
intent or purpose, which means that two or more violations of the same
penal provisions are united in one and same instant or resolution
leading to the perpetration of the same criminal purpose or aim.
According to Guevarra, in appearance, a delito continuado consists of
several crimes but in reality there is only one crime in the mind of the
perpetrator. Padilla views such offense as consisting of a series of acts
arising from one criminal intent or resolution.

The primary considerations in adjudging whether a series of criminal

acts should be considered a continuous crime, are: the singularity in
criminal intent and penal law violation, and the period of time the act
was committed. Applying the concept of delito continuado, Supreme
Court treated as constituting only one offense the following cases:
(1) The theft of 13 cows belonging to two different owners committed
by the accused at the same time and at the same period of time
(2) The theft of six roosters belonging to two different owners from the
same coop and at the same period of time
(3) The theft of two roosters in the same place and on the same occasion
(4) The illegal charging of fees for services rendered by a lawyer every
time he collects veteran's benefits on behalf of a client, who agreed that
the attorney's fees shall be paid out of said benefits. The collection of
the legal fees were impelled by the same motive, that of collecting fees
for services rendered, and all acts of collection were made under the
same criminal impulse.

On the other hand, SC declined to apply the concept to the following

cases:
(1) Two estafa cases, one of which was committed during the period
from January 19 to December 1955 and the other from January 1956 to
July 1956. The said acts were committed on two different occasions.

(2) Several malversations committed in May, June and July, 1936, and
falsifications to conceal said offenses committed in August and October
1936. The malversations and falsifications "were not the result of only
one purpose or of only one resolution to embezzle and falsify . . ."

(3) Two estafa cases, one committed in December 1963 involving the
failure of the collector to turn over the installments for a radio and the
other in June 1964 involving the pocketing of the installments for a
sewing machine.

(4) 75 estafa cases committed by the conversion by the agent of

collections from customers of the employer made on different dates.

In the case at bench, the original information charged petitioner

with performing a single criminal act — that of her approving the
application for legalization of aliens not qualified under the law to
enjoy such privilege. The original information also averred that the
criminal act :
(i) committed by petitioner was in violation of a law — Executive Order
No. 324 dated April 13, 1988,
(ii) caused an 214 undue injury to one offended party, the Government,
and
(iii) was done on a single day, i.e., on or about October 17, 1988.

The 32 Amended Informations reproduced verbatim the allegation of

the original information, except that instead of the word "aliens" in the
original information each amended information states the name of the
individual whose stay was legalized. At the hearing of the motion for a
bill of particulars (In civil actions a bill of particulars is a written
demand for the specifics of why an action at law was brought).
The Resolution dated March 3, 1993 in Criminal Case No. 16698 of the
Sandiganbayan (First Division) is affirmed and its Resolution dated
March 11, 1993 in Criminal Case No. 16698 is modified - the Office
of the Special Prosecutor of the Office of the Ombudsman is
directed to consolidate the 32 Amended Informations (Criminal
Cases Nos. 18371 to 18402) into one information charging only one
offense under the original case number, i.e., No. 16698. the public
prosecutors manifested that they would file only one amended
information embodying the legalization of stay of the 32 aliens. The 32
Amended Informations aver that the offenses were committed on the
same period of time, i.e., on or about October 17, 1988. The strong
probability even exists that the approval of the application or the
legalization of the stay of the 32 aliens was done by a single stroke of
the pen, as when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion
for a bill of particulars that the Government suffered a single harm or
injury.

Penalty for Complex Crimes

ART.48 -Penalty for complex crimes. - When a single act constitutes

two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most
serious crime shall be imposed, the same to be applied in its maximum
period.

COMPLEX CRIME – although there actually are two or more crimes, the
law treats them as constituting only one - as there is only one criminal
intent. Only one information need to be filed.

2 Kinds Of Complex Crimes:

1. Compound crime – a single act constitutes 2 or more grave or less
grave felonies.

Requisites:
a. that only one single act is performed by the offender
b. that the single act produces
i. 2 or more grave felonies
ii. one or more grave and one or more less grave felonies
iii. 2 or more less grave felonies

2. Complex crime proper – when an offense is a necessary means for

committing another.
Requisites:
1. That at least 2 offenses are committed
2. That one or some of the offenses must be necessary to commit the
other
3. That both or all the offenses must be punished under the same statute

No Single Act In The Following Cases:

1. When 2 persons are killed one after the other, by different acts,
although these 2 killings were the result of a single criminal impulse.
The different acts must be considered as distinct crimes.
2. When the acts are wholly different, not only in themselves but also
because they are directed against 2 different persons, as when one fires
his gun twice in succession, killing one and injuring the other.

