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This document provides an overview of the Indeterminate Sentence Law and its application in various cases and contexts. Some key points covered include:
1. The Indeterminate Sentence Law does not apply to offenses punishable by reclusion perpetua or death.
2. When determining the indeterminate sentence, the minimum term should be within the range of the next lower penalty, without considering modifying circumstances. Modifying circumstances are only considered for the maximum term.
3. The Indeterminate Sentence Law applies to drug offenses as long as the penalty exceeds one year and the offense is not otherwise excluded.
4. Recidivists and those who committed crimes while on parole can still avail
This document provides an overview of the Indeterminate Sentence Law and its application in various cases and contexts. Some key points covered include:
1. The Indeterminate Sentence Law does not apply to offenses punishable by reclusion perpetua or death.
2. When determining the indeterminate sentence, the minimum term should be within the range of the next lower penalty, without considering modifying circumstances. Modifying circumstances are only considered for the maximum term.
3. The Indeterminate Sentence Law applies to drug offenses as long as the penalty exceeds one year and the offense is not otherwise excluded.
4. Recidivists and those who committed crimes while on parole can still avail
This document provides an overview of the Indeterminate Sentence Law and its application in various cases and contexts. Some key points covered include:
1. The Indeterminate Sentence Law does not apply to offenses punishable by reclusion perpetua or death.
2. When determining the indeterminate sentence, the minimum term should be within the range of the next lower penalty, without considering modifying circumstances. Modifying circumstances are only considered for the maximum term.
3. The Indeterminate Sentence Law applies to drug offenses as long as the penalty exceeds one year and the offense is not otherwise excluded.
4. Recidivists and those who committed crimes while on parole can still avail
By: JUDGE OSCAR B. PIMENTEL Regional Trial Cour! Bran"# $%&! Ma'ai Ciy INDETERMINATE SENTENCE LAW (Act No. 4103 as amended by Act No. 4225) W(EN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA! (E IS NOT ENTITLED TO T(E APPLICATION O) T(E INDETERMINATE SENTENCE LAW Accused-appellant cannot avail of the benefts of the Indeterminate Sentence Law because Indeterminate Sentence Law does not apply to persons convicted of ofenses punishable with reclusion perpetua. (People v. Auino! "# $%&'()* +an. $)* ,'-. APPLICATION O) INDETERMINATE SENTENCE LAW E*PLAINED In the case of People vs. Gabres* the /ourt has had occasion to so state that 0 12nder the Indeterminate Sentence Law* the ma3imum term of the penalty shall be 4that which* in view of the attendin5 circumstances* could be properly imposed4 under the #evised Penal /ode* and the minimum shall be within the ran5e of the penalty ne3t lower to that prescribed4 for the ofense. 6he penalty ne3t lower should be based on the penalty prescribed by the /ode for the ofense* without frst considerin5 any modifyin5 circumstance attendant to the commission of the crime. 6he determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the ran5e of the penalty ne3t lower without any reference to the periods into which it mi5ht be subdivided. 6he modifyin5 circumstances are considered only in the imposition of the ma3imum term of the indeterminate sentence. 16he fact that the amounts involved in the instant case e3ceed P%%*(((.(( should not be considered in the initial determination of the indeterminate penalty! instead* the matter should be so ta7en as analo5ous to modifyin5 circumstances in the imposition of the ma3imum term of the full indeterminate sentence. 6his interpretation of the law accords with the rule that penal laws should be construed in favor of the accused. Since the penalty prescribed by law for the estafa char5e a5ainst accused-appellant is prision correccional ma3imum to prision mayor minimum* the penalty ne3t lower would then be prision correccional minimum to medium. 6hus* the minimum term of the indeterminate sentence should be anywhere within si3 (). months and one ($. day to four (8. years and two (%. months . . .1 (People v. Saley! "# $%$$9'* +uly %* ,'-. INDETERMINATE SENTENCE LAW+ APPLICABLE ALSO IN DRUG CASES: 6he fnal uery is whether or not the Indeterminate Sentence Law is applicable to the case now before us. Apparently it does* since dru5 ofenses are not included in nor has appellant 2 committed any act which would put him within the e3ceptions to said law and the penalty to be imposed does not involve reclusion perpetua or death* provided* of course* that the penalty as ultimately resolved will e3ceed one year of imprisonment. 6he more important aspect* however* is how the indeterminate sentence shall be ascertained. It is true that Section $ of said law* after providin5 for indeterminate sentence for an ofense under the #evised Penal /ode* states that 1if the ofense is punished by any other law* the court shall sentence the accused to an indeterminate sentence* the ma3imum term of which shall not e3ceed the ma3imum f3ed by said law and the minimum shall not be less than the minimum term prescribed by the same1 :e hold that this uoted portion of the section indubitably refers to an ofense under a special law wherein the penalty imposed was not ta7en from and is without reference to the #evised Penal /ode* as discussed in the precedin5 illustrations* such that it may be said that the 1ofense is punished1 under that law. 6here can be no sensible debate that the aforeuoted rule on indeterminate sentence for ofenses under special laws was necessary because of the nature of the former type of penalties under said laws which were not included or contemplated in the scale of penalties in Article 9$ of the /ode* hence there could be no minimum 1within the ran5e of the penalty ne3t lower to that prescribed by the /ode for the ofense*1 as is the rule for felonies therein. In the illustrative e3amples of penalties in special laws hereinbefore provided* this rule applied* and would still apply* only to the frst and last e3amples. ;urthermore* considerin5 the vinta5e of Act <o. 8$(= as earlier noted* this holdin5 is but an application and is >ustifed under the rule of contemporanea expositio . #epublic Act <o. )8%&* as now amended by #epublic Act <o. 9)&'* has unualifedly adopted the penalties 3 under the #evised Penal /ode in their technical terms* hence with their technical si5nifcation and efects. In fact* for purposes of determinin5 the ma3imum of said sentence* we have applied the provisions of the amended Section %( of said law to arrive at prision correccional and Article )8 of the /ode to impose the same in the medium period. Such ofense* althou5h provided for in a special law* is now in the efect punished by and under the #evised Penal /ode. (People v ?artin Simon. W(EN T(E BENE)ITS O) INDETERMINATE SENTENCE LAW IS NOT APPLICABLE+ a. @fenses punished by death or life imprisonment. b. 6hose convicted of treason (Art. $$8.* conspiracy or proposal to commit treason (Art. $$&.. c. 6hose convicted of misprision of treason (Art. $$).* rebellion (Art. $=8.* sedition (Art. $='.* or espiona5e (Art. $$9.. d. 6hose convicted of piracy (Art. $%%.. e. Aabitual delinuents (Art. )%* par. &.. f. 6hose who escaped from confnement or those who evaded sentence. 5. 6hose 5ranted conditional pardon and who violated the terms of the same (Art. $&'.. (People v. Corral* 98 Phil. =&'.. h. 6hose whose ma3imum period of imprisonment does not e3ceed one year. i. 6hose who are already servin5 fnal >ud5ment upon the approval of the Indeterminate Sentence Law. >. 6hose ofenses or crimes not punishable by imprisonment such as distierro and suspension. 4 RECIDI,ISTS ARE ENTITLED TO T(E BENE)ITS O) T(E INDETERMINATE SENTENCE #ecidivists are entitled to an indeterminate sentence. (People v. Jaramilla* L-%-&89* ;eb. %%* $'98.. @fender is not disualifed to avail of the benefts of the law even if the crime is committed while he is on parole. (People v. Clareon* /A 9- @.". )9($* <ov. $'* $'-%.. (Bacar v. Ce "uDman. NATURE O) PENALT- O) RECLUSION PERPETUA In 1People -vs- Conrado Lucas* %8( S/#A ))* the Supreme /ourt declared that despite the amendment of Article %9 of the #evised Penal /ode* reclusion perpetua remained an indivisible penalty. Aence* the penalty does not have any minimum* medium and ma3imum period. Aence* there is no such penalty of medium period of reclusion perpetua. (People versus 6iburcio Baculi* %8) S/#A. IMPOSITION O) WRONG PENALT-: IT DOES NOT OBTAIN )INALIT- Suppose the court imposed a penalty of %& years of reclusion perpetua for the crime of rape and the accused did not appeal* does the >ud5ment become fnal and e3ecutoryE <o* such >ud5ment is null and void because it imposed a non-e3istent penalty. Aence* the court may nevertheless correct 5 the penalty imposed on the accused* that is* reclusion perpetua* it is merely performin5 a duty inherent in the court. (People versus <i5el "atward* "# <o. $$'99%-9=* ;ebruary 9* $''9. DI))ERENCE BETWEEN RECLUSION PERPETUA AND LI)E IMPRISONMENT 6he penalty of reclusion perpetua is diferent from life imprisonment. 6he former carries with it accessory penalties* whereas life imprisonment does not carry with it any accessory penalties! reclusion perpetua is that provided for under the #evised Penal /ode and under crimes defned by special laws usin5 the nomenclature under the #evised Penal /ode ! life imprisonment is that provided for violations of the #evised Penal /ode. Reclusion Perpetua may be reduced by one or two de5rees while life imprisonment cannot be so reduced. (People -vs- #olnando ?adria5a* "# <o. -%%'=* +uly %=* $''%.. W(IC( IS MORE BURDENSOME LI)E IMPRISONMENT O) RECLUSION PERPETUA #eclusion perpetua has accessory penalties while life imprisonment does not. Aowever* life imprisonment does not have a f3ed duration or e3tent while reclusion perpetua has a duration of from twenty years and one day to forty years. Life mprisonment may span the natural life of the convict. (People -versus- #alla5an* %89 S/#A &=9. RECLUSION PERPETUA AND LI)E IMPRISONMENT CANNOT BE INTER.C(ANGED W(EN IMPOSED AS PENALT- 6 :here the law violated provides for the penalty of reclusion perpetua* impose the said penalty and not the penalty of life imprisonment. :here the law imposes the penalty of life imprisonment* do not impose reclusion perpetua. (People -vs- #olando ?adria5a* %$$ S/#A )'-. T(E REASON W(- RECLUSION PERPETUA (AS A RANGE DESPITE T(E SAME BEING INDI,ISIBLE 6here we also said that 1if reclusion perpetua was reclassifed as a divisible penalty* then Article )= of the #evised Penal /ode would lose its reason and basis for e3istence.1 6he imputed duration of thirty (=(. years of reclusion perpetua* therefore* only serves as the basis for determinin5 the convict4s eli5ibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People -vs- Aspolinar #a5anas* et al "# <o. $($$--* @ctober $%* $'''. RARE CASE O) APPLICATION O) RPC IN A SUPPLETOR- C(ARACTER DESPITE T(E PENALT- BEING LI)E IMPRISONMENT :here the accused committed ualifed violation of PC 9(8 (fshin5 with the use of e3plosives.* the imposable penalty for which is life imprisonment to death. If the accused is entitled to a miti5atin5 circumstance of voluntary surrender* the court should impose life imprisonment applyin5* in a suppletory character* Articles $= and )= of the #evised Penal /ode. (People -vs- Priscilla Balasa* "# <o. $()=&9* September =* $''-. 7 ACCUSED W(O IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO EIT(ER )ULL OR / O) (IS PRE,ENTI,E IMPRISONMENT If* durin5 the trial* the accused was detained but* after trial* he was meted the penalty of reclusion perpetua* he is still entitled to the full credit of his preventive imprisonment because Article %' of the #evised Penal /ode does not distin5uish between divisible and indivisible penalties. (People -vs- #olando /orpuD* %=$ S/#A 8-(. 0UALI)IED T(E)T 0UALI)IED T(E)T IS PENALI1ED B- RECLUSION PERPETUA I) AMOUNT IN,OL,ED IS O,ER P22!333.33 2nder Article =(' of the #evised Penal /ode* the ma3imum of the penalty for ualifed theft is prision mayor to reclusion temporal. Aowever* under Article =$( of the #evised Penal /ode* the penalty for the crime shall be two (%. de5rees hi5her than the specifed in Article =(' of the /ode. 2nder Article 98 of the #evised Penal /ode* the penalty hi5her by one de5ree than another 5iven penalty* and if such hi5her penalty is death* the penalty shall be reclusion perpetua of forty (8(. years with the accessory penalties of death under Article 8( of the #evised Penal /ode. 6he accused shall not be entitled to pardon before the lapse of forty (8(. years. (People -vs- ;ernando /anales* %'9 S/#A ))9. 8 9 THE PROBATION A! (P.". #$%) and &ts A'EN"'ENT( PROBATION! ITS MEANING: A disposition under which a defendant* after conviction and sentence* is sub>ect to conditions imposed by the /ourt and under the supervision of a probation oFcer. PURPOSES O) PROBATIONG a. to promote the correction and rehabilitation of an ofender by providin5 him with personaliDed community based treatment! b. to provide an opportunity for his reformation and reinte5ration into the community! c. to prevent the commission of ofenses. SUBMISSION O) PETITION AND TIME O) )ILING O)PETITION 6he petition or application for probation must be fled directly with the /ourt which sentenced the accused within $& days from date of promul5ation of the decision convictin5 the accused* or in short within the period to appeal otherwise the >ud5ment shall become fnal and the accused shall be deemed to have waived his ri5ht to probation. E))ECT O) )ILING O) PETITION )OR PROBATION 2pon flin5 of petition for probation* the court shall suspend the e3ecution of sentence. 10 Li7ewise* the flin5 of a petition for probation shall be deemed a waiver of the ri5ht to appeal and in case an appeal is made immediately after conviction* a flin5 of petition for probation still within the period to appeal* that is within ffteen days from date of promul5ation shall be deemed a withdrawal of the appeal. PENDING RESOLUTION O) PETITION! W(AT ARE T(E PRI,ILEDGE T(AT MA-BE GI,EN TO T(E ACCUSED.PETITIONER4 $. if the accused* prior to the promul5ation of decision of conviction is out on bail* he may be allowed on temporary liberty under his bail fled in said case! %. if he is under detention* upon motion* he may be allowed temporary liberty* if he cannot post a bond* on a reco5niDance of a responsible member of a community who shall 5uarantee his appearance whenever reuired by the court. IN CASE T(E APPLICANT )OR PROBATION CANNOT BE PRODUCED B- T(E CUSTODIAN ON RECOGNI1ANCE! W(AT (APPENS4 6he custodian must be as7ed to e3plain why he should not be cited for contempt for failin5 to produce the probationer when reuired by the court! Summary hearin5 will be held for indirect contempt* and if custodian cannot produce the petitioner* nor to e3plain his failure to produce the petitioner* the custodian on reco5niDance shall be held in contempt of court. 11 W(AT IS A POST SENTENCE IN,ESTIGATION REPORT4 It is a report of the Parole and Probation @Fcer after conductin5 post sentence investi5ation and interviews containin5 the circumstances surroundin5 the ofense for which the petitioner was convicted. 6he fndin5s should be drawn from the court records* police records* statement of defendants* the a55rieved party and other persons who may 7now the petitioner and all other matters material to the petition. It will also include the psycholo5ical and social information re5ardin5 the probationer! evaluation of the petitioner! suitability for probation! his potential for rehabilitation! and may include the pro5ram for supervision and su55ested terms of conditions of probation and a recommendation either to deny or 5rant the probation. W(AT ARE T(E MANDATOR- CONDITIONS O) PROBATION4 a.6o present himself to the probation oFcer concerned for supervision within 9% hours from receipt of said order and b.6o report to the probation oFcer at least once a month durin5 the period of probation. W(AT ARE T(E OT(ER CONDITIONS O) PROBATION4 a.cooperate with a pro5ram of supervision! b.meet his family responsibilities! 12 c. devote himself to a specifc employment and not to char5e d.said employment without prior written approval of the probation oFcer! e.comply with a pro5ram of payment of civil liability to the victim of his heirs! f. under5o medical* psycholo5ical or psychiatric e3amination and treatment andHor enter and remain in a specifc institution* when reuired for that purposes! 5.pursue a prescribed secular study or vocational trainin5! h.attend or reside in a facility established for instruction or recreation of persons on probation! i. refrain from visitin5 houses of ill-repute! >. abstain from drin7in5 into3icatin5 bevera5es to e3cess! 7. permit the probation oFcer or an authoriDed social wor7er to visit his home and place of wor7! l. reside at premises approved by the court and not to chan5e his residence wHo prior written approval! and m. satisfy any other condition related to the rehabilitation of the probationer and not unduly restrictive of his liberty or incompatible with his freedom of conscience. n. plant trees ( see circular of the S/ .
RULES ON OUTSIDE TRA,EL O) PROBATIONER A probationer who desires to travel outside the >urisdiction of the city or provincial probation oFcer for not more than =( days* the permission of the parole and probation oFcer must be sou5ht. If for more than thirty (=(. days* aside from the permission of the parole and probation oFcer* the permission of the court must li7ewise be sou5ht. 13 E))ECT O) APPEAL B- T(E ACCUSED O) (IS CON,ICTION If the accused appeals his conviction for the purpose of totally reversin5 his conviction* he is deemed to have waived his ri5ht to probation. 6he rule that if the accused appeals his conviction only with respect to the penalty* as he believes the penalty is e3cessive or wron5* as the penalty is probationable* and the appellate court sustains the accused may still apply for probation* has already been abandoned. An appeal therefore* irrespective of its purpose* to overturn the entire decision or only with respect to penalty is a waiver to probation* has already been abandoned. An appeal therefore* irrespective of its purpose* to overturn the entire decision or only with respect to penalty is a waiver to probation. CON)IDENTIALIT- O) RECORDS O) PROBATION 6he investi5ation report and the supervision and history of a probationer obtained under PC <o. ')- and under these rules shall be privile5ed and shall not be disclosed directly or indirectly to anyone other than the probation administration or the court concerned the court which 5ranted the probation or where the probation was transferred may allow the probationer to inspect the aforesaid documents or his lawyer* whenever such disclosure may be desirable or helpful to them. Any 5overnment oFce may as7 for the records of probation from the court for its oFcial use or from the administrator. 14 Sec. %'* PC ')-G II@LA6I@< @; /@<;ICJ<6IAL <A62#J @; P#@BA6I@< #J/@#CS. 6he penalty of imprisonment ran5in5 from si3 months and one day to si3 years and a fne ran5in5 from hundred to si3 thousand pesos shall be imposed upon any person who violates Section $9 hereof. MODI)ICATION O) CONDITION OR PERIOD O) PROBATION 6he court* on motion* or motu propio may modify the conditions of probation or modify the period of probation as circumstances may warrant. W(O ARE DIS0UALI)IED TO UNDERGO PROBATION a.6hose sentenced to serve a ma3imum term of imprisonment of more than si3 years. b.6hose convicted of any ofense a5ainst the security of the state. c. 6hose who have been previously convicted by fnal >ud5ment of an ofense punished by imprisonment of not less than one moth and one day andHor a fne of not less than P%((.((. d.6hose who have been once on probation under the provisions of this decree. e.6hose convicted of #A '$&). f. 6hose convicted of violation of election laws. PERIOD O) PROBATION If the probationer has been sentenced to an imprisonment of not more than one year* the probation shall not e3ceed two years! In all other cases* not to e3ceed si3 years! 15 In case the penalty is fne* the probation shall not be less than the period of subsidiary imprisonment nor more than twice of the subsidiary imprisonment. AMENDMENT TO SECTION % O) PD 56& 1Sec. 8. "rant of Probation. - Sub>ect to the provisions of this Cecree* the trial court may* after it shall have convicted and sentenced a defendant* and upon application by said defendant within the period for perfectin5 an appeal* suspend the e3ecution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best! Provided* 6hat no application for probation shall be entertained or 5ranted if the defendant has perfected the appeal from the >ud5ment of conviction. 1Probation may be 5ranted whether the sentence imposes a term of imprisonment or a fne only. An application for probation shall be fled with the trial court. 6he flin5 of the application shall be deemed a waiver of the ri5ht to appeal. 1An order 5rantin5 or denyin5 probation shall not be appealable.1 T#u7! a 8er7on 9#o 9a7 7enen"e: o :e7ierro "anno a88ly ;or 8ro<aion. Rea7on: i :oe7 no in=ol=e: i>8ri7on>en or ?ne. (PC $''(. )*RI(PR*"EN+E UNDERL-ING P(ILOSOP(- O) PROBATION 16 6he underlyin5 philosophy of probation is indeed one of liberality towards the accused. It is not served by a harsh and strin5ent interpretation of the statutory provisions. Probation is a ma>or step ta7en by our "overnment towards the deterrence and minimiDin5 of crime and the humaniDation of criminal >ustice. In line with the public policy behind probation* the ri5ht of appeal should not be irrevocably lost from the moment a convicted accused fles an application for probation. Appeal and probation sprin5 from the same policy considerations of >ustice* humanity* and compassion. (Kusi v ?orales* 8H%-H-=. PROBATION IS NOT A RIG(T BUT A PRI,ILEGE Probation is a mere privile5e and its 5rant rests solely upon the discretion of the court. As aptly noted in 2.S. vs. Cur7en* this discretion is to be e3ercised primarily for the beneft of or5aniDed society and only incidentally for the beneft of the accused. (6olentino v. Alconcel* ".#. <o. )=8((* =H$-H-=.. Jven if a convicted person is not included in the list of ofenders disualifed from the benefts of a decree* the 5rant of probation is nevertheless not automatic or ministerial* (Pablo Bernardo v. Bala5ot* %$& S/#A &%). therefore a petition for probation may be denied by the /ourt. MAIN CRITERION )OR DETERMINING W(O MA- BE GRANTED PROBATION. 6he main criterion laid down by the Probation law in determinin5 who may be 5ranted probation is based on the penalty imposed and not on the nature of the crime. By the relative li5htness of the ofense* as measured by the penalty imposed* 17 more than by its nature* as the law so ordains the ofender is not such a serious menace to society as to be wrested away therefrom* as the more dan5erous type of criminals should be. Aence* in the case at bar* the frst reason 5iven by the respondent >ud5e for his denial of the petition for probation that* 1probation will depreciate the seriousness of the ofense committed1 would thus be writin5 into the law a new 5round for disualifyin5 a frst-ofender from the benefts of probation. (Santos v. /ruD-Pano* $H$9H-=. TIMELINESS O) )ILING APPLICATION )OR PROBATION 6he accused must fle a Petition for Probation within the period for appeal. If the decision of conviction has become fnal and e3ecutory* the accused is barred from flin5 a Petition for Probation (Pablo ;rancisco v. /.A.* 8H)H'&.. ORDER DEN-ING PROBATION NOT APPEALABLE! REMED- CERTIORARI Althou5h an order denyin5 probation is not appealable* the accused may fle a motion for /ertiorari from said order (Aeirs of ;rancisco Abue5 v. /.A.* %$' S/#A 9-. E))ECT O) )ILING PETITION )OR PROBATION! WAI,ER O) RIG(T TO APPEAL AND )INALIT- O) JUDGEMENT A >ud5ment of conviction becomes fnal when the accused fles a petition for probation. Aowever* the >ud5ement is not e3ecutory until the petition 18 for probation is resolved. 6he flin5 of the petition for probation is a waiver by the accused of his ri5ht to appeal the >ud5ement of conviction (Aeirs of ;rancisco Abue5 v. /.A.* supra.. MULTIPLE CON,ICTIONS IN SE,ERAL CASES PROBATIONABLE I) PENALT- )OR EAC( CON,ICTION IS PROBATIONABLE .1 Jvidently* the law does not intend to sum up the penalties imposed but to ta7e each penalty* separately and distinctly with the others. /onseuently* even if petitioner was supposed to have served his prison term of one ($. year and one ($. day to one ($. year and ei5ht (-. months of prision correccional si3teen ($). times as he was sentenced to serve the prison term for 1each crime committed on each date of each case* as alle5ed in the information(s.*1 and in each of the four (8. informations* he was char5ed with havin5 defamed the four (8. private complainants on four (8. diferent* separate days* he was still eli5ible for probation* as each prison term imposed on petitioner was probationable. (;rancisco v. /A! 8H$)H'&. REASON )OR )I*ING CUT O)) POINT AT A MA*IMUM O) SI* -EARS IMPRISONMENT )OR PROBATION. ;i3in5 the cut-of point at a ma3imum term of si3 (). years imprisonment for probation is based on the assumption that those sentenced to hi5her penalties pose too 5reat a ris7 to society* not >ust because of their demonstrated capability for serious wron5doin5 but because of the 5ravity and serious conseuences of the ofense they mi5ht 19 further commit. 6he Probation Law* as amended* disualifes only those who have been convicted of 5rave felonies as defned in Art. ' in relation to Art. %& of 6he #evised Penal /ode* and not necessarily those who have been convicted of multiple ofenses in a sin5le proceedin5 who are deemed to be less perverse. Aence* the basis of the disualifcation is principally the 5ravity of the ofense committed and the concomitant de5ree of penalty imposed. 6hose sentenced to a ma3imum term not e3ceedin5 si3 (). years are not 5enerally considered callous* hard core criminals* and thus may avail of probation ,IOLATION O) RA 6%2@! A ,ALID CAUSE )OR DISMISSAL IN SER,ICE IN T(E GO,ERNMENT DESPITE PROBATION Cru5-pushin5* as a crime* has been variously condemned as 1an especially vicious crime*1 1one of the most pernicious evils that has ever crept into our society.1 ;or those who become addicted to it 1not only slide into the ran7s of the livin5 dead* what is worse* they become a 5rave menace to the safety of law-abidin5 members of society*1 while 1peddlers of dru5s are actually a5ents of destruction. 6he deserve no less than the ma3imum penalty Lof deathM.1 6here is no doubt that dru5-pushin5 is a crime which involves moral turpitude and implies 1every thin5 which is done contrary to >ustice* honesty* modesty or 5ood morals1 includin5 1acts of baseness* vileness* or depravity in the private and social duties which a man owes to his fellowmen or to society in 5eneral* contrary to the accepted rule of ri5ht and duty between man and man.1 Indeed nothin5 is more depraved than for anyone to be a 20 merchant of death by sellin5 prohibited dru5s* an act which* as this /ourt said in one case* 1often breeds other crimes. It is not what we mi5ht call a 4contained4 crime whose conseuences are limited to that crime alone* li7e swindlin5 and bi5amy. /ourt and police records show that a si5nifcant number of murders* rapes* and similar ofenses have been committed by persons under the inNuence of dan5erous dru5s* or while they are 4hi5h.4 :hile spreadin5 such dru5s* the dru5-pusher is also abettin5* throu5h his a5reed and irresponsibility* the commission of other crimes.1 6he ima5e of the >udiciary is tarnished by conduct* which involves moral turpitude. :hile indeed the purpose of the Probation Law (P.C. <o. ')-* as amended. is to save valuable human material* it must not be for5otten that unli7e pardon probation does not obliterate the crime of which the person under probation has been convicted. 6he reform and rehabilitation of the probationer cannot >ustify his retention in the 5overnment service. Ae may see7 to reenter 5overnment service* but only after he has shown that he is ft to serve once a5ain. It cannot be repeated too often that a public oFce is a public trust* which demands of those in its service the hi5hest de5ree of morality. (@/A v. Librado %)( S/#A )%8* -H%%H'). PJ6I6I@<J# ?AK S6ILL JOA@#6 @;;J<CJ# 6@ PJ#;@#? /J#6AI< A/6S CJSPI6J CIS/AA#"J ;#@? P#@BA6I@< I< /J#6AI< /ASJS Petitioner Arthur ?. /uevas* +r.4s dischar5e from probation without any infraction of the attendant conditions therefor and the various certifcations attestin5 to his ri5hteous* peaceful and civic- oriented character prove that he has ta7en decisive steps to pur5e himself of his defciency in moral 21 character and atone for the unfortunate death of #aul I. /amali5an. 6he /ourt is prepared to 5ive him the beneft of the doubt* ta7in5 >udicial notice of the 5eneral tendency of the youth to be rash* temerarious and uncalculatin5. Let it be stressed to herein petitioner that the lawyer4s oath is not a mere formality recited for a few minutes in the 5lare of Nashin5 cameras and before the presence of select witnesses. Petitioner is e3horted to conduct himself beyond reproach at all times and to live strictly accordin5 to his oath and the /ode of Professional #esponsibility. And* to paraphrase ?r. +ustice Padilla4s comment in the sister case of #eG Petition of Al Ar5osino 6o 6a7e 6he Lawyer4s @ath* Bar ?atter <o. 9$%* ?arch $'* $''9* 1LtMhe /ourt sincerely hopes that1 ?r. /uevas* +r.* 1will continue with the assistance he has been 5ivin5 to his community. As a lawyer he will now be in a better position to render le5al and other services to the more unfortunate members of society1. (In #eG /uevas* +r.! $H%9H'-. JOPI#A6I@< @; PJ#I@C @; P#@BA6I@< IS <@6 6J#?I<A6I@<* @#CJ# @; /@2#6 #JP2I#JC 6he mere e3piration of the period for probation does not* ipso facto* terminate the probation. Probation is not co-terminus with its period* there must be an order from the /ourt of fnal dischar5e* terminatin5 the probation. If the accused violates the condition of the probation before the issuance of said order* the probation may be revo7ed by the /ourt (?anuel Bala v. ?artineD* $-$ S/#A 8&'.. 22 ANTI.)ENCING LAWO) $ 5A5 BPD NO. $6$2C DE)INITION )en"ing a7 :e?ne: in Se". 2 o; PD No. $6$2 BAni.)en"ing La9C i7 D#e a" o; any 8er7on 9#o! 9i# inen o gain ;or #i>7el; or ;or ano#er! 7#all <uy! re"ei=e! 8o77e77! 'ee8! a"Euire! "on"eal! 7ell or :i78o7e o;! or 7#all <uy an: 7ell! or in any >anner :eal in any ari"le! ie>! o<Fe" or any#ing o; =alue 9#i"# #e 'no97 or 7#oul: <e 'no9n o #i>! or o #a=e <een :eri=e: ;ro> #e 8ro"ee:7 o; #e "ri>e o; ro<<ery or #e;. BDiGon. Pa>inuan =7. Peo8le! GR $$$%26! $$ July 5%C. BRIE) (ISTOR- O) PD $6$2 OR T(E ANTI. )ENCING LAW Presidential Cecree <o. $)$% or commonly 7nown as the Anti-;encin5 Law of $'9' was enacted under the authority of therein President ;erdinand ?arcos. 6he law too7 efect on ?arch %* $'9'. 6he Implementin5 #ules and #e5ulations of the Anti-;encin5 Law were subseuently formulated and it too7 efect on +une $&* $'9'. T(E PURPOSE O) ENACTING PD $6$2 6he Anti-;encin5 Law was made to curtail and put an end to the rampant robbery of 5overnment and private properties. :ith the e3istence of 1ready buyers1* the 1business1 of robbin5 and stealin5 have become proftable. Aence* a law was enacted to also punish those who buy stolen 23 properties. ;or if there are no buyers then the malefactors could not proft from their wron5 doin5s. W(AT IS )ENCING LAW AND (OW IT CAN BE COMMITTED 1;encin51 is the act of any person who* with intent to 5ain for himself or for another* shall buy receive* possess* 7eep* acuire* conceal* sell or dispose of* or shall buy and sell* or in any other manner deal in any article* item* ob>ect or anythin5 of value which he 7nows* or should be 7nown to him* to have been derived from the proceeds of the crime of robbery or theft. A 1;ence1 includes any person* frm* association corporation or partnership or other or5aniDation whoH which commits the act of fencin5. W(O ARE LIABLE )OR T(E CRIME O) )ENCING+ AND ITS PENALTIES: 6he person liable is the one buyin5* 7eepin5* concealin5 and sellin5 the stolen items. If the fence is a corporation* partnership* association or frm* the one liable is the president or the mana5er or the oFcer who 7nows or should have 7now the fact that the ofense was committed. 6he law provides for penalty ran5e for person convicted of the crime of fencin5. 6heir penalty depends on the value of the 5oods or items stolen or bou5htG a.6he penalty of prision mayor* if the value of the property involved is more than $%*((( pesos but not e3ceedin5 %%*((( pesos! if the value of 24 such property e3ceeds the latter sum* the penalty provided in this para5raph shall be imposed in its ma3imum period* addin5 one year for each additional $(*((( pesos! but the total penalty which may be imposed shall not e3ceed twenty years. In such cases* the penalty shall be termed reclusion temporal and the accessory penalty pertainin5 thereto provided in the #evised Penal /ode shall also be imposed. b.6he penalty of prision correccional in its medium and ma3imum periods* if the value of the property robbed or stolen is more than )*((( pesos but not e3ceedin5 $%* ((( pesos! c. 6he penalty of prision correccional in its minimum and medium periods* if the value of the property involved is more than %(( pesos but not e3ceedin5 )*((( pesos! d.6he penalty of arresto mayor in its medium period to prision correccional in its minimum period* if the value of the property involved is over &( but not e3ceedin5 %(( pesos! e.6he penalty of arresto mayor in its medium period if such value is over fve (&. pesos but not e3ceedin5 &( pesos. f. 6he penalty of arresto mayor in its minimum period if such value does not e3ceed & pesos. RULES REGARDING BU- AND SELL O) GOODS PARTICULARL- SECOND (AND GOODS 6he law reuires the establishment en5a5ed in the buy and sell of 5oods to obtain a clearance or permit to sell 1used second hand items1* to 5ive 25 efect to the purpose of the law in puttin5 an end to buyin5 and sellin5 stolen items. ;ailure of which ma7es the owner or mana5er liable as a fence. DE)INITION O) TERMS 6he Implementin5 #ules provides for the 5uidelines of issuance of clearances or permits to sell used or secondhand items and it provided for the defnition of the followin5 termsG $.12sed secondhand article1 shall refer to any 5oods* article* items* ob>ect or anythin5 of value obtained from an unlicensed dealer or supplier* re5ardless of whether the same has actually or in fact been used. %.12nlicensed dealerHsupplier1 shall refer to any persons* partnership* frm* corporation* association or any other entity or establishment not licensed by the 5overnment to en5a5e in the business of dealin5 in or of supplyin5 the articles defned in the precedin5 para5raph! =.1Store1* 1establishment1 or 1entity1 shall be construed to include any individual dealin5 in the buyin5 and sellin5 used secondhand articles* as defned in para5raph hereof! 8.1Buy and Sell1 refer to the transaction whereby one purchases used secondhand articles for the purpose of resale to third persons! &.1Station /ommander1 shall refer to the Station /ommander of the Inte5rated <ational Police within the territorial limits of the town or city district where the store* establishment or entity 26 dealin5 in the buyin5 and sellin5 of used secondhand articles is located. PROCEDURE )OR SECURING PERMITHCLEARANCE 6he Implementin5 #ules provided for the method of obtainin5 clearance or permit. <o fee will be char5ed for the issuance of the clearanceHpermit. ;ailure to secure clearanceHpermit shall be punished as a fence* which may result to the cancellation of business license. DUTIES AND RESPONSIBILIES O) STATION MANAGER AND OWNER O) SECOND(AND STORES
6he Station /ommander shall reuire the owner of a store or the President* mana5er or responsible oFcer in havin5 in stoc7 used secondhand articles* to submit an initial aFdavit within thirty (=(. days from receipt of notice for the purpose thereof and subseuent aFdavits once every ffteen ($&. days within fve (&. days after the period covered* which shall containG a.complete inventory of such articles includin5 the names and addresses from whom the articles were acuired. b.;ull list of articles to be sold or ofered for sale includin5 the time and place of sale c. Place where the articles are presently deposited. 27 W(AT MA-BE RE0UIRED B- T(E STATION COMMANDER OR OWNER O) SECOND(AND STORES OR DEALERS 6he Station /ommander may* reuire the submission of an aFdavit accompanied by other documents showin5 proof of le5itimacy of acuisition. $.6hose who wish to secure the permitHclearance* shall fle an application with the Station /ommander concerned* which statesG a.name* address and other pertinent circumstances b.article to be sold or ofered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acuired. c. Include the receipt or document showin5 proof of le5itimacy of acuisition. 2. 6he Station /ommander shall e3amine the documents attached to the application and may reuire the presentation of other additional documents* if necessary* to show satisfactory proof of the le5itimacy of acuisition of the article* sub>ect to the followin5 conditionsG If the Station /ommander is not satisfed with the proof of le5itimacy of acuisition* he shall cause the publication of the notice* at the e3pense of the one see7in5 clearanceHpermit* in a newspaper of 5eneral circulation for two consecutive days* statin5G a.articles acuired from unlicensed dealer or supplier b. the names and addresses of the persons from whom they were acuired 28 c. that such articles are to be sold or ofered for sale to the public at the address of the store* establishment or other entity see7in5 the clearanceHpermit. =.If there are no newspapers in 5eneral circulation* the party see7in5 the clearanceHpermit shall* post a notice daily for one wee7 on the bulletin board of the municipal buildin5 of the town where the store* frm* establishment or entity is located or* in the case of an individual* where the articles in his possession are to be sold or ofered for sale. 8.If after $& days* upon e3piration of the period of publication or of the notice* no claim is made to any of the articles enumerated in the notice* the Station /ommander shall issue the clearance or permit sou5ht.
