Preweek 2010 Criminal Law

2010 PRE-WEEK REVIEW PREDICTIONS AND REMINDERS
in
Criminal Law
by:
Prof. Arturo M. de Castro
(Pre-Bar Reviewer, Global Best Practices, UP Law
Center, Ateneo Law School Pre Bar Review, PCU;
Professor of Law, UP, Ateneo, Lyceum, U.E.)
a. What are the characteristics of Penal Laws?

1. Generality
Penal Laws apply equally to all persons who sojourn in the Philippines,
except as provided in Art. 2
2. Territoriality
Applicable only to offenses committed in the Philippine territory, except
Art. 2.
3. Prospectivity
No retroactive effect, unless favorable to the Accused who is not a
habitual delinquent one who within a period of ten years from the
date of his last release or last conviction of the crimes of (1) serious
or less serious physical injuries (2) robo (robbery) (3) hurto (theft)
(4) estafa or (5) falsification is found guilty of any said crimes a third
time or oftener.
b. What are the Philosophies of Criminal Law?
1. Classical School
Basis of criminal liability is human free will, whose purpose is
retribution (an eye for an eye; a tooth for a tooth) and the emphasis
is on the gravity of the offense not on the offender. e.g., murder, arson
2. Positivist School
Man is inherently good and the offender is socially sick. The purpose is
reformation, with emphasis on the actor, not on the act. e.g. impossible
crime, mitigating circumstances.
c. What are the classifications of crimes according to nature?
1. Mala en se inherently evil

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2. mala prohibita made punishable only by special law

(see page 193, 1st Study Guide for the distinctions)
d. May an act punished by special law be mala en se?
Ans: Yes, if the acts are inherently immoral, like disenfranchisement of
the right to vote. (People vs. Sunico; Reyes, p. 57)
e. Is the crime of plunder mala prohibita or mala ense crime?
Ans: It is mala ense, although punishable under special law because it
is inherent evil, being included among the heinous crimes
punishable with reclusion perpetua to death and, its constitutive
crimes are mala ense, such as malversation of public funds,
bribery and monopolies and combinations. (Joseph Estrada vs.
Sandiganbayan, G.R. No. 148560, Nov. 2, 2001)
1. What is praeter intentionem?

Ans: A person committing a felony is liable for all the natural and logical
consequences of his felonious acts even if the crime committed is
different from the crime intended.
2. What is an impossible Crime?
Ans: If is an act which would be an offense against person or property,
were it not for the inherent impossibility of its accomplishment, or
on account of the employment of inadequate or ineffectual means.
(Art. 4, 2nd par.)
3. Is an impossible crime a crime?
Ans: Yes, because it is defined as a crime and a penalty is imposed for
its commission under the Revised Penal Code.
4. What is the purpose for punishing the Impossible crime?
Ans: To suppress criminal propensity or tendency.
5. May a person be charged of Impossible crime if his act constitutes another
crime?
Ans: No. It is not an impossible crime if the act constitutes another
felony. The concept of an impossible crime precludes the
commission of another crime.
6. A uses an unlicensed firearm in the commission of rebellion. May A be
prosecuted separately for rebellion and illegal possession of firearm?
Ans: No, when an unlicensed firearm is used in the commission of
murder, homicide, rebellion, Coup d etat and sedition, its use is
only considered as an aggravating circumstance.

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7. If A discharges an unlicensed firearm in a public plaza and is charged with

Alarm and scandal, may he be prosecuted for illegal possession of
firearm?
Ans: Yes, because illegal use of firearm is only aggravating and may not
be prosecuted separately if the unlicensed firearm is used in the
commission of homicide, murder, rebellion, coup d etat or sedition.
1. What is the concept of the Battered Woman Syndrome? State its

requisites.
Ans: Battered Woman Syndrome refers to a scientifically defined
pattern of psychological and behavioral symptoms found in women
living in battering relationships as a result of cumulative abuse (RA
9262). It is a plea within the concept of the justifying circumstance
of self-defense. (People vs. Genosa, 341 SCRA 498 [2000])
2. As a specie of the justifying circumstance of self-defense, is unlawful
aggression an indispensable requisite for this defense?
Ans: No, by express provision of law, the victim-survivors who are found
by the counts to be suffering from battered woman syndrome do
not incur any criminal and civil liability not withstanding the absence
of any of the elements for justifying circumstance of self-defense
under the Revised Penal Code. (Sec. 26, RA 9262)
3. A prohibits his wife, a lawyer, from engaging in any profession, business or
activity to make her financially dependent on him. What offense, if any,
does A commit?
Ans: Economic Abuse under RA 9262 committed by making or
attempting to make a woman financially dependent by preventing
her from engaging in any legitimate profession, occupation,
business or activity without valid, serious and moral grounds.
4. May aggravating circumstance be appreciated if not alleged in the
Information?
Ans: No, because it violates the constitutional right of the Accused to be
informed of the nature and the cause of the accusasation against
him. The amendment to the Rules of Criminal Procedure providing
that aggravating circumstances not alleged in the Information may
not be appreciated has abandoned the old doctrines that qualifying
aggravating circumstances, if proven, even if not alleged in the
Information, would be treated only as generic or ordinary
aggravating circumstances.
5. Is a minor between 9 and 15 who has acted with discernment criminally
liable?