Light felonies produced by the same act should be treated and punished
as separate offenses or may be absorbed by the grave felony.

NOTES:

When in obedience to an order, several accused simultaneously shot

many persons, w/o evidence how many each killed, there is only a
single offense, there being a single criminal impulse.

For the attainment of a single purpose w/c constitutes an offense,

various acts are executed, such acts must be considered only as one
offense.

When a complex crime is charged and one offense is not proven, the
accused can be convicted of the other.
There is no complex crime of arson w/homicide.

Art 48 is applicable to crimes through negligence.

Kidnapping the victim to murder him in a secluded place – ransom

wasn’t paid so the victim was killed. The kidnapping was a necessary
means to commit murder. But where the victim was taken from his
home but it was solely for the purpose of killing him and not for
detaining him illegally or for the purpose of ransom, the crime is simple
murder.

“Necessary means” does not mean “indispensable means”.

Indispensable would mean it is an element of the crime. The crime can
be committed by another mean. The means actually employed (another
crime) was merely to facilitate and insure the consummation of the
crime.

It is not a complex crime when trespass to dwelling is a direct means

to commit a grave offense. Like rape, there is no complex crime of
trespass to dwelling with rape. Trespass will be considered as
aggravating (unlawful entry or breaking part of a dwelling)

When the offender had in his possession the funds w/c he

misappropriated, the falsification of a public or official document
involving said funds is a separate offense. But when the offender had
to falsify a public or official document to obtain possession of the funds
w/c he misappropriated, the
falsification is a necessary means to commit malversation.

There is no complex crime of rebellion w/ murder, arson, robbery or

other common crimes. They are mere ingredients of the crime of
rebellion – absorbed already.
When 2 crimes produced by a single act are respectively within the
exclusive jurisdiction of 2 courts of different jurisdiction, the court of
higher jurisdiction shall try the complex crime.

Art. 48 is intended to favor the culprit. The penalty for complex crime
is the penalty for the most serious crime, the same to be applied in its
maximum period. If the different crimes resulting from one single act
are punished w/ the same penalty, the penalty for any one of them shall
be imposed, the same to be applied in the maximum period. The same
rule shall be observed when an offense is a necessary means to commit
the other.

A complex crime of the second form may be committed by two persons.

But when one of the offenses, as a means to commit the other, was
committed by one of the accused by reckless imprudence, the accused
who committed the crime by reckless imprudence is liable
for his acts only.

When two felonies constituting a complex crime are punishable by

imprisonment and fine, respectively, only the penalty of imprisonment
shall be imposed. Reason: Fine is not included in
the list of penalties in the order of severity and it is the last in the
graduated scales in Art. 71.

When a single act constitutes two grave or less grave or one grave and
another less grave, and the penalty for one is imprisonment while that
for the other is fine, the severity of the penalty for the more serious
crime should not be judged by the classification of each of the penalties
involved, but by
the nature of the penalties.

In the order of severity of the penalties, arresto mayor and arresto

menor are considered more severe than destierro and arresto menor is
higher in degree than destierro.
There is NO COMPLEX CRIME in the following:
1. In case of continuing crimes
2. When one offense is committed to conceal the other
3. When the other crime is an indispensable part or an element of the
other offenses as defined
4. Where one of the offenses is penalized by a special law
5. When the law provides one single penalty for special complex crime:
a. Robbery with Homicide
b. Robbery with Rape
c. Rape with Homicide
d. Kidnapping with Serious Physical Injuries
e. Kidnapping with Homicide

PLURALITY OF CRIMES – consists in the successive execution by the

same individual of different criminal acts upon any of which no
conviction has yet been declared.

Kinds Of Plurality Of Crimes:

1. Formal or Ideal – only one criminal liability. Formal or ideal crimes
are further divided into three groups, where a person committing
multiple crimes is punished with only one penalty:
a. when the offender commits any of the complex crimes defined in Art.
48
b. when the law specifically fixes a single penalty for 2 or more offenses
committed: robbery w/ homicide, kidnapping w/ serious physical
injuries
c. when the offender commits continued crimes

2. Real Or Material – there are different crimes in law as well as in the

conscience of the offender. In such cases, the offender shall be punished
for each and every offense that he committed

Under Art.49 - Lesser penalty to be imposed in its maximum period

Under Art.48 - Penalty for the more serious crime shall be imposed in
its maximum period.
CONTINUED CRIME – refers to a single crime consisting of a series
of acts but all arising from one criminal resolution. Although there
is a series of acts, there is only one crime committed, so
only one penalty shall be imposed.