&.If before e3piration of the same period for the publication of the notice or its postin5* it shall appear that any of the articles in uestion is stolen property* the Station /ommander shall hold the article in restraint as evidence in any appropriate case to be fled. ).Articles held in restraint shall 7ept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station /ommander concerned to adviseHnotify the /ommission on Audit of the case and comply with such procedure as may be proper under applicable e3istin5 laws* rules and re5ulations. 9.6he Station /ommander shall* within seventy- two (9%. hours from receipt of the application* 29 act thereon by either issuin5 the clearanceHpermit reuested or denyin5 the same. Cenial of an application shall be in writin5 and shall state in brief the reasonHs thereof. -.Any party not satisfed with the decision of the Station /ommander may appeal the same within $( days to the proper I<P (now P<P. Cistrict Superintendent and further to the I<P (now P<P. Cirector. 6he decision of the Cirector can still be appealed top the Cirector-"eneral* within $( days* whose decision may be appealed with the ?inister (now Secretary. of <ational Cefense* within $& days* which decision is fnal. PRIMA)ACIE E,IDENCE O) )ENCING ?ere possession of any 5ood* article* item* ob>ect or anythin5 of value which has been the sub>ect of robbery or thievery* shall be prima facie evidence of fencin5. ELEMENTS O) ,IOLATION O) T(E ANTI. )ENCING LAW $.A crime of robbery or theft has been committed! %.6he accused* who is not a principal or accomplice in the commission of the crime of robbery or theft* buys* receives* possess* 7eeps* acuires* conceals* sells* or disposes* or buys and sells* or in any manner deals in any article* item* ob>ect or anythin5 of value* which has been derived from the proceeds of the said crime! 30 =.6he accused 7nows or should have 7nown that the said article* item* or ob>ect or anythin5 of value has been derived from the proceeds of the crime of robbery or theft! and 8.6here is* on the part of the accused* intent to 5ain for himself or for another. (CiDon- Pamintuan vs People* "# $$$8%)* $$ +uly '8. DISCUSSION O) T(E ELEMENTS. A. As re5ards the frst element* the crime of robbery or theft should have been committed before crime of fencin5 can be committed. 6he person committin5 the crime of robbery or theft* may or may not be the same person committin5 the crime of fencin5. As in the case of D.M. Consunji !nc. vs. "s#uerra* uantities of phelonic plywood were stolen and the /ourt held that ualifed theft had been committed. In People vs. Lucero there was frst a snatchin5 incident* where the ba5 of ?rs. ?aripaD Bernard #amolete was snatch in the public mar7et of /arbon* /ebu /ity* where she lost a /hinese "old <ec7lace and pendant worth some P8*(((.(( to snatchers ?anuel Jlardo and Qacarias Pateras. 6he snatchers sold the items to ?anuel Lucero. /onseuently* Lucero was char5ed with violation of the Anti- ;encin5 Law. Aowever* in this case* no eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not stron5 enou5h to convict him $read t%is case&. B. 6he second element spea7s of the overt act of 7eepin5* buyin5* receivin5* possessin5* acuirin5* concealin5* sellin5 or disposin5 or in any manner deals with stolen items. It is thus illustrated in the case of Lim vs. /ourt of Appeals* where the accused* +uanito Lim stored and 7ept in his bode5a and subseuently bou5ht or disposed of 31 the nine ('. pieces of stolen tires with rims owned by Loui Anton Bond. /. 6he accused 7now or should have 7nown that the 5oods were stolen. As pointed out in the case of People vs. Adriatico* the court in convictin5 <orma Adriatico* stated that it was not impossible for her to 7now that the >ewelry were stolen because of the fact that /risilita was willin5 to part with a considerable number of >ewelry at measly sum* and this should have apprised <orma of the possibility that they were stolen 5oods. 6he appro3imate total value of the >ewelry were held to be at P%(*(((.((* and <orma havin5 bou5ht it from /risilita for only P%*9((. 6he court also considered the fact that <orma en5a5e in the business of buyin5 and sellin5 5old and silver* which business is very well e3posed to the practice of fencin5. 6his reuires more than ordinary case and caution in dealin5 with customers. As noted by the trial courtG 1. . . the /ourt is not inclined to accept the accused4s theory of buyin5 in 5ood faith and disclaimer of ever seein5* much more* buyin5 the other articles. Auman e3perience belies her alle5ations as no businessman or woman at that* would let 5o of such opportunities for a clean proft at the e3pense of innocent owners.,, W(EN POSSESSION UNDER CERTAIN CIRCUMSTANCES SUC( AS DISPLA-ING T(E SAME IN T(E S(EL,ES IS AN ACT O) )ENCING 6he /ourt in convictin5 Jrnesto Cunlao Sr.* noted that the stolen articles composed of farrowin5 crates and ".I. pipes were found displayed on petitioner4s shelves inside his compound. (Cunalao* Sr. v. /A* (-H%%H'). 32 W(EN T(E)T OR ROBBER- AS )IRST ELEMENT WAS NOT PRO,EN. In the case of People v. Muere (".#.$%'(%* $(H$-H'8.* the third element was not proven. 6his case involves the sellin5 of alle5ed stolen Renwood Stereo 2nit in the store Canvir 6radin5* owned by the spouses ?uere. 6he store is en5a5ed in buyin5 and sellin5 of second hand merchandise located at Pasay #oad* ?a7ati. 6he said stereo was bou5ht from :ynn4s Audio* an e3istin5 establishment. 6he court held that there is no proof that the spouses ?uere* had 7nowled5e of the fact that the stereo was stolen. 6he spouses ?uere purchased the stereo from a 7nown merchant and the unit is displayed for sale in their store. 6hese actions are not indicative of a conduct of a 5uilty person. W(EN T(ERE IS NO PROO) T(AT T(E ACCUSED BOUG(T OR SOLD ARTICLES INOWING T(E SAME TO BE STOLEN. T(US T(E T(IRD ELEMENT IS NOT PRESENT. @n the same vein* the third element did not e3ist in the case of D.M. Consunji !nc. (/onsun>i v. Js5uerra* (9H=(H'). where the sub>ect of the court action are the alle5ed stolen phelonic plywood owned by C.?. /onsun>i* Inc.* later found to be in the premises of ?/ Industrial Sales and Seato tradin5 /ompany* owned respectively by Jduardo /hin5 and the spouses Sy. #espondents presented sales receipts coverin5 their purchase of the items from Paramount Industrial* which is a 7nown hardware store in /aloocan* thus they had no reason to suspect that the said items were products of theft. 33 INTENT TO GAIN NEED NOT BE PRO,EN IN ANTI.)ENCING LAW. 6he last element is that there is intent to 5ain for himself or for another. Aowever* intent to 5ain need not be proven in crimes punishable by a special law such as the Anti-;encin5 Law. 6he crimes punishable by special laws are called 1acts mala pro%ibita1. 6he rule on the sub>ect is that in acts mala pro%ibita the only inuiry is that* has the law been violatedE (in "atdner v. People* as cited in 2S v. "o /hico* $8 Phils. $=8. :hen the act is prohibited by law* intent is immaterial. DELIBERATE INTENT OR DOLO OR DECEIT IS NOT ALSO MATERIAL IN ANTI.)ENCING. Li7ewise* dolo or deceit is immaterial in crimes punishable by special statute li7e the Anti-;encin5 Law. It is the act itself which constitutes the ofense and not the motive or intent. Intent to 5ain is a mental state* the e3istence if which is demonstrated by the overt acts of the person. 6he mental state is presumed from the commission of an unlawful act. (Cunlao v. /A. a5ain* intent to 5ain is a mental state* the e3istence of which is demonstrated by the overt acts of person* as the 7eepin5 of stolen items for subseuent sellin5. A )ENCE MA- BE PROSECUTED UNDER T(E RPC OR PD $6$2 OR BOT( 6he state may thus choose to prosecute him either under the #P/ or PC <@. $)$% althou5h the preference for the latter would seem inevitable considerin5 that fencin5 is a malum pro%ibitum* and PC <o. $)$% creates a presumption of fencin5 34 and prescribes a hi5her penalty based on the value of the property. (supra. MERE POSSESSION O) STOLEN ARTICLE PRIMA )ACIE E,IDENCE O) )ENCING. Since Sec. & of PC <@. $)$% e3pressly provides that Smere possession of any 5ood* article* item* ob>ect or anythin5 of value which has been the sub>ect of robbery or thievery shall be prima facie evidence of fencin5T. It follows that the accused is presumed to have 7nowled5e of the fact that the items found in her possession were the proceeds of robbery or theft. 6he presumption does not ofend the presumption of innocence enshrined in the fundamental law. DISTINCTION BETWEEN )ENCING AND ROBBER- 6he law on fencin5 does not reuire the accused to have participation in the criminal desi5n to commit or to have been in any wise involved in the commission of the crime of robbery or theft. <either is the crime of robbery or theft made to depend on an act of fencin5 in order that it can be consummated. (People v Ce "uDman* "# 99=)-.. DISTINCTION BETWEEN ROBBER- AND )ENCING #obbery is the ta7in5 of personal property belon5in5 to another* with intent to 5ain* by means of violence a5ainst or intimidation of any person* or usin5 force upon anythin5. 35 @n the other hand* fencin5 is the act of any person who* with intent to 5ain for himself or for another* shall buy* receive* possess* 7eep* acuire* conceal* sell or dispose of* or shall buy and sell* or in any other manner deal in any article* item* ob>ect or anythin5 of value which he 7nows* or shall be 7nown to him* to have been derived from the proceeds of the crime of robbery or theft. )ENCING AS A CRIME IN,OL,ING MORAL TURPITUDE In violation of the Anti-;encin5 Law* actual 7nowled5e by the 1fence1 of the fact that property received is stolen displays the same de5ree of malicious deprivation of one4s ri5htful property as that which animated the robbery or theft which by their very nature are crimes of moral turpitude. (Cela 6orre v. /@?JLJ/ (9H(&H'). ?oral turpitude can be derived from the third element - accused 7nows or should have 7nown that the items were stolen. Participation of each felon* one bein5 the robber or the thief or the actual perpetrators* and the other as the fence* difers in point in time and de5ree but both invaded one4s peaceful dominion for 5ain. (Supra. Both crimes ne5ated the principle of each person4s duty to his fellowmen not to appropriate thin5s that they do not own or return somethin5 acuired by mista7e or with malice. 6his si5nifes moral turpitude with moral unftness. In the case of Cela 6orre* he was declared disualifed from runnin5 the position of ?ayor in /avinti* La5una in the last ?ay -* $''& elections because of the fact of the disualifcation under Sec. 8( of the Local "overnment /ode* of persons runnin5 for elective position -1Sec. 8( 36 Cisualifcations - (a. 6hose sentenced by fnal >ud5ement for an ofense involvin5 moral turpitude...1 Cela 6orre was disualifed because of his prior conviction of the crime of fencin5 wherein he admitted all the elements of the crime of fencin5. ESSENCE O) ,IOLATION O) PD $6$2! SEC. 2 OR ANTI.)ENCING PC $)$%* Section % thereof reuires that the ofender buys or otherwise acuires and then sells or disposes of any ob>ect of value which he 7nows or should he 7nown to him to have been derived from the proceeds of the crime of robbery or theft. (/aoili v /A! "# $%-=)'* $%H%%H'9. PROO) O) PURC(ASE W(EN GOODS ARE IN POSSESSION O) O))ENDER NOT NECESSAR- IN ANTI.)ENCING 6he law does not reuire proof of purchase of the stolen articles by petitioner* as mere possession thereof is enou5h to 5ive rise to a presumption of fencin5. It was incumbent upon petitioner to overthrow this presumption by suFcient and convincin5 evidence. (/aoili v. /A! "# $%-=)'* $%H%%H'9. 37 BATAS PAMBANSA BLG. 22 BOUNCING C(ECIS LAW ACTS PUNIS(ABLE IN BP 22 a.any person who ma7es or draws and issues any chec7 to apply on account or for value* 7nowin5 at the time of issue that he does not have suFcient funds in or credit with the drawee ban7* for the payment of such chec7 in full upon its presentment* which chec7 is subseuently dishonored by the drawee ban7 for insuFciency of funds* or credit* or would have been dishonored for the same reason had not the drawee* without any valid reason* ordered the ban7 to stop payment. b.Any person who havin5 suFcient funds in or credit with the drawee ban7 when he ma7es or draws and issues a chec7* shall fail to 7eep suFcient funds or to maintain a credit to cover the full amount of the chec7 if presented within a period of ninety days from date appearin5 thereon* for which reason* it is dishonored by the drawee ban7. c. Any person who issue any chec7 whose account already closed whether the drawee 7nows that his account is closed or not. (OW TO ESTABLIS( GUILT O) ACCUSED IN BP 22 6o establish her 5uilt* it is indispensable that the chec7s she issued for which she was subseuently char5ed* be ofered in evidence because the 5ravamen of the ofense char5ed is the act of 7nowin5ly issuin5 a chec7 with 38 insuFcient funds. /learly* it was error to convict complainant on the basis of her letter alone. <evertheless* despite this incorrect interpretation of a rule on evidence* we do not fnd the same as suFciently constitutive of the char5es of 5ross i5norance of the law and of 7nowin5ly renderin5 an un>ust decision. #ather* it is at most an error in >ud5ment* for which* as a 5eneral rule* he cannot be held administratively liable. In this re5ard* we reiterate the prevailin5 rule in our >urisdiction as established by current >urisprudence. ("utierreD v Pallatao! -H-H'-. NOTICE! AN INDISPENSABLE RE0UISITE )OR PROSECUTION Section = of BP %% reuires that the holder of the chec7 or the drawee ban7* must notify the drawer of the chec7 that the same was dishonored* if the same is presented within ninety days from date of issuance* and upon notice the drawer has fve days within which to ma7e arran5ements for the payment of the chec7 or pay the same in full. DUT- O) T(E DRAWEE BANI 6he drawee ban7 has the duty to cause to be written* printed or stamped in plain lan5ua5e thereon* or attached thereto the reason for the drawee,s dishonor or refusal to pay the same. If the drawee ban7 fails to do so* prosecution for violation of BP %% may not prosper. DUT- O) T(E BANI AND RULE IN CASE O) DIS(ONOR DUE TO STOP PA-MENT 39 6he drawee ban7 has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. 6he drawee ban7 is further obli5ated to state whether the drawer of the chec7 has suFcient funds in the ban7 or not. AGREEMENT O) PARTIES REGARDING T(E C(ECI IS NOT A DE)ENSE In the case of People vs 'itafan* %$& S/#A* the a5reement of the parties in respect to the issuance of the chec7 is inconseuential or will not afect the violation of BP %%* if the chec7 is presented to the ban7 and the same was dishonored due to insuFciency of funds. C(ECIS ISSUED IN PA-MENT O) INSTALLMENT STILL IN ,IOLATION O) B.P. 22 /hec7s issued in payment for installment covered by promissory note and said chec7s bounced* the drawer is liable if the chec7s were drawn a5ainst insuFcient funds* especially that the drawer* upon si5nin5 of the promissory note* closed his account. Said chec7 is still with consideration. (/aram #esources v. /ontreras. In this case* the +ud5e was even held administratively liable. C(ECI DRAWN AGAINST A DOLLAR ACCOUNT IN )OREIGN COUNTR- IS STILL A ,IOLATION O) B.P. 22 AS LONG AS T(E C(ECI IS DELI,ERED ON T(E P(ILIPPINES AND I) IT IS PA-ABLE OUTSIDE O) T(E P(ILS. A chec7 drawn a5ainst a dollar account in a forei5n country is still violative of the provisions of 40 BP %% so lon5 as the chec7 is issued* delivered or uttered in the Philippines* even if the same is payable outside of the Philippines (Ce Iilla v. /A. GUARANTEE C(ECIS! DRAWER IS NOT LIABLE I) T(E LESSOR W(O IS RECIPIENT O) GUARANTEE C(ECI PULLED OUT O) T(E LOANED E0UIPMENT. 6he mere act of issuin5 a worthless chec7 is punishable. @fender cannot claim 5ood faith for it is malum prohibitum. In the case of Ma#no vs C(* when accused issued a chec7 as warranty deposit for lease of certain euipment* even 7nowin5 that he has no funds or insuFcient funds in the ban7 is not liable* if the lessor of the euipment pulled out the loaned euipment. 6he drawer has no obli5ation to ma7e 5ood the chec7 because there is no more deposit to 5uaranty. ISSUANCE O) GUARANTEE C(ECIS W(IC( WAS DIS(ONORED IS STILL A ,IOLATION O) BP 22. PREJUDICE OR DAMAGE IS NOT NECESSARR- 6he intention of the framers of BP %% is to ma7e a mere act of issuin5 a worthless chec7 malum prohibitum. In prosecutions for violation of BP %%* therefore* pre>udice or dama5e is not prereuisite for conviction. 6he a5reement surroundin5 the issuance of the chec7s need not be frst loc7ed into* since the law has provided that the mere issuance of any 7ind of chec7! re5ardless of the intent of the parties* i.e.* 41 whether the chec7 is intended merely to serve as 5uarantee or deposit* but which chec7s is subseuently dishonored* ma7es the person who issued the chec7 liable. (LaDaro vs /A* et al.* "# $(&8)$.. CAN A PERSON BE (ELD LIABLE )OR ,IOLATION O) B.P. 22 IN ISSUING A C(ECI WIT( SU))ICIENT )UNDS4 )es. Para5raph % of Section $ of BP %% providesG 6he same penalty shall be imposed upon any person who havin5 suFcient funds in or credit with the drawee ban7 when he ma7es or draws and issues a chec7* shall fail to 7eep suFcient funds or to maintain a credit to cover the full amount of the chec7 if presented within a period of '( days from the date appearin5 thereon* for which reason* it is dishonored by the drawee ban7. DI))ERENCE BETWEEN ESTA)A AND ,IOLATION O) BP 22 In the crime of estafa* deceit and dama5e are essential elements of the ofense and have to be established with satisfactory proof to warrant conviction. ;or violation of the Bouncin5 /hec7s Law* on the other hand* the elements of deceit and dama5e are neither essential nor reuired. #ather* the elements of B.P. Bl5. %% are (a. the ma7in5* drawin5 and issuance of any chec7 to apply to account or for value! (b. the ma7er* drawer or issuer 7nows at the time of issuance that he does not have suFcient funds in or credit with the drawee ban7 for the payment of such chec7 in full upon its presentment! and* (c. the chec7 is 42 subseuently dishonored by the drawee ban7 for insuFciency of funds or credit or would have been dishonored for the same reason had not the drawer* without valid reason* ordered the ban7 to stop payment. (2y v /ourt of Appeals* "# $$'(((* +uly %-* $''9. RULES OR JURISDICTION IN RELATION TO T(E COURTS W(ERE BP 22 CASES MA-BE )ILED In respect of the Bouncin5 chec7s case* the ofense also appears to be continuin5 in nature. It is true that the ofense is committed by the very fact of its performance (/olmenares vs. Iillar* <o. L-%9$%)* ?ay %'* $'9(* == S/#A $-).! and that the Bouncin5 /hec7s Law penaliDes not only the fact of dishonor of a chec7 but also the act of ma7in5 or drawin5 and issuance of a bouncin5 chec7 (People vs. Aon. Ieridiano* II* <o. L-)%%8=* $=% S/#A &%=.. 6he case* therefore* could have been fled also in Bulacan. As held in Pue vs. People of the Philippines* ".#. <os. 9&%$9-$-* September $$* $'-9 1the determinative factor (in determinin5 venue. is the place of the issuance of the chec71. Aowever* it is li7ewise true that 7nowled5e on the part of the ma7er or drawer of the chec7 of the insuFciency of his funds* which is an essential in5redient of the ofense is by itself a continuin5 eventuality* whether the accused be within one territory or another (People vs. Aon. ?anDanilla* ".#. <os. ))((=-(8* Cecember $$* $'-9.. Accordin5ly* >urisdiction to ta7e co5niDance of the ofense also lies in the #e5ional 6rial /ourt of Pampan5a $no* M.+.C. of t%e proper to*n of Pampan#a&. And* as pointed out in the ?anDanilla case* >urisdiction or venue is determined by the 43 alle5ation in the Information* which are controllin5 (Arches vs. Bellosillo* -$ Phil. $'(* cited in 6uDon vs. /ruD* <o. L-%98$(* Au5ust %-* $'9&* )) S/#A %=&.. 6he Information fled herein specifcally alle5es that the crime was committed in San ;ernando Pampan5a and therefore within the >urisdiction of the /ourt below. 6his rulin5 was reiterated in the case of Lim vs. Rodri#o* $)9 S/#A 8-9* where it was heldG Besides* it was held in People v. ,on. Man-anilla* supra* that as 1violation of the bad chec7s act is committed when one 4ma7es or draws and issues any chec7 LsicM to apply on account or for value* 7nowin5 at the time issue that he does not have suFcient funds4 or havin5 suFcient funds in or credit with the drawee ban7 . . . shall fail to 7eep suFcient funds or to maintain a credit to cover the full amount of the chec7 if presented within a period of ninety ('(. days from the date appearin5 thereon* for which reason it is dishonored by the drawee ban7*1 17nowled5e1 is an essential in5redient of the ofense char5e. As defned by the statute* 7nowled5e* is* by itself* a continuin5 eventuality* whether the accused be within one territory or another. 6his bein5 the case* the #e5ional 6rial /ourt of Ba5uio /ity has >urisdiction to try /riminal /ase <o. %(-'-# ()--.. ?oreover* we ruled in the same case of People v. Aon. ?anDanilla* reiterated in People vs. Grospe* supra* that >urisdiction or venue is determined by the alle5ations in the information. 6he alle5ation in the information under consideration that the ofense was committed in Ba5uio /ity is therefore controllin5 and suFcient to vest >urisdiction upon the #e5ional 6rial /ourt of Ba5uio /ity. 44 In the case at bench it appears that the three (=. chec7s were deposited in Lucena /ity. As to the second error wherein the petitioner asserted that the chec7s were issued 1as a 5uarantee only for the feeds delivered to him1 and that there is no estafa if a chec7 is issued in payment of a pre- e3istin5 obli5ation* the /ourt of Appeals pointed out that the petitioner obviously failed to distin5uish a violation of B.P. Bl5. %% from estafa under Article =$& (%. LdM of the #evised Penal /ode. It further stressed that B.P. Bl5. %% applies even in cases where dishonored chec7s were issued as a 5uarantee or for deposit only* for it ma7es no distinction as to whether the chec7s within its contemplation are issued in payment of an obli5ation or merely to 5uarantee the said obli5ation and the history of its enactment evinces the defnite le5islative intent to ma7e the prohibition all-embracin5. (Ibasco vs /A* %)$ S/#A &9%. ACTUAL INOWLEDGE O) INSU))ICIENC- O) )UNDS ESSENTIAL IN BP 22 Rnowled5e of insuFciency of funds or credit in the drawee ban7 for the payment of a chec7 upon its presentment is an essential element of the ofense. 6here is a prima facie presumption of the e3istence of this element from the fact of drawin5* issuin5 or ma7in5 a chec7* the payment of which was subseuently refused for insuFciency of funds. It is important to stress* however* that this is not a conclusive presumption that forecloses or precludes the presentation of evidence to the contrary. (Lim Lao v /A %98 S/#A &9%. 45 W(EN LACI O) INOWLEDGE AND LACI O) POWER TO )UND T(E C(ECIS IN CASES O) BP 22 A DE)ENSE After a thorou5h review of the case at bar* the /ourt fnds that Petitioner Lina Lim Lao did not have actual 7nowled5e of the insuFciency of funds in the corporate accounts at the time she aF3ed her si5nature to the chec7s involved in this case* at the time the same were issued* and even at the time the chec7s were subseuently dishonored by the drawee ban7. 6he scope of petitioner4s duties and responsibilities did not encompass the fundin5 of the corporation4s chec7s! her duties were limited to the mar7etin5 department of the Binondo branch. 2nder the or5aniDational structure of Premiere ;inancin5 /orporation* fundin5 of chec7s was the sole responsibility of the 6reasury Cepartment. (Lim Lao v /A %98 S/#A &9%. LACI O) ADE0UATE NOTICE O) DIS(ONOR! A DE)ENSE 6here can be no prima facie evidence of 7nowled5e of insuFciency of funds in the instant case because no notice of dishonor was actually sent to or received by the petitioner. 6he notice of dishonor may be sent by the ofended party or the drawee ban7. 6he trial court itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee ban7 based on the unrebutted testimony of @campo 1(t.hat the chec7s bounced when presented with the drawee ban7 but she did not inform anymore the Binondo branch and Lina Lim Lao as there was no need to inform them as the corporation was in distress.1 46 6he /ourt of Appeals aFrmed this factual fndin5. Pursuant to prevailin5 >urisprudence* this fndin5 is bindin5 on this /ourt. (Lim Lao v /A! )H%(H'9. 47 ANTI.GRA)T J CORRUPT PRACTICES ACT BRA NO K3$5C ANTI.GRA)T AND CORRUPT PRACTICES ACT Corrupt practices of public o.cers. (a. Persuadin5* inducin5 or inNuencin5 another public oFcer to perform an act constitutin5 a violation of rules and re5ulations duly promul5ated by competent authority or an ofense in connection with the oFcial duties of the latter* or allowin5 himself to be persuaded* induced* or inNuenced to commit such violation or ofense. (b. Cirectly or indirectly reuestin5 or receivin5 any 5ift* present* share* percenta5e* or beneft* for himself or for any other person* in connection with any contract or transaction between the "overnment and any other part* wherein the public oFcer in his oFcial capacity has to intervene under the law. (c. Cirectly or indirectly reuestin5 or receivin5 any 5ift* present or other pecuniary or material beneft* for himself or for another* from any person for whom the public oFcer* in any manner or capacity* has secured or obtained* or will secure or obtain* any "overnment permit or license* in consideration for the help 5iven or to be 5iven* without pre>udice to Section thirteen of this Act. (d. Acceptin5 or havin5 any member of his family accept employment in a private 48 enterprise which has pendin5 oFcial business with him durin5 the pendency thereof or within one year after its termination. (e. /ausin5 any undue in>ury to any party* includin5 the "overnment* or 5ivin5 any private party any unwarranted benefts* advanta5e or preference in the dischar5e of his oFcial administrative or >udicial functions throu5h manifest partiality* evident bad faith or 5ross ine3cusable ne5li5ence. 6his provision shall apply to oFcers and employees of oFces or 5overnment corporations char5ed with the 5rant of licenses or permits or other concessions. ( f . <e5lectin5 or refusin5* after due demand or reuest* without suFcient >ustifcation* to act within a reasonable time on any matter pendin5 before him for the purpose of obtainin5* directly or indirectly* from any person interested in the matter some pecuniary or material beneft or advanta5e* or for the purpose of favorin5 his own interest or 5ivin5 undue advanta5e in favor of or discriminatin5 a5ainst any other interested party. (5. Jnterin5* on behalf of the "overnment* into any contract or transaction manifestly and 5rossly disadvanta5eous to the same* whether or not the public oFcer profted or will proft thereby. (h. Cirector or indirectly havin5 fnancin5 or pecuniary interest in any business* contract or transaction in connection with which he intervenes or ta7es part in his oFcial capacity* or in which he is prohibited by the 49 /onstitution or by any law from havin5 any interest. (i. Cirectly or indirectly becomin5 interested* for personal 5ain* or havin5 a material interest in any transaction or act reuirin5 the approval of a board* panel or 5roup of which he is a member* and which e3ercises discretion in such approval* even if he votes a5ainst the same or does not participate in the action of the board* committee* panel or 5roup. Interest for personal 5ain shall be presumed a5ainst those public oFcers responsible for the approval of manifestly unlawful* ineuitable* or irre5ular transaction or acts by the board* panel or 5roup to which they belon5. ( >. Rnowin5ly approvin5 or 5rantin5 any license* permit* privile5e or beneft in favor of any person not ualifed for or not le5ally entitled to such license* permit* privile5e or advanta5e* or of a mere representative or dummy of one who is not so ualifed or entitled. (7. Civul5in5 valuable information of a confdential character* acuired by his oFce or by him on account of his oFcial position to unauthoriDed persons* or releasin5 such information in advance of its authoriDed release date. UNE*PLAINED WEALT(! MEANING Prima facie evidence of and dismissal due to une3plained wealth. If in accordance with the provisions of #A $=9'* a public oFcial has been 50 found to have acuired durin5 his incumbency* whether in his name or in the name of other persons* an amount of property andHor money manifestly out of proportion to his salary and to his other lawful income* that fact shall be a 5round for dismissal or removal. 'oteG 2nsolicited 5ifts or presents of small or insi5nifcant value shall be ofered or 5iven as a mere ordinary to7en of 5ratitude or friendship accordin5 to local customs or usa5e shall be e3empted from the provision of this act. MEANING O) DCAUSING UNDUE INJUR-L 6he act of 5ivin5 any private party any unwarranted beneft* advanta5e or preference is not an indispensable element of causin5 any undue in>ury to any part* althou5h there may be instances where both elements concur. (Santia5o vs "architorena* et al.* % Cec. '=.. In Mejoroda v /andi#anbayan* the Supreme /ourt has ruled that the ofender in causin5 undue in>ury does not refer only to those who are in char5e of 5ivin5 permits* licenses or concessions but all acts of public oFcers or employees which have caused undue in>ury to others. ELEMENTS O) NEGLECT O) DUT- UNDER SEC. K O) RA K3$5 a.the ofender is a public oFcer! b.the said oFcer has ne5lected or has refused to act without suFcient >ustifcation after due demand or reuest has been made upon him! 51 c. reasonable time has elapsed from such demand or reuest without the public oFcer havin5 acted on the matter pendin5 before him! d.such failure to so act is for the purpose of obtainin5 directly or indirectly from any person interested in the matter some pecuniary or material beneft or advanta5e in favor of an interested party or discriminatin5 a5ainst another. /oronado v Sandi5anbayan. W(ERE PUBLIC O))ICER ACTED WIT( MANI)EST PARTIALIT-! E,IDENT BAD )AIT(! OR INE*CUSABLE NEGLIGENCE Sec. =. /orrupt practices of public oFcers. - In addition to acts or omissions of public oFcers already penaliDed by e3istin5 law* the followin5 shall constitute corrupt practices of any public oFcer and are hereby declared to be unlawfulG 333 333 333 (e.. /ausin5 any undue in>ury to any party* includin5 the "overnment* or 5ivin5 any private party any unwarranted benefts* advanta5e or preference in the dischar5e of his oFcial administrative or >udicial functions throu5h manifest partiality* evident bad faith or 5ross ine3cusable ne5li5ence. 6his provision shall apply to oFcers and employees of oFces or 5overnment corporations char5ed with the 5rant of licenses or permits or other concessions. ,IOLATION O) SECTION K BEC O) RA K3$5 RE0UIRES PROO) O) T(E )OLLOWING )ACTS! ,I1: 52 a.the accused is a public oFcer dischar5in5 administrative or oFcial functions or private persons char5ed in conspiracy with them! b.the public oFcer committed the prohibited act durin5 the performance of his oFcial duty or in relation to his public position! c. the public oFcer acted with manifest partiality evident bad faith or 5ross* ine3cusable ne5li5ence! and d.his action caused undue in>ury to the 5overnment or any private party* or 5ave any party any unwarranted beneft* advanta5e or preference to such parties. CAUSING UNDUE INJUR- UNDER SEC. K! LETTER BeC O) RA K3$5. INCLUDES ALL PUBLIC O))ICERS INCLUDING T(OSE T(AT DOES NOT ISSUE LICENSE OR PERMIT OR CONCESSION. Section = enumerates in eleven subsections the corrupt practices of any public oFcer declared unlawful. Its reference to any public oFcer is without distinction or ualifcation and it specifes the acts declared unlawful. :e a5ree with the view adopted by the Solicitor "eneral that the last inclusion of oFcers and employees of oFces or 5overnment corporations which* under the ordinary concept of Spublic oFcerT may not come within the term. It is a strained construction of the provision to read it as applyin5 e3clusively to public oFcers char5ed with the duty of 5rantin5 license or permits or other concessions. (?e>orada v Sandi5anbayan* $&$ S/#A =''.. 53 SUSPENSION UNDER R.A. K3$5 MANDATOR- BUT COURTS ARE ALLOWED TO DETERMINE W(ET(ER IN)ORMATION IS ,ALID OR NOT It is well settled that Section $= of #A =($' ma7es it mandatory for the Sandi5anbayan (or the /ourt. to suspend any public oFcer a5ainst whom a valid information char5in5 violation of this law* Boo7 II* 6itle 9 of the #P/* or any ofense involvin5 fraud upon 5overnment or public funds or property is fled in court. 6he court tryin5 a case has neither discretion nor duty to determine whether preventive suspension is reuired to prevent the accused from usin5 his oFce to intimidate witnesses or frustrate his prosecution or continue committin5 malfeasance in oFce. All that is reuired is for the court to ma7e a fndin5 that the accused stands char5ed under a valid information for any of the above-described crimes for the purpose of 5rantin5 or denyin5 the sou5ht for suspension. (Bolasti5 vs. Sandi5anbayan* ".#. <o. $$(&(= LAu5ust 8* $''8M* %=& S/#A $(=..In the same case* the /ourt held that 1as applied to criminal prosecutions under #A =($'* preventive suspension will last for less than ninety ('(. days only if the case is decided within that period! otherwise* it will continue for ninety ('(. days.1 (/onducto v. ?onDon! A.?. <o. ?6+-'--$$89* +uly %* $''-. (see also sec $=. PUBLIC O))ICER MA- BE SUSPENDED )ROM (IS PRESENT POSITION E,EN I) T(E CRIME W(IC( (E IS BEING C(ARGED WAS COMMITTED DURING (IS PRE,IOUS TERM +ud5e ?onDon4s contention denyin5 complainant4s ?otion for Suspension because 1ofenses committed durin5 the previous term (is. 54 not a cause for removal durin5 the present term1 is untenable. In the case of #odolfo J. A5uinaldo vs. Aon. Luis Santos and ?elvin Iar5as* %$% S/#A 9)-* the /ourt held that 1the rule is that a public oFcial cannot be removed for administrative misconduct committed durin5 a prior term since his re-election to oFce operates as a condonation of the oFcer4s previous misconduct committed durin5 a prior term* to the e3tent of cuttin5 of the ri5ht to remove him therefor. 6he fore5oin5 rule* however* fnds no application to criminal cases . . .1 Li7ewise* it was specifcally declared in the case of !n#co vs. /anc%e-* ".#. <o. L-%=%%(* $- Cecember $')9* %$ S/#A $%'%* that 16he rulin5* therefore* that 4when the people have elected a man to oFce it must be assumed that they did this with 7nowled5e of his life and character and that they disre5arded or for5ave his faults or misconduct if he had been 5uilty of any4 refers only to an action for removal from oFce and does not apply to a criminal case1 /learly* even if the alle5ed unlawful appointment was committed durin5 ?a5hiran54s frst term as baran5ay chairman and the ?otion for his suspension was only fled in $''& durin5 his second term* his re-election is not a bar to his suspension as the suspension sou5ht for is in connection with a criminal case. (/onducto v. ?onDon %'$ scra )$'. RE.ELECTION IN PUBLIC O))ICE E*TINGUIS(ING ONL- (IS ADMINISTRATI,E LIABILIT- BUT NOT (IS CRIMINAL LIABILIT- As early as $- Cecember $')9 in !n#co v. /anc%e-* $9 this /ourt e3plicitly ruled that the re- election of a public oFcial e3tin5uishes only the administrative* but not the criminal* liability 55 incurred by him durin5 his previous term of oFce* thusG 6he rulin5* therefore* that 0 1when the people have elected a man to his oFce it must be assumed that they did this with 7nowled5e of his life and character and that they disre5arded or for5ave his faults or misconduct if he had been 5uilty of any1 0 refers only to an action for removal from oFce and does not apply to criminal case* because a crime is a public wron5 more atrocious in character than mere misfeasance or malfeasance committed by a public oFcer in the dischar5e of his duties* and is in>urious not only to a person or 5roup of persons but to the State as a whole. 6his must be the reason why Article -' of the #evised Penal /ode* which enumerates the 5rounds for e3tinction of criminal liability* does not include reelection to oFce as one of them* at least insofar as a public oFcer is concerned. Also* under the /onstitution* it is only the President who may 5rant the pardon of a criminal ofense. (/onducto v. ?onDon! A.?. <o. ?6+-'--$$89* +uly %* $''-. PRE.CONDITION O) SUSPENSION BPRE,ENTI,EC UNDER SEC. $K! RA K3$5 It is mandatory for the court to place under preventive suspension a public oFcer accused before it. Imposition of suspension* however* is not automatic or self-operative. A pre-condition thereof is the e3istence of a valid information* determined at a pre-suspension hearin5. Such a hearin5 is in accord with the spirit of the law* considerin5 the serious and far-reachin5 conseuences of a suspension of a public oFcial even before his conviction* and the demands of public interest for a speedy determination of the issues involved in the case. 6he purpose of the pre-suspension hearin5 is 56 basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case* or refuse suspension of the latter and dismiss the case* or correct any part of the proceedin5 which impairs its validity. 6he accused should be 5iven adeuate opportunity to challen5e the validity or re5ularity of the criminal proceedin5s a5ainst him! e.5. that he has not been aforded the ri5ht to due preliminary investi5ation! that the acts imputed to him do not constitute a specifc crime (under #.A. =($' or the #evised Penal /ode. warrantin5 his mandatory suspension from oFce under Section $= of the Act! or that the information is sub>ect to uashal on any of the 5rounds set out in #ule $$9 of the #ules of /ourt. But once a proper determination of the validity of the information has been made* it becomes the ministerial duty of the court to forthwith issue the order of preventive suspension. 