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Ans: No, he is absolutely exempt from criminal liability even if he acted

with discernment under the new law (R.A. 9344, Juvenile Justice
and Welfare Act of 2006)
6. Over what offenses are persons below eighteen (18) years exempt from
prosecution?
Ans: In the following:
1) Vagrancy and Prostitution under Art. 202 of the Revised Penal
Code.
2) Mendicancy under P.D. 1563
3) Sniffing of Rugby under P.D. 1619
such prosecution being inconsistent with the United Nations
Convention on the Rights of the Child (Sec. 58).
7. May the justifying circumstance of self- defense be invoked at the same
time with the exempting circumstance of accident?
Ans: No. Self-defense is inconsistent with the exempting circumstance of
accident, in which there is no intent to kill. On the other hand, selfdefense necessarily contemplates a premeditated intent to kill in
order to defend oneself from imminent danger. Apparently, the fatal
shots in the instant case did not occur out of any conscious or
premeditated effort to overpower, maim or kill the victim for the
purpose of self-defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both
parties attempts to possess the firearm. (Pomoy vs. People,
September 29, 2004)
8. May treachery be appreciated in the absence of eye-witnesses?
Ans: No, Treachery cannot be considered where no witness testified on
how the assault began and developed (People vs. Abatayo, July
7, 2004; People vs. Medina, July 30, 2004). The existence of
treachery may not be inferred. Any doubt as to its existence must
be resolved in favor of the Accused. (People vs. Estoya, May 19,
2004; People vs. Rene delos Reyes, May 28, 2004)
9. May treachery be appreciated in Robbery with Homicide which is
classified as a single and individual crime against property?
Ans: YES. Because the constituent crime of homicide is a crime against
person, hence treachery if attendant to the commission of homicide
may be appreciated as an ordinary or generic aggravating
circumstance. (People vs. Ancheta, June 4, 2004)
10. May disregard of age and sex be appreciated in Robbery with Homicide
which is a crime against property?
Ans: No. With respect to disregard of age and sex, the Court has
pronounced in the case of People v. Collado that the same may

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be appreciated only in crimes against persons or honor. It is

not correct to consider this aggravating circumstance in
crimes against property. Besides, robbery with homicide is
principally a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter being the main
purpose and object of the criminal. Moreover, it has not been
proven that in committing the crime, the appellant determinedly
intended to offend or insult the age and sex of the victim. (People
vs. Lito Hernandez, June 15, 2004)
Note the inconsistency between 9 and 10 above.
11. When the killing is attended by treachery and by means of explosive,
which should be the qualifying circumstance? Why?
Ans: When the killing is perpetrated with treachery and by means of
explosives, the latter shall be considered as a qualifying
circumstance. Not only does jurisprudence support this view but
also, since the use of explosives is the principal mode of attack,
reason dictates that this attendant circumstance should qualify the
offense instead of treachery which will then be relegated merely as
a generic aggravating circumstance. (People vs. Comadre, June
8, 2004)
12. What is the effect of the enactment on June 6, 1997 of RA No. 8294 which
also considers the use of explosives as an aggravating circumstance to
the qualifying circumstance of by means of explosion under Art. 248?
Ans: It must be made clear; however that RA No. 8294 did not amend
the definition of murder under Article 248, but merely made the use
of explosives an aggravating circumstance when resorted to in
committing any of the crimes defined in the Revised Penal Code.
The legislative purpose is to do away with the use of explosives as
a separate crime and to make such use merely an aggravating
circumstance in the commission of any crime already defined in the
Revised Penal Code. Thus, RA No. 8294 merely added the use
of unlicensed explosives as one of the aggravating
circumstances specified in Article 14 of the Revised Penal Code.
Like the aggravating circumstance of explosion in paragraph 12,
evident premeditation in paragraph 13, or treachery in paragraph
16 of Article 14, the new aggravating circumstance added by RA
No. 8294 does not change the definition of murder in Article 248.
What the law emphasizes is the acts lack of authority. Thus, when
the second paragraph of Section 3, P.D. No. 1866, as amended by
RA No. 8294 speaks of the use of the aforementioned explosives,
etc. as an aggravating circumstance in the commission of crimes,
it refers to those explosives, etc. unlawfully manufactured,
assembled, dealt in, acquired, disposed or possessed mentioned in
the first paragraph of the same section. What is per se aggravating
is the use of unlawfully manufactured. or possessed explosives.
The mere use of explosives is not. (People vs. Comadre, June 8,
2004)
13. When is the imposable penalty in the maximum regardless of mitigating
circumstances?

