2022 CAMPANILLA CRIM Bar Exam Modified Pre Week Materials PDF

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CRIMINAL LAW MATERALS

BASED ON BAR COVERAGE
JAN. 4, 2021
BY JUDGE MARLO B. CAMPANILLA
Warning: This is the intellectual property of Judge Campanilla.

Copying any parts of this work in writing materials or book for
publication without proper attribution is prohibited by law.
Note: The dissenting opinions of Justice Leonen are included in

these materials since cases with his dissent may be a source of bar
examination questions. However, the dissenting opinions of Justice
Leonen are not controlling principles. For purpose of the bar exam,
the majority opinions should be followed.
I. BASIC PRINCIPLES
CONSTRUCTION OF PENAL LAWS - In dubio pro reo means “when
in doubt, for the accused.” Intimately related to the in dubio pro reo
principle is the Rule of Lenity. The rule applies when the court is
faced with two possible interpretations of a penal statute –– one that
is prejudicial to the accused and another that is favorable to him.
The rule calls for the adoption of an interpretation which is more
lenient to the accused. (Intestate Estate of Gonzales v. People, G.R.
No. 181409, February 11, 2010)
The Revised Penal Code is patterned after the Spanish Penal
Code. The Revised Penal Code was written in Spanish when it was
submitted to the Legislature for approval. The English text of the
Revised Penal Code is just a translation of the Spanish text. What
was approved by the Philippine Legislature is the Spanish text of the
Revised Penal Code. Thus, in interpreting the provisions of the
Revised Penal Code, the Spanish text of the said Code is controlling
as this was the text approved by the Legislature. (People v.
Mangulabnan, G.R. No. L-8919, September 28, 1956; People v. Escote,
Jr., G.R. No. 140756, April 4, 2003) Furthermore, Spanish
jurisprudence may also aid the court in interpreting the provisions of
the Revised Penal Code. (People v. Nocum, G.R. No. L-482, February
25, 1947)
TERRITORIALITY - For purpose of venue under the Rules of
Criminal Procedure and territoriality principle in Article 2 of the
Revised Penal Code, the place of commission of the criminal act and
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the place of occurrence of the effect of such act, which is an element

of the offense, shall be considered. If one pulled the trigger of his gun
in Quezon City and hit the victim in City of Manila, who died as a
consequence, Quezon City and City of Manila, which are the places
of commission of the criminal act and the occurrence of the criminal
effect, are proper venues. If the psychological violence consisting of
marital infidelity punishable under RA No. 9262 is committed in
Singapore but the psychological effect occurred in the Philippines
since the wife of the respondent, who suffered mental anguish, is
residing in the Philippines, our court can assume jurisdiction (see:
AAA vs. BBB, G.R. no. 212448, January 11, 2018). However, if the
commission of the criminal act consummates the crime and the effect
thereof is not an element thereof, the place of occurrence of the effect
shall not be considered for purpose of venue and territoriality rule.
Bigamy committed in Singapore is beyond the jurisdiction of our
court although the offended spouse is residing in the Philippines
since the psychological effect of bigamy to her is not an element
thereof.
1. Convention of the law of the sea - Under the Convention

on the Law of the Sea, the flag state of a foreign merchant vessel
passing through the 12-mile territorial sea of another state has
jurisdiction over crimes committed therein. However, a coastal state
such as the Philippines can exercise jurisdiction over any crime
committed on board such ship in the following cases: (1) if its
consequences extend to the coastal State; (2) if it disturbs the peace
of the country or the good order of the territorial sea; (3) if the ship
master or a diplomatic or consular officer of the flag State requested
assistance from the local authorities; or (4) if it is for the suppression
of traffic in narcotic drugs or psychotropic substances. Murder or
serious physical injuries committed in a foreign vessel anchored in a
Philippine port against a passenger thereof is within the jurisdiction
of the Philippine court since this crime disturb the peace of the
country.
2. Regime of islands - Under the principle of territoriality, the

court has also jurisdiction over crime committed in Kalayaan Islands
or Scarboruogh Shoal because the Baseline Law (RA No. 9522)
declares that the Philippines exercise sovereignty and jurisdiction
over it.
3. 200-mile exclusive economic zone - The Philippines has

no sovereignty over the 200-mile exclusive economic zone. Under the
convention of the law of the sea, the Philippines has sovereign right
to fish and to exploit the natural resources in the zone. This sovereign
right is not equivalent to sovereignty. Under the convention, foreign
states have the freedom of navigation and overflight over the
exclusive economic zone of the Philippines. Freedom of navigation
and overflight cannot be exercised in a place where a State has
sovereignty such as such its 12-mile territorial water. Under the
convention, the Philippines has limited jurisdiction over crimes
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committed within the exclusive economic zone such as those

involving fiscal, custom, immigration, health and safety. A State has
absolute jurisdiction over crimes committed in a territory over which
it has sovereignty subject only to a few exceptions under
international laws. The recognition of freedom of navigation and
overflight and the limited jurisdiction over crimes committed in the
exclusive economic zone militate against the concept of sovereignty.
If a Chinese fishing vessel deliberately bumped a Filipino vessel

in the West Philippines Sea covered by the exclusive economic zone
of the Philippines, and as a consequence, several Filipino fishermen
died, the Philippines’s jurisdiction over the crime of murder cannot
be based on the theory that the Philippines has sovereignty over the
zone. Other principles must be used to justify its jurisdiction over
murder committed within the zone such as flag state rule or
universality principle.
PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code,

penal laws shall be obligatory upon all who live or sojourn in the
Philippine territory. This is the generality principle. Hence, a person
regardless of his citizenship, religion, political position or any other
status can be criminally prosecuted and convicted as long as he is
living or sojourning in the territory of the Philippines.
Under the US Constitution, American citizen has the right to

bear firearms. Even though an American citizen is in possession of
US license to carry firearm, he can be prosecuted for illegal
possession of loose firearm if a failed to obtain permit from PNP to
carry it. RA No. 105911 on loose firearm is obligatory to him
regardless of his foreign characteristic. (People v. Galacgac, C.A., 54
O.G. 1027) The American constitutional provision on firearm is not
operative in the Philippines.
However, penal laws shall not be obligatory upon a person, who

enjoys criminal immunity from suit. In October 21, 2015, a Chinese
diplomat and her husband killed two Chinese diplomats in Cebu. The
Philippines authorities did not prosecute the killers for murders
because of diplomatic immunity protected by the Vienna Convention
on Diplomatic Relations. The case was referred to China. They will be
prosecuted under Chinese Law.
Under the Section 7, Article VII of the 1973 Constitution, the

President shall be immune from suit during his tenure. However,
there is no provision on presidential immunity under the 1987
Constitution. But despite the present Constitution has not adopted
the rule on presidential immunity under the Marcos Constitution,
case law or jurisprudence recognizes this immunity. Because of this
immunity, penal laws are not obligatory to the President.
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The President of the Philippines is entitled to immunity from

suit subject to the following conditions: (1) the immunity has been
asserted; (2) during the period of his incumbency and tenure; and (3)
the act constituting the crime is committed in the performance of his
duties. Presidential immunity will assure the exercise of presidential
duties and functions free from any hindrance or distraction,
considering that the Chief Executive is a job that demands undivided
attention. (Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001)
In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court

further held that the immunity of the President from civil damages
covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones
where it held that the US President's immunity from suits for money
damages arising out of their official acts is inapplicable to unofficial
conduct. Thus, non-function related crimes such as rape, robbery,
and kidnapping are not covered by the immunity.
During the period of his incumbency and tenure, President

Aquino cannot be charged with reckless imprudence resulting in
multiple homicides in connection with the Mamasapano incident
where 44 SAF members were killed because of his presidential
immunity. His decisions concerning the handling of the police
operation leading to the tragic event are official acts. However, after
the tenure of the President, he can be criminally charged since the
presidential immunity is not anymore invocable. But, in Nacino v.
Office of the Ombudsman, G.R. Nos. 234789-91, October 16, 2019,
the Supreme Court found no probable cause to charge President
Aquino for reckless imprudence resulting in multiple homicides in
connection with the Mamasapano incident. It was held that Aquino
participated in the planning of Oplan Exodus to arrest Marwan and
Usman by approving the suggested alternative date of execution and
ordering the increase in the number of troops and coordination with
the AFP. However, these acts barely qualify Aquino as an active
player in the entire scheme of the operations, more so point to any
criminal negligence on his part.
1. Vice-presidential immunity - It is submitted that a Vice

President is not immune from criminal prosecution. The job of the
Vice President, unlike the head of the executive department, does not
demand undivided attention. Hence, the circumstance, on which the
presidential immunity is based, is not obtaining if the position is vice-
presidential.
Pacifico Agabin, former dean of the University of the Philippines

College of Law and an expert on the Constitution said that the vice
president is not immune from suit. The Constitution does not
guarantee the vice president’s immunity, he said: “It’s only the
President who is immune [from suit] and that is based on tradition,
because he is busy handling affairs of the state. But that cannot be
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said for the vice president.” Fr Joaquin Bernas SJ, one of the framers
of the 1987 Constitution, also categorically said that Binay is not
covered by executive immunity. “No, the vice president is not
immune…The Constitution doesn’t say he is immune”. (See: Rappler
article entitled Vice-president does not enjoy immunity published on
June 5, 2015)
Some experts are saying that criminally prosecuting a vice-

president will violate Section 2 of Article XI of the Constitution, which
mandates that the Vice President may be removed from office only
through an impeachment proceeding. It is submitted however that
there is no constitutional violation since in case of conviction, he can
function as Vice President while serving sentence in prison. However,
accessory penalty of disqualification, which involved removal from
office, is not implementable since the enforcement thereof will offend
the impeachment provision.
PROSPECTIVITY - Under the prospectivity principle, criminal law

merely punishes crimes committed on or after its effectivity. Under
Article 21 of the Revised Penal Code, no felony shall be punishable
by any penalty not prescribed by law prior to its commission.
The prospective character of criminal laws presupposes that they
are prejudicial to the accused. If a criminal law is favorable to the
accused, it must be given a retroactive effect. (People v. Derilo, G.R.
No. 117818, April 18, 1997) Criminalization is prejudicial to the
accused. The law on criminalization should be given a prospective
effect. Hence, prosecuting a person for a crime committed prior to the
passage of the law punishing it is not allowed. (2014 Bar Exam)
As a general rule, penal laws shall have prospective application,
lest they acquire the character of an ex post facto law. (People v.
Valeroso, G.R. No. 164815, February 22, 2008) However, there are
exceptions to the prospectivity rule. Laws shall be given retroactive
effect: (1) if the law is favorable to the accused, who is not a habitual
delinquent; (2) if the law decriminalizes an act; or (3) if the law
expressly provides retroactivity.
REPEAL - There are two kinds of repeal of criminal law, to wit: (1)
absolute repeal, which includes repeal without reenactment; and (2)
partial repeal or repeal with reenactment.
1. Absolute Repeal — Repeal of a penal law deprives the courts
of jurisdiction to punish persons charged with a violation of the old
penal law prior to its repeal. (Arizala v. Court of Appeals, G.R. No.
43633, September 14, 1990) The intention of the new law in totally
repealing the old law is to decriminalize an act punishable under the
latter. In sum, under the present law, the subject act is not a crime
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anymore. Hence, a person should not be punished for committing a

non-criminal act applying the principle of nullum crimen nulla poena
sine lege. Moreover, the present law decriminalizing an act is
favorable to the accused; hence, it should be given a retroactive effect
without pre-condition.
Repeal without reenactment is an absolute repeal. Malicious
prosecution or acusacion o denuncia falsa was punishable under
Article 326 of the Spanish Penal Code of 1887. However, Article 357
of the Revised Penal Code has expressly repealed the old Spanish
Penal Code without reenacting the provision on malicious
prosecution. The intention of the Revised Penal Code is to
decriminalize malicious prosecution. However, one, who maliciously
prosecuted another, can be held liable for false testimony or perjury.
2. Partial Repeal — Repeal with reenactment of a penal
provision of the old law does not deprive the courts of jurisdiction to
punish persons charged with a violation of the old penal law prior to
its repeal. Such repeal even without a saving clause will not destroy
criminal liability of the accused. (U.S. v. Cuna, G.R. No. L-4504,
December 15, 1908; 1973 Bar Exam) The intention of the new law,
which contains provisions on repeal and reenactment, is not to
decriminalize an act punishable under the old law but merely to
provide new rule.
If the new law, which repealed an old law with reenactment of its
penal provision, is favorable to the accused, who is not a habitual
delinquent, it shall be given retroactive effect. Otherwise, its
application is prospective.
“A” was charged for the crime of rape under the original version
of Article 335 of the Revised Penal Code where the penalty is reclusion
temporal. However, during the pendency of the case, R.A. No. 8353
expressly repealed Article 335 of the Code (Note: This repealed
provision is erroneously described as Article 336) but reenacted the
provision on rape by inserting Article 266-A and B in the Code, which
now punishes simple rape with reclusion perpetua. The repeal of
Article 335 does not deprive the courts of jurisdiction to try and
punish “A” for rape under this provision. It is no intention of R.A. No.
8353 to decriminalize rape. However, R.A. No. 8353 shall be given
prospective effect since it is prejudicial to the accused. If convicted,
the penalty of reclusion temporal under Article 335 shall be imposed
upon the accused. (see: People v. Ugang, G.R. No. 144036, May 7,
2002)
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MALA IN SE AND MALA PROHIBITA - Criminal law has long divided

crimes into acts wrong in themselves called "acts mala in se," and
acts which would not be wrong but for the fact that positive law
forbids them, called "acts mala prohibita." This distinction is
important with reference to the intent with which a wrongful act is
done. The rule on the subject is that in acts mala in se, the intent
governs, but in acts mala prohibita, the only inquiry is, has the law
been violated? When an act is illegal, the intent of the offender is
immaterial. (Estrella vs. People, G.R. No. 212942, June 17, 2020)
To classify a crime as malum in se or malum prohibitum, the

nature thereof and the law that punishes it must be considered.
1. Intentional felony — Intentional felony under the Revised

Penal Code is committed by means of dolo. Since dolo or criminal
intent is an element of intentional felonies, they are mala in se.
However, there is an exception; technical malversation is an
intentional felony, and yet, the Supreme Court declared it as malum
prohibitum.
In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the

mayor, who applied 10 boxes of food appropriated for feeding
program to the beneficiaries of shelter assistance program, is liable
for technical malversation. Mayor’s act, no matter how noble or
miniscule the amount diverted, constitutes the crime of technical
malversation. 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 is malum prohibitum, meaning
that the prohibited act is not inherently immoral but becomes a
criminal offense because positive law forbids its commission based
on considerations of public policy, order, and convenience. It is the
commission of an act as defined by the law and not the character or
violated. Hence, malice or criminal intent is completely irrelevant.
Dura lex sed lex.
2. Offense under special law – If the offense punishable

under special law is not inherently wrong in nature, it shall be
classified as malum prohibitum. The following offenses under special
laws are mala prohibita for not being inherently evil in character:
violation of BP Blg. 22 (Amada vs. People, G.R. No. 177438,
September 24, 2012); Illegal recruitment (People vs. Sison, G.R. No.
187160, August 9, 2017); crimes involving dangerous drugs (Pang vs.
People, G.R. No. 176229, October 19, 2011); and possession of loose
firearms (People vs. Peralta, G.R. No. 221991, August 30, 2017).
If the offense punishable under special law is inherently evil,

there are two views on the standard in classifying a crime as malum
in se or malum prohibitum.
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First view - The first view is that if the offense is punishable under
special law, it will be treated as malum prohibitum.
Fencing is a concept substantially similar to that of theft or

robbery committed by an accessory. Same as theft or robbery
committed by an accessory, fencing is wrong in character. However,
since fencing is punishable under special law, the Supreme Court in
Cahulugan vs. People, G.R. No. 225695, March 21, 2018 and Estrella
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vs. People, G.R. No. 212942, June 17, 2020 declares it as malum
prohibitum.
Hazing where the victim died or was raped is for obvious

reason evil in nature. However, the congressional deliberation shows
that the legislators considered hazing as malum prohibitum. Because
of the legislative treatment of hazing as malum prohibitum, the
Supreme Court in Villareal v. People, G.R. No. 151258, February 1,
2012 declared it as malum prohibitum.
Sexual harassment is wrong in nature. However, in Escandor

vs. People, G.R. No. 211962, July 06, 2020, the Supreme Court
through Justice Leonen declared sexual harassment as malum
prohibitum since RA No. 7877 is a special criminal statute. In this
case, the defense of respondent that he never intended to violate RA
No. 7877 was rejected. It was held that in prosecuting an offender for
sexual harassment, intent is immaterial. Mere commission is
sufficient to warrant a conviction. Even without intent, sexual
harassment is penalized. His attempt to kiss petitioner was a flagrant
disregard of a customary rule that had existed since time immemorial
— that intimate physical contact between individuals must be
consensual. Respondent's defiance of custom and lack of respect for
the opposite sex were more appalling because he was a married man.
Respondent's act showed a low regard for women and disrespect for
petitioner's honor and dignity.
Second view - The second view is that even although the

offense is punishable under special law, if the same is inherently evil
it will be treated as malum in se.
In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7,

2017, the legislative declaration in RA No. 7659 that the crime of
plunder under RA No. 7080 is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or
inherently wrong, they are mala in se and it does not matter that
such acts are punished in a special law, especially since in the case
of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of BP Blg. 22 or of an ordinance
against jaywalking, without regard to the inherent wrongness of the
acts. (Estrada vs. Sandiganbayan, G.R. No. 148965. February 26,
2002)
In Dungo v. People, G.R. No. 209464, July 1, 2015, a common

misconception is that all mala in se crimes are found in the Revised
Penal Code, while all mala prohibita crimes are provided by special
penal laws. In reality, however, there may be mala in se crimes under
special laws, such as plunder under R.A. No. 7080. Similarly, there
may be mala prohibita crimes defined in the Revised Penal Code,
such as technical malversation. The better approach to distinguish
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between mala in se and mala prohibita crimes is the determination of

the inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a
crime malum in se; on the contrary, if it is not immoral in itself, but
there is a statute prohibiting its commission by reasons of public
policy, then it is malum prohibitum.
Sexual abuse and child abuse are both punishable under RA

No. 7610, and yet, the Supreme Court classified them differently.
Sexual abuse under Section 5 (b) of RA No. 7610 is considered

by the Supreme Court as malum prohibitum simply because it is
punishable under special law. In sum, the first view was applied in
this case. (People vs. Udang, G.R. No. 210161, January 10, 2018,
Justice Leonen, People vs. Caoili, G.R. No. 196342, August 08,
2017; People vs. Caballo, G.R. No. 198732, June 10, 2013, Imbo vs.
People, G.R. No. 197712, April 20, 2015, and Malto vs. People, G.R.
No. 164733, September 21, 2007)
Child abuse under Section 10 of RA No. 7610 was considered

by the Supreme Court in People vs. Mabunot, G.R. No. 204659,
September 19, 2016 as malum in se. However, in Lucido vs. People,
G.R. No. 217764, August 7, 2017, the Supreme Court through
Justice Leonen declared child abuse as malum prohibitum. In the
latest case of Patulot vs. People, G.R. No. 235071, January 7, 2019,
the Supreme Court considered child abuse as malum in se.
Accordingly, when the acts complained of are inherently immoral,
they are deemed mala in se, even if they are punished by a special
law. Physical abuse of a child under RA No. 7610 is inherently wrong;
hence, criminal intent on the part of the offender must be clearly
established with the other elements of the crime. In sum, the second
view was applied.
For purpose of the bar exam, if the crime is sexual abuse under
Section 5 of RA No. 7610, fencing, hazing, or sexual harassment the
first view must be followed because the Supreme Court says so. Thus,
they are mala prohibita since they are punishable under special laws.
On the other hand, if the crime is child abuse under Section 10 of RA
No. 7610, plunder, carnapping, piracy or highway
robbery/brigandage under PD No. 532, trafficking in person or
terrorism, second view must be observed. Thus, they are mala in se
since they are wrong in nature.
MISTAKE OF FACT - Mistake of fact may negate dolo. It is a complete

defense provided that the following requisites are present: (1) that the
acts done would have been lawful had the facts been as the accused
believed them to be; (2) that the mistake of fact is not due to
negligence; (3) the mistake is not accompanied with criminal intent
of the offender.
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The Supreme Court in several cases had applied the “mistake of

fact” doctrine, which allowed the accused, who committed a crime on
a mistaken belief, to enjoy the benefit of the justifying circumstance
of self-defense (US v. Ah Chong, G.R. No. L-5272, March 19, 1910),
defense of person and right (US v. Bautista, G.R. No. 10678, August
17, 1915), defense of honor (United States v. Apego, G.R. No. 7929,
November 18, 1912), performance of duty (People v. Mamasalaya,
G.R. No. L-4911, February 10, 1953), the exempting circumstance of
obedience of an order of superior officer (People v. Beronilla, G.R. No.
L-4445, February 28, 1955); or death under exceptional
circumstance. (The Revised Penal Code by Luis Reyes)
In Ah Chong, the accused, who believed that the victim was a
robber and that his life was in danger because of the commencement
of unlawful aggression against him, was acquitted due to mistake of
fact doctrine in relation to the rule on self-defense. The act would
have been justified had the existence of unlawful aggression been as
the accused believed it to be. The mistake is not due to negligence
since he tried to validate the identity of the victim. His intent is not
unlawful because he was just honestly exercising his right to self-
defense. (People v. Gervero, G.R. No. 206725, July 11, 2018; 1977 and
1985 Bar Exams)
In Yapyucu v. Sandiganbayan, G.R. Nos. 120744-46, June 25,
2012, police authorities, who manned a checkpoint because of an
information that there were armed rebels on board a vehicle, have
the duty to validate the information, to identify them, and to make a
bloodless arrest unless they were placed in real mortal danger. If they
shot the suspected vehicle, which did not stop after having been
flagged down, and killed the occupants therein, who turned out to be
unarmed civilians, they are liable for multiple homicides. The
mistake of fact principle is not applicable since there is negligence or
bad faith on their part. (People v. Gervero, G.R. No. 206725, July 11,
2018)
In People v. Oanis and Galanta, G.R. No. 47722, July 27, 1943,
the accused, who believed that the sleeping victim is the notorious
criminal to be arrested by them, were held guilty of murder for
shooting him since the mistake of fact principle in relation to
performance of duty is not applicable. The second element is not
present since they did not ascertain first his identity despite the
opportunity to do so. The first element is not also present since the
killing of the victim believed to be a criminal was not a necessary
consequence of the due performance of duty of the accused as police
officers. However, the accused are entitled to the privileged mitigating
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circumstance of incomplete performance of duty. (People v. Gervero,

G.R. No. 206725, July 11, 2018)
The accused mistakenly killed a thief in the toilet, who turned out
to be his girlfriend. In mistake of fact, which negates dolo, it is an
important requisite that the act done would have been lawful had the
fact been as the accused believed them to be. If there was really an
intruder inside the toilet, the invasion would be considered as
unlawful aggression against his property, which would allow him to
use reasonable means to repel it in accordance with the self-help
doctrine under Article 429 of the Civil Code and defense of property
under Article 12 of the Revised Penal Code. However, the means
employed by him, firing shots through the toilet door, is not
reasonable; hence, he is only entitled to privileged mitigating
circumstance of incomplete defense of property. (see: People v.
Narvaez, G.R. Nos. L-33466-67, April 20, 1983) In sum, the act would
have been attended by the privileged mitigating circumstance of
incomplete justification had the facts been as the accused believed
them to be. (1958 and 2003 Bar Exams)
ERROR IN PERSONAE - Error in personae means mistake of identity.

In error in personae, a person is criminally responsible for committing
an intentional felony although the actual victim is different from the
intended victim due to mistake of identity. Aberratio ictus or error in
personae carries the same gravity as when the accused zeroes in on
his intended victim. (People v. Pinto, G.R. No. 39519, November 21,
1991) For example, X waited in ambush for A to kill him. He saw B a
few meters away and, believing B to be A, he fired upon and killed B
whom he had no intention of hurting. X shall incur criminal liability
for killing B because of the error in personae principle.
In mistake of fact, the mistake pertains to the elements of
justifying circumstance, exempting circumstance or absolutory
cause such as the existence of unlawful aggression, while in error in
personae, the mistake merely pertains to the identity of the victim. In
mistake of fact, the accused committed the act without dolo; hence,
he is not criminally liable, and because of such mistake, the justifying
circumstance, exempting circumstance or absolutory cause shall be
considered in his favor. In error in personae, the accused acted with
dolo; hence, he shall incur criminal liability for killing or injuring a
victim although this victim is different from the intended victim.
ABERRATIO ICTUS – Aberratio ictus means mistake of blow. In

aberratio ictus, a person is criminally responsible for committing an
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intentional felony although the actual victim is different from the

intended victim due to mistake of blow.
1. The 4-12-365 Rule — First part of Article 4, Article 12 on

accident and Article 365 provides a rule on proximate cause. If the
proximate cause of the death of the victim is a felony, e.g., physical
injuries, threat or unjust vexation, the accused is liable for homicide
because of Article 4. If the proximate cause of the death of the victim
is an act not constituting a felony, Article 4 is not applicable. The
application of Article 4 presupposes that the accused committed a
felony. In such a case, the accused is exempt from criminal liability
because of the circumstance of accident under Article 12. If the
proximate cause of the death of the victim is a culpable act, Article
12 on accident is not applicable. Lack of culpa is an element of
accident. In such a case, the accused is liable for reckless
imprudence resulting in homicide under Article 365.
If the act, which caused injuries or death of a third person by
reason of mistake of blow, is not an intentional felony, Article 4 on
aberratio ictus shall not apply. Committing an act in self-defense
(1982 Bar Exam), or in the exercise of right to defend possession of
property (People v. Bindoy, G.R. No. 34665, August 28, 1931; 1981
Bar Exam) or causing death or injuries under exceptional
circumstance (People v. Araquel, G.R. No. L-12629, December 9, 1959;
1977 Bar Exam), or killing of husband by a wife, who is suffering from
battered woman syndrome, is not an intentional felony. In
committing such non-felonious act, the perpetrator is not liable for
the injuries or death of the third person, who was hit by reason of
mistake of blow. Article 4 is not applicable because the perpetrator is
not committing an intentional felony. He is exempt from criminal
liability because of the circumstance of accident under Article 12.
But if the perpetrator is reckless in committing the non-felonious act,
he can be held liable for reckless imprudence resulting in homicide
or physical injuries under Article 365. (People v. Abarca, G.R. No.
74433, September 14, 1987; 1988 and 1991 Bar Exams)
2. Complex crime - If the crimes committed against the target

victim and third person, who was hit by reason of aberratio ictus,
were produced by a single act, the accused is liable for a complex
crime. Thus, single act of throwing a grenade killing one and injuring
another constitutes a complex crime of murder and attempted
murder. (People v. Julio Guillen, G.R. No. L-1477, January 18, 1950;
People vs. Bendecio, G.R. No. 235016, September 08, 2020)
However, the accused is liable for separate crimes despite the
application of the aberratio ictus rule, and not a complex crime in the
following cases:
1. If the bullet that killed the target victim is different from the
bullet that killed the third person, who was hit by reason of aberratio
13 | P a g e
ictus (People v. Flora, G.R. No. 125909, June 23, 2000; People v.
Adriano, G.R. No. 205228, July 15, 2015; Cruz vs. People, G.R. No.
216642, September 8, 2020);
2. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is merely a light felony such as slight
physical injuries (People v. Violin, G.R. Nos. 114003-06, January 14,
1997);
3. If the components of a complex crime are alleged in two

different information. (People v. Umawid, G.R. No. 208719, June 9,
2014);
4. If the crime committed against the third person, who was hit
by reason of aberratio ictus, is child abuse, which is an offense
punishable under special law (Patulot vs. People, G.R. No. 235071,
January 7, 2019) Components of complex crime must be felonies.
Accused consciously poured hot cooking oil from a casserole on

CCC, consequently injuring AAA (3 years old) and BBB (2 months
old) burning their skins and faces. Accused is liable for child abuse
involving infliction of physical injury although there is no intent to
degrade, debase or demean the intrinsic worth and dignity of AAA
and BBB as human beings. In fact, the intention of the accused is
merely to inflict injury on CCC but because of aberratio ictus or
mistake of blow, AAA and BBB were also injured. In sum, because of
Article 4 of RPC, accused is liable for the wrongful act done (child
abuse against AAA and BBB) although it differs from the wrongful
act intended (physical injuries on CCC). This is not a complex crime.
Accused is convicted of two counts of child abuse. (See: Patulot vs.
People, G.R. No. 235071, January 7, 2019) He should also be held
liable for physical injuries.
PRAETER INTENTIONEM - Praeter intentionem means

unintentional. In praeter intentionem, a person shall incur criminal
liability for committing an intentional felony although its wrongful
consequence is graver than that intended.
1. The 4-12-365 Rule — The accused pointed his gun at the
deceased as a reasonable means to repel an unprovoked unlawful
aggression committed by the latter. The act of pointing the gun in
self-defense is justified. Article 4 in relation to the praeter intentionem
principle is not applicable since a justified act is not a felony within
the contemplation of this provision. Thus, the justified act of pointing
a gun, which accidentally fired and hit the deceased causing her
death, will not make the accused criminally liable because of the
exempting circumstance of accident under Article 12. In People v.
Tiongco, C.A. 63 O.G. 3610, the accused, who accidentally fired his
14 | P a g e
gun while exercising his right of self-defense, was acquitted. (2014

Bar Exam)
A, a landowner, surprised a youngster in the act of stealing some
fruits in his orchard. He threatened to spank them if they would not
come down. Out of fear, all of them jumped from the tree. As
consequence thereof, they suffered serious physical injuries. A is not
criminally liable. Threat to spank is not a felony. A was just exercising
his right of self-help under Article 429 of the Civil Code; threat to
spank is a reasonable and necessary means to repel invasion of his
property; hence, he is not responsible for any direct, natural, and
logical consequence thereof. Article 4 on praeter intentionem is not
applicable. A is exempt from criminal liability because of the
circumstance of accident under Article 12. (1968 Bar Exam)
A landowner surprised a youngster in the act of stealing some
fruits in his orchard. To scare the intruder, he fired a shotgun aiming
at the foliage of a cherry tree. The shot scattered and a pellet injured
the boy, who was standing under the tree. Accused is not liable for
physical injuries because he is merely exercising his right of self-help.
Hence, Article 4 on praeter intentionem is not applicable. He is not
exempt from criminal liability. Article 12 on accident is not also
applicable because there is culpa in this case. Accused failed to adopt
precautionary measure that will prevent any undesirable
consequence from the act committed in the exercise of a right under
the self-help doctrine. He should have pointed the gun at a direction
substantially far from the victims. Thus, he is liable for reckless
imprudence resulting in physical injuries under Article 365. (People
v. Nucum, G.R. No. L-482, February 25, 1947; 1965 Bar Exam)
2. Physical Injuries — The accused punched his pregnant wife.
This is physical injuries. If as a consequence, she and her unborn
baby died, the accused shall incur criminal liability for compound
crime of parricide with unintentional abortion (People v. Salufrania,
G.R. No. L-50884, March 30, 1988) with the mitigating circumstance
of praeter intentionem (People v. Rabao, G.R. No. 46530, April 10,
1939), although this crime is different from physical injuries which
he intended to commit. (1994 Bar Exam)
3. Unjust Vexation — In People v. Pugay, G.R. No. 74324,
November 17, 1988, the Supreme Court did not apply Article 4 of the
Revised Penal Code for death resulting from the act of pouring
gasoline, which is part of their fun making, the victim being his
friend. In sum, the act of pouring gasoline was not treated as an
intentional felony. Hence, he is not liable for the direct, natural and
15 | P a g e
logical consequence thereof. The accused was convicted of reckless

imprudence resulting in homicide. But the Court applied Article 4 for
death resulting from the act of burning the clothes. In sum, the act
of burning the clothes, which would hurt the victim, was considered
as physical injuries. Hence, he is liable for the direct, natural and
logical consequence thereof. The accused shall incur criminal liability
for homicide although this is different from physical injuries which
he intended to commit.
Pouring gasoline over the victim as part of fun making would vex
or annoy the victim. But since the mind of the accused is not
criminal, such act is not unjust vexation. Hence, the Supreme Court
in the Pugay case applied Article 365 and not Article 4 because
accused in pouring gasoline is not committing an intentional felony.
But if the act is committed with malice and not just for a friendly
fun making, it will constitute unjust vexation. Malice can be
established by showing that the accused is angry at the victim or
motivated by revenge or spite. The accused is liable for the direct,
natural, and logical consequence of unjust vexation. Article 4 is now
applicable.
5. Felony Producing Fear — If a person in committing an
intentional felony creates in the mind of the victim an immediate
sense of danger which causes such person to try to escape, and in so
doing he injures himself, the person who creates such a state of mind
is responsible for the resulting injuries. Such intentional felony that
creates a sense of danger can be threat (US v. Valdez, G.R. No. 16486,
March 22, 1921); murder (People v. Toling, G.R. No. L-27097, January
17, 1975); rape (People v. Castromero, G.R. No. 118992, October 9,
1997); or robbery. (People v. Arpa, G.R. No. L-26789, April 25, 1969)
In sum, he shall incur criminal liability for the death of or injuries
sustained by the victim although this consequent crime is different
from threat, murder of another victim, or rape which he intended to
commit.
If the accused committed a crime and as a consequence another
crime is committed, these two crimes can be merged into a special
complex crime, or compound crime, or may be treated as separate or
as a single crime. If in the course of robbery, the victim jumped out
of fear from the boat and died as a consequence, the crime committed
is a special complex crime of robbery with homicide. (People v. Arpa,
supra) If after the consummation of rape, the victim jumped out of
fear from the building and suffered serious physical injuries as a
consequence, the crime committed is a compound crime of rape with
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serious physical injuries. (People v. Castromero, supra) If in the

course of committing murders, the victims without knowledge of the
accused jumped from the train and as a consequence died, the
accused may be held liable for separate crimes of murders. (People v.
Toling, supra) If the accused threatened to kill the victim, and by
reason hereof, the latter jumped from the boat and died, the former
is liable for homicide. (US v. Valdez, supra)
IMPOSSIBLE CRIME - Impossible crime is an act which would
have been an offense against person or property, were it not for the
inherent impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means. (Article 4 of the
Revised Penal Code) The offender shall incur criminal liability for
committing an impossible crime because of his criminal tendency or
intention.
Impossible crime is not a real crime since the accused did not
commit the crime against person or property for it is impossible to do
so. The law punishes the accused not because of the commission of
the crime but on the basis of his tendency to do so.
Offender shall be held liable for impossible crime if the following
requisites are present: (1) offender performed an act which would
have been an offense against person or property; (2) offender
performed an act with evil intent; (3) offender did not commit the
offense because of the impossibility of its accomplishment or
employment of inadequate or ineffectual means; and (4) offender in
performing an act is not violating another provision of the law. (The
Revised Penal Code by Luis B. Reyes)
1. Crimes Against Person or Property - Gender is an element

of crimes against chastity except acts of lasciviousness. In seduction
and consented acts of lasciviousness, and abduction, the offender
must be a man, while the victim must be a woman. In adultery, the
offenders must be a married woman and a man, while in concubinage
the offenders must be a married man and a woman. In corruption of
minor and white slavery, the victim must be a female prostitute. If
the gender element is not present in a crime against chastity, the
accused is not liable for impossible crime because the act which is
impossible to be committed does not constitute a crime against
person or property.
If the accused abducted the victim with lewd design and with
intent to rape not knowing that the victim is gay, who underwent
gender reassignment, he could not be held liable for complex crime
of rape through forcible abduction since both components of this
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complex crime can only be committed against a woman. Nor is he

liable for impossible crime of forcible abduction since this is a crime
against chastity. In impossible crime, the act, which is impossible to
be committed, must constitute crime against person or property.
Neither is he liable for impossible crime of rape since act constitutes
another violation of the law. He is liable for illegal detention.
But if the accused abducted a gay, who underwent gender
reassignment, had sexual intercourse with him, and killed him in the
course of detention, the crime committed is special complex crime of
kidnapping with homicide. Having sexual intercourse with a gay
merely constitutes acts of lasciviousness, which is integrated into the
special complex crime of kidnapping with homicide.
Adultery is committed by any married woman who shall have
sexual intercourse with a man not her husband and by the man who
has carnal knowledge of her knowing her to be married. (Article 333
of the Revised Penal Code) However, one, who pretended to be a
woman in marrying the complainant, cannot commit adultery since
he is not a married woman. Neither is his sexual partner liable for
adultery since this crime committed by the man presupposes that
woman of whom he had carnal knowledge is also liable for adultery.
This crime cannot unilaterally be committed by the man. There is no
impossible crime of adultery since this is a crime against chastity,
and not against person or property.
R.A. No. 8353 reclassifies rape from crime against chastity to
crime against person. Hence, an offender for raping a dead person
without knowing that she was already dead may now be held liable
for impossible crime. The accused shall incur criminal liability for
performing an act which would have been rape were it not for the
inherent impossibility of its accomplishment.
2. Evil Intent - Offender with intent to kill stabbed the victim

not knowing that he is already dead. This is impossible crime. The
accused shall incur criminal liability for performing an act which
would have been homicide were it not for the inherent impossibility
of its accomplishment. He will be punished because of his criminal
tendency to kill a person.
Offender stabbed the victim knowing that he is already dead. This
is not impossible crime since it was committed without evil intent to
kill, the second requisite of impossible crime. The act does not show
criminal tendency, which is the basis of penalizing impossible crime,
because he is aware that he is not killing someone at time of stabbing.
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In impossible crime of homicide, the accused intended to kill the

victim, and perpetrated an act to kill him not knowing that it is
impossible to do so.
3. Factual and Legal Impossibility – An impossible crime is

committed if the offense sought to be committed is factually or legally
impossible. (Intod v. Court of Appeals, G.R. No. 103119, October 21,
1992) For example, if the victim is not in the room, it is factually
19 | P a g e
impossible for the accused in firing his gun at the room to hit him.
Hence, shooting at the room to kill the victim is an impossible crime
because of the factual impossibility of committing it. On the other
hand, if the target victim is already dead, it is not factually impossible
for the accused in firing his gun to hit him; but it is legally impossible
for the accused to kill a person, who is already dead. Hence, shooting
at a dead person to kill him is an impossible crime because of legal
impossibility of committing it.
Putting the hand inside an empty pocket with the intention to
steal a wallet therein is an impossible crime because of factual
impossibility of committing it. (Intod v. Court of Appeals, supra; 1947
and 1962 Bar Exams)
The penalty for impossible crime is arresto mayor or a fine from
P200 to P500 (Article 59 of the Revised Penal Code), while the penalty
for light felony is arresto menor or a fine not exceeding P200 or both.
Article 59 should not be made applicable to one who attempts to
commit a light felony of impossible materialization since the penalty
for the impossible crime is graver than that for the consummated
light crime. It would be unfair to punish a person, who failed to
commit a light felony since it is impossible to accomplish it, for a
graver penalty than that for a person who was able to commit it.
In impossible crime and attempted or frustrated felony, the
offender did not complete the commission of the crime. But the
difference between the two lies on the external cause that prevents
the consummation of the crime.
If the external cause of non-commission of the crime is the
impossibility of accomplishing the crime or the employment of
ineffectual or inadequate means, the offender is liable for an
impossible crime.
If the external cause of non-performance of all acts of execution
is some cause or accident other than his own spontaneous desistance,
the offender is liable for attempted felony. In attempted felony, it is
possible to commit the crime, but the offender fails to perform all acts
of execution due to some cause or accident other than his own
spontaneous desistance.
If the external cause of non-production of the crime despite the
performance of all acts of execution is a cause independent of his will,
offender is liable for frustrated felony. In frustrated felony, it is
possible to commit the crime, and in fact, the offender has already
performed all acts of execution, but the crime was not produced due
to cause independent of his will.
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The offender with intent to kill pulled the trigger of a gun with a
dud bullet (defective bullet) at the victim. The act constitutes
impossible crime because of the impossibility of killing a person with
a dud bullet or the employment of ineffectual means. (2014 Bar
Exam)
The offender with intent to kill pulled the trigger of a gun with
live bullets at the victim, and as a consequence, he sustained non-
mortal wounds. The offender failed to shoot further shot the victim
to inflict a mortal wound since he was arrested by a police officer.
This is not impossible crime since there is a possibility of killing the
victim with a gun loaded with live bullets. The crime committed is
attempted homicide, since he failed perform all acts necessary to
execute his criminal design to kill him because of his timely
apprehension. His apprehension and not his spontaneous desistance
prevented him from inflicting a mortal wound on the victim.
The offender with intent to kill pulled the trigger of a gun with live
bullets at the victim, and as a consequence, he sustained mortal
wounds. However, the victim survived due to medical intervention.
This is not impossible crime since there is a possibility of killing the
victim. In fact, the offender already performed all acts necessary to
kill him by inflicting mortal wounds. With mortal wounds, the victim
was already dying. The crime committed is frustrated homicide since
the victim survived due to medical intervention. This medical
intervention, which is not dependent on the will of the offender,
prevented the completion of the crime.
Offender with intent to kill thought that the salt, which he mixed
with the coffee of the victim, is arsenic powder. Victim drank the
coffee. Murder was not committed due to the employment of
ineffectual means. Offender is liable for impossible crime.
Offender with intent to kill mixed arsenic with the coffee of the
victim. Victim drank the coffee. The victim did not die by reason of
the inadequate quantity of the poison. Murder was not committed
due to the employment of inadequate means. Offender is liable for
impossible crime.
Offender with intent to kill mixed arsenic with the coffee of victim.
Victim drank the coffee. The quantity of the poison is adequate to kill
the victim. But the victim did not die due to timely medical
intervention. Offender is liable for frustrated murder.
If the crime is not committed, the accused can be held liable either
for frustrated felony or for impossible crime; but he cannot be held
liable for frustrated impossible crime. Article 4 of the Revised Penal
21 | P a g e
Code on impossible crime and Article 6 on frustrated felony cannot

be applied together since their concept are different and distinct from
each other. In impossible crime, it is impossible to commit the crime,
and thus, the offender cannot perform all acts of execution. For
failure to perform all acts of execution, frustrated felony is not
committed. On the other hand, in frustrated felony, it is possible to
commit the crime; in fact, the offender already performs all acts of
execution. Since it is possible to commit the crime, impossible crime
is not committed. In sum, impossible crime and frustrated felony are
mutually exclusive.
If the victim is dead, there is no way for the offender to perform
all acts of execution (e.g., inflicting mortal wound). Whatever damage
caused to the dead body by stabbing perpetrated by the accused
cannot be classified as mortal wound. Offender cannot perpetrate an
act to execute his criminal design to kill since the victim is already
dead. Hence, frustrated felony will be ruled out. Stabbing a dead
person with intent to kill is impossible crime, and not frustrated
homicide. On the other hand, if the victim is alive, and the offender
performs all acts of execution by inflicting mortal wounds on him,
impossible crime will be ruled out because it is possible to kill the
victim; in fact, he is already dying because of his mortal wounds.
Hence, impossible crime cannot be committed. Inflicting mortal
wounds on the victim, who did not die due to medical intervention is
frustrated homicide, and not impossible crime.
Stabbing a person without knowledge that he is already dead is
impossible crime. (Intod v. CA, supra) However, if the accused, who
stabbed the dead body of the victim, conspired with the one who
previously hacked and killed the victim, the former is liable for
murder and not impossible crime because of the collective
responsibility rule. The liability of the accused for murder is not
based on his act of stabbing the dead body of the victim. His liability
is based on the act of his co-conspirator in hacking and killing the
victim, which by fiction of the law shall be treated as the act of both
of them. (People v. Callao, G.R. No. 228945, March 14, 2018)
In impossible crime, it is impossible for the accused to commit
the crime. If the crime is already consummated and there is an
impossibility to commit an act, which is not an element thereof, the
accused is not liable for impossible crime.
Receiving ransom payment is not an element of kidnapping for
ransom. What is important is that the victim was kidnapped for
purpose of ransom. Hence, impossibility to obtain the ransom
22 | P a g e
payment, which is not an element of kidnapping for ransom, will not