6he court has no discretion* for instance* to hold in abeyance the suspension of the accused oFcial on the prete3t that the order denyin5 the latter4s motion to uash is pendin5 review before the appellate courts. (Se5ovia v. Sandi5anbayan! "# $%8()9* ?ar. %9* $''-. GUIDELINES TO BE )OLLOWED IN PRE,ENTI,E SUSPENSION CASES 1In the leadin5 case of Luciano et al. vs. Mariano* et al. (L-=%'&(* +uly =(* $'9$* 8( S/#A $-9.* we have set out the 5uidelines to be followed by the lower courts in the e3ercise of the power of suspension under Section $= of the law* to witG (c. By way of broad 5uidelines for the lower courts in the e3ercise of the power of suspension from oFce of public oFcers char5ed under a valid 57 information under the provisions of #epublic Act <o. =($' or under the provisions of the #evised Penal /ode on bribery* pursuant to section $= of said Act* it may be brieNy stated that upon the flin5 of such information* the trial court should issue an order with proper notice reuirin5 the accused oFcer to show cause at a specifc date of hearin5 why he should not be ordered suspended from oFce pursuant to the cited mandatory provisions of the Act. :here either the prosecution seasonably fles a motion for an order of suspension or the accused in turn fles a motion to uash the information or challen5es the validity thereof* such show-cause order of the trial court would no lon5er be necessary. :hat is indispensable is that the trial court duly hear the parties at a hearin5 held for determinin5 the validity of the information* and thereafter hand down its rulin5* issuin5 the correspondin5 order of suspension should it uphold the validity of the information or withhold such suspension in the contrary case. (d. <o specifc rules need be laid down for such pre-suspension hearin5. SuFce it to state that the accused should be 5iven a fair and adeuate opportunity to challen5e the validity of the criminal proceedin5s a5ainst him* e.5.* that he has not been aforded the ri5ht of due preliminary investi5ation* the act for which he stands char5ed do not constitute a violation of the provisions of #epublic Act <o. =($' or of the bribery provisions of the #evised Penal /ode which would warrant his mandatory suspension from oFce under Section $= of the Act* or he may present a motion to uash the information on any of the 5rounds provided in #ule $$9 of the #ules of /ourt. 6he mandatory suspension decreed by the act upon determination of the pendency in court or a criminal prosecution for violation of the Anti-"raft Act or for bribery 58 under a valid information reuires at the same time that the hearin5 be e3peditious* and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Aence* if the trial court* say* fnds the 5round alle5ed in the uashal motion not to be indubitable* then it shall be called upon to issue the suspension order upon its upholdin5 the validity of the information and settin5 the same for trial on the merits.4 (Se5ovia v. Sandi5anbayan. W(EN MA- A PUBLIC O))ICER BE LIABLE )OR CAUSING UNDUE INJUR- UNDER SEC. KBeC o; RA K3$5 333 333 333 (c. /ausin5 any undue in>ury to any party* includin5 the "overnment* or 5ivin5 any private party any unwarranted benefts* advanta5e or preference in the dischar5e of his oFcial* administrative or >udicial functions throu5h manifest partiality* evident bad faith or 5ross ine3cusable ne5li5ence. 6his provision shall apply to oFcers and employees of oFces or 5overnment corporations char5ed with the 5rant of licenses or permits or other concessions.1 6o hold a person liable under this section* the concurrence of the followin5 elements must be established beyond reasonable doubt by the prosecutionG $. 6hat the accused is a public oFcer or a private person char5ed in conspiracy with the former! %. 6hat said public oFcer commits the prohibited acts durin5 the performance of his or her oFcial duties or in relation to his or her public positions! 59 =. 6hat he or she causes undue in>ury to any party* whether the 5overnment or a private party! and 8. 6hat the public oFcer has acted with manifest partiality* evident bad faith or 5ross ine3cusable ne5li5ence. (Llorente v. Sandi5anbayan! "# $%%$))* ?ar. $$* $''-. MEANING O) BAD )AIT( UNDER SECTION KBeC O) RA K3$5 10ad fait% does not simply connote bad >ud5ment or ne5li5ence! it imputes a dishonest purpose or some moral obliuity and conscious doin5 of a wron5! a breach of sworn duty throu5h some motive or intent or ill will! it parta7es of the nature of fraud. (Spie5el v Beacon Participations* - <J %nd Series -'&* $((9.. It contemplates a state of mind aFrmatively operatin5 with furtive desi5n or some motive of self interest or ill will for ulterior purposes (Air ;rance v. /arrascoso* $- S/#A $&&* $))-$)9.. Jvident bad faith connotes a manifest deliberate intent on the part of the accused to do wron5 or cause dama5e.1 In Jacinto* evident bad faith was not appreciated because the actions ta7en by the accused were not entirely without rhyme or reason! he refused to release the complainant4s salary because the latter failed to submit her daily time record! he refused to approve her sic7-leave application because he found out that she did not sufer any illness! and he removed her name from the plantilla because she was moonli5htin5 durin5 oFce hours. Such actions were measures ta7en by a superior a5ainst an errin5 employee who studiously i5nored* if not defed* his authority. (Llorente v. Sandi5anbayan. 60 W(EN O))ENDER IS NOT LIABLE UNDER SEC. KBeC BUT UNDER SEC. B;C O) RA K3$5 It would appear that petitioner4s failure or refusal to act on the complainant4s vouchers* or the delay in his actin5 on them more properly falls under Sec. =LfMG 1(f. <e5lectin5 or refusin5* after due demand or reuest* without suFcient >ustifcation* to act within a reasonable time on any matter pendin5 before him for the purpose of obtainin5* directly or indirectly* from any person interested in the matter some pecuniary or material beneft or advanta5e* or for purpose of favorin5 his own interest or 5ivin5 undue advanta5e in favor of or discriminatin5 a5ainst any other interested party.1 Aere* the ne5lect or refusal to act within a reasonable time is the criminal act* not the causin5 of undue in>ury. 6hus* its elements areG 1$. 6he ofender is a public oFcer! %. Said oFcer has ne5lected or has refused to act without suFcient >ustifcation after due demand or reuest has been made on him! =. #easonable time has elapsed from such demand or reuest without the public oFcer havin5 acted on the matter pendin5 before him! and 8. Such failure to so act is 4for the purpose of obtainin5* directly or indirectly* from any person interested in the matter some pecuniary or material beneft or advanta5e in favor of an interested party* or discriminatin5 a5ainst another.1 Aowever* petitioner is not char5ed with a violation of Sec. =LfM. Aence* further disuisition is 61 not proper. <either may this /ourt convict petitioner under Sec. =LfM without violatin5 his constitutional ri5ht to due process. (Llorente v. Sandi5anbayan. SUSPENSION BPRE,ENTI,EC O) LOCAL O))ICIALS S(ALL ONL- BE )OR 63 DA-S @n the other hand* we fnd merit in petitioner4s second assi5ned error. 6he Sandi5anbayan erred in imposin5 a '( day suspension upon petitioner for the sin5le case fled a5ainst him. 2nder Section )= (b. of the Local "overnment /ode* 1any sin5le preventive suspension of local elective oFcials shall not e3tend beyond si3ty ()(. days.1 (#ios v. Sandi5anbayan! "# $%''$=* Set. %)* $''9. APPRO,AL O) LEA,E O) ABSENCE NOT A BAR TO SUSPENSION Since the petitioner is an incumbent public oFcial char5ed in a valid information with an ofense punishable under the /onstitution and the laws (#A =($' and PC -(9.* the law4s command that he 1shall be suspended from oFce1 pendente lite must be obeyed. Ais approved leave of absence is not a bar to his preventive suspension for as indicated by the Solicitor "eneral* an approved leave* whether it be for a f3ed or indefnite period* may be cancelled or shortened at will by the incumbent. (Coromal v. Sandi5anbayan $99 S/#A =&8. 62 UNDUE DELA- IN PRELIMINAR- IN,ESTIGATIONS ,IOLATI,E O) DUE PROCESS AND A GROUND TO DISMISS After a careful review of the facts and circumstances of this case* we are constrained to hold that the inordinate delay in terminatin5 the preliminary investi5ation and flin5 the information in the instant case is violative of the constitutionally 5uaranteed ri5ht of the petitioner to due process and to a speedy disposition of the cases a5ainst him. Accordin5ly* the informations in /riminal /ases <os. $(8''* $(&((* $(&($* $(&(% and $(&(= should be dismissed. In view of the fore5oin5* we fnd it unnecessary to rule on the other issues raised by petitioner. (6atad v. Sandi5anbayan. 63 DEAT( PENALT- LAW BRA A6@5C PROSTITUTES CAN BE A ,ICTIM O) RAPE As to the su55estion that A<ALIQA was a prostitute* that alone* even if it be conceded* cannot absolve him of his liability for rape. ;irst* prostitutes can be victims of rape. (People v. Alfeche. REASON W(- DWELLING IS AN AGGRA,ATING CIRCUMSTANCE Cwellin5 is considered an a55ravatin5 circumstance because primarily of the sanctity of privacy the law accords to human abode. 6he dwellin5 need not be owned by the victim. 6hus* in People v. 0asa* dwellin5 was appreciated* althou5h the victims were 7illed while sleepin5 as 5uests in the house of another. As aptly stated in People v. 0alansitG 1L@Mne does not lose his ri5ht of privacy where he is ofended in the house of another because as LanM invited 5uest Lor a housemaid as in the instant caseM* he* the stran5er* is sheltered by the same roof and protected by the same intimacy of life it afords. It may not be his house* but it is* even for a brief moment* 1home1 to him. Ae is entitled to respect even for that short moment.1 (People v. Alfeche. W(EN RELATIONS(IP IS NOT AN ALTERNATI,E CIRCUMSTANCE UNDER ART. $@ O) T(E RPC 64 /learly then* the father-dau5hter relationship in rape cases* or between accused and #elanne* in this case* has been treated by /on5ress in the nature of a special circumstance which ma7es the imposition of the death penalty mandatory. Aence* relationship as an alternative circumstance under Article $& of the #evised Penal /ode* appreciated as an a55ravatin5 circumstance* should no lon5er be applied in view of the amendments introduced by #.A. <o. 9)&'. It may be pointed* however* that without the fore5oin5 amendment* relationship would still be an a55ravatin5 circumstance in the crimes of rape (Article ==&. and acts of lasciviousness (Article ==).. If relationship in the instant case were to be appreciated under Article $& of the #evised Penal /ode* the penalty imposable on accused then would not be death* but merely reclusion perpetua for* assumin5 that #elanne4s testimony in court would have confrmed what she narrated in her sworn statement (J3hibit 1/1.* no circumstance then attended the commission of the rape which could brin5 the crime under any provision of Article ==& which imposes a penalty hi5her than reclusion perpetua or of reclusion perpetua to death. (People v. ?anyuhod* +r.. W(EN O))ENDER IS STEP GRANDPARENT! (E IS NOT CONSIDERED AN ASCENDANT UNDER RA &K@K AND RA A6@5 6he trial court has thus held incorrectly in considerin5 appellant* who is le5ally married to #o3an4s natural 5randmother* as amon5 those named in the enumeration. Appellant is merely a step-5randparent who obviously is neither an 1ascendant1 nor a 1step-parent1 of the victim. In the recent case of People vs. Atop* %8 the /ourt 65 re>ected the application of the mandatory death penalty to the rape of a $%-year old victim by the common-law husband of the 5irl4s 5randmother. 6he /ourt saidG 1It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. /ourt4s must not brin5 cases within the provision of a law which are not clearly embraced by it. <o act can be pronounced criminal which is not clearly made so by statute! so* too* no person who is not clearly within the terms of a statute can be brou5ht within them. Any reasonable doubt must be resolved in favor of the accused.1 (People v. Celeverio. RECLUSION PERPETUA IS LIG(TER T(AN LI)E IMPRISONMENT AND I) ONE IS SENTENCED TO LI)E IMPRISONMENT AND LATER T(E PENALT- O) RECLUSION PERPETUA WAS IMPOSED TO SAME O))ENSE! T(E PENALT- T(AT S(OULD BE IMPOSED IS RECLUSION PERPETUA Since reclusion perpetua is a li5hter penalty than life imprisonment* and considerin5 the rule that criminal statutes with a favorable efect upon the accused have* as to him* a retroactive efect* the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment. (People v. Latura. JUSTI)ICATION )OR T(E IMPOSITION O) T(E DEAT( PENALT- Althou5h its ori5ins seem lost in obscurity* the imposition of death as punishment for violation of 66 law or custom* reli5ious or secular* is an ancient practice. :e do 7now that our forefathers 7illed to aven5e themselves and their 7in and that initially* the criminal law was used to compensate for a wron5 done to a private party or his family* not to punish in the name of the state. 6he dawnin5 of civiliDation brou5ht with it both the increasin5 sensitiDation throu5hout the later 5enerations a5ainst past barbarity and the institutionaliDation of state power under the rule of law. 6oday every man or woman is both an individual person with inherent human ri5hts reco5niDed and protected by the state and a citiDen with the duty to serve the common weal and defend and preserve society. @ne of the indispensable powers of the state is the power to secure society a5ainst threatened and actual evil. Pursuant to this* the le5islative arm of 5overnment enacts criminal laws that defne and punish ille5al acts that may be committed by its own sub>ects* the e3ecutive a5encies enforce these laws* and the >udiciary tries and sentences the criminals in accordance with these laws. Althou5h penolo5ists* throu5hout history* have not stopped debatin5 on the causes of criminal behavior and the purposes of criminal punishment* our criminal laws have been perceived as relatively stable and functional since the enforcement of the #evised Penal /ode on +anuary $* $'=%* this notwithstandin5 occasional opposition to the death penalty provisions therein. 6he #evised Penal /ode* as it was ori5inally promul5ated* provided for the death penalty in specifed crimes under specifc circumstances. As early as $--)* thou5h* capital punishment had entered our le5al system throu5h the old Penal /ode* which was a modifed version of the Spanish Penal /ode of $-9(. 67 (People v. Jche5aray. W(- DEAT( PENALT- IS NOT A CRUEL AND UNUSUAL PUNIS(MENT 16he penalty complained of is neither cruel* un>ust nor e3cessive. In J3-parte Remmler* $=) 2.S.* 8=)* the 2nited States Supreme /ourt said that 4punishments are cruel when they involve torture or a lin5erin5 death* but the punishment of death is not cruel* within the meanin5 of that word as used in the constitution. It implies there somethin5 inhuman and barbarous* somethin5 more than the mere e3tin5uishment of life.41 Sas lon5 as that penalty remains in the statute boo7s* and as lon5 as our criminal law provides for its imposition in certain cases* it is the duty of >udicial oFcers to respect and apply the law re5ardless of their private opinions*1 and this we have reiterated in the $''& case of People v. Ieneracion. (People v. Jche5aray. DEAT( PENALT- WAS NOT ABOLIS(ED BUT MEREL- SUSPENDED A readin5 of Section $' ($. of Article III will readily show that there is really nothin5 therein which e3pressly declares the abolition of the death penalty. 6he provision merely says that the death penalty shall not be imposed unless for compellin5 reasons involvin5 heinous crimes the /on5ress hereafter provides for it and* if already imposed* shall be reduced to reclusion perpetua. 6he lan5ua5e* while rather aw7ward* is still plain enou5h1. (People v. Jche5aray. 68 DE)INITION O) (EINOUS CRIMES 1. . . the crimes punishable by death under this Act are heinous for bein5 5rievous* odious and hateful ofenses and which* by reason of their inherent or manifest wic7edness* viciousness* atrocity and perversity are repu5nant and outra5eous to the common standards and norms of decency and morality in a >ust* civiliDed and ordered society.1 (People v. Jche5aray. W(AT ARE T(E CRIMES PUNIS(ABLE B- RECLUSION PERPETUA TO DEAT( UNDER RA A6@5
2nder #.A. <o. 9)&'* the followin5 crimes are penaliDed by reclusion perpetua to deathG $. 6reason (Sec. %.! %. Pualifed piracy (Sec. =.! =. Parricide (Sec. &.! 8. ?urder (Sec. ).! &. Infanticide (Sec. 9.! ). Ridnappin5 and serious ille5al detention if attended by any of the followin5 four circumstancesG (a. the victim was detained for more than three days! (b. it was committed simulatin5 public authority! (c. serious physical in>uries were inNicted on the victim or threats to 7ill him were made! and (d. if the victim is a minor* e3cept when the accused is any of the parents* female or a public oFcer (Sec. -.! 9. #obbery with homicide* rape or intentional mutilation (Sec. '.! -. Cestructive arson if what is burned is (a. one or more buildin5s or edifce! (b. a buildin5 where people usually 5ather! (c. a train* ship or 69 airplane for public use! (d. a buildin5 or factory in the service of public utilities! (e. a buildin5 for the purpose of concealin5 or destroyin5 evidence @r a crime! (f. an arsenal* frewor7s factory* or 5overnment museum! and (5. a storehouse or factory of e3plosive materials located in an inhabited place! or re5ardless of what is burned* if the arson is perpetrated by two or more persons (Sec. $(.! '. #ape attended by any of the followin5 circumstancesG (a. the rape is committed with a deadly weapon! (b. the rape is committed by two or more persons! and (c. the rape is attempted or frustrated and committed with homicide (Sec. $$.! $(. Plunder involvin5 at least P&( million (Sec. $%.! 11) Importation of prohibited dru5s (Sec. $=.! $%. Sale* administration* delivery* distribution* and transportation of prohibited dru5s (id..! $=. ?aintenance of den* dive or resort for users of prohibited dru5s (id..! $8. ?anufacture of prohibited dru5s (id..! $&. Possession or use of prohibited dru5s in certain specifed amounts (id..! $). /ultivation of plants which are sources of prohibited dru5s (id.. $9. Importation of re5ulated dru5s $-. (Sec. $8.! $'. ?anufacture of re5ulated dru5s (id..! %(. Sale* administration* dispensation* delivery* transportation* and distribution of re5ulated dru5s (id..! %$. ?aintenance of den* dive* or resort for users of re5ulated dru5s (Sec. $&.! %%. Possession or use of re5ulated dru5s in specifed amounts (Sec. $).! %=. ?isappropriation* misapplication or failure to account dan5erous dru5s confscated by the arrestin5 oFcer (Sec. $9.! 70 %8. Plantin5 evidence of dan5erous dru5s in person or immediate vicinity of another to implicate the latter (Sec. $'.! and %&. /arnappin5 where the owner* driver or occupant of the carnapped motor vehicle is 7illed or raped (Sec. %(. (People v. Jche5aray. W(AT ARE T(E MANDATOR- CRIMES PUNIS(ABLE B- MANDATOR- DEAT( PENALT- UNDER RA A6@5 @n the other hand* under #.A. <o. 9)&'* the mandatory penalty of death is imposed in the followin5 crimesG $1& 2uali3ed bribery 1If any public oFcer is entrusted with law enforcement and he refrains from arrestin5 or prosecutin5 an ofender who has committed a crime punishable by reclusion perpetua andHor death in consideration of any ofer* promise* 5ift or present* he shall sufer the penalty for the ofense which was not prosecuted. If it is the public oFcer who as7s or demands such 5ift or present* he shall sufer the penalty of death.1 (Sec. 8. $4& 5idnappin# and serious ille#al detention for ransom resultin# in t%e deat% of t%e victim or t%e victim is raped tortured or subjected to de%umani-in# acts 16he penalty shall be death where the 7idnappin5 or detention was committed for the purpose of ransom from the victim or any other person* even if none of the circumstances above- 71 mentioned were present in the commission of the ofense. :hen the victim is 7illed or dies as a conseuence of the detention or is raped* or is sub>ect to torture or dehumaniDin5 acts* the ma3imum penalty Lof deathM shall be imposed.1 (Sec. -. $6& Destructive arson resultin# in deat% 1If as a conseuence of the commission of any of the acts penaliDed under this Article* death results* the mandatory penalty of death shall be imposed.1 (Sec. $(. $7& Rape *it% t%e victim becomin# insane rape *it% %omicide and 8uali3ed 1:hen by reason or on the occasion of the rape* the victim has become insane* the penalty shall be death. 333 333 333 6he death penalty shall also be imposed if the crime of rape is committed with any of the followin5 attendant circumstancesG $. when the victim is under ei5hteen ($-. years of a5e and the ofender is a parent* ascendant* step- parent* 5uardian* relative by consan5uinity or aFnity within the third civil de5ree* or the common-law spouse of the parent or the victim. %. when the victim is under the custody of the police or military authorities. =. when the rape is committed in full view of the husband* parent* any of the children or other relatives within the third de5ree of consan5uinity. 8. when the victim is a reli5ious or a child below seven (9. years old 72 &. when the ofender 7nows that he is aUicted with Acuired Immune Cefciency Syndrome (AICS. disease. ). when committed by any member of the Armed ;orces of the Philippines or the Philippine <ational Police or any law enforcement a5ency. 9. when by reason or on the occasion of the rape* the victim has sufered permanent physical mutilation.1 (Sec. $$ . $9& !n all t%e crimes in R(. 'o. :;9< in t%eir 8uali3ed form 1:hen in the commission of the crime* advanta5e was ta7en by the ofender of his public position* the penalty to be imposed shall be in its ma3imum Lof deathM re5ardless of miti5atin5 circumstances. 6he ma3imum penalty Lof deathM shall be imposed if the ofense was committed by any person who belon5s to an or5aniDedHsyndicated crime 5roup. An or5aniDedHsyndicated crime 5roup means a 5roup of two or more persons collaboratin5* confederatin5 or mutually helpin5 one another for purposes of 5ain in the commission of any crime.1 (Sec. %=. include those in #.A. 9$)& (People v. Jche5aray. TWO INSTANCES W(EN DEAT( MA- BE IMPOSED W(EN CONSTRUED UNDER RA A6@5 6hus* construin5 #.A. <o. 9)&' in pari materia with the #evised Penal /ode* death may be imposed when ($. a55ravatin5 circumstances attend the commission of the crime as to ma7e 73 operative the provision of the #evised Penal /ode re5ardin5 the imposition of the ma3imum penalty! and (%. other circumstances attend the commission of the crime which indubitably characteriDe the same as heinous in contemplation of #.A. <o. 9)&' that >ustify the imposition of the death* albeit the imposable penalty is reclusion perpetua to death. (People v. Jche5aray. W(- DEAT( PENALT- IS IMPOSED ON (EINOUS CRIMES 6he death penalty is imposed in heinous crimes because the perpetrators thereof have committed unfor5ivably e3ecrable acts that have so deeply dehumaniDed a person or criminal acts with severely destructive efects on the national eforts to lift the masses from ab>ect poverty throu5h or5aniDed 5overnmental strate5ies based on a disciplined and honest citiDenry* and because they have so caused irreparable and substantial in>ury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of 5overnment* they must be permanently prevented from doin5 so. At any rate* this court has no doubts as to the innate heinousness of the crime of rape* as we have held in the case of People v. /ristobal. (People v. Jche5aray. W(- RAPE IS A (EINOUS CRIME 1#ape is the forcible violation of the se3ual intimacy of another person. It does in>ury to >ustice and charity. #ape deeply wounds the respect* freedom* and physical and moral inte5rity to which every person has a ri5ht. It causes 5rave dama5e 74 that can mar7 the victim for life. It is always an intrinsically evil act . . . an outra5e upon decency and di5nity that hurts not only the victim but the society itself.1 (People v. Jche5aray. W(- CAPITAL PUNIS(MENT S(OULD NOT BE ABOLIS(ED 1/apital punishment ou5ht not to be abolished solely because it is substantially repulsive* if infnitely less repulsive than the acts which invo7e it. Ket the mountin5 Deal for its abolition seems to arise from a sentimentaliDed hyperfastidiousness that see7s to e3pun5e from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain suFcient stren5th of character and will to do the unpleasant in order that tranuillity and civility may rule comprehensively. It seems very li7ely that capital punishment is a . . . necessary* if limited factor in that maintenance of social tranuillity and ou5ht to be retained on this 5round. 6o do otherwise is to indul5e in the lu3ury of permittin5 a sense of false delicacy to rei5n over the necessity of social survival.1 (People v. Jche5aray. RA 6%2@ AS AMENDED B- RA A6@5 W(EN PENALT- IN NEW LAW NOT )A,ORABLE TO ACCUSED IT S(OULD BE RETAINED Appellant in this case was convicted and meted the penalty of life imprisonment and fne of twenty thousand pesos under #A )8%& for transportin5 more or less ) 7ilos of mari>uana on +uly $''(. #A 9)&'* which too7 efect on Cecember =$H'=* amended the provisions of #A )8%&* increasin5 the imposable penalty for the sale or transport of 9&( 75 5rams or more of mari>uana to reclusion perpetua to death and a fne ran5in5 from fve hundred thousand pesos to ten million pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under the #P/ and has a hi5her amount of fne which in accordance with A#6 %% of the same code should not be 5iven retroactive efect. 6he court* therefore* fnds and so holds that the penalty of life imprisonment and fne in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. (PP v /arreon* $%H'H'9. COURTS S(OULD NOT BE CONCERNED ABOUT WISDOM! E))ICAC- OR MORALIT- O) LAWS It is a well settled rule that the courts are not concerned with the wisdom* eFcacy or morality of laws. 6hat uestion falls e3clusively within the province of the Le5islature which enacts them and the /hief J3ecutive who approves or vetoes them. 6he only function of the >udiciary is to interpret the laws and* if not in disharmony with the /onstitution* to apply them. And for the 5uidance of the members of the >udiciary we feel it incumbent upon us to state that while they as citiDens or as >ud5es may re5ard a certain law as harsh* unwise or morally wron5* and may recommend to the authority or department concerned* its amendment* modifcation* or repeal* still* as lon5 as said law is in force* they must apply it and 5ive it efect as decreed by the law-ma7in5 body. (People v. Ieneracion. 76 REASON )OR DURATION O) RECLUSION PERPETUA O) K3 OR %3 -EARS 6he imputed duration of thirty (=(. years for reclusion perpetua* therefore* is only to serve as the basis for determinin5 the convict4s eli5ibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Lucas. ROBBER- WIT( (OMICIDE! NUMBER O) PERSONS IILLED DOES NOT ALTER C(ARACTERI1ATION O) T(E O))ENSE BUT CAN BE APPRECIATED AS AGGRA,ATING CIRCUMSTANCE :hile the number of persons 7illed does not alter the characteriDation of the ofense as robbery with homicide* the multiplicity of the victims slain should have been appreciated as an a55ravatin5 circumstance. 6his would preclude an anomalous situation where* from the standpoint of the 5ravity of the ofense* robbery with one 7illin5 would be treated in the same way that robbery with multiple 7illin5s would be. (People I. 6imple. ROBBER- WIT( (OMICIDE AND ROBBER- WIT( RAPE+ PRO,ISION O) ARTICLE 25% O) T(E RE,ISED PENAL CODE AS AMENDED B- REPUBLIC ACT A6@5 CANNOT BE APPLIED RETROACTI,EL-+ CASE AT BAR. 2nder Article %'8 ($. of the #evised Penal /ode* robbery with homicide is punishable by reclusion perpetua to death. In view* however* of the frst para5raph of Section $'* Article III of the 77 $'-9 /onstitution* which provides thatG 1Sec. $'. ($. J3cessive fnes shall not be imposed* nor cruel* de5radin5 or inhuman punishment inNicted. <either shall death penalty be imposed* unless* for compellin5 reasons involvin5 heinous crimes* the /on5ress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua1 (Jmphasis supplied. only the penalty of reclusion perpetua could be imposed by the trial court. Aence* the attended a55ravatin5 circumstances in this case had no impact upon the determination of the proper penalty by the trial court. By #epublic Act <o. 9)&' (efective =$ Cecember $''=.* /on5ress re-imposed the death penalty for certain heinous crimes* includin5 robbery with homicide and robbery with rape. By the same statute* Article %'8 of the #evised Penal /ode was amended to read as followsG 1Any person 5uilty of robbery with the use of violence a5ainst or intimidation on any person shall suferG $. 6he penalty of reclusion perpetua to death* when by reason or on occasion of the robbery* the crime of homicide shall have been committed* or when the robbery shall have been accompanied by rape or intentional mutilation or arson. . . . (Jmphasis supplied. Article %'8 of the #evised Penal /ode* as amended by #.A. <o. 9)&'* however* cannot be applied retroactively in this case. 6o do so would be to sub>ect the appellant to the death penalty which could not have been constitutionally imposed by the court a uo under the law in efect at the time of the commission of the ofenses. (People v. 6imple. A PERSON MA- BE CON,ICTED O) GRA,E COERCION ALT(OUG( T(E C(ARGE IS IIDNAPPING 78 6he Information* dated ?arch %8* $''%* fled a5ainst Astor5a contains suFcient alle5ations constitutin5 5rave coercion* the elements of which were suFciently proved by the prosecution. Aence* a conviction for said crime is appropriate under Section 8* #ule $%( of the $'-- #ules on /riminal Procedure. (People -vs- Astor5a. ELEMENTS O) GRA,E COERCION "rave /oercion or coaccion #rave has three elementsG a.6hat any person is prevented by another from doin5 somethin5 not prohibited by law* or compelled to do somethin5 a5ainst his or her will* be it ri5ht or wron5! b.6hat the prevention or compulsion is efected by violence* either by material force or such a display of it as would produce intimidation and* conseuently* control over the will of the ofended party! and c. that the person who restrains the will and liberty of another has no ri5ht to do so or* in other words* that the restraint is not made under authority of a law or in the e3ercise of any lawful ri5ht. (People -vs- Astor5a. ACTUAL DETENTION OR LOCIING UP! AN ESSENTIAL ELEMENT O) IIDNAPPING 79 Actual detention or 1loc7in5 up1 is the primary element of 7idnappin5. If the evidence does not adeuately prove this element* the accused cannot be held liable for 7idnappin5. In the present case* the prosecution merely proved that appellant forcibly dra55ed the victim toward a place only he 7new. 6here bein5 no actual detention or confnement* the appellant may be convicted only of 5rave coercion. (People -vs- Astor5a! ""# $$(('9* Cecember %%* $''9. DANGEROUS DRUGS ACT O) $5A2 BR.A. NO. 6%2@C+ SECTIONS $@ AND 23 T(EREO) AS AMENDED B- R.A. NO. A6@5. In People vs. Martin /imon y /un#a* (".#. <o. '=(%-.* decided on %' +uly $''8* this /ourt ruled as followsG ($. Provisions of #.A. <o. 9)&' which are favorable to the accused shall be 5iven retroactive efect pursuant to Article %% of the #evised Penal /ode. (%. :here the uantity of the dan5erous dru5 involved is less than the uantities stated in the frst para5raph of Section %( of #.A. <o. )8%&* the penalty to be imposed shall ran5e from prision correccional to reclusion temporal* and not reclusion perpetua. 6he reason is that there is an overlappin5 error* probably throu5h oversi5ht in the draftin5* in the provisions on the penalty of reclusion perpetua as shown by its dual imposition* i.e.* as the minimum of the penalty where the uantity of the dan5erous dru5s involved is more than those specifed in the frst para5raph of the amended Section %( and also as the ma3imum of the penalty where the uantity of the dan5erous dru5s involved is less than those so specifed in the frst para5raph. (=. /onsiderin5 that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the uantity of the 80 dan5erous dru5s involved* each of the component penalties thereof 0 prision correccional prision mayor and reclusion temporal 0 shall be considered as a principal imposable penalty dependin5 on the uantity* such that the uantity of the dru5s enumerated in the second para5raph should then be divided into three* with the resultin5 uotient* and double or treble the same* as the bases for determinin5 the appropriate component penalty. (8. 6he modifyin5 circumstances in the #evised Penal /ode may be appreciated to determine the proper period of the correspondin5 imposable penalty or even to efect its reduction by one or more de5rees! provided* however* that in no case should such 5raduation of penalties reduce the imposable penalty lower than prision correccional. (&. In appropriate instances* the Indeterminate Sentence Law shall be applied and considerin5 that #.A. <o. 9)&' has unualifedly adopted the penalties under the #evised Penal /ode with their technical si5nifcation and efects* then the crimes under the Can5erous Cru5s Act shall now be considered as crimes punished by the #evised Penal /ode! hence* pursuant to Section $ of the Indeterminate Sentence Law* the indeterminate penalty which may be imposed shall be one whose ma3imum shall be within the ran5e of the imposable penalty and whose minimum shall be within the ran5e of the penalty ne3t lower in de5ree to the imposable penalty. :ith the fore5oin5 as our touchstones* and it appearin5 that the uantity of the shabu recovered from the accused in this case is only (.('&- 5ram* the imposable penalty under the second para5raph of Section %( of #.A. <o. )8%&* as further amended by Section $9 of #.A. <o. 9)&'* should be prision correccional. Applyin5 the Indeterminate Sentence Law* the accused may then be sentenced to sufer an indeterminate penalty ran5in5 from si3 (). months of arresto 81 mayor as minimum to si3 (). years of prision correccional as ma3imum. W(EN T(E)T O) MOTOR ,E(ICLE IS 0UALI)IED T(E)T. BSTRA- DECISIONC In this case* the stolen property is a Kamaha #S motorcycle bearin5 plate no. /Q-%'=% with sidecar valued at P=(*(((.((. Since this value remains undisputed* we accept this amount for the purpose of determinin5 the imposable penalty. In simple theft* such amount carries the correspondin5 penalty of prision mayor in its minimum and medium periods to be imposed in the ma3imum period. /onsiderin5 that the penalty for ualifed theft is two de5rees hi5her than that provided for simple theft* the penalty of prision mayor in its minimum and medium periods must be raised by two de5rees. 6hus* the penalty prescribed for the ofense committed of ualifed theft of motor vehicle is reclusion temporal in its medium and ma3imum periods to be imposed in its ma3imum period. (PP -vs- Ricardo Dela Cru- alias Pa*id Manuel dela Cru- alias Pa*id Danilo Dela Cru- and Jo%n Doe alias ,enry 0alinta*a= and >rlando Padilla y Mendo-a (ccused. R!C(RD> D"L( CR?@ alias Pa*id (ccused-(ppellant. G.R. 'o. 149<6; Aeb. 46 4BBB & PERIOD W(EN BAIL IS E))ECTI,E A)TER CON,ICTION IN LOWER COURTS 6he bail bond that the accused previously posted can only be used durin5 the $&-day period to appeal (#ule $%%. and not durin5 the entire period of appeal. 6his is consistent with Section %(a. of #ule $$8 which provides that the bail 1shall 82 be efective upon approval and remain in force at all sta5es of the case* unless sooner cancelled* until the promul5ation of the >ud5ment of the #e5ional 6rial /ourt* irrespective of whether the case was ori5inally fled in or appealed to it.1 6his amendment* introduced by S/ Administrative /ircular $%-'8 is a departure from the old rules which then provided that bail shall be efective and remain in force at all sta5es of the case until its full determination* and thus even durin5 the period of appeal. ?oreover* under the present rule* for the accused to continue his provisional liberty on the same bail bond durin5 the period to appeal* consent of the bondsman is necessary. ;rom the record* it appears that the bondsman* A;IS/@ Insurance /orporation* fled a motion in the trial court on +anuary ()* $'-9 for the cancellation of petitioners4 bail bond for the latter4s failure to renew the same upon its e3piration. @btainin5 the consent of the bondsman was* thus* foreclosed. $(niceto /abbun Ma#uddatu and Laureana /abbun Ma#uddatu Petitioners -vs- ,onorable C>?R+ >A (PP"(L/ $Aourt% Division and People of t%e P%ilippines Respondents. G.R. 'o. 16<9<< Aeb. 46 4BBB& W(EN ABUSE O) SUPERIOR STRENGT( IS PRESENT. :e fnd* however* that the a55ravatin5 circumstance of abuse of superior stren5th attended the 7illin5. 16o appreciate abuse of superior stren5th as an a55ravatin5 circumstance* what should be considered is not that there were three* four or more assailants of one victim* but whether the a55ressors too7 advanta5e of their combined stren5th in order to consummate the 83 ofense. It is therefore necessary to show that the attac7ers cooperated in such a way as to secure advanta5e of their superiority in stren5th.1 In this case* appellants and their companions purposely 5athered to5ether and armed themselves to ta7e advanta5e of their combined stren5th to ensure that #eynaldo Canao would be able to 7ill the victim without any interference from other bystanders.