Example of continued crimes:

a. A collector of a commercial firm misappropriates for his personal
use several amounts collected by him from different persons. There is
only one crime because the different and successive appropriations are
but the different moments during w/c one criminal resolution arises.
b. Juan steals 2 books belonging to 2 different persons. He commits only
one crime because there is unity of thought in the criminal purpose of
the offender

NOTE: A continued crime is not a complex crime, as the offender

does not perform a single act but a series of acts. Therefore:
a. penalty not to be imposed in the maximum
b. no actual provision punishing continued crime – It is a principle
applied in connection with 2 or more crimes committed with a
single intention.

NOTE: A continued (continuous or continuing) crime is different from

a transitory crime. Transitory crime is “moving crime”.

2004 Bar Exam Question

Distinguish clearly but briefly: Between compound and complex crimes

as concepts in the Penal Code.

COMPOUND CRIMES result when the offender committed only a single

felonious act from which
two or more crimes resulted. This is provided for in modified form in
the first part of Article 48, Revised Penal Code, limiting the resulting
crimes to only grave and/or less grave felonies. Hence, light felonies
are excluded even though resulting from the same single act.
COMPLEX CRIMES results when the offender has to commit an offense
as a necessary means for committing another offense. Only one
information shall be filed and if proven, the penalty for the more
serious crime shall be imposed.

2005 Bar Exam Question

Distinguish the following from each other: Complex Crime vs. Special
Complex Crime vs. Delito Continuado.

An ORDINARY COMPLEX CRIME is made up of two or more crimes

being punished in distinct
provisions of the Revised Penal Code but alleged in one information
either because they were brought about by a single felonious act or
because one offense is a necessary means for committing the other
offense or offenses. They are alleged in one information so that only
one penalty shall be imposed. As to penalties, ordinary complex crime,
the penalty for the most serious crime shall be imposed and in its
maximum period.

A SPECIAL COMPLEX CRIME, on the other hand, is made up of two or

more crimes which are
considered only as components of a single indivisible offense being
punished in one provision of the Revised Penal Code. As to penalties,
special complex crime, only one penalty is specifically prescribed for all
the component crimes which are regarded as one indivisible offense.
The component crimes are not regarded as distinct crimes and so the
penalty for the most serious crime is not the penalty to be imposed nor
in its maximum period. It is the penalty specifically provided for the
special complex crime that shall be applied according to the rules on
imposition of the penalty.

DELITO CONTINUADO, or CONTINUOUS CRIME, is a term used to

denote as only one crime a
series of felonious acts arising from a single criminal resolution, not
susceptible of division, which is carried out in the same place and at
about the same time, and violating one and the same penal provision.
The acts done must be impelled by one criminal intent or purpose, such
that each act merely constitutes a partial execution of a particular
crime, violating one and the same penal provision. It involves a
concurrence of felonious acts violating a common right, a common
penal provision, and Impelled by a single criminal impulse (People vs.
Ledesma, 73 SCRA 77).

2003 Bar Exam Question (complex crime and rebellion and sedition)

1. Can there be a complex crime of coup d'etat with rebellion?

2. Can there be a complex crime of coup d'etat with sedition?

1. Yes, if there was a conspiracy between the offender/offenders

committing the coup d'etat and the offenders committing the rebellion.
By conspiracy, the crime of one would be the crime of the other and
vice versa. This is possible because the offender in coup d'etat may be
any person or persons belonging to the military or the national police
or a public officer, whereas rebellion does not so require. Moreover, the
crime of coup d'etat may be committed singly, whereas rebellion
requires a public uprising and taking up arms to overthrow the duly
constituted government. Since the two crimes are essentially different
and punished with distinct penalties, there is no legal impediment to
the application of art.48 of the revised penal code.

2. Yes, coup d'etat can be complexed with sedition because the two
crimes are essentially different and distinctly punished under the
revised penal code. Sedition may not be directed against the
government or non-political in the objective, whereas coup d'etat is
always political in objective as it is directed against the government and
led by persons or public officer holding public office belonging to the
military or national police. Art.48 of the code may apply under the
condition therein provided.
Alternative Answer:

The crime of coup d'etat cannot be complexed with the crime of

rebellion because both crimes are directed against the government or
for political purposes, although the principal offenders are different.
The essence may be the same and thus constitute only one crime. In
this situation, the two crimes are not distinct and therefore, may not be
proper to apply art.48 of the code.