render this crime impossible to be committed. In fact, kidnapping for
ransom consummates at the precise moment when the victim was
abducted with intent to demand ransom payment. The
consummation of the crime is not compatible with the concept of
impossible crime. Moreover, kidnapping is a crime against liberty. In
impossible crime, the act which is impossible to be committed must
constitute a crime against person or property. (see: People v. Tan,
G.R. No. 95322, March 1, 1993; 2000 and 2014 Bar Exams)
Encashing a forged PCSO sweepstake ticket is not an element of
the crime of forgery. Hence, impossibility to encash the ticket, which
is not an element of forgery, because its falsity is very obvious will
not render this crime impossible to be committed. In fact, forgery
consummates at the precise moment when the accused forged the
ticket. The consummation of the crime is not compatible with the
concept of impossible crime. Moreover, forgery is a crime against
public interest. In impossible crime, the act which is impossible to be
committed must constitute a crime against person or property. (see:
People v. Balmores, G.R. No. L-1896, February 16, 1950)
If the check is unfunded, stealing the check of the employer by an
employee and presenting the same for payment with the bank
constitute impossible crime. The act of depositing the check is
committed with evil intent. The mere act of unlawfully taking the
check meant for Mega Inc., showed her intent to gain or be unjustly
enriched. There is factual impossibility to accomplish the crime of
qualified theft since the check is unfunded. (Jacinto v. People, G.R.
No. 162540, July 13, 2009; 2012 Bar Exam)
If the check is funded, stealing the check and failure to present
the same for payment with the bank will not make the accused liable
for impossible crime. Even if the accused failed to encash the same
due to external cause such as confiscation of the check by police,
burning of check or stop payment order, he will be held liable for
consummated theft. (see: People v. Seranilla, G.R. No. L-54090, May
9, 1988) In theft, taking or acquiring possession of personal property
with intent to gain consummates the crime. Actual gain is irrelevant
as the important consideration is the intent to gain. (People v.
Bustinera, G.R. No. 148233, June 8, 2004) Thus, failure to obtain
actual gain, which is not an element of theft, will not render this
crime impossible to be committed.
The principle in Jacinto is not compatible with Seranilla, and
other cases because if the Seranilla principle was applied to the facts
23 | P a g e
of the case in Jacinto, the crime committed is consummated theft and

not impossible crime. Actual gain by encashing the check is not an
element of theft. Hence, the impossibility of actual gain because the
check is not funded will not render the crime of theft impossible to
be committed. Theft consummates at the precise moment when the
accused took the unfunded check with intent to gain. The
consummation of the crime is not compatible with the concept of
impossible crime
For purpose of the bar examination, Jacinto principle must be
followed. Taking an unfunded check is impossible crime. However,
the application of the Jacinto principle must be confined to a case
where the failure to gain is based on the unfunded condition of the
check. If the failure to gain is based on other reason such as
confiscation of the check, stop payment order, the check was burned
by fire, Seranilla principle must be applied. Taking a funded check
with intent to gain is consummated theft despite of the failure of the
offender to obtain actual gain.
4. Not Constitutive of Another Crime - If the accused

performed an act constituting impossible crime and another crime
such as arson or serious physical injuries, he will be prosecuted for
the latter. To rule otherwise is to allow the accused to escape the
penal consequence of a graver crime by being liable of impossible
crime where the penalty is only arresto mayor or a fine from P200 to
P500.
Accused put substance to the food of the victim with intent to
kill him not knowing that the substance is not poison or arsenic but
powdered milk, equal, or non-toxic powder. This is impossible crime.
Accused shall incur criminal liability for performing an act which
would have been murder by means of poison were it not for the
employment of ineffectual means. (People v. Balmores, G.R. No. L-
1896, February 16, 1950) But if the victim, because of severe allergy
to powdered milk or non-toxic powder, was hospitalized for 10 days,
the accused will be held liable for less serious physical injuries.
If the accused administered abortive drugs upon his girlfriend
whom he believed to be pregnant, which turned out not to be true,
and the woman became ill for more than 30 days, the accused will be
liable for serious physical injuries and not impossible crime of
abortion. (Criminal Law Reviewer by Gregorio)
Sexual assault is a gender-free crime, while rape is committed by
a man against a woman. If the gender element in rape is not present,
the crime is not impossible crime but acts of lasciviousness. Sexually
24 | P a g e
assaulting a victim with intent to have sexual intercourse with her

not knowing that the victim is a gay is not impossible crime of rape.
Although it is impossible to commit rape where the victim is a gay,
the acts with intent to have sexual intercourse committed against
him constitute acts of lasciviousness.
Where the offender unlawfully entered the house through the
window and took a watch that turned out to be his own, he is liable
for trespass to dwelling and not for impossible crime of robbery.
(Criminal Law Conspectus by Justice Florenz Regalado)
According to Luis Reyes, there are four requisites to make one
liable for impossible crime, the fourth of which is that the “offender
in performing an act is not violating another provision of the law.”
The fourth requisite of impossible crime is not found in Article 4
of the Revised Penal Code. There is nothing in this provision which
states that the offender can only be held liable for an impossible
crime if the act is not a violation of another provision of the law. In
fact, in the case of Jacinto, supra and the case of Callao, supra, there
are only three requisites of impossible crime. That the “offender in
performing an act is not violating another provision of the law” is not
mentioned in the case of Jacinto and the case of Callao as the fourth
requisite of impossible crime.
The fourth requisite of impossible crime in the book of Luis Reyes
has something to do with the spirit of Article 4. The intention of the
lawmakers is to make Article 4 a last-resort provision in the sense
that if the act committed by the accused constitutes an impossible
crime, and other crime, he will be prosecuted for the latter. The
purpose of this fourth requisite is to prevent the accused from
escaping the penal consequence of a graver crime by being convicted
of an impossible crime where the penalty is lesser. If the act
constitutes impossible crime and other crime with a lesser penalty
such as alarm and scandal or unjust vexation, it is submitted that
the fourth requisite can be dispensed with, and thus, the accused
should be held liable for impossible crime.
For example, accused threw a grenade at the unoccupied
bedroom, where the victim is supposed to be sleeping, and as a
consequence, the house was burned. The act constitutes impossible
crime of murder, and the crime of arson. Taking into consideration
the fourth requisite of impossible crime, the accused should be held
liable for arson. Under P.D. No. 532, the penalty for arson involving
the burning of inhabited house is reclusion temporal to reclusion
perpetua. On the other hand, the penalty for impossible crime is only
25 | P a g e
arresto mayor. To convict the accused of impossible crime is to allow

him to escape the penal consequence of the grave crime of arson.
In Intod v. Court of Appeals, supra, the accused, intending to kill
a person, peppered the latter’s bedroom with bullets, but since the
intended victim was not home at the time, no harm came to him.
Accused was convicted of impossible crime.
Some authorities in criminal law argued that the accused should
be held liable for alarm and scandal because of the fourth requisite
of impossible crime. However, it is submitted that the Supreme Court
correctly convicted the accused of impossible crime. The penalty for
alarm and scandal is only arresto menor while the penalty for
impossible crime is arresto mayor. By convicting the accused of
impossible crime, the accused did not escape the penal consequence
of a graver crime since the penalty for alarm and scandal is lesser
than that for impossible crime. In sum, if the act committed by the
accused constitutes an impossible crime and a lesser crime, the
fourth requisite of impossible crime can be dispensed with, and thus,
the accused should be convicted of an impossible crime.
STAGES – In an attempted felony, the offender’s preparatory

act requires another act to result in a felony. One perpetrating
preparatory act is not guilty of an attempt to commit a felony. (People
v. Lizada, G.R. Nos. 143468-71, January 24, 2003; 2011 Bar Exam)
The intent of the person in committing preparatory act remains

equivocal or unclear. Hence, preparatory acts such as buying poison,
conspiring and going to the place where the crime agreed upon will
be committed are not constitutive of attempted felony because intent
to kill is not clear. However, preparatory acts are punishable if the
law prescribes a penalty for its commission such as proposal or
conspiracy to commit rebellion, or possession of picklock. If the
preparatory acts constitute a felony, committing it is a consummated
crime. (People v. Lizada, ibid.)
From preparatory acts, the person, whose mind is criminal, may

perform acts to execute or implement his criminal resolution. Such
acts are known as acts of execution. If he performs acts to execute
his criminal intent, but fails to complete all acts required for full
execution thereof because of an external cause, the crime is at the
attempted stage. If he performs all acts necessary to execute or
implement his criminal design, but the crime was not produced due
to external cause, the stage of the crime is frustrated. If the crime
was produced, its stage is considered as consummated.
26 | P a g e
Attempt to Commit an Indeterminate Offense - Accused was

caught in the act of making an opening with an iron bar on wall of a
store, which is used as a dwelling. He was convicted of attempted
trespass to dwelling and not attempted robbery by using force upon
thing. Making an opening on the store is an overt act of trespassing
since it reveals the intention of the accused to enter therein against
the will of its owner. However, making such opening is not an overt
act of robbery since it does not reveal a clear intention to take
properties inside the store. The court cannot determine or ascertain
the crime that the accused intended to commit inside the store.
Making opening on the store are subject to different interpretations.
It is possible that the accused would commit robbery, physical
injuries or rape inside the store. It is even possible the he just wanted
to sleep inside the store. In sum, the crime that he intended to
commit inside the store, if there is any, is indeterminable or
unascertainable. An attempt to commit an indeterminate crime
cannot be punished as attempted robbery. (People v. Lamahang, G.R.
No. 43530, August 3, 1935; 1981 Bar Exam)
If the accused destroyed the door and entered the dwelling of the
complainant, and was inside the dwelling when the police authorities
arrested him, the crime committed is not attempted robbery because
of the indeterminate crime principle but consummated trespass to
dwelling. (1979 Bar Exam) But if the accused admitted his intention
to steal, Lamahang principle is not applicable. In Lamahang case, the
crime that the accused intended to commit in the store is
indeterminate. In this case, the crime that the accused intended to
commit inside the dwelling is determinate or ascertainable. He
intended to commit robbery. Hence, the accused is liable for
attempted robbery by using force upon things. (People v. Villegas,
G.R. No. 34039, January 16, 1931)
Attempted and Frustrated Stages
Attempted felony and frustrated felony are distinguished as
follows:
1. Acts of Execution — In attempted felony, the offender
performed directly an overt act, which is an act of execution, but it is
not enough to produce the felony as a consequence. In attempted
homicide, the accused performed act to execute his criminal design
to kill the victim by inflicting non-mortal wounds upon him, which is
not sufficient to kill him as a consequence.
In frustrated felony, the offender performed all the acts of
execution that would produce the felony as a matter of consequence.
27 | P a g e
In frustrated homicide, the accused performed all acts necessary to

execute his criminal design to kill the victim by inflicting mortal
wounds upon him, which is sufficient to kill him as a consequence.
In frustrated felony, there is no need to perform further act to
implement his criminal intention.
To determine whether the felony is at the attempted or frustrated
stage, the acts of execution of the felony, which the accused intended
to commit, must be identified. Example: The acts of execution that
would produce homicide as a consequence are the infliction of mortal
wounds upon the victim. If the wounds inflicted upon the victim with
intent to kill are non-mortal, the crime committed is attempted
homicide. (Colinares v. People, G.R. No. 182748, December 13, 2011)
On the other hand, if wounds are mortal, the crime committed is
frustrated homicide. (People v. Serrano, G.R. No. 175023, July 5,
2010; People v. Aquino, G.R. No. 203435, April 11, 2018)
Medical Certificate of the complainant alone, absent the
testimony of the physician who diagnosed and treated him, or any
physician for that matter, is insufficient proof of the nature and extent
of his injury. If character of the wound is doubtful, such doubt should
be resolved in favor of the accused. (People v. Etino, G.R. No. 206632,
February 14, 2018) Hence, the accused shall be convicted of
attempted homicide instead of frustrated homicide.
Acts of execution in attempted or frustrated felony presuppose
that the specific criminal intent required to commit it must be
present. In sum, the external acts performed by the offender and the
intended felony must have a direct connection.
In homicide, whether frustrated or attempted, intent to kill is an
indispensable element. In attempted or frustrated homicide, the
accused is performing an act to execute his criminal design to kill the
victim. If there is no intent to kill, the crime committed is merely
physical injuries.
2. Non-commission of the Crime — In an attempted felony, the
offender fails to perform all the acts of execution; thus, his external
acts would “not produce” the felony as a consequence. On the other
hand, in a frustrated felony, the offender performs all the acts of
execution; thus, his external acts “would produce” the felony as a
consequence; but just the same, the crime is not produced.
3. External Cause of the Non-commission of the Crime — In
attempted felony and frustrated felony, the offender failed to
accomplish his criminal objective by reason of external causes; if the
28 | P a g e
causes are not external, the accused will be absolved from criminal
liability.
In attempted homicide, the accused in order to kill the victim
inflicted non-mortal wound upon him but a policeman immediately
arrested him. His timely apprehension is the cause other than his
spontaneous desistance, which prevented him from performing all
acts of execution or from inflicting a mortal wound upon the victim.
In frustrated homicide, the accused in order to kill the victim
inflicted mortal wound upon him but the latter did not die due to
timely medical intervention. The medical intervention is the cause
independent of the exclusive will of the accused, which prevented the
consummation of the crime.
In attempted felony, if the cause of the failure to perform all acts
of execution is the spontaneous desistance of the accused, that is a
defense.
In frustrated felony, if the failure to produce the crime despite the
performance of all acts of execution is not independent on the will of
the accused, that is a defense.
a. Spontaneous Desistance — In the attempted stage,
offender has not yet performed all the acts of execution. Hence,
to be absolved from criminal liability, he must spontaneously
desist from performing all acts of execution.
In attempted homicide, the accused will be absolved from
criminal liability by spontaneously desisting from inflicting mortal
wound upon the victim. However, he is liable for the crime that
he already completed such as physical injuries, threat or
discharge of firearm.
The term spontaneous is not equivalent to voluntary. Even if
the desistance is voluntary, the same could not exempt the
offender from liability for attempted felony if there is an external
constraint. The term “spontaneous” means proceeding from
natural feeling or native tendency without external constraint; it
is synonymous with impulsive, automatic, and mechanical.
(People v. Lizada, G.R. Nos. 143468-71, January 24, 2003, En
Banc)
Accused had previously raped the victim several times. During
the subject incident, accused was wearing a pair of short pants
but naked from waist up. He entered the bedroom of victim, went
on top of her, held her hands, removed her panty, mashed her
breasts and touched her sex organ. However, accused saw Rossel
29 | P a g e
peeping through the door and dismounted. He berated Rossel for

peeping and ordered him to go back to his room and to sleep.
Accused then left the room of the victim. Held: Accused intended
to have carnal knowledge of victim. The overt acts of accused
proven by the prosecution were not merely preparatory acts. By
the series of his overt acts, accused had commenced the
execution of rape, which, if not for his desistance, will ripen into
the crime of rape. Although accused voluntarily desisted from
performing all the acts of execution, however, his desistance was
not spontaneous as he was impelled to do so only because of the
sudden and unexpected arrival of Rossel. Hence, accused is guilty
only of attempted rape. (People v. Lizada, G.R. Nos. 143468-71,
January 24, 2003)
b. Cause Dependent on the Exclusive Will — If the offender
performed all the acts of execution, he will not be absolved from
liability for frustrated felony even though he spontaneously
desisted from further doing criminal act. Spontaneous desistance
is a defense in attempted felony but not in frustrated felony. If the
crime reached the frustrated stage, the offender must do
something other than desisting to be absolved from criminal
liability. Since all the acts of execution sufficient to produce the
felony were already performed, he must do something to prevent
the completion thereof. The failure to produce the crime as a
defense in frustrated felony must be exclusively dependent on his
will.
In frustrated homicide, the accused will be absolved from
criminal liability by providing medical treatment to save the life of
the victim who suffered mortal wounds. If the victim did not die
because of the exclusive will of the accused, the latter is not liable
for frustrated homicide. But he is still liable for the crime that he
already committed, and that is, physical injuries. (1976 and 1985
Bar Exams)
Inflicting non-mortal wound upon the victim by shooting him
constitutes physical injuries if the accused did not further shoot
him to inflict mortal wounds. The crime is not attempted homicide
because failure to shoot him further shows lack of intent to kill.
(Pentecostes, Jr. v. People, G.R. No. 167766, April 7, 2010)
Moreover, spontaneous desistance from further shooting the
victim to inflict mortal wounds is a defense in attempted
homicide.
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Inflicting mortal wound upon the victim constitutes frustrated

homicide even if the accused spontaneously desisted from further
shooting him. The fact that the wounds are mortal indicates
intent to kill. Moreover, spontaneous desistance from further
shooting is not a defense in frustrated homicide. (People v. Abella,
G.R. No. 198400, October 7, 2013)
c. Not Absolutory Cause — If the felony is consummated,
offender cannot undo what was done. He would not be absolved
from criminal liability even if he had done something that will
mitigate the effects of his felonious act. For example, restitution
of funds malversed immediately and voluntarily made before the
case was instituted is not an absolutory cause. (Navarro v.
Meneses III, CBD Adm. Case No. 313, January 30, 1998; 2011 Bar
Exam)
A stole chicken under the house of B. Realizing that what he
did was wrong A returned the chicken to the same place where
he took it. Since the crime of theft was already consummated, the
return of the stolen property does not relieve him of criminal
responsibility. A had already performed all the acts of execution,
which produced the crime of theft before he returned the chicken.
(see: The Revised Penal Code by Luis Reyes; 1980 Bar Exam)
The fact that the accused abandoned the victim after six days
of captivity does not lessen his criminal culpability much less
exempt him from criminal liability for the kidnapping and
detention of the victim. (Baldogo, G.R. Nos. 128106-07, January
24, 2003)
Frustrated and Consummated Felony

In frustrated felony and consummated felony, the accused
performs all the acts of execution that would produce the felony as a
consequence. If the felony is not produced due to external cause, he
is liable for frustrated felony. On the other hand, if the felony is
produced, he is liable for consummated felony.
There are felonies, which has no frustrated stage, since the
performance of all the acts of execution immediately consummates
them.
In homicide, the offender performed all acts of execution by
inflicting mortal wounds upon the victim. However, what
consummates homicide is the death of the victim. Thus, if the
mortally wounded victim did not die due to medical intervention,
homicide is only at the frustrated stage.
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On the other hand, in rape, the offender performed all acts of

execution by sexually penetrating the victim’s vagina. But since
sexual penetration or the touching of the labia of the pudendum
consummates rape, there are no occasions where the offender
performed all the acts of execution and yet the felony was not
produced as a consequence. In sum, there is no such thing as
frustrated rape since the performance of all the acts of execution
immediately consummates rape. (People v. Orita, G.R. No. 88724,
April 3, 1990; 2005 Bar Exam)
Belief
Under the old rule, it is not required that the accused actually
commits all the acts of execution necessary to produce the death of
his victim. It is sufficient that he believes that he has committed all
the acts of execution to make him liable for frustrated felony. (People
v. Dagman, G.R. No. L-23133, August 20, 1925; People v. Borinaga,
G.R. No. 33463, December 18, 1930; People v. Dela Cruz, G.R. No. L-
39552, November 24, 1933; People v. Pio, G.R. No. L-5848, April 30,
1954) However, according to Justice Florenz Regalado, the belief of
the accused as to whether he had already performed all the acts of
execution is immaterial. To be held liable for frustrated homicide or
murder, the accused must have performed all the acts of execution
which would produce the felony as a consequence (and not as a
matter of belief). In People v. Paddayuman, G.R. No. 120344, January
23, 2002, People v. Maguikay, G.R. Nos. 103226-28, October 14,
1994, and People v. Bacalto, G.R. Nos. 116307-10, August 14, 1997,
the Supreme Court did not consider the belief of the accused in
determining the stage of execution of the crime.
That the victim sustains mortal wounds is an important element
of frustrated homicide. (Miranda v. People, G.R. No. 234528, January
23, 2019) Believing that the victim is already dying after stabbing him
twice on the chest, accused left. Despite the belief of the accused that
the wounds sustained by the victim is mortal, he was convicted of
attempted homicide, and not frustrated homicide because his
wounds are not mortal. (People v. Paddayuman, supra) Under Article
6 of the Revised Penal Code, the offender must “perform all the acts
of execution” to be held liable of frustrated felony. Belief of the
offender that he already performs all acts of execution is not
mentioned in Article 6 as an element of frustrated felony.
The victim survived the attack perpetrated by the accused
because he pretended to be dead. Despite the belief of the accused
that the victim is dead, they will not be convicted of consummated
32 | P a g e
murder. They will be held liable for frustrated murder if the wounds
sustained by the victim are mortal (People v. Bacalto, supra); or
attempted murder if they are non-mortal. (People v. Maguikay, supra)
Article 249 of the Revised Penal Code penalizes the act of killing a
person as homicide and not the belief that one killed a person.
Arson
1. Attempted Arson — When a person had poured gasoline
under the house of another and was about to strike the match to set
the house on fire when he was apprehended, he is guilty of attempted
arson. He committed an over act to execute his criminal design to
burn the house. However, he did not perform all acts of execution
since pouring gasoline and attempting to strike the match will not
burn the house as a matter of consequence. (People v. Go Kay, CA,
54 O.G. 2225; 2019 Bar Exam)
Carrying gasoline to the place where a house is to be burned is
not attempted arson. Such act is considered as preparatory to arson.
It is not punishable as attempted arson because the intent to burn is
not yet clear.
Accused manifested before his intention to burn the house of the
victim to his friends. He then performed the act of pouring gasoline
around the walls of the house to execute his criminal design to
commit arson. This is not just a preparatory act because it already
revealed a clear intention to burn the house. He even manifested his
intention prior to the commission of the crime. In this case, he
already commenced the commission of the crime of arson directly by
overt act. But he did not perform all the acts to execute his criminal
design to commit arson by setting the house on fire due to cause
other than his spontaneous desistance, and that is, having been
caught by the police.
2. Frustrated Arson — In US v. Valdes, G.R. No. 14128,
December 10, 1918, accused soaked a jute sack and a rag with
kerosene oil, set them on fire and placed them beside an upright of
the house. However, the fire had been put out on time. The offense
committed is not consummated arson because no part of the building
had been burned. He is liable for frustrated arson. The accused
performed all the acts to execute his criminal design to burn the
house. The house would have been burned as a matter of
consequence because the fire without an intervening factor would
have spread to the house. But the house was not burned due to the
timely intervention of others, who put out the fire on time. (1949 and
1967 Bar Exams)
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Valdes case is still a controlling principle since there is no case

where Supreme Court expressly abandoned it. In fact, in People v.
Bon, G.R. No. 166401, October 30, 2006 (footnote no. 73), the
Supreme Court said that it recognized the filing of frustrated arson
in the Valdes case.
However, to apply the Valdes principle, the circumstance of a case
must be similar to Valdes case. If the house is cemented, placing
burning clothes besides it will not make the accused liable for
frustrated arson since he did not yet perform all acts necessary to
execute his criminal design to burn the house. The house would not
have been burned as a matter of consequence because the fire would
not have spread to the house the same being cemented.
3. Consummated Arson — Setting the building on fire
constitutes consummated arson if portion of the building was
destroyed (People v. Gutierrez, G.R. No. 100699, July 5, 1996) or a
small portion of the house was burned. (1980 and 2000 Bar Exams)
In People v. Hernandez, G.R. No. 31770, December 5, 1929, the
Supreme Court ruled that the crime is consummated arson and not
merely frustrated arson where the building was partially burned or
has been charred.
Setting the contents of a building on fire with intent to burn the
building consummates the crime of arson of building. (US v. Go Foo
Suy, G.R. No. 8217, September 5, 1913) This can also be considered
as arson of personal properties under P.D. No. 1613.
Setting the contents of a building on fire without intent to burn
the building consummates the crime of arson of personal properties.
Stages of Rape
1. Consummated Rape — Touching of either labia majora or
labia minora of the victim’s pudendum by an erect penis capable of
penetration consummates the crime. (People v. Campuhan, G.R. No.
129433, March 30, 2000; People v. Butiong, G.R. No. 168932, October
19, 2011) If there is no touching of the labia, the crime is either
attempted rape or acts of lasciviousness depending upon the
intention of the offender. If his intention is to have sexual intercourse
with the victim, the crime is attempted rape; otherwise, it is acts of
lasciviousness.
In People v. Nuyok, G.R. No. 195424, June 15, 2015, the
commission of rape can be established by circumstantial evidence
even if the victim, being the sole witness, was rendered unconscious
during its commission. Accused slapped victim and punched her in
34 | P a g e
the stomach. She was rendered unconscious. When she regained

consciousness, she found blood in her panties, and felt pain in her
vagina. Accused was convicted of rape.
2. Acts of Lasciviousness — Kissing and undressing the victim
(People v. Sanico, G.R. No. 208469, August 13, 2014; 1959 Bar Exam)
or touching her vagina by offender’s hand (People v. Banzuela, G.R.
No. 202060, December 11, 2013) or rubbing his penis on the mons
pubis of her pudendum (People v. Abanilla, G.R. Nos. 148673-75,
October 17, 2003) is merely acts of lasciviousness because intent to
have sexual intercourse is not clearly shown.
3. Attempted Rape — To be held liable for attempted rape, it
must be shown that the erected penis is in the position to penetrate
(Cruz v. People, G.R. No. 166441, October 8, 2014) or the offender
actually commenced to force his penis into the victim’s sexual organ.
(People v. Banzuela, supra; 1983 Bar Exam) Touching her genitalia
with his hands and mashing her breasts are “susceptible of double
interpretation.” These circumstances may show that the intention of
the accused is either to commit rape or simple seduction (or acts of
lasciviousness). Since intent to have sexual intercourse is not clear,
accused could not be held liable for attempted rape. Hence, he is only
liable for acts of lasciviousness. (Cruz v. People, supra; People v.
Lamahang, G.R. No. 43530, August 3, 1935)
For there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of
the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however slight, is not
completed. (People v. Bandril, G.R. No. 212205, July 6, 2015)
4. Attempted Rape Through Sexual Assault — In People v.
Bonaagua, G.R. No. 188897, June 6, 2011, the Supreme Court ruled
that the touching of the labia of the victim’s vagina by an instrument
or object (such as tongue or finger) consummates the crime of rape
through sexual assault. (People v. Ricalde, G.R. No. 211002, January
21, 2015)
Stages of Theft or robbery
1. Constructive Possession — Taking is deemed complete from
the moment the offender gains possession over the thing. (People v.
Bustinera, G.R. No. 148233, June 8, 2004) However, actual or manual
possession of property is not required. Constructive possession of the
property by the thief is enough. (Laurel v. Abrogar, G.R. No. 155076,
February 27, 2006)
35 | P a g e
The accused by means of violence or intimidation forced the

victim to place the money on the counter in front of them. However,
they failed to pick up the money because the police authorities
arrived. Robbery is consummated. The money is already under the
control and dominion of the accused. In sum, they already acquired
constructive possession over the money. Hence, taking of the
property is already complete. (see: People v. Salvilla, G.R. No. 86163,
April 26, 1990)
2. Asportation — Asportation, which means carrying away, is
an element of larceny, a common-law crime. Taking without carrying
away is not larceny. However, the concept of larceny is different from
that of theft. (see: People v. Mercado, G.R. Nos. L-45471 and L-45472,
June 15, 1938) Article 308 of the Revised Penal Code has not adopted
asportation as an element of theft. This provision in defining theft
uses the words “shall take,” and not “shall take away” or “shall carry
away.” Hence, taking without carrying away is theft.
Jurisprudence is settled that to “take” under Revised Penal Code
on theft does not require asportation or carrying away. (Laurel v.
Abrogar, G.R. No. 155076, January 13, 2009) Theft is immediately
consummated at the precise moment that a pickpocket acquired
possession over the wallet. (Medina v. People, G.R. No. 182648, June
17, 2015) It is not an indispensable requisite of theft that the
pickpocket should carry away the wallet after he took it from its
owner. (People v. Mercado, supra) This rule is applicable to robbery.
Even though the stolen property was immediately recovered from the
robbers, the crime of robbery is consummated since they gained
possession over the property momentarily.
3. Ability to Freely Dispose the Property — In Diño case,
accused after taking the bulky goods in the compound failed to bring
them out therefrom. According to the Court of Appeals, the stage of
theft is only frustrated. It is not consummated because of the inability
of the accused to freely dispose the bulky goods. (1970 and 1993 Bar
Exams) However, the Supreme Court in Valenzuela v. People, G.R.
No. 160188, June 21, 2007 expressly abandoned the Diño case.
In Valenzuela case, the cases of Tide detergent are taken by the
accused inside SM, North. Theft is consummated even if the accused
failed to bring out the stolen goods from the parking area of SM,
which makes him unable to freely dispose it. 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.
Inability to dispose the stolen property is not an element of theft.
36 | P a g e
Unlawful taking is the element which produces the felony in its

consummated stage. Without unlawful taking, the offense could only
be attempted theft, if at all. Thus, theft cannot have a frustrated stage.
(2012 Bar Exam)
Article 308 speaks of “taking” as an element of theft. Ability to
freely dispose the property is not an element of theft. Taking is
deemed complete from the moment the offender gains possession
over the thing, even if he has no opportunity to dispose of the same.
(People v. Bustinera, G.R. No. 148233, June 8, 2004) The crime of theft
is consummated even though the offender has no ability to dispose
the property after taken it for failure to bring it out from a department
store, or dwelling or the parking area of SM. (People v. Valenzuela,
supra).
Accused was charged in the information of frustrated theft.
However, evidence shows that accused took 14 cartons of white
beauty creams from a department store, but he failed to bring them
out from the store. Applying the Valenzuela principle, theft is already
consummated even though he failed to bring out the properties from
the store. Although the evidence shows that accused committed
consummated theft, he could not be convicted of theft at the
consummated stage, since it is not alleged in the Information. Neither
could he be convicted of frustrated theft because according to the
Supreme Court in Valenzuela case theft has no frustrated stage.
Applying the variance rule, accused was convicted of the lesser crime
of attempted theft, which is necessarily included in the charge of
frustrated theft. (Canceran v. People, G.R. No. 206442, July 1, 2015)
In People v. Salvilla, G.R. No. 86163, April 26, 1990, accused took
the properties from victims by means of violence or intimidation.
However, they failed to bring out the properties from the lumber
compound due to the arrival of the police authorities. It was ruled
that robbery is consummated since ability to freely dispose the
property is not an element thereof.
In robbery by using force upon thing involving removal of locked
receptacle or furniture from the building to break it outside, the crime
will be consummated only upon actual removal of the receptacle or
furniture from the building. This is an exception to the rule.
Stages of Theft and Estafa

In United States v. Adiao, G.R. No. 13785, October 8, 1918, a
customs inspector took a leather belt from the baggage of a
passenger. He kept it in his office desk, where the other employees
37 | P a g e
found it afterwards. The crime committed is consummated theft.

Taking or acquiring possession over the property with intent to gain
consummates the crime of theft.
In U.S. v. Dominguez, G.R. No. 17021, February 23, 1921, a
salesman with intent to misappropriate the proceeds of sale failed to
surrender the money to the cashier of the complainant. He delivered
them to the cashier only after the deceit had been discovered. The
crime committed is frustrated estafa through misappropriation.
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Unlike in theft, gaining possession of the property would not

consummate the crime since damage is an important element of
estafa. The crime is frustrated inasmuch as he performed all the acts
of execution which should produce the crime as a consequence, but
which, by reason of causes independent of his will, did not produce
it, no appreciable damage having been caused to the offended party
due to the timely discovery of the acts prosecuted. (1968 Bar Exam)
In the Dominguez case, the accused was just an employee of the
complainant, and yet, he was convicted of frustrated estafa through
misappropriation. However, it is now a settled rule that possession of
employee over the property of the employer is physical, and thus,
misappropriation thereof is considered as taking, which constitutes
the crime of consummated theft. (People v. Locson, G.R. No. L-35681,
October 18, 1932; Matrido v. People, G.R. No. 179061, July 13, 2009;
Benabaye v. People, G.R. No. 203466, February 25, 2015; Chua-Burce
v. Court of Appeals, G.R. No. 109595, April 27, 2000; Balerta v. People,
G.R. No. 205144, November 26, 2014)
Formal crime — According to Justice Regalado, the crime of

physical injuries is a formal crime since a single act consummates it
as matter of law; hence, it has no attempted or frustrated stage. (2017
Bar Exam)
Accused deliberately throws acid to the face of another with intent
to blind him. In other words, his intention is to commit serious
physical injuries. However, injuries caused in the eyes of victim were
completely healed in 25 days. Accused is not liable for consummated
serious physical injuries because it did not cause blindness to the
victim. Neither is he liable for frustrated serious physical injuries
since it is a formal crime. The crime committed is less serious
physical injuries since the same require medical attendance for 10
days or more. (1969 Bar Exam)
Accused hugged the victim and tried to touch her breast. In the
process, her dress from the collar to the waistline on the front part
was torn. However, she was able to get free and moved away. The
accused desisted from following her. The crime committed is not
frustrated acts of lasciviousness. Acts of lasciviousness are always
consummated. (People v. Famularcano, CA, 43 O.G. 1721) Hugging
the victim with lewd design constitutes consummated acts of
lasciviousness. (1964 Bar Exam)
Consummation of threat - The crime of grave threat is
consummated as soon as the threats come to the knowledge of the
person threatened or as soon as the victim heard accused utter his
39 | P a g e
threatening remarks. (People vs. Bueza, G.R. No. 242513, November

18, 2020)
CONSPIRACY - Conspiracy is either a crime or a mode of incurring

criminal liability. Conspiracy contemplated in Article 8 pertains to
conspiracy as a crime, and not conspiracy as a mode of incurring
collective criminal liability.
The purpose of the concept of conspiracy as a crime is to penalize
the conspirators; while the purpose of the concept of conspiracy as a
mode of incurring criminal liability is to apply the collective
responsibility rule for the commission of the crime agreed upon.
In conspiracy as a crime, conspirators are criminally liable for
agreeing and deciding to commit a crime. In conspiracy as a mode of
incurring criminal liability, conspirators are collectively liable for the
crime committed in accordance with their agreement provided that
they performed an act in furtherance of conspiracy to commit it.
The legal effect once an express or implied conspiracy as a mode
of incurring criminal liability is proved, is that all of the conspirators
are liable as co-principals regardless of the extent and character of
their respective active participation in the commission of the crime
that they agreed to commit. They are also liable for other crimes
perpetrated in furtherance of the conspiracy. In contemplation of the
law the act of one is the act of all. (People v. Peralta, G.R. No. L-19069,
October 29, 1968; 2003 Bar Exam)
Accused are liable for two counts of rape on account of a clear
conspiracy between them. Each of them is responsible not only for
the rape committed personally by him but also for the rape
committed by the other as well. (People v. Lascano, G.R. No. 192180,
March 21, 2012)
Conspiracy does not constitute a crime if the law has not
specifically provided a penalty therefor. However, even though
conspiracy is not a crime, if the conspirators committed the crime
agreed upon, conspiracy shall be considered as a means of incurring
collective criminal liability for the crime committed. For example,
conspiracy to commit murder is not punishable. The Book Two of the
Revised Penal Code has not provided a penalty for conspiring to
commit murder. But if the conspirators committed murder, they shall
be punished for murder under Article 248, and conspiracy to commit
murder shall be considered as a mode of incurring collective criminal
liability. Because of conspiracy, the one, who stabbed and killed the
40 | P a g e
victim, the look-out and driver of the get-way vehicle are collectively
liable for murder.
On the other hand, if conspiracy to commit a crime is punishable,
but the conspirators committed the crime agreed upon, they shall be
held liable for the crime committed, and not for conspiracy to commit
it. In this situation, conspiracy will be considered not as a crime but
as a mode of incurring collective criminal liability. In sum, if the crime
agreed upon was committed, conspiracy as a crime will be converted
into conspiracy as mode of incurring collective criminal liability. For
example, conspiracy to commit rebellion is punishable. Article 136 of
the Revised Penal Code prescribes a penalty for conspiring to commit
rebellion. But if the conspirators committed rebellion, they shall be
punished for rebellion under Article 134, and not for conspiracy to
commit rebellion under Article 136. However, conspiracy shall not be
considered as a crime but a mere mode of incurring collective
criminal liability.
There are three requisites of conspiracy as a mode of incurring
collective responsibility, to wit: (1) there must be conspiracy to
commit a crime; (2) the crime agreed upon has been committed; and
(3) the conspirators to apply the collective responsibility rule to them
must perform an act in furtherance of conspiracy e.g., stabbing the
victim or acting as a lookout. However, the third requisite can be
dispensed with if the conspirator is the mastermind of the crime.
1. Act in Furtherance of Conspiracy — To make a conspirator
collectively responsible with others, it must also be established that
he performed an act in furtherance of conspiracy. A conspirator who
did not perform an act in furtherance of conspiracy to kidnap the
victim for ransom is not liable for conspiracy to commit kidnapping
for ransom since there is no law prescribing a penalty for it. Neither
is he liable for kidnapping on the basis of collective responsibility rule
because he did not perform an act in furtherance of conspiracy.
(People v. Supt. Berroya, G.R. No. 122487, December 12, 1997)
2. Mastermind — To be held liable as conspirator based on the
collective responsibility rule, it must also be shown that the accused
performed an overt act in furtherance of conspiracy except in the case
of the mastermind of a crime. (People v. Vera, G.R. No. 128966, August
18, 1999; 1987 Bar Exam) One who plans the commission of a crime
is liable as conspirator and principal by inducement. (People v.
Comiling, G.R. No. 140405, March 4, 2004, En banc) Evidence proved
that accused was the mastermind of the criminal act or the principal
by inducement notwithstanding the fact that he was not at the crime
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scene. What is important is that inducement was the determining

cause of the commission of the crime. The command or advice made
by principal by inducement was of such nature that, without it, the
crime would not have materialized. (People v. Janjalani, G.R. No.
188314, January 10, 2011)
Detaching from Conspiracy
To exempt himself from criminal liability, a conspirator must have
performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission thereof.
(Quintos v. People, G.R. No. 205298, September 10, 2014)
1. Before the Commission of the Crime — If a conspirator
dissuaded his co-conspirator from committing the crime agreed upon
(People v. Nuñez, G.R. Nos. 112429-30, July 23, 1997), or made an
effort to prevent the commission of the crime (People v. Anticamaray,
G.R. No. 178771, June 8, 2011), he is exempt from criminal liability
because he detached himself from the conspiracy.
A induced B to kill the victim for a valuable consideration. But A
tried to stop the killing by calling the police authorities before the
actual execution of the crime. A is not liable because he detached
himself from the conspiracy to commit murder.
2. The Commission of the Crime Is in Progress — If a
conspirator left the scene of the crime while its commission is in
progress and reported the incident to the police authorities, he is not
criminally liable because he detached himself from the conspiracy.
(People v. Nuñez, G.R. Nos. 112429-30, July 23, 1997) But a
conspirator left the scene of the crime while commission of robbery
with homicide is in progress without reporting the incident to the
police authorities, he is not exempt from criminal liability.
Conspiracy has already materialized; hence, there is nothing to
repudiate. (People v. De los Reyes, G.R. No. 44112, October 22, 1992)
3. After the Commission of the Crime — If the conspirator
reported the shooting incident after it had already taken place, he is
criminally liable. In legal contemplation, there was no longer a
conspiracy to be repudiated since it had already materialized. (People
v. Bacbac, G.R. No. 149372, September 11, 2007)
Imputability Doctrine - Under the doctrine of imputability, the

act of an offender is imputable to his co-conspirator although they
are not similarly situated in relation to the object of the crime.
Only a man can commit rape through sexual intercourse against
a woman. But if there is conspiracy, the act of a man in committing
42 | P a g e
rape is imputable to a woman although the latter was not similarly

situated with the former in relation to the object of the crime
committed. (People v. Dela Torre, G.R. No. 121213, January 13, 2004;
2013 Bar Exam)
The principle of conspiracy may be applied to R.A. No. 9262.
Thus, the act of violence of a man having marital relationship with a
woman is imputable to a person (mother-in-law of the victim), who
has no marital, sexual or dating relationship with the victim although
both accused were not similarly situated in relation to the object of
the crime committed. (Go-Tan v. Go, G.R. No. 168852, September 30,
2008)
Doctrine of imputability can also be applied to supply specific
criminal intent required to commit a crime. In carnapping, intent to
gain is an element thereof. But if there is conspiracy, the act of a
conspirator with intent to gain is imputable to his co-conspirator,
who has no intent to gain. Thus, all of them are liable for carnapping.
In People v. Panida, G.R. No. 127125, July 6, 1999, accused took the
tricycle of complainant. Although only accused Hora appears to have
mortgaged the motorcycle, the intent to gain on the part of all the
accused can be inferred from the unlawful taking of tricycle by them.
Moreover, “intent to gain” as an element of carnapping shall be
considered as present even though the accused intended that any
one of them should benefit or gain from the taking.
Exceptions to the Imputability Principle: Even though there
is conspiracy, the act of the wife in committing parricide is not
imputable to a stranger. For example, a wife with the help of another
killed her husband by means of poison. Since relationship is personal
to the wife, it can only be appreciated against her in accordance with
Article 62 of Revised Penal Code. Hence, the wife is liable for parricide
qualified by the circumstance of relationship and aggravated by the
circumstance of by means of poison, while the stranger is liable for
murder qualified by the circumstance of by means of poison. (People
v. Bucsit, G.R. No. 17865, March 15, 1922)
Killing of a Third Person — A conspirator is liable for a crime,
which they agreed to commit, and other crimes, which could be
foreseen and are the natural and logical consequences of the
conspiracy.
Conspirators agreed to kill the husband but not the wife in their
house. They could have foreseen the violent resistance from the wife
since they committed the crime in their house. Hence, the killing of
the wife by one conspirator because of her resistance would make the
43 | P a g e
other conspirators liable for her death although the conspiracy

merely pertained to the killing of the husband. The killing of the wife
was the natural and logical consequence of conspiracy to kill the
husband. (People v. Ventura, G.R. Nos. 148145-46, July 5, 2004)
But if the killing of a third person is unexpected or unforeseeable,
the conspirators, who had no foreknowledge of such killing, are only
liable for the crime they agreed to commit and not for the
unforeseeable killing of the third person by their co-conspirator.
(People v. Caballero, G.R. Nos. 149028-30, April 2, 2003)
Conspirator killed a visitor of the target victim without knowledge
of his co-conspirators. The killing of such visitor is neither
foreseeable nor the natural and logical consequence of the conspiracy
to kill the target victim. Hence, conspirators, who had not
participated in the killing of the visitor, are not criminally liable.
Committing Homicide or Rape in the Course of Robbery -
Case law establishes that whenever homicide has been committed by
reason of or on the occasion of the robbery, all those who took part
as principals in the robbery will also be held guilty as principals of
robbery with homicide although they did not take part in the
homicide, unless it appears that they sought to prevent the killing.
(People v. Dela Cruz, G.R. No. 168173, December 24, 2008; People v.
Castro, G.R. No. 187073, March 14, 2012; People v. Labagala, G.R. No.
221427, July 30, 2018; 1999 Bar Exam)
Once conspiracy is established between several accused in the
commission of the crime of robbery, they would all be equally liable
for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent
the others from committing rape. (People v. Suyu, G.R. No. 170191,
August 16, 2006; People v. Orosco, G.R. No. 209227, March 25, 2015;
People v. De Leon, G.R. No. 179943, June 26, 2009; People v. De Jesus,
G.R. No. 134815, May 27, 2004; People v. Ebet, G.R. No. 181635,
November 15, 2010; People v. Diu, G.R. No. 201449, April 3, 2013;
People v. Madrelejos, G.R. No. 225328, March 21, 2018; 2004 and
2012 Bar Exams)
In the course of robbery, X, one of the robbers, using a rifle shot
the responding policeman, but it accidentally hit another person,
who died as a consequence. Y and Z, co-robbers, did not attempt to
prevent X in shooting the police officer. Hence, they are liable for
special complex crime of robbery with homicide although only X shot
the police officer, resulting to the accidental death of another person.
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However, if there is no evidence that the accused is aware of the