Aowever* not havin5 been alle5ed in the Information* abuse of superior stren5th can only be considered as a 5eneric a55ravatin5 circumstance. $PP -vs- C!"L!+> 0?L?R(' ) R(M!R"@ and L">'(RD> C(L"'@?"L( ) C(/+!LL> (ccused- (ppellants. G.R. 'o. 116<7B Aeb. 19 4BBB& USE O) MOTOR ,E(ICLE AS 0UALI)-ING AGGRA,ATING CIRCUMSTANCE 6he use of a motor vehicle ualifes the 7illin5 to murder if the same was perpetrated by means thereof. $PP -vs- +,(D">/ "'G?!+> Defendant- (ppellant. G.R. 14DD14 Aeb. 4D 4BBB& ELEMENTS O) E,IDENT PREMEDITATION (1) 6he time when the ofender determined to commit the crime! (2) an act manifestly indicatin5 that the ofender had clun5 to his determination! and (=. suFcient lapse of time between the determination and the e3ecution to allow the ofender to reNect on the conseuences of his act. 84 $PP -vs- R>G"L!> G(L(M (ccused-(ppellant. G.R. 'o. 117:7B Aeb. 19 4BBB& W(EN NIG(TTIME IS AGGRA,ATING <i5httime as an a55ravatin5 circumstance must have specially been sou5ht to consummate the crime* facilitate its success or prevent reco5nition of the felon. $PP -vs- C>'/+('C!> M"R!'> and (R'?LA> /!"RC> (ccused-(ppellants. G.R. 'o. 16464< Dec. 1: 1<<<& TREAC(ER- IS PRESENT ON SECOND STAGE O) ACCIDENT 6here is treachery when the ofender commits any of the crimes a5ainst the person employin5 means* methods or forms in the e3ecution thereof which tend directly and specifcally to insure its e3ecution without ris7 to himself arisin5 form the defense which the ofended party mi5ht ma7e. As earlier mentioned* the deceased was already rendered completely helpless and defenseless when he was stabbed by Pedro Lumacan5. Althou5h he was able to run a short distance* he had absolutely no means of defendin5 himself from the three brothers who were armed with huntin5 7nives* bent on fnishin5 him of. 6he wounded victim had not even so much as a stic7 or a stone to parry of their blows. It should be noted* however* at this point that inasmuch as treachery has been appreciated as a ualifyin5 circumstance* abuse of superior stren5th should not have been considered separately inasmuch as it is absorbed in treachery. $PP -vs- P"DR> L?M(C('G P(0L> L?M(C('G E D>M!'G> L?M(C('G (ccused-(ppellants. G.R. 'o. 14B4D6 Aeb. 1 4BBB& 85 W(- DWELLING IS AGGRA,ATING 16he home is a sort of sacred place for its owner. Ae who 5oes to another4s house to slander him* hurt him or do him wron5* is more 5uilty than he who ofends him elsewhere.1 $PP -vs- J>/" E '"/+>R 0iF(/ (ccused- (ppellant. G.R. 'o. 141;6B Dec. D 1<<<& E,EN )RONTAL ATTACI WOULD AMOUNT TO TREAC(ER- ?oreover* ?ilyn #uales also testifed that the 7nife used by accused was hidden from view. 6hus* Isabel #uales was not prepared for such a violent attac7* especially considerin5 that* at the time* she was unarmed and was burdened with a lar5e bas7et flled with about si3 7ilos of corn and dried fsh han5in5 from her shoulders and thus* could not have possibly warded of the blow or run away from her assailant. Althou5h ?ilyn #uales described the attac7 havin5 been frontal* this does not ne5ate treachery since the essence of treachery is the suddenness and une3pectedness of the attac7* 5ivin5 the victim no opportunity to repel it or ofer any defense of his person. 6hus* we hold that the trial court correctly appreciated the ualifyin5 circumstance of treachery. $PP -vs- C>R'"L!( /?"L+> alias G"L)G alias GR>G"L!( /?"L+>G G.R. 'o. 14;B<: Aeb. D 4BBB& DATE O) E))ECTI,IT- O) RA A6@5! ETC. #epublic Act <o. 9)&' too7 efect on =$ Cecember $''=. Accordin5ly* the said law only 86 applies to crimes defned therein* includin5 rape* which were committed after its efectivity. It cannot be applied retroactively because* to do so* would 5o a5ainst the constitutional prohibition on ex post facto la*s. ;or this reason* in order for the death penalty to be imposable* it is incumbent upon the prosecution to establish beyond a shadow of doubt that the case of the accused is already covered by #epublic Act <o. 9)&'. AN E* POST )ACTO LAW (AS BEEN DE)INED AS ONE W(IC( a.ma7es criminal an act before the passa5e of the law and which was innocent when done* and punishes such an act! b.a55ravate a crime* or ma7es it 5reater than it was* when committed! c. chan5es the punishment and inNicts a 5reater punishment than the law anne3ed to the crime when committed! d.alters the le5al rules of evidence* and authoriDes conviction upon less or diferent testimony than the law reuired at the time of the commission of the ofense! e.assumin5 to re5ulate civil ri5hts and remedies only* in efect imposes penalty or deprivation of a ri5ht for somethin5 which when done was lawful! and f. deprives person accused of a crime of some lawful protection to which he has become entitled* such as the protection of a former conviction or acuittal* or a proclamation of amnesty. 87 $PP -vs- C,(R!+> !/?G M(G0('?( G.R. 'o. 14DDDD Dec. 6 1<<<& 88 Pre7i:enial De"ree No. $&25 PENALI1ING OBSTRUCTION O) APPRE(ENSION AND PROSECUTION O) CRIMINAL O))ENDERS :hereas* crime and violence continue to proliferate despite the sustained vi5orous eforts of the 5overnment to efectively contain them! :hereas* to discoura5e public indiference or apathy towards the apprehension and prosecution of criminal ofenders* it is necessary to penaliDe acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal ofenders! <@:* 6AJ#J;@#J* I* ;J#CI<A<C J. ?A#/@S* President of the Philippines* by virtue of the powers vested in me by law do hereby decree and order the followin5G SECTION $. 6he penalty of prision correccional in its ma3imum period* or a fne ran5in5 from $*((( to )*((( pesos* or both* shall be imposed upon any person who 7nowin5ly or willfully obstructs* impedes* frustrates or delays the apprehension of suspects and the investi5ation and prosecution of criminal cases by committin5 any of the followin5 actsG (a. Preventin5 witnesses from testifyin5 in any criminal proceedin5 or from reportin5 the commission of any ofense or the identity of any ofenderHs by means of bribery* misrepresentation* deceit* intimidation* force or threats! (b. Alterin5* destroyin5* suppressin5 or concealin5 any paper* record* document* or ob>ect with intent to impair its verity* authenticity* le5ibility* availability* or admissibility as evidence in any 89 investi5ation of or oFcial proceedin5s in criminal cases* or to be used in the investi5ation of* or oFcial proceedin5s in* criminal cases! (c. Aarborin5 or concealin5* or facilitatin5 the escape of* any person he 7nows* or has reasonable 5round to believe or suspect* has committed any ofense under e3istin5 penal laws in order to prevent his arrest* prosecution and conviction! (d. Publicly usin5 a fctitious name for the purpose of concealin5 a crime* evadin5 prosecution or the e3ecution of a >ud5ment* or concealin5 his true name and other personal circumstances for the same purpose or purposes! (e. Celayin5 the prosecution of criminal cases by obstructin5 the service of process or court orders or disturbin5 proceedin5s in the fscals, oFces* in 6anodbayan* or in the courts! (f. ?a7in5* presentin5 or usin5 any record* document* paper or ob>ect with 7nowled5e of its falsity and with intent to afect the course or outcome of the investi5ation of* or oFcial proceedin5s in* criminal cases! (5. Solicitin5* acceptin5* or a5reein5 to accept any beneft in consideration of abstainin5 from* discontinuin5* or impedin5 the prosecution of a criminal ofender! (h. 6hreatenin5 directly or indirectly another with the inNiction of any wron5 upon his person* honor or property or that of any immediate member or members of his family in order to prevent a person from appearin5 in the investi5ation of* or oFcial proceedin5s in* criminal cases* or imposin5 a condition* whether lawful or unlawful* in order to prevent a person from appearin5 in the 90 investi5ation of or in oFcial proceedin5s in criminal cases! (i. "ivin5 of false or fabricated information to mislead or prevent the law enforcement a5encies from apprehendin5 the ofender or from protectin5 the life or property of the victim! or fabricatin5 information from the data 5athered in confdence by investi5atin5 authorities for purposes of bac75round information and not for publication and publishin5 or disseminatin5 the same to mislead the investi5ator or the court. If any of the acts mentioned herein is penaliDed by any other law with a hi5her penalty* the hi5her penalty shall be imposed. SEC. 2. If any of the fore5oin5 acts is committed by a public oFcial or employee* he shall* in addition to the penalties provided thereunder* sufer perpetual disualifcation from holdin5 public oFce. SEC. K. 6his Cecree shall ta7e efect immediately. Cone in the /ity of ?anila* this $)th day of +anuary* in the year of @ur Lord* nineteen hundred and ei5hty-one. W#a i7 #e 7ae: 8ur8o7e o; PD $&254 As stated in the law* its purpose is to discoura5e public indiference or apathy towards the apprehension and prosecution of criminal ofenders* it is necessary to penaliDe acts which obstruct or frustrate or tend to obstruct or frustrate the successful apprehension and prosecution of criminal ofenders. 91 W#a i7 #e 8enaly ;or DO<7ru"ion o; Ju7i"eL4 6he penalty is imprisonment* fne or both. Imprisonment ran5es from 8 years* % months and $ day to ) years (prision correccional in its ma3imum period.. 6he fne ran5es from P$*((( V P)*(((. W#o >ay <e "#arge: un:er PD $&254 Any person 0 whether private or public 0 who commits the acts enumerated below may be char5ed with violatin5 PC $-%'. In case a public oFcer is found 5uilty* he shall also sufer perpetual disualifcation from holdin5 public oFce. W#a are #e a"7 8uni7#a<le un:er #i7 la94 6he law covers the followin5 acts of any person who 7nowin5ly or willfully obstructs* impedes* frustrates or delays the apprehension of suspects and the investi5ation and prosecution of criminal casesG a. Preventin5 witnesses from testifyin5 in any criminal proceedin5 or from reportin5 the commission of any ofense or the identity of any ofenderHs by means of bribery* misrepresentation* deceit* intimidation* force or threats. b. Alterin5* destroyin5* suppressin5 or concealin5 any paper* record* document* or ob>ect with intent to impair its verity* authenticity* le5ibility* availability* or admissibility as evidence in any investi5ation of or oFcial proceedin5s in criminal cases* or to be used in the investi5ation of* or oFcial proceedin5s in* criminal cases. c. Aarborin5 or concealin5* or facilitatin5 the escape of* any person he 7nows* or has reasonable 92 5round to believe or suspect* has committed any ofense under e3istin5 penal laws in order to prevent his arrest* prosecution and conviction. d. Publicly usin5 a fctitious name for the purpose of concealin5 a crime* evadin5 prosecution or the e3ecution of a >ud5ment* or concealin5 his true name and other personal circumstances for the same purpose or purposes. e. Celayin5 the prosecution of criminal cases by obstructin5 the service of process or court orders or disturbin5 proceedin5s in the fscals, oFces* in 6anodbayan* or in the courts. f. ?a7in5* presentin5 or usin5 any record* document* paper or ob>ect with 7nowled5e of its falsity and with intent to afect the course or outcome of the investi5ation of* or oFcial proceedin5s in* criminal cases. 5. Solicitin5* acceptin5* or a5reein5 to accept any beneft in consideration of abstainin5 from* discontinuin5* or impedin5 the prosecution of a criminal ofender. h. 6hreatenin5 directly or indirectly another with the inNiction of any wron5 upon his person* honor or property or that of any immediate member or members of his family in order to prevent a person from appearin5 in the investi5ation of* or oFcial proceedin5s in* criminal cases* or imposin5 a condition* whether lawful or unlawful* in order to prevent a person from appearin5 in the investi5ation of or in oFcial proceedin5s in criminal cases. i. "ivin5 of false or fabricated information to mislead or prevent the law enforcement a5encies from apprehendin5 the ofender or from protectin5 93 the life or property of the victim! or fabricatin5 information from the data 5athered in confdence by investi5atin5 authorities for purposes of bac75round information and not for publication and publishin5 or disseminatin5 the same to mislead the investi5ator or the court. W#a are 7o>e o; #e in7an"e7 9#en Eue7ion7 again7 "#arge7 un:er PD $&25 rea"#e: #e Su8re>e Cour4 In Posadas vs. @mbudsman (".#. <o. $=$8'%* %' September %(((.* certain oFcials of the 2niversity of the Philippines (2P. were char5ed for violatin5 PC $-%' (para5raph c above.. 6he 2P oFcers ob>ected to the warrantless arrest of certain students by the <ational Bureau of Investi5ation (<BI.. Accordin5 to the Supreme /ourt* the police had no 5round for the warrantless arrest. 6he 2P @Fcers* therefore* had a ri5ht to prevent the arrest of the students at the time because their attempted arrest was ille5al. 6he Sneed to enforce the law cannot be >ustifed by sacrifcin5 constitutional ri5hts.T In another case* Sen. +uan Ponce Jnrile was char5ed under PC $-%'* for alle5edly accommodatin5 /ol. "re5orio Aonasan by 5ivin5 him food and comfort on $ Cecember $'-' in his house. SRnowin5 that /olonel Aonasan is a fu5itive from >ustice* Sen. Jnrile alle5edly did not do anythin5 to have Aonasan arrested or apprehended.T 6he Supreme /ourt ruled that Sen. Jnrile could not be separately char5ed under PC $-%'* as this is absorbed in the char5e of rebellion already fled a5ainst Sen. Jnrile. 94 "AN,ERO*( "R*, A+T O- 2002 (Re./b0&c Acts No. #1$5) DE)INITIONS O) TERMS +1em&ca0 "&2e3s&on V the sale* distribution* supply or transport of le5itimately imported* in- transit* manufactured or procured controlled precursors and essential chemicals* in diluted* mi3tures or in concentrated form* to any person or entity en5a5ed in the manufacture of any dan5erous dru5* and shall include pac7a5in5* repac7a5in5* labelin5* relabelin5 or concealment of such transaction throu5h fraud* destruction of documents* fraudulent use of permits* misdeclaration* use of front companies or mail fraud. +ont3o00ed "e0&2e3y V 6he investi5ative techniue of allowin5 an unlawful or suspect consi5nment of any dan5erous dru5 andHor controlled precursor and essential chemical* euipment or paraphernalia* or property believed to be derived directly or indirectly from any ofense* to pass into* throu5h or out of the country under the supervision of any unauthoriDed oFcer* with a view to 5atherin5 evidence to identify any person involved in any dan5erous dru5 related ofense* or to facilitate prosecution of that ofense. +ont3o00ed P3ec/3so3 and Essent&a0 +1em&ca0s V Includes those listed in 6ables I and II of the $'-- 2< /onvention A5ainst Illicit 6raFc in <arcotic Cru5s and Psychotropic Substances as enumerated in the attached anne3* which is an inte5ral part of this Act. "3/4 "e.endence V As based on the :orld Aealth @r5aniDation defnition* it is a cluster of 95 physiolo5ical* behavioral and co5nitive phenomena of variable intensity* in which the use of psychoactive dru5 ta7es on a hi5h priority thereby involvin5* amon5 others* a stron5 desire or a sense of compulsion to ta7e the substance and the diFculties in controllin5 substance-ta7in5 behavior in terms of its onset* termination* or levels of use. "3/4 (ynd&cate V Any or5aniDed 5roup of two (%. or more persons formin5 or >oinin5 to5ether with the intention of committin5 any ofense prescribed under this Act. I00e4a0 T3a5c6&n4 V 6he ille5al cultivation* culture* delivery* administration* dispensation* manufacture* sale* tradin5* transportation* distribution* importation* e3portation* and possession of any dan5erous dru5 andHor controlled precursor and essential chemical. P3otecto37+odd0e3 V Any person who 7nowin5ly and willfully consents to the unlawful acts provided for in this Act and uses hisHher inNuence* power or position in shieldin5* harborin5* screenin5 or facilitatin5 the escape of any person heHshe 7nows* or has reasonable 5round to believe on or suspects* has violated the provision of this Act in order to prevent the arrest* prosecution and conviction of the violator. P/s1e3 V Any person who sells* trades* administers* dispenses* delivers* or 5ives away to another* on any terms whatsoever* or distributes* dispatches in transit or transports dan5erous dru5s or who acts as a bro7er in any of such transaction* in violation of this Act. P0ant&n4 o8 e2&dence V the willful act by any person of maliciously and surreptitiously insertin5* placin5* addin5 or attachin5 directly or indirectly* 96 throu5h any overt or covert act whatever uantity of any dan5erous dru5 andHor controlled precursor and essential chemical in the person* house* efects or in the immediate vicinity of an innocent individual for the purpose of implicatin5* incriminatin5* or imputin5 the commission of any violation of this Act. W#a are #e 7igni?"an Pro=i7ion7 in R.A. 6%2@ #a #a=e <een "#ange:4 $.2nder this Act there is no more distinction between prohibited dru5 and re5ulated dru5s andHor controlled precursors and essential chemicals enumerated in 6ables I and II of the $'-- 2< /onvention a5ainst Illicit 6raFc in <arcotic Cru5s and Psychotropic Substances. %.6he penalties provided by #.A. 9)&' was chan5ed * adoptin5 partially the penalties in #.A. )8%&. =.In plantin5 evidence any person now maybe held liable. Before* only law enforcement a5ents. 8.6he provisions of the #evised Penal /ode have no suppletory efect e3cept for minors who may be sentenced to reclusion perpatua. W#a are #e ne9 'in:7 o; :rug7 #a are in"lu:e: in R.A. 5$6@4 ?ethylenedio3ymethamphetamine (?C?A. or commonly 7nown as SJcstasyT* or its any other name which refers to the dru5s havin5 such chemical composition* includin5 any of its isomers 97 or derivatives in any form. Parametho3yamphetamine (P?A.* 6rimetho3yamphetamine (6?A.* lyser5ic acid diethylamine (LSC.* 5amma hydro3ybutyrate ("AB. and those similarly desi5ned or newly introduced dru5s and their derivatives* without havin5 any therapeutic value or if the uantity possessed is far beyond therapeutic reuirement* as determined and promul5ated by the Board in accordance to Section '=* Art OI of this Act of #.A. '$)&. ACTS PUNIS(ABLE UNDER T(E LAW $. Importation of any dan5erous dru5* re5ardless of the uantity and purity involved* includin5 any and all species of opium poppy or any part thereof or substances derived thereform even for Noral* decorative and culinary purposes. %. Importation of any controlled precursor and essential chemical. =. Importation of any dan5erous dru5 andHor controlled precursor and essential chemical throu5h the use of a diplomatic passport* diplomatic facilities or any other means involvin5 hisHher oFcial status intended to facilitate the unlawful entry. 8. @r5aniDin5* mana5in5* or actin5 as a SfnancierT of any of the ille5al activities penaliDed under Section 8 of the Law. &. Actin5 as SprotectorHcoddlerT of anyone who violates Section 8 of the Law. ). Sale* tradin5* administration* dispensation* distribution and transportation of dan5erous dru5s* re5ardless of uantity and purity involved* or actin5 as a bro7er in any of such transactions. 98 9. Sale* tradin5* administration* dispensation* distribution and transportation of any controlled precursor and essential chemical* or actin5 as a bro7er in such transaction. -. 2se by dru5 pushers of minors or mentally incapacitated individuals as runners* couriers and messen5ers* or in any other capacity directly connected to the trade of dan5erous dru5s andHor controlled precursor and chemicals. '. Actin5 as a protectorHcoddler of any violator of the provision of Sec. &. $(. ?aintenance of a Cen* Cive or #esort where any dan5erous dru5 is used or sold in any form. 11. ?aintenance of a Cen* Cive or #esort where any controlled precursors and essential chemical is used or sold in any form. $%. Actin5 as SprotectorHcoddlerT of a maintainer of a Cen* Cive* or #esort $=. Jmployees and Iisitors of a Cen* Crive* or #esort $8. ?anufacture of Can5erous Cru5s andHor /ontrolled Precursors and Jssential /hemicals $&. Actin5 as a protector or coddler of any violator of Sec. - $). Ille5al /hemical Civersion of /ontrolled Precursor and Jssential /hemicals. $9. ?anufacture or Celivery of Juipment* Instrument* Apparatus* and other Paraphernalia for Can5erous Cru5s andHor /ontrolled Precursors and Jssential /hemicals. $-. Possession of Cru5. $'. Possession of euipment* Instrument* Apparatus* and @ther Paraphernalia for Can5erous Cru5s %(. Possession of Can5erous Cru5s Curin5 Parties* Social "atherin5 or ?eetin5s. 99 %$. Possession of Juipment* Instrument* Apparatus and @ther Paraphernalia for Can5erous Cru5s durin5 Parties* Social "atherin5 or ?eetin5s. %%. 2se of Can5erous Cru5s. %=. /ultivation or /ulture of Plants /lassifed as Can5erous Cru5s or are Sources thereof. %8. ?aintenance and 7eepin5 of @ri5inal #ecords of 6ransaction on Can5erous Cru5s andHor /ontrolled Precursors and Jssential /hemicals %&. 2nnecessary Prescription of Can5erous Cru5s %). 2nlawful Prescription of Can5erous Cru5s %9. Attempt or /onspiracy to commit the followin5 unlawful actsG (a. Importation of any dan5erous dru5s andHor controlled precursor and essential chemical! (b. Sale* tradin5* administration* dispensation* delivery* distribution* and transportation of any dan5erous dru5 andHor controlled precursor and essential chemical! (c. ?aintenance of a den* dive* or resort where dan5erous dru5s is used in any form! (d. ?anufacture of any dan5erous dru5 andHor controlled precursor and essential chemical! and (e. /ultivation or culture of plants which are sources of dan5erous dru5s. CRIMINAL LIABILIT- O) ALIENS! O))ICERS O) PARTNERS(IP! CORPORATION! ASSOCIATIONS! OR OT(ER JURIDIUCAL ENTITIES $.In addition to the penalties prescribed in the unlawful act committed* any alien who violates such provisions of the Law* after service of sentences* shall be deported immediately 100 without further proceedin5s* unless the penalty is death. %.In case the violation of the Law is committed by a partnership* corporation* association or any >uridical entity* the partner* president* director* mana5er* trustee* estate administrator* or oFcer who consents to or 7nowin5ly tolerates such violation shall be held criminally liable as co-principal. =.6he penalty provided for the ofense under the Law shall be imposed upon the partner* president* director* mana5er* trustee* estate administrator* or oFcer who 7nowin5ly authoriDes* tolerates* or consents to the use of a vehicle* vessel* aircraft* euipment or other facility as an instrument in the importation* sale* tradin5* administration* dispensation* delivery* distribution* transportation* or manufacture of dan5erous dru5s* or chemical diversion* if such vehicle* aircraft* euipment or other instrument is owned by or under the control or supervision of the partnership* corporation* association or >uridical entity to which they are aFliated. CRIMINAL LIABLIT- O) PUBLIC O))ICERS OR EMPLO-EES $.Any public oFcer or employee who ($. misappropriates* (%. misapplies or (=. fails to account for confscated* seiDed or surrendered dru5s* plant sources of dan5erous dru5s* controlled precursors and essential chemicals* instrumentsHparaphernalia andHor laboratory euipment includin5 the proceeds or properties obtained from the unlawful acts punished under the Law shall be penaliDed with life imprisonment 101 to death and a fne ran5in5 fromP&((*(((.(( to P$(*(((*(((.(( and with perpetual disualifcation from any public oFce (Sec.%9.. %.Any 5overnment oFcial or employee found 5uilty of the unlawful acts punished under the Law shall be imposed the ma3imum penalties provided for the ofense and shall be absolutely perpetually disualifed from holdin5 any public oFce. (Sec. %-.. CRIMINAL LIABILIT- O) ELECTI,E LOCAL OR NATIONAL O))ICIALS W(O BENE)ITS )ROM DRUG TRA))ICIING V whether or not he 7now that it came from dru5s* but the one who 5ave must be convicted frst by fnal >ud5ment. $. Any elective local or national oFcial found to have ($. benefted from the proceeds of the traFc7in5 of dan5erous dru5s as prescribed in the Law* or has (%. received any fnancial or material contributions or donations from natural or >uridical persons found 5uilty of traFc7in5 dan5erous dru5 as prescribed in the law* shall be removed from oFce and perpetually disualifed from holdin5 any elective or appointive positions in the 5overnment* its divisions* subdivisions* and intermediaries* includin5 5overnment-owned or controlled corporations (sec.%9. CRIMINAL LIABILIT- O) PRI,ATE INDI,IDUAL $.Any person found 5uilty of Splantin5T any dan5erous dru5 andHor controlled precursor and essential chemical* re5ardless of uantity and purity* shall be punished with death. (Sec. %'.. 102 %.Any person violatin5 any re5ulation issued by the Can5erous Cru5 Board shall be punished with imprisonment ran5in5 from ) months and $ day to 8 years and a fne ran5in5 from P$(*(((.(( to P&(*(((.(( in addition to the administrative sanction which may be imposed by the Board (Sec. =%.
CRIMINAL LIABILIT- )OR PLANTING O) E,IDENCE Any person who is found 5uilty of plantin5 nay dan5erous dru5 andH or controlled precursor and essential chemicals* re5ardless of uantity and purity* shall sufer the penalty of death. (Sec. %'.. Previously* only law enforcement a5ent maybe held liable (#.A. 9)&'.. ACCESOR- PENALTIES Any person convicted under this Law (#.A.'$)&. shall be disualifed to e3ercise hisHher civil ri5hts such as* but not limited to* the ri5ht of parental authority or 5uardianship* either as to the person or property of any ward* the ri5hts to dispose of such property by any act or any conveyance inter vivos* and political ri5hts such as but not limited to* the ri5ht to vote and be voted for. Such ri5hts shall also be suspended durin5 the pendency of an appeal from such conviction (Sec.=&. AGGRA,ATING CIRCUMSTANCES RUG RELATED CASES $. If the importation or brin5in5 into the Philippines of any dan5erous dru5s andHor 103 controlled precursor and essential chemicals was done throu5h the use of diplomatic passport* diplomatic facilities or any other means involvin5 hisHher oFcial status intended to facilitate the unlawful entry of the same %. 6he sale tradin5* administration* dispensation* delivery* distribution or transportation of any dan5erous dru5 andHor controlled precursor and essential chemical transpired within one hundred ($((. meters from the school =. 6he dru5 pusher use minors or mentally incapacitated individuals as runners* couriers and messen5er* or in any other capacity directly connected to the dan5erous dru5 andHor controlled precursor and essential chemical trade 8. 6he victim of the ofense is a minor or mentally incapacitated individual* or should a dan5erous dru5 andHor controlled precursor and essential chemicals involved in any ofense be the pro3imate cause of death of a victim &. In case the clandestine laboratory is underta7en or established under the followin5 circumstancesG a.. Any phase of the manufacturin5 process was conducted in the presence or with the help of minorHs b.. Any phase of manufacturin5 process was established or underta7en within one hundred ($((. meters of a residential* business* church or school premises. c.. Any clandestine laboratory was secured or protected with booby traps. 104 d.. Any clandestine laboratory was concealed with le5itimate business operations. e.. Any employment of a practitioner* chemical en5ineer* public oFcial or forei5ner. ). In case the person uses a minor or a mentally incapacitated individual to deliver euipment* instrument* apparatus and other paraphernalia use for dan5erous dru5s. 9. Any person found possessin5 any dan5erous dru5 durin5 a party* or a social 5atherin5 or meetin5* or in the pro3imate company of at least two (%. person. -. Possession or havin5 under hisHher control any euipment* instrument* apparatus and other paraphernalia ft of intended for smo7in5* consumin5* administerin5* in>ectin5* in5estin5 or introducin5 any dan5erous dru5 into the body* durin5 parties* social 5atherin5s or meetin5s* or in the pro3imate company of at least two (%. person W(AT ARE T(E PRI,ILEGE NOT A,AILABLE TO ,IOLATOR O) T(IS ACT4 $.Any person char5ed under any provision of this Act re5ardless of the imposable penalty shall not be allowed to avail of the provision on plea- bar5ainin5. %.Any person convicted for dru5 traFc7in5 or pushin5 under this Act* re5ardless of the penalty imposed by the /ourt* cannot avail of the privile5e 5ranted by the Probation Law of P.C. <o. ')-* as amended* e3cept minors who are frst- time ofenders. 105 Noe:- Pendency of appeal suspend the ri5ht of the accused - #i5hts to Self-incrimination do not refer to 5ivin5 blood. IMMUNIT- )ROM PROSECUTION AND PUNIS(MENT Immunity from Prosecution and punishment V <otwithstandin5 the provision of Section $9* #ule $$' of the #evised #ules of /riminal Procedure and the provisions of #epublic Act <o. )'-$ or the :itness Protection* Security and Benefts Act of $''$* any person who has violated Sections 9*$$* $%* $8* $& and $'* Article II of this Act* who voluntarily 5ives information about any violation of Section 8* &* )* -* $= and $)* Article II of this Act as well as any violation of the ofenses mentioned if committed by dru5 syndicate* or of any information leadin5 to the whereabouts* identities and arrest of all or any of the members thereof! and who willin5ly testifes a5ainst such persons as described above* shall be e3empted from the prosecution or punishment for the ofense with reference to which hisHher information of testimony in bar of such prosecution! Provided* that the followin5 condition concurG $.6he information and testimony are necessary for the conviction of the person described above! %.Such information are not yet in the possession of the State! =.Such information and testimony can be corroborated on its material points! 8.6he informant or witness has not been previously convicted of a crime involvin5 moral turpitude* e3cept when there is no other direct evidence available for the State other than the information and testimony of said informant or witness! and 106 &.6he informant or witness shall strictly and faithfully comply without delay* any condition or underta7in5* reduced into writin5* lawfully imposed by the State as further consideration for the 5rant of immunity from prosecution and punishment. Provided furt%er* 6hat this immunity may be en>oyed by such informant or witness who does not appear to be most 5uilty for the ofense with reference to which hisHher information or testimony were 5iven. Provide 3nally* that there is no direct evidence available for the State e3cept for the information and testimony of the said informant or witness. TERMINATION O) T(E GRANT O) IMMUNIT- 6he immunity above-5ranted shall not attach should it turn out subseuently that the information andHor testimony is false* malicious* or made only for the purpose of harassin5* molestin5 or in any way pre>udicin5 the persons described in Section == a5ainst whom such information or testimony is directed. In such case* the informant or witness shall be sub>ect to prosecution and the en>oyment of all ri5hts and benefts previously accorded him under the Law or any other law* decree or order shall be deemed terminated. In case the informant or witness under the Law fails or refuse to testify without >ust cause* and when lawfully obli5es to do so* or should heHshe violate any condition accompanyin5 such immunity as provided above* hisHher immunity shall be removed and heHshe shall be li7ewise be sub>ected to contempt andHor criminal prosecution* as the case may be and the en>oyment of all ri5hts and 107 benefts previously accorded him under the Law or in any other law* decree or order shall be deemed terminated. (Sec =8.. In case the informant or witness referred to under the Law falls under the applicability of Section =8* such individual cannot avail of the provision under Article IIII of the Law. PERSONHS W(O ARE SUBJECT TO T(E MANDATOR- DRUG TESTING a. Applicants for driver,s license V no driver,s license shall be issued or renewed to nay person unless heHshe presents a certifcation that heHshe has under5one a mandatory dru5 test and indicatin5 thereon that heHshe is free from the use of dan5erous dru5s. b. Applicants for frearm,s license and permit to carry frearms outside of residence. V All applicants for frearms license and permit to carry frearms outside of residence shall under5o a mandatory dru5 test to ensure that they are free from the use of dan5erous dru5s! Provided 6hat all persons who by the nature of their profession carry frearms shall under5o dru5 testin5! c. @Fcers and employees of public and private oFces. V @Fcers and employees of public and private oFces* whether domestic or overseas* shall be sub>ected to under5o a random dru5 test as contained in the company,s wor7 unless and re5ulation* which shall be borne by the employer* for purposes of reducin5 the ris7 in the wor7place. Any oFcer or employee found positive for the sue of dan5erous dru5 shall be dealt with administratively which shall be a 5round for suspension or termination* sub>ect to 108 the provision Article %-% of the Labor /ode and pertinent provisions of the /ivil Service Law. d. @Fcers and members of the military* police and other law enforcement a5encies. V @Fcers and members of the military* police and other law enforcement a5encies shall under5o an annual mandatory dru5 test. e.All persons char5ed before the prosecutor,s oFce with a criminal ofense havin5 an imposable penalty of imprisonment of not less than si3 (). years and one ($. day shall have under5o a mandatory dru5 test. f. All candidates for public oFce whether appointed or elected both in the national or local 5overnment shall under5o a mandatory dru5 test. CON)IDENTIALIT- O) RECORDS UNDER T(E COMPULSAR- SUBMISSION PROGRAM 6he records of a dru5 dependent who was rehabilitated and dischar5ed from the /enter under the compulsory submission pro5ram* or who was char5ed for violation of Section $& of this Act* shall be covered by Section )( of this Act (#.A. '$)&.. Aowever* the record of a dru5 dependant who was not rehabilitated* or who escaped but did not surrender himselfHherself within the prescribed period* shall be forwarded to the court and their use shall be determined by the court* ta7in5 into consideration public interest and the welfare of the dru5 dependant $/ec. ;7& DISC(ARGED A)TER COMPLIANCE WIT( CONDITIONS O) SUSPENDED SENTENCE O) A )IRST.TIME MINOR O))ENDER 109 If the accused frst time minor ofender under suspended sentence complies with the applicable rules and re5ulation of the Board* includin5 confnement in a /enter* the court* upon a favorable recommendation of the Board for a fnal dischar5e of the accused* shall dischar5e the accused and dismiss all proceedin5s. 2pon the dismissal of the proceedin5s a5ainst the accused* the court shall enter an order to e3pun5e all oFcial records* other than the confdential record to be retained by the C@+ relatin5 to the case. Such an order* which shall be 7ept confdential* shall restore the accused to hisHher status prior to the case. AeHshe shall not be held thereafter to be 5uilty of per>ury or of concealment or misrepresentation by reason of hisHher failure to ac7nowled5e the case or recite any fact related therto in response to any inuiry madeof him for any purpose $/ec. ;:& T(E DANGEROUS DRUGS BOARD AND P(ILIPPINE DRUG EN)ORCEMENT AGENC- T1e "an4e3o/s "3/4 Boa3d A. )un"ion 6he Can5erous Cru5 Board shall be the policy- ma7in5 and strate5y formulatin5 body in the plannin5 and formulation of policies and pro5rams on dru5 prevention and control. (Sec. 99. B. Co>8o7iion 2nder #.A. )8%8 as amended* the Can5erous Cru5 board was composed of seven ex o.cio members as followsG (a. 6he ?inister of Aealth or his representative! (b. the ?inister of +ustice or his representative! (c. 6he ?inister of <ational Cefense or his representative! (d. 6he ?inister of Jducation and /ulture or his representative! (e. 6he ?inister 110 of ;inance or his representative! (f. 6he ?inister of Social Service and Cevelopment or his representative! and (5. 6he ?inister of Local "overnment or his representative (Sec. =& Art. -* #.A. )8%8. 6he ?inister of Aealth shall be the /hairman of the Board and the Cirector of the <ational Bureau of Investi5ation shall be the permanent consultant of the Board. 2nder Section 9- of #.A. '$)&* the membership of the Can5erous Cru5s Board was e3panded to seventeen ($9. members* three (=. of which are permanent members* twelve ($%. shall be in ex o.cio capacity* and the remainin5 two (%. shall be re5ular members. 6he three (=. permanent members* who shall possess At least seven-year trainin5 and e3perience in the feld of dan5erous dru5s and in any of the followin5 feldsG in law* medicine* criminolo5y* psycholo5y or social wor7* shall be appointed by the President of the Philippines. 6he President shall desi5nate a /hairman* who shall have the ran7 of a secretary from amon5 the three (=. permanent members who shall serve for si3 (). years. @f the two (%. other members* who shall have the ran7 of undersecretary* one ($. shall serve for four (8. and the other for two (%. years. 6hereafter* the person appointed to succeed such members shall hold oFce for a term of si3 (). years and until their successors shall have been duly appointed and ualifed. 6he other twelve ($%. members who shall be ex o.cio members of the Board are the followin5G ($. Secretary of the Cepartment of +ustice or hisHher representative! (%. Secretary of the Cepartment of Aealth or hisHher representative! (=. 111 Secretary of the Cepartment of <ational Cefense or hisHher representative! (8. Secretary of the Cepartment of ;inance or hisHher representative! (&. Secretary of the Cepartment of Labor and Jmployment or hisHher representative! (). Secretary of the Cepartment of Interior and Local "overnment or hisHher representative! (9. Secretary of the Cepartment of Social :elfare and Cevelopment or hisHher representative! (-. Secretary of the Cepartment of ;orei5n Afairs or hisHher representative! ('. Secretary of the Cepartment of Jducation or hisHher representative! ($(. /hairman of the /ommission of Ai5her Jducation or hisHher representative! ($$. /hairman of the <ational Kouth /ommission! and ($%. Cirector "eneral of the Philippine Cru5 Jnforcement A5ency. /abinet secretaries who are members of the Board may desi5nate their duly authoriDed and permanent representatives whose ran7 shall in no case be lower than undersecretary. 6he two (%. re5ular members shall be as followsG (a. 6he President of the Inte5rated Bar of the Philippines! and (b. 6he chairman or president of a non- chairman or president of a non- chairman or president of a non-5overnment or5aniDation involved in dan5erous dru5 campai5n to be appointed by the President of the Philippines. T1e P1&0&..&ne "3/4 En8o3cement A4ency (P"EA) A.C )un"ion7 /arry out the provision of the Can5erous Cru5 act of %((%. 6he A5ency shall served as the implementin5 arm of the Can5erous Cru5 Board* and shall be responsible for the eFcient and 112 efective law enforcement of all provisions of any dan5erous dru5 andHor controlled precursor and essential chemicals as provided for in the Law. (Sec. -%.. 6he e3istin5 Secretariat of the <ational Cru5 Law Jnforcement and Prevention /oordinatin5 /enter as created by J3ecutive @rder <o. )$ is hereby modifed and absorbed by the PCJA (Sec. -=* #.A. '$)&. B.C Po9er7 an: Duie7 a. Implement or cause the eFcient and efective implementation of the national dru5 control strate5y formulated by the Board thereby carryin5 out a national dru5 campai5n pro5ram which shall include dru5 law enforcement* control and prevention campai5n with the assistance of concerned 5overnment a5encies! b. 2nderta7e the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involvin5 any dan5erous dru5 andHor controlled precursor and essential chemical and investi5ate all violators and other matters involved in the commission of any crime relative to the use* abuse or traFc7in5 of any dan5erous dru5 andHor controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Cecree <o. $)$'! c. Administer oath* issue subpoena and subpoena duces tecum relative to the conduct of investi5ation involvin5 violation of this Act! d. Arrest and apprehend as well as search all violators and seiDe or confscate* the efects or proceeds of the crime as provided by law and ta7e custody thereof* for this purpose the prosecutors and 113 enforcement a5ents are authoriDed to possess frearms* in accordance with the e3istin5 laws! e. 6a7e char5e and have custody of all dan5erous dru5s andHor controlled precursors and essential chemicals seiDed* confscated or surrendered to any national* provincial or local law enforcement a5ency! if no lon5er needed for purposes of evidence in court. f. Jstablish forensic laboratories in each P<P oFce in every province and city in order to facilitate action on seiDed or confscated dru5s! thereby hastenin5 its destruction without delay! 5. #ecommend to the C@+ the forfeiture of properties and other assets of persons andHor corporations found to be violatin5 the provisions of this Act and in accordance with the pertinent provisions of the Anti- ?oney Launderin5 Act of %((%. h. Prepare for prosecution or cause the flin5 of appropriate criminal and civil cases for violation of laws on dan5erous dru5s* controlled precursors and essential chemicals* and other similar controlled substance* and assist* support and coordinate with other 5overnment a5encies for the proper and efective prosecution of the same! i. ?onitor and if warranted by circumstances* in coordination with the Philippine Postal @Fce and the Bureau of /ustoms* inspect all air car5o pac7a5es* parcels and mails in the central post oFce* which appear from the pac7a5es and address itself to be a possible importation of dan5erous dru5s andHor controlled precursors and essential chemicals* throu5h on-line or cyber shops via the internet or cyberspace! 114 >. /onduct eradication pro5rams to destroy wild or ille5al 5rowth of plants from which dan5erous dru5s may be e3tracted! 7. Initiate and underta7e the formation of a nationwide or5aniDation which shall coordinate and supervise all activities a5ainst dru5 abuse in every province* city* municipality and baran5ay with active and direct participation of all such local 5overnment units and non-5overnmental or5aniDations* includin5 the citiDenry* sub>ect to the provisions of previously formulated pro5rams of action a5ainst dan5erous dru5s! l. Jstablish and maintain a national dru5 intelli5ence system in cooperation with law enforcement a5encies* other 5overnment a5enciesHoFces and local 5overnment units that will assist in its apprehension of bi5 time dru5 lords! m. Jstablished and maintain close coordination* cooperation and lin7a5es with international dru5 control and administration a5encies and or5aniDation and implement the applicable provisions of international conventions and a5reement related to dan5erous dru5s to which the Philippines is a si5natory! n. /reate and maintain an eFcient special enforcement unit to conduct an investi5ation* fle char5es and transmit evidence to the proper court* wherein members of the said unit shall possess suitable and adeuate frearms for their protection in connection with the performance of their duties! Provided 6hat no previous special permit for such possession shall be reuired! o. #euire all 5overnment and private hospitals* clinics* doctors* dentists and 115 other practitioners to submit a report to it* in coordination with the Board* about all dan5erous dru5s andHor controlled precursors and essential chemicals which they have attended to for data and information purposes! p. /oordinate with the Board for the facilitation of the issuance of necessary 5uidelines* rules and re5ulations for the proper implementation of this Act! . Initiate and underta7e a national campai5n for dru5 prevention and dru5 control pro5rams* where it may enlist the assistance of any department* bureau* oFce* a5ency* or instrumentality of the 5overnment* includin5 5overnment-owned andHor controlled corporations* in the anti- ille5al dru5s drive* which may include the use of their respective personnel* facilities* and resources for a more resolute detection and investi5ation of dru5-related crimes and prosecution of the dru5 traFc7ers! and r. Submit an annual and periodic report to the Board as may be reuired form time to time* and perform such other functions as may be authoriDed or reuired under e3istin5 laws and as directed by the President himselfHherself or as recommended by the con5ressional committees concerned. NOTE: 6here are however certain power and duties of the PCJA enumerated under Section -8 of #.A. '$)& which seems to overlap with the functions of prosecutors such as ($. the preparation for prosecution or the causin5 of the flin5 of appropriate criminal cases for violation of the Law! and (%. flin5 of char5es and transmittal of evidence to the proper court and which have to be 116 clarifed in the Implementin5 #ules and #e5ulation that may be issued by the CCB and the PCJA later. JURISDICTION O,ER DRUG RELATED CASES 6he Supreme /ourt shall desi5nate special court from amon5 the e3istin5 #e5ional 6rial /ourt in each >udicial re5ion to e3clusively try and hear cases involvin5 violations of this Act. 6he number of courts desi5nated in each >udicial re5ion shall be based in their respective >urisdiction. 6he C@+ shall desi5nate special prosecutor to e3clusively handle cases involvin5 violations of this Act. PRELIMINAR- IN,ESTIGATION O) DANGEROUS DRUG CASES 6he preliminary investi5ation of cases fled under this Act shall be terminated within the period of thirty (=(. days from the date of their flin5 :hen the preliminary investi5ation is conducted by a public prosecutor and probable cause is established* the correspondin5 information shall be fled in court within twenty-four (%8. hours from the termination of the investi5ation. If the preliminary investi5ation is conducted by a >ud5e and a probable cause is found to e3ist* the correspondin5 information shall be fled by the proper prosecutor within forty-ei5ht (8-. hours from the date of receipt of the records of the case. $/ec. <B& 6he Cepartment of +ustice shall desi5nate special prosecutors to e3clusively handle cases 117 involvin5 violations of the Can5erous Cru5 Act of %((% (Sec. '(.