1999 Bar Exam Question (Complex Crimes; Determination of the

Crime)

A, actuated by malice and with the use of a fully automatic M-14 sub-
machine gun, shot a group of persons who were seated in a cockpit with
one burst of successive, continuous, automatic fire. Four (4) persons
were killed thereby, each having hit by different bullets coming from
the sub-machine gun of A. Four (4) cases of murder were filed against
A. The trial court ruled that there was only one crime committed by A
for the reason that, since A performed only one act, he having pressed
the trigger of his gun only once, the crime committed was murder.
Consequently, the trial judge sentenced A to just one penalty of
reclusion perpetua. Was the decision of the trial judge correct? Explain.

The decision of the trial judge is not correct. When the offender made
use of an automatic firearm, the acts committed are determined by the
number of bullets discharged inasmuch as the firearm being automatic,
the offender need only press the trigger once and it would fire
continually. For each death caused by a distinct and separate bullet, the
accused incurs distinct criminal liability. Hence, it is not the act of
pressing the trigger which should be considered as producing the
several felonies, but the number of bullets which actually produced
them.

1999 Bar Exam Question (Complex Crimes; Nature & Penalty Involved)
What constitutes a complex crime? How many crimes may be involved
in a complex crime? What is the penalty therefor? (4%)

SUGGESTED ANSWER:
A complex crime is constituted when a single act caused two or more
grave or less grave felonies or when an offense is committed as a
necessary means to commit another offense (Art. 48, RPC). At least two
(2) crimes are involved in a complex crime; either two or more grave
or less grave felonies resulted from a single act, or an offense is
committed as a necessary means for committing another. The penalty
for the more serious crime shall be imposed and in its maximum period.
(Art. 48, RPC)

2003 Bar Examination Question (Complex Crimes; Ordinary Complex

Crime vs. Special Complex Crime)

Distinguish between ordinary complex crime and a special complex

crime as to their concepts and as to the imposition of penalties. 2%

SUGGESTED ANSWER:

IN CONCEPT -

An ORDINARY COMPLEX CRIME is made up of two or more crimes

being punished in distinct provisions of the Revised Penal Code but
alleged in one Information either because they were brought about by
a single felonious act or because one offense is a necessary means for
committing the other offense or offenses. They are alleged in one
Information so that only one penalty shall be imposed.

A SPECIAL COMPLEX CRIME, on the other hand, is made up of two or

more crimes that are considered only as components of a single
indivisible offense being punished in one provision of the Revised Penal
Code.
AS TO PENALTIES -In ORDINARY COMPLEX
CRIME, the penalty for the most serious crime shall be imposed and in
its maximum period.
In SPECIAL COMPLEX CRIME, only one penalty is specifically
prescribed for all the component crimes which are regarded as one
indivisible offense. The component crimes are not regarded as distinct
crimes and so the penalty for the most serious crime is not the penalty
to be imposed nor in its maximum period. It is the penalty specifically
provided for the special complex crime that shall be applied according
to the rules on imposition of the penalty.

1994 Bar Examination Question (Continuing Offense vs. Delito

Continuado) Differentiate delito continuado from a continuing offense.

SUGGESTED ANSWER:

DELITO CONTINUADO, or CONTINUOUS CRIME, is a term used to

denote as only one crime a series of felonious acts arising from a single
criminal resolution, not susceptible of division, which are carried out
in the same place and at about the same time, and violating one and the
same penal provision. The acts done must be impelled by one criminal
intent or purpose, such that each act merely constitutes a partial
execution of a particular crime, violating one and the same penal
provision. It involves a concurrence of felonious acts violating a
common right, a common penal provision, and impelled by a single
criminal impulse (People vs. Ledesma, 73 SCRA 77).

On the other hand, a CONTINUING OFFENSE is one whose essential

ingredients took place in more than one municipality or city, so much
so that the criminal prosecution may be instituted and the case tried in
the competent court of any one of such municipality or city.

The term "CONTINUED CRIME" or delito continuado mandates that

only one information should be filed against the offender although a
series of felonious acts were performed; the term "continuing crime" is
more pertinently used with reference to the venue where the criminal
action may be instituted.