commission of rape, he could not have prevented the rape. Hence,
the accused is only liable for robbery and not robbery with rape.
(People v. Canturia, G.R. No. 108490, June 22, 1995)
Canturia principle where lack of awareness is a defense is
applicable to kidnapping with rape (People v. Anticamaray, G.R. No.
178771, June 8, 2011; 2013 Bar Exam), kidnapping with homicide
(2006 Bar Exam), robbery with homicide (People v. Corbes, G.R. No.
113470, March 26, 1997; 1960, 1996, and 2005 Bar Exams) and
robbery with arson. (2011 Bar Exam)
Multiple Conspiracies
There are two structures of multiple conspiracies, namely: wheel
or circle conspiracy and chain conspiracy.
Under the wheel or circle conspiracy, there is a single person or
group (the “hub”) dealing individually with two or more other persons
or groups (the “spokes”). An illustration of wheel conspiracy wherein
there is only one conspiracy involved was the conspiracy alleged in
the Information for plunder filed against former President Estrada
and his co-conspirators. Former President Estrada was the hub while
the spokes were all the other accused individuals. The rim that
enclosed the spokes was the common goal in the overall conspiracy,
i.e., the amassing, accumulation and acquisition of ill-gotten wealth.
(GMA v. People, G.R. No. 220598, July 19, 2016)
Under the chain conspiracy, usually involving the distribution of
narcotics or other contraband, in which 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. (Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007;
2016 and 2017 Bar Exams)
DELITO CONTINUADO
In order that continued crime or delito continuado may exist, there
should be: (1) plurality of acts performed separately during a period
of time; (2) unity of criminal intent and purpose; and (3) unity of penal
provision infringed upon or violated. (Santiago v. Garchitorena, G.R.
No. 109266, December 2, 1993) In sum, delito continuado is composed
of several acts committed under a single criminal impulse in violation
of a single penal provision.
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1. Complex Crime and Delito Continuado - In delito

continuado, there must be several acts committed under a single
criminal impulse. In compound crime, there must be a single act
constituting two or more crimes.
In delito continuado, several acts are committed in violation of a
single penal provision, e.g., several acts of taking roosters in violation
of Article 308 of the Revised Penal Code. In complex crime, the crimes
may be committed in violation of a single penal provision or two penal
provisions, e.g., the complex crime of direct assault with homicide
violates Articles 148 and 249 of the Code while the complex crime of
double homicides violates only Article 249.
The purpose of the principle of delito continuado is to consider
several acts as a single crime. The purpose of Article 48 is to consider
several crimes as a single crime, which is called complex crime.
2. Single Penal Provision - Accused, after uttering

defamatory words against the offended party, attacked and assaulted
the latter, resulting in slight physical injuries. This is not delito
continuado since oral defamation is punishable under Article 358 and
slight physical injuries under Article 266. In sum, there is no unity
of penal provision violated, which is a requisite of a continued crime.
Hence, he is liable for slight physical injuries and oral defamation.
(People v. Ramos, 59 O.G. 4052)
3. Single Criminal Impulse or Intent - In People v. Moreno,
(C.A.) 34 OG 1767, the accused sent letter to complainant demanding
P5,000 under threat of death and burning of houses. Complainant
sent P1,000 to accused. After two months, accused sent another
letter demanding the balance of P4,000 with the same threat.
Complainant sent P2,000 to accused. After four months, accused
sent again another letter demanding balance of P2,000. Complainant
sent P1,000 to accused. After six months, accused sent another letter
demanding the balance of P1,000. Accused was arrested this time. It
was held that several acts of sending letters of demand for money
with threats to kill and burn the house of the complainant committed
under a single criminal impulse to extort P5,000 in violation of a
single penal provision on threat (under Article 283 of the Revised
Penal Code) constitute delito continuado. Note: This is called delito
continuado because the sending of the second threating letter is just
a continuation of the first, and so on and so forth.
“A” sent letter to “B” demanding P5,000 under threat of death. “B’’
sent P5,000 to “A.” After two months, “A” sent another letter to “B”
demanding P4,000 under threat of death. “B” sent P4,000 to “A.” This
46 | P a g e
is not delito continuado since the criminal impulse to extort P5,000

is different from the criminal impulse to extort P4,000.
There are as many criminal impulses to deprive liberty as there

are persons whose liberty have been deprived of. Hence, delito
continuado principle shall not apply to illegal detention committed
against several victims since the application of this rule presupposes
that there is a single criminal impulse that motivated the accused in
committing several acts in violation of a single penal provision.
Without applying the principle of delito continuado, the offender is
liable for as many kidnapping and serious illegal detention as there
are persons detained. (see: People v. Rimorin, G.R. No. 124309, May
16, 2000)
In kidnapping for ransom, the principal intent of the offender is
to deprive the victim of his liberty while the secondary intent for
purpose of imposing a higher penalty is to extort money from the
victim or any other persons such as his relatives. For purpose of
applying the delito continuado principle, one must consider the
number of criminal impulses to deprive liberty, and not the number
of criminal impulses to extort money. If the accused kidnapped five
victims to extort P2 million, he is liable for five counts of kidnapping
for ransom. Although there is a single criminal impulse to extort P2
million, there are several criminal impulses to deprive liberty as many
as there are victims kidnapped. (People v. Tadah, G.R. No. 186226,
February 1, 2012)
Several acts of taking roosters on a single occasion under a single
criminal impulse to take all of them in violation of a single penal
provision (Article 308 of the Revised Penal Code) constitute delito
continuado. (People v. Jaranilla, G.R. No. L-28547, February 22, 1974;
1963, 1973 and 1976 Bar Exams)
Several acts of taking away by violence and intimidation the
money and valuables of the employees working in Energex gasoline
station committed under a single criminal intent or general plan to
commit robbery in the gasoline station in violation of a single penal
provision (Article 294 of Revised Penal Code) constitute a continued
crime of robbery. (People v. De Leon, G.R. No. 179943, June 26, 2009)
Several acts of taking away by means of violence or intimidation
properties from several houses in a compound committed under a
single criminal impulse or general plan to commit robbery in the
compound in violation of a single penal provision (Article 294 of
Revised Penal Code) constitute a continued crime of robbery. (People
v. Dela Cruz, G.R. No. L-1745, May 23, 1950; 1996 Bar Exam)
47 | P a g e
In People v. Enguero, G.R. Nos. L-8922-24, February 28, 1957,

the accused, who robbed one house, then proceeded to another
house and committed second robbery, and then to another house
where the third robbery was committed, are held liable for three
separate crimes of robbery. In this case, the crimes were not
committed pursuant to a general plan or under a single criminal
impulse. Their criminal impulse when they committed the first
robbery is different from the criminal impulses when they decided for
the second time and third time to commit two more robberies.
In People v. Emit, CA-G.R. No. 134477, January 31, 1956, the
Court of Appeals ruled that, an accused, who ran amuck and killed
11 persons, was convicted of a single crime of murder under the delito
continuado principle because of an erroneous theory that the killings
were made under a single criminal impulse to kill. The Emit principle
is not a controlling principle. The Emit is only Court of Appeals
principle. However, in several cases, the Supreme Court is not
following the delito continuado principle involving several killings.
Settled is the rule that there are as many criminal impulses to kill
as there are persons killed. Hence, delito continuado principle shall
not apply to homicide or murder committed against several victims
since the application of this rule presupposes that there is a single
criminal impulse that motivated the accused in committing several
acts in violation of a single penal provision. Without applying the
principle of delito continuado, the offender is liable for as many
homicides or murders as there are persons killed. In People v. Toling,
G.R. No. L-27097, January 17, 1975 and People v. Salazar, G.R. No.
L-11601, June 30, 1959, the Supreme Court convicted the accused,
who ran amuck, for as many crimes as there are persons killed. (see
also: People v. Doniego, G.R. No. L-17321, November 29, 1963; People
v. Feliciano, G.R. Nos. 127759-60, September 24, 2001)
There are as many criminal impulses to defraud as there are
persons defrauded. Hence, delito continuado principle shall not apply
to estafa committed against several victims since the application of
this rule presupposes that there is a single criminal impulse that
motivated the accused in committing several acts in violation of a
single penal provision. Without applying the principle of delito
continuado, the offender is liable for as many counts of estafa or
syndicated estafa as there are victims defrauded.
As a general rule, there are as many criminal impulses to defraud
as there are persons defrauded. However, there is an exception to the
rule. In Mallari v. People, G.R. No. L-58886, December 13, 1988,
48 | P a g e
accused falsified mortgage contracts to deceive complainant to part

P3,000. Since the latter had only P1,500 at that time he convinced
his mother-in-law to shell out an additional amount of P1,500. The
accused was convicted of delito continuado of estafa since he
committed two acts of receiving moneys from two victims under a
single criminal impulse to defraud the first victim in the amount of
P3,000 in violation of a single penal provision. (Article 315 of the
Revised Penal Code) The fact that the first victim, who the accused
solely intended to defraud, asked additional money from his mother-
in-law, will not split the criminal impulse of the accused into two.
There is no delito continuado if the sexual abuses under R.A. No.
7610 are committed on two different occasions simply because the
criminal impulse of the accused when he committed this crime on
the first occasion is different from that when the same was replicated
on a second occasion. In People v. Lavides, G.R. No. 129670,
February 1, 2000, each incident of sexual intercourse and lascivious
act with the same child exploited in prostitution or subjected to other
sexual abuse is a separate and distinct offense under Section 5(b) of
R.A. No. 7610. The offense is similar to rape or act of lasciviousness
under the Revised Penal Code in which each act of rape or lascivious
conduct committed against the same victim should be the subject of
separate Information.
4. Single Larceny Rule - Under the “single larceny” doctrine,
the taking of several things, whether belonging to the same or
different owners, at the same time and place constitutes but one
larceny or theft. (Santiago v. Garchitorena, supra) Single larceny rule
is specie of delito continuado, which is specifically applicable to theft.
In People v. Tumlos, G.R. No. 46428, April 13, 1939, En Banc, the
theft of the 13 cows owned by six complainants involved 13 acts of
taking. However, the acts of taking took place at the same time and
at the same place; consequently, accused performed but one act. The
intention was likewise one, that is, to take for the purpose of
appropriating or selling the 13 cows which he found grazing in the
same place. The fact that eight of said cows pertained to one owner
and five to another does not make him criminally liable for as many
crimes as there are owners, for the reason that in such case neither
the intention nor the criminal act is susceptible of division.
Single larceny rule or delito continuado principle is not applicable
to violence against women under R.A. No. 9262 or sexual abuse
under R.A. No. 7610 committed on two different occasions simply
because the criminal impulse of the accused when he committed this
49 | P a g e
crime on the first occasion is different from that when the same was
replicated on a second occasion. In Dinamling v. People, G.R. No.
199522, June 22, 2015, psychological violence committed by the
husband against his wife on two different occasions constitutes two
counts of violence against women under R.A. No. 9262. (2015 Bar
Exam on Remedial Law)
5. Foreknowledge Principle - In Gamboa v. Court of Appeals,
G.R. No. L-41054, November 28, 1975, accused cannot be held to
have entertained continuously the same criminal intent in making
the first abstraction on October 2, 1972 for the subsequent
abstractions on the following days and months until December 30,
1972, for the simple reason that he has no foreknowledge of any
deposit by any customer on any day or occasion and which would
pass on to his possession and control. At most, his intent to
misappropriate may arise only when he comes in possession of the
deposits on each business day but not in the future, since petitioner
company operates only on a day-to-day transaction. As a result, there
could be as many acts of misappropriation as there are times the
private respondent abstracted and/or diverted the deposits to his
own personal use and benefit. (People v. Dichupa, G.R. No. L-16943,
October 28, 1961)
If the accused committed the first criminal act without
foreknowledge that he will commit the second, the acts are not
constitutive of a continued crime since the criminal acts could not be
said to have been committed under a single criminal intent or
impulse.
The series of acts committed against the seven lot buyers was not
the product of a single criminal intent. The misrepresentation or
deceit was employed against each lot buyer on different dates and in
separate places, hence they originated from separate criminal intents
and consequently resulted in separate felonies. Moreover, after the
commission of one estafa, the accused could not have had the
foreknowledge as to when or whether they could replicate the same
felony against another victim. (Ilagan v. Hon. Court of Appeals, G.R.
No. 110617, December 29, 1994)
X as punong barangay was angered when he discovered a tap
from the main line of the public water tank. On separate occasions,
X threatened to kill and crack the skulls of three suspects, A, B, and
C. There is no continued crime of grave threat since the three crimes
were not committed under a single criminal impulse. X has no
foreknowledge that he will chance upon the second and third victims
50 | P a g e
at the time he was committing the first threat. Several threats can
only be considered as continued crime if the offender threatened
three individuals at the same place and at the same time. (Paera v.
People, G.R. No. 181626, May 30, 2011)
COMPOUND CRIME
Compound crime is composed of two or more grave or less grave
felonies produced by a single act.
51 | P a g e
1. Multiple Murders - The single act of rolling the hand grenade

on the floor of the gymnasium, which resulted in the death of the
victims, constituted a compound crime of multiple murders. (People
v. Mores, G.R. No. 189846, June 26, 2013) When the killing is
perpetrated with treachery and by means of explosives, the latter
shall be considered as a qualifying circumstance. Since the use of
explosives is the principal mode of attack, reason dictates that this
attendant circumstance should qualify the offense instead of
treachery which will then be considered merely as a generic
aggravating circumstance. (People v. Comadre, G.R. No. 153559, June
8, 2004; 1991 and 2008 Bar Exams)
The single act of running over the victims with a van constitutes
compound crime of multiple murders. (People v. Punzalan, Jr., G.R.
No. 199892, December 10, 2012)
2. Single Act of Pressing the Trigger - Single act of pressing

the trigger of a Thompson or armalite rifle is treated as several acts
as many as there are bullets fired from the gun. Because of special
mechanism of this firearm, the single act of pressing its trigger will
cause the continuous firing of bullets. Thus, the accused is liable for
as many homicides as there are victims. (People v. Desierto, [C.A.] 45
O.G. 4542; People v. Sanchez, G.R. No. 131116, August, 27, 1999)
4. Complex Crime of Robbery by Means of Violence and
Intimidation and Robbery by Using Force upon Things - In People
v. Sebastian, G.R. No. L-2725, February 27, 1950, the Supreme
Court ruled that when the elements of both robbery by means of
violence and intimidation and robbery by using force upon things are
present, the accused shall be held liable for the former since the
controlling qualification is violence and intimidation.
However, the penalty for robbery in an inhabited house if the
robber is armed is as a rule graver than simple robbery. Hence, by
hurting the victim, the offender shall be penalized with a lighter
penalty. In People v. Napolis, G.R. No. L-28865, February 28, 1972,
En Banc, the Supreme Court expressly abandoned the Sebastian
doctrine. It was held that imposing a much lighter penalty if violence
upon person is used in addition to forcible entry in committing
robbery defies logic and reason. When the elements of both robbery
by means of violence and intimidation and robbery by using force
upon things are present, the crime is a complex one under Article 48
of the Revised Penal Code. Hence, the penalty for robbery in an
52 | P a g e
inhabited house shall be imposed in its maximum period. (1972 and

1973 Bar Exams)
In People v. Disney, G.R. No. L-41336, February 18, 1983, En
Banc, and Fransdilla v. People, G.R. No. 197562, April 20, 2015, the
Supreme Court reaffirmed the Napolis doctrine.
To apply the Napolis principle, it is important that the robbers
entered the dwelling by using force upon things such as unlawful
entry or breaking the window. If the robbers entered the dwelling
through an open door or there is no showing how they entered the
dwelling, Napolis principle will not apply since they did not commit
robbery by using force upon things that can be complexed with
robbery by means of violence or intimidation. In this situation, the
crime committed is simple robbery with the aggravating
circumstance of dwelling. (People v. Tejero, G.R. No. 128892, June 21,
1999; People v. Evangelio, G.R. No. 181902, August 31, 2011)
It is submitted that Napolis doctrine is not applicable if homicide
is committed by reason or on occasion of robbery by means of
violence or intimidation and robbery by using force upon thing. In
sum, if the elements of both robbery by using force upon thing, and
special complex crime of robbery with homicide are present, the
applicable rule is doctrine of absorption or the De Leon doctrine and
not the Napolis principle. Robbery by using force upon things
committed by reason of or on the occasion of the robbery by means
of violence or intimidation shall form part of the special complex crime
of robbery with homicide.
SINGLE ACT RULE - Compound crime is composed of several crimes
produced by a single act. Thus, if there are several acts involved in
killing several victims, there is no compound crime. Article 48
requires a single act producing several crimes. (People v. Toling, G.R.
No. L-27097, January 17, 1975; People v. Pineda, G.R. No. L-26222,
July 21, 1967)
When various victims expire from separate shots, such acts
constitute separate and distinct crimes. (People v. Tabaco, G.R. Nos.
100382-100385, March 19, 1997; 2012 Bar Exam)
There are two exceptions to the single act rule, to wit: the Lawas
principle and Abella principle.
1. Single Criminal Impulse — In People v. Lawas, L-7618-20,
June 30, 1955, if several accused killed several victims pursuant to
a single criminal impulse to obey the order of their commander to fire
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their guns at the victims, they shall be held liable for compound crime
of multiple murders.
Under Lawas case, several acts in killing several victims under a
single criminal impulse shall be considered as a single act. Hence, it
is a compound crime. However, the Lawas doctrine is more of an
exception than a general rule. (People v. Remollino, G.R. No. L-14008,
September 30, 1960) To apply Article 48 on compound crime, there
must be singularity of criminal act; singularity of criminal impulse is
not written into the law. (People v. Pineda, G.R. No. L-26222, July 21,
1967)
In Lawas case, the Supreme Court was merely forced to convict
the accused of a compound crime because of the impossibility of
ascertaining the number of persons killed by each accused. (People
v. Nelmida, G.R. No. 184500, September 11, 2012) Hence, to apply the
single criminal impulse rule, the circumstance of a case must be
similar to that in Lawas case. The Lawas principle should only be
applied in a case where: (1) it is impossible to ascertain the number
of deaths caused by each accused and (2) there is no conspiracy.
(People v. Hon. Pineda, G.R. No. L-26222, July 21, 1967)
When one fires his firearm in succession, killing and wounding
several persons, the different acts must be considered as distinct
crimes. The Lawas is not applicable because there is only one
accused, who killed the victims. In sum, the circumstance of
“impossibility of ascertaining the number of persons killed by each
accused” on which the application of the Lawas is based is not
obtaining in this case. (People v. Remollino, G.R. No. L-14008,
September 30, 1960)
The Lawas doctrine should not also be applied if there is
conspiracy since the number of victims actually killed by each
conspirator is not anymore material. (People v. Elarcosa, G.R. No.
186539, June 29, 2010)
The Emit principle should not be confused with the Lawas
principle. In Emit, several acts of killing under the single criminal
impulse to kill were treated as delito continuado. In Lawas, several
acts of killing under a single criminal impulse to obey the order of their
commander were treated as a single act constituting a compound
crime. As discussed above, Emit is already an abandoned principle.
On the other hand, Lawas is still controlling rule provided there is
no conspiracy and it is impossible to ascertain the number of deaths
caused by each accused.
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2. Single Criminal Purpose — In People v. Abella, G.R. No. L-

32205, August 31, 1979, if several prisoners killed fellow prisoners
pursuant to a single criminal purpose to take revenge, they shall be
held liable for compound crime of multiple murders.
In sum, under the Abella rule, several acts in killing several
victims under single criminal purpose shall be considered as a single
act. Hence, it is a compound crime. However, the Abella doctrine is
more of an exception than a general rule. To apply Article 48 on
compound crime, there must be singularity of criminal act;
singularity of criminal purpose is not written into the law.
In Abella case, the Supreme Court convicted the accused of a
compound crime because of the plight of the prisoners. Hence, to
apply the single criminal purpose rule, the circumstance of a case
must be similar to that in Abella case. The Abella principle should
only be applied in a case where (1) there is conspiracy and (2) the
killings where perpetrated by prisoners against fellow prisoners.
To apply the Lawas principle, it is important that there is no
conspiracy. However, to apply the Abella, there must be conspiracy
that animates several persons to commit crimes under a single
criminal purpose.
The “single purpose rule” was adopted in consideration of the
plight of the prisoners; hence, it is only applicable if the offenders
committed the crimes in prison against their fellow prisoners. (People
v. Pincalin, G.R. No. L-38755, January 22, 1981; People v. Nelmida)
COMPLEX CRIME PROPER - Complex crime proper is composed of

two or more crimes one or some of which are necessary means to
commit the other.
Indispensable means is not within the contemplation of the
phrase “necessary means” in Article 48. A crime, which is an
indispensable means to commit another crime, is an element of and
absorbed by the latter. (David v. People, G.R. No. 208320, August 19,
2015) Thus, one, who committed murder, which is an indispensable
means to commit treason, is not liable for complex crime of treason
through murder. The crime committed is only treason, while murder
is absorbed therein. (People v. Labra, G.R. No. L-886, August 10, 1948)
Means to conceal a crime is not within the contemplation of the
phrase “necessary means to commit a crime” in Article 48. One, who
committed arson to conceal homicide, is liable for separate crimes of
homicide and arson and not a complex crime proper of homicide
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through arson. (People v. Bersabal, G.R. No. 24532, December 11,

1925) An accountable public officer, who falsified vouchers to conceal
the crime of malversation, is liable for two distinct crimes of
falsification of public document and malversation, and not a complex
crime proper of malversation through falsification of document.
(People v. Sendaydiego, G.R. Nos. L-33252-54, January 20, 1978)
1. Seduction Through Usurpation of Function - In U.S. v.

Hernandez, G.R. No. L-9405, December 24, 1914, accused who
seduced a 15-year old girl to live with him by procuring the
performance of a fictitious marriage ceremony with the help of his
friend, who pretended to be a Protestant minister, was held liable for
the complex crime proper of simple seduction through usurpation of
official function. Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor. (1985 Bar Exam)
The case of Hernandez was decided prior to the effectivity of the

Revised Penal Code. At that time, a religious official such as a bishop
is a person in authority within the purview of the Old Penal Code.
(U.S. v. Smith, G.R. No. 14057, January 22, 1919) However, Article
152 of the Revised Penal Code does not include religious minister as
a person in authority. Hence, performing the function of a religious
minister in solemnizing marriage is not anymore constitutive of
usurpation of official function of a person in authority under Article
177 of the Code.
It is submitted that the crime committed in Hernandez case is
now illegal marriage under Article 350 of the Revised Penal Code with
the qualifying circumstance of fraud.
SPECIAL COMPLEX CRIME AND COMPLEX CRIME - Special

complex crime and complex crime are distinguished as follows:
(1) In a special complex crime, the composition of the offenses is
fixed by law; in a complex or compound crime, the combination of
the offenses is not specified but generalized, that is, grave and/or
less grave, or one offense being the necessary means to commit the
other;
(2) For a special complex crime, the penalty for the specified
combination of crimes is specific; for a complex or compound crime,
the penalty is that corresponding to the most serious offense, to be
imposed in the maximum period; and
(3) A light felony that accompanies a special complex crime is
absorbed; a light felony that accompanies the commission of a
56 | P a g e
complex or compound crime may be the subject of a separate

information. (People v. Villaflores, G.R. No. 184926, April 11, 2012;
People v. Salga, G.R. No. 233334, July 23, 2018; 2005 Bar Exam)
In the course of having sexual intercourse through force, the
victim died. This single act of having sexual intercourse, which
produced rape and homicide, constitutes a complex crime under
Article 48 of the Revised Penal Code and a special complex crime
under Article 266-B. However, the offender cannot be prosecuted
under both provisions. It is a settled rule on statutory construction
that if there is a conflict between general provision and specific
provision, the latter shall prevail over the former. Article 266-B on
special complex crime of rape with homicide is a specific provision
while Article 48 on complex crime is a general provision. Hence, the
rapist must be held liable for special complex crime of rape with
homicide under Article 266-B.
Special complex crime is composed of two or more crimes where
the law prescribes as single penalty. The essence of a special complex
crime is the singularity of the penalty prescribed by law although
there is more than one crime committed. Compound crime is
composed of two or more grave or less grave felonies produced by a
single act. The essence of a compound crime is singularity of the act
although there is more than one crime produced.
Unlike a compound crime, special complex crime can be
committed even though its components are not produced by a single
act, e.g., robbery with rape is a special complex crime although they
are not produced by a single act.
Unlike in a complex crime proper, special complex crime can be
committed although its secondary component is not a necessary
means to commit its principal component, e.g., robbery with rape is
a special complex crime although rape is not a necessary means to
commit robbery.
DOCTRINE OF ABSORPTION - One of the rules that requires

imposition of single penalty for multiple crimes is the doctrine of
absorption, under which one crime absorbs another if the latter is
inherent in, an element of, or a necessary consequence of the
commission of the former. A crime is considered inherent where its
commission is an indispensable means to commit another.
If two crimes are subject to the doctrine of absorption, the
principal crime will absorb the secondary crime. The court can
neither convict the accused for these two crimes because of the rule
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on double jeopardy nor combine them to form a complex crime to

increase the penalty. (People v. Prieto, G.R. No. L-399, January 29,
1948)
A person who by means of violence coerces a lady to have sexual

intercourse with him should not be held liable for physical injuries
and coercion in addition to rape. Physical injuries are necessary
consequence of the employment of violence, which is an element of
rape, while coercion is inherent therein. Hence, physical injuries and
coercion are absorbed in rape.
The essential elements of a given crime cannot be disintegrated
in different parts, each one to stand as a separate ground to convict
the accused of a different criminal offense. The elements constituting
a given crime are integral and inseparable parts of a whole. In
contemplation of law, they cannot be used for double or multiple
purposes. They can only be used for the sole purpose of showing the
commission of the crime of which they form part. (People v. Labra,
G.R. No. L-886, August 10, 1948) The nature of a crime, which
contains criminal components, does not endow it with the functional
ability of worm multiplication or amoeba reproduction.
One who enters an inhabited house by using picklock and takes

properties therein without consent of its owner should not be held
liable for illegal possession of picklock and trespass to dwelling in
addition to robbery in an inhabited house. Use of picklock to enter
into a dwelling is a constructive force upon things that will qualify
the taking into robbery in an inhabited house. Since use of picklock
and entry in dwelling are elements of robbery by using force upon
things, illegal possession of picklock and trespass to dwelling are
absorbed in robbery.
Simulation of authority constitutes the crime of usurpation of
authority or function under Article 177 of the Revised Penal Code,
qualifying circumstance of simulating public authority in kidnapping
under Article 267, qualifying circumstance of pretending the exercise
of public authority in robbery by using force upon things in Article
299, and aggravating circumstance of disguise under Article 14.
Crime is absorbed if it is a mere incident in the commission of
another crime.
The accused, who struck the offended parties while
simultaneously threatening to kill them if they would not return him
the jewelry they have lost, was held liable for slight physical injuries.
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The threat was considered as part of the assault. (U.S. v. Sevilla, G.R.
No. 457, February 18, 1902)
In People v. Yebra, G.R. No. L-14348, September 30, 1960, it was
held that defamatory statement (e.g., fooling the barrio) in a letter
containing threat to kill is not a separate crime. The defamation was
just a part of the crime of threat. The letter containing the libelous
remarks is more threatening than libelous; the intent to threaten is
the principal aim and object of the letter. The libelous remarks are
merely preparatory remarks culminating in the final threat.
SPECIAL COMPLEX CRIME, COMPLEX CRIME AND DOCTRINE

OF ABSORPTION
If the offender committed several crimes, the court must consider
if they can be merged together to form a special complex crime, or
complex crime, or if the principal crime can absorb the other crimes.
If the provisions on special complex crime, Article 48 on complex
crime and doctrine of absorption are not applicable, then the court
shall convict the accused of separate crimes.
If the accused abducted the victim to kill him and in fact the
victim is killed, the former is liable for special complex crime of
kidnapping with homicide. (People v. Mercado, G.R. No. 116239,
November 29, 2000; People v. Elizalde, G.R. No. 210434, December 5,
2016) If the accused kidnapped the victim to kill him, and in the
course of the detention, shot the victim, who survived despite of the
mortal wound that he sustained, the accused cannot be convicted of
a special complex crime of kidnapping with frustrated murder. There
exists no such crime under Article 267 of the Revised Penal Code.
However, since kidnapping is a necessary means to commit
frustrated murder, the accused is liable for a complex crime proper
of frustrated murder through kidnapping. (People v. Roxas, G.R. No.
172604, August 17, 2010)
There is no special complex crime of robbery with attempted rape

under Article 294 of the Revised Penal Code. These crimes cannot be
merged together to form a complex crime of robbery with attempted
rape because robbery cannot be a necessary means to commit
attempted rape; neither can attempted rape be a necessary means to
commit robbery; and both crimes cannot be the result of a single act.
Hence, the accused should be held liable of separate crimes of
attempted rape and robbery. (People v. Cariaga, C.A., 54 O.G. 4307)
There is no special complex crime of attempted robbery with
frustrated homicide or with serious physical injuries under Article
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297 of the Revised Penal Code. But if frustrated homicide or serious

physical injuries are necessary means to commit attempted robbery,
the accused can be convicted of a complex crime proper of attempted
robbery with frustrated homicide (People v. Cagongon, 74 OG 59, No.
1, January 2, 1978) or attempted robbery with serious physical
injuries. (People v. Villanueva, CA-G.R. No. 2676, May 31, 1939)
In US v. De Los Santos, G.R. No. 2767, August 30, 1906, the
beating of one of the persons robbed was for the purpose of
compelling him to show, as he did show to the robbers, the place
where he kept his money, something he refused to do at first, and
which the robbers would not have been able to ascertain had they
not resorted to this violence. It cannot therefore, be maintained, that
the violence exercised upon the person robbed was absolutely
necessary for the execution of the crime.
Thus, the crime committed in the De Los Santos case is simple
robbery, which is not a special complex crime. Simple robbery
absorbs physical injuries since the latter is an inherent consequence
of violence, which is necessary for the commission of robbery.
In People v. Alvarado, Jr., G.R. No. L-29230, July 25, 1983, the
law does not authorize the imposition of a separate penalty for the
injuries inflicted upon persons in the course of the robbery since the
physical injuries suffered by them are but the overt manifestations
of the violence employed and are inherent in the crime of robbery
with violence against persons. For this reason, only one penalty
should be imposed upon the accused.
It should be noted that Article 294 has five paragraphs that cover
serious, less serious or slight physical injuries perpetrated as a
means to commit robbery. Because of these comprehensive rules on
robbery with physical injures, there are no occasions where the
offender can be convicted of a complex crime of robbery with physical
injuries under Article 48 or separate crimes of robbery and physical
injuries. In fact, physical injuries as a result of unnecessary violence
committed in the course of robbery is still covered by Article 294.
In People v. Acosta, G.R. No. 40903, April 28, 1934, the accused
raped the victim and infected her with sexually transmitted disease
(STD). As a consequence, she died. Accused was convicted of a
compound crime of rape with homicide under Article 48 of the
Revised Penal Code. Under Article 335 of the Code, there was no
special complex crime of rape with homicide.
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Acosta principle is not anymore controlling. Under Article 266-B

of the Revised Penal Code as amended by R.A. No. 8353, if the victim
died due to STD acquired in the course of rape, the offender is liable
for special complex crime of rape with homicide. If such victim
survived, the offender is liable for qualified rape with the
circumstance of STD infection.
If the victim suffered injuries as a consequence of the use of force
to sexually penetrate the victim, the crime of rape absorbs physical
injuries since the latter is an inherent consequence of using force,
which is an element of the former. In People v. Pabol, G.R. No.
187084, October 12, 2009, the accused inflicted injuries on the
victim, and as a result, she was rendered unconscious. Then,
accused raped the victim. Accused was charged with complex crime
of rape with less serious physical injuries. The trial court found the
accused guilty of simple rape only. The accused was not convicted of
complex crime of rape with less serious physical injuries because
according to the trial court that when a rapist employs force the rape
victim will invariably sustain injuries. The Supreme Court sustained
the conviction.
If the victim suffered serious physical injuries due to choking,
which is simultaneously committed with rape, the offender is liable
for complex crime of rape with serious physical injuries. The acts,
which were simultaneous, were considered as a single act producing
rape and serious physical injuries, and thus, constituted of
compound crime of rape with homicide under Article 48. (People v.
Yu, G.R. No. L-13780, January 28, 1961) If the victim died due to
choking, which is simultaneously committed with rape, the offender
is liable for special complex crime of rape with homicide.
When in the commission of the crime of rape, the victim sustained
serious or less serious physical injuries on her genital organ, offender
is liable for a complex crime of rape with physical injuries under
Article 48 of the Code. (People v. Apiado, G.R. No. 31075, August 12,
1929) In US v. Andaya, G.R. No. 11477, August 8, 1916, forcible
sexual intercourse resulting in less serious physical injuries on the
genital parts of the victim was considered as complex crime proper.
However, CA Justice Luis B. Reyes and Justice Florenz D. Regalado
correctly maintain that it is a compound crime for having been
produced by a single act.
When in the commission of the crime of rape, the victim sustained
slight physical injuries on her genital organ, offender is only liable for
rape. Since slight physical injuries is inherent in rape, the latter
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absorbs the former. (People v. Apiado, G.R. No. 31075, August 12,
1929) Moreover, slight physical injuries for being a light felony cannot
be made a component of a compound crime since Article 48 speaks
of single act constituting two or more grave or less grave felonies.
In People v. Isla, G.R. No. 199875, November 21, 2012, with
respect to the stabbings, it appears that the accused committed two
acts. The first was while he was ravishing AAA. The Court considers
this and the rape as one continuous act, the stabbing being
necessary, as far as he was concerned, for the successful
perpetration of the crime. When the accused testified, he claimed that
he had to use the knife so he could have sexual intercourse with her.
The second stabbing took place after consummation of the rape act.
According to AAA, after her defilement, she noticed the knife bloodied
and she tried to wrest it from him. In their struggle, she was stabbed
under her lower left breast but she was able to force the accused to
drop the knife. This second stabbing is a separate and distinct offense
(frustrated homicide) as it was not a necessary means to commit the
rape. It was intended to do away with her life.
PARTICIPATION
Chief actor - Criminal or chief actor is the person who actually

committed the crime. He is the one who committed or omitted the
act, which causes the criminal result. He directly perpetrated the
acts, which constitute the crime. With or without conspiracy, the
chief actor is a principal by direct participation.
Criminal participator - Criminal participator is the offender who

participated in committing a crime by indispensable or dispensable
act. He performed an act, which is not constitutive of felony but
intended to give moral or material aid to the chief actor.
(1) With conspiracy - If there is conspiracy, the criminal

participator or cooperator is a principal by direct participation. The
act of the chief actor is considered the act of the criminal
participator.
(2) Without conspiracy - If there is no conspiracy, criminal

participator may be held liable as principal by indispensable
cooperation, accomplice or accessory depending upon the nature
and time of participation. A criminal participator may participate
in the commission of the crime by previous, simultaneous and/or
subsequent acts.
(a) Previous or simultaneous acts– The criminal participator

by previous or simultaneous acts is liable either as principal by
indispensable cooperation or accomplice. If the cooperation is
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indispensable, the participator is a principal by indispensable

cooperation; if dispensable an accomplice.
(b) Subsequent acts – The criminal participator by

subsequent acts is liable as an accessory. An accessory does
not participate in the criminal design, nor cooperate in the
commission of the felony, but, with knowledge of the
commission of the crime, he subsequently takes part by any of
the three modes under Article 19.
The liability of accessory and principal should also be

considered as quasi-collective. It is quasi-collective in the sense that
the principal and the accessory are liable for the felony committed
but the penalty for the latter is two degrees lower than that for the
former.
CONSPIRACY AND COMMUNITY OF DESIGN –If there is

conspiracy, conspirators are liable as principals regardless of the
time and nature of participation. It is immaterial whether accused
acted as a principal or as an accomplice because the conspiracy and
his participation therein have been established. In conspiracy, the
act of one is the act of all and the conspirators shall be held equally
liable for the crime (People vs. Siongco, G.R. No. 186472, July 5,
2010). If there is community of design, the participator, who knows
and concurred in the criminal design of the principal by direct
participation, is liable as accomplice or principal by indispensable
cooperation depending upon the nature of participation. If the
previous or simultaneous participation consist of supplying material
or moral aid in an efficacious way, he is liable as accomplice. If the
participation is indispensable in the commission of the crime, he is
liable as principal by indispensable cooperation.
A, B and C were walking when they saw X, mortal enemy of A.