<otwithstandin5 the provision of any law to the contrary* a positive fndin5 for the use of dan5erous dru5s shall be a ualifyin5 a55ravatin5 circumstance in the commission of a crime by an ofender* and the application of the penalty provided for in the #evised Penal /ode shall be applicable (Sec. %&. /onfscation and ;orfeiture of the Proceeds or Instruments of the 2nlawful Act* includin5 the Properties or Proceeds Cerived from the Ille5al 6raFc7in5 of Can5erous Cru5s andHor Precursors and Jssential /hemicals Jvery penalty imposed for the unlawful importation* sale* tradin5* administration* dispensation* delivery* distribution* transportation or manufacture of any dan5erous dru5 andHor controlled precursor and essential chemical* the cultivation or culture of plants which are sources of dan5erous dru5s* and the possession of any euipment* instrument* apparatus and other paraphernalia for dan5erous dru5s includin5 other laboratory euipment* shall carry with it the confscation and forfeiture* in favor of the 5overnment* of all the proceeds and properties derived from unlawful act* includin5* but not limited to* money and other assets obtained thereby* and the instruments or tools with which the particular unlawful act was committed* unless they are the property of a third person not liable for the unlawful act* but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section %$ of this Act. 118 After conviction in the #e5ional 6rial /ourt in the appropriate criminal case fled* the /ourt shall immediately schedule a hearin5 for the confscation and forfeiture of all the proceeds of the ofense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to hisHher lawful income! Provided %o*ever 6hat if the forfeited property is a vehicle* the same shall be auctioned of not later than fve (&. days upon order of confscation or forfeiture. Curin5 the pendency of the case in the #e5ional 6rial /ourt* no property* or income derived thereform* which may be confscated and forfeited* shall be disposed* alienated or transferred and the same shall be in custodio le#is and no bond shall be admitted for the release of the same. 6he proceeds of any sale or disposition of any property confscated under this section* forfeiture* custody and maintenance of the property pendin5 disposition* as well as the e3pense for publication and court costs. 6he proceeds in e3cess of the above e3penses shall accrue to the Board to be used in its campai5n a5ainst ille5al dru5s. CUSTOD- AND DISPOSITION O) CON)ISCATED! SEI1ED ANDHOR SURRENDERED DANGEROUS DRUGS! ETC. 6he PDEA shall ta7e char5e and have custody of all dan5erous dru5s* plant sources of dan5erous dru5s* controlled precursors and essential chemicals* as well as instrumentsHparaphernalia andHor laboratory euipment that was confscated* 119 seiDed andHor surrendered* for proper disposition in the followin5 mannerG $.6he apprehendin5 team havin5 initial custody and control of the dru5s shall* immediately after seiDure and confscation* physically inventory and photo5raph the same in the presence of the accused or the personHs from whom such items were confscated andHor seiDed* or hisHher representative or counsel* a representative from the media and the Cepartment of +ustice (C@+. and any elected public oFcial who shall be reuired to si5n the copies of the inventory and be 5iven a copy thereof! %.:ithin twenty-four (%8. hours upon confscationHseiDure of dan5erous dru5s* plant sources of dan5erous dru5s* controlled precursors and essential chemicals* as well as instrumentsHparaphernalia andHor laboratory euipment* the same shall be submitted to the PCJA ;orensic Laboratory for a ualitative e3amination! =.A certifcation of the forensic laboratory e3amination results* which shall be under oath by the forensic laboratory e3aminer* shall be issued within twenty-four (%8. hours after the receipt of the sub>ect itemsHsG Provided* that when the volume of dan5erous dru5s* and controlled precursors and essential chemicals does not allow the completion of testin5 within the time frame* a partial laboratory e3amination report shall be provisionally by the forensic laboratoryG Provided %o*ever that a fnal certifcation on the same within the ne3t twenty-four (%8. hours! 120 8.After the flin5 of the criminal case* the /ourt shall within seventy-two (9%. hours* conduct an ocular inspection of the confscated* seiDed andHor surrendered dan5erous dru5s* plant sources of dan5erous dru5s* and controlled precursor and essential chemicals* includin5 the instrumentsHparaphernalia andHor laboratory euipment* and throu5h the PCJA shall within twenty-four (%8. hours thereafter proceed with the destruction or burnin5 of the same* in the presence of the accused or the personHs from which such items were confscated andHor seiDed* or hisHher representative or counsel* a representative from the media and the C@+* civil society 5roup and any elected public oFcial. 6he Board shall draw up the 5uidelines on the manner of proper disposition and destruction of such itemHs which shall be borne by the ofender! Provided* 6hat those itemHs of lawful commerce* as determined by the Board* shall be donated* used or recycled for le5itimate purposes! Provided* furt%er 6hat a representative sample* duly wei5hed and recorded* is retained! &.6he Board shall then issue a sworn statement as to the fact of destruction or burnin5 of the sub>ect itemHs to5ether with the representative sampleHs shall be 7ept to a minimum uantity as determined by the Board! ).6he alle5ed ofender or hisHher representative or counsel shall be allowed to personally observe all of the above proceedin5s and hisHher presence shall not constitute an admission of 5uilt. In case the said ofender or accused refuses or fails to appoint a representative after due notice in writin5 to the accused or hisHher counsel within seventy-two 121 (9%. hours before the actual or destruction of the evidence in uestion* the Secretary of +ustice shall appoint a member of the public attorney,s oFce to represent the former! 9.After the promul5ation of >ud5ment in the criminal case wherein the representative sampleHs was presented as evidence in court* the trial prosecutor shall inform the Board of the fnal termination of the case and in turn* shall reuest the court for leave to turn over the said representative sampleHs to the PCJA for proper disposition and destruction within twenty-four (%8. hours from receipt of the same! and -.6ransitory ProvisionG a.. :ithin twenty-four hours from the efectivity of this Act (#.A. '$)&.* dan5erous dru5s defned herein which are presently in possession of law enforcement a5encies shall* with leave of court* be burned or destroyed* in the presence of representative of the /ourt* C@+* Cepartment of Aealth (C@A. and the accused andHor hisHher counsel* and b.. Pendin5 the or5aniDation of the PCJA* the custody* disposition* and burnin5 of seiDed or surrendered dan5erous dru5s provided under this Section shall be implemented by the C@A (Sec. %$* Art. %* #.A. '$)&. SUSPENSION O) SENTENCE O) )IRST.TIME MINOR O))ENDER An accused who is over ffteen ($&. years of a5e at the time of the commission of the ofense mentioned in Section $$ of #.A. '$)& but not more that ei5hteen ($-. years of a5e at the time when the >ud5ment should have been promul5ated after havin5 been found 5uilty of said ofense* may be 122 5iven the benefts of a suspended sentence* sub>ect to the followin5 conditionsG
a.AeHShe has not been previously convicted of violatin5 any provision of this Act* or of the Can5erous Cru5s Act of $'9%* as amended! or of the #evised Penal /ode! or any special penal laws! b.AeHShe has not been previously committed to a /enter or to the care of a C@A-accredited physician! and c. 6he Board favorably recommends that hisHher sentence be suspended. PRI,ILEGE O) SUSPENDED SENTENCE CAN BE A,AIL ONL- ONCE B- A )IRST.TIME MINOR O))ENDER 6he privile5e of suspended sentence shall be availed of only once by accused dru5 dependent who is a frst-time ofender over ffteen ($&. years of a5e at the time of the commission of the violation of Section $& of this Act but not more than ei5hteen ($-. years of a5e at the time when >ud5ment should have been promul5ated. $/ec. ;D& PROMULAGATION O) SENTENCE )OR )IRST. TIME O))ENDER If the accused frst-time minor ofender violates any of the conditions of hisHher suspended sentence* the applicable rules and re5ulations of the Board e3ercisin5 supervision and rehabilitative surveillance over him* includin5 the rules and re5ulations of the /enter should confnement be reuired* the court shall pronounce >ud5ment of 123 conviction and heHshe shall serve sentence as any other convicted person. $/ec. ;<& PROBATION OR COMMUNIT- SER,ICE )OR A )IRST.TIME MINOR O))ENDER IN LIEU O) IMPRISONMENT 2pon promul5ation of the sentence* the court may* in its discretion* place the accused under probation* even if the sentence provided under this Act is hi5her than that provided under e3istin5 law on probation* or impose community service in lieu of imprisonment. In case of probation* the supervision and rehabilitative surveillance shall be underta7en by the Board throu5h the C@A in coordination with the Board of Pardons and Parole and the Probation Administration. 2pon compliance with the conditions of the probation* the Board shall submit a written report to the court recommendin5 termination of probation and a fnal dischar5e of the probationer* whereupon the court shall issue such an order. 6he community service shall be complied with under conditions* time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section $& of this Act. 6he completion of the community service shall be under the supervision and rehabilitative surveillance of the Board durin5 the period reuired by the court. 6hereafter* the Board shall render a report on the manner of compliance of said community service. 6he court in its discretion may reuire e3tension of the community service or order a fnal dischar5e. If the sentence promul5ated by the court reuire imprisonment* the period spent in the 124 /enter by the accused shall be deducted from the sentence to be served. $ /ec. :B& W(AT ARE T(E LIABILIT- AND RESPONSIBILIT- O) A MEMBER O) LAW EN)ORCEMENT AGENCIES AND OT(ER O,ERNMENT O))ICIALS IN TESTI)-ING AS PROSECUTION WITNESSES IN DANGEROUS DRUG CASES4
Any member of law enforcement a5encies or any other 5overnment oFcial and employee who* after due notice* fails or refuse intentionally or ne5li5ently* to appear as a witness for the prosecution in any proceedin5s* involvin5 violation of this Act* without any valid reason shall be punished with imprisonment of not less than twelve ($%. years and one ($. day to twenty (%(. years and a fne of not less than ;ive hundred thousand pesos (P&((*(((.((.* in addition to the administrative liability heHshe may be meted out by hisHher immediate superior andHor appropriate body. 6he immediate superior of the member of the law enforcement a5ency or any other 5overnment employee mentioned in the precedin5 para5raph shall be penaliDed with imprisonment of not less than two (%. months and one ($. day but not more than si3 (). years and a fne of not less than ten thousand (P$(*(((.((. but not more than ;ifty thousand (P&(*(((.((. and in addition* perpetual absolute disualifcation from public oFce if despite due notice to them and to the witness concerned the former does not e3ert reasonable efort to present the latter to the court 6he member of the law enforcement a5ency or any other 5overnment employee mentioned in the 125 proceedin5 para5raphs shall not be transferred or re-assi5ned to any other 5overnment oFce located in another territorial >urisdiction durin5 the pendency of the case in court. Aowever* the concerned member of the law enforcement a5ency or 5overnment employee may be transferred or re- assi5ned for compellin5 reasonG Provided* that hisHher immediate superior shall notify the court where the case is pendin5 of the order to transfer or re-assi5n* within twenty-four (%8. hours from its approvalG Provided furt%er that hisHher immediate superior shall be penaliDed with imprisonment of not less than two (%. months and one ($.day but not more than si3 (). years and a fne of not less than two (%. months and one ($. day but not more than si3 (). years and a fne of not less than 6en thousand (P$(*(((.((. but not more than ;ifty thousand pesos (P&(*(((.((. and in addition* perpetual absolute disualifcation from public oFce* should heHshe fails to notify the court of such order to transfer or re-assi5n.
DELA- AN) BUNGLING IN T(E PROSECUTION O) DRUG CASES Any 5overnment oFcer employee tas7ed with the prosecution of dru5-related cases under this Act* who throu5h patent la3ity* ine3cusable ne5lect* unreasonable delay or deliberately causes the unsuccessful prosecution andHor dismissal of the said dru5 cases* shall sufer the penalty of imprisonment ran5in5 from twelve ($%. years and one ($. day to twenty (%(. years without pre>udice to hisHher prosecution under the pertinent provision of the #evised Penal /ode. 126 RECORDS TO BE IEPT B- T(E DEPARTMENT O) JUSTICE 6he C@+ shall 7eep a confdential record of the proceedin5s on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a frst-time ofender. $/ec. :1& LIABILIT- O) A PERSON W(O ,IUOLATES T(E CON)IDENTIALIT- O) RECORDS 6he Penalty of imprisonment ran5in5 from si3 (). months and one ($. day to si3 (). years and a fne ran5in5 from @ne thousand pesos (P$*(((.((. to Si3 thousand pesos (P)*(((.((.* shall be imposed upon any person who* havin5 oFcial custody of or access to the confdential records of any dru5 dependent under voluntary submission pro5rams* or any one who* havin5 5ained possession of said records* whether lawfully or not* reveals their content to any person other than those char5ed with the prosecution of the ofense under this Act and its implementation. 6he ma3imum penalty shall be imposed* in addition to the absolute perpetual disualifcation from any public oFce* when the ofender is a 5overnment oFcial or employee. Should the records be used for unlawful purposes* such as blac7mail of the dru5 defendant of the members of hisHher family* the penalty imposed for the crime of violation of confdentiality shall be in addition to whatever crime heHshe convicted of. (Sec. 9%. LIABILIT- O) A PARENTS! SPOUSE OR GUARDIAN W(O RE)USE TO COOPERATE WIT( T(E BOARD OR AN- CONCERNED AGENC- 127 Any parent* spouse or 5uardian who* without valid reason parent* spouse or 5uardian who* without valid reason* refuses to cooperate with the Board or any concerned a5ency in the treatment and rehabilitation of a dru5 defendant who is a minor* or in any manner* prevents or delay the after-care* follow-up or other pro5rams for the welfare of the accused dru5 defendant* whether under voluntary submission pro5ram or compulsory submission pro5ram* may be cited in contempt by the court. COST.S(ARING IN T(E TREATMENT AND RE(ABILITATION O) A DRUG DE)ENDENT 6he parents* spouse* 5uardian or any relative within the fourth de5ree of consan5uinity of any person who is confned under the voluntary submission pro5ram or compulsory submission pro5ram shall be char5ed a certain percenta5e of the cost of hisHher treatment and rehabilitation* the 5uidelines of which shall be formulated by the CS:C ta7in5 into consideration the economic status of the family of the person confned. 6he 5uidelines therein formulated shall be implemented by a social wor7er of the local 5overnment unit. (Sec. 98. LIMITED APPLICABILIT- O) T(E RE,ISED PENAL CODE <otwithstandin5 any law* rule or re5ulation to the contrary* the provisions of the #evised Penal /ode (Act. =-$8. as amended* shall not apply to the provision of this Act* e3cept in the case of minor ofenders. :here the ofender is a minor* the penalty for acts punishable by life imprisonment to 128 death provided therein shall be reclusion perpetua to deat%. $/ec. <D&
E*CEPTION TO NECESSIT- O) A SEARC( WARRANT 6here is no doubt that the warrantless search incidental to a lawful arrest authoriDes the arrestin5 oFcer to ma7e a search upon the person arrested. An oFcer ma7in5 an arrest may ta7e from the person arrested any money or property found upon his person which was used in the commission of the crime or was in fruit of the crime or which mi5ht furnish the prisoner with the means of committin5 violence or of escapin5* which may be used as evidence in the trial of the case. (People v. ?usa! "# ')$99* $H%9H'=. LIIE ALIBI! )RAME UP IS EAS- TO )ABRICATE! BUT DI))ICULT TO PRO,E ;rame-up* li7e alibi* is a defense that has been viewed by courts with disfavor for it can >ust as easily be connected and is a common and standard line of defense in most prosecution arisin5 from violations of the Can5erous Cru5s Act. In order for that defense to prosper* the evidence adduced must be clear and convincin5. (People v. "iran5! "# %9'8'* %H$H'&. BU-.BUST OPERATION Is a form of entrapment employed by peace oFcers as an efective way of apprehendin5 a criminal in the act of the commission of the ofense. Jntrapment has received >udicial sanction 129 as lon5 as it is carried out with due re5ard to constitutional and le5al safe5uards. (People v. Basil5o! "# $(9=%9* -H&H'8. POSEUR.BU-ER! GENERALL- NEED NOT TESTI)- 6he testimony of the poseur-buyer or of the confdential informant is no lon5er material considerin5 that accused-appellant,s dru5 pushin5 was positively attested to. ?oreover* informants are 5enerally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. (People v. "iran5! "# '9'8'* %H$H'&. E))ECT O) LIMITATION UNDER SECTION $5! ART. ,II O) T(E CONSTITUTION ON GRANT O) PARDON 6he 1conviction by fnal >ud5ment1 limitation under Section $'* Article III of the present /onstitution prohibits the 5rant of pardon* whether full or conditional* to an accused durin5 the pendency of his appeal from his conviction by the trial court. Any application therefor* if one is made* should not be acted upon or the process toward its 5rant should not be be5un unless the appeal is withdrawn. Accordin5ly* the a5encies or instrumentalities of the "overnment concerned must reuire proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form of a certifcation issued by the trial court or the appellate court* as the case may be 6he acceptance of the pardon shall not operate as an abandonment or waiver of the appeal* and the release of an accused by virtue of a pardon* 130 commutation of sentence* or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable Accordin5ly* those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confnement. (People v. ?auilan. RULE AS TO W(O S(OULD BE CRIMINALL- C(ARGED 6he settled rule is that the determination of who should be criminally char5ed in court is essentially an e3ecutive function* not a >udicial one. As the oFcer authoriDed to direct and control the prosecution of all criminal actions* the prosecutor is tas7ed to ascertain whether there is suFcient 5round to en5ender a well-founded belief that an ofense has been committed and that the accused is probably 5uilty thereof. (People v. Jsparas! "# $%((=8* +uly $(* $''-. W(EN T(ERE IS A WAI,ER O) WARRANTLESS ARREST 6he appellants are now precluded from assailin5 the warrantless search and seiDure when they voluntarily submitted to it as shown by their actuation durin5 the search and seiDure. 6he appellants never protested when SP@= +esus ;aller* after identifyin5 himself as a police oFcer* opened the tin can loaded in the appellants4 vehicle and found ei5ht (-. bundles. And when ;aller opened one of the bundles* it smelled of mari>uana. 6he <BI later confrmed the ei5ht (-. bundles to be positive for mari>uana. A5ain* the appellants did not raise any protest when they* to5ether with their car5o of dru5s and their vehicle* were brou5ht 131 to the police station for investi5ation and subseuent prosecution. :e have ruled in a lon5 line of cases thatG 1:hen one voluntarily submits to a search or consents to have it made on his person or premises* he is precluded from later complainin5 thereof (/ooley* /onstitutional Limitations* -th ed.* vol. I* pa5e )=$.. 6he ri5ht to be secure from unreasonable search may* li7e every ri5ht* be waived and such waiver may be made either e3pressly or impliedly.1 6he appellants efectively waived their constitutional ri5ht a5ainst the search and seiDure in uestion by their voluntary submission to the >urisdiction of the trial court* when they entered a plea of not 5uilty upon arrai5nment and by participatin5 in the trial. (People v. /orrea! "# $$'%8)* +an. =(* ,'-. W(EN USE O) MOTOR ,E(ICLE IN DRUG CASES OR AN- OT(ER CASE IS NOT AGGRA,ATING Simply stated* the motor vehicle which was used to transport prohibited dru5s was not purposely sou5ht to facilitate the commission of the crime since such act of transportin5 constitutes the crime itself* punishable under Section 8* Article II of #epublic Act <o. )8%&* as amended. 6hat a motor vehicle was used in committin5 the crime is merely incidental to the act of transportin5 prohibited dru5s. 6he use of a motor vehicle is inherent in the crime of transportin5 as it must of necessity accompany the commission thereof! hence* such use is not an a55ravatin5 circumstance. (People v. /orrea. 132 CASES W(EN WARRANTLESS SEARC( IS ALLOWED $. :arrantless search incidental to a lawful arrest reco5niDed under Section $%* #ule $%) of the #ules of /ourt and by prevailin5 >urisprudence! %. SeiDure of evidence in 1plain view*1 the elements of which areG (a. a prior valid intrusion based on the valid warrantless arrest in which the police are le5ally present in the pursuit of their oFcial duties! (b. the evidence was inadvertently discovered by the police who had the ri5ht to be where they are! (c. the evidence must be immediately apparent* and (d. 1plain view1 >ustifed mere seiDure of evidence without further search! =. Search of a movin5 vehicle. Ai5hly re5ulated by the 5overnment* the vehicle4s inherent mobility reduces e3pectation of privacy especially when its transit in public thorou5hfares furnishes a hi5hly reasonable suspicion amountin5 to probable cause that the occupant committed a criminal activity! 8. /onsented warrantless search! &. /ustoms search! ). Stop and ;ris7! and 9. J3i5ent and Jmer5ency /ircumstances. (People v. ?en5uin! "# $%('$&* Apr. $=* ,'-. CASES W(EN SEARC( WIT(OUT A WARRANT WAS ,ALID 133 In Peo.0e 2. Tan40&ben* actin5 on information supplied by informers* police oFcers conducted a surveillance at the Iictory Liner 6erminal compound in San ;ernando* Pampan5a a5ainst persons who may commit misdemeanors and also on those who may be en5a5in5 in the traFc of dan5erous dru5s. At 'G=( in the evenin5* the policemen noticed a person carryin5 a red travellin5 ba5 who was actin5 suspiciously. 6hey confronted him and reuested him to open his ba5 but he refused. Ae acceded later on when the policemen identifed themselves. Inside the ba5 were mari>uana leaves wrapped in a plastic wrapper. 6he police oFcers only 7new of the activities of 6an5liben on the ni5ht of his arrest. In instant case* the apprehendin5 oFcers already had prior 7nowled5e from their informant re5ardin5 Aruta4s alle5ed activities. In 6an5liben policemen were confronted with an on-the-spot tip. ?oreover* the policemen 7new that the Iictory Liner compound is bein5 used by dru5 traFc7ers as their 1business address1. ?ore si5nifcantly* 6an5liben was actin5 suspiciously. Ais actuations and surroundin5 circumstances led the policemen to reasonably suspect that 6an5liben is committin5 a crime. In instant case* there is no sin5le indication that Aruta was actin5 suspiciously. In Peo.0e 2. 'a0mstedt* the <arcom a5ents received reports that vehicles comin5 from Sa5ada were transportin5 mari>uana. 6hey li7ewise received information that a /aucasian comin5 from Sa5ada had prohibited dru5s on his person. 6here was no reasonable time to obtain a search warrant* especially since the identity of the suspect could not be readily ascertained. Ais actuations also aroused the suspicion of the oFcers conductin5 the operation. 6he /ourt held that in li5ht of such 134 circumstances* to deprive the a5ents of the ability and facility to act promptly* includin5 a search without a warrant* would be to sanction impotence and inefectiveness in law enforcement* to the detriment of society. <ote* however* the 5larin5 diferences of ?almstedt to the instant case. In present case* the police oFcers had reasonable time within which to secure a search warrant. Second* Aruta4s identity was priorly ascertained. 6hird* Aruta was not actin5 suspiciously. ;ourth* ?almstedt was searched aboard a movin5 vehicle* a le5ally accepted e3ception to the warrant reuirement. Aruta* on the other hand* was searched while about to cross a street. In Peo.0e 2. Ba4&sta* the <A#/@? oFcers had probable cause to stop and search all vehicles comin5 from the north to Acop* 6ublay* Ben5uet in view of the confdential information they received from their re5ular informant that a woman havin5 the same appearance as that of accused-appellant would be brin5in5 mari>uana from up north. 6hey li7ewise had probable cause to search accused- appellant4s belon5in5s since she ftted the description 5iven by the <A#/@? informant. Since there was a valid warrantless search by the <A#/@? a5ents* any evidence obtained in the course of said search is admissible a5ainst accused-appellant. A5ain* this case difers from Aruta as this involves a search of a movin5 vehicle plus the fact that the police oFcers erected a chec7point. Both are e3ceptions to the reuirements of a search warrant. In 'ana0&0& 2. +o/3t o8 A..ea0s and Peo.0e* the policemen conducted a surveillance in an area of the Raloo7an /emetery based on information that dru5 addicts were roamin5 therein. 2pon 135 reachin5 the place* they chanced upon a man in front of the cemetery who appeared to be 1hi5h1 on dru5s. Ae was observed to have reddish eyes and to be wal7in5 in a swayin5 manner. ?oreover* he appeared to be tryin5 to avoid the policemen. :hen approached and as7ed what he was holdin5 in his hands* he tried to resist. :hen he showed his wallet* it contained mari>uana. 6he /ourt held that the policemen had suFcient reason to accost accused-appellant to determine if he was actually 1hi5h1 on dru5s due to his suspicious actuations* coupled with the fact that based on information* this area was a haven for dru5 addicts. 6his case is similar to Peo.0e 2. Am&nn/d&n where the police received information two days before the arrival of Aminnudin that the latter would be arrivin5 from Iloilo on board the ?HI :ilcon '. Ais name was 7nown* the vehicle was identifed and the date of arrival was certain. ;rom the information they had received* the police could have persuaded a >ud5e that there was probable cause* indeed* to >ustify the issuance of a warrant. Instead of securin5 a warrant frst* they proceeded to apprehend Aminnudin. :hen the case was brou5ht before this /ourt* the arrest was held to be ille5al! hence any item seiDed from Aminnudin could not be used a5ainst him. Another recent case is Peo.0e 2. Enc&nada where the police li7ewise received confdential information the day before at 8G(( in the afternoon from their informant that Jncinada would be brin5in5 in mari>uana from /ebu /ity on board ?HI Sweet Pearl at 9G(( in the mornin5 of the followin5 day. 6his intelli5ence information re5ardin5 the culprit4s identity* the particular crime he alle5edly committed and his e3act whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. 6his /ourt held that in 136 accordance with Administrative /ircular <o. $= and /ircular <o. $'* series of $'-9* the lawmen could have applied for a warrant even after court hours. 6he failure or ne5lect to secure one cannot serve as an e3cuse for violatin5 Jncinada4s constitutional ri5ht. Peo.0e 2. (o0ayao* applied the stop and fris7 principle which has been adopted in Posadas v. /ourt of Appeals. In said case* Solayao attempted to Nee when he and his companions were accosted by 5overnment a5ents. In the instant case* there was no observable manifestation that could have aroused the suspicion of the <A#/@? a5ents as to cause them to 1stop and fris71 accused-appellant. 6o reiterate* accused-appellant was merely crossin5 the street when apprehended. 2nli7e in the abovementioned cases* accused-appellant never attempted to Nee from the <A#/@? a5ents when the latter identifed themselves as such. /learly* this is another indication of the paucity of probable cause that would suFciently provo7e a suspicion that accused-appellant was committin5 a crime. 6his /ourt cannot a5ree with the Solicitor "eneral4s contention for the ?alasu5ui case is inapplicable to the instant case. In said case* there was probable cause for the warrantless arrest thereby ma7in5 the warrantless search efected immediately thereafter eually lawful. @n the contrary* the most essential element of probable cause* as e3pounded above in detail* is wantin5 in the instant case ma7in5 the warrantless arrest un>ustifed and ille5al. Accordin5ly* the search which accompanied the warrantless arrest was li7ewise un>ustifed and ille5al. 6hus* all the articles seiDed from the accused-appellant could not be used as evidence a5ainst her. (People v. ?en5uin. 137 W(EN SEARC( IS NOT ,ALID Accused-appellant Aruta cannot be said to be committin5 a crime. <either was she about to commit one nor had she >ust committed a crime. Accused-appellant was merely crossin5 the street and was not actin5 in any manner that would en5ender a reasonable 5round for the <A#/@? a5ents to suspect and conclude that she was committin5 a crime. It was only when the informant pointed to accused-appellant and identifed her to the a5ents as the carrier of the mari>uana that she was sin5led out as the suspect. 6he <A#/@? a5ents would not have apprehended accused-appellant were it not for the furtive fn5er of the informant because* as clearly illustrated by the evidence on record* there was no reason whatsoever for them to suspect that accused- appellant was committin5 a crime* e3cept for the pointin5 fn5er of the informant. 6his the /ourt could neither sanction nor tolerate as it is a clear violation of the constitutional 5uarantee a5ainst unreasonable search and seiDure. <either was there any semblance of any compliance with the ri5id reuirements of probable cause and warrantless arrests. /onseuently* there was no le5al basis for the <A#/@? a5ents to efect a warrantless search of accused-appellant4s ba5* there bein5 no probable cause and the accused-appellant not havin5 been lawfully arrested. Stated otherwise* the arrest bein5 incipiently ille5al* it lo5ically follows that the subseuent search was similarly ille5al* it bein5 not incidental to a lawful arrest. 6he constitutional 5uarantee a5ainst unreasonable search and seiDure must perforce operate in favor of accused- appellant. As such* the articles seiDed could not be used as evidence a5ainst accused-appellant for 138 these are 1fruits of a poisoned tree1 and* therefore* must be re>ected* pursuant to Article III* Sec. =(%. of the /onstitution. (People v. ?en5uin. W(EN ,OLUNTAR- SUBMISSION TO SEARC( IS INAPPLICABLE Aside from the inapplicability of the abovecited case* the act of herein accused-appellant in handin5 over her ba5 to the <A#/@? a5ents could not be construed as voluntary submission or an implied acuiescence to the unreasonable search. 6he instant case is similar to People v. Jncinada. (People v. ?en5uin. W(EN SEARC( IS NOT ALLOWED A)TER AN ARREST IS MADE In the case of People v. Lua* this /ourt heldG 1As re5ards the bric7 of mari>uana found inside the appellant4s house* the trial court correctly i5nored it apparently in view of its inadmissibility. :hile initially the arrest as well as the body search was lawful* the warrantless search made inside the appellant4s house became unlawful since the police operatives were not armed with a search warrant. Such search cannot fall under 1search made incidental to a lawful arrest*1 the same bein5 limited to body search and to that point within reach or control of the person arrested* or that which may furnish him with the means of committin5 violence or of escapin5. In the case at bar* appellant was admittedly outside his house when he was arrested. Aence* it can hardly be said that the inner portion of his house was within his reach or control. (Jspano v. /.A.! "# $%(8=$* April $* ,'-. 139 MEANING O) DTO TRANSPORTL IN DRUG CASES In People vs. Lo ,o Hin#* the /ourt defned the term 1transport1* as used under the Can5erous Cru5s Act to mean 1to carry or convey from one place to another1 * the operative words bein5 1to carry or to convey1. 6he fact that there is actual conveyance suFces to support a fndin5 that the act of transportin5 was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura. W(EN POLICE O))ICERS INTENTIONALL- PEEPED T(RU A WINDOW T(EN WENT INSIDE AND ARRESTED T(OSE INSIDE W(O ARE PACIING MARIJUANA. T(E SAME IS ILLEGAL 6he police oFcers intentionally peeped frst throu5h the window before they saw and ascertained the activities of accused-appellants inside the room. In li7e manner* the search cannot be cate5oriDed as a search of a movin5 vehicle* a consented warrantless search* a customs search* or a stop and fris7! it cannot even fall under e3i5ent and emer5ency circumstances* for the evidence at hand is bereft of any such showin5. @n the contrary* it indicates that the apprehendin5 oFcers should have conducted frst a surveillance considerin5 that the identities and address of the suspected culprits were already ascertained. After conductin5 the surveillance and determinin5 the e3istence of probable cause for arrestin5 accused-appellants* they should have secured a search warrant prior to efectin5 a valid 140 arrest and seiDure. 6he arrest bein5 ille5al ab initio* the accompanyin5 search was li7ewise ille5al. Jvery evidence thus obtained durin5 the ille5al search cannot be used a5ainst accused- appellants! hence* their acuittal must follow in faithful obeisance to the fundamental law. $PP -vs- @"'(!D( 0>L(/( ) '(5>0>(' "+ (L. G.R. 'o. 149:97 Dec. 44 1<<<& SEARC( AND SEI1URE WIT(OUT T(E RE0UISITE JUDICIAL WARRANT IS ILLEGAL AND ,OID AB INITIO As a 5eneral rule* the procurement of a search warrant is reuired before law enforcer may validly search or seiDe the person* house* papers or efects of any individual. In People v. Calde- the court ruled that search and seiDure conducted without the reuisite >udicial warrant is ille5al and void ab initio. 3 3 3 SLawmen cannot be allowed to violate the very law they are e3pected to enforce.T 6he /ourt is not unmindful of the diFculties of law enforcement a5encies in suppressin5 the ille5al traFc of dan5erous dru5s. Aowever* uic7 solutions of crimes and apprehension of malefactors do not >ustify a callous disre5ard of the Bill of #i5htsT. :e need not underscore that the protection a5ainst ille5al search and seiDures is constitutionally mandated and only under specifc instances are seiDures allowed without warrants. In this case* the prosecution,s evidence clearly established that the police conducted a search of accused,s bac7yard 5arden without warrant! they had suFcient time to obtain a search warrant! they 141 failed to secure one. 6here was no showin5 of ur5ency or necessity for the warrantless search* or the immediate seiDure of the mari>uana plants. (People vs. Alberto Pasuda5. 142 ILLEGAL POSSESSION O) )IREARMS BREPUBLIC ACT NO. &25%C SJ/6I@< $. Section $ Presidential Cecree <o. $-))* as amended* is hereby further amended to read as followsG 1SJ/6I@< $. 2nlawful ?anufacture* Sale* Acuisition* Cisposition or Possession of ;irearms or Ammunition or Instruments 2sed or Intended to be 2sed in the ?anufacture of ;irearms or Ammunition. 0 6he penalty of prision correccional in its ma3imum period and a fne of not less than ;ifteen thousand pesos (P$&*(((. shall be imposed upon any person who shall unlawfully manufacture* deal in* acuire* dispose* or possess any low powered frearm* such as rimfre hand5un* .=-( or . =% and other frearm of similar frepower* part of frearm* ammunition* or machinery* tool or instrument used or intended to be used in the manufacture of any frearm or ammunitionG Provided* 6hat no other crime was committed. 16he penalty of prision mayor in its minimum period and a fne of 6hirty thousand pesos (P=(*(((. shall be imposed if the frearm is classifed as hi5h powered frearm which includes those with bores bi55er in diameter than .=- caliber and ' millimeter such as caliber .8(* .8$* . 88* .8& and also lesser calibered frearms but considered powerful such as caliber .=&9 and caliber .%% center-fre ma5num and other frearms with frin5 capability of full automatic and by burst of two or threeG Provided* however* 6hat no other crime was committed by the person arrested. 1If homicide or murder is committed with the use of an unlicensed frearm* such use of an 143 unlicensed frearm shall be considered as an a55ravatin5 circumstance. 1If the violation of this Section is in furtherance of or incident to* or in connection with the crime of rebellion or insurrection* sedition* or attempted coup d4etat* such violation shall be absorbed as an element of the crime of rebellion* or insurrection* sedition* or attempted coup d4etat. 16he same penalty shall be imposed upon the owner* president* mana5er* director or other responsible oFcer of any public or private frm* company* corporation or entity* who shall willfully or 7nowin5ly allow any of the frearms owned by such frm* company* corporation or entity to be used by any person or persons found 5uilty of violatin5 the provisions of the precedin5 para5raphs or willfully or 7nowin5ly allow any of them to use unlicensed frearms or frearms without any le5al authority to be carried outside of their residence in the course of their employment. 16he penalty of arresto mayor shall be imposed upon any person who shall carry any licensed frearm outside his residence without le5al authority therefore.1 SJ/6I@< %. Section = of Presidential Cecree <o. $-))* as amended* is hereby further amended to read as followsG 1SJ/6I@< =. 2nlawful ?anufacture* Sale* Acuisition* Cisposition or Possession of J3plosives. 0 6he penalty of prision mayor in its ma3imum period to reclusion temporal and a fne of not less than ;ifty thousand pesos (P&(*(((. shall be imposed upon any person who shall unlawfully manufacture* assemble* deal in* acuire* dispose or 144 possess hand 5renade(s.* riNe 5renade(s.* and other e3plosives* includin5 but not limited to 4pillbo3*4 4molotov coc7tail bombs*4 4fre bombs*4 or other incendiary devices capable of producin5 destructive efect on conti5uous ob>ects or causin5 in>ury or death to any person. 1:hen a person commits any of the crimes defned in the #evised Penal /ode or special laws with the use of the aforementioned e3plosives* detonation a5ents or incendiary devices* which results in the death of any person or persons* the use of such e3plosives* detonation a5ents or incendiary devices shall be considered as an a55ravatin5 circumstance. 1If the violation of this Section is in furtherance of* or incident to* or in connection with the crime of rebellion* insurrection* sedition or attempted coup d4etat* such violation shall be absorbed as an element of the crimes of rebellion* insurrection* sedition or attempted coup d4etat. 16he same penalty shall be imposed upon the owner* president* mana5er* director or other responsible oFcer of any public or private frm* company* corporation or entity* who shall willfully or 7nowin5ly allow any of the e3plosives owned by such frm* company* corporation or entity* to be used by any person or persons found 5uilty of violatin5 the provisions of the precedin5 para5raphs.1 SJ/6I@< =. Section & of Presidential Cecree <o. $-))* as amended* is hereby further amended to read as followsG 1SJ/6I@< &. 6amperin5 of ;irearm4s Serial <umber. 0 6he penalty of prision correccional shall 145 be imposed upon any person who shall unlawfully tamper* chan5e* deface or erase the serial number of any frearm.1 SJ/6I@< 8. Section ) of Presidential Cecree <o. $-))* as amended* is hereby further amended to read as followsG 1SJ/6I@< ). #epac7in5 or Alterin5 the /omposition of Lawfully ?anufactured J3plosives. 0 6he penalty of prision correccional shall be imposed upon any person who shall unlawfully repac7* alter or modify the composition of any lawfully manufactured e3plosives.1 SJ/6I@< &. /overa5e of the 6erm 2nlicensed ;irearm. 0 6he term unlicensed frearm shall includeG $. frearms with e3pired license! or %. unauthoriDed use of licensed frearm in the commission of the crime. RULE ON ILLEGAL POSSESSION O) )IREARMS BE)ORE AN ACCUSED MA-BE CON,ICTED In crimes involvin5 ille5al possession of frearm* the prosecution has the burden of provin5 the elements thereof* viDG a.the e3istence of the sub>ect frearm! and b.the fact that the accused who owned or possessed it does not have the license or permit to possess the same. (People v. /astillo* =%& S/#A )$=. 