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Ans:
a) When in the commission of a crime, advantage is taken by the
offender of his public position.
b) If the offense is by any person who belong to an
organized/syndicated crime group, which means a group of 2 or
more persons collaborating, confederating or mutually helping one
another for purposes of gain in the commission of any crime.
V
1. Distinguish between attempted and frustrated felonies?
Ans: In attempted felonies, the offender commenced directly by overt
acts and commission of a felony, and does not perform all the acts
of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
In frustrated felony, the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent
upon the will of the perpetrator.
2. A shoots B inflicting a fatal wound on B, who survives due to timely
medical attendance. Is the crime attempted or frustrated homicide?
Ans: Frustrated, because by inflecting a fatal wound, A performed all the
acts of execution which would produce homicide, but due to timely
medial attendance, a cause independent of the will of A, homicide
was not produced.
3. If A, without intent to kill, shoots B to scare him without intent to kill, but B
is hit and suffers a wound which will heal after 90 days. What is the crime
committed by A?
Ans: Serious physical injuries, because there is no intent to kill.
4. Will your answer be the same if A has intent to kill B?
Ans: Yes, the crime is attempted homicide because A was not able to
perform all the acts of execution which would produce the felony,
being unable to inflict a fatal wound.
V
1. Who are accomplices punishable as principals?
Ans:
a. Ascendants, guardians curators, teachers and any person who,
by abuse of authority or confidential relationship, shall
cooperate as accomplices in crimes of rape, acts of
lasciviousness, seduction, corruption of minors, white slave
trade or abduction (Art. 346); and

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b. Who gave place for commission of slight illegal detention (Art.

268)
2. What is a complex penalty?
Ans: It is a penalty composed of 3 distinct penalties, each forming a
period, the lightest shall be the minimum, the next the medium and
the most severe penalty the maximum period. (Art. 77)
3. May rebellion be committed thru conspiracy?
Ans: No, because conspiracy to commit rebellion is a separate
punishable crime from rebellion.
4. May attempted rebellion be committed?
Ans: No, because the overt acts of rebellion consummate the crime of
rebellion.
5. May a convict whose death sentence is commuted to reclusion perpetua
due to the abolition of the death penalty be (1) paroled? (2) pardoned by
the President?
Ans: He cannot be paroled, but may be pardoned by the President, by
express provision of the new law abolishing the death penalty.
V
1. What are the elements of Estafa thru post-dating or issuance of a
bouncing check?
Ans: The elements of this form of Estafa are: (1) postdating or issuing a
check in payment of an obligation contracted at the time the check
was issued; (2) lack of sufficient funds to cover the check; (3)
knowledge on the part of the offender of such circumstances; and
(4) damage to the complainant. Damage and deceit are essential
elements of the offense and must be established with satisfactory
proof to warrant conviction. The false pretense or fraudulent act
must be committed prior to or simultaneously with the issuance of
the bad check. Thus, the drawer of the dishonored check is given
three days from receipt of the notice of dishonor to cover the
amount of the check. Otherwise a prima facie presumption of deceit
arises. (People of the Philippines vs. Josefina M. Dimalanta,
October 1, 2004; People of the Philippines vs. Lea Sagan
Juliano, January 17, 20005; People of the Philippines vs. Cora
Abella Ojeda, June 3, 2004)
2. Is notice of dishonor required for prosecution for Estafa thru issuance of a
bouncing check?
Ans: YES. Finally, it is worth mentioning that notice of dishonor is
required under both par. 2 (d) Art.315 of the RPC and Sec. 2 of BP
22. While the RPC prescribes that the drawer of the check must
deposit the amount needed to cover his check within three days
from receipt of notice of dishonor, PB 22, on the other hand,