A suddenly shot X. While X is dying, B and C also shot him. There is
no conspiracy in this case since there is no prior agreement among
A, B and C to kill X. However, even without conspiracy they are liable
as principals by direct participation on the basis of their independent
acts of shooting X.
A for consideration induced B to kill X. Instead of killing X, B

induced C to kill X. C killed X. C is liable for murder qualified by the
circumstance of reward, promise or consideration as principal by
direct participation while B is liable as principal by inducement.
However, A is not liable as principal by inducement because C killed
X not because of the inducement of A, but by reason of the
inducement of B.
ACCOMPLICE AND CONSPIRATOR – Conspirators and

accomplices are distinguished as follows (2007 and 2013 Bar Exams):
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Conspirators agreed and decided to commit the crime; in sum,

their collective responsibility is based on conspiracy. Accomplices
acquire knowledge and concur with the criminal design of the
conspirators after the latter reached a decision; in sum, their quasi-
collective responsibility is based on community of design.
Conspirators to be held liable on the basis of collective
responsibility must perform an act in furtherance of conspiracy such
as providing active participation or moral assistance or exerting
moral ascendency. Accomplices must supply material or moral aid in
an efficacious way.
The nature and time of participation of conspirators is not
important. The participation of the accomplices must be previous or
simultaneous to the commission of the crime but it must not be
indispensable to the commission thereof; otherwise, they are liable
as principal by indispensable cooperation.
In People v. De Vera, G.R. No. 128966, August 18, 1999, accused

knew that the chief actor had intended to kill victim at the time, and
he cooperated in the killing by acting as a lookout. But he himself did
not participate in the decision to kill victim; that decision was made
by chief actor and the others. He joined them that afternoon after the
decision to kill had already been agreed upon; he was there because
“nagkahiyaan na.” Significantly, the plan to kill could have been
accomplished without him. It should be noted further that he alone
was unarmed that afternoon. He is liable as an accomplice.
Conspirators - It is immaterial whether accused acted as a

principal or an accomplice. What really matters is that the conspiracy
was proven and he took part in it. Without the participation of
accused, the offense would not have been committed. He was the one
who paved the way for victim to board the vehicle and his closeness
with the victim led the latter to trust the former, thus, accomplishing
their devious plan of kidnapping him. Consequently, the conspirators
shall be held equally liable for the crime, because in a conspiracy the
act of one is the act of all (People vs. Cruz, Jr., GR No. 168446,
September 18, 2009).
Lending weapon such a gun to a killer for purpose of killing a

specific person such as Pedro is an act of accomplice. But if the killer
used the weapon in killing a different person such as Juan, the lender
is not liable as an accomplice. To be held liable as an accomplice, it
is important that that he knows and concurs in the criminal design
of the principal and participates before or during the commission of
the crime by supplying moral or material aid in an efficacious way.
In sum, there must be a community of design between the
accomplice and principal. In this case, the lender concurred in the
killing of Pedron but not Juan. Hence, he is not liable as an
64 | P a g e
accomplice. If the killer used another weapon such as knife instead

of the gun borrowed in killing Pedro, the lender is not liable as an
accomplice. Although the lender concurred in the killing of Pedro, he
did not supply the killer material or moral aid in an efficacious way
since the weapon used is not the one borrowed from him.
In case of doubt - The line that separates a conspirator by

concerted action from an accomplice by previous or simultaneous
acts is indeed slight. Accomplices do not decide whether the crime
should be committed; but they assent to the plan and cooperate in
its accomplishment. The solution in case of doubt is that such doubt
should be resolved in favor of the accused. When there is doubt as to
whether accused is guilty as principal or accomplice, it should be
resolved in favor the "milder form of responsibility." He should be
given the benefit of the doubt and can be regarded only as an
accomplice (People vs. Eusebio, G.R. No. 182152, February 25,
2013).
ACCESSORY -It is not necessary that the principal should be first

declared guilty before an accessory can be made liable as such
(People vs. Billon, C.A., 48 O.G. 1391). One can be held liable as an
accessory even if the principal was not convicted because he is at
large (People vs. Inovera, 65 O.G. 3168); or he died or is unidentified,
or was acquitted due to technicality (Vino vs. People, G.R. No. 84163,
October 19, 1989) The corresponding responsibilities of the principal,
accomplice, and accessory are distinct from each other. As long as
the commission of the offense can be duly established in evidence,
the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal (People vs. Bayabos,
G.R. No. 171222, February 18, 2015).
The English text of Article 19 of RPC, which provides “whenever

the author of the crime is guilty of treason x x x.”, is an inaccurate
translation of the Spanish text. Settled is the rule that the Spanish
text prevail over the English text (People vs. Billon).
Concealing or destroying the body of the crime, or the effects or

instruments thereof to prevent its discovery, which will make one
liable as an accessory, is not just a mere omission to report the crime
to police authorities but it involves a positive act of destroying or
concealing the corpus delict such as burning the dead body of a
murdered victim or throwing it into the river (People vs. Devaras, G.R.
Nos. 100938-39, December 15, 1993) or enjoining a witness not to
reveal what he knew about the crime (People vs. Talingdan, G.R. No.
L-32126, July 6, 1978, En Banc).
II. JUSTIFYING CIRCUMSTANCES
SELF-DEFENSE, DEFENSE OF RELATIVE, AND DEFENSE OF

STRANGER - Anyone who acts in defense of his person or rights does
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not incur criminal liability provided that the following circumstances

concur: (1) unlawful aggression; (2) reasonable necessity of the
means employed to prevent or repel it; and (3) lack of sufficient
provocation on the part of the person defending himself. (Article 12[1]
of the Revised Penal Code; People v. Roxas, G.R. No. 218396, February
10, 2016)
To justify the crime committed by an accused against an unlawful
aggressor in defense of his relative under Article 11(2), the following
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elements must concur: (1) Unlawful aggression against a relative; (2)

Reasonable necessity of the means employed to prevent or repel it;
and (3) Lack of participation in relative’s provocation.
To justify the crime committed by an accused against an unlawful
aggressor in defense of a stranger under Article 11(3), the following
elements must concur: (1) Unlawful aggression against a stranger;
(2) Reasonable necessity of the means employed to prevent or repel
it; and (3) The person defending (accused) be not induced by revenge,
resentment, or other evil motive.
The relatives of the accused for purpose of defense of relative
under Article 11(2) are his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or of his relatives
by affinity in the same degrees, and those by consanguinity within
the fourth civil degree. If the victim of unlawful aggression is not
mentioned in Article 11(2), he is a stranger. Thus, a relative by affinity
within the fourth degree such as the first cousin of the wife of the
accused is a stranger.
The third element of defense of relative is different from that of
defense of stranger. In defense of relative, where the relative provoked
the offended party in perpetrating unlawful aggression, the accused
must not have a part therein. In defense of stranger, the accused
must not be induced by revenge, resentment, or other evil motive in
defending the stranger from the unlawful aggression by the victim.
Unlawful aggression – Unlawful aggression is of two kinds: (a)

actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack
with physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury. Imminent
unlawful aggression means an attack that is impending or at the
point of happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must be offensive and
positively strong (like aiming a revolver at another with intent to
shoot or opening a knife and making a motion as if to attack).
Imminent unlawful aggression must not be a mere threatening
attitude of the victim, such as pressing his right hand to his hip
where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot. (Ganal, Jr. vs. People,
G.R. No. 248130, December 2, 2020)
In People v. Apolinar, CA, 38 O.G. 2870, defense of property is not

of such importance as right to life, and defense of property can be
invoked as a justifying circumstance only when it is coupled with an
attack on the owner or lawful possessor thereof. (1977 Bar Exam)
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However, in People v. Narvaez, G.R. Nos. L-33466-67, April 20,

1983, the invasion of property is treated as an unlawful aggression
although it was not coupled by an attack against the owner thereof.
The owner or lawful possessor of property has the right to resist
invasion of property in accordance with Article 429 of the Civil Code,
which provides “The owner or lawful possessor of a thing has the right
to exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably necessary
to repel or prevent an actual or threatened unlawful physical invasion
or usurpation of his property.” However, since the means employed to
resist the invader (killing) is not reasonable, the accused is merely
given the benefit of incomplete self-defense. Justice Florenz Regalado
opined that the rule in Apolinar case may be deemed to have been
superseded by Narvaez case. (1983 and 1990 Bar Exams)
The Narvaez principle is applicable to justifying circumstance of
performance of duty where the one who shot the thief is the security
guard of the company (People v. Bentres, [CA] 49 O.G. 4919; 1996 Bar
Exam); or to the justifying circumstance of defense of stranger where
the one who shot the thief is the neighbor of the victim. (1979 Bar
Exam) If the means employed by the security guard or the neighbor
to repel unlawful aggression against the property of the company or
another person is not reasonable, the privileged mitigating
circumstance of incomplete performance of duty or incomplete
defense of stranger’s property shall be appreciated.
Under the doctrine of rational equivalence, plea of self-defense
would prosper if there is a rational equivalence between the means
of attack by the unlawful aggressor and the means of defense by the
accused that would characterize the defense as reasonable. The
doctrine of rational equivalence presupposes the consideration not
only of the nature and quality of the weapons used by the defender
and the assailant but also of the totality of circumstances
surrounding the defense vis-à-vis, the unlawful aggression. Clearly,
this “continuous attack” by the accused despite the fact that the
aggressor was already neutralized by the blow constitutes force
beyond what is reasonably required to repel the aggression — and is
therefore unjustified. (People v. Olarbe, G.R. No. 227421, July 23,
2018)
BATTERED WOMAN SYNDROME - Battered woman syndrome is a
defense notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the Revised Penal
Code such as unlawful aggression. (Section 26 of R.A. No. 9262)
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Under Section 3(c), battered woman syndrome refers to a

scientifically defined pattern of psychological and behavioral
symptoms found in women living in battering relationships as a
result of cumulative abuse. Under Section 3(b), battery refers to an
act of inflicting physical harm upon the woman or her child resulting
to the physical and psychological or emotional distress. Under Section
3(a), the woman must have a marital, sexual, or dating relationship
with the man.
From the provisions of Section 3(a), (b), and (c), the elements of
battered woman syndrome can be identified. These are: (1) that the
battering man, with whom the battered woman has a marital, sexual
or dating relationship, inflicted physical harm upon her; (2) that the
infliction of physical harm must be cumulative; and (3) the
cumulative abuse results to physical and psychological or emotional
distress to the woman.
1. Cumulative Abuse — Cumulative means resulting from
successive addition. Thus, single act of battery or physical harm
resulting to the physical and psychological or emotional distress is
not sufficient to avail of the benefit of justifying circumstance of
battered women syndrome.
The battered woman syndrome is characterized by the so-called
“cycle of violence,” which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the tranquil, loving
(or, at least, non-violent) phase. In order to be classified as a battered
woman, the couple must go through the battering cycle at least twice.
Because of this cycle of violence, woman feared imminent harm from
her batterer and honestly believed in the need to kill him in order to
save her life. (People v. Genosa, G.R. No. 135981, January 15, 2004;
2010 and 2016 Bar Exams)
2. Physical Harm — A woman must be a victim of battery to
make her relationship with the victim battering. Battery under the
law refers to an act of inflicting physical harm upon the woman or
her child resulting to the physical and psychological or emotional
distress. There are two aspects in this definition, to wit: (1) act of
inflicting physical harm; and (2) the resulting physical and
psychological or emotional distress. Since the abuse must be
cumulative, there must be at least two episodes involving the
infliction of physical harm. (2011 Bar Exam) If the first episode is
infliction of physical harm and the second episode is verbal abuse,
the accused cannot avail battered woman syndrome as a defense.
(2015 Bar Exam)
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3. Physical and Psychological or Emotional Distress — As a

result of at least two episodes involving the infliction of physical
harm, the woman suffers physical and psychological or emotional
distress, she can now invoke the battered woman syndrome as a
defense. The essence of battered woman syndrome as a defense is
that battered woman, who suffers from physical and psychological or
emotional distress, is acting under an irresistible impulse to defend
herself although at the time of commission of the crime the batterer
has not yet committed unlawful aggression. In Genosa, supra, it was
held that the woman must have actually feared imminent harm from
her batterer and honestly believed in the need to kill him in order to
save her life. The woman can only entertain fear of imminent harm
from the victim after seeing a pattern of violence, which requires at
least two battering episodes.
AVOIDANCE OF GREATER EVIL OR INJURY

To justify felonious act committed under justifying circumstance
of avoidance of greater evil or injury or state of necessity, the following
elements must concur: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than that done to avoid it;
and (3) that there be no other practical and less harmful means of
preventing it.
PERFORMANCE OF DUTY
To appreciate the justifying circumstance of performance of duty,
the following requisites must concur: 1) the accused must have acted
in the performance of a duty or in the lawful exercise of a right or
office; and 2) the injury caused or the offense committed should have
been the necessary consequence of due performance of duty or lawful
exercise of right or office. (People v. Oanis, G.R. No. 47722, July 27,
1943)
A police officer in making a lawful arrest or custodian in
preventing a prisoner from escaping should not fire at the person to
be arrested or prisoner unless there is an absolute necessity to do so.
They could only fire at the person to be arrested or prisoner in self-
defense. (People v. Felipe Delima, G.R. No. L-18660, December 22,
1922; 1949 and 1993 Bar Exams); or if it is absolutely necessary to
prevent his escape. (People v. Lagata, G.R. Nos. L-1940-42, March 24,
1949) If the police officer employed reasonably necessary means to
repel resistance of person to be arrested, the former may plead two
defenses, to wit: performance of duty and self-defense (Nacnac v.
People, G.R. No. 191913, March 21, 2012) or defense of
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stranger.(Masipequina and Alampayan v. CA and People, G.R. No. L-

51206, August 25, 1989)
EXEMPTING CIRCUMSTANCE
IMBECILITY AND MINORITY – Mental retardation includes (a) idiot,

whose mental age is two-year old; (b) imbecile, whose mental age is
seven-year old; (c) moron or feebleminded, whose mental age is
twelve-year old and (d) borderline intelligence. (People vs. Butiong,
G.R. No. 168932, October 19, 2011; People vs. Bayrante, G.R. No.
188978, June 13, 2012; People vs. Gilles, G.R. No. 229860, March
21, 2018) For purpose of statutory rape, there is no difference
between actual age and mental age.
Having sexual intercourse with the offended party, who is under

12 years of age, is statutory rape under Article 266-A (d) of RPC. The
word “age” in this provision includes chronological age and mental
age. Hence, having sexual intercourse with idiot, imbecile, or
feebleminded is statutory rape under Article 266-A (d) (People vs.
Daniega, G.R. No. 212201, June 28, 2017; People vs. Labordo, G.R.
No. 239033, February 13, 2019; People vs. XXX, G.R. No. 243988,
August 27, 2020). However, having sexual intercourse with a person
with borderline intelligence is not statutory rape under Article 266-A
(d) because his mental age is above 12 years.
Having sexual intercourse with the offended party, who is

deprived of reason, is rape under Article 266-A (b) of the Revised
Penal Code. Mental retardation is within the contemplation of
deprivation of reason. Hence, having sexual intercourse with idiot,
imbecile, feebleminded or person with borderline intelligence is rape
of a person deprived of reason under Article 266-A (b) (People vs.
Butiong, G.R. No. 168932, October 19, 2011; People vs. Bayrante,
G.R. No. 188978, June 13, 2012).
The word “age” in the phrase “person below 18 years of age” in

Section 3 of RA No. 7610 is either chronological or mental. A person
who has a cognitive disability would be considered a child under RA
No. 7610 based on his or her mental age, not chronological age. For
purpose of Section 3 of RA No. 7610, there is no difference between
actual age and mental age. Thus, a mentally-retarded adult (24 years
of age), who had a mental age of an 8-year-old, is a child protected
by RA No. 7610. (Versoza vs. People, G.R. No. 184535, September 03,
2019) Since the concept of a child in RA No. 7610 is adopted by RA
No. 9208, a mentally-retarded adult is a child within the context of
qualified trafficking in person. (People vs. Ybanez, G.R. No. 220461,
August 24, 2016)
Under Section 5 (b) of RA No 7610, when the child subjected to

sexual abuse is under 12 years of age, the perpetrators shall be
prosecuted for rape and acts of lasciviousness under RPC. The word
“age” in the phrase “when the victim is under twelve (12) years of age”
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in Section 5 (b) of RA No. 7610 is either chronological or mental. For

purpose of Section 5 (b) of RA No. 7610, there is no difference between
actual age and mental age. Hence, the victim whose actual age is 12
years old but her mental age is 9 years old, is considered as a victim
under 12 year of age within the contemplation of Section 5 (b). (People
vs. Pusing, G.R. No. 208009, July 11, 2016, Justice Leonen)
In exempting circumstance, there is a difference between

actual age and mental age. In exempting circumstance of imbecility,
what is important is the mental age of the accused. An idiot, whose
mental age is 2 years, and imbecile, whose mental age is 7 years old
(People vs. Butiong, G.R. No. 168932, October 19, 2011, Bersamin)
are exempt from criminal liability. A feebleminded, whose mental age
is 12 years old, is not exempt from criminal liability since he is not
an imbecile (People vs. Nunez, G.R. No. 112429-30, July 23, 1997)
but he is entitled to mitigating circumstance of mental illness (People
vs. Formigones, G.R. No. L-3246, November 29, 1950). In exempting
circumstance of minority under Section 6 of RA No. 9344, what is
important is the chronological or actual age of the accused.
If the actual age of the accused is 18 years old and mental age
is 9 years old, the exempting circumstance of minority and imbecility
shall not be appreciated because he is neither a minor nor an
imbecile (People vs. Roxas, G.R. No. 200793, June 04, 2014).
INSANITY - In order for the accused to be exempted from criminal

liability under a plea of insanity, he must successfully show that: (1)
he was completely deprived of intelligence; and (2) such complete
deprivation of intelligence must be manifest at the time or
immediately before the commission of the offense. The defense failed
to prove its plea of insanity under the requirements set by law.
Although accused underwent out-patient consultation for his
diagnosed condition of schizophrenia from August 2006 until 13
June 2009, this evidence of insanity may be accorded weight only if
there is also proof of abnormal psychological behavior immediately
before or simultaneous with the commission of the crime (on
November 9, 2009). The evidence on the alleged insanity must refer
to the time preceding the act under prosecution or to the very
moment of execution. (People vs. Dela Cruz, G.R. No. 227997,
October 16, 2019)
There are two tests (People v. Formigones, G.R. No. L-3246,

November 29, 1950) to determine whether the mental condition of the
accused is exempting or mitigating, to wit: test of cognition and test
of volition.
1. Test of Cognition — Under the test of cognition, the mental
condition of the accused is an exempting circumstance of insanity if
there was a complete deprivation of intelligence in committing the
criminal act (People v. Bulagao, G.R. No. 184757, October 5, 2011;
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People v. Bacolot, G.R. No. 233193, October 10, 2018); or mitigating

circumstance of mental illness if there was only a partial deprivation
of intelligence. (People v. Puno, G.R. No. L-33211, June 29, 1981)
After satisfying his lust, accused threatened the victim. This
implies that accused knew what he was doing, that it was wrong, and
wanted to keep it a secret. It also indicated that the crime was
committed during one of his lucid intervals. Accused is not exempt
from liability for failure to pass the cognition test. (People v. Alipio,
G.R. No. 185285, October 5, 2009)
2. Test of Volition — Under the test of volition, the mental
condition of the accused is a mitigating circumstance of mental
illness if there is deprivation of freedom. In sum, if a sex maniac or
homicidal maniac had merely passed the volition test but not the
cognition test, he will only be given the benefit of mitigating
circumstance of illness. Diminution of freedom is enough to mitigate
the liability of the offender suffering from illness. (see: People v.
Rafanan, Jr., G.R. No. 54135, November 21, 1991) Thus, kleptomania
is a mitigating circumstance of mental illness. (1950 Bar Exam)
In People v. Bonoan, G.R. No. 45130, February 17, 1937, a
schizophrenic accused, who acted under irresistible homicidal
impulse to kill, was acquitted due to insanity. In sum, the Supreme
Court merely considered the test of volition in declaring the accused
as exempt from criminal liability. This is not anymore, a good rule.
The basis of the exempting circumstance of insanity is lack of
intelligence and not lack of freedom. Thus, even if the mental
condition of the accused had passed the volition test (deprivation of
freedom), the plea of insanity will not prosper unless it also passed
the cognition test (deprivation of intelligence). The controlling rule is
cognition test for purposes of the exempting circumstance of
insanity. (People v. Opuran, G.R. Nos. 147674-75, March 17, 2004)
In several Supreme Court cases, the pleas of insanity of accused
who are suffering from schizophrenia or psychosis were rejected
because of failure to pass the cognition test. In absence of evidence
that schizophrenic or psychotic accused was deprived completely of
intelligence at the time of the commission of the crime, it is presumed
that he is sane when he committed the crime. (People v. Medina, G.R.
No. 113691, February 6, 1998; People v. Pascual, G.R. No. 95029,
March 24, 1993
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However, schizophrenic or psychotic accused is entitled to

mitigating circumstance of mental illness if there is a partial
deprivation of intelligence or deprivation of freedom.
IRRESISTIBLE FORCE AND UNCONTROLABLE FEAR - The
distinctions between the exempting circumstances of irresistible
force and that of uncontrollable fear are as follows:
1. In irresistible force a third person uses violence or physical
force to compel the accused to commit a crime; in uncontrollable fear,
a third person employs intimidation or threat in compelling the
accused to commit a crime. (The Revised Penal Code by CA Justice
Luis Reyes)
2. The irresistible force must have been made to operate
directly upon the person of the accused. On the other hand, the
uncontrollable fear may be generated by threatened act directed
against third person such as the wife of the accused who was
kidnapped. (Criminal Law Conspectus by Justice Florenz Regalado)
3. In irresistible force the injury feared of may be of a lesser
degree than that damage caused by the accused. On the other hand,
in uncontrollable fear, the evil feared of must be greater or at least
equal to the damage caused to avoid it. (Criminal Law Conspectus by
Justice Florenz Regalado; 1952 Bar Exam)
MINORITY - A child 15 years of age or under at the time of the
commission of the offense shall be exempt from criminal liability.
However, the child shall be subjected to an intervention program.
A child above 15 years but below 18 years of age shall likewise be
exempt from criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment, in which case,
such child shall be subjected to the appropriate proceedings.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in
accordance with existing laws.
To exempt a minor, who is above 15 years old, from criminal
liability, it must be shown that he committed the criminal act without
discernment. Choosing an isolated and dark place to perpetrate the
crime and to prevent detection and boxing the victim to weaken her
defense are indicative of accused’s mental capacity to fully
understand the consequences of his unlawful action. (People v.
Jacinto, G.R. No. 182239, March 16, 2011)
The discernment is his mental capacity to understand the
difference between right and wrong, and such capacity may be known
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and should be determined by taking into consideration all the facts

and circumstances afforded by the records in each case, the very
appearance, the very attitude, the very comportment and behavior of
said minor. (People v. Doqueña, G.R. No. 46539, September 27, 1939;
People v. Sisracon, G.R. No. 226494, February 14, 2018; 2012 and
2017 Bar Exams)
If the child commits a crime on or before his 15th birthday, he is
exempt from criminal liability without qualification. If the child
commits a crime a day after his 15th birthday, he must not act with
discernment to be exempt from criminal liability. The discernment is
his mental capacity to understand the difference between right and
wrong, and such capacity may be known and should be determined
by taking into consideration all the facts, and circumstances afforded
by the records in each case, the very appearance, the very attitude,
the very comportment and behavior of said minor, not only before
and during the commission of the act, but also after and even during
the trial. (People v. Doqueña, G.R. No. 46539, September 27, 1939)
A child, who acted with evident premeditation, discerned the
consequence of his criminal act; but the fact that a child acted
without evident premeditation will not mean that he did not discern
the consequence of his crime. In People v. Doqueña, deceased slapped
the accused and boxed him on the mouth. Accused took possession
of the knife from his cousin and stabbed the victim while the latter
was playing volleyball. The trial court concluded that accused
discerned the consequence of his act taking into account the fact that
when the accused committed the crime in question, he was a 7th
grade pupil in the intermediate school, and as such pupil, he was
one of the brightest in said school and was a captain of a company of
the cadet corps thereof, and during the time he was studying therein
he always obtained excellent marks. It was held that the accused
acted with discernment despite the fact that he was not given
sufficient time to coolly meditate on the consequence of his criminal
act and that he has no intention to commit so grave a wrong than
that committed. The concept of non-discernment is not equivalent to
that of lack of evident premeditation.
MITIGATING CIRCUMSTANCE
INCOMPLTE JUSTIFICATION OR EXEMPTION - If all of the

requisites of a circumstance mentioned in Article 11 or 12 are
present, justifying or exempting circumstance shall be appreciated.
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If majority of the requisites of such circumstance are present, the

privileged mitigating circumstance of incomplete justification or
exemption shall be appreciated. (Article 69)
If only minority of the requisites of such circumstance is present,
the ordinary mitigating circumstance of incomplete justification or
exemption shall be appreciated. (Article 13)
MINORITY - Minority is either exempting or privileged mitigating
circumstance. If the child in conflict with the law is 15 years of age
or below, or the child, who is above 15 years of age, acted without
discernment, minority is an exempting circumstance. (Section 6 of
R.A. No. 9344) If the child, who is above 15 years of age, acted with
discernment, minority is a privileged mitigating circumstance of
minority, which shall lower the penalty by one degree. (Article 68, par.
2)
SENIORITY - Under Article 13(2) of the Revised Penal Code, the

mitigating circumstance of seniority is present if the accused is over
70 years of age. Thus, on his 70th birthday, an offender is not yet a
senior citizen; he becomes a senior citizen after his 70th birthday.
However, it must be noted that seniority as a mitigating circumstance
can only be considered if the offender is over 70 years of age at the
time of the commission of the crime and not at the time of the
promulgation of the decision. (People v. Reyes, G.R. Nos. 177105-06,
August 12, 2010)
There is a view that a person, who is over 70 years of age, is
immune from criminal liability. This view has no basis under the law.
There is nothing in the Revised Penal Code or in any other laws
that exempt a senior citizen from criminal liability. A senior citizen is
entitled to privileges under the law, custom and tradition. But,
committing a crime is not a privilege to which a senior citizen is
entitled. However, According to Justice Florenz Regalado, if the
accused is suffering from senility amounting to insanity at the time
of the commission of the crime, he is exempt from criminal liability
due to the circumstance of insanity and not seniority. Under Article
13(2) of the Code, seniority is only a mitigating circumstance.
There is a view that a prisoner, who is over 70 years of age, should
be released through a pardon. This view has no constitutional basis.
Under the Constitution, the President has the absolute authority
to pardon or not the pardon an offender subject only to three
limitations, to wit: (1) pardon must be made after conviction of the
accused by final judgement; (2) impeachable offense cannot be
pardoned; and (3) election offense without favorable recommendation
76 | P a g e
of the Comelec cannot be pardoned. These constitutional limitations

are exclusive. (Risos-Vidal v. Lim, G.R. No. 206666, January 21,
2015)
PRAETER INTENTIONEM - The mitigating circumstance that the
offender had no intention to commit so grave a wrong as that
committed or praeter intentionem is obtaining when there is a notable
disparity between the means employed by the accused to commit a
wrong and the resulting crime committed. The intention of the
accused at the time of the commission of the crime is manifested from
the weapon used, the mode of attack employed and the injury
sustained by the victim. (People v. Maglian, G.R. No. 189834, March
30, 2011)
THREAT - Threat made with a weapon, which is offensively and
positively strong showing wrongful intent to inflict injury (such as
opening a knife and making a motion as if to make an attack), is an
unlawful aggression. Thus, the offender threatened could be given
the benefit of the circumstance of complete or incomplete self-
defense. Threat, which is not offensively and positively strong, is not
unlawful aggression. However, mitigating circumstance of threat may
be appreciated.
PROVOCATION, PASSION AND VINDICATION - The differences
among provocation, passion, and vindication as mitigating
circumstances are as follows:
1. Source of Mitigation — The source of mitigating
circumstance in provocation is the provocative act of the offended
party; in vindication, grave offense committed by the offended party;
and in passion, the unlawful or unjust act by the offended party that
produced obfuscation or passion arising from a lawful sentiment.
Passion cannot be appreciated if the crime is committed in the
spirit of revenge since in this case the passion did not arise from a
lawful sentiment. (People v. Matbagon, G.R. No. 42165, November 12,
1934, En Banc) On the other hand, the essence of vindication is
taking revenge because of the grave offense committed by the victim.
Insulting statement (you get out because I might suffer high blood)
against the accused is not a basis to appreciate passion or
provocation as a mitigating circumstance. (People v. Lab-eo, G.R. No.
133438, January 16, 2002) However, insult made in the presence of
several persons may gravely offend the accused. Insulting remark (I
will make roast pig of you) against an old man during a fiesta (U.S. v.
Ampar, G.R. No. 12883, November 26, 1917) or offending statement
(You stranger live at the expense of your wife) against a gate crasher
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during a celebration (People v. Rosel, G.R. No. 46095, October 10,

1938) is a grave offense against honor, which will mitigate the
criminal liability of the accused if the crime is committed in
vindication thereof.
Elopement is a grave offense against family honor. Mitigating
circumstance of vindication and not passion or provocation can be
appreciated in favor of the accused. (People v. Diokno, G.R. No. L-
45100, October 26, 1936)
Bathing a child despite the fact that he was sick (People v. Rabao,
G.R. No. 46530, April 10, 1939); having amorous relation with
husband of the accused causing jealousy (U.S. v. Jarrilla, G.R. No. L-
389, November 5, 1901; 2013 Bar Exam); and failure to quit
prostitution (People v. Guillermo, G.R. No. L-18792, February 28,
1964) are unjust acts or omissions producing passion arising from
lawful sentiments but they are neither grave offenses nor provocative
acts.
Same act or incident such as challenge to a fight or ceased
aggression may be a source of vindication, provocation, and passion.
Challenge to a fight can be a source of provocation. (U.S. v. Cortes,
36 No. 12564, September 6, 1917) But calling the accused, who is the
president of a Labor Union, an abusador and challenging him to a
duel in the presence of several persons, gravely offended him; hence,
vindication of grave offense will mitigate his criminal liability. (People
v. Ruiz, G.R. No. L-33604, October 30, 1979) Repeatedly berating the
accused and challenging him to a duel are acts that produced sudden
impulse of natural fury dictating to the accused to commit the crime.
Hence, passion as a mitigating circumstance may be appreciated.
(People v. Valles, G.R. No. 110564, January 28, 1997)
Self-defense, complete or incomplete, is not availing where the
unlawful aggression has ceased at the time of the commission of the
crime. But the prior unlawful aggression can be considered as:
(1) A grave offense, which is a basis of vindication (David v.
CA, G.R. Nos. 111168-69, June 17);
(2) An unjust act producing passion arising from a lawful
sentiment (People v. Adlawan, G.R. No. 131839, January 30,
2002); or
(3) A sufficient provocation. (People v. Maribung, G.R. No. L-
47500, April 29, 1987)
If more than one mitigating circumstance arose from the same act
or incident, they shall be considered as only one mitigating
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circumstance. For example, the circumstances of provocation and

vindication of a grave offense arising from one and the same incident,
i.e., the ceased aggression, shall be considered as only one mitigating
circumstance. (People v. Torpio, G.R. No. 138984, June 4, 2004) The
circumstances of passion arising from wife’s infidelity and vindication
of grave offense committed by her paramour shall be treated as one
mitigating circumstance. (2011 Bar Exam)
2. Interval of Time — In provocation, the provocation must
immediately precede the act, i.e., that there be no interval of time
between the provocation on the part of the victim and the commission
of the crime by the offender. (Pepito v. CA, et al., G.R. No. 119942,
July 8, 1999) In passion, the commission of the crime need not be
immediately preceded by unlawful or unjust act that produced the
passion; what is important is that such act was not far removed from
the commission of the crime by a considerable length of time, during
which the perpetrator might recover his normal equanimity. (People
v. Aguinaldo, G.R. No. L-5346, January 30, 1953) In vindication, the
vindication of the grave offense may be proximate, which requires
that interval of time between the grave offense done by the victim and
the commission of the crime by the offender must not be sufficient
for the accused to regain his composure or his moral equanimity.
(People v. Ventura, G.R. Nos. 148145-46, July 5, 2004; People v.
Benito, G.R. No. L-32042, February 13, 1975)
VOLUNTARY SURRENDER - To appreciate the mitigating

circumstance of voluntary surrender, the following requisites must
be proven, namely: (1) the offender has not actually been arrested;
(2) the offender surrendered himself to a person in authority; and (3)
the surrender was voluntary. A surrender to be voluntary must be
spontaneous, showing the intent of the accused to submit himself
unconditionally to the authorities, either because he acknowledges
his guilt, or he wishes to save them the trouble and expense
necessarily incurred in his search and capture. Voluntary surrender
presupposes repentance. (People v. Tabarnero, G.R. No. 168169,
February 24, 2010; 1999 and 2019 Bar Exams)
VOLUNTARY CONFESSION - To appreciate voluntary confession as
mitigating circumstance, the following requisites must concur: (1) the
accused spontaneously confessed his guilt; (2) the confession of guilt
was made in open court; (3) the confession was made before a
competent court trying the case; and (4) the confession of guilt was
made prior to the presentation of evidence by the prosecution. (People
v. Juan, G.R. No. 152289, January 14, 2004)
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PARTIAL RESTITUTION - The payment, indemnification, or

reimbursement of, or compromise on the amounts or funds
malversed or misappropriated, after the commission of the crime,
does not extinguish the accused's criminal liability or relieve the
accused from the penalty prescribed by the law. At best, such acts of
reimbursement may only affect the offender's civil liability, and may
be credited in his favor as a mitigating circumstance analogous to
voluntary surrender. Accused enjoys the mitigating circumstance of
voluntary surrender, due to his partial restitution of the amount
malversed (Valenzuela vs. People, G.R. No. 205693, February 14,
2018)
SPECIAL MITIGATING CIRCUMSTANCE – Under Article 64 (5),

when there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the
penalty next lower to that prescribed by law. This is called as special
mitigating circumstance. The title of Article 64 is rules for the
application of penalties which contain three periods. Penalties
containing three periods are called divisible penalties.
Under Article 63, par. 2 (3), when there are some mitigating
circumstances and there is no aggravating circumstance, the lesser
penalty (of reclusion perpetua) shall be applied. The title of Article 63
is rules for the application of indivisible penalties. Death and reclusion
perpetua are indivisible penalties. Article 63, par. 2 (3) is only
applicable cases in which the law prescribes a penalty composed of
two indivisible penalties. There is only one penalty composed to two
individual penalties, and that is, reclusion perpetua to death.
In People v. Takbobo, G.R. No. 102984, June 30, 1993. Article 64

(5) on special mitigating circumstance that requires the graduation
of penalty is only applicable if the penalty contains three periods.
Reclusion perpetua to death prescribed for parricide is not a penalty
containing three periods. The applicable provision is Article 63 par.
2 (3) on the rule involving a penalty composed of two indivisible
penalties. Hence, the lesser penalty shall be applied. Reclusion
perpetua is lesser than death. Hence, the accused shall be sentenced
to suffer reclusion perpetua. (People vs. Brusola, G.R. No. 210615,
July 26, 2017, Justice Leonen.
V. AGGRVATING CIRCUMSTANCE
There are new guidelines on how to allege aggravating or

qualifying circumstance in the Information. In cases where law uses
a broad term to embrace various situations in which may exist, such
as but are not limited to (1) treachery; (2) abuse of superior strength;
(3) evident premeditation; (4) cruelty, alleging in the information the
name of the modifying circumstance e.g. treachery is not enough. The
information must state the ultimate facts relative to such
circumstance e.g. alleging that the accused surreptitiously stabbed
the victim at his back to ensure that he cannot defend himself. In
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case of failure to comply with the rule on allegation of ultimate facts,

the Information may be subject to a motion to quash or a motion for
a bill of particulars. Failure of the accused to avail any of the said
remedies constitutes a waiver of his right to question the defective
statement of the aggravating or qualifying circumstance in the
Information, and consequently, the same may be appreciated against
him if proven during trial. Alternatively, prosecutors may sufficiently
aver the ultimate facts relative to a qualifying or aggravating
circumstance by referencing the pertinent portions of the resolution
finding probable cause against the accused, which resolution should
be attached to the Information. (People vs. Solar, G.R. No. 225595,
August 6, 2019)
The Information for murder alleged that the killing of the victim
is qualified by the circumstances of treachery and abuse of superior
strength. This information is defective since the prosecution failed to
allege facts on which treachery and abuse of super strength are
based. (The prosecution to comply with Solar principle may allege
that accused to render the victim defenseless surreptitiously stabbed
in at his back) It was held that: Accused did not question the
supposed insufficiency of the Information filed against him through
either a motion to quash or motion for bill of particulars. He
voluntarily entered his plea during the arraignment and proceeded
with the trial. Thus, he is deemed to have waived any of the waivable
defects in the Information, including the supposed lack of
particularity in the description of the attendant circumstances.
(People vs. Solar, supra)
Justice Bersamin in his dissenting opinion said that the

accused had no duty or obligation to remind the State by motion to
quash (or motion for bill of particular) on what charge he should be
made to answer to. The information did not charge murder, but only
homicide. Justice Leonen joined the dissenting opinion of Justice
Bersamin. (People vs. Solar, supra)
MULTIPLE OFFENSES - Recidivism, quasi-recidivism, reiteracion

and habitual delinquency are distinguished as follows:
1. Crimes Committed –– In recidivism, the previous crime and
the present crime are embraced in the same Title of the Revised Penal
Code. In quasi-recidivism, the nature of the previous crime and
present crime is not material. In reiteracion, the penalty for the
previous crime is equal or greater than that for the present crime or
the penalty for the two previous crimes is lighter than that for the
present crime. In habitual delinquency, the previous, subsequent
and present crimes must be serious or less serious physical injuries,
theft, robbery, estafa or falsification of document.
2. Period of Time –– In quasi-recidivism and reiteracion, what is
important is the date of commission of the present crime. In quasi-
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recidivism, the accused committed the present crime before

beginning to serve or while serving his sentence for the previous
crime. In reiteracion, the accused committed the present crime after
serving his sentence for previous crime/s.
In recidivism, what is important is the date of trial of the present
crime in relation to date of conviction of his previous crime. In
recidivism, the accused was being tried of the present crime when he
was convicted of the previous crime by final judgment.
In habitual delinquency, what is important is the date of
conviction of the subsequent or present crime in relation to the date
of his last release or conviction. (People v. Morales, G.R. No. 42924,
March 12, 1935) In habitual delinquency, the accused was convicted
(found guilty) of the second crime within 10 years after conviction or
release of the first crime; then, he is convicted of the third crime
within 10 years after conviction or release of the second crime; and
so on and so forth.
3. Number of Crimes Committed –– In recidivism and quasi-
recidivism, there must be at least two crimes. In reiteracion, there
must be at least two crimes; but if the penalty for the previous crimes
is lighter than that for the present crime, there must be at least three
crimes. In habitual delinquency, there must be at least three crimes.
4. Effects in Relation to the Penalty –– Recidivism and
reiteracion are ordinary aggravating circumstances, the presence of
any of which will require the application of the penalty for the present
crime in its maximum period unless it is offset by a mitigating
circumstance. Quasi-recidivism is a special aggravating
circumstance, the presence of which will require the application of
the penalty for the present crime in its maximum period regardless
of the presence of a mitigating circumstance. Habitual delinquency
is an extraordinary or special aggravating circumstance, the presence
of which will require the imposition of penalty in addition to the
principal penalty for the present crime. This is not subject to the
offset rule.
RECIDIVISM - A recidivist is one who, at the time of his trial for one
crime, shall have been previously convicted by final judgment of
another crime embraced in the same title of this Code. (Article 14 of
the Revised Penal Code; 1965 Bar Exam) The phrase “at the time of
his trial for an offense” employed in defining recidivism includes
everything that is done in the course of the trial, from arraignment
until after sentence is announced by the judge in open court. (People
v. Lagarto, G.R. No. 65833, May 6, 1991) However, recidivism can still
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be appreciated even if before his trial for the present crime, he was
convicted by final judgment of his previous crime. (People v. Bernal,
G.R. No. 44988, October 31, 1936; People v. Colocar, G.R. No. 40871,
November 10, 1934)
REITERACION - There is reiteracion when the offender has been
previously punished for an offense to which the law attaches an equal
or greater penalty or for two or more crimes to which it attaches a
lighter penalty. (Article 14 of the Revised Penal Code)
1. Previously Punished — The phrase “previously punished”
employed in defining reiteracion means that the accused has served
out the sentence for his previous crime.
2. Previous Crime and Present Crime — If there is only one
prior offense, it must be punishable by a penalty equal or greater
than that for the present crime. The penalty for the previous crime of
homicide, which has been served out, is reclusion temporal while that
for simple rape is reclusion perpetua. There is no reiteracion because
the penalty for the previous crime of homicide is lesser than that for
simple rape. (People v. Race, Jr., G.R. No. 93143, August 4, 1992)
If there is more than one prior crime, reiteracion is present even
if previous crimes are punishable by a penalty lesser than that for
present crime. Thus, there is reiteracion even if the penalties for grave
slander, qualified trespass to dwelling and robbery, which have been
served out, are lesser than that for the crime of murder. (People v.
Molo, G.R. No. L-44680, January 11, 1979)
In appreciating reiteracion, what is controlling is the penalty
prescribed by law for the previous and present crimes and not the
penalty actually imposed by the court after trial.
3. Recidivism and Reiteracion — If the crimes are embraced in
the same Title such as homicide and maltreatment, the aggravating
circumstance to be appreciated against him is recidivism rather than
reiteracion. There is no reiteracion because that circumstance
requires that the previous offenses should not be embraced in the
same Title of the Code. In reiteracion, the offender commits a crime
different from that for which he was previously convicted. (People v.
Real, G.R. No. 93436, March 24, 1995)
Accused was previously convicted of adultery and served the
penalty for it, and was charged of physical injuries. He was found
guilty of homicide. His liability for homicide shall not be aggravated
by recidivism or reiteracion. He is not a recidivist because homicide
and adultery are not embraced in same Title of the Revised Penal
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Code. Homicide is a crime against person while adultery is a crime

against chastity. Reiteracion is not present since the penalty for the
previous crime of adultery is lesser than that for homicide. The crime
of physical injuries shall not be considered in determining recidivism
and reiteracion since he was not yet convicted thereof. (1989 Bar
Exam)
Both recidivism and reiteration can be appreciated in murder.
There is recidivism since the accused was previously convicted of
another murder, frustrated murder, and less serious physical
injuries at the time of trial for murder. There is reiteracion since he
committed murder after serving out the penalties for grave slander,
qualified trespass to dwelling and robbery. (People v. Molo, G.R. No.
L-44680, January 11, 1979)
5. Recidivism and Quasi-recidivism –– A convicted prisoner,

who was serving his sentence in the National Penitentiary for the
crime of robbery, committed murder. He is not a recidivist with
respect to the murder that he committed since this crime and his
previous crime of robbery are punishable under different titles.
However, he is a quasi-recidivist since he committed murder while
serving his sentence for robbery. (2018 Bar Exam) However, even
though his previous crime and present crime are punishable under
one title, if the convicted prisoner committed the latter while serving
his sentence for the former, quasi-recidivism shall be appreciated
instead of recidivism. Quasi-recidivism can be considered regardless
of the nature of the crime for which the accused is serving sentence
and the crime committed while serving such sentence.
CONTEMPT OF AUTHORITY, DISREGARD OF RANK AND PLACE

OF COMMISSION — In contempt of public authorities, the offender
committed a crime against another person in disregard of the
presence of the public authority while engaged in the performance of
duty. In sum, the victim is not the person in authority.
In disregard of rank, the crime must be committed against a
person of a higher rank such as a person in authority. The accused
disregarded the respect due to rank of the public authority by
committing a crime against him.
In place of commission, the offender committed a crime in
disregard of the respect due to the place where the public authority
was engaged in his official function. In these three instances, the
offender showed disrespect to person in authority, which justifies the
aggravation of his liability.
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In contempt of public authorities, the person in authority was

engaged in his official functions outside his office at the time the
crime was committed. In place of commission, the person in authority
was engaged in his official functions inside his office at the time the
crime was committed. In disregard of rank, the public authority is
not engaged in the performance of duty; otherwise, the crime
committed is direct assault, which absorbs the aggravating
circumstance of disregard of rank.
In contempt of public authorities, the person in authority must not
be the victim. In place of commission, the victim may be a third
person or person in authority. In disregard of rank, the person in
authority, who is superior in rank to the offender, must be the
victim.
NIGHTTIME — As a general rule, nighttime is an ordinary

aggravating circumstance because the darkness of the night
facilitated the commission of the crime or insured impunity. (1994
Bar Exam) Thus, nighttime cannot aggravate the crime if it is
committed in a lighted place although at the wee hours of the night.
(People v. Clariño, G.R. No. 134634, July 31, 2001) The darkness of
the night and not nighttime per se is important in appreciating it as
an aggravating circumstance. (People v. Banhaon, G.R. No. 131117,
June 15, 2004)
But if the offender purposely selected the wee hour of the night
when neighbors and occupants of the house including the victim
were sleeping to facilitate the commission of the crime or to afford
impunity, nighttime shall be appreciated even if the place of
commission is lighted. (People v. Demate, G.R. No. 132310, January
20, 2004, En Banc)
EVIDENT PREMIDIDATION — To appreciate evident premeditation,
it is important the victim is the object of premeditation. In sum, the
victim killed must be the person who the accused premeditated to
kill. (People v. Trinidad, G.R. No. L-38930, June 28, 1988)
Where the accused premeditated to kill a specific person, evident
premeditation shall not be appreciated if there is no showing that the
victim killed is the said specific person. (People v. Belchez, G.R. No. L-
21196, March 28, 1968)
Where the accused premeditated to kill the thieves, who stole his
fishing boat, evident premeditation shall not be appreciated if there
is no showing that the victim actually killed is one of the thieves. (US
v. Caranto, G.R. No. 1677, March 13, 1905; 1949 Bar Exam)
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Where the accused premeditated to kill any doctor, evident

premeditation shall be appreciated if the victim actually killed is a
doctor. (People v. Patelan, G.R. No. 182918, June 6, 2011)
Where the accused premeditated to kill the first two persons that
he would encounter at Cotabato, evident premeditation shall be
appreciated if the victims actually killed are the first two persons that
he actually encountered therein. (US v. Manalinde, G.R. No. 5292,
August 28, 1909)
Where the accused premeditated to kill anyone found in a specific
village or town, evident premeditation shall be appreciated if the
killing is made in the said village or town. (U.S. v. Rodriguez, G.R. No.
6344, March 21, 1911; U.S. v. Zalsos, G.R. Nos. 14468-69, September
12, 1919)
Where the accused premeditated to kill anyone, evident
premeditation shall be appreciated regardless of who is his actual
victim. (U.S. v. Binayoh, G.R. No. 11512, October 11, 1916)
ALTERNATIVE CIRCUMSTANCES
RELATIONSHIP - In vindication of grave offense, criminal exemption

of accessories, alternative circumstance of relationship and defense
of relative, the concept of relationship is the same. It refers to (1)
spouse, (2) ascendants, (3) descendants, or (4) legitimate, natural or
adopted brothers or sisters or (5) relatives by affinity in the same
degree. However, in defense of relative, there is an additional concept
of relationship. It includes relatives by consanguinity within the
fourth civil degree. Thus, an uncle is a relative within the concept of
defense of stranger. (The Revised Penal Code by Luis Reyes) However,
relationship of uncle and niece is not an alternative circumstance.
(People v. Ulit, G.R. Nos. 131799-801, February 23, 2004)
In crime against person, relationship is a mitigating circumstance

if it is classified as less grave felony or light felony and the victim is a
relative of lower level. The concurrence of the light or less grave
classification of the felony and the lower position of the victim is
required to appreciate relationship as a mitigating circumstance.
On the other hand, relationship is an aggravating circumstance:
(1) if it is classified as grave felony; or (2) if the victim is a relative of
higher or equal level than the offender. The concurrence of the grave
classification of felony and the equal or higher position of the victim
is not required to appreciate relationship as an aggravating
circumstance.
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However, the alternative circumstance of relationship may be

considered as mitigating or aggravating not only according to the
nature and effects of the crime but also in consideration of the other
conditions attending its commission. (1965 and 1968 Bar Exams)
INTOXICATION - If accused claims intoxication as mitigating

circumstance, he must establish that his intoxication was not
habitual or subsequent to the plan to commit the crime and that he
took such quantity of alcoholic beverage, prior to the commission of
the crime, as would blur his reason. (People v. Fontillas, G.R. No.
184177, December 15, 2010; People v. Bermudo, G.R. No. 225322,
July 4, 2018)
If the prosecution claims intoxication as aggravating
circumstance, it must establish that the intoxication is habitual or
intentional (People v. Patelan, G.R. No. 182918, June 6, 2011) and it
fortifies accused’s resolve in committing the crime. (People v. Novio,
G.R. No. 139332, June 20, 2003) In the absence of truth to the
contrary, intoxication is presumed to be unintentional or not
habitual. (People v. Mat-an, G.R. No. 215720, February 21, 2018) To
aggravate the liability of the accused, it is not necessary that degree
of intoxication must have impaired the will power of the accused.
Impairment of the will power is only required in appreciating
intoxication as a mitigating circumstance but not as an aggravating
circumstance. To aggravate the penalty, what is important is that the
intoxication, which is habitual or intentional, must have emboldened
accused to commit the crime. (People v. Ga, G.R. No. 49831, June 27,
1990)
The circumstance of intoxication is neither aggravating nor
mitigating if the prosecution failed to prove that it was habitual or
intentional and the defense also failed to prove that, as a result of
intoxication, his will power had been impaired such that he did not
know what he was doing. (People v. Bañez, G.R. No. 125849, January
20, 1999; People v. Mat-an, G.R. No. 215720, February 21, 2018; 2002
Bar Exam)
INDETERMINATE SENTENCE LAW
COVERAGE - Under Section 2 of the Indeterminate Sentence Law

and other related laws, the benefits of parole or indeterminate
sentence are not applicable to the following cases:
1. Treason, conspiracy or proposal to commit treason,
misprision of treason, rebellion or sedition, espionage or piracy.
2. Habitual delinquents. Note: A recidivist is not excluded
from the coverage of the Indeterminate Sentence Law.
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3. Those who have escaped from confinement or evaded

sentence. Note: The law contemplates confinement in prison and not
in a mental hospital.
4. Those who violated the terms of conditional pardon.
5. Penalty of imprisonment, the maximum term of which
does not exceed one year.
6. Death penalty or life imprisonment (Section 2 of Act No.
4103); or reclusion perpetua. (R.A. No. 9346
RECLUSION PERPETUA — If the penalty prescribed by law is

reclusion temporal, the minimum penalty shall be fixed anywhere
within the full range of prision mayor (6 years and 1 day to 12 years),
which is the penalty next lower in degree, while the maximum penalty
shall be fixed after taking into consideration modifying
circumstances anywhere within the range of the proper imposable
period of reclusion temporal, which is broken down as follows:
Maximum: 17 years, 4 months and 1 day to 20 years

Medium: 14 years, 8 months and 1 day to 17 years
and 4 months
Minimum: 12 years and 1 day to 14 years and 8 months
a. Maximum Period of Reclusion Temporal –– Accused is

convicted of direct assault with homicide. The penalty of reclusion
temporal for homicide, which is the most serious component of
this complex crime, shall be applied in its maximum period.
Applying the Indeterminate Sentence Law, the court shall fix the
maximum penalty within the range of the proper imposable
period, and that is, maximum period of reclusion temporal (17
years, 4 months and 1 day to 20 years). For purpose of parole,
the court shall fix the minimum penalty within the range of the
penalty next lower in degree, and that is, prision mayor (6 years
and 1 day to 12 years). Hence, the court can sentence the accused
to suffer 6 years and 1 day of prision mayor as minimum penalty
to 20 years of reclusion temporal as maximum penalty. (1985 Bar
Exam)
b. Medium Period of Reclusion Temporal –– The accused
is convicted of homicide. There are mitigating circumstance of
surrender and an aggravating circumstance of nighttime.
Applying the offset rule, there is no modifying circumstance
remaining. Without a remaining modifying circumstance,
reclusion temporal prescribed for homicide shall be applied in its
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medium period. Applying the Indeterminate Sentence Law, the

court shall fix the maximum penalty within the range of the
proper imposable period, and that is, medium period of reclusion
temporal (14 years, 8 months and 1 day to 17 years and 4
months). For purpose of parole, the court shall fix the minimum
penalty within the range of the penalty next lower in degree, and
that is, prision mayor (6 years and 1 day to 12 years). Hence, the
court can sentence the accused to suffer 6 years and 1 day of
prision mayor as minimum penalty to 16 years of reclusion
temporal as maximum penalty. (1974 Bar Exam)
c. Minimum Period of Reclusion Temporal –– The accused
is convicted of homicide. There are two mitigating circumstances
and one aggravating circumstance. Applying the offset rule, there
is one remaining mitigating circumstance. With this remaining
mitigating circumstance, reclusion temporal prescribed for
homicide shall be applied in its minimum period. Applying the
Indeterminate Sentence Law, the court shall fix the maximum
penalty within the range of the proper imposable period, and that
is, minimum period of reclusion temporal (12 years and 1 day to
14 years and 8 months). For purpose of parole, the court shall fix
the minimum penalty within the range of the penalty next lower
in degree, and that is, prision mayor (6 years and 1 day to 12
years). Hence, the court can sentence the accused to suffer 6
years and 1 day of prision mayor as minimum penalty to 12 years
and 1 day of reclusion temporal as maximum penalty. (2009 and
1957 Bar Exams)
The accused is convicted of homicide. There are four
mitigating circumstances and one aggravating circumstance.
Applying the offset rule, there are three remaining mitigating
circumstances. Special mitigating circumstance will not be
appreciated because of the presence of aggravating circumstance.
With these remaining mitigating circumstances, reclusion
temporal prescribed for homicide shall be applied in its minimum
period. Applying the Indeterminate Sentence Law, the court shall
fix the maximum penalty within the range of the proper imposable
period, and that is, minimum period of reclusion temporal (12
years and 1 day to 14 years and 8 months). For purpose of parole,
the court shall fix the minimum penalty within the range of the
penalty next lower in degree, and that, is prision mayor (6 years
and 1 day to 12 years). Hence, the court can sentence the accused
to suffer 6 years and 1 day of prision mayor as minimum penalty
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to 12 years and 1 day of reclusion temporal as maximum penalty.