146 6he essence of the crime of ille5al possession is the possession* whether actual or constructive* of the sub>ect frearm* without which there can be no conviction for ille5al possession. After possession is established by the prosecution* it would only be a matter of course to determine whether the accused has a license to possess the frearm. (People v. Bansil* =(8 S/#A =-8. Possession of any frearm becomes unlawful only if the necessary permit or license therefore is not frst obtained. 6he absence of license and le5al authority constitutes an essential in5redient of the ofense of ille5al possession of frearm and every in5redient or essential element of an ofense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise* the ne5ative fact of lac7 or absence of license constitutes an essential in5redient of the ofense which the prosecution has the duty not only to alle5e but also to prove beyond reasonable doubt. (People v. Rhor* =(9 scra %'&. 16o convict an accused for ille5al possession of frearms and e3plosives under P.C. $-))* as amended* two (%. essential elements must be indubitably established* viDG (a. t%e existence of t%e subject 3rearm or e3plosive which may be proved by the presentation* of the sub>ect frearm or e3plosive or by the testimony of witnesses who saw accused in possession of the same* and (b. the ne5ative fact that the accused had no license or permit to own or possess the frearm or e3plosive which fact may be established by the testimony or certifcation of a representative of the P<P ;irearms and J3plosive 2nit that the accused has no license 147 or permit to possess the sub>ect frearm or e3plosive.1 (Cel #osario v. People* (&H=$H($. :e stress that the essence of the crime penaliDed under P.C. $-)) is primarily the accused4s lac7 of license or permit to carry or possess the frearm* ammunition or e3plosive as possession by itself is not prohibited by law. (People v. /orteD* =%8 scra ==&* =88. Ille5al possession of frearm is a crime punished by special law* a malum pro%ibitum* and no malice or intent to commit a crime need be proved. (People v. Lubo* $($ Phil. $9'. 6o support a conviction* however* there must be possession coupled with intent to possess (animus possidendi. the frearm. (Supra. PRESENT MEANING O) ILLEGAL POSSESSION O) )IREARM ?nlicensed 3rearm no lon5er simply means a frearm without a license duly issued by lawful authority. 6he scope of the term has been e3panded in Sec.& of #.A. -%'8. 6hus* the unauthoriDed use of a weapon which has been duly licensed in the name of its ownerHpossessor may still a55ravate the resultant crime. In the case at bar* althou5h appellants may have been issued their respective licenses to possess frearms* their carryin5 of such weapons outside their residences and their unauthoriDed use thereof in the 7illin5 of the victim may be appreciated as an a55ravatin5 circumstance in imposin5 the proper penalty for murder. (Pp. I. ?olina! "r $$&-=&-=)! +uly %%* $''-. 148 ILLEGAL POSSESSION O) )IREARM ONL- SPECIAL AGGRA,ATING CIRCUMSTANCE IN CRIMES O) (OMICIDE AND MURDER. :here murder or homicide was committed* the separate penalty for ille5al possession shall no lon5er be meted out since it becomes merely a special a55ravatin5 circumstance. 6his statutory amendment may have been an ofshoot of our remar7s in Pp. C. +ac-an and Pp. C. 2uijada G I'eit%er is t%e 4 nd para#rap% of /ec.1 meant to punis% %omicide or murder *it% deat% if eit%er crime is committed *it% t%e use of an unlicensed 3rearm i.e. to consider suc% use merely as a 8ualifyin# circumstance and not as an oJense. +%at could not %ave been t%e intention of t%e la*ma=er because t%e term IpenaltyK in t%e subject provision is obviously meant to be t%e penalty for ille#al possession of 3rearm and not t%e penalty for %omicide or murder. He explicitly stated in +ac-an L +%ere is no la* *%ic% renders t%e use of an unlicensed 3rearm as an a##ravatin# circumstance in %omicide or murder. ?nder an information c%ar#in# %omicide or murder t%e fact t%at t%e deat% *eapon *as an unlicensed 3rearm cannot be used to increase t%e penalty for t%e 4 nd oJense of %omicide or murder to deat% $or reclusion perpetua under t%e 1<D: Constitution&. +%e essential point is t%at t%e unlicensed c%aracter or condition of t%e instrument used in destroyin# %uman life or committin# some ot%er crime is not included in t%e inventory of a##ravatin# circumstances set out in (rticle 17 of t%e Revised Penal Code. 149 A law may* of course* be enacted ma7in5 use of an unlicensed frearm as a ualifyin5 circumstance.T (People v. ?olina! "# $$&-=&-=)* +uly %%* $''-. NEW PENALT- )OR LOW POWERED )IREARM IN ILLEGAL POSSESSION O) )IREARMS Petitioner* fortunately for him* is nonetheless not entirely bereft of relief. 6he enactment and approval on () +un $''9 of #A -%'8* bein5 favorable to him* should now apply. 2nder this new law* the penalty for possession of any low powered frearm is only prision correccional in its ma3imum period and a fne of not less than P$&*(((.((. Applyin5 the Indeterminate Sentence Law* the present penalty that may be imposed is anywhere from two years* four months and one day to four years and two months of prision correccional in its medium period* as minimum* up to anywhere from four years* two moths and one day to si3 years of prision correccional in its ma3imum period* as ma3imum.. 6he court in addition* may impose a fne consistent with the principle that an appeal in a criminal case throws the whole case open for review by the appellate tribunal. (?ario #aba>a v /A* et al.* @ct -H'9. ACTS PUNIS(ABLE: $.Supon any person who shall unlawfully manufacture* deal in* acuire* dispose* or possess any low powered frearm* such as rimfre hand5un* .=-( or .=% and other frearm of similar frepower* part of frearm* ammunition* or 150 machinery* tool or instrument used or intended to be used in the manufacture of any frearm or ammunitionT %.1If homicide or murder is committed with the use of an unlicensed frearm* such use of an unlicensed frearm shall be considered as an a55ravatin5 circumstance.T =. 1If the violation of this Section is in furtherance of or incident to* or in connection with the crime of rebellion or insurrection* sedition* or attempted coup d4etat* such violation shall be absorbed as an element of the crime of rebellion* or insurrection* sedition* or attempted coup d4etat.T 8. 16he same penalty shall be imposed upon the owner* president* mana5er* director or other responsible oFcer of any public or private frm* company* corporation or entity* who shall willfully or 7nowin5ly allow any of the frearms owned by such frm* company* corporation or entity to be used by any person or persons found 5uilty of violatin5 the provisions of the precedin5 para5raphs or willfully or 7nowin5ly allow any of them to use unlicensed frearms or frearms without any le5al authority to be carried outside of their residence in the course of their employment.T &.S6he penalty of arresto mayor shall be imposed upon any person who shall carry any licensed frearm outside his residence without le5al authority thereforeT ).SAny person who shall unlawfully tamper* chan5e* deface or erase the serial number of any frearmT. 151 9.SAny person who shall unlawfully repac7* alter or modify the composition of any lawfully manufactured e3plosivesT. CRIME O) ILLEGAL POSSESSION O) )IREARM MALUM PRO(IBITUM 6he ofense of ille5al possession of frearm is a malum prohibitum punished by a special law* in which case 5ood faith and absence of criminal intent are not valid defenses. (People v Ce "racia* 9H)H'8. $.?anufacture* deal in* acuire* dispose or possess. It is these acts relative to frearms. 6he obvious underlyin5 principle is the undesirability of the proliferation of frearms and their free traFc and possession. 6his is clear from the frst two SwhereasT clause of P.C. $-)). It is then clear that ille5al possession* etc. is a malum pro%ibitum. ;or purpose of simplicity we will confne our analysis to SpossessionT* althou5h what we will discuss hereunder applies to manufacture* dealin5 in* acuirin5 or disposin5 as well. $.$. it is not correct to say without ualifcation that SintentT is immaterial. Intent as to .ossess&on &s &mmate3&a0. Intent&on to .ossess &s mate3&a0. :hatever the purpose of the possession may be is consistently immaterial. 6hat one was in possession of an unlicensed frearms merely for one,s protection without intendin5 harm on anybody is a fruitless defense. It is the clear doctrine of such cases as People v. de la Rosa %-8 S/#A $&- that Smere possession without criminal intent is 152 suFcient on which to render a >ud5ment of convictionT. $.%.A@:JIJ#* .ossess&on m/st be estab0&s1ed beyond 3easonab0e do/bt* and in view of the special meanin5 that SpossessionT has in criminal law* discovery by police* oFcers alone of a frearm in the ba55a5e or 5loves compartment of a car will not necessarily be suFcient to sustain a conviction of the car owner or driver. Jssential to the le5al concept of SpossessionT in ille5al possession cases is animus possidendio. (People v. de la Rosa* supra! People v. /ayan#* $$( Phil &)&.. $.=. Aow is animus possidendi establishedE 6hese must be proved either by direct or circumstantial evidence of the SintentT of the accused to possess* or to 7eep the frearm. a.& (nimus Possidendi is determined by recourse to overt acts prior to or simultaneous with possession and other surroundin5 circumstances. (People v. de la Rosa. when it is established that the accused purchased the weapon in uestion* a 5ood case for animus possidendi is made. b..(nimus possidendi may also be inferred from the fact that an unlicensed frearms was under the apparent control and power of the accussed. (People v. Cerc%es* == S/#A $98. c.& People v. de Gu-man ".#. $$9'&%-&= (;ebruary $8* %(($. holds that the S5ravamenT for the ofense of violation of P.C.$-)) is the possession of frearm without the necessary permit andHor license. S6he crime is immediately consummated upon mere possession of a 153 frearm devoid of le5al authority* since it is assumed that the same is possed with Sanimus possidendiT Coes it then follow that everyone found with the frearm is in SpossessionT thereof for the purpose of prosecution and conviction under P.C. $-)) as amended by #.A. -%'8E 6he results would be patently absurd. c.1& A person who fnds a frearms and ta7es it with him to the police station for the purpose of turnin5 it over to the police should be commended* rather than prosecuted. c.4& A person who is stopped at a chec7- point at which it is discovered that there is frearms V placed either advertently or inadvertently in his ba55a5e compartment 9&t1o/t 1&s 6no90ed4e - cannot be held liable for ille5al possession. c.=. If the ofender was in possession of an unlicensed only on the occasion of the shootin5 for transitory purpose and for the short moment in connection with the shootin5* the Supre /ourt held in People v. Macaslin#* %=9 S/#A %'' that there was no evidence of Sanimus possidendiT. c.8. It then appears to be the more reasonable position that where a person is apprehended with an unlicensed weapon* animus possidendi will be disputably presumed. 6he accused may controvert the presumption of animus possidendi. 6o convict* the court needs proof beyond reasonable doubt of animus possidendi. W(AT T(E PROSECUTION MUST PRO,E IN CASES O) ILLEGAL POSSESSION O) )IREARMS $.8 :hat the prosecution must prove for it to succeed under the law is two-foldG frst* the 154 e3istence of the frearm! second* the absence of a license or a permit to possess. (People v. Ru#ay* %'$ S/#A )'%. a.. 6o prove the e3istence of the frearm* it is not absolutely necessary that the ob>ect evidence be presented. It is very well possible that the accused efectively conceals the weapon before his apprehension. Incontrovertible testimonial evidence may successfully established the e3istence of the frearm. (People v. 'arvasa ".#. $=%-9- L<ovember $)* $''-M.* b.. An interestin5 uestion arises. 6he present law ma7es penalties depend on the caliber of the frearm* i.e* on whether it is hi5h-powered or low- powered In People v. "utierreD* ".#. $=%-9- (+anuary $-* $'''. the Supreme /ourt ruled that a 2.S. carbine ?$ caliber .=( was hi5h-powered because it was capable of e>ectin5 more than one bullet in one sueeDe. If it is the criterion* then lo5ically* caliber can be established by testimony establishin5 the manner in which the frearm e>ected bullets. 6he distin5uishin5 features of particularly frearms* furthermore* that may be recited by 7een observer sworn in a s witness my identify the frearm as well as it caliber. 6his can be established by a >udicious combination of the testimonial evidence of observers and e3perts. W(EN T(ERE IS AN ILLEGAL POSSESSION O) )IREARM A frearm is unlicensed when a certifcation from the S;irearms and J3plosives 2nitT attests that no license has been issued. 6here will still be a case for ille5al possession if one holdin5 a frearm duly licensed carries it outside his residence when he has no permit to carry it outside his residence 155 (Pastrano v. Court of (ppeals* %-$ S/#A %-9.. A fortiori* the use of a licensed frearm by one not licensed or permitted to use it would still be ille5al possession. ILLEGAL POSSESSION BUT IN GOOD )AIT(: A security 5uard employed by a security a5ency and issued a frearm by the a5ency has the ri5ht to assume that the frearm issued to him is a licensed frearm. If it turns out that the frearm is not licensed* there is no animus possidendi of an unlicensed frearm. (/uenco v. People* == S/#A &%%.. A PERSON W(O ACCEPTS A )IREARM )OR SA)EIEEPING MA-BE (ELD LIABLE I) (E CARRIES T(E SAME. 6he case is obviously diferent* however* if a police oFcer leaves with a cousin for safe7eepin5 his frearm. 6he cousin 7nows fully well that he has no permit or authority to 7eep the frearm. If he accepts to do this favor* he is indictable. (People v. /ayon#* $$( Phil &)&. ILLEGAL POSSESSION O) )IREARM MA-BE PRO,EN P3o2&ded no ot1e3 c3&me &s comm&tted. It is this proviso in the amendatory law that has visited countless woes on numerous >ud5es and has occasioned not easily reconcilable decisions by the Supreme /ourt .it is obviously a case of not only poor but miserable draftsmanshipW 156 %.$ It is clear that where there is no other ofense e3cept the unlawful possession of a frearm* the penalties provided for in the amended Section $ shall be imposedG prision correccional in its ma3imum period for low-powered frearms* and prision mayor in its ma3imum periods for hi5h- powered frearms. 6hus in People v. 'une- ".#. $$%('% (?arch $* %(($. holds that a person may be convicted of simple ille5al possession if the ille5al possession is proved and the frustrated murder and murder case V involvin5 the use of the ille5al possession V has not been suFciently proved. People v. Avecilla* ".#. $$9(== (;ebruary $&* %(($. teaches that Sthe crime of ille5al possession of frearms* in its simple form* is committed any of the crimes of murder* homicide* rebellion* insurrection* sedition or attempted coup d,etatT. %.%. It is also clear that where either homicide or murder is committed with the use of an unlicensed frearm* such use shall constitute an Sa55ravatin5 circumstancesT. It is well 7nown that #.A. -%'8 was initiated by Senator #amon #evilla as a favor to his friend #obin Padilla who was then servin5 sentence for ille5al possession. It was therefore meant to be more benevolent* as it is in the penalties it impose. Senator #evilla* however* could not see far enou5h (and re5rettably neither could other le5islators. and the efect at least in the case of murder is that it may send the accused to the lethal in>ection chamber where otherwise he would not be meted out the death penalty. People v. ?ontinola* ".#. $=$-&)-&9 (+uly $* %(($. with the /hief +ustice himself as ponente illustrates the complication the law has introduced. In this case* the accused had been char5ed with two ofensesG robbery with homicide and ille5al possession of frearms. Curin5 the pendency of the case* the amended law came into force. 6he court then held that insofar as #.A. 157 -%'8 was favorable to the accused in that it spared him from separate prosecution for ille5al possession* the char5e for ille5al possession was dropped. Insofar* however* as it increased the penalty for robbery with homicide* the a55ravatin5 circumstances of the use of unlicensed weapon could not be appreciated. Rule 11B /ection < of t%e Revised Rules of Criminal Procedure will applyG As an a55ravatin5 circumstances* the use of the unlicensed weapon must be alle5ed in the information. %.= :hen the violation of the law penaliDin5 unlicensed weapon is Sin furtherance of or incident to* or in connection with the crimes of rebellion* insurrection* sedition or attempted coup d,etatT then the violation is absorbed in the main ofense. (#.A. -%'8* Section $.. %.8 :hat happens when an unlicensed weapon is used in the commission of other ofenses other that homicide* murder* rebellion* insurrection* sedition or attempted coup d, etataE People v. :alpandlad>aalam* ".#. $=)$$8'-&$ ( September $'* %(((. provides the answer in the distinctively clear lan5ua5e of +ustice Pan5anibanG S6he law is clearG the accused can be convicted of simple ille5al possession of frearms* provided that Sno other crime was committed by the person arrested,. If the intention of the law in the second para5raph were to refer only to homicide and murder* it should have e3pressly said so* as it did in the third para5raph. Ierily* where the law does not distin5uish* neither should we.T In brief* where the accused commits a crime other than those enumerated with the use of an unlicensed weapon* no separate char5e for such use will be brou5ht a5ainst him. /onsistent with this is the disposition by the Supreme court decreedG SAccordin5ly* all pendin5 cases for ille5al possession of frearms 158 should be dismissed if they arose from the commissionT of crimes other than those indicated in Section $ and = of #.A. -%'8. %.& /learly the law leads to absurd results* for when the use of an unlicensed weapon attends the commission of a crime* no matter how trivial* the case of ille5al possession recedes into >udicial irrelevance. 6he matter is defnitely one that calls for a curative statute and the Supreme /ourt has referred the matter to the /on5ress for another loo7. @ne moral lesson can be learnedG Laws passed as favor to one,s friend is a poor lawsW OWNERS(IP IS NOT AN ESSENTIAL ELEMENT O) ILLEGAL POSSESSION 6he rule is that ownership is not an essential element of ille5al possession of frearms and ammunition. :hat the law reuires is merely possession which includes not only actual physical possession but also constructive possession or the sub>ection of the thin5 to one,s control and mana5ement. INTENT TO POSSESS! OR ANIMUS POSSIDENDI IS ESSENTIAL A distinction should be made between criminal intent and intent to possess. :hile mere possession without criminal intent is suFcient to convict a person for ille5al possession of frearms* it must still be shows that there was animus possidendi or an intent to possess on the part of the accused. 6here is no evidence of animus possedendi if the ofender was in possession of an unlicensed 159 frearm only on the occasion of the shootin5 for a transitory purpose and for the short moment in connection with the shootin5. Lac7 of evidence is an essential element of the crime and that the same must be alle5ed in the Information and duly proved. (People -vs- ?acaslin5* %=9 S/#A %''. @wnership of the 5un is immaterial or irrelevant in violation of PC $-))* as amended. @ne may be convicted of possession of an unlicensed frearm even if he is not the owner thereof. (People -vs- #eynaldo /ruD* "# <o. 9)9%-* Au5ust =* $'--. Jven if the 5un is 1palti7*1 there is a need to secure license for the 5un* and if found without any license therefor* the ofender is liable for violation of PC $-)). (People vs- ;ilemon #amos* %%% S/#A &&9. If an unlicensed frearm is used to commit a crime other than homicide or murder* such a direct assault with attempted homicide* the use of an unlicensed frearm is neither an a55ravatin5 circumstances nor a separate ofense. Since the law uses the word Aomicide or ?urder* possession of an unlicensed frearm is not a55ravatin5 in Attempted Aomicide. (People -vs- :alpan Lad>aamlam* et al.* "# <o. $=)$8'-&$* September $'* %(((. :here the accused was char5ed of ?urder and violation of PC $-)) and that* in the meantime* #epublic Act -%'8 too7 efect* the accused should be convicted only of ?urder. 6he use of unlicensed frearm should not be considered as a55ravatin5 because the /ourt will have to impose the death penalty which cannot be allowed because* at the 160 time of the commission of the ofense* the death penalty cannot as yet* be imposed. Aowever* in his concurrin5 opinion* /hief +ustice Ailario Cavide* +r. declared that* under such a factual milieu* the char5e of violation of PC $-)) should continue and if the accused is found 5uilty* he should be meted the death penalty under #epublic Act -%'8. (People -vs- Iictor ?acoy* "# <o. $%)%&=* Au5ust $)* %(((. :here the prosecution failed to adduce the 5un in evidence coupled with the fact that per /ertifcation of the ;J2* 1 no available information re5ardin5 the license for the 5un and the inconsistency in the evidence of the prosecution* the latter failed to dischar5e its burden. (People -vs- #icolito #u5ay* et al.* %'$ S/#A )'%. ?ere possession without criminal intent is suFcient on which to render a >ud5ment of conviction for violation of PC $-))* as amended. Aowever* there must be animus possedendi or intent to possess without any license or permit. "ood faith is not a defense. <either is lac7 of criminal intent. (People -vs- #odolfo Cela #osa* et al.* %-8 S/#A $&-. 6emporary* incidental* casual or harmless possession of frearm is not punishable. Aence* stealin5 a frearm to render the owner defenseless is not a crime under the law. (idem* supra. Possession includes actual physical possession and constructive possession. 6he animus can be determined from the overt acts of the accused prior to or coetaneous with and other surroundin5 circumstances of such possession. Aence* where the accused found a 5un and was on his way to deliver the 5un to the police authority and was 161 arrested* in the process* there is no animus possedendi. (People -vs- #odolfo Cela #osa* et al.* supra. Jven if a palti= is a homemade 5un and thus ille5ally manufactured nevertheless* the Prosecution is burdened to prove that the accused has no license for the 5un. (People -vs- ;elimon #amos* et al.* %%% S/#A &&9. ;or the accused to be 5uilty of violation of PC $-)) as amended the Prosecution must proveG (a. the e3istence of the sub>ect frearm! (b. the fact that the accused who owned or possessed the frearm does not have the correspondin5 license or permit to possess the same. (People -vs- #icolito #u5ay* et al.* %'$ S/#A )'%. :here the accused is convicted of violation of #epublic Act -%'8 and meted a penalty less than si3 (). years* and a fne of P$&*(((.((* he should be ordered to under5o subsidiary imprisonment in case of insolvency. (?ario #aba>a -vs- /ourt of Appealss* et al.* %-( S/#A %'(. In the li5ht of 1People -vs- ?artin Simon*1 %=8 S/#A &&&* and Articles $= and $8* in relation to Article )=* of the #evised Penal /ode and the Indeterminate Sentence Law for violation of the #evised Penal /ode may now be applied for violation of PC $-))* as amended and #epLublic Act )8%&* as amended. Jven if a person is licensed to possess a frearms but brin5s out frearm outside of his residence without permit therefor* he is 5uilty of violation of the last para5raph of Section $ of PC $-))* as amended. A ?ission @rder cannot ta7e 162 the place of a license. A ?ission @rder can only be issued to one licensed to possess a frearm. (Pedrito Pastrano -vs- /ourt of Appeals* et al.* %-$ S/#A %-9. If the accused borrowed a 5un from another who is licensed to possess frearm* may the former be liable for violation of PC $-))* as amendedE Kes. Jven if the 5un is licensed to one and lends it to another* the latter is liable for violation of PC $-))* as amended. A license to possess a frearm and a permit to carry a licensed frearm outside of his residence is not transferable. (Pedrito Pastrano -vs- /ourt of Appeals* et al.* supra. Jven if the frearm sub>ect of the crime is not adduced in evidence one may still be convicted of possession of an unlicensed frearm as lon5 as proof was adduced that the acused was in possession of a frearm. (People -vs- ;elicisimo <arvasa* "# <o. $%-)$-* <ovember $)* $''-. NOTE: 2nder #epublic Act -%'8* the penalty depends upon the caliber of the 5un. Suppose there is no testimony as to the caliber of the 5unE :here a security 5uard was 5iven by his employer* a security a5ency* a frearm* and the accused assumed that the employer secured the license for the frearm but that it turned out that the employer failed to 5et any license* the security 5uard is not criminally liable. 6he security 5uard has the ri5ht to assume that the security a5ency secured the license. (Jrnesto /uenca -vs- People* == S/#A &%%. If a constabulary soldier entrusted his 5un to the accused for safe7eepin5 and later the accused 163 found in possession of the 5un* the accused is 5uilty of possession of unlicensed frearm. 6o e3culpate himself* the accused must prove absence of animus possidendi. (People -vs- Perlito Soyan5* et al.* $$( Phil. &)&* &-=. A secured a loan from B and pled5ed his unlicensed frearm as security for the loan. A promised to pay his loan and retrieve the frearm as soon as he had money. B found in possession of the unlicensed frearm. ;or the court to sustain the contention of B is to authoriDe the indefnite possession by B of the unlicensed frearm because there was no way to determine when A could pay his account. (People -vs- /ornelio ?el5as* $(( Phil. %'-. If a licensed frearm if used to commit ?urder or Aomicide* such circumstances is merely a special a55ravatin5 circumstance which must be alle5ed in the Information and cannot be ofset by any miti5atin5 circumstance. (People -vs- Meriato Molina et al.* ".#. <o. $$&-=&* +uly %%* $''-! People -vs- 'arvasa ".#. no. $%-)$- <ovember $-* $''-. 6he Cecision of the Supreme /ourt in People -vs- Paterno 6ac-an* $-% S/#A )($! People -vs- +esus Ceunida* and People -vs- Barros and People -vs- Caniel Pui>ada %&' S/#A $'$ had been overta7en by #epublic Act -%'8. 2nder the amendment* the death penalty may now be imposed if the accused is convicted of ?urder with the use of licensed or unlicensed frearms.
As lon5 as the accused is proved to have been in possession of the unlicensed frearm even if the 164 frearm is not adduced in evidence* conviction under the law is proper. (People -vs- ;elicisimo <arvasa* supra. Re8u<li" A" &25% oo' eMe" on July 6! $55A. If the accused is char5ed of ?urder and violation of PC $-)) and durin5 the trial* #epublic Act -%'8 too7 efect* the accused cannot be convicted of violation of PC $-))* as amended. <either should the possession of an unlicensed frearm be considered as an a55ravatin5 circumstance as it will be less favorable to the accused. If the accused used a sumpa= to 7ill the victim* the prosecution must prove that he had no license or permit to possess the sumpa=. (People -vs- /ipriano de Iera* ".#. <o. $%$8)%-)=* +une '* $'''. /ompare 1People -vs- :ilfredo ;iloteo*1 %'( S/#A )%9 where the accused was convicted of ?urder and violation of PC $-)) and durin5 the pendency of the appeal* #epublic Act -%'8 too7 efect. @ur Supreme /ourt aFrmed the conviction of the Accused of two (%. crime of Aomicide and violation of PC $-))* as amended* and applied the penalty for the crimes under the amendment. In 1People -vs- Ceriato Molina et al.G %'% S/#A 98%* our Supreme /ourt Jn Banc declared that where the accused was convicted of said crio*es* by the 6rial /ourt but that durin5 the pendency of the appeal* with the Supreme /ourt* #epublic Act -%'8 too7 efect* the accused should only be convicted of ?urder with the use of an unlicensed frearm as mere a special a55ravatin5 circumstance. 165 ?urder* under #epublic Act -%'8* is used in its 5eneric term and* hence* includes Parricide (People versus @ctavio ?endoDa* "# <o. $('%9(--(* +anuary $-*$'''. A 2nited States carbine ?$* caliber .=-( is a hi5h-powered 5un because it is capable of emittin5 two or three bullets in one sueeDe. (People -vs- Jduardo "utierreD* "# <o. $=%-9-* September $'''. It is not necessary that the frearm be produced and ofered in evidence for #epublic Act -%'8 to apply. It is not enou5h that there is evidence of the e3istence of the 5un which can be established either by testimony or presentation of the 5un itself. Possession of an unlicensed frearm and used in 7illin5 is a special a55ravatin5 circumstance. (People -vs- ;elicisimo <arvasa* "# <o. $%-)$-* <ovember $-* $''-. 6he Cecision of the Supreme /ourt in People versus Rex 0er#ante et. al. "# <o. $%(=)'* ;ebruary %9* $''-* that the use of an unlicensed frearm to commit murder is only a 5eneric a55ravatin5 circumstance is no lon5er true. Possession under the law may either be actual physical possession or constructive possession. Aowever* althou5h the crime under PC $-))* as amended* is malum prohibitum* however* there must be animus possidendi* or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed frearm is under the apparent control and power of the accused. however* animus possidendi may be contradicted if a person in possession of an unlicensed frearm does not assert a ri5ht thereto. 166 If the possession of an unlicensed 5un is merely temporary* incidental or transient* the same is not punishable under PC $-)). Aowever* the law does not provide for a f3ed period of time for one to be deemed in 1possession1 of an unlicensed frearm. (People -vs- Rolando Cerc%es 466 /CR( 1:7.. Jach factual milieu must be considered. IMPLICATION B- RA &25% ON PD $&66 BILLEGAL POSSESSION O) )IREARMSC P.C. $-))* which codifed the laws on ille5al possession of frearms* was amended on +une )* $''9 by #epublic Act -%)8. Aside from lowerin5 the penalty for said crime* #.A. -%'8 also provided that i; #o>i"i:e or >ur:er i7 "o>>ie: 9i# #e u7e o; an unli"en7e: ?rear>! 7u"# u7e 7#all <e "on7i:ere: a7 a 78e"ial aggra=aing "ir"u>7an"e. 6his amendment has two (%. implicationsG ?r7* the use of an unlicensed frearm in the commission of homicide or murder shall not be treated as a separate ofense* but merely as a special a55ravatin5 circumstance! 7e"on:* as only a sin5le crime (homicide or murder with the a55ravatin5 circumstance of ille5al possession of frearm. is committed under the law* only one penalty shall be imposed on the accused. Prescindin5 therefrom* and considerin5 that the provisions of the amendatory law are favorable to herein appellant* the new law should be retroactively applied in the case at bar. It was thus error for the trial court to convict the appellant of two (%. separate ofenses* i.e.* Aomicide and Ille5al Possession of ;irearms* and punish him separately for each crime. Based on the facts of the case* the 167 crime for which the appellant may be char5ed is #o>i"i:e! aggra=ae: <y illegal 8o77e77ion o; ?rear>* the correct denomination for the crime* and no illegal 8o77e77ion o; ?rear>! aggra=ae: <y #o>i"i:e as ruled by the trial court* as it is the former ofense which a55ravates the crime of homicide under the amendatory law. E,EN I) ACCUSED ADMITTED T(AT (E (AS NO LICENSE! SUC( ADMISSION IS NOT SU))ICIENT PROO) O) ILLEGAL POSSESSION O) )IREARM Aence* in the case at bar* al#oug# #e a88ellan #i>7el; a:>ie: #a #e #a: no li"en7e ;or #e gun re"o=ere: ;ro> #i7 8o77e77ion! #i7 a:>i77ion 9ill no relie=e #e 8ro7e"uion o; i7 :uy o e7a<li7# <eyon: rea7ona<le :ou< #e a88ellanN7 la"' o; li"en7e or 8er>i o 8o77e77 #e gun. In Peo8le =7. Solayao* we e3pounded on this doctrine* thusG 13 3 3 by its very nature* an admission is the mere ac7nowled5ement of a fact or of circumstances from which 5uilt may be inferred* tendin5 to incriminate the spea7er* but not suFcient of itself to establish his 5uilt.1 In other words* it is a statement by defendant of fact or facts pertinent to issues pendin5* in connection with proof of other facts or circumstances* to prove 5uilt* but which is* of itself* insuFcient to authoriDe conviction. ;rom the above principles* this /ourt can infer that an a:>i77ion in "ri>inal "a7e7 i7 in7uO"ien o 8ro=e <eyon: :ou< #e "o>>i77ion o; #e "ri>e "#arge:. 1?oreover* 7ai: a:>i77ion i7 ePraFu:i"ial in naure. As such* it does not fall under Section 168 8 of #ule $%' of the #evised #ules of /ourt which statesG An admission* verbal or written* made by a party in the course of the trial or other proceedin5s in the same case does not reuire proof. 1<ot bein5 a >udicial admission* said 7ae>en <y a""u7e:.a88ellan :oe7 no 8ro=e <eyon: rea7ona<le :ou< #e 7e"on: ele>en o; illegal 8o77e77ion o; ?rear>. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but :oe7 no 7an: a7 8roo; o; #e ;a" o; a<7en"e or la"' o; a li"en7e.1 (emphasis supplied. $PP -vs- J?L!(' C(/+!LL> ) L?M()R> G.R. 'o. 1619<4-<6 Aeb. 19 4BBB& ELEMENTS O) ILLEGAL POSSESSION O) )IREARMS 6o convict an accused for ille5al possession of frearms and e3plosive under P.C. $-)) as amended* two (%. essential elements must be indubitably established* viDG (a. the ePi7en"e o; #e 7u<Fe" ?rear> or eP8lo7i=e which may be proved by the presentation of the sub>ect frearm or e3plosive or by the testimony of witnesses who saw accused in possession of the same* and (b. #e negai=e ;a" #a #e a""u7e: #a: no li"en7e or 8er>i o o9n or 8o77e77 #e ?rear> or eP8lo7i=e which fact may be established by the testimony or certifcation of a representative of the P<P ;irearms and J3plosives 2nit that the accused has no license or permit to possess the sub>ect frearm or e3plosive. In the case at bar* the prosecution failed to prove the second element of the crime* i.e.* the lac7 of license or permit of appellant /orteD to 169 possess the hand 5renade. Althou5h the hand 5renade seiDed by P@% Santos from appellant was presented in court* the records bear that P@% Santos :i: no 7u<>i #e grena:e o #e PNP )irear>7 an: EP8lo7i=e7 Uni for verifcation. 6his e3plains why no "eri?"aion or e7i>ony 9a7 a::u"e: <y #e 8ro7e"uion a #e rial o 8ro=e #a a88ellan CoreG 9a7 no li"en7e: o 8o77e77 #e eP8lo7i=e. 6he failure of the prosecution to adduce this fact is fatal to its cause. :e stress that the essence of the crime penaliDed under P.C. $-)) is primarily the a""u7e:N7 la"' o; li"en7e or 8er>i o "arry or 8o77e77 #e ?rear>! a>>uniion or eP8lo7i=e a7 8o77e77ion <y i7el; i7 no 8ro#i<ie: <y la9. MA- E*PLOSI,ES BE GI,EN A PERMIT OR LICENSE4 In the case of an e3plosive* a permit or license to possess it is usually 5ranted to minin5 corporations* military personnel and other le5itimate users. $PP -vs- 0"R'!" C>R+"@ ) '(+('!> "+ (L. G.R. 'os. 161;1<-4B Aeb. 1 4BBB& UNDER R.A. &25% A SEPARATE CON,ICTION )OR ILLEGAL POSSESSION O) )IREARMS AND )OR (OMICIDE IS NOT ALLOWED :ith respect to the conviction of accused-appellant for ille5al possession of frearms under P.C. <o. $-))* it was held in the case of Peo8le =7. Molina and reiterated in the recent case of Peo8le =7. Ronal:o ,al:eG! that in cases where murder or homicide is committed with the use of an unlicensed frearm* there can be no separate conviction for the crime of ille5al possession of 170 frearms under P.C. <o. $-)) in view of the amendments introduced by #epublic Act <o. -%'8. 6hereunder* the use of unlicensed frearm in murder or homicide is simply considered as an a55ravatin5 circumstance in the murder or homicide and no lon5er as a separate ofense. ;urthermore* the penalty for ille5al possession of frearms shall be imposed provided that no crime is committed. In other words* where murder or homicide was committed* the penalty for ille5al possession of frearms is no lon5er imposable since it becomes merely a special a55ravatin5 circumstance. $PP -vs- (?G?/+> L>R"+> R!'G>R JR. G.R. 'o. 146<1D Dec. < 1<<<& 171 ANTI.WIRE TAPPING LAW BRA %233C (ec. 1. It shall be unlawful for any person* not bein5 authoriDed by all the parties to any private communication or spo7en word* to tap any wire or cable* or by usin5 any other device or arran5ement* to secretly overhear* intercept* or record such communication or spo7en word by usin5 a device commonly 7nown as a dictaphone or dicta5raph or dectaphone or wal7ie-tal7ie or tape recorder* or however otherwise describedG It shall also be unlawful for any person* be he a participant or not in the act or acts penaliDed in the ne3t precedin5 sentence* to 7nowin5ly possess any tape record* wire record* disc record* or any other such record* or copies thereof* of any communication or spo7en word secured either before or after the efective date of this Act in the manner prohibited by this law! or to replay the same for any other person or persons! or to communicate the contents thereof* either verbally or in writin5* or to furnish transcriptions thereof* whether complete or partial* to any other personG Provided* 6hat the use of such record or any copies thereof as evidence in any civil* criminal investi5ation or trial of ofenses mentioned in section = hereof* shall not be covered by this prohibition. LISTENING TO CON,ERSATION IN E*TENSION LINE O) TELEP(ONE IS NOT WIRE.TAPPING An e3tension telephone cannot be placed in the same cate5ory as a dictaphone* dicta5raph or the other devices enumerated in Section $ of #A 8%(( as the use thereof cannot be considered as 172 tappin5 the wire or cable of a telephone line. 6he telephone e3tension in this case was not installed for that purpose. It >ust happened to be there for ordinary oFce use. It is a rule in statutory construction that in order to determine the true intent of the le5islature* the particular clauses and phrases of the statute should not be ta7en as detached and isolated e3pressions* but the whole and every part thereof must be considered in f3in5 the meanin5 of any of its parts. ()) S/#A $$=*$%(. A PERSON CALLING ANOT(ER B- P(ONE MA- SA)EL- PRESUME T(AT T(E OT(ER MA- (A,E AN E*TENSION LINE AND RUNS T(E RISI O) BEING (EARD B- A K RD PART-. An e3tension telephone is an instrument which is very common especially now when the e3tended unit does not have to be connected by wire to the main telephone but can be moved from place to place within a radius of a 7ilometer or more. A person should safely presume that the party he is callin5 at the other end of the line probably has an e3tension telephone and he runs the ris7 of a third party listenin5 as in the case of a party line or a telephone unit which shares its line with another. MERE ACT O) LISTENING TO A TELEP(ONE CON,ERSATION IN AN E*TENSION LINE IS NOT PUNIS(ED B- ANTI.WIRE TAPPING LAW It can be readily seen that our lawma7ers intended to discoura5e throu5h punishment* persons such as 5overnment authorities or representatives of or5aniDed 5roups from installin5 devices in order to 5ather evidence for use in court 173 or to intimidate* blac7mail or 5ain some unwarranted advanta5e over the telephone users. /onseuently* the mere act of listenin5* in order to be punishable must strictly be with the use of the enumerated devices in #A 8%(( or others of similar nature. :e are of the view that an e3tension telephone is not amon5 such devices or arran5ements. 174 RAPE AS CRIME AGAINST PERSONS (R.A. %353) Ra.e: !1en And Ho9 +omm&tted 1$. By a man who shall have carnal 7nowled5e of a woman under any of the followin5 circumstancesG 1a. 6hrou5h force* threat* or intimidation! 1b. :hen the ofended party is deprived of reason or otherwise unconscious! 1c. By means of fraudulent machination or 5rave abuse of authority! and 1d. :hen the ofended party is under twelve ($%. years of a5e or is demented* even thou5h none of the circumstances mentioned above be present. 1%. By any person who* under any of the circumstances mentioned in para5raph $ hereof* shall commit an act of se3ual assault by insertin5 his penis into another person4s mouth or anal orifce* or any instrument or ob>ect* into the 5enital or anal orifce of another person. W(EN INE*CUSABLE IMPRUDENCE ON PART O) ,ICTIM AS TO IDENTIT- O) O))ENDER IS NOT RAPE! W(EN A WOMAN )AILED TO ASCERTAIN T(E IDENTIT- O) T(E MAN. 6he evidence shows that this mista7e was purely a sub>ective conf5uration of Qareen4s mind 0 an assumption entirely contrived by her. @ur impression is that Silvino had nothin5 to do with the formulation of this belief! he did nothin5 to mislead or deceive Qareen into thin7in5 that he was Jnrico. In fact* Silvino precisely* and confdently* told her* 1Qareen* it4s not #ic7y* it4s +un. I love you.1 It is thus obvious that whatever 175 mista7e there was could only be attributable to Qareen 0 and her ine3cusable imprudence 0 and to nobody else. /learly* the fault was hers. She had the opportunity to ascertain the identity of the man but she preferred to remain passive and allow thin5s to happen as they did. Silvino never used force on her and was even most possibly encoura5ed by the fact that when he pulled down her panties she never ob>ected! when her le5s were bein5 parted she never ob>ected! and* when he fnally mounted her she never ob>ected. :here then was forceE 6hird* Qareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. Aer lame e3cuse was that she was half-asleep. Aowever she admitted that in the early mornin5 of $ ?ay $''8 she wo7e up to fnd someone removin5 her underwear. 6huswise it cannot be said that she was deprived of reason or unconscious. She 7new* hence was conscious* when her panties were bein5 pulled down! she 7new* hence was conscious* when her le5s were bein5 parted to prepare for the se3ual act! she 7new* hence was conscious* when the man was pullin5 down his briefs to prepare himself li7ewise for the copulation! she 7new* hence was conscious* when the man mounted her and lusted after her virtue. Aer >ustifcation was that she never ob>ected to the se3ual act from the start because she thou5ht that the man was her boyfriend with whom she was havin5 se3 almost every ni5ht for the past three (=. wee7s as they were 5ettin5 married and wanted already to have a baby. In other words* her ur5e could not wait for the more appropriate time. (People v. SalarDa* +r.. NATURE O) INTIMIDATION IN RAPE CASES 176 Intimidation is addressed to the mind of the victim. It is sub>ective and its presence cannot be tested by any hard-and-fast rule* but must be viewed in the li5ht of the victim,s perception and >ud5ement at the time of the crime. In the case at bar* at the time the crime was committed* the victim was 8( yrs. old* & months pre5nant* unarmed and married to a person older than her by almost %( yrs.. In contrast* appellant was in his %(,s* armed with a 5un and purportedly in the company of several <PA members. 6he crime happened in the evenin5 and in a place where help was impossible. 6he nearest nei5hbor of the victim is some = 7ms. from their hut. /onsiderin5 all these circumstances* we hold that the victim was intimidated to submit to the lustful desire of the appellant. (Pp. I. ?ostrales! "# $%&'=9* Au5.%-* $''-. W(EN MORAL ASCENDANC- IS SUSTAINED AS INTIMIDATION IS RAPE. Intimidation in rape cases is not calibrated nor 5overned by hard and fast rules. Since it is addressed to the victim4s and is therefore sub>ective* it must be viewed in li5ht of the victim4s perception and >ud5ment at the time of the commission of the crime. It is enou5h that the intimidation produced fear 0 fear that if the victim did not yield to the bestial demands of the accused* somethin5 far worse would happen to her at that moment. :here such intimidation e3isted and the victim was cowed into submission as a result thereof* thereby renderin5 resistance futile* it would be the hei5ht of unreasonableness to e3pect the victim to resist with all her mi5ht and stren5th. If resistance would nevertheless be futile because of intimidation* then oferin5 none at all does not mean consent to the assault so as to 177 ma7e the victim4s submission to the se3ual act voluntary. In any event* in a rape committed by a father a5ainst his own dau5hter* as in this case* the former4s moral ascendancy or inNuence over the latter substitutes for violence or intimidation. Li7ewise* it must not be for5otten that at her tender a5e of $8 years* JCJ< could not be e3pected to act with the euanimity of disposition and with nerves of steel* or to act li7e a mature and e3perienced woman who would 7now what to do under the circumstances* or to have coura5e and intelli5ence to disre5ard the threat. Jven in cases of rape of mature women* this /ourt reco5niDed their diferent and unpredictable reactions. Some may shout! some may faint! and some may be shoc7ed into insensibility! while others may openly welcome the intrusion. (People v. A5bayani! "# $%%99(* +an. $)* ,'-. TEST TO DETERMINE W(ET(ER A WOMAN ,OLUNTARIL- SUBMITTED TO SE*UAL INTERCOURSE OR NOT DUE TO INTIMIDATION Physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to the lust of an accused. +urisprudence holds that even thou5h a man lays no hand on a woman* yet if by array of physical forces he so overpowers her mind that she does not resist or she ceases resistance throu5h fear of 5reater harm* the consummation of unlawful intercourse by the man is rape. (Pp. I. ?ostrales! "# $%&'=9* Au5.%-* $''-. DATE O) COMMISSION O) RAPE 178 NOT ESSENTIAL ELEMENT O) SAID CRIME It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence durin5 the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. 6he failure of the complainant to state the e3act date and time of the commission of the rape is a minor matter. (Pp. I. BernaldeD! "# $('9-(*Au5. $9* $''-. E*AMPLE O) ,IRTUAL CON)ESSION O) )ACT AND NOT IN LAW IN CASES O) RAPE It is conceded that after the rape* Accused sent complainant two letters in which he implored her for5iveness and ofered to leave his wife so that he could be with her. In fne* appellant sealed his own fate by admittin5 his crime under a seal of virtual confession in fact* if not in law. (Pp. I. Prades! "# $%9&)'* +uly =(* $''-. C(ILD BORN B- REASON O) RAPE MUST BE ACINOWLEDGED B- O))ENDER UPON ORDERS O) T(E COURT ;urthermore* since A<ALIQA be5ot a child by reason of the rape* CA<6J must ac7nowled5e and support the ofsprin5 pursuant to Article =8& of the #evised Penal /ode in relation to Article %($ of the ;amily /ode. (People v. Alfeche. DWELLING AS AGGRA,ATING CIRCUMSTANCE IN RAPE CASES 179 It is clear* however* that the a55ravatin5 circumstance of dwellin5 is attendant in the commission of the crime. Article $8(&. of the #evised Penal /ode provides that this circumstance a55ravates a felony where the crime is committed in the dwellin5 of the ofended party* if the latter has not 5iven provocation. In the instant case* the aforesaid circumstance of dwellin5 was defnitely present in the commission of the crime of rape with the use of a deadly weapon. (Pp. I. Prades! "# $%9&)'* +uly =(* $''-. INDEMNIT- IN CERTAIN CASES O) RAPE 6he recent >udicial prescription is that the indemnifcation for the victim shall be in the increased amount of P9&*(((.(( if the crime of rape is committed or efectively ualifed by any of the circumstances under which the death penalty is authoriDed by the applicable amendatory laws. (Pp. I. Prades! "#$%9&)'* +uly =(* $''-. MORAL DAMAGES NEED NOT BE ALLEGED AND PRO,ED IN CASES O) RAPE Indeed* the conventional reuirement of alle#ata et probata in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein* since no appropriate pleadin5s are fle wherein such alle5ations can be made. (Pp. I. Prades! "# $%9&)'* +uly =(* $''-. MEANING O) DEADL- WEAPON IN CASES O) RAPE A Sdeadly weaponT is any weapon or instrument made and desi5ned for ofensive or 180 defensive purposes* or for the destruction of life or thee inNiction of in>ury! or one which* from the manner used* is calculated or li7ely to produce death or serious bodily harm. In our >urisdiction* it has been held that a 7nife is a deadly weapon. (Pp. I. Alfeche! "# $%8%$=* Au5. $9* $''-. )ORCE AND INTIMIDATION NOT NEEDED IN RAPE O) RETARDATE Althou5h the information alle5ed Sforce* threats* and intimidationT* it nevertheless also e3plicitly stated that 6essie is a Smentally retarded person.T :e have held in a lon5 line of cases that if the mental a5e of a woman above $% years is that of a child below $% years* even if she voluntarily submitted to the bestial desires of the accused* or even if the circumstances of force or intimidation or of the victim bein5 deprived of reason or otherwise unconscious are absent* the accused would still be liable for rape under the = rd circumstance of Art. ==&. 6he rationale therefor is that if se3ual intercourse with a victim under $% years of a5e is rape* then it should follow that carnal 7nowled5e of a woman whose mental a5e is that of a child below $% years would constitute rape. (People v. Aector Jstares! $%H&H'9. USE O) )ORCE OR INTIMIDATION NOT AN ELEMENT O) STATUTOR- RAPE In any event* the use of force or intimidation is not an element of statutory rape. 6he ofense is established upon proof that the accused se3ually violated the ofended party* who was below $% years of a5e at the time of the se3ual assault. In other words* it is not relevant to this case whether 181 appellant slapped or bo3ed the victim* or whether he used a sin5le-bladed or a double-ed5ed 7nife. (People v. @liva! $%H&H'9. RAPE CAN BE COMMITTED IN DI))ERENT PLACES E,EN T(OSE IN (IG( ,ENUES It has been emphasiDed that rape can be committed in many diferent places* includin5 places which to many would appear to be unli7ely and hi5h-ris7 venues for se3ual advances. 6hus* rape has been committed even in places where people con5re5ate* in par7s* alon5 the roadside* within school premises* inside a house where there are other occupants* and even in the same room where other members of the family are also sleepin5. (People v. "ementiDa! $H%'H'-. W(EN SWEET(EART DE)ENSE IS TENABLE IN RAPE 6he SsweetheartT defense put up by the accused merits serious consideration. :hile the theory does not often 5ain favor with the court* such is not always the case if the hard fact is that the accused and the supposed victim are in fact intimately related e3cept that* as is true in most cases* the relationship is either illicit* or the parents are a5ainst it. In such instances* it is not improbable that when the relationship is uncovered* the victim,s parents would ta7e the ris7 of institutin5 a criminal action rather than admit to the indiscretion of their dau5hter. And this* as the records reveal* is what happened in this case. (People vs #ico +amlan Salem* @ctober $)H'9. 182 A MEDICAL E*AMINATION O) ,ICTIM IS NOT ELEMENT O) RAPE A medical e3amination is not an indispensable element in a prosecution for rape. 6he accused may be convicted on the sole basis of complainant,s testimony* if credible* and the fndin5s of the medico-le5al oFcer do not disprove the commission of rape. (People v +enelito Jscober K #esuento* <ov )H'9. (EINOUSNESS O) RAPE O) ONEQS DESCENDANT In the case before us* the accused raped his own Nesh and blood at such a tender a5e of eleven. Ae thus violated not only he purity and her trust but also the mores of his society which he has scornfully defned. By inNictin5 his animal 5reed on her in a dis5ustin5 coercion of incestuous lust* he forfeits all respect as human bein5 and is >ustly spurned by all* not least of all* by the fruit of his own loins whose pro5eny he has forever stained with his shameful and shameless lechery. (People v >enelito Jscober K #esuento* <ov )H'9. MERE DISCIPLINAR- C(ASTISEMENT IS NOT ENOUG( TO DOUBT CREDIBILIT- O) RAPE ,ICTIM W(O IS A DESCENDANT ?ere disciplinary chastisement is not stron5 enou5h to ma7e dau5hters in a ;ilipino family invent a char5e that would only brin5 shame and humiliation upon them and their own family and ma7e them the ob>ect of 5ossip amon5 their 183 classmates and friends. It is unbelievable that +acueline would fabricate a serious criminal char5e >ust to 5et even with her father and to emphasiDe with her sister. 6he sisters would not contrive stories of deNoration and char5e their own father with rape unless these stories are true. ;or that matter* no youn5 ;ilipina of decent repute would falsely and publicly admit that she had been ravished and abused considerin5 the social sti5ma thereof. (People v 6abu5oca* "# <o. $%&==8. SODOM- IS NOT T(E SAME AS IGNOMIN- NOR CAN IT BE CONSIDERED AS IGNOMIN-. 1I5nominy is a circumstance pertainin5 to the moral order* which adds dis5race and oblilouy to the material in>ury caused by the crime.1 6hus* for i5nominy to be appreciated as an a55ravatin5 circumstance in the instant case* it must be shown that the se3ual assault on ;rancis Bart was done by accused-appellant to put the former to shame before 7illin5 him. 6his is clearly not the case here for accused-appellant4s intention was shown to be the commission of se3ual abuse on the victim as an act of reven5e for his similar e3perience as a child. W(EN T(E IN)ORMATIONS ON RAPE CASES )AILED TO ALLEGE ACTUAL RELATIONS(IP ETC. (ENCE DEAT( PENALT- CANNOT BE IMPOSED In this case* the information4s in /riminal /ase <os. --''--'(( alle5ed that accused-appellant* 1who is the stepfather of the private ofended party1 by 1force* violence and intimidation1 succeeded in havin5 carnal 7nowled5e of the latter when she was then $8 and $= years old* 184 respectively. @n the otherhand* the information in /riminal /ase <os. -'8&--'8) alle5ed that accused-appellant* 1whoX. is the stepfather of victim +enny ?acaro1 succeeded in havin5 carnal 7nowled5e of the latter* who was a 5irl below $% years old. As already noted* contrary to these alle5ations* accused-appellant is not really the stepfather of complainants Lenny and +enny because accused-appellant and complainants4 mother were not le5ally married but were merely livin5 in common-law relation. In fact* Lenny and +enny interchan5eably referred to accused- appellant as their stepfather* G=abitG Glive-in partner n# Mama =oG GtiyoG and Gtiyu%in.G /omplainants4 sister-in-law* #osalie ?acaro* also testifed that her 1mother-in-law is not le5ally married to accused-appellant.1 Accused-appellant li7ewise said on direct and cross-e3amination that he was not le5ally married to the mother of the complainants* and he referred to her as his live-in partner. 6his was confrmed by Jmma ?acaro* mother of the complainants. Althou5h the rape of a person under ei5hteen ($-. years of a5e by the common-law spouse of the victim4s mother is punishable by death* this penalty cannot be imposed on accused-appellant in these cases because this relationship was not what was alle5ed in the information4s. :hat was alle5ed was that he is the stepfather of the complainants. IN)ORMATION IN RAPE CASES WIT( USE O) DEADL- WEAPON MUST BE ALLEGED OT(ERWISE DEAT( PENALT-! CANNOT BE IMPOSED <either can accused-appellant be meted the death penalty in /riminal /ase <o. -'(( where he committed the rape after threatenin5 the victim* Lenny ?acaro* with a 7nife. 2nder Art. ==& of the 185 #evised Penal /ode* simple rape is punishable by Greclusion perpetua.G :hen the rape is committed 1with the use of a deadly weapon*1 i.e.* when a deadly weapon is used to ma7e the victim submit to the will of the ofender* the penalty is Kreclusion perpetua to death.1 6his circumstance must however be alle5ed in the information because it is also in the nature of a ualifyin5 circumstance which increases the ran5e of the penalty to include death. In /riminal /ase <o. -'((* while complainant Lenny testifed that accused-appellant raped her after threatenin5 her with a 7nife* the 1use of a deadly weapon1 in the commission of the crime was not alle5ed in the information. 6herefore* even if the same was prove* it cannot be appreciated as a ualifyin5 circumstance. 6he same can only be treated as 5eneric a55ravatin5 circumstance which* in this case* cannot afect the penalty to be impose* i.e.* reclusion perpetua. Accordin5ly* the accused-appellant should be sentenced to the penalty of reclusion perpetua. Accordin5ly* the accused-appellant should be sentenced to the penalty of reclusion perpetua for each of the four counts of rape. $PP -vs- A"L!M0"R+> AR(G( ) 0()L>' G.R. 'os. 16716B-66 (pril 14 4BBB& E*AMINATIONS O) ALL SPECIMENS IN DRUG CASES NOT NECESSAR- :e are not persuaded by the claim of accused- appellants that in order for them to be convicted of sellin5 %*-(( 5rams of mari>uana* the whole specimen must be tested considerin5 that #epublic Act 9)&' imposes a penalty dependent on the amount or the uantity of dru5s seiDed or ta7en. 6his /ourt has ruled that a sample from one of the pac7a5es is lo5ically presumed to be representative of the entire contents of the 186 pac7a5e unless proven otherwise by accused- appellant. (PP -vs- CI@L@ BA#I6A K SA/PA* J6 AL.* ".#. <o. $%=&8$* ;eb. -* %(((. MEDICAL E*AMINATION NOT RE0UIRED IN RAPE CASES 6his /ourt has also ruled that a medical e3amination is not indispensable to the prosecution of rape as lon5 as the evidence on hand convinces the court that a conviction of rape is proper. W(EN CARNAL INOWLEDGE IS CONSUMATED It is worth mentionin5 that in rape cases* the prosecution is not reuired to establish penile penetration because even the sli5htest touchin5 of the female 5enitalia* or mere introduction of the male or5an into the labia of the pudendum constitutes carnal 7nowled5e. $PP -vs- A"R'('D> C(L('G M(C>/+( alias GD>D>'GG G.R. 'o. 14;<97 Dec. 17 1<<<& T(E C(ARGE O) RAPE DO NOT INCLUDE SIMPLE SEDUCTION. (ENCE! I) ONE IS C(ARGE WIT( RAPE AND IS NT PRO,EN! ACCUSED CANNOT BE (ELD GUILT- O) SIMPLE SEDUCTION. Jven as the prosecution failed to proved the use of force* violence and intimidation by the accused-appellant* we cannot convict the accused- appellant of the crime of simple seduction without ofense to the constitutional ri5hts of the accused- appellant to due process and to be informed the accusation a5ainst him. 6he char5e of rape does 187 not include simple seduction. $PP -vs L>L!+> M>R"'> ) L('C!>' alias GL>L>)G G.R. 'o. 1191<1 Dec. 41 1<<<& W(AT ARE T(E ELEMENTS O) RAPE 6he elements of rape areG ($. that the ofender had carnal 7nowled5e of a woman! (%. that such act is accomplished by usin5 force or intimidation! or when the woman is deprived of reason or otherwise unconscious! or when the woman is under twelve years of a5e or is demented. MEANING O) TAIING AD,ANTAGE O) SUPERIOR STRENGT( IN RAPE CASES 6a7in5 advanta5e of superior stren5th means to purposely use e3cessive force out of proportion to the means available to the person attac7ed. It is abuse of superior numbers or employment of means to wea7en the defense. 6his circumstance is always considered whenever there is notorious ineuality of forces between the victim and the a55ressor* assumin5 a situation of superiority notoriously advanta5eous for the a55ressor deliberately chosen by him in the commission of the crime. 6o properly appreciate it* it is necessary to evaluate not only the physical condition of the parties and the arms or ob>ects employed but the incidents in the total development of the case as well. ?oreover* li7e the crime of parricide by a husband on his wife* abuse of superior stren5th Is inherent in rape. It is 5enerally accepted that under normal circumstances a man who commits 188 rape on a woman is physically stron5er than the latter. $PP -vs- "DG(RD> D" L">' ) /('+>/ G.R. 'o. 14D76; Dec. 1B 1<<<& W(EN TESTIMON- O) ,ICTIM IS O,ERL- GENERALI1ED IN CRIME O) RAPE Jach and every char5e of rape is a separate and distinct crime so that each of the si3teen other rapes char5ed should be proven beyond reasonable doubt. 6he victim4s testimony was overly 5eneraliDed and lac7ed specifc details on how each of the alle5ed si3teen rapes was committed. Aer bare statement that she was raped so many times on certain wee7s is clearly inadeuate and 5rossly insuFcient to establish the 5uilt of accused-appellant insofar as the other si3teen rapes char5ed are concerned. In People vs. Garcia this /ourt succinctly observed thatG xxx t%e inde3nite testimonial evidence t%at complainant *as raped every *ee= is decidedly inade8uate and #rossly insu.cient to establis% t%e #uilt of appellant t%erefor *it% t%e re8uired 8uantum of evidence. /o muc% of suc% inde3nite imputations of rape *%ic% are uncorroborated by any ot%er evidence fall *it%in t%is cate#ory. $PP -vs- "DM?'D> D" L">' ) J"/?/ G.R. 'o 16B<D9 Dec. 6 1<<< CONCURRENCE O) MINORIT- O) ,ICTIM AND RELATIONS(IPS IN RAPE MUST BE ALLEGED SO T(AT DEAT( PENALT- MA-BE IMPOSED 6he concurrence of the minority of the victim and her relationship to the ofender should be 189 specifcally alle5ed in the information conformably with the accused4s ri5ht to be informed of the accusation a5ainst him. In this case* althou5h the minority of Poblica and her relationship with appellant were established by the prosecution beyond doubt* the death penalty cannot be imposed because these ualifyin5 circumstances were not specifed in the information. It would be a denial of the ri5ht of the appellant to be informed of the char5es a5ainst him and conseuently* a denial of due process if he is char5ed with simple rape and convicted of its ualifed form punishable by death althou5h the attendant circumstances ualifyin5 the ofense and resultin5 in capital punishment were not set forth in the indictment on which he was arrai5ned. $PP -vs- C,(R!+> !/?G M(G0('?( G.R. 'o. 14DDDD Dec. 6 1<<<& 0UALI)-ING CIRCUMSTANCE IN RAPE CASES MUST BE ALLEGED IN ORDER T(AT DEAT( PENALT- MA-BE IMPOSED 6his /ourt has ruled in a lon5 line of cases that the circumstance under the amendatory provisions of Section $$ of #epublic Act 9)&'* the attendance of any of which mandates the sin5le indivisible penalty of death are in the nature of ualifyin5 circumstances which cannot be proved as such unless alle5ed with particularity in the information unli7e ordinary a55ravatin5 circumstances which afect only the period of the penalty and which may be proven even if not alle5ed in the information. It would be a denial of the ri5ht of the accused to be informed of the char5e a5ainst him and conseuently* a denial of due process* if he is char5ed with simple rape and will be convicted of its ualifed form punishable by death althou5h the attendant circumstance ualifyin5 the ofense and 190 resultin5 in capital punishment was not alle5ed in the indictment under which he was arrai5ned. Procedurally* then* while the minority of #enelyn and her relationship to the accused-appellant were established durin5 the trial* the accused-appellant can only be convicted of simple rape because he cannot be punished for a 5raver ofense that that with which he was char5ed. Accordin5ly* the imposable penalty is reclusion perpetua. $PP -vs- "DH!' R. D"C"'( G.R. 'o. 161D76 May 61 4BBB& IMPORTANT CONSIDERATION IN RAPE <either is the absence of spermatoDoa in Celia4s 5enitalia fatal to the prosecution4s case. 6he presence or absence of spermatoDoa is immaterial in a prosecution for rape. 6he important consideration in rape cases is not the emission of semen but the unlawful penetration of the female 5enitalia by the male or5an. $PP -vs- R>D>LA> 0(+> alias NR?D) 0(+>G G.R. 'o. 167<6< Aeb. 1; 4BBB& W(EN RAPE IS NOT COMMITTED AND SWEET(EART T(EOR- GI,EN CREDENCE Airst. Private complainant never ob>ected or showed any resistance when accused-appellant alle5edly dra55ed her forcibly across the pedestrian overpass and brou5ht her to an undisclosed place at Puiapo. Althou5h he was holdin5 her wrist ti5htly* she could have easily e3tricated herself form him on several occasionsG (a. while they were inside the bus bound for Puiapo! (b. when they ali5hted form the bus and roamed the sidestreets of Puiapo! and especially so* (c. when they entered the hotel and fnally the room where the alle5ed rape too7 place. Accused- appellant was unarmed and his ti5ht 5rip could not 191 have prevented private complainant from at least shoutin5 for help. Aer demeanor was simply inconsistent with that of the ordinary ;ilipina whose instinct dictates that the summon every ounce of her stren5th and coura5e to thwart any attempt to besmirch her honor and blemish her purity. 6rue* women react diferently in similar situations* but it is too unnatural for an intended rape victim* as in this case* not to ma7e even feeble attempt to free herself despite a myriad of opportunities to do so. /econd. 6he deportment of the private complainant after the alle5ed rape accentuates the dubiety of her testimony. After the alle5ed rape* she did not leave immediately but even refused to be separated from her supposed defler despite the proddin5 of the latter. :orse* she went with him to the house of his sister and there they slept to5ether. Indeed this attitude runs counter to lo5ic and common sense. Surely private complainant would not ris7 a second molestation and under5o a reprise of the harrowin5 e3perience. 6o compound matters* it too7 her four (8. days to inform her parents about this a5oniDin5 episode in her life. 6ruly* her insouciance is very disturbin5* to say the least. Ainally. 6he prosecution failed to substantiated any of its alle5ations. Instead* it opted to stand or fall on the uncorroborated and implausible testimony of the private complainant. It is elementary in our rules of evidence that a party must prove the aFrmative of his alle5ations. $PP -vs- +>M(/ CL(?D!> ) M"'!J!" G.R. 'o. 166;<7 Aeb. 4< 4BBB& W(EN TWO A))IDA,ITS ARE E*ECUTED B- T(E COMPLAINANT IN A RAPE CASE! ONE )OR ATTEMPTED RAPE AND ANOT(ER )OR CONSUMMATED RAPE AND ARE 192 INCONSISTENT WIT( EAC( OT(ER! CON,ICTION CANNOT BE (AD It is true that aFdavits are 5enerally subordinated in importance to open court declarations. 6he 5eneral rule is that variance between an e3tra>udicial sworn statement of the complainant and here testimony in court does not impair the complainant4s credibility when the said variance does not alter the essential fact that the complainant was raped. Iariance as to the time and date of the rape* the number of times it was committed or the 5arments which the accused or the complainant wore at the time of the incident do not 5enerally diminish the complainant4s credibility. Aowever* the serious discrepancy between the two sworn statements e3ecuted a day apart by the complainant in this case* bearin5 on a material fact* is very substantial because it pertains to the essential nature of the ofense* i.e.* whether the ofense was consummated or merely attempted. In People vs. Ablaneda* wherein a housewife e3ecuted a sworn statement for attempted rape and later chan5ed the accusation to consummated rape without a rational e3planation* this /ourt held that the 5eneral rule does not apply when the complainant completely chan5ed the nature of her accusation. 6he contradiction does not concern a trivial or inconseuential detail but involves the essential fact of the consummation of the rape. $PP -vs- (L0"R+ "R'"/+ H!L/>' G.R. 'o. 169<19 Dec. 41 1<<<& NATURE O) INCESTUOUS RAPE Incestuous rape of a dau5hter by a father has heretofore been bitterly and vehemently denounced by this /ourt as more than >ust a shameful and shameless crime. #ape in itself is a nauseatin5 crime that deserves the condemnation 193 of all decent persons who reco5niDe that a woman4s cherished chastity is hers alone to surrender at her own free will* and whoever violates this norm descends to the level of the odious beast. But the act becomes doubly repulsive where the outra5e is perpetrated on one4s own Nesh and blood for the culprit is further reduced to a level lower than the lowly animal and forfeits all respect otherwise due him as a human. $PP -vs- M"L('DR> '!C>L(/ ) A(C"LL( G.R. 'os. 149149-4: Aeb. 7 4BBB& LO,E RELATIONS(IP DO NOT RULE OUT RAPE Jven assumin5 ex #ratia ar#umenti that accused-appellant and private complainant were indeed sweethearts as he claims* this fact alone will not e3tricate him from his predicament. 6he mere assertion of a 1love relationship1 would not necessarily rule out the use of force to consummate the crime. It must be stressed that in rape case* the 5ravamen of the ofense is se3ual intercourse with a woman a#ainst her will or *it%out her consent. 6hus* 5rantin5 ar#uendo that the accused and the victim were really lovers this /ourt has reiterated time and a5ain that 1A sweetheart cannot be forced to have se3 a5ainst her will. Cefnitely* a man cannot demand se3ual 5ratifcation from a fancYe* worse* employ violence upon her on the prete3t of love. Love is not a license for lust.1 $PP -vs- D('+" C"P"D( ) /(P>+(L> G.R. 'o. 147D64 Aeb. 1 4BBB& PLACES NOTORIOUS )OR (OLD.UPS DONE AT NIG(T . IS CONSIDERED AGGRA,ATING AS NIG(T TIME 194 /onsiderin5 that the place where the crime too7 place was 1notorious for hold-ups done at ni5ht* precisely to ma3imiDe the advanta5e of dar7ness*1 we cannot but a5ree with the trial court that ni5httime was purposely sou5ht by accused- appellants 1for the more successful consummation may be perpetrated unmolested or so that they could escape more thorou5hly.1 $PP -vs- A"L!M>' (L!P()> ) +"J(D( "+ (L. G.R. 'o. 144<:< Aeb. 4 4BBB& RAPE MA- BE COMMITTED IN ALMOST ALL PLACES Appellant considers it uite improbable for rape to be committed at a place within a well-li5hted and fairly well-populated nei5hborhood. 6his ar5ument does not hold water. #ape can be commi'tted even in places where people con5re5ate* in par7s* alon5 the roadside* within school premises* inside a house where there are other occupants* and even in the same room in the presence of other members of the family. ZAn overpowerin5 wic7ed ur5e has been shown not to be deterred by circumstances of time or place. DEAT( PENALT- CANNOT BE IMPOSED W(EN IN)ORMATION )AILED TO INDICATE T(E AGE O) T(E ,ICTIM AND (ER CORRECT RELATIONS(IP WIT( T(E ACCUSED 6he penalty of death cannot be properly imposed since the indictment has failed to indicate the a5e of the victim and her correct relationship with appellant* concurrent ualifyin5 circumstances* essential in the imposition of that penalty. ;urthermore* appellant is not a 1parent* ascendant* step-parent* 5uardian* relative by 195 consan5uinity or aFnity within the third civil de5ree* or the common-law spouse of the parent of the victim.1 6he latter4s 5randmother* #emedios Lustre* herself ac7nowled5es that appellant has >ust for a time been her common-law husband. $PP -vs- A"D"R!C> L?/+R" ) "'C!'(/ G.R. 'o. 1679;4 (pril ; 4BBB& COMPENSATOR- DAMAGES IN CASES O) 0UALI)IED RAPE :ith re5ard to the award of compensatory dama5es* we have rule in Peo8le =7. ,i"or! which was later reaFrmed in Peo8le =7. Pra:e7! that 1if the crime of rape is committed or efectively ualifed by any of the circumstances under which the death penalty is authoriDed by the present amended law* the indemnity of the victim shall be in the increased amount of not less than P9&*(((.((.1 $PP -vs- ('+>'!> M(G(+ ) L>'D>'!> G.R. 'o. 16BB4; May 61 4BBB& NATURE O) INTIMIDATION IN CASE O) RAPE In People vs. LuDorata* the /ourt held that intimidation was addressed to the mind of the victim and therefore sub>ective* and its presence could not be tested by any hard-and-fast rule but must be viewed in li5ht of the victim4s perception and >ud5ment at the time of the crime. 6hus* when a rape victim becomes paralyDed with fear* she cannot be e3pected to thin7 and act coherently* her failure to immediately ta7e advanta5e of the early opportunity to escape does not automatically vitiate the credibility of her account. 1/omplainant cannot be faulted for not ta7in5 any action inasmuch as diferent people react diferently to a 196 5iven type of situation* there bein5 no standard form of human behavioral response when one is confronted with a stran5e* startlin5 or fri5htful e3perience.1 $PP -vs- C!C"'+" 0(L>R( ) D"L('+(R G.R. 'o. 147<:; May 61 4BBB& EAC( AND E,ER- RAPE ALLEGED MUST BE PRO,EN Jach and every char5e of rape is a separate and distinct crime so that each of the si3teen other rapes char5ed should be proven beyond reasonable doubt. 6he victim4s testimony was overly 5eneraliDed and lac7ed specifc details on how each of the alle5ed si3teen rapes was committed. Aer bare statement that she was raped so many times on certain wee7s is clearly inadeuate and 5rossly insuFcient to establish the 5uilt of accused-appellant insofar as the other si3teen rapes char5ed are concerned. In People vs. Garcia this /ourt succinctly observed thatG xxx t%e inde3nite testimonial evidence t%at complainant *as raped every *ee= is decidedly inade8uate and #rossly insu.cient to establis% t%e #uilt of appellant t%erefor *it% t%e re8uired 8uantum of evidence. /o muc% of suc% inde3nite imputations of rape *%ic% are /nco33obo3ated by any ot1e3 e2&dence fall *it%in t%is cate#ory. $PP -vs- "DM?'D> D" L">' ) J"/?/ G.R. 'o. 16B<D9 Dec. 6 1<<<& A6 6AJ S6A#6 6AJ#J ?2S6 BJ #APJ* B26 S2BSJP2J<6 JIJ<6S ?AK BJ/@?J A ;A/6@# 197 6AA6 6AJ #JAL6I@<SAIP* AL6A@2"A I</JS6@2S* /@<II/6I@< ;@# #APJ /A<<@6 BJ AAC 1/omplainant could have been raped the frst time accused-appelant had carnal 7nowled5e of her* when she was $= years old. 6his however* is not a prosecution for such rape. :hen she complained of havin5 been raped in this case* she was already =( or =$ years old* $9 or $- years after she had been alle5edly ravished for the frst time by her father* the herein accused-appelant. Curin5 the said period of $9 or $- years* neither complainant nor her parents denounced accused- appellant despite the fact that he continued to have se3ual relation alle5edly without the consent of complainant. Curin5 this period* four children were born to complainant and accused-appellant. /omplainant and accused-appellant practically cohabited* choosin5 the baptismal sponsors for their children* and even invitin5 friends and relatives to the feasts. 6he relationship was 7nown to nei5hbors. 6hus* their relationship mi5ht be incestuous* but it was not by reason of force or intimidation. ;or their part* while in the be5innin5 complainant4s mother and sisters may have disapproved of the relationship* in the end* it would appear that subseuently they >ust turned a blind eye on the whole afair. "iven these facts* we cannot say that on September $'* $''& when accused-appellant had se3ual intercourse with complainant* he committed rape. (People v. Iillalobos* ".#. $=8%'8* (&H%$H%(($. T(E DELA- AND INITIAL RELUCTANCE O) A RAPE ,ICTIM TO MAIE PUBLIC T(E ASSAULT ON (ER ,IRTUE IS NEIT(ER UNINOWN OR UNCOMMON. AS (ELD IN LT(E CASE O) PEOPLE ,S. MALAGAR 198 1Iacillation in the flin5 of complaint by rape victim is not an uncommon phenomenon. 6his crime is normally accompanied by the rapist4s threat on the victim4s life* and the fear can last for uit a while. 6here is also the natural reluctance of a woman to admit her sullied chastity* acceptin5 thereby all the sti5ma it leaves* and to then e3pose herself to the morbid curiosity of the public whom she may li7ely perceived ri5htly or wron5ly* to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. In People vs. /oloma (%%% S/#A %&&. we have even considered an -- year delay in reportin5 the lon5 history of rape by the victim4s father as understandable and so not enou5h to render incredible the complaint of a $=- year old dau5hter. $PP -vs- C>'R(D> C(0('( O R('D) G.R. 'o. 14:147 May < 4BBB& W(EN T(ERE IS A SEPARATE CRIME O) RAPE AND ROBBER- IS COMMITTED As related by Private /omplainant Amy de "uDman* accused-appellant suddenly >umped over the counter* stran5led her* po7ed a 7nife at the left side of her nec7* pulled her towards the 7itchen where he forced her to undress* and 5ained carnal 7nowled5e of her a5ainst her will and consent. 6hereafter* he ordered her to proceed upstairs to 5et some clothes* so he could brin5 her out* sayin5 he was not leavin5 her alive. At this point* appellant conceived the idea of robbery because* before they could reach the upper Noor* he suddenly pulled Amy down and started maulin5 her until she lost consciousness! then he freely ransac7ed the place. Leavin5 Amy for dead after 199 repeatedly ban5in5 her head* frst on the wall* then on the toilet bowl* he too7 her bracelet* rin5 and wristwatch. Ae then proceeded upstairs where he too7 as well the >ewelry bo3 containin5 other valuables belon5in5 to his victim4s employer. 2nder these circumstance* appellant cannot be convicted of the special comple3 crime of robbery with rape. Aowever* since it was clearly proven beyond reasonable doubt that he raped Amy de "uDman and thereafter robbed her and Ana ?arinay of valuables totalin5 P$)*(((.((* he committed two separate ofenses -rape with the use of deadly weapon and simple robbery with force and intimidation a5ainst persons. CASES W(EREIN T(E SCANDAL RESULTING )ROM RELATIONS O) COMPLAINANT AND ACCUSED IMPELS T(E COMPLAINANT OR (ER RELATI,ES TO )ILE COMPLAINT O) RAPE AGAINST T(E ACCUSED BUT DID NOT PROSPER 6hus in People vs. Lamarro-a a case involvin5 an ei5hteen-year old woman 1intellectually wea7 and 5ullible*1 the /ourt found that the alle5ed victim4s family was 1obviously scandaliDed and embarrassed by (the victim. Jlena4s 4une3plained4 pre5nancy*1 promptin5 them to cry 1rape.1 6he /ourt acuitted the accused. In People vs. Domo#oy private complainant was seen havin5 se3ual intercourse in the school premises with appellant therein by the latter4s co- accused. 1It is thus not farfetched*1 the /ourt held* 1for complainant to have instituted the complainant for rape a5ainst the three to avoid bein5 bruited around as a woman of loose morals.1 200 Similarly* in People vs. Castillon the /ourt considered the complainant4s a5reement to en5a5e in pre-marital se3ual intercourse 1already a dis5race to her family* what more of her acuiescence to have se3ual intercourse on a sta5e near the vicinity where the +S pro5ram was bein5 held and pryin5 eyes and ears abound.1 In People vs. 0a*ar the complainant was cau5ht in Pa#rante by her sister-in-law en5a5in5 in se3ual intercourse with the accused* a nei5hbor. 6he /ourt 5athered from the complainant4s testimony that 1she fled the case because she thou5ht it would be better to cry 4rape4 and brin5 suit to salva5e and redeem her honor* rather than have reputation sullied in the community by bein5 bruited around and sti5matiDed as an adulterous woman.1 People vs. Godoy also involved an adulterous relationship between the accused* who was married* and his seventeen-year old student. In acuittin5 the accused* the /ourt heldG +%e Court ta=es judicial co#ni-ance of t%e fact t%at in rural areas in t%e P%ilippines youn# ladies are strictly re8uired to act *it% circumspection and prudence. Great caution is observed so t%at t%eir reputations s%all remain untainted. (ny breat% of scandal *%ic% brin#s dis%onor to t%eir c%aracter %umiliates t%eir entire families. !t could precisely be t%at complainantNs mot%er *anted to save face in t%e community *%ere everybody =no*s everyone else and in an eJort to conceal %er dau#%terNs indiscretion and escape t%e *a##in# ton#ues of t%eir small rural community s%e %ad to *eave t%e scenario of t%is rape drama. Aere* the elopement of a thirteen-year old with her nineteen-year old second cousin no doubt caused uite a tempest in the otherwise serene community of Iintar* Ilocos <orte. 6hat 201 complainant4s parents were a5ainst their relationship* as evidenced in one of her letters* ma7es it more li7ely that the char5es of rape were insti5ated to salva5e the complainant4s and her family4s honor. H%ile t%e Gs*eet%eart t%eoryG does not often #ain favor *it% t%is Court suc% is not al*ays t%e case if t%e %ard fact is t%at t%e accused and t%e supposed victim are in trut% intimately related except t%at as is usual in most cases eit%er t%e relations%ip is illicit or t%e victimNs parents are a#ainst it. !t is not improbable t%at in some instances *%en t%e relations%ip is uncovered t%e alle#ed victim or %er parents for t%at matter *ould ta=e t%e ris= of institutin# a criminal action in t%e %ope t%at t%e court *ould ta=e t%e cud#els for t%em t%an for t%e *oman to admit %er o*n acts of indiscretion. $PP -vs- "RH!' (GR"/>R G.R. 'os. 11<D6:-6< Dec. < 1<<<& JUDGES S(OULD NOT BE O,ERL- PROTECTI,E O) E,ER- WOMAN IN RAPE CASES. T(E- MUST LOOI AT T(E C(ARGE WIT( E*TREME CAUTION AND CIRCUSMPECTION #ape is a very emotional word* and the natural human reactions to it are cate5oricalG sympathy for the victim and admiration for her in publicly see7in5 retribution for her outra5eous misfortune* and condemnation of the rapist. Aowever* bein5 interpreters of the law and dispensers of >ustice* >ud5es must loo7 at a rape char5e without those proclivities and deal and with it with e3treme caution and circumspection. +ud5es must free themselves of the natural tendency to be overprotective of every woman decryin5 her 202 havin5 been se3ually abused and demandin5 punishment for the abuser. :hile they ou5ht to be co5niDant of the an5uish and humiliation the rape victim 5oes throu5h as she demands >ustice* >ud5es should eually bear in mind that their responsibility is to render >ustice based on the law. $PP -vs- "DH!' L(DR!LL> G.R. 'o. 147674 Dec. D 1<<<& 203 SE*UAL (ARASSMENT LAW (RA ;%;;) WORI! EDUCATION OR TRAINING.RELATED SE*UAL (ARASSMENT DE)INED. :or7* education or trainin5-related se3ual harassment is committed by an employer* employee* mana5er* supervisor* a5ent of the employer* teacher* instructor* professor* coach* trainor* or any other person who* havin5 authority* inNuence or moral ascendancy over another in a wor7 or trainin5 or education environment* demands* reuests or otherwise reuires any se3ual favor from the other* re5ardless of whether the demand* reuest or reuirement for submission is accepted by the ob>ect of said Act. W(EN SE*UAL (ARASSMENT IS COMMITTEDG Hor= "ducation or +rainin#-related /exual ,arassment De3ned :or7* education or trainin5-related se3ual harassment is committed by an employer* employee* mana5er* supervisor* a5ent of the employer* teacher* instructor* professor* coach* trainor* or any other person who* havin5 authority* inNuence or moral ascendancy over another in a wor7 or trainin5 or education environment* demands* reuests or otherwise reuires any se3ual favor from the other* re5ardless of whether the demand* reuest or reuirement for submission is accepted by the ob>ect of said Act. In 9or'.relae: or e>8loy>en en=iron>enG 204 ($. 