(1995 and 2018 Bar Exams)
SECOND RULE — The second rule of the Indeterminate Sentence

Law applies to offenses under special laws, which prescribes
American penalty with maximum limit and minimum limit. Applying
the second rule, the court shall sentence the accused to an
indeterminate sentence, the maximum of which shall not exceed the
maximum limit fixed by said law, and the minimum shall not be less
than the minimum limit prescribed by the same. (Section 1 of Act No.
4103; 1957 and 2013 Bar Exams)
Where the penalty for election offense under special law is not less
than 1 year but not more than 6 years of imprisonment, the minimum
penalty shall not be less than 1 year, while the maximum shall not
exceed 6 years. Hence, the court can sentence the accused to suffer
1 year of imprisonment as minimum penalty to 6 years as maximum.
(Escalante v. People, G.R. No. 192727, January 9, 2013)
Possession of shabu involving 5 grams or more but less than 10
grams, or marijuana involving 300 grams or more, but less than 500
grams is punishable by imprisonment of twenty (20) years and one
(1) day to life imprisonment.
Applying Section 1 of ISLAW, the minimum penalty shall not be

less than 20 years and 1 day. Under Section 2 thereof, the rule on
indeterminate sentence will not apply if the penalty is life
imprisonment. Hence, the maximum penalty must be less than life
imprisonment. (Concurring opinion by Justice Peralta, People vs.
Obias, G.R. No. 222187, March 25, 2019). A penalty of more than 40
years shall be considered as life imprisonment. Hence, the maximum
penalty must be 40 years of imprisonment or less such as 30 years.
Thus, the court can sentence the accused to suffer 20 years and one
day of imprisonment as minimum to 30 years as maximum. (People
vs. Pis-an, G.R. No. 242692, July 13, 2020)
SERVICE OF SENTENCE
GOOD CONDUCT ALLOWANCE – A convicted prisoner is entitled to

good conduct time allowance (GCTA) under Article 97 of the Revised
Penal Code for good behavior during detention. For example, a
convicted prisoner is sentenced to suffer 10 months of prision
correccional for committing serious physical injuries. Under Article
97, during the first two years of imprisonment, he (convicted
prisoner) shall be allowed a deduction of twenty days for each month
of good behavior during detention. After serving 6 months in jail, the
warden of the city jail granted him a GCTA of 120 days (4 months).
Because of the GCTA, his sentence of 10 months of imprisonment
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will be considered as served out, although he was only imprisoned

for 6 months.
Prior to the controversial GCTA Law or RA No. 10592, a

detention prisoner is not entitled to GCTA. However, RA No. 10592
now grants GCTA to a detention prisoner. Under Articles 29 of the
Revised Penal Code as amended by RA No. 10592, whenever an
accused has undergone preventive imprisonment for a period equal
to the possible maximum imprisonment of the offense charged, he
shall be released immediately; for purposes of immediate release, the
computation of preventive imprisonment shall be the actual period of
detention with GCTA.
For example, a detention prisoner is charged with less serious

physical injuries, which is punishable by arresto mayor (1 month and
1 day to 6 months). After undergoing 4 months of preventive
imprisonment, the warden granted him GCTA of 80 days (2 months
and 20 days). Because of the GCTA, his period of preventive
imprisonment will be considered as 6 months and 20 days although
his actual detention is only 4 months. Since the period of his
preventive imprisonment (6 months and 20 days) is more than the
possible maximum imprisonment (6 months) of the offense charged,
he shall be released immediately.
GCTA for detention prisoner is governed by Articles 29 and 97

of the Revised Penal Code. While GCTA for convicted prisoner is
governed by Article 97 thereof.
Article 29 on GCTA for detention prisoner has a qualifying

proviso, which is quoted as follows: “Provided, finally, That recidivists,
habitual delinquents, escapees and persons charged with heinous
crimes are excluded from the coverage of this Act.” Heinous crime
refers to those listed in RA No. 7659 (Death Penalty Law) such as
murder or robbery with homicide. (Miguel vs. Director of Bureau
Prisons, UDK-15368, September 15, 2021) Thus, a detention
prisoner, who is charged of murder, a heinous crime, is not entitled
to GCTA while undergoing preventive imprisonment.
Can the rule under Article 29, which excludes detention

prisoners charged of heinous crime from the benefit of GCTA, be
applied to convicted prisoners even though Article 97 and not Article
29 governs GCTA for convicted prisoners?
Under the old DOJ implementing rules of RA No. 10592, a

person convicted of a heinous crime was still entitled to GCTA. In the
case of Inmates of the New Bilibid Prison v. De Lima, G.R. No.
212719, June 25, 2019, the Supreme Court ruled that RA no. 10592,
which amended Article 29 and 97 of the Revised Penal Code, shall be
given a retroactive effect. In sum, those convicted prior to the
enactment of RA No. 10592 shall be benefited of the longer period of
GCTA under this new law. As a consequence, several infamous
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convicts such as former Mayor Antonio Sanchez, were set to be

released. This triggered a public outrage.
As a reaction to the public outcry against the early release of

heinous criminals, the DOJ issued in 2019 a new implementing rules
of RA No. 10592 under which persons, convicted of heinous crimes,
are not entitled to GCTA, special time allowance for loyalty, and time
allowance for study, teaching, and mentoring under Articles 97 and
98 of the Codes. The Supreme Court in Miguel vs. Director of Bureau
Prisons, UDK-15368, September 15, 2021 recognizes the validity of
the DOJ implementing rules (2019 Revised IRR). It was held that the
GCTA Law and 2019 Revised IRR have made abundantly clear that
persons charged with and/or convicted of heinous crimes are not
entitled to the benefits under the law.
COMMUNITY SERVICE - RA No. 11362, which is approved on

August 8, 2019, has introduced a new provision on community
service, and that is, Article 88-a of Revised Penal Code. Community
service is not a penalty but a mode of serving the penalty of arresto
menor or arresto mayor. Article 88-a of the Code provides:
“Article 88a. Community Service. The court in its discretion may,

in lieu of service in jail, require the penalties of arresto menor and
arresto mayor be served by the defendant by rendering community
service in the place where the crime was committed, under such terms
as the court shall determine, taking into consideration the gravity of
the offense and the circumstances of the case, which shall be under
the supervision of a probation officer: Provided, That the court will
prepare an order imposing the community service, specifying the
number of hours to be worked and the period within which to complete
the service. The order is then referred to the assigned probation officer
who shall have responsibility of the defendant.
“The defendant shall likewise be required to undergo

rehabilitative counseling under the social welfare and development
officer of the city of municipality concerned with the assistance of the
Department of Social Welfare and Development. In requiring
community service, the court shall consider the welfare of the society
and the reasonable probability that the person sentenced shall not
violate the law while rendering the service.
“Community service shall consist of any actual physical activity

which inculcates civil consciousness, and is intended towards the
improvement of a public work or promotion of a public service.
“If the defendant violates the terms of the community service, the
court shall order his/her re-arrest and the defendant shall serve the
full term of the penalty, as the case may be, in jail, or in the house of
the defendant as provided under Article 88. However, if the defendant
has fully complied with the terms of the community service, the court
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shall order the release of the defendant unless detained for some other
reason.
The privilege of rendering community service in lieu of service in

jail shall availed of only once.”
PROBATION - Accused is charged of sale of dangerous drugs.

Pursuant to a plea-bargaining agreement, he pleaded guilty to the
lesser offense of possession of drug paraphernalia, which is
punishable 6 months and 1 day to 4 years. Sale of dangerous drugs
is not probationable. However, in applying for probation, what is
essential is not the offense charged but the offense to which the
accused is ultimately found guilty of. In sum, in determining the
eligibility of the accused for probation, the court shall consider
possession of drug paraphernalia for which he pleaded guilty, and
not sale of dangerous drugs with which he is charged. Possession of
drug paraphernalia is probationable since the penalty prescribed for
it does not exceed 6 years of imprisonment. Under Section 24 of RA
No. 9165, any person convicted for drug trafficking or pushing
cannot avail of the privilege granted by the Probation Law. However,
possession of drug paraphernalia is not considered as drug
trafficking or pushing. Hence, the accused is eligible to apply for
probation. (Pascua vs. People, G.R. No. 250578, September 07,
2020)
Offense where the penalty is more than 6 years of imprisonment

is non-probationable. In Colinares vs. People, G.R. No. 182748,
December 13, 2011, the accused, who was convicted by the lower
court of a non-probationable offense of frustrated homicide, but on
appeal was found guilty of a probationable offense of attempted
homicide, may apply for probation. In Villareal vs. People, G.R. No.
151258, December 1, 2014, accused was convicted of homicide, a
non-probationable crime, by the trial court. However, the SC found
them liable for reckless imprudence resulting in homicide, which is
a probationable crime, because of lack of dolo. They can still apply
for probation. RA No. 10707 has amended Section 4 of PD 968 by
adopting the Colinares and Villareal. Under this provision, when a
judgment of conviction imposing a non-probationable penalty is
appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty, the defendant shall be allowed
to apply for probation based on the modified decision before such
decision becomes final. This notwithstanding, the accused shall lose
the benefit of probation should he seek a review of the modified
decision which already imposes a probationable penalty.
In Hernan vs. Honorable Sandiganbayan, G.R. No. 217874,

December 5, 2017, accused was convicted of malversation and
sentenced to suffer a penalty of 11 years, 6 months and 21 days of
prision mayor, which is non-probationable. The judgment becomes
final prior to the effectivity of RA No. 10951. Under Article 217 of
RPCas amended by RA No. 10951, the penalty for malversation
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involving an amount of not exceeding P40,000 is only prision

correccional in its medium and maximum periods. Despite the
immutability of a final judgment, the Supreme Court reduced the
penalty to 3 years, 6 months and 20 days of prision correccional in
accordance with RA No. 10951, which penalty is now probationable.
It was stated that because of RA No. 10951, not only must sentence
of the accused be modified respecting the settled rule on the
retroactive effectivity of favorable laws, she may even apply for
probation. In sum, applying Section 4 of P.D. No. 968, as amended
by R.A. No. 10707, since the judgment of conviction imposing a non-
probationable penalty is modified through the imposition of a
probationable penalty, she is now allowed to apply for probation
based on the modified decision before such decision becomes final.
(see: Aguinaldo vs. People, G.R. No. 226615, January 13, 2021)
EFFECT OF THE DEATH OF THE ACCUSED
Death of the offender or accused extinguishes his criminal

liability. However, death of the offended party will not extinguish the
criminal liability of the offender. (People v. XXX, G.R. No. 205888,
August 22, 2018)
When the death of the offender occurs after final judgment, only
his criminal liability is extinguished. However, his civil liability is not
affected by his death. Hence, despite the death of a convict after
finality of conviction for theft, his heirs are obligated to return to the
offended party the stolen properties.
When the death of the offender occurs before final judgment, his
liability as to the personal penalties and pecuniary penalties is
extinguished under Article 89 of the Revised Penal Code.
In People v. Bayotas, G.R. No. 102007, September 2, 1994,
pecuniary penalties include not only fine and cost but also civil
liability arising from crime. (2000, 2004, 2013, and 2015 Bar Exams).
As a rule, Article 89 merely provides modes of criminal extinction.

The modes of extinguishing civil liability are found in the Civil Code.
However, there is an exception. Under Article 89, death of the
offender, which occurs before the finality of judgment, is a mode of
extinguishing both criminal liability and civil liability arising from
crime.
Upon death of an accused pending appeal, his criminal liability
and the corresponding civil liability arising from crime are
extinguished, but civil liability arising from other source of obligation
such as quasi-delict, contract, quasi-contract or law survives. (People
v. Bayotas, supra)
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1. Civil Liability Arising from Crime — Civil action based on

crime is deemed included in the institution of criminal action. Death
of the accused pending appeal will cause the dismissal of both the
criminal action and civil action since the liabilities involved therein
are extinguished. (People v. Bayotas, supra)
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2. Civil Liability Arising from Other Source — Civil action

based on quasi-delict, contract, quasi-contract or law is not deemed
included in the institution of criminal action. Since death of the
accused pending appeal does not extinguish civil liability arising from
these sources of obligation, the private complainant must file a
separate civil action against either the executor or administrator, or
the estate of the accused. The statute of limitations on this surviving
civil liability is deemed interrupted during the pendency of the
criminal case. (People v. Bayotas, supra)
3. Civil Liability Involving Violation of B.P. Blg. 22 — In
violation of B.P. Blg. 22, the civil action based on crime, quasi-delict,
contract (loan or sale), quasi-contract or law is mandatorily included
in the institution of criminal action. Since death of the accused
pending appeal extinguishes criminal liability and civil liability
arising from crime, both criminal action and civil action based on
crime will be dismissed. But the civil action based on contract (or
other sources of obligation), which was also deemed instituted in the
criminal action for B.P. Blg. 22, will not be dismissed. Hence, the
court, despite the death of the accused, must determine this
surviving civil liability arising from contract. (Bernardo v. People, G.R.
No. 182210, October 5, 2015) In sum, the private complainant is not
required to file a separate civil action based on contract involving a
dishonored check.
4. Civil Action in General and Civil Action in B.P. Blg. 22 —
Civil action in general and civil action in B.P. Blg. 22 are
distinguished as follows:
1. Civil action in general is deemed included in the institution
of criminal action unless the offended party made a reservation. Civil
action in B.P. Blg. 22 is mandatorily included in the institution of
criminal action. Reservation is not allowed. However, civil action in
general or civil action in B.P. Blg. 22 is not included in the institution
of criminal action if the former was instituted prior to the latter;
2. Only civil action based on crime is deemed included in the
institution of criminal action. In B.P. Blg. 22, civil action based on
crime, quasi-delict, contract, quasi-contract or law is mandatorily
included in the institution of criminal action;
3. Upon death of the accused pending appeal, the criminal
action and civil action based on crime will be dismissed. Offended
party must file a separate civil action based on quasi-delict, contract,
quasi-contract or law against either the executor or administrator, or
the estate of the accused. The statute of limitations on this surviving
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civil liability is deemed interrupted during the pendency of the

criminal case.
Upon death of the accused pending appeal in B.P. Blg. 22, the
criminal action and civil action based on crime will be dismissed. But
the civil action based on quasi-delict, contract, quasi-contract or law,
which is included in the institution of criminal action, will not be
dismissed. The court despite the death of the accused must
determine this civil liability arising from contract, quasi-contract,
quasi-delict or law.
Immutability of final judgement - Under the doctrine of

finality of judgment or immutability of judgment, a decision that has
acquired finality becomes immutable and unalterable, and may no
longer be modified in any respect, even if the modification is meant
to correct erroneous conclusions of fact and law, and whether it be
made by the court that rendered it or by the Highest Court of the
land. Nonetheless, the immutability of final judgments is not a hard
and fast rule as the Court has the power and prerogative to relax the
same in order to serve the demands of substantial justice. (People vs.
Layag, G.R. No. 214875, October 17, 2016)
If the death of the accused happened prior to the finality of the

judgement convicting him of rape and acts of lasciviousness, but the
Supreme Court was belatedly informed of such death only after the
finality of such judgment, the case will be re-opened for purposes of
dismissing the case. (People vs. Layag, G.R. No. 214875, October 17,
2016) If the penalty imposed by the trial court is outside the range
prescribed by law, the Supreme Court can re-open a final and
immutable judgement to impose the correct penalty under the law.
(Bigler vs. People, G.R. No. 210972, March 19, 2016; Aguinaldo vs.
People, G.R. No. 226615, January 13, 2021) If the new law
prescribes a lesser penalty for the crime of which the accused was
previously convicted by final judgement, the Supreme Court can re-
open a final and immutable judgement judgment to impose the lesser
penalty under the new law. In sum, the new law shall be given a
retroactive effect. (Hernan vs. Honorable Sandiganbayan, G.R. No.
217874, December 5, 2017). Layag case, Bigler and Hernan case are
exceptions to the immutability of final judgment rule.
CRIMES AGAINST PERSONS
MURDER - The killing of a child is characterized by treachery

even if the manner of the assault is not shown in the
Information, as the weakness of the victim due to his tender age
results in the absence of any danger to the accused. Hence, the
mere allegation of the victim's minority is sufficient to qualify the
crime to murder. (People vs. Enojo, G.R. No. 240231, November 27,
2019)
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1. Cruelty and ignominy - In cruelty and ignominy, the

intention of the accused is to augment the physical and moral
suffering of the victim, respectively; hence, these circumstances
cannot be considered if the subject act was committed at the time the
victim was already dead since a dead person suffers no more. On the
other hand, outraging or scoffing is either at the person of the victim
or at the corpse of the victim. Hence, scoffing can be considered even
though the outrageous act was committed at the time that the victim
is already dead.
Cutting the head of a dying victim after the infliction of mortal
wound on him is cruelty or scoffing. (People v. Gerero, G.R. No.
213601, July 27, 2016) On the other hand, cutting the head of a dead
victim after killing him is scoffing but not cruelty. (People v. Binondo,
G.R. No. 97227, October 20, 1992) Raping a dying victim after the
infliction of mortal wound on her is cruelty, ignominy, and scoffing.
(People v. Laspardas, G.R. No. L-46146, October 23, 1979) Inserting
a toothbrush into the anal orifice of a dying victim is cruelty. (People
v. Bernabe, G.R. No. 185726, October 16, 2009) On the other hand,
sodomizing a dead victim after killing her is scoffing but not cruelty
or ignominy. (People v. Butler, G.R. No. 50276, January 27, 1983)
Scoffing or outraging is a qualifying circumstance in murder
under Article 248 but it is not an ordinary aggravating circumstance
under Article 14. Ignominy is an ordinary aggravating circumstance,
but it is not a qualifying circumstance in murder. Cruelty is a
qualifying circumstance in murder and ordinary aggravating
circumstance.
PARRICIDE - In parricide, if the victim is a parent or child of the

accused, the relationship may either be legitimate or illegitimate; if
the victim is the spouse, grandparent or grandchild of the accused,
the relationship must be legitimate. (People v. Gamez, G.R. No.
202847, October 23, 2013; People v. Macal, G.R. No. 211062, January
13, 2016)
The rule on not treating illegitimate grand relationship as a
qualifying circumstance in parricide is based on the social
condition before where grandparents were usually not accepting
illegitimate grandchild in the family. The act of killing committed
against or by an illegitimate grandchild is not as serious as an act
of killing committed against or by a legitimate grandchild. Hence,
illegitimate grand relationship under the law will not qualify the
killing into parricide to upgrade the penalty.
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DEATH UNDER EXCEPTIONAL CIRCUMSTANCE - Accused saw his

wife was rising up with a man, who was standing and buttoning his
drawers. Completely obfuscated, accused killed his wife. The
circumstance indicates that she had just finished having sexual
intercourse with another man. This is not death under exceptional
circumstance since he did not catch his wife in the very act of carnal
intercourse, but after such act. (People v. Gonzales, G.R. No. 46310,
October 31, 1939)
A married woman and her paramour videoed themselves while
they are having sexual intercourse. After a month, the husband saw
the sex video of his wife with her paramour. Out of extreme jealousy,
the husband immediately killed his wife. Applying the Gonzalez
principle, this is not parricide under exceptional circumstance since
the husband did not surprise his wife in the very act of sexual
intercourse with her paramour. However, the commission of parricide
is attended by ordinary mitigating circumstance of passion.
R.A. No. 8353, the Anti-Rape Law, recognizes the distinction
between sexual intercourse, and fingering, cunnilingus or sodomy.
Under this law, fingering, cunnilingus or sodomy of a victim by
means of force constitute sexual assault, and not rape. Fingering,
cunnilingus or sodomy is not also within the contemplation of term
“sexual intercourse,” which is an element of adultery, concubinage or
seduction. By the same token, fingering, cunnilingus, or sodomy
should be interpreted as outside the context of the words “sexual
intercourse” as an element of death under exceptional circumstance.
There is no death under exceptional circumstance if the accused
caught his wife having homosexual intercourse with another woman.
“Homosexual intercourse” is not within the contemplation of the term
“sexual intercourse” in Article 247. However, the crime of parricide is
attended by the circumstance of passion arising from a lawful
sentiment as a result of having caught his wife in the act of infidelity
with another woman. (see: People v. Belarmino, G.R. No. L-4429, April
18, 1952; 2015 Bar Exam)
X killed his wife in the act of having sex with a man. It turned out
that the man was raping his wife. X shall not be punished for
parricide. The act of X would have produced death under exceptional
circumstance had the facts, “that the wife was voluntarily having
sexual intercourse with a man,” been as the accused believed them
to be. Because of mistake of fact, X should be sentenced to suffer
destierro as prescribed for death under exceptional circumstance.
In People v. Abarca, G.R. No. 74433, September 14, 1987, upon
reaching home, the accused found his wife in the act of sexual
intercourse with the victim. When they noticed the accused, the wife
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pushed her paramour who got his revolver. The accused who was
then peeping above the built-in cabinet in their room jumped and ran
away. Immediately, thereafter, the accused went to look for a firearm
at Tacloban City. Thereafter, he went back to his house with a firearm
but he was not able to find his wife and victim. He proceeded to the
mahjong session where he found the victim playing. Accused fired at
the victim three times with his rifle. The victim died. This is death
under exceptional circumstance although about one hour had
passed between the time of discovery of infidelity and killing. Article
247, in requiring that the accused “shall kill any of them or both of
them... immediately” after surprising his spouse in the act of
intercourse, does not say that he should commit the killing instantly
thereafter. It only requires that the death caused be the proximate
result of the outrage overwhelming the accused after chancing upon
his spouse in the act of infidelity. But the killing should have been
actually motivated by the same blind impulse, and must not have
been influenced by external factors. The killing must be the direct by-
product of the accused’s rage. (1988 Bar Exam)
Promoting prostitution or consenting to infidelity (e.g., execution
of a notarized document allowing his wife to get a new partner as her
husband) will negate the benefit of death or physical injuries under
exceptional circumstance. (2018 Bar Exam)
In case of slight physical injuries or less serious physical injuries
under exceptional circumstance, the accused shall be exempt from
punishment. (1970 Bar Exam) In case of serious physical injuries or
death under exceptional circumstance, the accused shall suffer the
penalty of destierro. (Article 247)
Frustrated murder or frustrated parricide is within the
contemplation of the words “serious physical injuries” in Article 247
of the Revised Penal Code. (2018 Bar Exam)
Death under exceptional circumstance is a not crime but a
defense (People v. Puedan, G.R. No. 139576, September 2, 2002), or
an absolutory cause. (People v. Talisic, G.R. No. 97961, September 5,
1997) If the accused caught his wife in the act of having sexual
intercourse with another man, and as a consequence, he killed the
paramour of his wife, he shall be charged of homicide (or murder),
and not death under exceptional circumstance. Article 247 does not
define a crime but merely provides a privilege or benefit amounting
practically to an exemption from an adequate punishment. (People v.
Araquel, G.R. No. L-12629, December 9, 1959)
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Under this view, destierro prescribed for death under exceptional

circumstance is not a penalty but a measure designed to protect
accused from acts of reprisal principally by relatives of the victim.
(People v. Araquel, supra; People v. Coricor, G.R. No. L-48768,
December 4, 1947; 2005 Bar Exam)
For purposes of Article 4 of the Revised Penal Code, death under
exceptional circumstance is not an intentional felony. In People v.
Abarca, G.R. No. 74433, September 14, 1987, according to the
Supreme Court, Article 4 presupposes that the act done amounts to
a felony. If the act constitutes death under exceptional
circumstances, and not murder, the accused cannot be held liable
for the injuries sustained by third persons, who were hit by reason
of mistake of blow, on the basis of Article 4. Accused is not exempt
from criminal liability. Article 12 on accident is not applicable since
there is culpa in this case. Since the gambling house is a crowded
place, accused should have adopted precautionary measure that will
prevent any undesirable consequence that may arise from the acts
constituting death under exceptional circumstance that he
committed. The warning that he made is not enough. Hence, the
accused was convicted of reckless imprudence resulting in physical
injuries under Article 356.
For purposes of self-defense, attacking under exceptional
circumstance is not an unlawful aggression. For example, victim,
who caught his wife in the act of infidelity, attacked her paramour.
To defend himself, the paramour killed the victim. The paramour
could not invoke self-defense since the attack made by the husband
under exceptional circumstance is not an unlawful aggression. The
paramour well knew that by maintaining unlawful relations with a
married woman, he was performing an unlawful and criminal act and
exposed himself to the vengeance of the offended husband. (US v.
Merced, G.R. No. 14170, November 23, 1918; 1985 Bar Exam)
For purposes of civil liability arising from crime, death under
exceptional circumstance is not a crime. Hence, the accused, who
killed the victim under exceptional circumstance, has no civil liability
arising from crime.
INFANTICIDE - There are three requisites to make killing as
infanticide, to wit:
1. The infant must be killed outside the maternal womb. An
unborn fetus is not an infant. Hence, killing an unborn fetus
regardless of its viability or intrauterine life is not infanticide, but
abortion;
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2. The infant must be viable. Even though the fetus is born

alive, if it is non-viable, it shall not be considered as an infant for
purposes of the crime of infanticide. Killing a non-viable fetus outside
the womb is still abortion; and
3. The infant must be less than three days old. For medical
purpose, a 3-month-old child is an infant. But for purpose of
infanticide, an infant is a child less than 3 days old. A child with a
life of three (3) days or more is not an infant; hence killing a child,
who is not an infant, is not infanticide but parricide or murder.
HOMICIDE - To be held liable for parricide, the killing must not

constitute infanticide. In sum, the child killed by the offender must
not be less than three years old. (The Revised Penal Code by Justice
Luis Reyes) To be held liable for murder, the killing must not
constitute parricide or infanticide. (People v. Dimapilit, G.R. No.
210802, August 9, 2017) To be held liable for homicide, the killing
must not constitute infanticide, parricide, or murder. (Licyayo v.
People, G.R. No. 169425, March 4, 2008)
RAPE – There are two kinds of rape: (1) rape through sexual
intercourse; and (2) rape through sexual assault. However, the
Supreme Court in People vs. Tulugan, G.R. No. 227363, March 12,
2019 said that rape through sexual intercourse should be called as
“rape” while rape through sexual assault should be called as “sexual
assault.”
Rape, which is commonly denominated as “organ rape” or

“penile rape,” is committed by a man by having carnal knowledge
with a woman. This is a gender crime since the offender must be a
man while the victim must be a woman.
On the other hand, there are three kinds of sexual assault, to

wit: (1) instrument or object sexual assault, which is committed by
inserting an instrument or object into the genital or anal orifice of
another person; (2) sexual assault through oral intercourse, which is
committed by inserting his penis into another person’s mouth; and
(3) sexual assault through sodomy, which is committed by inserting
his penis into another person’s anal orifice. In sexual assault, the
gender of the offender and the victim is not material. That is why this
crime is called “gender-free sexual assault.” (see: People v. Soria, G.R.
No. 179031, November 14, 2012) However, the modes (e.g.,
intimidation) or circumstances (e.g., demented victim) in committing
the crime and the qualifying circumstances are the same whether the
crime is rape or sexual assault.
It is already a settled rule that a finger or tongue is an

instrument or object; hence inserting a finger or tongue into genital
orifice is sexual assault (People v. Chingh, G.R. No. 178323, March
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16, 2011; (People vs. Bonaagua, GR No. 188897, June 6, 2011).

However, Justice Leonen in his dissenting opinion in People v.
Caoili, G.R. No. 196342, August 8, 2017 said that nonconsensual
insertion of a finger in another's genitals is rape by carnal knowledge;
the finger, when used in a sexual act, is not an instrument or an
object. It is as much a part of the human body as a penis; When
consensual, it can be used to give sexual pleasure. When forced, it
can be used to defile another's body; Equating the finger to a separate
instrument or object misunderstands the gravity of the offense.
1. Absorption rule - If the accused commits rape and acts of

lasciviousness, the latter is absorbed by the former (People vs. Dy,
G.R. Nos. 115236-37, January 29, 2002). But the doctrine of
absorption is not applicable to rape and sexual assault. Inserting
lighted cigarette into the genital orifice and anal orifice of the victim
and raping her constitutes two separate crimes of sexual assault and
rape (People vs. Crisostomo, GR No. 196435, January 29, 2014).
Inserting the penis into the mouth of the victim and into her genital
orifice constitutes separate crimes of sexual assault and rape (People
vs. Espera, G.R. No. 202868, October 2, 2013; People vs. Dereco,
G.R. No. 243625, December 2, 2020)
2. Withdrawal of consent - Where the woman consents, but

then withdraws her consent before penetration, and the act is
accomplished by force, it is rape. (People v. Butiong, G.R. No. 168932,
October 19, 2011) But if the woman tacitly consents to have sexual
intercourse with the accused, but then withdraws her consent in the
course of sexual intercourse because she felt pain, and the act is not
rape. It would be unfair to convict a man of rape committed against
a woman who, after giving him the impression thru her
unexplainable silence of her tacit consent and allowing him to have
sexual contact with her, changed her mind in the middle and charged
him with rape (People vs. Tionloc, G.R. No. 212193, February 15,
2017).
3. Stealthing - Where a woman offers to allow a man to have

intercourse with her on certain conditions and he refuses to comply
with the conditions, but accomplishes the act without her consent,
he is guilty of rape. (People v. Butiong, supra)
Stealthing is the removal of condom by the man during sex

without consent of the woman. In Germany, stealthing is a crime,
which is different and distinct from rape. In sum, stealthing under
German Law is not within the contemplation of the word “rape.”
In our country, there is no crime of stealthing in the book of

statutes. Moreover, stealthing is not equivalent to rape since lack of
consent as an element of this crime pertains to sex and not to the
removal of the condom. Nullum crimen, nulla poena sine lege.
However, if the woman expressly and categorically required the use
of condom as a condition to sex, and made it clear that she would
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not give her consent to a sexual intercourse without a condom,

stealthing may constitute fraudulent machination, which is a mode
of committing rape. But absolute lack of consent must be shown to
make the man liable for rape through fraudulent machination. If the
woman failed to resist the continued sex, or register a strong
objection upon knowing that the man already removed the condom
from his penis, rape must be ruled out. Rape is a serious crime
punishable by reclusion perpetua. Hence, the acts committed by the
accused must be clearly within the contemplation of the statute on
rape; otherwise, he must be acquitted of rape based on the pro reo
principle.
4. Tenacious resistance - Among the amendments of the law

on rape introduced under RA No. 8353 is Section 266-D, which
provides “Any physical overt act manifesting resistance against the act
of rape in any degree from the offended party, or where the offended
party is so situated as to render her/him incapable of giving valid
consent, may be accepted as evidence in the prosecution rape” (People
vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators
agreed that Article 266-D is intended to soften the jurisprudence on
tenacious resistance (People vs. Dulay, G.R. Nos. 144344-68, July
23, 2002). Indeed, failure to offer tenacious resistance does not make
the submission by the victim to the criminal acts of the accused
voluntary. What is necessary is that the force employed against her
be sufficient to consummate the purpose which he has in mind
(People vs. Olesco, G.R. No. 174861 April 11, 2011; People vs.
Nachor, G.R. No. 177779, December 14, 2010). It is not necessary for
the victim to sustain physical injuries. She need not kick, bite, hit or
scratch the offender with her fingernails to prove that she had been
defensive (People vs. Torres, G.R. No. 134766, January 16, 2004).
Well-settled is the rule that where the victim is threatened with bodily
injury, as when the rapist is armed with a deadly weapon, such as a
pistol, knife, ice pick or bolo, such constitutes intimidation sufficient
to bring the victim to submission to the lustful desires of the rapist
(G.R. No. 176740 June 22, 2011, People v. Dumadag).
Resistance against sexual advance may establish lack of

consent. Hence, rape is committed. On the other hand, lack of
resistance may sometimes imply consent. However, that is not always
the case. While it may imply consent, there are circumstances that
may render a person unable to express her resistance to another's
sexual advances. Thus, when a person has carnal knowledge with
another person who does not show any resistance, it does not always
mean that that person consented to such act. Lack of resistance does
not negate rape. (People vs. Ibanez, G.R. No. 231984, July 6, 2020)
5. Intimidated person and retarded person - If the information

alleged force, threat, or intimidation without averment of any mental
disability on the part of the victim, the accused can still be convicted
provided that sexual congress and mental incapacity, i.e. the
incapacity to give consent, are proven by clear and convincing
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evidence (People vs. Quintos, G.R. No. 199402, November 12, 2014;
Justice Leonen; People vs. Gilles, G.R. No. 229860, March 21,
2018). Having sexual intercourse with a mentally retarded person is
equivalent to having sexual intercourse with a person through
intimidation. If the Information alleged intimidation as a mode of
raping the victim, but the evidence merely proves her mental
retardation, the accused can be convicted of rape through
intimidation. (People v. Balatazo, G.R. No. 118027, January 29,
2004)
6. Person deprived of reason and demented person - There

are two victims in rape with mentally disability, to wit: (1) persons
deprived of reason; and (2) demented person. The concept of the
terms “deprived of reason” is comprehensive since it includes
demented or insane person and mentally retarded person. On the
other hand, the term "demented" is confined to insane person. If the
victim is insane, the accused can be charged with rape of person
deprived of reason or demented person. If the victim is mentally
retarded, the accused should be charged with rape of a person
deprived of reason (People vs. Eleuterio, G.R. No. 219957, April 4,
2018) or statutory rape of a person under 12 years of age (People v.
Daniega, G.R. No. 212201, June 28, 2017).
7. Retarded person and demented person - Describing a

mentally retarded person in the information as demented is
improper. A mentally retarded person is not insane or demented.
However, describing the victim in the information as a "mentally
defective woman” (People vs. Martinez, G.R. No. 226394, March 7,
2018), or “a demented person whose mental age is below 7 years old”
(People v. Caoile, G.R. No. 203041, June 5, 2013) is sufficient
compliance with the constitutional mandate that an accused be
informed of the nature of the charge against him.
If the Information alleged the victim of rape is demented, but

the evidence merely proves her mental retardation, the accused
cannot be convicted of rape unless the accused failed to raise the
mistake in the Information as an objection (People v. Ventura, Sr.,
G.R. No. 205230, March 12, 2014; People vs. Eleuterio, G.R. No.
219957, April 04, 2018)
8. Deaf-mute - Information alleged that accused had sexual

intercourse with the complainant, who suffered physical defect
(hearing impaired) against her will. The Information does not validly
charge the crime of rape or any offense at all. Surely, being a deaf-
mute does not necessarily take the place of the element of force or
intimidation or having been deprived of reason, unconscious, or
demented. (People vs. Cubay, G.R. No. 224597, July 29, 2019)
9. Qualifying circumstance - If the relationship between the

accused and the victim of rape is uncle and niece, the Information
must allege that the offender is “a relative by consanguinity or affinity
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within the third civil degree” because there are niece-uncle

relationships which are beyond the third civil degree. However, a
sister-brother relationship is obviously in the second civil
degree. Consequently, it is not necessary that the Information
should specifically state that the accused is a relative by
consanguinity within the third civil degree of the victim (People vs.
Ceredon, G.R. No. 167179, January 28, 2008).
Assuming that accused and victim had a romantic relation,

carnal knowledge with victim, even if consensual, would amount to
rape due to her mental disability. Knowledge victim's mental
retardation is not an element for the charge of rape. However,
knowledge of her mental condition is important for purposes of
qualifying the charge of rape. (People vs. Martinez, G.R. No. 226394,
March 7, 2018)
Knowledge of the mental disability of the victim is not an

element of rape (People vs. Caoile, GR No. 203041, June 5, 2013) but
it is an ingredient of the qualifying circumstance of mental disability,
which must be alleged in the information (People vs. Obogne, GR No.
199740, March 24, 2014; People vs. Lascano, G.R. No. 192180,
March 21, 2012; People v. Madeo, G.R. No. 176070 October 2, 2009)
Relationship or minority alone is not enough to qualify rape. In

qualified rape, there must be a concurrence of relationship and
minority. Relationship includes the third civil degree of
consanguinity or affinity in order to qualify rape. In this case, the
accused is the cousin of the victim's father. Their relationship is fifth
degree. Hence, the crime is only simple rape. (People vs. XXX, G.R.
No. 232308, October 7, 2020)
In qualifying circumstances of minority and relationship in rape

and special aggravating circumstance in sexual abuse under RA No.
7610, the guardian must be a person who has legal relationship with
his ward. He must be legally appointed was first (People vs. Flores
G.R. No. 188315, August 25, 2010).
The accused and victim have step-relationship if the former and

mother of the latter is married; without marriage, their relationship
is common-law. If the information alleged that the accused is the
step-father of the victim, but the evidence shows he is the common
law husband of her mother there being no marriage certificate
presented, the qualifying circumstance of relationship and minority
cannot be appreciated in rape. (People vs. Tuyor, G.R. No. 241780,
October 12, 2020; People vs. XXX, G.R. No. 240441, December 04,
2019)
10. Marital rape - Husband can be held liable for marital rape.
Article 266-A of RPC uses the term “man” in defining rape without
regard to the rapist’s legal relationship with his victim. Under Article
266-C of RPC, in case it is the legal husband who is the offender, the
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subsequent forgiveness by the wife as the offended party shall

extinguish the criminal action. RA No. 8353 has eradicated the
archaic notion that marital rape cannot exist because a husband has
absolute proprietary rights over his wife’s body and thus her consent
to every act of sexual intimacy with him is always obligatory or at
least, presumed (People vs. Jumawan, G.R. No. 187495, April 21,
2014).
11. Maria Clara rule - The Maria Clara or women’s honor

doctrine is a standard used by the court in assessing the credibility
of a rape victim. Under this principle, women of decent repute,
especially Filipinos, would not publicly admit that she has been
sexually abused, unless that is the truth, for it is her natural instinct
to protect her honor. However, the factual setting in 1960 when the
“women’s honor” doctrine surfaced in our jurisprudence is that it is
natural for a woman to be reluctant in disclosing a sexual assault.
However, the women today have over the years transformed into a
strong and confidently intelligent and beautiful person, willing to fight
for her rights. Thus, in assessing the credibility of a rape victim, the
Maria Clara standard should not be used. The testimony of the victim
must be evaluated without gender bias or cultural misconception. It
is important to weed out the Maria Clara notions because an accused
may be convicted solely on the testimony of the victim. (People v.
Amarela, G.R. Nos. 225642-43, January 17, 2018)
In People vs. Perez, G.R. No. 201414, April 18, 2018, and People
vs. ZZZ, G.R. No. 229209, February 12, 2020, the Supreme Court
through Justice Leonen affirmed the Amarela principle, which
abandoned the Maria Clara principle. Justice Leonen also cited the
Amarela principle in People vs. Tulugan. For purpose of the 2021 Bar
Exam, it is advisable that the Amarela principle should be followed.
12. Non-decriminalization of acts of lasciviousness - Under