6he se3ual favor is made as a condition in the hirin5 or in the employment* re- employment or continued employment of said individual* or in 5rantin5 said individual favorable compensation* terms* conditions* promotions* or privile5es! or the refusal to 5rant the se3ual favor results in limitin5* se5re5atin5 or classifyin5 the employee which in any way would discriminate* deprive or diminish employment opportunities or otherwise adversely afect said employee! (%. 6he above acts would impair the employee4s ri5hts or privile5es under e3istin5 labor laws! or (=. 6he above acts would result in an intimidatin5* hostile* or ofensive environment for the employee. In an e:u"aion or raining en=iron>enG ($. A5ainst one who is under the care* custody or supervision of the ofender! (%. A5ainst one whose education* trainin5* apprenticeship or tutorship is entrusted to the ofender! (=. :hen the se3ual favor is made a condition to the 5ivin5 of a passin5 5rade* or the 5rantin5 of honors and scholarships or the payment of a stipend* allowance or other benefts* privile5es* or considerations! or (8. :hen the se3ual advances result in an intimidatin5* hostile or ofensive environment for the student* trainee or apprentice. Any person who directs or induces another to commit any act of se3ual harassment as herein defned* or who cooperates in the commission thereof by another without which it would not have 205 been committed* shall also be held liable under this Act. 206 C(ILD AND -OUT( WEL)ARE CODE BPD No. 63K 9i# A>en:>en7C RELIGIOUS INSTRUCTION 6he reli5ious education of children in all public and private schools is a le5itimate concern of the /hurch to which the students belon5. All churches may ofer reli5ious instruction in public and private elementary and secondary schools* sub>ect to the reuirements of the /onstitution and e3istin5 laws. TERMINATION O) RIG(TS O) PARENTS :hen a child shall have been committed to the Cepartment of Social :elfare or any duly licensed child placement a5ency or individual pursuant to an order of the court* his parents or 5uardian shall thereafter e3ercise no authority over him e3cept upon such conditions as the court may impose. ,IOLATION O) PD 63K B- A C(ILD Pro#i<ie: A"7: It shall be unlawful for any child to leave the person or institution to which he has been >udicially or voluntarily committed or the person under whose custody he has been placed in accordance with the ne3t precedin5 article* or for any person to induce him to leave such person or institution* e3cept in case of 5rave physical or moral dan5er* actual or imminent* to the child. Any violation of this article shall be punishable by an imprisonment of not more than one year or by a fne of not more than two thousand pesos* or 207 both such fne and imprisonment at the discretion of the courtG Provided* 6hat if the violation is committed by a forei5ner* he shall also be sub>ect to deportation. CARE O) -OUT()UL O))ENDER (ELD )OR E*AMINATION OR TRIAL A youthful ofender held for physical and mental e3amination or trial or pendin5 appeal* if unable to furnish bail* shall from the time of his arrest be committed to the care of the Cepartment of Social :elfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever reuiredG Provided* 6hat in the absence of any such center or a5ency within a reasonable distance from the venue of the trial* the provincial* city and municipal >ail shall provide uarters for youthful ofenders separate from other detainees. 6he court may* in its discretion* upon recommendation of the Cepartment of Social :elfare or other a5ency or a5encies authoriDed by the /ourt* release a youthful ofender on reco5niDance* to the custody of his parents or other suitable person who shall be responsible for his appearance whenever reuired. SUSPENSION O) SENTENCE AND COMMITMENT O) -OUT()UL O))ENDER If after hearin5 the evidence in the proper proceedin5s* the court should fnd that the youthful ofender has committed the acts char5ed a5ainst him the court shall determine the imposable penalty* includin5 any civil liability char5eable a5ainst him. Aowever* instead of pronouncin5 208 >ud5ment of conviction* the court shall suspend all further proceedin5s and shall commit such minor to the custody or care of the Cepartment of Social :elfare* or to any trainin5 institution operated by the 5overnment* or duly licensed a5encies or any other responsible person* until he shall have reached twenty-one years of a5e or* for a shorter period as the court may deem proper* after considerin5 the reports and recommendations of the Cepartment of Social :elfare or the a5ency or responsible individual under whose care he has been committed. 6he youthful ofender shall be sub>ect to visitation and supervision by a representative of the Cepartment of Social :elfare or any duly licensed a5ency or such other oFcer as the /ourt may desi5nate sub>ect to such conditions as it may prescribe. PD 141B ARTICLE $5$ O) PD 63K IS (EREB- AMENDED TO READ AS )OLLOWS 1Article $($. /are of Kouthful @fender Aeld for J3amination or 6rial. - A youthful ofender held for physical and mental e3amination or trial or pendin5 appeal* if unable to furnish bail* shall from the time of his arrest be committed to the care of the Cept. of Social Services and Cevelopment or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever reuiredG Provided* that in the absence of any such center or a5ency within a reasonable distance from the venue of the trial* the provincial* city and municipal >ail shall provide uarters for youthful ofenders separate from other detainees. 6he court may* in its discretion upon recommendation of the 209 Cepartment of Social Services [ Cevelopment or other a5ency or a5encies%$(authoriDed by the /ou#t* rJlease a youth;ul ofender on%$(reco5niDance* to the custody of his parents or other suitable perso< who shall be responsible for his appearance whenever reuired. Aowever* in the case of those whose cases fall under the e3clusive >urisdiction of the ?ilitary 6ribunals* they may be committed at any military detention or rehAbilitation center. PD 141B ARTICLE $52 O) PD 63K AS AMENDED IS )URT(ER AMENDED TO READ AS )OLLOWSG 1A3t. 1#2. Suspension of sentence and /ommitment of Kouthful @fender. - If after hearin5 the evidence in the proper proceedin5s* the court should fnd that the youthful ofender has committed the acts char5ed a5ainst him* the court* shall determine the imposable penalty* includin5 any civil liability char5eable a5ainst him. Aowever* instead of pronouncin5 >ud5ment of conviction* the court upon application of the youthful ofender and if it fnds that the best interest of the public as well as that of the ofender will be served thereby* may suspend all further proceedin5s and commit such minor to the custody or care of the Cepartment of Social Services and Cevelopment or to any trainin5 institution operated by the 5overnment or any other responsible person until he shall have reached twenty one years of a5e* or for a shorter period as the court may deem proper* after considerin5 the reports and recommendations of the Cepartment of Social Services and Cevelopment or the 5overnment trainin5 institution or responsible person under whose care he has been committed. 210 2pon receipt of the application of the youthful ofender for suspension of his sentence* the court may reuire the Cepartment of Social Services and Cevelopment to prepare and submit to the court a social case study report over the ofender and his family. 6he Kouthful ofender shall be sub>ect to visitation and supervision by a representative of the Cepartment of Social Services [ Cevelopment or 5overnment trainin5 institution as the court may desi5nate sub>ect to such conditions as it may prescribe. 6he benefts of this article shall not apply to a youthful ofender who has once en>oyed suspension of sentence under its provisions or to one who is convicted of an ofense punishable by death or life imprisonment or to one who is convicted for an ofense by the ?ilitary 6ribunals. PD 11:< APPEAL 6he order of the court denyin5 an application for suspension of sentence under the provisions of Article $'% above shall not be appealable.1 RETURN O) T(E -OUT()UL O))ENDER TO T(E COURT :henever the youthful ofender has been found incorri5ible or has wilfully failed to comply with the conditions of his rehabilitation pro5rams* or should his continued stay in the trainin5 institution be inadvisable* he shall be returned to 211 the committin5 court for the pronouncement of >ud5ment. :hen the youthful ofender has reached the a5e of twenty-one while in commitment* the court shall determine whether to dismiss the case in accordance with the e3tent precedin5 article or to pronounce the >ud5ment conviction. In the latter case* the convicted ofender may apply for probation under the provisions of Presidential Cecree <umbered <ine Aundred and Si3ty-Ji5ht. In any case covered by this article* the youthful ofender shall be credited in the service of his sentence with the full time spent in actual commitment and detention efected under the provisions of this /hapter.1 R( :;1B C(ILD ABUSE LAW C(ILD PROSTITUTION AND OT(ER SE*UAL ABUSE /hildren* whether male or female* who for money* proft* or any other consideration or due to the coercion or inNuence of any adult* syndicate or 5roup* indul5e in se3ual intercourse or lascivious conduct* are deemed to be children e3ploited in prostitution and other se3ual abuse. 6he penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the followin5G 212 (a. 6hose who en5a5e in or promote* facilitate or induce child prostitution which include* but are not limited to* the followin5G ($. Actin5 as a procurer of a child prostitute! (%. Inducin5 a person to be a client of a child prostitute by means of written or oral advertisements or other similar means! (=. 6a7in5 advanta5e of inNuence or relationship to procure a child as prostitute! (8. 6hreatenin5 or usin5 violence towards a child to en5a5e him as a prostitute! or (&. "ivin5 monetary consideration 5oods or other pecuniary beneft to a child with intent to en5a5e such child in prostitution. (b. 6hose who commit the act of se3ual intercourse of lascivious conduct with a child e3ploited in prostitution or sub>ect to other se3ual abuse! Provided* 6hat when the victims is under twelve ($%. years of a5e* the perpetrators shall be prosecuted under Article ==&* para5raph =* for rape and Article ==) of Act <o. =-$&* as amended* the #evised Penal /ode* for rape or lascivious conduct* as the case may beG Provided* 6hat the penalty for lascivious conduct when the victim is under twelve ($%. years of a5e shall reclusion temporal in its medium period! and (c. 6hose who derive proft or advanta5e therefrom* whether as mana5er or owner of the establishment where the prostitution ta7es place* or of the sauna* disco* bar* resort* place of entertainment or establishment servin5 as a cover or which en5a5es in prostitution in addition to the activity for which the license has been issued to said establishment. ATTEMPT TO COMMIT 213 C(ILD PROSTITUTION 6here is an attempt to commit child prostitution under Section &* para5raph (a. hereof when any person who* not bein5 a relative of a child* is found alone with the said child inside the room or cubicle of a house* an inn* hotel* motel* pension house* apartelle or other similar establishments* vessel* vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be e3ploited in prostitution and other se3ual abuse. 6here is also an attempt to commit child prostitution* under para5raph (b. of Section & hereof when any person is receivin5 services from a child in a sauna parlor or bath* massa5e clinic* health club and other similar establishments. A penalty lower by two (%. de5rees than that prescribed for the consummated felony under Section & hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act* or* in the proper case* under the #evised Penal /ode. C(ILD TRA))ICIING Any person who shall en5a5e in tradin5 and dealin5 with children includin5* but not limited to* the act of buyin5 and sellin5 of a child for money* or for any other consideration* or barter* shall sufer the penalty of reclusion temporal to reclusion perpetua. 6he penalty shall be imposed in its ma3imum period when the victim under twelve ($%. years of a5e. 214 ATTEMPT TO COMMIT C(ILD TRA))ICIING 6here is an attempt to commit child traFc7in5 under Section 9 of this ActG (a. :hen a child travels alone to a forei5n country without valid reason therefor and without clearance issued by the Cepartment of Social :elfare and Cevelopment or written permit or >ustifcation from the child4s parents or le5al 5uardian! (b. :hen a person* a5ency* establishment or child- carin5 institution recruits women or couples to bear a children for the purpose of child traFc7in5! or (c. :hen doctor* hospital or clinic oFcial or employee* nurse* midwife* local civil re5istrar or any other person simulates birth for the purpose of child traFc7in5! (d. :hen a person en5a5es in the act of fndin5 children amon5 low-income families* hospitals* clinics* nurseries* day-care centers* or other child- durin5 institutions who can be ofered for the purpose of child traFc7in5. A penalty lower two (%. de5rees than that prescribed for the consummated felony under Section 9 hereof shall be imposed upon the principals of the attempt to commit child traFc7in5 under this Act. OBSCENE PUBLICATIONS AND INDECENT S(OWS Any person who shall hire* employ* use* persuade* induce or coerce a child to perform in obscene e3hibitions and indecent shows* whether 215 live or in video* or model in obscene publications or porno5raphic materials or to sell or distribute the said materials shall sufer the penalty of prision mayor in its medium period. If the child used as a performer* sub>ect or sellerHdistributor is below twelve ($%. years of a5e* the penalty shall be imposed in its ma3imum period. Any ascendant* 5uardian* or person entrusted in any capacity with the care of a child who shall cause andHor allow such child to be employed or to participate in an obscene play* scene* act* movie or show or in any other acts covered by this section shall sufer the penalty of prision mayor in its medium period. OT(ER ACTS O) NEGLECT! ABUSE! CRUELT- OR E*PLOITATION AND OT(ER CONDITIONS PREJUDICIAL TO T(E C(ILDQS DE,ELOPMENT (a. Any person who shall commit any other acts of child abuse* cruelty or e3ploitation or to be responsible for other conditions pre>udicial to the child4s development includin5 those covered by Article &' of Presidential Cecree <o. )(=* as amended* but not covered by the #evised Penal /ode* as amended* shall sufer the penalty of prision mayor in its minimum period. (b. Any person who shall 7eep or have in his company a minor* twelve ($%. years or under or who in ten ($(. years or more his >unior in any public or private place* hotel* motel* beer >oint* discotheue* cabaret* pension house* sauna or massa5e parlor* beach andHor other tourist resort or similar places shall sufer the penalty of prision mayor in its ma3imum period and a fne of not less 216 than ;ifty thousand pesos (P&(*(((.G Provided* 6hat this provision shall not apply to any person who is related within the fourth de5ree of consan5uinity or aFnity or any bond reco5niDed by law* local custom and tradition or acts in the performance of a social* moral or le5al duty. (c. Any person who shall induce* deliver or ofer a minor to any one prohibited by this Act to 7eep or have in his company a minor as provided in the precedin5 para5raph shall sufer the penalty of prision mayor in its medium period and a fne of not less than ;orty thousand pesos (P8(*(((.! Provided* however* 6hat should the perpetrator be an ascendant* stepparent or 5uardian of the minor* the penalty to be imposed shall be prision mayor in its ma3imum period* a fne of not less than ;ifty thousand pesos (P&(*(((.* and the loss of parental authority over the minor. (d. Any person* owner* mana5er or one entrusted with the operation of may public or private place of accommodation* whether for occupancy* food* drin7 or otherwise* includin5 residential places* who allows any person to ta7e alon5 with him to such place or places any minor herein described shall be imposed a penalty of prision mayor in its medium period and a fne of not less than ;ifty thousand pesos (P&(*(((.* and the loss of the license to operate such a place or establishment. (e. Any person who shall use* coerce* force or intimidate a street child or any other child to G ($. Be5 or use be55in5 as a means of livin5! (%. Act as conduit or middlemen in dru5 traFc7in5 or pushin5! or 217 (=. /onduct any ille5al activities* shall sufer the penalty of prision correccional in its medium period to reclusion perpetua. ;or purposes of this Act* the penalty for the commission of acts punishable under Articles %8-* %8'* %)%* para5raph %* and %)=* para5raph $ of Act <o. =-$&* as amended* the #evised Penal /ode* for the crimes of murder* homicide* other intentional mutilation* and serious physical in>uries* respectively* shall be reclusion perpetua when the victim is under twelve ($%. years of a5e. 6he penalty for the commission of acts punishable under Article ==9* =='* =8( and =8$ of Act <o. =-$&* as amended* the #evised Penal /ode* for the crimes of ualifed seduction* acts of lasciviousness with the consent of the ofended party* corruption of minors* and white slave trade* respectively* shall be one de5ree hi5her than that%$-imposed by law when the victim is under twelve ($%. years a5e. 6he victim of the acts committed under this section shall be entrusted to the care of the department of Social :elfare and Cevelopment. C(ILDREN AS 1ONES O) PEACE /hildren are hereby declared as Qones of Peace. It shall be the responsibility of the State and all other sectors concerned to resolve armed conNicts in order to promote the 5oal of children as Dones of peace. 6o attain this ob>ective* the followin5 policies shall be observed. (a. /hildren shall not be the ob>ect of attac7 and shall be entitled to special respect. 6hey shall be protected from any form of threat* assault* torture or other cruel* inhumane or de5radin5 treatment! 218 (b. /hildren shall not be recruited to become members of the Armed ;orces of the Philippines of its civilian units or other armed 5roups* nor be allowed to ta7e part in the f5htin5* or used as 5uides* couriers* or spies! (c. Celivery of basic social services such as education* primary health and emer5ency relief services shall be 7ept unhampered! (d. 6he safety and protection of those who provide services includin5 those involved in fact- fndin5 missions from both 5overnment and non- 5overnment institutions shall be ensured. 6hey shall not be sub>ected to undue harassment in the performance of their wor7! (e. Public infrastructure such as schools* hospitals and rural health units shall not be utiliDed for military purposes such as command posts* barrac7s* detachments* and supply depots! and (f. All appropriate steps shall be ta7en to facilitate the reunion of families temporarily separated due to armed conNict. RIG(TS O) C(ILDREN ARRESTED )OR REASONS RELATED TO ARMED CON)LICT Any child who has been arrested for reasons related to armed conNict* either as combatant* courier* 5uide or spy is entitled to the followin5 units! (a. Separate detention from adults e3cept where families are accommodated as family units! (b. Immediate free le5al assistance! 219 (c. Immediate notice of such arrest to the parents or 5uardians of the child! and (d. #elease of the child on reco5niDance within twenty-four (%8. hours to the custody of the Cepartment of Social :elfare and Cevelopment or any responsible member of the community as determined by the court. If after hearin5 the evidence in the proper proceedin5s the court should fnd that the aforesaid child committed the acts char5ed a5ainst him* the court shall determine the imposable penalty* includin5 any civil liability char5eable a5ainst him. Aowever* instead of pronouncin5 >ud5ment of conviction* the court shall suspend all further proceedin5s and shall commit such child to the custody or care of the Cepartment of Social :elfare and Cevelopment or to any trainin5 institution operated by the "overnment* or duly- licensed a5encies or any other responsible person* until he has had reached ei5hteen ($-. years of a5e or* for a shorter period as the court may deem proper* after considerin5 the reports and recommendations of the Cepartment of Social :elfare and Cevelopment or the a5ency or responsible individual under whose care he has been committed. 6he aforesaid child shall sub>ect to visitation and supervision Cevelopment or any duly-licensed a5ency such other oFcer as the court may desi5nate sub>ect to such conditions as it may prescribe. 6he aforesaid child whose sentence is suspended can appeal from the order of the court in the same manner as appeals in criminal cases.
CON)IDENTIALIT- 220 At the instance of the ofended party* his name may be withheld from the public until the court acuires >urisdiction over the case. It shall be unlawful for any editor* publisher* and reporter or columnist in case of printed materials* announcer or producer in case of television and radio broadcastin5* producer and director of the flm in case of the movie industry* to cause undue and sensationaliDed publicity of any case of violation of this Act which results in the moral de5radation and suferin5 of the ofended party. PEDOP(ILIA IS NOT INSANIT- :hen accused-appellant was committed to the <ational /enter for ?ental Aealth* he was not dia5nosed as insane but was suferin5 from pedop%ilia. 6hus* there is no doubt in our mind that he was sane durin5 his two-year confnement in the center* pedop%ilia bein5 dissimilar to insanity. #A 9)&- EMPLO-MENT O) C(ILDREN /hildren below ffteen ($&. years of a5e shall not be employed e3ceptG $. :hen a child wor7s directly under the sole responsibility of his parents or le5al 5uardian and where only members of the employer4s family are employedG Provided* however* 6hat his employment neither endan5ers his life* safety* health and morals* nor impairs his normal development! Provided* further* 6hat the parent or 221 le5al 5uardian shall provide the said minor child with the prescribed primary andHor secondary education! or %. :here a child4s employment or participation in public entertainment or information throu5h cinema* theater* radio or television is essentialG Provided* 6he employment contract is concluded by the child4s parents or le5al 5uardian* with the e3press a5reement of the child concerned* if possible* and the approval of the Cepartment of Labor and JmploymentG and Provided* 6hat the followin5 reuirements in all instances are strictly complied withG (a. 6he employer shall ensure the protection* health* safety* morals and normal development of the child! (b. 6he employer shall institute measures to prevent the child4s e3ploitation or discrimination ta7in5 into account the system and level of remuneration* and the duration and arran5ement of wor7in5 time! and (c. 6he employer shall formulate and implement* sub>ect to the approval and supervision of competent authorities* a continuin5 pro5ram for trainin5 and s7ills acuisition of the reuirements. In the above e3ceptional cases where any such child may be employed* the employer shall frst secure* before en5a5in5 such child* a wor7 permit from the Cepartment of Labor and Jmployment which shall ensure observance of the child. 6he Cepartment of Labor and Jmployment shall promul5ate rules and re5ulations necessary for the efective implementation of this Section.1 222 I) MINOR DO NOT APPL- )OR SUSPENSION O) SENTENCE IT IS DEEMED WAI,ED. T(E COURT CANNOT MOTU PROPIO GI,E (IM T(E BENE)ITS O) ART. $52 6he record* unfortunately for accused-appellant Buena* does not show that he fled with the trial court an application for suspension of sentence so as to put into operation the benevolent provisions of Presidential Cecree <o. )(=. 6he /ourt* therefore* has no other choice but to deny him this privile5e. DISC(ARGE+ REPORT AND RECOMMENDATION O) T(E DEPARTMENT O) SOCIAL WEL)ARE! SUBJECT TO JUDICIAL RE,IEW It is not the responsibility of this /ourt to order the release of accused #ic7y "alit without the beneft of a review of the recommendation of the Cepartment of Social :elfare by the trial court. Art $') of PC )(= providesG 1Art. $'). Cismissal of the case. 0 If it is shown to the satisfaction of the court that the youthful ofender whose sentence has been suspended* has behaved properly and has shown his capability to be a useful member of the community* even before reachin5 the a5e of ma>ority* upon recommendation of the Cepartment of Social :elfare* it shall dismiss the case and order his fnal dischar5e.1 It is therefore clear that in cases where the CS:C recommends the dischar5e of a youthful ofender* it is the trial court before whom the report and recommendation is sub>ect to >udicial review. #ecommendation alone is not suFcient to warrant the release of a youthful ofender. In reviewin5 the CS:C4s 223 recommendation* the trial >ud5e must not base his >ud5ment on mere conclusions but should see7 out concrete* material and relevant facts to confrm that the youthful ofender has indeed been reformed and is ready to re-enter society as a productive and law-abidin5 citiDen. /aution* however* is 5iven to the trial court. 6o be5in with* the youthful ofender is not to be tried inew for the same act for which he was char5ed. 6he inPuiry is not a /riminaL prosecution but is rathe# limited to the determination of the ofender4s%%8proper education and rehabilitation durin5 his commitment in the 6rainin5 /enter and his moral and social ftness to re->oin the community. (Pp. I. "alit! "# '98=%* =H$H'8. SUSPENSION O) SENTENCE NOT APPLICABLE I) PENALT- IS RECLUSION PERPETUA! LI)E IMPRISONMENT OR DEAT( As aforesaid* however* accused #ic7y "alit and #auel 6a5alo5 did not appeal from the >ud5ment of the trial court. <either did the People uestion the suspension of their sentence. 6he benefts of suspension of sentence are not available where the youthful ofender has been convicted of an ofense punishable by life imprisonment or death. 6he last para5raph of section % of Presidential Cecree <o. $%$(* which amended certain provisions of P.C. )(=* providesG 16he benefts of this article shall not apply to a youthful ofender who has once en>oyed suspension of sentence under its provisions or to 224 one who is convicted of an ofense punishable by death or life imprisonment or to one who is convicted for an ofense by the ?ilitary 6ribunals.1 (Par. 8* Sec. %* P.C. <o. $$9'* as amended by P.C. <o. $%$(! emphasis supplied. (Pp. v. "alit* supra.. -OUT()UL O))ENDER! TO BE CRIMINALL- LIABLE! ACCUSED! A $K -EAR OLD! MUST ACT WIT( DISCERNMENT 6here is a further obstacle that stands in the way of Jstorue4s conviction. :hile it has been proven that he was only thirteen years old at the time of the incident* there are no alle5ations in both informations that Jstorue had acted with discernment. And even if we are to consider the alle5ations that he had committed the imputed acts 1with intent to 7ill1 as suFcient compLiance 0 As we have in the past 0 he would still not be held liable as no proof was ofered durin5 trial that he had so acted with discernment. Accordin5ly* even if he was indeed a co-conspirator or an accessory* he would still be e3empt from criminal liability. (Pp. I. /ordo\a! "# -==9=-98* 9H&H'=. E,ER- ACCUSED IS PRESUMED TO BE SANE AT T(E TIME O) COMMISSION O) T(E CRIME 6he law presumes all acts to be voluntary* and that it is improper 6o presume that acts were done u<consciously. 6he uant2m of eviCence reuired to overthrow the presumption of sanity is proof beyond reasonable doubt. Since insanity is in the nature of a confession and avoidance* it mus6 be 225 proven beyond reasonaBle doubt. ?oreover* an accused is presumed to have been sane at the time of the commission of the crime in the absence of p@sitive evidence to show that he had lost his reason or was demented pri@r to or durin5 the Perpetration of the crime. (Pp. v. /ordova* supra.. )AILURE O) DE)ENSE TO ASI )OR SUSPENSION O) ARRAIGNMENT NEGATES INSANIT- Appellant Jduardo /ordova did not even as7 for the suspension of his arrai5nment on the 5round that he was suferin5 from insanity. Para5raph (a.* Section $%* #ule $$) of the #evised #ules of /ourt provides that the arrai5nment of an accused who appears to be suferin5 from an unsound mental condition which efectively renders him unable to fully understand the char5e a5ainst him and to plead intelli5ently thereto* shall be suspended. In the case at bar* Jduardo /ordova even too7 the witness stand to testify. (Pp. I. /ordova* supra.. C(ILD J -OUT( WEL)ARE CODE! NOT APPLICABLE TO DEAT( OR RECLUSION PERPETUA SENTENCE 6he /hild and Kouth :elfare /ode does not apply to those convicted of ofenses punishable by death* or reclusion perpetua (Presidential Cecree <o. )(=* as amended by Presidential Cecree <. )(=* as amended by Presidential Cecree <os. $$9' and $%$(.. 6he fact is Bolioc is now twenty-three years old. Ae is not entitled to a suspended sentence. Ae is entitled to a two-de5ree reduction of the penalty (Art. )-* #P/.. 226 (Pp. I. ?endeD! "# L-8-$=$! &H=(H-=. SUSPENSION O) SENTENCE+ CANNOT BE A,AILED O) W(ERE O))ENDER IS ALREAD- O,ER 2$ -EARS OLD AT T(E TIME22AO) PROMULGATION O) (IS SENTENCE It is true that Ienancio Iillanueva was a youthful ofendeD as defned by Art. $' because he was under %$ years%%9o; A"e when he co?mitteC the o;fense on ;ebruary %%* $'98. Aowever* when he was sentenced on +uLy =(* $'9&* he was over %$ years old and under the terms of Art. $'% (as well as Art. $'9. he was no lon5er entitled to suspension of sentence. (Iillanueva v. /;I! "# L-8&9'-* $%H$&H-%. W(EN PRESIDENTIAL DECREE NO. 63K MA- BE GI,EN RETROACTI,E E))ECT :here P.C. )(= is more favorable to the accused in that the sentence a5ainst them may he suspended* said Cecree may be 5iven retroactive efect* not only with the end in view of 5ivin5 force and efect to the laudable policies for which the P.C. otherwise 7nown as the /hild and Kouth :elfare /ode was promul5ated* hut also in the li5ht of the provisions of Article %% of the #evised Penal /ode. (People v. "arcia! "# L-8&%-(--$* )H$$H-$. PRESIDENTIAL DECREE NO. 63K+ ALTERNATI,E COURSES O) ACTION O) T(E COURT W(EN -OUT()UL O))ENDER IS RETURNED A)TER 227 REAC(ING T(E AGE O) MAJORIT- 6he trial court has two alternative courses of action with respect to a youthful ofender whose sentence it had suspended and who is returned to the court upon his reachin5 the a5e of ma>ority. 6hese areG ($. to dismiss the case and order the fnal dischar5e%%-of said ofender! or (%. to pr@nounce the >ud5ment of conviction. In%%-Plain and si?pLe lan5ua5e* It is either dismIssal or sJ<tence. (Pp. I. "arcia! supra.. CI,IL LIABILIT- O) -OUT()UL O))ENDER! DE)INED 6he civil liability for dama5es referred to is apparently that obli5ation c#eated by or arIsin5 from the crime* otherwise 7nown as ex delicto the imposition of which is mandated by%%-Articles $((* $(8(=.* $(9 and =8&($. of the #evised Penal /ode* (People vs. Pe]a* L-=)8=8* Cecember %(* $'99* -( S/#A &-'* &''. and is based upon a fndin5 of the 5uilt of the accused. (Pp. I. "arcia* supra.. 228 REPUBLIC ACT NO. &%&% BT#e A""e77 De=i"e RegulaionC An act re5ulatin5 the issuance and use of access devices* prohibitin5 fraudulent acts committed relative thereto* providin5 penalties and for other purposes. 6he recent advances in modern technolo5y have led to the e3tensive use of certain devices in commercial transactions* promptin5 the State to re5ulate the same. hence* on ;ebruary =* $''-* /on5ress enacted #epublic Act <umber -8-8* otherwise 7nown as +%e (ccess Devices Re#ulation (ct of 1<<D. 6ermed as 1access devices1 by #A <o. -8-8* any card* plate* code* account number* electronic serial number* personal identifcation number* or other telecommunication service* euipment* or instrumental identifer* or other means of account access that can be used to obtain money* 5ood* services or any other thin5 of value or to initiate transfer of funds (other than transfer ori5inated solely by paper instrument. is now sub>ect to re5ulation. 6he issuance and use of access devices are ou5ht to re5ulate in order to protect the ri5hts and defne the liabilities of parties in commercial transactions involvin5 them. Jssentially* the law imposes duties both to the access device issuer and holder* and penaliDe certain acts deemed unlawful for bein5 detrimental to either the issuer or holder* or both. 6he law mandates an access device issuer* or 1card issuer*1 to disclose either in writin5 or orally in any application or solicitation to open a credit card account the followin5G $. annual percenta5e 229 rate! %. annual and other fees! =. and balance calculation method! 8. cash advance fee! and &.. over the limit fee. ?oreover* the computation used in order to arrive at such char5es and fees reuired* to the e3tent practicable* to be e3plained in detail and a clear illustration of the manner by which it is made to apply is also necessary. <onetheless* there are certain e3ceptions for the above reuirement of disclosure not to apply. 6his is when application or solicitation is made throu5h telephone* provided that the issuer does not impose any annual fee* and fee in connection with telephone solicitation unless the customer si5nifes acceptance by usin5 the card* and that a clear disclosure of the information enumerated in the precedin5 para5raph is made in writin5 within thirty (=(. after the consumer reuests for the card* but in no event later than the date of the delivery of the card* and that the consumer is not obli5ated to accept the card or account and the consumer will not be obli5ated to pay any fees or char5es disclosed unless the consumer accepts the card or account by usin5 the card. ;ailure on the part of the issuer to fulfll the above reuirements will result in the suspension or cancellation of its authority to issue credit cards* after due notice and hearin5* by the Ban7o Sentral n5 Pilipinas* the Securities and J3chan5e /ommission and such other 5overnment a5encies. In sum therefore* the above omission is made punishable if the followin5 elements occur. @ne* there is an application or solicitation. Second* such application or solicitation should include the information reuired by law. and third* failure on the part of the issuer to disclose such information. 230 In one case (Jrmitano v. "# <o. $%9%8)* April %$* $'''.* the Supreme /ourt had the occasion to rule on the validity of contracts involvin5 credit cards. 6he credit cards holder contended that the credit card company should be blamed for the char5es the same bein5 unwarranted by the contract. As stipulated* once a lost card has been reported* purchases made thereafter should not accrue on the part of the holder. 6he /ourt said notwithstandin5 the fact that the contract of the parties is a contract of adhesion the same is valid. Aowever* if the same should include terms diFcult to interpret as to hide the true intent to the detriment of the holder* holdin5 it void reuires no hesitation. 6hus* contracts which provide for ambi5uous terms of payment* imposition of char5es and fees may be held void invo7in5 the principle of the contract of adhesion. /learly* in this case decided in $'''* the /ourt was concerned about an access device issuer4s vulnerability to abuse the provisions of the contract. It is uite surprisin5* however* that the /ourt did not ma7e reference to #A <o. -8-8 to thin7 that it was already in efect when the resolution was promul5ated. <onetheless* in American J3press International /o.* Inc. vs. IA/ ("# <@. 9(9))* <ovember '* $'--. Supreme /ourt turned down the ar5ument of private respondent 5rounded on the adhesion principle sayin5 indeed* in a contract of adhesion the ma7er of the contract has all the advanta5es* however* the one to whom it is ofered has the absolute prero5ative to accept or deny the same. @n the other hand* an access device holder may be penaliDed when he or she fraudulently 231 applied for such device. An access device fraudulently applied for means any access device that was applied for or issued on account of the use of falsifed document* false information* fctitious identities and addresses* or any form of false pretense or misrepresentation. 6hus* the use* traFc7in5 in* possession* and inducin5* enticin5 or in any manner allowin5 one to use access device fraudulently applied for are considered unlawful. 6he element of fraud is indispensable for this provision of #A -8-8 to apply. It is a condition sine ua non before one may be char5ed with the defned ofense. 6hus* the law provides for presumptions of Intent to defraud on the basis of mere possession* control or custody ofG a. an access device without lawful authority! b. a counterfeit access device! any device ma7in5 or alterin5 euipment! c. an access device or medium on which an access device is written not in the ordinary course of the possessor4s business! or d. any 5enuine access device* not in the name of the possessor. A card holder who abandons or surreptitiously leaves the place of employment* business or residence stated in his application for credit card* without informin5 the credit card company of the place where he could actually be found* if at the time of such abandonment or surreptitious leavin5* the outstandin5 and unpaid balance is past due for at least ninety ('(. days and is more than ten thousand pesos (P$(*(((.((.* shall be prima facie presumed to have used his credit card with intent to defraud. At frst 5lance* the above presumptions* when applied in real cases* may sufer from 232 constitutional infrmities. 6he constitution provides that a person shall not be held to answer to a criminal ofense without due process of law. it may be ar5ued that such presumptions are rebuttable ones. Aowever* the dan5er lies in the shiftin5 of the burden of proof from the prosecution to the defense. 6he law provides for si3teen ($). prohibited acts which refer to the production* use* possession of or traFc7in5 in unauthoriDed or counterfeit access devices. It also includes acts deemed fraudulent that increase the amount involved in commercial transactions usin5 access devices. @btainin5 money or anythin5 of value throu5h the use of an access device with intent to defraud or 5ain* and Neein5 thereafter. In the fnal analysis* the law basically see7s to address the issue of fraud in the issuance and use of access devices* especially credit cards. ;raud may be committed by the issuer by ma7in5 false or va5ue information in the application or solicitation to open credit card accounts. 6he applicant or holder* on the other hand* fraudulently misrepresents himself by 5ivin5 wron5 identity* false profession or employment* or bloated income. 6a7e the case for instance of /itiban7 v. "atchalian ("# <o. $$$%%%* +anuary $-* $''&. which shows how credit card applicants throu5h false representation were able to amass in simple terms P9'(*(((.(( from petitioner. In this case* two employees of the Asian-Pacifc Broadcastin5 /o*. Inc. (AB/I. applied for nineteen ($'( credit cards with /itiban7 usin5 diferent names other than their real names. 6he /itiban7 approved the applications and the credit cards were delivered to them for use. Aowever* this case 233 involves an ille5al dismissal case where a /itiban7 employee was found 5uilty of 5ross ne5li5ence for efectin5 the delivery of the credit cards. Aer dismissal was aFrmed in this case. Insofar as access device issuers are concerned* Jermitano v. /.A.* may be a case in point. 6he credit card holder lost his credit card which he immediately reported to the card issuer. 6he contract stipulated that in case of lost* the same should be reported immediately* otherwise purchases made shall be char5ed to the holder. In this case* despite the prompt reportin5 of the holder* the issuer still char5ed the purchases a5ainst the former. 6he /ourt in this case held the issuer in breach of the contract. 6he penalties provided for by #A -8-8 are imprisonment and fne. Imprisonment is from si3 (). years to ten ($(. years and fne ran5es from ten thousand pesos ($(*(((.((. or twice the value of the ofense* whichever is hi5her. 6he penalties are increased in case the ofender has a similar previous conviction* meanin5 if he was previously found violatin5 #A -8-8. In which case* the accused shall sufer imprisonment of not less than twelve ($%. years and not more than twenty (%(. years. 6he two other sta5es of felony* as defned by the #evised Penal /ode is also made punishable. 6hus* attempted and frustrated are meted out with the penalties of imprisonment and fne albeit only in fractions of the above penalties. #.A. -8-8 may seem to favor the issuer. A credit card company may only be meted out the penalty of cancellation or suspension* which may be considered as mere administrative sanctions. In 234 fact* it is not the courts which impose such sanctions but administrative a5encies such as the Ban57o Sentral and the Securities and J3chan5e /ommission. @n the other hand* a holder or mere possessor of a counterfeit fraudulently applied for access device may be convicted and be made to sufer imprisonment and fne. 235 236