Article 336 of the Revised Penal Code, acts of lasciviousness is
committed by any person upon other persons of either sex, under
any of the circumstances mentioned in the preceding article. The
words “preceding article” in Article 336 pertains to Article 335 on old
version of rape. According to Justice Leonen, Section 4 of RA No.
8353 (the Anti-Rape Law) expressly repealed Article 335 of the
Revised Code on rape. Since the circumstances under which acts of
lasciviousness is committed, are sourced from a repealed Article 335
of the Code, Article 336 of the Code on acts of lasciviousness has
been rendered incomplete and ineffective by RA No. 8353.
The opinion of Justice Leonen is not a controlling rule. Several

cases rendered by the Supreme Court affirmed the conviction of the
accused for acts of lasciviousness. In other words, RA No. 8353 did
not decriminalize acts of lasciviousness on the basis of prevailing
jurisprudence. According to the Supreme Court in People vs.
Tulugan, G.R. No. 227363, March 12, 2019, it is erroneous to claim
that acts of lasciviousness can no longer be prosecuted under the
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Revised Penal Code. The decriminalization of acts of lasciviousness,

as per Justice Leonen's theory, would not sufficiently be supplanted
by RA No. 7610 and RA No. 9262. Section 4 of RA No. 8353 did not
expressly repeal Article 336 of the Code; it only states that Article 336
of the Code inconsistent with or contrary to the provisions thereof are
deemed amended, modified or repealed, accordingly. There is nothing
inconsistent between the provisions of Article 336 of the Code, and
RA No. 8353, except some acts of lasciviousness (e.g. sodomy) are
now punishable as sexual assault. Article 336 of the Code is still a
good law despite the enactment of RA No. 8353 for there is no
irreconcilable inconsistency between their provisions. When the
lascivious act does not constitute rape or sexual assault under RA
No. 8353, then Article 336 of the Code on acts of lasciviousness is
applicable.
13. Variance rule - If the crime charged is rape, but the crime
proven is acts of lasciviousness, the accused will be convicted of the
latter because of the variance rule. Acts of lasciviousness is a lesser
crime, which is necessarily included in the charge of rape.
If the crime charged is rape, but the crime proven is sexual

assault, the accused cannot be convicted of the latter. The variance
rule is not applicable since sexual assault is not necessarily included
in the charge of rape. The elements of these two crimes are materially
and substantially different. (People vs. Dereco, G.R. No. 243625,
December 02, 2020) In such case, the accused will be convicted of
acts of lasciviousness (People vs. Pareja, GR No. 202122, January 15,
2014; People vs. Caoili, G.R. No. 196342, August 08, 2017); or acts
of lasciviousness under RPC in relation to RA No. 7610 (People vs.
Dagsa, G.R. No. 219889, January 29, 2018); or lascivious conduct
under RA No. 7610 (People vs. ZZZ, G.R. No. 224584, September 04,
2019). Acts of lasciviousness or lascivious conduct is necessarily
included in the charge of rape.
If the crime charged is acts of lasciviousness, but the crime

proven is sexual assault, he will be convicted of the lesser crime of
acts of lasciviousness. Sexual assault is a crime undoubtedly greater
than acts of lasciviousness. While it is true that the crime of acts of
lasciviousness is necessarily included in the crime of sexual assault,
the crime of sexual assault however is not subsumed in the crime of
acts of lasciviousness. (People vs. Jagdon, Jr., G.R. No. 242882,
September 09, 2020)
If the information alleged the elements of both sexual assault

and rape, and the crime proven is sexual assault, the accused can be
convicted of sexual assault. In People vs. Fruelda, G.R. No. 242690,
September 3, 2020, AAA testified that while accused was moving his
finger in and out of her private part through the opening of her pants'
zipper, he took out his penis and massaged the same. Shortly
thereafter, AAA lost consciousness. When she woke up, she was
seated on the floor with her underwear and pants pulled down to her
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knees. Based on the foregoing, the crime committed by accused is

sexual assault. Although it is possible that accused had carnal
knowledge of AAA while the latter was unconscious, he cannot be
convicted of the crime of rape by carnal knowledge based on a mere
possibility. Note: In this case, the information alleged the elements of
sexual assault and rape.
14. Double jeopardy - The Regional Trial Court convicted the

accused of attempted rape. Finding that there is no intent to have
sex, the Court of Appeals modified the decision of the lower court and
downgraded the conviction to acts of lasciviousness. By convicting
the accused of acts of lasciviousness, the Court of Appeals technically
acquitted the accused of attempted rape, which is already final and
unappealable. Thus, double jeopardy has already set in and Solicitor
General is already barred from assailing his acquittal of attempted
rape. (People vs. Arcega, G.R. No. 237489, August 27, 2020) In sum,
the Supreme Court cannot upgrade the conviction from acts of
lasciviousness to attempted rape if the petition for review was filed
by the people through the Office of the Solicitor General.
The Regional Trial Court convicted the accused of sexual

assault with the qualifying circumstance that the victim is under 7
years old. Finding lack of insertion of the finger of the accused into
the vagina of the victim, the Court of Appeals downgraded the
conviction to attempted qualified sexual assault, and sentenced him
to suffer a maximum penalty of 4 years and 2 months of prision
correccional. Finding lack of intent to insert his finger into her vagina,
the Supreme Court convicted the accused of acts of lasciviousness
under RA No. 7610 and sentenced the accused to suffer a maximum
penalty of 15 years, 6 months and 20 days of reclusion temporal
(Lutap vs. People, G.R. No. 204061, February 5, 2018) Since the
penalty for acts of lasciviousness under RA No. 7610 is higher than
that for attempted qualified sexual assault, the Supreme Court in
effect upgraded the conviction of the accused. In sum, the Supreme
Court can upgrade the conviction if the petition for review was filed
by the accused.
Accused should not appeal for the shake of appealing. If the

accused through his counsel appealed his case or filed a petition for
review, he is waiving his right against double jeopardy and exposing
himself to a possible upgrading of his conviction. In the case of Lutap,
the Supreme Court increases the penalty from a probationable
penalty of prision correccional to a non-probationable penalty
of reclusion temporal.
15. Rape with homicide - The phrase “by reason of the

rape” obviously conveys the notion that the killing is due to the rape,
which is the crime the offender originally designed to commit. The
victim of the rape is also the victim of the killing. In contrast, the
phrase “on the occasion of the rape” as shown by Senate deliberations
refers to a killing that occurs immediately before or after,
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or during the commission itself of the rape, where the victim of the
homicide may be a person other than the rape victim. (People vs.
Villaflores, G.R. No. 184926, April 11, 2012; People vs. Laog, G.R.
No. 178321, October 5, 2011)
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For the crime of robbery with rape, the law does not distinguish
whether the rape was committed before, during, or after the robbery,
but only that it punishes robbery that was accompanied by rape.
(People vs. Salen, G.R. No. 231013, January 29, 2020, Justice
Leonen)
TUMULTUOUS AFFRAY - Death caused in a tumultuous affray is

committed by person or persons identified as responsible for
inflicting serious physical injuries or using violence upon the
deceased, who is killed by an unidentified person in the course of
tumultuous affray. (Article 251)
The provision on death caused in tumultuous affray is an
evidentiary measure designed to remedy a situation where the
participant thereof, who killed the victim, was not identified
because of the confusion. Since there is uncertainty on whether
the one, who employed violence against the victim, killed him or
merely inflicted physical injuries on him, the former will be
punished for death caused in a tumultuous affray with the
penalty lesser than that for homicide or murder.
In death caused in a tumultuous affray, the unidentified
participant of the free-for-all rumble killed the victim while the
identified participant thereof inflicted serious physical injuries or
using violence upon the deceased. Using violence may constitute
less serious or slight physical injuries. The identified participants
are liable for death caused in a tumultuous affray.
There is tumultuous affray when several persons quarrel and
assault each other in a confused and tumultuous manner
provided that they are not composed of groups organized for the
common purpose of reciprocally assaulting and attacking each
other. (Article 251) Tumultuous affray is also called as free-for-all
rumble.
During a fiesta, A boxed B, who felled on the table of C and D.
D boxed A, who fell on the table of E and F. F boxed B. Then, a
free-for-all rumble erupted where A, B, C, D, E and F are
assaulting each other in a confused manner. F was stabbed and
killed. There are two possible scenarios in this case, to wit:
1. A witness testified that he saw A, B and C boxing F, but
he failed to identify who among them stabbed and killed F. A, B
and C shall be convicted of death caused in a tumultuous affray
with the penalty lesser than that for homicide. (1997 Bar Exam)
2. A witness testified that he saw A and B boxing F, and
C stabbing and killing F. A and B are liable for slight physical
injuries, and C is liable for homicide. C is not entitled to the lesser
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penalty for death caused in a tumultuous affray because “failure

to identify the killer” is an element of this crime; but C was
identified as the killer. (People v. Maramara, G.R. No. 110994,
October 22, 1999; Wacoy v. People, G.R. No. 213792, June 22,
2015)
A, B, and C are members of Alpha Phi fraternity while D, E
and F are members of Phi Beta fraternity. These two fraternities
are at war. A, B and C assaulted D, E and F inside the campus of
Beda University. Rumble erupted. A witness testified that he saw
A, B and C boxing F, but he failed to identify who among them
stabbed and killed F. (2010 Bar Exam)
A, B and C are liable for homicide. They are not entitled to the
lesser penalty for death caused in a tumultuous affray on the
following reasons:
1. There is no tumultuous affray because A, B, C, D, E,
and F are composed of two groups organized for the common
purpose of reciprocally assaulting and attacking each other. The
rumble is not free-for-all. (People v. Corpuz, G.R. No. L-36234,
February 10, 1981)
2. There is no confusion as to who are responsible for the
killing of F. There is implied conspiracy since A, B and, C are
members of Alpha Phi fraternity, who assaulted members of a
rival fraternity Phi Beta including F. Because of conspiracy, they
are collectively liable for the death of F even though the actual
killer was not identified. They are not entitled to the lesser penalty
for death caused in a tumultuous affray since all conspirators,
who are responsible for homicide, are identified. (U.S. v. Tandoc,
G.R. No. L-15635, March 16, 1920)
There is no confusion and tumultuous affray if two persons
(Wacoy v. People, G.R. No. 213792, June 22, 2015) or one group of
persons (People v. Dalabajan, G.R. No. 105668, October 16, 1997),
attacked and killed a single victim. Without confusion or
tumultuous affray, all persons, who assaulted the deceased, are
liable for murder or homicide and not for the lesser crime of death
caused in a tumultuous affray.
Failure to identify the offender who inflicted less serious physical
injury upon victim is an important element of physical injuries
inflicted in a tumultuous affray. If the accused is positively identified
as a person, who inflict the injuries on the victim, the former is not
entitled to the lesser penalty prescribed for physical injuries inflicted
in a tumultuous affray. In such a case, there is no confusion, which
is the essence of tumultuous affray. Hence, accused is liable for the
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graver crime of less serious physical injuries (Lacson vs. People, G.R.
No. 243805, September 16, 2020)
CRIMES AGAINST PROPERTY
ESTAFA – The return by the accused of money belonging to the

private complainant will not reverse a consummated act of Estafa.
Quite the contrary, such action may even uphold a conviction.
Section 27, Rule 130 of the Rules of Court states that in criminal
cases, except those involving quasi-offenses or criminal negligence or
those allowed by law to be compromised, an offer of compromise by
the accused may be received in evidence as an implied admission of
guilt. In this case, Arriola's initial attempts to reimburse Del Rosario
through checks, coupled with the actual return of the latter's money
after the RTC issued its judgment of conviction, may all be considered
as unequivocal gestures to compromise and which can be measured
against Arriola as his implied admission of guilt. (Arriola vs. People,
G.R. No. 199975, February 24, 2020)
OTHER DECEIT - For one to be liable for “other deceits” under

Article 318, it is required that the prosecution must prove the
following essential elements: (a) false pretense, fraudulent act or
pretense other than those enumerated in Articles 315, 316, and 317;
(b) such false pretense, fraudulent act or pretense must be made or
executed prior to or simultaneously with the commission of the
fraud; and (c) as a result, the offended party suffered damage or
prejudice. It is essential that such false statement or fraudulent
representation constitutes the very cause or the only motive for the
private complainant to part with her property. (Guinhawa v. People,
G.R. No. 162822, August 25, 2005)
Article 318 includes any kind of conceivable deceit other than

those enumerated in Articles 315 to 317 of the Revised Penal Code.
It is intended as the catchall provision for that purpose with its broad
scope and intendment. (Guinhawa v. People, ibid.) In estafa under
Article 315, the false representation is committed by using fictitious
name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits. Following the
principle of ejusdem generis, other deceit as a means to commit estafa
must be similar to pretending to possess power, imaginary
transaction etc. If the deceit is not similar to pretending to possess
power or imaginary transaction, the crime committed is other deceit
under Article 318.
In Guinhawa v. People, supra, fraudulent representation of the

seller that the van to be sold is brand new constitutes other deceit
under Article 318. On the other hand, in People v. Rubaton, C.A., 65
O.G. 5048, issue of May 19, 1969, false representation that accused
has a palay by reason of which the victim parted his money in
consideration of the palay constitutes estafa under Article 315.
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Unlike in the Guinhawa case, the transaction in Rubaton case is

imaginary.
In Osorio vs. People, G.R. No. 207711, July 02, 2018 (Justice
Leonen), Accused as an agent of Philam Life was authorized to solicit
money for investment purposes. However, he misrepresented to
private complainant that the latter's money would be invested in
Philam Life Fund Management and that its proceeds may be utilized
to pay for private complainant's insurance premiums. Private
complainant parted with her funds because of the representation
that her investment's earnings would be conveniently channeled to
the payment of her insurance premiums. The false representations
committed by accused is not within the contemplation of the words
“other similar deceits" in Article 315 of RPC on estafa. Same as the
case of Guinhawa, the misrepresentation is not similar to imaginary
transaction. However, he is criminally liable for the crime of other
deceit under Article 318 of RPC. Article 318 is broad in scope
intended to cover all other kinds of deceit not falling under Articles
315, 316, and 317.
Hypothetically, if the accused is not an agent of Philam Life, but

he falsely represented himself as agent, he is liable for estafa since
the investment transaction is imaginary.
THEFT – A tenant is entitled to the products of the land he or she

cultivates. The landowner's share in the produce depends on the
agreement between the parties. Hence, the harvesting done by the
tenant is with the landowner's consent. The existence of the DARAB
Decision adjudicating the issue of tenancy between accused and
complainant negates the existence of the element that the taking was
done without the owner's consent. The DARAB Decision implies that
accused had legitimate authority to harvest the abaca. The
prosecution, therefore, failed to establish all the elements of theft.
(Ligtas vs. People, G.R. No. 200751, August 17, 2015, Justice
Leonen)
1. Value of the stolen property - The value of jewelry is not a

matter of public knowledge nor is it capable of unquestionable
demonstration and in the absence of receipts or any other competent
evidence besides the self-serving valuation (P1 million) made by the
complainant, the courts may either apply the lowest penalty under
Article 309 or fix the value of the property taken based on the
attendant circumstances of the case. In this case, the court imposed
the lowest penalty (People vs. Mejares, G.R. No. 225735, January 10,
2018, Justice Leonen).
2. Domestic servant - The rationale for the imposition of a

higher penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After
accepting and allowing the helper to be a member of the household,
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thus entrusting upon such person the protection and safekeeping of

the employer's loved ones and properties, a subsequent betrayal of
that trust is so repulsive as to warrant the necessity of imposing a
higher penalty to deter the commission of such wrongful acts. (People
vs. Mejares, G.R. No. 225735, January 10, 2018, Justice Leonen)
THEFT AND ROBBERY - Snatching of the shoulder bag without

violence or intimidation constitutes the crime of theft, not robbery.
For the requisite of violence to obtain in cases of simple robbery, the
victim must have sustained less serious physical injuries or slight
physical injuries in the occasion of the robbery. The fact that the
necklace was "grabbed" did not automatically mean that force
attended the taking. (Del Rosario vs. People, G.R. No. 235739, July
22, 2019)
THEFT AND ESTAFA THROUGH MISAPPROPRIATION –

Misappropriation of property may constitute theft or estafa
depending upon the character of the possession.
Physical possession - If the accused received the property with

the consent of the owner but he merely acquired physical possession
in doing so, misappropriation shall be considered as taking without
consent; hence, the crime committed is theft (U.S. v. De Vera, G.R.
No. L-16961, September 19, 1921) or qualified theft (People v.
Tanchanco, G.R. No. 177761 April 18, 2012).
A franchise holder must personally operate the motor vehicle.

That is the reason why government regulation prohibits operator of
motor vehicle from leasing it. In the eye of the law the driver of taxi
or passenger jeepney under boundary arrangement was only an
employee of the owner rather than a lessee. For being an employee,
his possession of the jeepney is physical (People v. Isaac G.R. No. L-
7561, April 30, 1955), and thus, misappropriation thereof is
carnapping (People vs. Bustinera, G. R. No. 148233, June 8, 2004).
Legal possession - If the accused received the property with the

consent of the owner and he acquired legal possession in doing so by
virtue of trust, commission, administration or obligation involving
the duty to make delivery or return such as lease, deposit,
commodatum, or quasi-contract, misappropriation shall be
considered as estafa through conversion or misappropriation (Chua-
Burce vs. CA, G.R. No. 109595, April 27, 2000; D’Aigle vs. People,
G.R. No. 174181, June 27, 2012).
Employee - As a rule, the possession of the employee such as

bank teller, collector or cash custodian is only physical. Hence,
misappropriation of property is qualified theft. Abuse of confidence is
present since the property is accessible to the employee (Chua-Burce
vs. CA, G.R. No. 109595, April 27, 2000; People vs. Tanchanco, G.R.
No. 177761 April 18, 2012; People vs. Santos, G.R. No. 237982,
October 14, 2020). However, if the employee is an officer of the
115 | P a g e
company with discretion on how to use property or fund of the

company to further its interest, his possession is juridical; hence,
misappropriation thereof is estafa. Thus, the following officers are
liable for estafa for misappropriating company property: a. A bank
president who held the money in trust or administration for the bank
in his fiduciary capacity with discretion on how to administer such fund
(People vs. Go, G.R. No. 191015, August 6, 2014); b. A corporate
treasurer who received the money for safe-keeping and
administration (U.S. vs. Sevilla, G.R. No. 18056, March 16, 1922; c.
A corporate officer with discretion option on how to use bending
machine without the participation of the corporation (D’Aigle vs.
People, G.R. No. 174181, June 27, 2012). However, in Remo vs.
Devanadera, G.R. No. 192925, December 9, 2016, the Supreme
Court ruled that the directors of a corporation have no juridical
possession over the corporate funds.
Partner - Misappropriation by the industrial partner of the

share of the capitalist partner (People vs. Clemente, CA, 65 OG 6892)
or the partnership fund to be used in buying and selling mango
(People vs. Dela Cruz, G.R. No. 21732, September 3, 1924) is estafa.
Theft is not committed (US vs. Reyes, G.R. No. 2867, September 11,
1906) because possession of the industrial partner over the same is
juridical (People vs. Tan Tay Cuan, CA, 57 OG 6964).
In US vs. Clarin, G.R. No. 5840, September 17, 1910, four

individuals entered into a contract of partnership for the business
of buying and selling mangoes. When one of the partners demanded
from the other three the return of his monetary contribution, the
Supreme Court ruled that "the action that lies with the capitalist
partner for the recovery of his money is not a criminal action
for estafa, but a civil one arising from the partnership contract for a
liquidation of the partnership and a levy on its assets, if there should
be any. Simply put, if a partner demands his money back, the duty
to return the contribution does not devolve on the other partners; the
duty now belongs to the partnership itself as a separate and distinct
personality.
In 1997, a case with circumstances similar to the Clarin case

was decided differently. In Liwanag v. Court of Appeals, G.R. No.
114398 October 24, 1997, three individuals entered into a contract
of partnership for the business of buying and selling cigarettes. They
agreed that one would contribute money to buy the cigarettes while
the other two would act as agents in selling. When the capitalist
partner demanded from the industrial partners her monetary
contribution because they stopped informing her of business
updates, this time, this Court held the industrial partners liable
for estafa.
In Orbe vs. Miaral, G.R. No. 217777, August 16, 2017, the
Supreme Court ruled that said the OCP erred gravely when it
dismissed the case based on the Clarin case, which has already been
116 | P a g e
superseded by Liwanag case. Liwanag applies to

the partnership agreement executed between petitioner and
respondent. Petitioner's initial contributions were all for specific
purposes: for the buying and selling of garments and for the salaries
of the factory workers, respectively. When respondent failed to
account for these amounts or to return these amounts to petitioner
upon demand, there is probable cause to hold that respondent
misappropriated the amounts and had not used them for their
intended purposes. The Information for estafa should thus proceed.
Even assuming that a contract of partnership was indeed entered
into by and between the parties, when money or property had been
received by a partner for a specific purpose and he later
misappropriated it, such partner is guilty of estafa.
Ownership - If the accused received the property with the

consent of the owner and he acquired ownership in doing so by virtue
of a contract such as sale, mutuum or loan, failure to perform
obligation under such contract is neither theft nor estafa since the
same is purely civil in character (People vs. Montemayor, G.R. No. L-
17449, August 30, 1962).
In Ibanez vs. People, G.R. No. 198932, October 09, 2019, With
the transaction entered into by the parties being a sale, the accused
as the vendee did not receive the property subject of the sale in trust
or under an obligation to return. The parties' agreement to transfer
the title upon payment of the purchase price rather placed the
accused in the position of an owner and made him liable to the
transferor as a debtor for the agreed price; he was not merely an
agent who must account for the proceeds of a resale. The failure on
the part of the accused to pay the consideration in full only resulted
to the complainants being unpaid vendors. The former did not
thereby incur criminal liability for estafa, for the right of the
complainants as unpaid vendors was only to demand the fulfilment
or the cancellation of the obligation.
Seller failed to return advance payment to the buyer after

having incurred delay in the performance of obligation under a
contract of sale. The seller cannot be held liable for estafa through
misappropriation. In estafa through misappropriation, the offender
must have the obligation to return the very property that he received.
The seller acquired ownership over the money received as advance
payment. In case of failure to perform obligation under a sale contact,
the seller has no obligation to return to the buyer the very moneys
with the same serial numbers received as advance payment. In
returning the advance payment, the seller can use moneys with
different serial numbers. Hence, his obligation to return the advance
payment is merely civil in character. (People vs. Salazar, G.R. No.
149472, August 18, 2004) The Salazar case involved estafa through
misappropriation. Hence, the accused cannot use the Salazar
principle in a case involving estafa through false pretense. In this
case, accused misrepresented that he is authorized to sell a land
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owned by Candelaria (a third person) to the complainant, where in

fact he is not authorized. He was convicted of estafa through false
pretense. (Arriola vs. People, G.R. No. 199975, February 24, 2020)
Variance rule - In Chua-Burce vs. CA, G.R. No. 109595, April

27, 2000, Reside vs. People, G.R. No. 210318, July 28, 2020, and
Linunao vs. People, G.R. No. 194359, September 02, 2020, accused
are charged in the information with estafa through misappropriation.
However, the crime proven by evidence is qualified theft since the
accused in these three cases are employee, whose possession over
the money of his employer is merely physical. Thus, the accused
cannot be held liable for estafa through misappropriation because
juridical possession, which is an indispensable element thereof, is
lacking.
The facts in these three cases are the same. In these cases, the
Supreme Court acquitted the accused of estafa. But their treatments
on convicting the accused for theft are different. In Chua-Burce case,
the accused was not held liable for qualified theft. In sum, the Court
did not apply the variance rule. However, in Reside case, the
Supreme Court applied the variance rule and convicted the accused
of qualified theft. It was held it is proper to hold accused guilty of
qualified theft because the latter crime was necessarily included in
the crime charged in the information. Qualifying circumstance of
abuse of confidence, which is alleged in the information, was
appreciated. In Linunao case, the accused was convicted of simple
theft since the Information filed against her sufficiently alleged all the
elements of theft. Qualifying circumstance of abuse of confidence was
not appreciated since the same was not alleged in the information.
In my submission, the Chua-Burce case is the correct principle.

In these three cases, their respective informations do not allege
“taking without consent of the owner,” which is an indispensable
element of theft. Hence, it is improper to convict the accused of theft,
simple or qualified. Moreover, People vs. Balerta, G.R. No. 205144,
November 26, 2014, and People vs. Benabaye, G.R. No. 203466,
February 25, 2015, the Supreme Court re-affirmed the Chua-Burce
principle. Since in Reside case and Linunao case, the Supreme Court
is not sitting En Banc, it cannot abandon the Chua-Burce case,
Balerta case and Benabaye case.
However, for purpose of the 2021 Bar Examination, since

Reside case and Linunao case are recent Supreme Court decisions, it
is advisable to follow these cases.
OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL

RIGHTS - Without consent from the owner, A, B, C, D, E, and F
entered upon a part of tract of land carrying with them iron bars,
picks and other tools and materials to build their respective houses
which they began to construct thereon. All this was done in the
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presence of X, the owner of the tract of land, who, afraid because of

the attitude of the intruders, did not do anything to prevent them.
Occupation of real property is not committed since the intruders did
not use violence or intimidation in occupying the property. (1963 Bar
Exam) The remedy of X is to file an ejectment case against the
squatters.
“A” and “B,” both farmers, entered the land owned by “X” and
planted palay thereon. When “X” came to know about it, he
confronted “A” and “B” and inquired why the latter occupied his land
and planted palay thereon. “A,” with a bolo in hand, replied that the
land belongs to the family of “S,” and not to “X” and at the same time
said, “If you touch this land and my palay, blood will flow on this
ground.” (1989 Bar Exam) The threat uttered by A to occupy the land
of X constitutes the crime of occupation of real property. It did not
give rise to the complex crime of usurpation of real property with
grave threats under Article 48. The threat is the intimidation
contemplated in the crime of usurpation of real property. Hence, the
latter absorbs the former. Threat does not constitute a distinct crime.
(Castrodes v. Cubelo, G.R. No. L-47033, June 16, 1978)
If the accused has already occupied the real property of the owner
for an appreciable period of time, and he used violence or intimidation
to prevent the said owner from reoccupying the property, the crime
committed is not occupation of real property. The accused may be
held liable for grave threat, grave coercion or discharge of firearm
depending upon the circumstance of the case.
P occupied a parcel of land when the owner thereof went abroad.
When the owner returned and tried to enter the land, P successively
shot him for around 10 times to scare him from entering the land.
The landowner was not hit. P was charged of usurpation of real
property and attempted homicide for said acts. Usurpation of real
property is not committed since P did not shoot the owner for
purposes of occupying the property. Because P already occupied the
property, he merely committed the criminal act to prevent the owner
from reoccupying the property. P did not commit attempted homicide
since he shot the owner not to kill but merely to scare him. The crime
committed is illegal discharge of firearm. (1977 Bar Exam)
Jorge is the owner of 10 hectares of land in the foothills which he
planted with lanzones. On his last visit there, he was shocked to
discover that his land has been taken over by a group of 15 families
whose members had forcibly driven away his caretaker, had
appropriated the fruits for themselves, and were now threatening to
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kill him should he try to eject them. The crime committed is

occupation of real property for employing violence or intimidation
against the caretaker of Jorge to occupy the property, and grave
threat for employing threat to prevent Jorge from re-occupying the
property. (1988 Bar Exam)
The penalty for occupation of real property is fine based on the
value of the gain obtained by the accused in addition to the penalty
incurred for the acts of violence executed by him. The phrase “acts of
violence,” which is the mode of committing occupation of real
property, includes homicide, rape, threat, etc. (People v. Alfeche, G.R.
No. 102070, July 23, 1992)
The main difference between occupation of real property and
robbery by means of violence and intimidation is that the former
involves real property or real rights in property, while the latter
involves personal property. The modes of committing both crimes are
the same. (People v. Alfeche, ibid.)
Under Articles 294 of the Revised Penal Code punishes among
others simple robbery or taking personal property by means of
violence or intimidation, and robbery with homicide or rape.
Under Article 312 of the same Code punishes occupation of real
property or the taking possession of any real property by means of
violence against or intimidation.
In People v. Alfeche, G.R. No. 102070, July 23, 1992, the Supreme
Court held that the phrase “by means of violence against or
intimidation of persons” in Article 312 must be construed to refer to
the same phrase used in Article 294.
If slight physical injuries, threat or coercion is committed to take
personal property from the owner, the crime committed is robbery,
for which Article 294 prescribes a single penalty. Accused cannot be
prosecuted for slight physical injuries, threat or coercion since this
crime is absorbed in robbery. If physical injuries, threat or coercion
is committed to occupy real property, the crime committed is
occupation of real property, but the penalty imposable is a fine in
addition to the penalty prescribed for slight physical injuries, threat
or coercion. Accused cannot be prosecuted for slight physical
injuries, threat or coercion since this crime is absorbed inoccupation
of real property.
Under Article 294, when the robbery shall have been
accompanied by rape, the accused shall be prosecuted for single,
special and indivisible crime of robbery with rape. Robbery and rape
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are not separate crimes. Note: Single, special and indivisible crime
can also be called as special complex crime.
Article 312 is also penalizing a single, special and indivisible
crime. If occupation of real property is also accompanied with rape,
the offender shall be punished for single, special and indivisible crime
of occupation of real property with rape. Occupation of property and
rape are not separate crimes.
However, there is a single penalty for robbery with rape; while the
penalties for occupation of real property with rape are that prescribed
for rape plus fine.
If by reason or on occasion of occupation of real property,
homicide is committed, the offender shall be prosecuted for single,
special and indivisible crime of occupation of real property with
homicide. Accused can neither be charged with separate crimes of
homicide and occupation of property nor complex crime under Article
48.
In Ablaza v. People, G.R. No. 217722, September 26, 2018, the
Supreme Court affirmed the Alfeche principle.
MALICIOUS MISCHIEF - Assuming that accused owned the property

in controversy, he and his co-accused were not justified in summarily
destroying the improvements built thereon by complainant. They
unlawfully took the law into their own hands when they
surreptitiously entered complainant's enclosed lot and destroyed its
fence and foundation. Evidently, accuseds' actions were made out of
hatred, revenge or evil motive. They were convicted of malicious
mischief (Grana vs. People, G.R. No. 202111, November 25, 2019)
ARSON – Destructive arson is characterized as heinous crime; while

simple arson under PD No. 1613 is a crime manifesting a lesser
degree of perversity. Simple arson contemplates the malicious
burning of property not included in Article 320 of the RPC (People vs.
Macabando, GR No. 188708, July 31, 2013). Burning of inhabited
house or dwelling or personal property is simple arson under Section
3 of P.D. No. 1613 because it is not included in Article 320 of RPC.
Intent to kill - If the main objective is to kill the victim in a

building, and fire is resorted to as the means to accomplish such
goal, the crime committed is murder only. Murder qualified by means
of fire absorbs arson since the latter is an inherent means to commit
the former (People vs. Cedenio, G.R. No. 93485, June 27, 1994).
Single act of burning the building to kill two persons constitutes
compound crime of double murders (People vs. Gaffud, G.R. No.
168050, September 19, 2008; People vs. Mercado, G.R. No. 218702,
October 17, 2018)
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One has deliberately set fire to a building is presumed to have

intended to burn the building (People vs. De Leon, G. R. No. 180762,
March 4, 2009). Since intent to burn is presumed, intent to kill must
be established beyond reasonable doubt. Failure to show intent to
kill, the accused shall be convicted of arson with qualifying
circumstance of resulting death and not murder (People vs.
Baluntong, G.R. No. 182061, March 15, 2010).
Intent to burn - If the main objective is to burn the building,

but death results by reason or on the occasion of arson, the crime is
arson with qualifying circumstance of resulting death (People vs.
Enriquez, G.R. No. 248372, August 27, 2020). The resulting
homicide is absorbed (People vs. Villacorta, G.R. No. 172468, October
15, 2008) since it will be considered as a modificatory circumstance.
In People v. Villacorta, G.R. No. 172468, October 15, 2008 and

People v. Jugueta, G.R. No. 202124, April 5, 2016, the Supreme Court
described arson with the qualifying circumstance of resulting death
as special complex crime of arson with homicide. However, People vs.
Dolendo, G.R. No. 223098, June 3, 2019, the Supreme Court said
that the Court of Appeals correctly modified appellant's conviction
from arson with homicide to simple arson conformably with
prevailing jurisprudence.
For purpose of the bar examination, if the accused burned

burning the building without intent to kill, and as a consequence,
death results, the crime should be designated as simple arson under
PD No. 1613 (Dolendo case) or destructive arson under the Revised
Penal Code with the qualifying circumstance of resulting death
(Abayon case)
Intent to conceal - If the objective is to kill, and in fact the

offender has already done so, and arson is resorted to as a means to
cover up the killing, the offender may be convicted of two separate
crimes of either homicide or murder, and arson (People vs. Cedenio,
G.R. No. 93485, June 27, 1994).
ROBBERY WITH HOMICDE - In robbery with homicide, all other

felonies such as rape, intentional mutilation, usurpation of authority,
or direct assault with attempted homicide are integrated into this
special complex crime. This special complex crime is committed as
long as death results by reason or on occasion or robbery without
reference or distinction as to the circumstances, causes or modes or
persons intervening in the commission of the crime (People vs. De
Leon, GR No. 179943, June 26, 2009; People vs. Jugueta, G.R. No.
202124, April 05, 2016).
There is no special complex crime of robbery with homicide and

frustrated homicide. The offense should have been designated as
robbery with homicide alone, regardless of the number of homicides
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or injuries committed. (People vs. Labuguen, G.R. No. 223103,

February 24, 2020)
Homicide component – A special complex crime of robbery

with homicide takes place when a homicide is committed either by
reason, or on the occasion, of the robbery. To sustain a conviction for
robbery with homicide, the prosecution must prove the following
elements: (1) the taking of personal property belonging to another; (2)
with intent to gain; (3) with the use of violence or intimidation against
a person; and (4) on the occasion or by reason of the robbery, the
crime of homicide, as used in its generic sense, was committed. A
conviction requires certitude that the robbery is the main purpose,
and [the] objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking
of human life but the killing may occur before, during or after the
robbery. Homicide is said to have been committed by reason or on
occasion of robbery if, for instance, it was committed: (a) to facilitate
the robbery or the escape of the culprit; (b) to preserve the possession
by the culprit of the loot; (c) to prevent discovery of the commission
of the robbery; or (d) to eliminate witnesses in the commission of the
crime (People vs. Balute, G.R. No. 212932, January 21, 2015)
If the original design is to kill the victim (e.g., there is motive to

kill), and accused killed him, and took his property as an
afterthought, the crimes committed are homicide or murder and theft
(People v. Atanacio, No. L-11844, November 29, 1960) or robbery.
(People vs. Natindim, G.R. No. 201867, November 4, 2020)
In robbery with homicide, it is immaterial that the victim of

homicide is a bystander (People vs. Barut, G.R. No. L-42666 March
13, 1979), a responding policeman (People vs. Pelagio, G.R. No. L-
16177, May 24, 1967) or one of the robbers. (People vs. Casabuena,
G.R. No. 246580, June 23, 2020)
The victim was shot while accused was robbing the passengers of
a jeepney. Even if victim's bag was not taken, accused are liable for
special complex crime of robbery with homicide. In this special
complex crime, it is immaterial that the victim of homicide is other
than the victim of robbery, as long as homicide occurs by reason of
the robbery or on the occasion thereof. (People vs. Madrelejos, G.R.
No. 225328, March 21, 2018)
Collective responsibility – Case law establishes that whenever

homicide has been committed by reason of or on the occasion of the
robbery, all those who took part as principals in the robbery will also
be held guilty as principals of robbery with homicide although they
did not take part in the homicide, unless it appears that they sought
to prevent the killing. (People v. Dela Cruz, G.R. No. 168173, December
24, 2008; People v. Castro, G.R. No. 187073, March 14, 2012; People
vs. Labagala, G.R. No. 221427, July 30, 2018; People vs. Bongos,
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G.R. No. 227698, January 31, 2018; People vs. Casabuena, G.R. No.
246580, June 23, 2020)
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Once conspiracy is established between several accused in the

commission of the crime of robbery, they would all be equally liable
for the rape committed by anyone of them on the occasion of the
robbery, unless anyone of them proves that he endeavored to prevent
the others from committing rape. (People v. Suyu, G.R. No. 170191,
August 16, 2006; People v. De Leon, G.R. No. 179943, June 26, 2009;
People vs. Madrelejos, G.R. No. 225328, March 21, 2018; People vs.
Sanota, G.R. No. 233659, December 10, 2019)
However, in fine, the long line of jurisprudence on the special

complex crime of robbery with rape requires that the accused be
aware of the sexual act in order for him to have the opportunity to
attempt to prevent the same, without which he cannot be faulted for
his inaction. (People vs. Agaton, G.R. No. 251631, August 27, 2020)
If there is no evidence that the accused is aware of the commission
of rape, he could not have prevented the rape. Hence, the accused is
only liable for robbery and not robbery with rape. (People v.
Canturia, G.R. No. 108490, June 22, 1995)
Canturia principle where lack of awareness is a defense is

applicable to kidnapping with rape (People v. Anticamaray, G.R. No.
178771, June 8, 2011), kidnapping with homicide, robbery with
homicide (People v. Corbes, G.R. No. 113470, March 26, 1997) and
robbery with arson.
CRIMES AGAINST LIBERTY
INCIDENTAL DEPRIVATION OF LIBERTY – Accused committed

robbery inside a factory. Before they could leave the premises after
the commission of the robbery, the police authorities were already at
the scene of the crime. Since they cannot escape, they detained 21
victims. After 22 hours of captivity, the hostages were rescued. Since
the principal intention of the accused is to rob the victims, and the
deprivation of their liberty is just incidental to the prevention of the
responding police officers from arresting them, the crime committed
is robbery, which absorbed incidental kidnapping and serious illegal
detention. (People v. Astor, G.R. Nos. L-71765-66, April 29, 1987)
AAA lived rent-free in a house owned by accused. Accused

intercepted AAA at the garage area and held a knife to her back and
dragged her to his room and raped her. Shortly after, police
authorities arrived; but accused refused to release her and detained
her for a period of time. Although the initial (forcible) 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. Hence, the accused is convicted of rape and slight illegal
detention (People vs. Concepcion, G.R. No. 214886, April 04, 2018,
Justice Leonen) or serious illegal detention with the qualifying
circumstance that the victim is a female.
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The Astor case is not compatible with Concepcion case.

However, for purpose of the bar exam, Astor case should be applied
to robbery and detention while Concepcion case should be applied to
rape and detention. In sum, if the robbers held hostages the victims
to prevent the policemen form arresting them, the crime committed
is robbery, which absorbs illegal detention. On the other hand, if the
rapist held hostage the victim to prevent the policemen from arresting
him, the crimes committed are rape and serious illegal detention.
DEPRIVATION OF LIBERTY - Failure to judicially charge within the

prescribed period renders the public officer effecting the arrest liable
for the crime of delay in the delivery of detained persons under Article
125 of the Revised Penal Code. If the warrantless arrest was without
any legal ground, the arresting officers become liable for arbitrary
detention under Article 124. However, if the arresting officers are not
among those whose official duty gives them the authority to arrest,
they become liable for illegal detention under Article 267 or 268. If the
arrest is for the purpose of delivering the person arrested to the
proper authorities, but it is done without any reasonable ground or
any of the circumstances for a valid warrantless arrest, the arresting
persons become liable for unlawful arrest under Article 269. (Duropan
vs. People, G.R. No. 230825, June 10, 2020, Justice Leonen)
Offender in arbitrary detention and illegal detention -

Arbitrary detention is committed by a public officer, who has the
authority to arrest and detain a person. Thus, a police officer, judge
or mayor can commit arbitrary detention. On the other hand, illegal
detention is committed by private individual. A public officer (e.g.,
stenographer) who has no authority to arrest or detain a person, is a
private individual for purpose of illegal detention since he committed
the act in his private capacity. (Duropan vs. People, G.R. No. 230825,
June 10, 2020, Justice Leonen) But although a public officer (e.g.,
police officer) has the authority to arrest and detain a person, he can
be considered as a private individual for purpose of illegal detention
if the crime is committed in his private capacity. (People v. Santiano,
G.R. No. 123979, December 3, 1998)
The accused can be held liable for arbitrary detention if the

following circumstances concur (1) he is a public officer, who has the
authority to arrest or detain a person; (2) he committed the act in his
official capacity; (3) the mind of the accused police officer is to
investigate or prosecute the victim for being a criminal suspect; and
(4) the arrest was made without legal grounds in violation of the
constitutional right of the suspect against unreasonable seizure. If
the mind of the police officer is to kill or kidnap the criminal suspect
for ransom, he is not liable for arbitrary detention. Detention will be
treated has having been committed in his private capacity.
The element of “in pursuit of his duty to arrest” in arbitrary

detention is present if the purpose of the arrest is: (1) To deliver the
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suspect to judicial authority (U.S. v. Gellada, G.R. No. L-5151,

January 31, 1910); (2)To conduct criminal investigation (U.S. v.
Agravante, G.R. No. 3947, January 28, 1908); or (3) To determine if
the victim committed a crime. (U.S. v. Hawchaw, G.R. No. L-6909,
February 20, 1912)
Thus, a police officers, who detained a suspected drug trafficker

and demanded ransom payment, committed the criminal act in their
private capacity. (People v. Gonzalez, Jr., G.R. No. 192233, February
17, 2016) Detaining any private person for the purpose of extorting
any amount of money could not, in any way, be construed as within
their official functions of police officers. Their badges or shields do
not give them immunity for any criminal act. (People vs. Popionco,
G.R. No. 200512, June 07, 2017, Justice Leonen) Hence, they are
liable for kidnapping for ransom and not arbitrary detention. Even
the subsequent prosecution of the kidnapped victim for sale of
dangerous drugs does not negate the criminal liability of the accused
for the crime the latter committed against the former. (People vs.
Borja, G.R. No. 199710, August 02, 2017, Justice Leonen)
In People v. PO1 Trestiza, G.R. No. 193833, November 16, 2011,

the public prosecutor filed a motion to withdraw information for
kidnapping before the trial court and filed a new one for robbery.
According to the public prosecutor, the accused, a police officer,
cannot be charged with kidnapping because the crime may only be
committed by private individuals. The trial court denied the motion
to withdraw. It examined the Pre Operation/Coordination Sheet
presented by the defense and found that it was neither authenticated
nor its signatories presented in court. The defense failed to show
proof of a "legitimate police operation" and, based on Santiano, the
accused were deemed to have acted in a private capacity in detaining
the victims. The Supreme Court affirmed the conviction of the police
officers for kidnapping.
In People v. Santiano, G.R. No. 123979, December 3, 1998, it

was held that the fact that they are police officers would not exempt
them from the criminal liability for kidnapping instead of arbitrary
detention. Taking the prisoner to a secluded place for purposes of
detaining and maltreating him constitutes kidnapping and serious
illegal detention qualified by the circumstance of serious physical
injuries. Arbitrary detention is not committed since the accused did
not commit the act in furtherance of official function or in the pursuit
of authority vested in them. In sum, they committed the act in their
purely private capacity.
In Osorio v. Navera, G.R. No. 223272, February 26, 2018

(Justice Leonen), it was held that it is not impossible for a public
officer to be charged with and be convicted of kidnapping as Santiano
and Trestiza illustrated. Thus, a soldier, who abducted a UP student
and detained her at military camps, barangay hall and a resort or
safehouse, can be charged with kidnapping and serious illegal
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detention. The civil court and not military court has jurisdiction over
the case since this crime is not service connected. Kidnapping should
never be part of the functions of a soldier. It cannot be done in a
soldier's official capacity.
Other view: In People vs. Dongail, G.R. No. 217972, February

17, 2020, accused, policemen taken the victims, who were the
subject of surveillance for alleged involvement in the illegal drug
trade. The victims were brought of various motels and interrogated
them before finishing them off. It was held: The victims were detained
for fifteen days before getting killed. Hence, when the three were
abducted and placed in the custody of accused, the felony of arbitrary
detention had already been consummated. The elements of arbitrary
detention were present because accused were police officers who
deprived the three victims of liberty on a mere surveillance and
without legal grounds. Thereafter, when they were boxed, kicked,
pistol-whipped and ultimately shot at a close range, while being
handcuffed and without means to defend themselves, another
separate crime of murder was committed. Therefore, a conviction for
the separate crimes of arbitrary detention and murder was in order.
Dongail case is not compatible with Trestiza case, Santiano case,

Osorio case. If the principle in Trestiza, Santiano, and Osorio was
followed in the Dongail case, the accused should have been charged
and convicted of special complex crime of kidnapping with murder.
ARREST – Arrest is the taking of a person into custody in order that

he may be bound to answer for the commission of an offense. It is
"an actual restraint of a person to be arrested, or by his submission
to the custody of the person making the arrest. There need not be an
actual restraint for curtailment of liberty to be characterized as an
"arrest. Although denominated as requests, invitations from high-
ranking officials to a hearing in a military camp were deemed arrests.
(Duropan vs. People, supra, Justice Leonen)
Arrest and invitation - Although denominated as requests,

invitations from high-ranking officials to a hearing in a military camp
were deemed arrests. This Court characterized them as authoritative
commands which may not be reasonably expected to be defied.
(Sanchez vs. Demetriou, G.R. Nos. 111771-77 November 9, 1993)
When the accused is in an environment made hostile by the

presence and actuations of law enforcers where it can be reasonably
inferred that they had no choice except to willingly go with them, then
there is an arrest. The subjective view of the accused will be
relevant—which includes among others—their station in life and
degree of education. (Duropan vs. People, supra, Justice Leonen)
In People v. Milado, G.R. No. 147677, December 1, 2003,

accused was carrying bricks of marijuana in his backpack aboard a
jeepney. Acting upon an information that there was a person
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transporting marijuana in the jeepney, the police officers set up a

checkpoint. In the checkpoint, the police identified accused and told
him to stay inside the jeepney. They subsequently brought him to the
police station, where they ordered him to open his bag where the
marijuana was kept. Although no "formal arrest" had yet been made,
it is clear that appellant had already been deprived of his liberty and
taken into custody after the policemen told him to stay inside the
jeepney and instructed the driver to drive them to the police station.
The term "invited" may have been used by the police, but it was
obviously a command coming from three law enforcers who appellant
could hardly be expected to defy.
An arrest although described as a mere invitation to the police

station, can be a source of unlawful arrest or arbitrary detention.
Arrest with legal grounds - If a person arrested another person

with legal ground, he is not committing a crime since the
apprehension is made in accordance with Section 5, Rule 113 of the
Rules of Criminal Procedure.
Arrest without legal grounds - Intent to deliver a person to

judicial authority is established if the offender brought him to the
police station for investigation. In other words, arresting a person or
arresting in the form of invitation is an evidence that the offender has
the intention to make a judicial delivery of the arrestee. If the
offender, arrested a person without legal grounds, the crime of illegal
detention should be ruled out. The act of conducting the
apprehended persons to the proper authorities takes the offense out
of the crime of illegal detention. (Duropan vs. People, G.R. No.
230825, June 10, 2020, Justice Leonen) However, the person, who
arrested the suspect without legal grounds, is liable for arbitrary
detention or unlawful arrest.
If the offender is a public officer with authority to arrest and

detain a person, the crime committed is arbitrary detention. (U.S. v.
Gellada, G.R. No. L-5151, January 31, 1910; U.S. v. Agravante, G.R.
No. 3947, January 28, 1908) If the offender is a private individual or
a public officer without authority to arrest and detain a person, the
crime committed is unlawful arrest.
In US vs. Fontanilla, G.R. No. 4580, September 7, 1908,

accused found complainant, and several laborers tilling his land. One
of the complainants insisted that the land was his brother's. A fight
ensued, which ended when accused captured and tied complainants
with a rope. He then brought them to the municipal jail. It was held
that the fact that the accused, after he had apprehended the
complainants, immediately conducted them to the municipal jail,
and thus turned them over to the authorities, takes the offense out
of that provision on illegal detention and brings it within the purview
of provision on unlawful arrest.
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In Duropan vs. People, supra, (Justice Leonen), Accused were

barangay kagawad and barangay tanod. Complainants are members
of Alimango cooperative, which is authorized to develop, utilize, and
protect a mangrove-nipa area. Its members cut, gather, and weave
nipa palms. Accused saw complainants harvesting nipa palm and
asked them who gave authority to harvest. Pacis, one of the
complainants, replied that they were Alimango members. The
accused arrested them and brought them to Police Station. They are
liable for unlawful arrest. Barangay kagawad and barangay tanod are
person in authority and agent of a person in authority, respectively.
They are not the public officers whose official duty is to arrest or detain
persons. They arrested complainants without legal grounds. Upon
hearing a reasonable explanation as to why Pacis was harvesting the
nipa leaves, accused had no reason to suspect any wrongdoing.
Accused knew Pacis and are familiar with ALIMANGO. Since it was
easy to verify if he was indeed a member of the group, prudence
dictated that they first investigate. Had it turned out that he was not
a member, a warrant of arrest could have been obtained as they
witnessed the commission of the crime.
CRIMES AGAINST PUBLIC INTEREST
FALSIFICATION – Commercial documents such as promissory note

and check are, in general, documents or instruments which are "used
by merchants or businessmen to promote or facilitate trade or credit
transactions (Tanenggee vs. People, G.R. No. 179448 June 26, 2013).
Falsification of a public document is consummated upon the

execution of the false document. What is punished in falsification of
public document is principally the undermining of the public faith
and the destruction of truth as solemnly proclaimed therein. The fact
that accused did not benefit from, or that the public was not
prejudiced by the falsified resolution is not a defense (Goma vs. CA,
G.R. No. 168437, January 08, 2009).
Making it to appear - In Constantino vs. People, G.R. No.

225696, April 08, 2019, Justice Leonen accused, a notary public,
was charged of falsification of document by making it appear that Dr.
Asuncion participated in execution of the acknowledgement of the
will and testament by signing it as a witness, where in fact he did not
sign it. However, it was established that DR. Asuncion at the urging
of Ferrer, his son-in-law, signed the acknowledgement after the
notarization. Therefore, it was not accused who made it appear that
Dr. Asuncion participated in the execution of the Joint
Acknowledgment, but Ferrer and Dr. Asuncion himself. Accused is
not liable for falsification of document. However, accused should be
administratively sanctioned for failure to cross out Dr. Asuncion's
name when he notarized the Joint Acknowledgment, which has
allowed Dr. Asuncion to still sign the document despite not having
participated in its due execution.
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Untruthful statement - Accused, a public officer, issued

Temporary Operating Permit to his own son, and made an untruthful
statement on the birthday of his son to make it appear that his son
is of legal age. Accused insists on his plea that he had no malicious
or wrongful intent to injure a third person. He was convicted of
falsification of public document. Intent to gain or intent to injure is
not an element of the crime of falsification of public document. Thus,
lack of intent to gain or injure is not a valid defense. (Liwanag vs.
People, G.R. No. 205260, July 29, 2019)
Prosecution need not identify a specific law under which the

accused has the obligation to disclose the truth. To convict the
accused for falsification of document involving making an untruthful
statement, what is important is that he has a legal obligation to
disclose the truth. In Manansala vs. People, G.R. No. 215424,
December 9, 2015, the accused made an untruthful statement in
petty cash replenishment report of a private corporation. The accused
was convicted of falsification of private document because he has a
legal obligation to disclose the truth in a report.
Notary public - The element that “the notary public takes

advantage of his official position” is presumed when the falsity
allegedly committed by him pertains to the notarization, since only
notaries public have the duty and authority to notarize documents.
(Constantino vs. People, G.R. No. 225696, April 08, 2019, Justice
Leonen)
Bank officer - If the accused is an employee or officer of the

bank other than the president, e.g., bank manager, and he made a
fictitious loan by falsifying loan application, check and other
commercial document, he is liable for complex crime of estafa by
means of false pretense through falsification of commercial
documents. (Tanenggee v. People, G.R. No. 179448, June 26, 2013)
If the accused is a president of the bank, and he made a

fictitious loan by falsifying loan applications and other commercial
documents, he could be held liable either for (1) complex crime of
estafa by means of false pretense through falsification of commercial
documents; or (2) complex crime of estafa by misappropriation
through falsification of commercial documents.
In Soriano vs. People, G.R. No. 240458, January 8, 2020, the

bank president made fictitious loans by falsifying loan applications
and other commercial documents. The accused used the proceeds
thereof for his personal benefit. He falsified commercial documents
by making it appear that a fictitious borrower is securing loan from
the bank. He used these falsified documents to defraud the bank to
release the money. He is liable for complex crime of estafa by means
of false pretense through falsification of commercial documents.
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In People v. Go, G.R. No. 191015, August 6, 2014, the bank

president made fictitious loans by falsifying loan applications and
other commercial documents. The accused used the proceeds thereof
for his personal benefit. The bank president has obligation to
administer the bank fund in a fiduciary capacity. The bank is still the
owner of the money despite the transfer thereof to the accused. By
using the money to pay his creditors, he committed estafa through
misappropriation. Since falsification of commercial documents is a
necessary means to misappropriate the money, he was convicted of
a complex crime of estafa by misappropriation through falsification
of commercial documents.
Estafa through falsification of document - When the offender

commits on a public, official or commercial document any of the acts
of falsification enumerated in Article 171 as a necessary means to
commit another crime like estafa, theft or malversation, the two
crimes form a complex crime proper (Tanenggee vs. People, G.R. No.
179448 June 26, 2013; Arias vs. People, G.R. Nos. 237106-07, June
10, 2019)
Assistant Director of the Bureau of Equipment of DPWH,

falsified official documents to defraud the DPWH into paying the
claims for fictitious emergency repairs or purchase of spare parts.
Malversation is not committed since the accused is not an
accountable officer. Falsification of document is a necessary means
to commit estafa through false pretense since the accused used the
falsified official documents to defraud DPWH. Accused is liable for
complex crime of estafa through falsification of public document.
(Arias vs. People, G.R. Nos. 237106-07, June 10, 2019)
The falsification of a public, official, or commercial document

may be a means of committing estafa, because before the falsified
document is actually utilized to defraud another, the crime of
falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of
public, official or commercial document. In other words, the crime of
falsification has already existed. Actually, utilizing that falsified
public, official or commercial document to defraud another is estafa.
But the damage is caused by the commission of estafa, not by the
falsification of the document. Therefore, the falsification of the public,
official or commercial document is only a necessary means to commit
estafa (Tanenggee vs. People, G.R. No. 179448 June 26, 2013; People
v. Go, G.R. No. 191015, August 6, 2014; Dela Cruz vs. People, G.R.
No. 236807, January 12, 2021)
In complex crime of estafa through falsification of a commercial,

public or official document, before the falsified document is actually
used to defraud the victim, the crime of falsification has already been
consummated since damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial
document. In other words, the crime of falsification has already
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existed. Using that falsified public, official or commercial document

to defraud another is estafa. But the damage is caused by the
commission of estafa, not by the falsification of the document.
(Desmoparan vs. People, GR. No. 233598, March 27, 2019)
FALSIFICATION AND OTHER CRIMES – If the offender committed

falsification of document and other crimes, the following rules should
be observed:
1. Complex crime - When falsification of public, official or

commercial document is a necessary means to commit malversation
(People vs. Barbas, G.R. No. L-41265, July 27, 1934), estafa (Ilumin
vs. Sandiganbayan, G.R. No. 85667, February 23, 1995; Intestate
Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010;
Ambito vs. People, G.R. No. 127327, February 13, 2009, Tanenggee
vs. People, G.R. No. 179448, June 26, 2013) or theft (People vs.
Salonga, G.R. No. 131131, June 21, 2001), offender is liable for a
complex crime under Article 48 of RPC.
2. Separate crimes – When falsification of public, official or

commercial document is not a necessary means to commit other
crimes, this is not a complex crime. Thus, when falsification of public,
official or commercial document is a merely a means to conceal
malversation (People vs. Sendaydiego, G.R. Nos. L-33252-54,
January 20, 1978; People vs. Villanueva, G.R. No. 39047, October 31,
1933), estafa (People vs. Monteverde, G.R. No. 139610, August 12,
2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft,
the crimes are separate.
3. Common element doctrine – Under the common element

doctrine, the use of damage as an element of falsification of private
document precludes the re-use thereof to complete the elements of
estafa, and vice versa.
Damage is an element of estafa; damage is also an element of

falsification of private document; hence, the comment element
principle is applicable since damage is a common element of both
crimes. Damage is an element of estafa; however, damage is not an
element of falsification of public, official or commercial document;
hence, the comment element principle is not applicable since damage
is not a common element of both crimes. Damage is an element of
falsification of private document; however, damage is not an element
of malversation; hence, the comment element principle is not
appliable since damage is not a common element of both crimes. In
sum, common element doctrine is only applicable if the crimes
committed are falsification of private document and estafa.
In Zoleta v. Sandiganbayan, G.R. No. 185224, July 29, 2015,

the Governor caused the falsification of private letter requesting for
financial assistance. He was able to use this falsified private
document to release public funds to a fictitious beneficiary. Applying
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Article 48, since falsification of private document is a necessary

means to commit malversation, he is liable for complex crime of
malversation through falsification of private document. Note: The
Supreme Court did not apply common element doctrine since
damage is not an element of malversation.
If the common element principle is applicable, the accused is

liable for falsification of private document or estafa. When
falsification of private document is a necessary means to commit
estafa, the crime committed is falsification. When falsification of
private document is not a means to commit estafa, the crime
committed is estafa. (People vs. Co, G.R. No. 233015, October 16,
2019)
If the falsification of a private document (demand letter, letter of

guarantee, payroll of private company or billing statement) is
committed as a means to commit estafa, the crime committed is
falsification only. Under the common element doctrine, the use of
damage as an element in falsification of private document precludes
the re-use thereof to complete the elements of estafa. Hence, estafa
is not committed because the element of damage is not present. There
is no complex crime of estafa through falsification of private
document. (Batulanon vs. People, G.R. No. 139857, September 15,
2006; U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People
vs. Reyes, G.R. No. L-34516, November 10, 1931; People vs. Co, G.R.
No. 233015, October 16, 2019)
If a person commits falsification of private document (e.g.,

unofficial receipt) to conceal estafa, the crime is estafa only. Under
the common element doctrine, the use of damage as an element in
estafa precludes the re-use thereof to complete the elements of
falsification. Hence, estafa is not committed because the element of
damage is not present (See: People vs. Beng, 40 O.G. 1913).
USE OF FALSIFIED DOCUMENT - The crime of use of falsified

document, the person who used the forged document is different from
the one who falsified it. If the one who used the falsified document is
the same person who falsified it, the crime is only falsification and
the use of the same is not a separate crime. Falsification of a public
document and use of false document by the same person who
falsified it constitute but a single crime of falsification. (Jayme vs.
People, G.R. No. 248827, August 27, 2020)
PERJURY - Making untruthful statement is the actus reus (criminal

act) in perjury and falsification. The difference between the two
however lies on the nature of document. If the untruthful statement
is made in a sworn document where the law requires oath (e.g.,
complaint affidavit filed in a preliminary investigation or verified
petition for habeas corpus), the crime committed is perjury. If the
untruthful statement is made in an unsworn document (e.g.,
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community tax certificate, PDS, or contract of sale) where the

offender has the legal obligation to disclose the truth, the crime
committed is falsification of document. But even if the untruthful
statement is made in a sworn document but the law does not require
oath (e.g., verified complaint for collection of money), perjury is not
committed. It is however submitted that the accused can be
prosecuted for falsification of document as long as the offender has
an obligation to disclose the truth.
Making untruthful statement such as failure to disclose previous
criminal conviction in a sworn application for the patrolman
examination constitutes perjury. (People v. Cruz, G.R. No. L-15132,
May 25, 1960; 1972 Bar Exam) Making untruthful statement such as
failure to disclose pending criminal case in an unsworn PDS
constitutes falsification of document. (Sevilla v. People, G.R. No.
194390, August 13, 2014; Civil Service Commission v. Vergel De Dios,
G.R. No. 203536, February 4, 2015)
If there are several mistakes in the PDS including those which are
not important, accused cannot be convicted of falsification of
document since it appears that failure to disclose pending criminal
case is not deliberate. Hence, accused is only liable for reckless
imprudence resulting in falsification. (Sevilla v. People, ibid.)
A contract of sale involving land is not a sworn document.
Acknowledgment in a contract of sale is not tantamount to an oath.
Hence, untruthfully stating that the buyer is a Filipino citizen
although she is a foreigner to circumvent the constitutional
prohibition on foreign ownership over land is not perjury but
falsification of document for making an untruthful statement in a
narration of facts. (People v. Kho, CA-G.R. No. 03618-CR, April 21,
1964)
Making it appear that a person participated in the execution of
document where in fact he did not, and counterfeiting or feigning of
signature are acts of falsification. But they are not criminal acts in
perjury. Thus, whether the document is sworn or unsworn,
counterfeiting or feigning the signature therein or making it to appear
that a person participated in the execution thereof where in fact he
did not constitute falsification of document.
A mayor, who made it appear that affiants swore and signed
affidavit before him when in fact they did not, is liable of falsification
of document and not perjury. (Lonzanida v. People, G.R. Nos. 160243-
52, July 20, 2009)
1. Contradictory Sworn Statements - A person cannot be
held liable for perjury involving a complaint affidavit for theft based
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on the execution of affidavit of desistance. (1984 Bar Exam) One

cannot be convicted of perjury solely on the basis of two contradictory
statements. (U.S. v. Capistrano, G.R. No. 15001, March 16, 1920;
1948 Bar Exam) The inconsistency between the two affidavits merely
means that one of them is false, while the other is not. But it cannot
establish which of the two affidavits is actually false. (Masangkay v.
People, G.R. No. 164443, June 18, 2010) If the affidavit of desistance
is the one, which is false, the accused cannot be convicted of perjury
involving the truthful complaint affidavit. Hence, the prosecution
must prove that the complaint affidavit, which is the subject of
perjury case, is false by presenting evidence other than contradictory
affidavit of desistance. (Villanueva v. The Hon. Secretary of Justice,
G.R. No. 162187, November 18, 2005) The prosecution can present
pictures that the complainant was in Japan when the alleged theft
was committed by him. The affidavit of desistance and the pictures
may establish that the complaint affidavit is perjurious.
2. Oath Is Required by Law - In perjury, the sworn statement
must be required by law to be under oath such as a verified petition
for issuance of a new owner’s duplicate copy of title. (Ilusorio v.
Bildner, G.R. Nos. 173935-38, December 23, 2008) A petition for
naturalization is required to be verified. Hence, making an untruthful
statement in a verified petition for naturalization is perjury. (Choa v.
People, G.R. No. 142011, March 14, 2003)
Under Section 4, Rule 7 of the Rules of Court, except when
otherwise specifically required by law or rule, pleadings need not be
under oath, verified or accompanied by affidavit. No such law or rule
specifically requires that complaint for damages should have been
verified. (Vallacar Transit, Inc. v. Catubig, G.R. No. 175512, May 30,
2011) Since a complaint for damage (Saavedra, Jr. v. Department of
Justice, G.R. No. 93173, September 15, 1993) or answer to complaint
for collection of money (Flordelis v. Himalaloan, G.R. No. L-48088, July
31, 1978) is not required to be verified, an essential element of the
crime of perjury is absent, i.e., that the sworn statement containing
the falsity is required by law. Consequently, accused cannot be
prosecuted on the basis of an alleged falsehood made in a verified
complaint for damage or verified answer because its verification is
not mandated by law. (1978 and 1991 Bar Exams) It is submitted
however that he can be held liable for falsification of document.
3. Privileged communication - Pedro filed a verified petition
for custody over his minor son against his wife Maria. One of the
grounds to justify his prayer for custody is that Maria is a drug
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addict, and thus, placing his son under her custody is detrimental to
him. In support of this allegation, he attached a picture depicting
Maria injecting cocaine in her body. However, the truth is that Maria
was injecting glutathione in her body, and that it was Pedro, who
bought that substance. Although the allegation that “Maria is a drug”
is defamatory, Pedro cannot be held liable for libel since he has the
absolute privilege to communicate to the court all matters, which are
relevant to the case. As stated in Choa v. People, G.R. No. 142011,
March 14, 2003, the purpose of the privileged communication rule is
to ensure that witnesses may speak their minds freely and exercise
their respective functions without incurring the risk of a criminal
prosecution or an action for the recovery of damages. However, Pedro
can be held liable for perjury. The rules require that a petition for
custody of child must be verified to ensure that the petitioner shall
always allege truthful matters. If the petitioner shall not be subject
to criminal action for perjury for asserting falsehood in the petition,
then the requirement of verification will be rendered useless. In sum,
while the petitioner has an absolute privilege to communicate to the
court all relevant matters, even if the same are defamatory, he has
no privilege to allege untruthful matters therein. As stated in the case
of Choa, certainly, petitioner (who is charged with perjury) cannot seek
refuge under the absolutely privileged communication rule since the
false statements he made in his petition for naturalization has instead
made a mockery of the administration of justice.
Pedro filed a verified complaint for collection of money against
Maria. Pedro alleged in the complaint that Maria, a drug addict,
borrowed money from him; but she failed to pay him. In support of
this allegation, he attached contract of loan, and a picture depicting
Maria injecting cocaine in her body. However, the truth is that Maria
was injecting glutathione in her body, and that it was Pedro, who sold
that substance to her. Pedro cannot be held liable for perjury since
the untruthful allegation that Maria is a drug addict is not material
to his cause of action. Whether Maria is a drug addict or not, she has
the obligation to pay Pedro. Moreover, the law does not require a
complaint for collection of money to be verified. However, Pedro is
liable for libel since his allegation is defamatory. He cannot invoke
the principle of absolute privileged communication since the
defamatory statement that Maria is a drug addict is not material to
the case. Pedro has no privilege to communicate to the court
immaterial matters.
4. Subornation of Perjury - Under Act No. 1697, any person
who causes or procures another person to commit perjury is guilty of
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subornation of perjury. The Revised Penal Code, which has repealed

Act No. 1697, does not expressly penalize subornation of perjury.
However, a suborner, who causes or procures another person to
commit perjury, is guilty as principal by inducement. In People v.
Pudol, G.R. No. 45618, October 18, 1938, the fact that subornation
of perjury is not expressly penalized in the Revised Penal Code does
not mean that the direct induction of a person by another to commit
perjury has ceased to be a crime, because said crime is fully within
the scope of that defined in Article 17 of the said Code on principal
by inducement. (1950, 1955, 1993, and 2012 Bar Exams)
6. Venue - Before, the venue for perjury is the place where the
perjured affidavit was presented. (U.S. v. Cañet, G.R. No. L-9869,
March 25, 1915; Ilusorio v. Bildner, G.R. Nos. 173935-38, December
23, 2008) However, the present rule is that venue for perjury is the
place where the affidavit was sworn by the affiant before a notary
public.
In Union Bank of the Philippines v. People, G.R. No. 192565,
February 28, 2012, the Supreme Court, En Banc, explained that at
the time the Cañet ruling was rendered, the prevailing law on perjury
was found in Act No. 1697. The venue of action was held by the Court
in the Cañet case to be at the place where the false document was
presented since the presentation was the act that consummated the
crime. On the other hand, Article 183 of the Revised Penal Code
penalizes one who “makes an affidavit, upon any material matter
before a competent person authorized to administer an oath in cases
in which the law so requires.” The constitutive act of the offense is the
making of an affidavit; thus, the criminal act is consummated when
the statement containing a falsity is subscribed and sworn before a
duly authorized person. Hence, venue of this crime is the place where
the perjured affidavit was notarized.
RA NO. 9262
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
Psychological violence is an indispensable element of violation

of Section 5(i) of R.A. No. 9262. Equally essential is the element of
emotional anguish and mental suffering, which are personal to the
complainant. Psychological violence is the means employed by the
perpetrator, while emotional anguish or mental suffering are the
effects caused to or the damage sustained by the offended party. The
law does not require proof that the victim became psychologically ill
due to the psychological violence done by her abuser. Rather, the law
only requires emotional anguish and mental suffering to be proven.
To establish emotional anguish or mental suffering, jurisprudence
138 | P a g e
only requires that the testimony of the victim to be presented in

court, as such experiences are personal to this party. (Araza vs.
People, G.R. No. 247429, September 8, 2020; XXX vs. People, G.R.
No. 243049, October 05, 2020)
Section 5 (i) of RA No. 9262 on psychological violence against

woman is a catch-all provision.
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1. Physical violence and psychological violence -Physical

violence against woman is punishable under Section 5 (a). However,
if physical violence caused mental or emotional anguish to the
victim, the offender may be prosecuted for psychological violence
against woman under Section 5 (i). Physical violence will be
considered as an element of psychological violence.
In Dinamling v. People, G.R. No. 199522, June 22, 2015,

accused’s acts of publicly punching, kicking and stripping the victim
of her pants and underwear, although obvious acts of physical
violence, are also instances of psychological violence since it was
alleged and proven that they resulted in her public ridicule and
humiliation and mental or emotional distress. Accused was convicted
of the psychological violence against woman. Physical violence was
treated as a mere element of the graver crime of psychological
violence against woman.
2. Economic violence and psychological violence -

Deprivation of financial support is punishable as economic violence
against woman under Section 5 (e). (Melgar vs. People, G.R. No.
223477, February 14, 2018) However, if the deprivation of financial
support caused mental or emotional anguish to the offended woman,
the offender may be prosecuted for both psychological violence
against woman under Section 5 (i) and economic violence against
woman under Section 5 (e) (Reyes vs. People, G.R. No. 232678, July
03, 2019)
In Melgar vs. People, G.R. No. 223477, February 14, 2018,

accused has a dating and sexual relationship with AAA resulting in
BBB's birth. He failed to provide BBB support ever since the latter
was just a year old. Accused is charged with psychological violence
against woman under Section 5 (i) of RA No. 9262 for failure to give
support which "caused mental or emotional anguish, public ridicule
or humiliation to AAA and BBB. No evidence was presented to show
that deprivation of support caused either AAA or BBB any mental or
emotional anguish. However, the accused can be convicted of
economic violence against woman under Section 5 (e), which is
necessarily included in the charge of psychological violence against
woman under Section 5 (i) of RA No. 9262. Deprivation or denial of
support, by itself and even without the additional element of
psychological violence, is already specifically penalized therein as
economic violence.
3. Felony and psychological violence - Concubinage and

bigamy are punishable under the Revised Penal Code. However, if
concubinage or bigamy caused mental or emotional anguish to the
offended wife, the offending husband may be prosecuted for
psychological violence against woman.
In AAA v. BBB, G.R. No. 212448, January 11, 2018, the accused
was prosecuted for psychological violence against woman under
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Section 5 (i) for having an illicit affair with a Singaporean that causes
mental or emotional anguish to his wife.
In Araza vs. People, G.R. No. 247429, September 8, 2020,

accused left his wife and decided to stay in Zamboanga City where
he maintained an illicit affair. He intentionally left his wife groping in
the dark. Without any explanation or mature conversation with his
wife, he simply left his wife causing the latter emotional and
psychological distress. Accused committed the crime of psychological
violence, through his acts of marital infidelity, which caused mental
or emotional suffering on the part of his wife.
RA NO. 7610
CHILD ABUSE LAW
CHILD ABUSE - As a general rule, in a case where the victim is a

minor, accused should not be charged with a felony such as grave
threat or robbery with rape in relation to RA No. 7610. If the
information charged the accused with a felony in relation to RA No.
7610, the court must delete the correlation. (People vs. Bueza, G.R.
No. 242513, November 18, 2020) Felonies and crimes under RA No.
7610 are different and independent from each other. However, there
are occasions where a felony defined under Revised Penal Code is
punishable by a penalty prescribed by RA No. 7610. Section 5 and
10 of RA No. 7610 prescribe penalties for: (1) acts of lasciviousness
committed against a child exploited in prostitution or other sexual
abuse, who is under 12 years of age, and (2) homicide, other
intentional mutilation and serious physical injuries committed
against a child under 12 years of age. In such a case, correlation of
RPC to RA No. 7610 in charging the accused is allowed.
In Cruz vs. People, G.R. No. 216642, September 08, 2020, the
accused was convicted of homicide committed against a 9-year-old
child. He was sentenced to suffer a maximum penalty of 12 years and
1 day of reclusion temporal. With due respect to the Supreme Court,
under Section 10 of RA No. 7610, the penalty for homicide where the
victim is under 12-years of age is reclusion perpetua.
Section 10 (a) of RA No. 7610 is a "catch-all" provision which

penalizes other acts of child abuse not specifically addressed by other
provisions of RA No. 7610 and the Revised Penal Code. (Talocod vs.
People, G.R. No. 250671, October 07, 2020) This provision punishes
four distinct acts, to wit: (a) child abuse, (b) child cruelty, (c) child
exploitation and (d) being responsible for conditions prejudicial to the
child's development. Accused can be convicted under Section 10 (a)
if he commits any of the four acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child exploitation
have resulted in the prejudice of the child because an act prejudicial
to the development of the child is different from the former acts.
(Patulot vs. People, G.R. No. 235071, January 7, 2019)
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1. Physical injury – Child abuse (Section 10 of RA No. 7610)

includes maltreatment, whether habitual or not, of the child.
Maltreatment includes psychological and physical abuse (Section 3)
or infliction of physical injury such as lacerations, fractured
bones, burns, internal injuries, severe injury or serious bodily harm
suffered by a child (Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases) such as banging the heads of the
minor students by their teacher (De Ocampo v. The Hon. Secretary
of Justice, G.R. No. 147932, January 25, 2006)
Child abuse includes disciplinary acts by the mother such as

belting, pinching, and strangulating his 8-year-old child, which
caused her to limp (Lucido vs. People, G.R. No. 217764, August 7,
2017, Justice Leonen) or by teacher such as slamming him on the
floor which caused him to lost consciousness (Rosaldes v. People,
G.R. No. 173988, October 8, 2014). Intent to discipline student is not
a defense since Article 233 of the Family Code prohibits the infliction
of corporal punishment by teacher. (Rosaldes v. People, supra)
2. Degrading the dignity of the child – In Bongalon v. People,

G.R. No. 169533, March 20, 2013, accused saw the victim and his
companions hurting his minor daughters. Angered, accused struck
minor-victim at the back with his hand and slapped his face. Since
the accused committed the act at the spur of the moment, they are
perpetrated without intent to degrade the dignity of the victim.
Without such intent, the crime committed is not child abuse under
R.A. No. 7610 but merely slight physical injuries.
In Jabalde v. People, G.R. No. 195224, June 15, 2016, the

accused was informed that her daughter's head was punctured, and
whom she thought was already dead. The accused slapped, struck,
and choked a minor as a result of the former's emotional rage.
Absence of any intention to debase, degrade or demean the dignity of
the child victim, the accused's act was merely slight physical injuries.
In Escolano vs. People, G.R. No. 226991, December 10, 2018,

complainants, who are minors, threw ketchup sachets against the
daughter of the accused. But it was the accused, who was hit by the
sachets twice. Accused exclaimed, "Putang ina ninyo, gago kayo, wala
kayong pinag-aralan, wala kayong utak, subukan ninyong bumaba
dito, pakakawalan ko ang aso ko, pakakagat ko kayo sa aso ko."
Uttering “putang ina” to the minors in the heat of anger is not

child abuse. The expression "putang ina mo" is a common enough
utterance in the dialect that is often employed, not really to slander
but rather to express anger or displeasure. In fact, more often, it is
just an expletive that punctuates one’s expression of profanity.
Threatening to release her dog to chase and bite the minors

made in the heat of anger is not child abuse. Accused merely
intended that they stop their rude behavior. Absence of any intention
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to degrade the dignity of minors, accused is only liable for other light
threats.
The statement "putang ina mo" and making hacking gestures

with a bolo, which are directed against the mother of two children,
are not constitutive of child abuse involving degrading the dignity of
a child. Since the threatening acts are not directed against the
children, intent to degrade, debase or demean their dignity is not
established.
In Talocod vs. People, G.R. No. 250671, October 07, 2020, as

his playmates were bothering passing motorists by throwing sand
and gravel on the road, AAA (11-years of age) berated and told them
to stop. Upset by AAA's reprimand, one of the children, reported the
incident to her mother, the accused. The accused immediately
confronted AAA about his behavior, and while pointing a finger at the
latter, furiously shouted: "Huwag mong pansinin yan. At putang ina
yan. Mga walang kwenta yan. Mana-mana lang yan!" Accused is not
criminally liable for child abuse. There is no showing that the
utterance was specifically intended to debase, degrade, or demean
AAA's intrinsic worth and dignity as a human being. To the contrary,
it appears that accused's harsh utterances were brought about by
the spur of the moment, particularly, out of her anger and annoyance
at AAA's reprimand of her child.
In Bongalon case and Jabalde case, accused were convicted of

slight physical injuries instead of child abuse. In Escolano case,
accused was convicted of other light threat instead of child abuse. In
Talocod case, accused was not held liable for child abuse or any other
crime.
In People vs. Javarez, G.R. No. 248729, September 03, 2020,

accused, a teacher, was not shown to have intended to debase,
degrade, or demean BBB's intrinsic worth and dignity as a human
being. For while hitting BBB with a broomstick is reprehensible,
accused did so only to stop BBB and another classmate from fighting
over pop rice. Thus, he is liable for slight physical injuries, and not
child abuse. As for AAA, records show that in his effort to stop his
two (2) other students from fighting over food during his afternoon
class, accused got to push AAA, one of the onlookers, as a result of
which, AAA fell on the floor with his face down. Surely, accused did
not intend to maltreat nor debase AAA's dignity as a human being.
He was in all honesty simply trying to stop his students from fighting.
He cannot therefore be held liable of child abuse. Neither is he liable
for slight physical injuries. Accused as a teacher was merely trying
to stop two of his students from fighting over food during the class.
AAA, a mere onlooker, was not involved in the fight. There was no
evidence showing accused ever intended to harm him in any way. It
was possible though that as an onlooker, AAA stood too close to the
protagonists such that when accused stepped in to disengage the
143 | P a g e
protagonists, necessarily AAA was also pushed back, and as result,

fell to the ground.
The Bongalon principle is inapplicable if the accused did not

assault a child in the heat of anger or as spontaneous reaction to his
misbehavior. In Delos Santos vs. People, G.R. No. 227581, January
15, 2020, AAA, a minor and Daluro were on their way to her house
when accused and his group confronted them. Bob, brother of the
accused, said "nag-iinit na ako," as he wanted to punch Daluro. Bob
attempted to hit Daluro with a rock, but AAA apologized to prevent a
commotion. Accused attempted to punch Daluro, but he dodged it
and AAA was hit on the right cheek instead. Bob punched AAA on
the chest causing her to hit a wall. AAA asked companions of accused
to call her mother for help, but Bob interrupted and said "tama lang
yan sa inyo pagtripan dahil dinemanda n'yo kami." Accused hurled
invectives at AAA, who was calling her mother on her way to her
house with Daluro. The Supreme Court finds the Bongalon case
inapplicable and convicted the accused of child abuse. The accosting
and laying of hands are deliberately intended by accused and his
group. The word "pagtripan" signified an intention to debase or
degrade that did not result from an unexpected event. The acts of
accused were offshoots of an intent to take revenge arising from the
conflict existing between his mother and AAA's mother. Accused did
not lose his self-control and the acts were not done at the spur of the
moment.
In Torres vs. People, G.R. No. 206627, January 18, 2017

(Justice Leonen), in the middle of argument in a barangay
conciliation proceeding, AAA suddenly interjected that accused
damaged his uncle’s multicab and accused him of stealing his uncle’s
fish nets. Accused told AAA not to pry in the affairs of adults. He
warned AAA that he would whip him if he did not stop. However, AAA
refused to keep silent and continued his accusation. Infuriated with
AAA’s meddling, accused whipped AAA on the neck using a wet t-
shirt. Accused continued to hit AAA causing the latter to fall down
from the stairs. Whipping AAA on the neck with a wet t-shirt is an
act that debases, degrades, and demeans the intrinsic worth and
dignity of a child. It is a form of cruelty. Being smacked several times
in a public place is a humiliating and traumatizing experience for all
persons regardless of age. Accused, as an adult, should have
exercised restraint and self-control rather than retaliate against a 14-
year-old child.
The Bongalon principle is inapplicable if the accused inflicted

serious physical injuries on a child. In Patulot vs. People, G.R. No.
235071, January 7, 2019, throwing boiling cooking oil, which
directed against the mother of a baby and 3-year-old child, which
consequently burned the faces and skin of the minors, is not
constitutive of child abuse involving degrading the dignity of a child.
Since throwing boiling oil is not directed against the children, intent
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to degrade, debase or demean their dignity is not established.

However, the accused is still liable of child abuse involving infliction
of serious physical injury.
3. Vasectomy – Vasectomy denies a man his power of

reproduction, however such procedure does not deprive him, “either
totally or partially, of some essential organ for reproduction.”
Bilateral vasectomy could not have amounted to the crime of
mutilation. (Aguirre v. Sec. of DOJ, G.R. No. 170723, March 3, 2008)
Doctor performed vasectomy on Larry, a mentally-retarded,

whose mental age is 8 years, with consent of his guardian. Complaint
for child abuse involving cruelty was filed against the doctor and the
consenting guardian since Larry for being a mentally retarded is not
capable of giving consent to vasectomy. Since the case was dismissed
on technical ground, the Supreme Court in Versoza vs. People, G.R.
No. 184535, September 03, 2019 did not tackle the issue on whether
conducting vasectomy on a mentally retarded is a violation of RA No.
7610. However, individual Justices presented their views on the
matter.
According to Justice Leonen, the vasectomy on someone with

cognitive disability, without his' or her consent, is both an act of
cruelty and an act prejudicial to the person's' development. Larry's
legal guardians, instead of acting only for his best interests,
substituted his consent with their own under the guise of
"protection." There were other options for Larry who, in time, could
have children of his own. But this was taken away from him by the
people who should have acted in Larry's best interest. To deprive him
of all the options his life had to offer is an act of cruelty. It was an act
borne out of selfishness, not love. It was not for them to conclude
that Larry cannot become a parent or care for someone other than
himself.
However, Justice Coaguio opined that there is no shred of

evidence offered to show that the guardians and doctor were impelled
by any ill-motive in facilitating the vasectomy procedure. No specific
intent to debase, degrade or demean intrinsic worth Larry as a
human being had been convincingly shown, thereby negating
respondents' criminal liability under Section 10(a) of RA 7610.
Justice Peralta agreed with this view. According to Justice Jardeleza,
RA 7610 does not criminalize vasectomy. Justice Reyes stated that
Larry's guardians have the right to decide what is best for the child
they took in and raised as their own; and such decision is clothed
with the presumption of good faith. The right of parents or guardians
to provide consent for medical procedures on behalf of intellectually
disabled persons who are unable to provide such consent is part and
parcel of their parental authority over their children or wards.
Child abuse includes neglect. Neglect may be typified as: (1)

physical; (2) educational; (3) emotional; and (4) medical. Physical
145 | P a g e
neglect refers to the failure to provide a child's basic needs, which

consists of food, clothing, and shelter. Educational neglect consists
in the failure to ensure that the child receives proper and adequate
education. Emotional neglect is the failure to nurture by, among
others, ignoring or isolating the child. Medical neglect pertains to the
failure to provide proper healthcare to a child, as when, for instance,
one ignores medical recommendations.
Neglect has also been expanded to recognize environmental

neglect and supervisory neglect. Environmental neglect pertains to a
situation where a child is left in a hazardous or unclean location.
Supervisory neglect refers to a situation where a child is abandoned
or left under the custody of an inappropriate substitute. (Opinion of
Justice Leonen; Versoza vs. People, G.R. No. 184535, September 03,
2019)
SEXUAL ABUSE – Children in EPSOSA are those exploited in

prostitution or subject to other sexual abuse. (Concurring opinion of
Justice Leonen in People vs. Tulugan, G.R. No. 227363, March 12,
2019)
Having sexual intercourse or lascivious conduct with a child

constitutes child prostitution if committed for money, profit, or any
other consideration (People vs. Jalosjos, G.R. Nos. 132875-
76, November 16, 2001); or sexual abuse is committed under
coercion or influence of any adult, syndicate or group. In child
prostitution, the victim is called child exploited in prostitution while
in sexual abuse the victim is called child subjected to other abuse
(Section 5 of RA No 7610). Coercion is either physical or
psychological. Taking advantage of ascendency as a swimming
instructor over student is psychological coercion (People vs. Larin,
G.R. No. 128777, October, 7 1998).
1. Child vs. child - Accused (15 years of age) inserting his

finger into vagina of complainant (11 years old). The crime committed
is sexual assault under the RPC. Section 5 of RA No. 7610 prescribes
the penalty of reclusion temporal in its medium period if the
lascivious conduct is committed against a child subject to sexual
abuse, who is under 12 years of age. RA No. 7610 is not applicable
since the accused is also a minor. RA 7610 was enacted in order to
protect children from abuse, exploitation, and discrimination by
adults and not by persons who are also children themselves. Section
5 of RA 7610 expressly states that a child is deemed to be sexually
abused when coerced or influenced by an adult, syndicate, or group.
(BBB vs. People, G.R. No. 249307, August 27, 2020)
2. Third person in sexual abuse – In coercion or influence as

an element of sexual abuse is exerted against child is clearly exerted
NOT by the offender who is liable for sexual abuse or child
prostitution under Section 5 (b) of RA No. 7610, but by the adult
(syndicate, or group), who is liable for promoting, facilitating or
146 | P a g e
inducing child prostitution under Section 5 (a) thereof. (People vs.

Tulugan, G.R. No. 227363, March 12, 2019) This view in the Tulugan
case is not controlling. Several cases affirmed the convictions for
sexual abuses of the accused, who themselves employed coercion or
influence in order for the minor victims to submit themselves to
lascivious conduct. (See: Rarang vs. People, G.R. No. 226760, August
14, 2019, Satur vs. People, G.R. No. 245375, June 19, 2019, People
vs. Veron, G.R. No. 239028, April 10, 2019; People vs. LCU, G.R. No.
234319, April 10, 2019, and De Joan vs. People, G.R. No. 232957,
September 25, 2019)
In Quimvel vs. People, G.R. No. 214497, April 18, 2017,

participation of a third person is not essential in sexual abuse. It is
immaterial whether or not the accused himself employed the coercion
or influence to subdue the will of the child for the latter to submit to
his sexual advances for him to be convicted of sexual abuse. Sexual
abuse can be committed by "any adult, syndicate or group" without
qualification.
3. Sex with a child per se is not a crime – There are several

cases where sex with a child constitutes crime. Sexual intercourse
with a child under 12 years of age is statutory rape. Influencing the
child in having sex constitutes sexual abuse. In Caballo v. People,
G.R. No. 198732, June 10, 2013, the assurance of love, guarantee
that she would not get pregnant by using the withdrawal method and
the promise of marriage were classified as psychological coercion and
influence within the purview of Section 5 of R.A. No. 7610 used by
the accused to convince his minor girlfriend to have sex with him.
Hence, accused is guilty of sexual abuse.
However, sex with a child per se is not a crime. What is

punishable under R.A. No. 7610 is sexual abuse with a child. Sexual
abuse is more than a mere sexual intercourse or lascivious conduct
with a child. (see: People v. Hon. Court of Appeals, G.R. No. 171863,
August 20, 2008)
Consent is immaterial in cases involving sexual abuse under

R.A. No. 7610 where the offended party is below 12 years of age.
However, consent is material when the offended party is a child, who
is 12 years old or above. In such a case, consent of the child is a
defense in cases involving sexual abuse. Consent as a defense is
either express or implied. Consent is implied if the prosecution failed
to prove that the child had sex with accused due to money, profit or
consideration, or coercion or influence. (People vs. Tulugan, G.R. No.
227363, March 12, 2019)
Under the Civil Code, all individuals under 18 years of age have
no capacity to act or the power to do acts with legal effects. The law
limits, to varying degrees, the capacity of an individual to give
consent. While in general, under the civil law concept of consent, in
relation to capacity to act, the same concept cannot be applied to
147 | P a g e
consent within the context of sexual predation. Under civil law, the
concept of "capacity to act" under civil law limits the capacity to give
a valid consent which generally refers to the meeting of the offer and
the acceptance upon the thing and the case which are to constitute
the contract. Capacity to act under civil law cannot be equated to
capacity to give sexual consent for individuals between 12 years old
and below 18 years old. Sexual consent does not involve any
obligation within the context of civil law and instead refers to a
private act or sexual activity that may be covered by the Revised Penal
Code and R.A. 7610. (People vs. Tulugan, supra)
The age of sexual consent in the Philippines is 12 years

old. According to United Nations International Children's Emergency
Fund, this is "one of the lowest globally and the lowest in the Asia-
Pacific region." The average age of consent is 16 years old. The age of
majority, however, is 18 years old. Minors, or those below 18, have
no capacity to enter into any contracts or marriage. Yet, strictly
reading the provisions of the Revised Penal Code, any minor above
12 years old may validly consent to sexual intercourse and lascivious
conduct with an adult. (Concurring opinion of Justice Leonen in
People vs. Tulugan, supra)
In Bangayan vs. People, G.R. No. 235610, September 16,

2020, it is now clear that consent is a material factor in determining
the guilt of accused, who is charged with sexual abuse against a child
whose age is 12 years and one month. In Monroy (G.R. No. 235799,
July 29, 2019), then 28-year-old accused was charged with violation
of Section 5 (b) of R.A. 7610 for inserting his penis into the vagina of
a 14-year-old. The Court acquitted the accused on reasonable doubt,
finding that the sexual intercourse that transpired between the
accused and the 14-year-old was consensual and that the case
against the accused is based merely on trumped-up allegations
meant as retaliation. In Monroy, the accused was 14 years older than
victim yet the Court found that she was not subjected to other sexual
abuse due to the coercion of an adult as they were in a relationship.
Similarly, in the present case, the accused was more or less 15 years
older than AAA. While difference in age may be an indication of
coercion and intimidation and negates the presence of sexual
consent, this should not be blindly applied to all instances of alleged
sexual abuse cases. In this case, there are special circumstances
that reveal the presence consent of AAA. The sexual congress
between accused and AAA was not limited to just one incident. They
were in a relationship even after the incident alleged in the
Information and had even produced two (2) children. It is clear that
AAA, who is capable to discern good from evil, give consent to the
sexual act. Accused was acquitted. Justice Leonen in his dissenting
opinion stated with the greatest respect, I cannot accept that our laws
can be interpreted so that a 12-year-old girl, barely in the sixth grade,
can give her mature consent to sexual intercourse. Sexual
intercourse is a complex act which is not only physical or sensual.
148 | P a g e
4. New designation of sexual abuse - Since time immemorial

the Supreme Court is using the title of a penal provision, and not a
word in the body to describe a crime. For example, the crime under
Article 249 of the Revised Penal Code is called homicide since the title
of this provision is homicide. Although the word “kill” is found in the
body of this provision, there is no occasion where the crime under
Article 249 is described as “killing.”
The title of Article 5 of RA No. 7610 is “child prostitution and

other sexual abuse.” However, the word “lascivious conduct” is found
in the body of Section 5 (b) of RA No. 7610. In People vs. Larin, G.R.
No. 128777, October, 7 1998 and other cases, the Supreme Court
described the crime involving lascivious conduct under Section 5 (b)
of RA No. 7610 as sexual abuse. It is submitted that this is the correct
name of the crime. However, in the case of the Tulugan case, proper
nomenclature of the offense involving lascivious conduct under
Section 5 (b) is now “lascivious conduct” under RA No. 7610. (People
vs. Molejon, G.R. No. 208091, April 23, 2018; ZZZ vs. People, G.R.
No. 243467, April 08, 2019; De Joan vs. People, G.R. No. 232957,
September 25, 2019; People Vergara, G.R. No. 242477, September 2,
2019) For purpose of the bar examination, the Tulugan case should
be followed.
SEXUAL ABUSE AND FELONY - If the acts constitute sexual abuse,

and rape, sexual assault, or acts of lasciviousness, the offender shall
be prosecuted either under RPC or R.A. No. 7610 (People vs. Abay,
G.R. No. 177752, February 24, 2009), whichever prescribes a graver
penalty. (Dimakuta v. People, G.R. No. 206513, October 20, 2015;
Justice Leonen concurred; People vs. Tulugan, G.R. No. 227363,
March 12, 2019) The higher penalty under either law must be applied
for the minor victim’s benefit. Imposing a lower penalty for the
offender is undeniably unfair to the child victim. (People v. Pusing,
G.R. No. 208009, July 11, 2016).
1. Sexual abuse and rape - If the acts constitute sexual abuse

under RA No. 7610, and rape, the perpetrator shall be prosecuted
under RPC. The penalty under RPC for rape is graver than that
prescribes by RA No. 7610. Rape is severely penalized because it may
lead to unwanted procreation; or to paraphrase the words of the
legislators, it will put an outsider into the woman who would bear a
child, or to the family, if she is married. (People vs. Tulugan, supra)
Where a minor is raped, RPC ought to prevail over RA 7610. (People
vs. Ejercito, supra) Moreover, RA No. 8353, which amended RPC on
rape, is the more recent and special penal legislation and this law
strengthens the policies of RA No. 7610. (People vs. Briones, G.R. No.
240217, June 23, 2020)
If the acts constitute sexual abuse under RA No. 7610, and

special complex crime of sexual assault with homicide, the
perpetrator shall be prosecuted under RPC. The penalty under RPC
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for sexual assault with rape is graver than that prescribes by RA No.
7610.
2. Sexual abuse (now lascivious conduct), and sexual assault

or acts of lasciviousness – If the acts constitute sexual abuse (now
lascivious conduct) under RA No. 7610, and sexual assault or acts of
lasciviousness, the perpetrator shall be prosecuted under RA No.
7610. The penalty for sexual abuse (now lascivious conduct) under
RA No. 7610 is graver than that for acts of lasciviousness or sexual
assault under RPC.
3. Special rules if the child is under 12 years of age - There

are special rules under Section 5 (b) of RA No. 7610 if the child
exploited in prostitution or sexual abuse is under 12 years of age. A
demented person (idiot, imbecile, and feebleminded), whose metal age
is under 12 years, is covered by these rules. (People v. Pusing, supra;
People vs. Tulugan, supra) If the acts constitute sexual abuse under
RA No. 7610, and rape or acts of lasciviousness, the perpetrator shall
be prosecuted for statutory rape under RPC, or acts of lasciviousness
under RPC in relation to RA No. 7610.
a. rape - Under Section 5 (b) of RA No. 7610, that when the child
exploited in prostitution or sexual abuse is under 12 years of age (or
demented), the perpetrators shall be prosecuted for statutory rape.
Sexual abuse under RA No. 7610 is separate and distinct from

statutory rape under RPC. Aside from being dissimilar in the sense
that the former is an offense under special law, while the latter is a
felony under the Code, they also have different elements.
Nevertheless, sexual intercourse with a victim who is under 12 years
of age or is demented is always statutory rape, as Section 5(b) of R.A.
No. 7610 expressly states that the perpetrator will be prosecuted
under Code. (People vs. Tulugan, supra)
Even if the girl who is below twelve (12) years old or is demented
consents to the sexual intercourse, it is always a crime of statutory
rape under the Revised Penal Code, and the offender should no longer
be held liable under R.A. No. 7610. For example, a nine (9)-year-old
girl was sold by a pimp to a customer, the crime committed by the
latter if he commits sexual intercourse with the girl is still statutory
rape (and not child prostitution), because even if the girl consented
or is demented, the law presumes that she is incapable of giving a
rational consent. (People vs. Tulugan, supra)
b. Acts of lasciviousness – Under Section 5 (b) of RA No. 7610,

that when the child exploited in prostitution or sexual abuse is under
12 years of age (or demented), the perpetrator shall be prosecuted for
acts of lasciviousness with the penalty of reclusion temporal in its
medium period. In sum, he shall be prosecuted under the Revised
Penal Code but the imposable penalty is that prescribed under RA
no. 7610. Thus, the proper nomenclature of this crime is acts of
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lasciviousness under RPC in relation to RA No. 7610. (People vs.

Tulugan, supra)
If the accused committed acts of lasciviousness against a child

exploited in prostitution or sexual abuse, who is under 12 years of
age or demented, the former shall be prosecuted for acts of
lasciviousness under RPC with the penalty of reclusion temporal in
its medium period under RA No. 7610. (People vs. Molejon, G.R. No.
208091, April 23, 2018; Granton vs. People, G.R. No. 226045,
October 10, 2018; Francisco vs. People, G.R. No. 241452, March 25,
2019; People vs. ZZZ, G.R. No. 232500, July 28, 2020)
To apply the penalty of reclusion temporal in its medium period

pursuant to the second proviso, the requisites of acts of
lasciviousness must be met in addition to the requisites for sexual
abuse or child prostitution. (Quimvel v. People, supra; Ramilo vs.
People, G.R. No. 234841, June 3, 2019; People vs. Basa, G.R. No.
237349, February 27, 2019)
The accused is charged of acts of lasciviousness against an

under-12-year-old child. The information alleged “force and
intimidation,” which is an element of acts of lasciviousness under RPC
but it does not aver "coercion or influence,” which is an element of
sexual abuse under RA No. 7610. But it was ruled that the term
"coercion and influence" is broad enough to cover "force and
intimidation” as alleged in the information. Committing lascivious
conduct against an under-12-year-old child is statutory acts of
lasciviousness. Committing lascivious conduct against a child under
coercion or influence is sexual abuse. Since the elements of acts of
lasciviousness and those of sexual abuse are proven, the accused is
convicted of acts of lasciviousness under RPC in relation to RA No.
7610. (Quimvel v. People, supra)
c. Simple sexual assault – If the accused committed sexual

assault against a child exploited in prostitution or sexual abuse, who
is under 12 years of age or demented, will the court impose the
penalty of prision mayor for sexual assault under RPC as amended
by RA No. 8353, or reclusion temporal in its medium under Section 5
(b) of RA No. 7610? In this situation, the court in convicting the
accused for sexual assault must impose the graver penalty under RA
No. 7610 on the following reasons:
1. To impose the lighter penalty under RPC is unfair to the

victim. To prevent unfairness, the court must impose graver penalty
under R.A. No. 7610. (People v. Chingh, G.R. No. 178323, March 16,
2011)
2. R.A. No. 7610 is a special law which should clearly prevail

over R.A. 8353, which is a mere general law amending the Revised
Penal Code. (Granton vs. People, G.R. No. 226045, October 10, 2018;
Ricalde v. People, G.R. No. 211002, January 21, 2015, Justice
151 | P a g e
Leonen, and People vs. Adajar, G.R. No. 231306, June 17, 2019;
Miranda vs. People, G.R. No. 232192, June 22, 2020, Justice
Leonen; People vs. Sumayod, G.R. No. 230626, March 09, 2020,
Justice Leonen)
In this situation, the crime should be called as “sexual assault”

under RPC in relation to RA No. 7610. (People vs. Tulugan, supra;
Ramilo vs. People, G.R. No. 234841, June 3, 2019; People vs. XXX,
G.R. No. 230981, July 15, 2020)
In People v. Chingh, G.R. No. 178323, March 16, 2011- the

accused the force inserted his finger into the genital orifice of a child,
who is 10 years old. The victim is a child exploited in sexual abuse
since the element of coercion is present. Since the victim is under 12
years of age, the crime committed is statutory sexual assault. The
penalty for sexual assault under RPC is prision mayor. On the other
hand, the penalty for lascivious conduct under second proviso of
Section 5 (b) RA No. 7610 is reclusion temporal in its medium period.
To impose the lighter penalty under RPC is unfair to the victim. To
prevent unfairness, the Supreme Court imposed the graver penalty
under R.A. No. 7610. In sum, the accused is convicted of simple
sexual assault under RPC in relation of RA No. 7610.
d. Qualified sexual assault – The crime is qualified sexual

assault if qualifying circumstance such as relationship and minority
is present. If the accused committed qualified sexual assault against
a child exploited in prostitution or sexual abuse, who is under 12
years of age or demented, will the court impose the penalty of
reclusion temporal for sexual assault under RPC as amended by RA
No. 8353, or reclusion temporal in its medium under Section 5 (b) of
RA No. 7610? In this situation, the court in convicting the accused
for qualified sexual assault must impose the graver penalty under
RPC. Since rationale of unfairness to the child victim that Chingh
case wanted to correct is absent because RPC already prescribes the
high penalty, there is no need to apply the penalty under RA No.
7610. (People v. Bonaagua, G.R. No. 188897, June 6, 2011)
Accused inserted his penis into the mouth of his foster child,
whose actual age is above 12 years old, but her mental age is 9 years
old. The crime committed is statutory sexual assault. The qualifying
circumstances of minority and guardianship, and mental disability
are present. Since the mental age of the victim is under 12 years, first
proviso Section 5 (b) of RA No. 7610 is applicable. Under this
provision, if the perpetrator had lascivious conduct with a child
exploited in sexual abuse, who is under 12 years old, the former shall
be prosecuted for rape under RPC, which includes qualified sexual
assault. (People v. Pusing, G.R. No. 208009, July 11, 2016, Justice
Leonen)
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Summary - If the victim of sexual offense is a child in EPSOSA

(exploited in prostitution or subject to other sexual abuse), the
following rules should be observed.
1. Rape - If the act constitutes rape under RPC and sexual

abuse RA No. 7610, the accused shall be prosecuted under RPC,
since this law prescribes a higher penalty. If the act constitutes
statutory rape and sexual abuse, the accused shall be prosecuted
under RPC, since Section 5 (b) of RA No. 7610 says so.
2. Acts of lasciviousness - If the act constitutes acts of

lasciviousness under RPC and sexual abuse under RA No. 7610
committed against a child, who is 12 years of age or above, the
accused shall be prosecuted under RA No. 7610, since this law
prescribes a higher penalty. The crime will be designated as
lascivious conduct.
If the act constitutes acts of lasciviousness under RPC and

sexual abuse under RA No. 7610 committed against a child, who is
under 12 years of age, the accused shall be prosecuted for acts of
lasciviousness under RPC but the penalty of reclusion temporal in its
medium period under RA No. 7610 shall be imposed. The crime will
be designated as acts of lasciviousness under RPC in relation to RA
No. 7610.
3. Sexual assault - If the act constitutes sexual assault under

RPC and sexual abuse under RA No. 7610 committed against a child,
who is 12 years of age or above, the accused shall be prosecuted
under RA No. 7610, since this law prescribes a higher penalty. The
crime will be designated as lascivious conduct.
If the act constitutes sexual assault under RPC and sexual

abuse under RA No. 7610 committed against a child, who is under
12 years of age, the accused shall be prosecuted for sexual assault
under RPC but the penalty of reclusion temporal in its medium period
under RA No. 7610 shall be imposed. It is not the intention of RA No.
8353, which introduces sexual assault in RPC, to disallow the
penalty under RA No. 7610. To impose the lesser penalty of prison
mayor under RA No. 8353 for sexual assault is unfair to the child.
The crime will be designate as sexual assault under RPC in relation to
RA No. 7610.
If the act constitutes qualified sexual assault under RPC and

sexual abuse under RA No. 7610 committed against a child, who is
under 12 years of age, the accused shall be prosecuted for qualified
sexual assault with the penalty of reclusion temporal under RPC. The
penalty of reclusion temporal in its medium period under RA No.
7610 shall not be imposed. In sum, the Chingh principle will not
apply since RPC already prescribes a graver penalty. The
circumstance of unfairness, which the Chingh case sought to correct,
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is not present in this case. The crime will be designate as qualified

sexual assault.
Coercion and influence - The term "coercion and influence"

is broad enough to cover "force and intimidation”. In fact, as these
terms are almost used synonymously, it is then of no moment that
the terminologies employed by RA 7610 and by the Information are
different. (Quimvel v. People, G.R. No. 214497, April 18, 2017; People
vs. Ejercito, G.R. No. 229861, July 2, 2018; People vs. Tulugan, G.R.
No. 227363, March 12, 2019)
The accused is charged of acts of lasciviousness. The

information alleged “force and intimidation,” which is an element of
acts of lasciviousness under RPC but it does not aver "coercion or
influence,” which is an element of lascivious conduct under RA No.
7610. The accused may be convicted of the graver crime of lascivious
conduct under RA No. 7610. (People vs. Molejon, G.R. No. 208091,
April 23, 2018)
Double jeopardy - If the acts constitute sexual abuse (or child

prostitution), and rape or acts of lasciviousness, the offender cannot
be prosecuted for both crimes because of the rule on double jeopardy.
The essence of sexual abuse and rape or acts of lasciviousness is

having sexual intercourse or lascivious conduct with a victim without
her consent, or capacity to give consent. Since these crimes are
identical, the Supreme Court in People vs. Abay, G.R. No. 177752,
February 24, 2009 ruled that the accused cannot be held liable of
both crimes because his right against double jeopardy will be
prejudiced.
Other view: In People vs. Udang, G.R. No. 210161, January 10,
2018, the Supreme Court, Third Division, through Justice Leonen
ruled that offender can be liable for rape and sexual abuse because
they are separate crimes with distinct elements. It seems that Udang
case is a stray decision. The Abay principle is controlling since it was
affirmed by the Supreme Court in several cases such as People vs.
Dahilig, G.R. No. 187083, June 13, 2011; People vs. Matias, G.R. No.
186469, June 18, 2012; Alberto vs. Hon. Court of Appeals, G.R. No.
182130, June 19, 2013; People vs. Ejercito, G.R. No. 229861, July
02, 2018; People vs. Jaime, G.R. No. 225332, July 23, 2018; People
vs. Mabalo, G.R. No. 238839, February 27, 2019 and People vs.
Tulugan, supra.
Sexual abuse and child abuse – Section 5 (b) of RA 7610

specifically applies in cases of sexual abuse committed against
children, which includes lascivious conduct; whereas, Section 10
(a) thereof punishes other forms of child abuse not covered by
particular provisions of RA 7610. Evidently, the offense will not fall
within the purview of Section 10 (a) of RA 7610 if the same is
154 | P a g e
specifically penalized by a particular provision, such as Section 5 (b).

(Encinares vs. People, G.R. No. 252267, January 11, 2021)
The petitioner's acts of putting AAA's penis inside his mouth

and playing with it for ten (10) minutes constitute lascivious
conduct under Section 5 (b) of RA 7610. As such, it was an error for
the courts a quo to have convicted him under Section 10 (a) of the
same Act. True, the Information filed against petitioner charged him
under Section 10 (a) of RA 7610. However, it is a well-settled rule that
the facts alleged in the body of the information, not the technical
name given by the prosecutor appearing in the title of the
information, determine the character of the crime. (Encinares vs.
People, supra)
RA NO. 11313 (SAFE SPACE ACT)
There are three basic elements of gender-based sexual

harassment, to wit:
First – The offender committed sexual harassment against
the victim.
Under Section 4 relation to Section 11 of R.A. No. 11313,
gender-based streets and public spaces sexual harassment includes
the following acts:
1. Catcalling, wolf-whistling, misogynistic, transphobic,
homophobic, sexist slurs and leering and intrusive gazing;
Note: Catcalling refers to unwanted remarks directed towards a
person, commonly done in the form of wolf-whistling and
misogynistic, transphobic, homophobic, and sexist slurs. (Section 3
of R.A. No. 11313) The following are examples of catcalling “wow
legs,” “ang puti puti mo naman,” “hi sexy” and “putangina malas,
may baklelong.”
2. Unwanted invitations (e.g., group of men stating to group
of ladies in a music bar “join us girls, please; will paint the town red,
we will make you happy, promise”);
3. Persistent uninvited comments or gestures on a person’s
appearance or the use of words, gestures or actions that ridicule on
the basis of sex, gender or sexual orientation, identity and/or
expression (e.g., a student stating to his female classmate, who is
wearing corduroy pants “baduy mo, tabatshing ka, kadiri ka, yuk yuk
yuk!”);
4. Relentless requests for personal details such as name,
contact and social media details or destination; or stalking;
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Note: Under R.A. No. 11313, stalking refers to conduct directed

at a person involving the repeated visual or physical proximity, non-
consensual communication, or a combination thereof that cause or
will likely cause a person to fear for one’s own safety or the safety of
others, or to suffer emotional distress. However, stalking against a
child constitutes child abuse under Section 10 (a) of R.A. No. 7610
(Araneta v. People, G.R. No. 174205, June 27, 2008), while stalking
against a woman with whom the offender has/had marital, sexual or
dating relationship, or her child constitutes psychological violence
against woman under Section 5 (h) of R.A. No. 9262.
5. Statement of sexual comments and suggestions (e.g.,
asking a lady passenger inside the bus “Malibog ka ba? Can you be
my fubu? One time lang, please”);
6. Persistent telling of sexual jokes, use of sexual names,
comments and demands, and any statement that has made an
invasion on a person’s personal space or threatens the person’s sense
of personal safety;
7. Public masturbation or flashing of private parts for the
sexual gratification of the perpetrator with the effect of demeaning,
harassing, threatening or intimidating the offended party and similar
lewd sexual actions;
Note: The crime of gender-based streets and public spaces
sexual harassment is committed regardless of the motive for
committing such action or remarks. (Section 4 of R.A. No. 11313)
However, acts that are legitimate expressions of indigenous culture
and tradition, as well as breastfeeding in public shall not be
penalized. (Section 31) For example, an Igorot, who is wearing bahag
while dancing in a public park in front of several women, is not
committing gender-based sexual harassment.
8. Groping (e.g. during a political rally, some participants
hug, touch the breast and kiss a female bystander); and
9. Any advances, whether verbal or physical, that is
unwanted and has threatened one’s sense of personal space and
physical safety (e.g. touching, pinching, or brushing against the
genitalia, face, arms, anus, groin, breasts, inner thighs, face,
buttocks or any part of the victim’s body).
Note: If the touching of the body of the victims constitutes acts
of lasciviousness, sexual assault, rape, or sexual abuse, the accused
should be prosecuted under the Revised Penal Code or R.A. No. 7610,
156 | P a g e
where the penalty is higher than that prescribed under R.A. No.
11313.
Second: Harassment must be gender-based and sexual in
nature. The streets and public spaces harassment under Safe Spaces
Act must be gender-based and sexual in nature; otherwise, the
harasser is liable for unjust vexation, oral defamation, or any other
crime. For example, Pedro uttered to Jose, who farted while walking
in Jupiter Street, “Putang ina mo, utotero ka, sukdulan ang
kapangitan mo.” This harassment is not sexual and gender-based.
Hence, the crime committed is unjust vexation, and not violation of
the Safe Spaces Act.
Third: Gender based sexual harassment must be committed
in street and public spaces, in the work place, in educational and
training institution or through online. Public spaces refer to streets
and alleys, public parks, schools, buildings, malls, bars, restaurants,
transportation terminals, public markets, spaces used as evacuation
centers, government offices, public utility vehicles as well as private
vehicles covered by app-based transport network services( e.g., Grab
transportation services) and other recreational spaces such as, but
not limited to, cinema halls, theaters and spas. (Section 3 of R.A. No.
11312)
Sexual harassment in a private place is not punishable under
the Safe Spaces Act. For example, Pedro inside his house uttered to
Maria, his cousin, “Palaki ng palaki wetpu mo, papisil naman.” Since
a private house is not within the contemplation of the word “public
spaces” under R.A. No. 11313, the crime committed is unjust
vexation, and not gender-based streets and public spaces sexual
harassment.
The offender in sexual harassment under RA No. 7877has
authority, influence or moral ascendancy over victim in a work,
training, or education environment. If an employee sexually harasses
another employee, but the former has no authority, influence or
ascendency over the latter, this is not sexual harassment under RA
No. 7877. But the harassment constitutes gender-based public
spaces or online sexual harassment under R.A. No. 11313 (Safe
Spaces Act) or any other crime. Under R.A. No. 11313, the crime of
gender-based sexual harassment may also be committed between
peers and those committed to a superior officer by a subordinate, or
to a teacher by a student, or to a trainer by a trainee.
Inadmissible evidence - Any record, photo or video, or copy
thereof of any person that is in violation of the preceding sections
157 | P a g e
shall not be admissible in evidence in any judicial, quasi-judicial,

legislative or administrative hearing or investigation. (Section 14 of
R.A. No. 11313)
RA NO. 10173 (DATA PRIVACY ACT)
R.A. No. 10173 (Data Privacy Act) applies to the processing

of all types of personal information and to any natural and
juridical person involved in personal information processing
including those personal information controllers and processors
who, although not found or established in the Philippines, use
equipment that are located in the Philippines, or those who
maintain an office, branch or agency in the Philippines subject
to requirements. (Section 4 of R.A. No. 10173)
INFORMATION NOT COVERED BY DATA PRIVACY ACT

Data Privacy Act does not apply to information which the
data subject is not entitled to have privacy thereon.
Information on public officers
The Data Privacy Act does not apply to information about
any individual who is or was an officer or employee of a
government institution that relates to the position or functions of
the individual. (Section 4 of R.A. No. 10173)
Information on public officials not protected by the Data
Privacy Act include: (1) The fact that the individual is or was an
officer or employee of the government institution; (2) The title,
business address and office telephone number of the individual;
(3) The classification, salary range and responsibilities of the
position held by the individual; and (4) The name of the
individual on a document prepared by the individual in the
course of employment with the government. (Section 4 of R.A. No.
10173)
Life of a public officer is an open book. The privacy of a
public officer is limited compared to that of a private individual.
A public officer has no right of privacy on data or information,
which is connected with his standing as a public servant.
A person, who gathered the names, office addresses, and
telephone numbers of all mayors in Quezon province, and posted
them in the internet, is not violating the Data Privacy Act.
Information on service contract with government
158 | P a g e
The Data Privacy Act does not apply to information about

an individual who is or was performing service under contract
for a government institution that relates to the services
performed, including the terms of the contract, and the name of
the individual given in the course of the performance of those
services. (Section 4 of R.A. No. 10173)
In the spirit of transparency and to ensure that the
taxpayer’s money is not being wasted by public officials, the
public should have access to information concerning service
contract with the government.
Information on license, permit or discretionary benefit
The Data Privacy Act does not apply to information relating
to any discretionary benefit of a financial nature such as the
granting of a license or permit given by the government to an
individual, including the name of the individual and the exact
nature of the benefit. (Section 4 of R.A. No. 10173)
Gathering information on names of individuals with license
to possess firearms is not a violation of Data Privacy Act.
Journalistic, artistic, literary or research information
The Data Privacy Act does not apply to personal information
processed for journalistic, artistic, literary or research purposes.
(Section 4 of R.A. No. 10173)
The Data Privacy Act shall not be construed as to have
amended or repealed the provisions of R.A. No. 53, which affords
the publishers, editors or duly accredited reporters of any
newspaper, magazine or periodical of general circulation
protection from being compelled to reveal the source of any news
report or information appearing in said publication which was
related in any confidence to such publisher, editor, or reporter.
Information obtained by central monetary authority,
law enforcement and regulatory agencies
The Data Privacy Act does not apply to information
necessary in order to carry out the functions of public authority
which includes the processing of personal data for the
performance by the independent, central monetary authority
and law enforcement and regulatory agencies of their
constitutionally and statutorily mandated functions. (Section 4
of R.A. No. 10173)
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Gathering of records of criminal convictions by the National

Bureau of Investigation is not covered by the Data Privacy Act.
The Data Privacy Act shall not be construed as to have
amended or repealed R.A. No. 1405, otherwise known as the
Secrecy of Bank Deposits Act; R.A. No. 6426, otherwise known
as the Foreign Currency Deposit Act; and R.A. No. 9510,
otherwise known as the Credit Information System Act. (Section
4 of R.A. No. 10173)
Information to prevent money laundering
The Data Privacy Act does not apply to information
necessary for banks and other financial institutions under the
jurisdiction of the independent, central monetary authority or
Bangko Sentral ng Pilipinas to comply with R.A. No. 9510, and
R.A. No. 9160, as amended, otherwise known as the Anti-Money
Laundering Act and other applicable laws. (Section 4 of R.A. No.
10173)
Reports of covered transaction or a deposit exceeding
P500,000.00 by bank, a covered person, to the Anti-Money
Laundering Council without consent of the depositor are not
covered by the Data Privacy Act.
Information collected from residents of foreign
jurisdictions
The Data Privacy Act does not apply to personal information
originally collected from residents of foreign jurisdictions in
accordance with the laws of those foreign jurisdictions, including
any applicable data privacy laws, which is being processed in the
Philippines. (Section 4 of R.A. No. 10173)
CRIMES UNDER THE DATA PRIVACY ACT

The crimes punishable under R.A. No. 10173 (Data Privacy
Act) are as follows:
1. Unauthorized processing of personal information and
sensitive personal information;
2. Accessing personal information and sensitive
personal information due to negligence;
3. Improper disposal of personal information and
sensitive personal information;
4. Processing of personal information and sensitive
personal information for unauthorized purposes;
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5. Unauthorized access or intentional breach;

6. Concealment of security breaches involving sensitive
personal information;
7. Malicious disclosure; and
8. Unauthorized disclosure.
UNAUTHORIZED PROCESSING OF PERSONAL

INFORMATION
The crime of unauthorized processing of personal
information is committed by persons who process personal
information without the consent of the data subject, or without
being authorized under this Act or any existing law. (Section 25
of R.A. No. 10173)
Personal information
Personal information refers to any information whether
recorded in a material form or not, from which the identity of an
individual is apparent or can be reasonably and directly
ascertained by the entity holding the information, or when put
together with other information would directly and certainly
identify an individual. (Section 3 of R.A. No. 10173) Name,
address and profession of a person are considered as personal
information. Identifiability of the data subject is an important
element of personal information.
Processing of personal information
Processing refers to any operation or any set of operations
performed upon personal information including, but not limited
to, the collection, recording, organization, storage, updating or
modification, retrieval, consultation, use, consolidation,
blocking, erasure or destruction of data. (Section 3 of R.A. No.
10173)
A bar review center, which collects the email addresses of
law students from law schools without consent of the students
(data subjects), is committing the crime of unauthorized
processing of personal information.
Without consent of the data subject
Data subject refers to an individual whose personal
information is processed.
Consent of the data subject refers to any freely given,
specific, informed indication of will, whereby the data subject
161 | P a g e
agrees to the collection and processing of personal information

about and/or relating to him or her. Consent shall be evidenced
by written, electronic or recorded means. It may also be given on
behalf of the data subject by an agent specifically authorized by
the data subject to do so. (Section 3 of R.A. No. 10173)
If the bar reviewees voluntarily wrote their names, email
addresses and cell numbers on a paper as requested by a bar
review center, Data Privacy Act is not violated since the collection
of personal information was made with the consent of the data
subjects. The consent is evidenced by a written means, and that
is, the paper containing information written by the data subjects
themselves.
Authorized processing of personal information
The processing of personal information shall be allowed,
subject to compliance with the requirements of Data Privacy Act
and other laws allowing disclosure of information to the public
and adherence to the principles of transparency, legitimate
purpose and proportionality. Personal information must be:
(a) Collected for specified and legitimate purposes
determined and declared before, or as soon as reasonably
practicable after collection, and later processed in a way
compatible with such declared, specified, and legitimate
purposes only;
(b) Processed fairly and lawfully;
(c) Accurate, relevant and, where necessary for purposes
for which it is to be used the processing of personal information,
kept up to date; inaccurate or incomplete data must be rectified,
supplemented, destroyed, or their further processing restricted;
(d) Adequate and not excessive in relation to the purposes
for which they are collected and processed;
(e) Retained only for as long as necessary for the
fulfillment of the purposes for which the data was obtained or for
the establishment, exercise or defense of legal claims, or for
legitimate business purposes, or as provided by law; and
(f) Kept in a form which permits identification of data
subjects for no longer than is necessary for the purposes for
which the data were collected and processed: Provided, That
personal information collected for other purposes may lie
processed for historical, statistical or scientific purposes, and in
cases laid down in law may be stored for longer periods: Provided,
162 | P a g e
further, That adequate safeguards are guaranteed by said laws

authorizing their processing.
The personal information controller must ensure
implementation of personal information processing principles set
out herein. (Section 11 of R.A. No. 10173)
Criteria for lawful processing of personal information
The processing of personal information shall be permitted
only if not otherwise prohibited by law, and when at least one of
the following conditions exists:
(a) The data subject has given his or her consent;
(b) The processing of personal information is necessary
and is related to the fulfillment of a contract with the data
subject or in order to take steps at the request of the data subject
prior to entering into a contract;
(c) The processing is necessary for compliance with a
legal obligation to which the personal information controller is
subject;
(d) The processing is necessary to protect vitally
important interests of the data subject, including life and health;
(e) The processing is necessary in order to respond to
national emergency, to comply with the requirements of public
order and safety, or to fulfill functions of public authority which
necessarily includes the processing of personal data for the
fulfillment of its mandate; or
(f) The processing is necessary for the purposes of the
legitimate interests pursued by the personal information
controller or by a third party or parties to whom the data is
disclosed, except where such interests are overridden by
fundamental rights and freedoms of the data subject which
require protection under the Philippine Constitution. (Section 12
of R.A. No. 10173)
A school may lawfully require students, who are enrolling,
to provide personal information such as their names and
addresses. This is lawful processing of personal information
because the data subject has given his or her consent and the
processing is necessary and is related to the fulfillment of a
contract with the data subject.
UNAUTHORIZED PROCESSING OF SENSITIVE

PERSONAL INFORMATION
163 | P a g e
The crime of unauthorized processing of sensitive personal

information is committed by persons who process sensitive
personal information without the consent of the data subject, or
without being authorized under this Act or any existing law.
Sensitive personal information
Sensitive personal information refers to personal
information:
(1) About an individual’s race, ethnic origin, marital
status, age, color, and religious, philosophical or political
affiliations;
(2) About an individual’s health, education, genetic or
sexual life of a person, or to any proceeding for any offense
committed or alleged to have been committed by such person,
the disposal of such proceedings, or the sentence of any court in
such proceedings;
(3) Issued by government agencies peculiar to an
individual which includes, but not limited to, social security
numbers, previous or cm-rent health records, licenses or its
denials, suspension or revocation, and tax returns; and
(4) Specifically established by an executive order or an act
of Congress to be kept classified. (Section 3 of R.A. No. 10173)
An association of lending institutions, which collects court
records on convictions of persons for estafa and violation of B.P.
Blg. 22 without consent of the convicts (data subjects), is
committing the crime of unauthorized processing of sensitive
personal information. However, the Supreme Court can publish
its decisions affirming the conviction of the accused without
violating the Data Privacy Act. The decision is not personal
information. It is a judicial information, which is accessible to
the public.
Lawful processing of sensitive personal information and
privileged information
The processing of sensitive personal information and
privileged information shall be prohibited, except in the following
cases:
(a) The data subject has given his or her consent, specific
to the purpose prior to the processing, or in the case of privileged
164 | P a g e
information, all parties to the exchange have given their consent

prior to processing;
(b) The processing of the same is provided for by existing
laws and regulations: Provided, That such regulatory enactments
guarantee the protection of the sensitive personal information
and the privileged information: Provided, further, That the
consent of the data subjects are not required by law or regulation
permitting the processing of the sensitive personal information
or the privileged information;
(c) The processing is necessary to protect the life and
health of the data subject or another person, and the data
subject is not legally or physically able to express his or her
consent prior to the processing;
(d) The processing is necessary to achieve the lawful and
non-commercial objectives of public organizations and their
associations: Provided, That such processing is only confined
and related to the bona fide members of these organizations or
their associations: Provided, further, That the sensitive personal
information are not transferred to third parties: Provided, finally,
That consent of the data subject was obtained prior to
processing;
(e) The processing is necessary for purposes of medical
treatment, is carried out by a medical practitioner or a medical
treatment institution, and an adequate level of protection of
personal information is ensured; or
(f) The processing concerns such personal information
as is necessary for the protection of lawful rights and interests
of natural or legal persons in court proceedings, or the
establishment, exercise or defense of legal claims, or when
provided to government or public authority. (Section 13 of R.A.
No. 10173)
Privileged information refers to any and all forms of data
which under the Rules of Court and other pertinent laws
constitute privileged communication. (Section 3 of R.A. No.
10173)
An association of health insurance companies, which
collects information on health records of patients from hospitals,
without consent of the patients (data subjects) is committing
unauthorized processing of sensitive personal information.
165 | P a g e
During the crisis involving the corona virus, persons under

investigation or infected persons are being compelled to provide
health authorities personal information. This is a lawful
processing of personal and sensitive personal information.
However, they are not allowed to disclose that personal
information, and the health condition of the infected patient to
the public; such disclosure without consent of the data subjects
constitutes unauthorized disclosure.
If an infected person voluntarily revealed to the public that
he is tested positive for corona virus, everyone can share the
information in social media without violating the Data Privacy
Act. By revealing such information, the infected person is not
anymore entitled to the privacy thereon.
Accessing personal information or sensitive personal
information due to negligence
The crime of accessing personal information or sensitive
personal information due to negligence is committed by persons
who, due to negligence, provided access to personal information
or sensitive personal information without being authorized
under Data Privacy Act or any existing law. (Section 26 of R.A.
No. 10173)
Improper disposal of personal information or sensitive
personal information
Improper disposal of personal information or sensitive
personal information is committed by persons who knowingly or
negligently dispose, discard or abandon the personal information
or personal sensitive information of an individual in an area
accessible to the public or has otherwise placed the personal
information of an individual in its container for trash collection.
Processing of personal or sensitive personal
information for unauthorized purposes
Processing of personal or sensitive personal information for
unauthorized purposes is committed by persons processing
personal information or sensitive personal information for
purposes not authorized by the data subject, or otherwise
authorized under Data Privacy Act or under existing laws.
Unauthorized access or intentional breach
166 | P a g e
Unauthorized access or intentional breach is committed by

persons who knowingly and unlawfully, or violating data
confidentiality and security data systems, breaks in any way into
any system where personal and sensitive personal information is
stored. (Section 29 of R.A. No. 10173)
Concealment of security breaches involving sensitive

personal information
167 | P a g e
Concealment of security breaches involving sensitive

personal information is committed by persons who, after having
knowledge of a security breach and of the obligation to notify the
National Privacy Commission, intentionally or by omission
conceal the fact of such security breach. (Section 30 of R.A. No.
10173)
Malicious disclosure
Malicious disclosure is committed by any personal
information controller or personal information processor or any
of its officials, employees or agents, who, with malice or in bad
faith, discloses unwarranted or false information relative to any
personal information or personal sensitive information obtained
by him or her. (Section 31 of R.A. No. 10173)
Personal information controller refers to a person or
organization who controls the collection, holding, processing or
use of personal information, including a person or organization
who instructs another person or organization to collect, hold,
process, use, transfer or disclose personal information on his or
her behalf. The term excludes:
(1) A person or organization who performs such functions
as instructed by another person or organization; and
(2) An individual who collects, holds, processes or uses
personal information in connection with the individual’s
personal, family or household affairs. (Section 3 of R.A. No.
10173)
Personal information processor refers to any natural or
juridical person qualified to act as such under this Act to whom
a personal information controller may outsource the processing
of personal data pertaining to a data subject. (Section 3 of R.A.
No. 10173)
Unauthorized disclosure
Unauthorized disclosure is committed by any personal
information controller or personal information processor or any
of its officials, employees or agents, who discloses to a third party
a personal information or sensitive personal information not
covered by Section 31, without the consent of the data subject.
COMBINATION OR SERIES OF ACTS OR LARGE SCALE
168 | P a g e
The penalty is higher if the offender committed combination

or series of acts in violation of the Data Privacy Act; or when the
personal information of at least one hundred (100) persons is
harmed, affected or involved as the result of such violation.
(Sections 33 and 35 of R.A. No. 10173)
169 | P a g e

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For LECTURES by Judge CAMPANILLA, kindly text 09327988549, 09998843644, 09564080514

CRIMINAL LAW MATERALS

BY JUDGE MARLO B. CAMPANILLA

Warning: This is the intellectual property of Judge Campanilla.

Note: The dissenting opinions of Justice Leonen are included in

the place of occurrence of the effect of such act, which is an element

1. Convention of the law of the sea - Under the Convention

2. Regime of islands - Under the principle of territoriality, the

3. 200-mile exclusive economic zone - The Philippines has

committed within the exclusive economic zone such as those

If a Chinese fishing vessel deliberately bumped a Filipino vessel

PRESIDENTIAL IMMUNITY - Under Article 14 of the Civil Code,

Under the US Constitution, American citizen has the right to

However, penal laws shall not be obligatory upon a person, who

Under the Section 7, Article VII of the 1973 Constitution, the

The President of the Philippines is entitled to immunity from

In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court

During the period of his incumbency and tenure, President

1. Vice-presidential immunity - It is submitted that a Vice

Pacifico Agabin, former dean of the University of the Philippines

Some experts are saying that criminally prosecuting a vice-

PROSPECTIVITY - Under the prospectivity principle, criminal law

anymore. Hence, a person should not be punished for committing a

MALA IN SE AND MALA PROHIBITA - Criminal law has long divided

To classify a crime as malum in se or malum prohibitum, the

1. Intentional felony — Intentional felony under the Revised

In Ysidoro v. People, G.R. No. 192330, November 14, 2012, the

2. Offense under special law – If the offense punishable

If the offense punishable under special law is inherently evil,

Fencing is a concept substantially similar to that of theft or

Hazing where the victim died or was raped is for obvious

Sexual harassment is wrong in nature. However, in Escandor

Second view - The second view is that even although the

In Napoles vs. Sandiganbayan, G.R. No. 224162, November 7,

In Dungo v. People, G.R. No. 209464, July 1, 2015, a common

between mala in se and mala prohibita crimes is the determination of

Sexual abuse and child abuse are both punishable under RA

Sexual abuse under Section 5 (b) of RA No. 7610 is considered

Child abuse under Section 10 of RA No. 7610 was considered

MISTAKE OF FACT - Mistake of fact may negate dolo. It is a complete

The Supreme Court in several cases had applied the “mistake of

circumstance of incomplete performance of duty. (People v. Gervero,

ERROR IN PERSONAE - Error in personae means mistake of identity.

ABERRATIO ICTUS – Aberratio ictus means mistake of blow. In

intentional felony although the actual victim is different from the

1. The 4-12-365 Rule — First part of Article 4, Article 12 on

2. Complex crime - If the crimes committed against the target

3. If the components of a complex crime are alleged in two

Accused consciously poured hot cooking oil from a casserole on

PRAETER INTENTIONEM - Praeter intentionem means

gun while exercising his right of self-defense, was acquitted. (2014

logical consequence thereof. The accused was convicted of reckless

serious physical injuries. (People v. Castromero, supra) If in the

1. Crimes Against Person or Property - Gender is an element

complex crime can only be committed against a woman. Nor is he

2. Evil Intent - Offender with intent to kill stabbed the victim

In impossible crime of homicide, the accused intended to kill the

3. Factual and Legal Impossibility – An impossible crime is

Code on impossible crime and Article 6 on frustrated felony cannot

payment, which is not an element of kidnapping for ransom, will not

of the case in Jacinto, the crime committed is consummated theft and

4. Not Constitutive of Another Crime - If the accused

assaulting a victim with intent to have sexual intercourse with her

arresto mayor. To convict the accused of impossible crime is to allow