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requires the maker or drawer to pay the amount of the check within
five days receipt of notice of dishonor. Under both laws, notice of
dishonor is necessary for prosecution (for estafa and violation of BP
22). Without proof of notice of dishonor, knowledge of insufficiency
of funds cannot be presumed. No crime (whether estafa or violation
of BP 22) can be deemed to exit. (People of the Philippines vs.
Cora Abella Ojeda, June 3, 2004)
3. What are the elements of estafa with abuse of confidence?
Ans: The elements of estafa under Article 315, par. 1 (b) of the Revised
Penal Code are the following; (a) that money, goods or other
personal property is received by the offender in trust or on
commission, or for administration, or under any other obligation
involving the duty to make delivery of or to return the same; (b) that
there be misappropriation or conversion of such money or property
by the offender, or denial on his part of such receipt; (c) that such
misappropriation or conversion or denial is to the prejudice of
another; and (d) there is demand by the offended party of the
offender. (Jorge Salazar vs. People of the Philippines, August
18, 2004)
4. Is demand an element of estafa with abuse of confidence?
Ans: No. Demand is not an element of the felony or a condition
precedent to the filing of a criminal complaint for estafa. Indeed, the
accused may be convicted of the felony under Article 315,
paragraph 1 (b) of the Revised Penal Code if the prosecution
proved misappropriation or conversion by the accused of the
money or property subject of the Information. In a prosecution for
estafa, demand is not necessary where there is evidence of
misappropriation or conversion. However, failure to account upon
demand, for funds or property held in trust, is circumstantial
evidence of misappropriation.
Demand need no be formal. It may be verbal. In Barrameda v.
Court of Appeals, the Court ruled that even a query as to the
whereabouts of the money is tantamount to a demand:
It must be noted that the specific word demand need not
be used to show that demand had, indeed, been made upon the
person charged of the offense. A query as to the whereabouts of
the money, such as the one proven in the case at bench, is
tantamount to a demand. (Robert Crisanto D. Lee vs. People
of the Philippines and Atoz Trading Corporation, April 11,
2005)
V
A, B, C, & D, American servicemen, went night clubbing. A carries F, tipsy
and groggy under the influence of liquor, inside a Van and rapes her, in the
presence of B, C & D inside the Van. While A is pumping on F in sexual
intercourse, B, C & D cheer Go,Go A, Go.

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Are B,C & D guilty of rape through conspiracy?

Ans: No. they cannot be principals by inducement because their
cheering is not the moving force that impels A to rape F. Mere presence at the
scene of the crime without any contributory participatory acts to attain a common
criminal objective is not sufficient to charge B,C &D of conspiracy.
V
5. May a woman be charged with rape committed by sexual intercourse?
Ans: Yes. Under the Revised Penal Code, however, an accused may be
considered a principal by direct participation, by inducement, or by
indispensable cooperation. This is true in a charge of rape against
a woman, provided of course a man is charged together with her.
Thus, in two cases this Court convicted the woman as a principal
by direct participation since it was proven that she held down the
complainant in order to allow her co-accused spouse consummate
the offense.
In People v. Villamala, the Court found the husband and wife guilty
for raping their neighbor and kumare in this factual setting, viz. the
wife visited the victim at her home on the pretext of inquiring as to
the whereabouts of her husband. Once inside, she whistled for her
husband and he immediately appeared at the doorstep. The wife
then suddenly pinned her kumare to the floor. The husband
forcefully removed the victims skirt and panties, removed his
shorts, placed himself on top of the victim and consummated the
rape. In the more recent People v. Saba(n), the accused married
couple victimized a fourteen (14) yeal-old epileptic who stayed at
their home for treatment by the wife who was a reputed healer. On
the pretext of conducting a healing session, the wife ordered the
victim to lie down on the floor then pinned the victims hands to the
floor and covered her mouth while her husband removed his pants
and briefs and the victims panties and raped the young girl. These
two cases show not only the possibility but the reality of rape
committed by a woman together with a man. (People vs. Suarez,
April 15, 2005)
6. What are the elements of acts of lasciviousness?
Ans: Upon the other hand, Article 366 of the Revised Penal Code states:
(a)ny person who shall commit any act of lasciviousness upon the
other person of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision
correccional. The elements of this crime are: (1) that the offender
commits any act of lasciviousness or lewdness; (2) that it is done
(a) by using force and intimidation, or (b) when the offended party is
deprived of reason or otherwise unconscious, or (c) when the
offended party is under 12 years of age; and (3) that the offended
party is another person of either sex. As explained by an eminent
author of criminal law, rape and acts of lasciviousness have the
same nature. There is, however, a fundamental difference between
the two. In rape, there is the intent to lie with a woman whereas this
element is absent in acts of lasciviousness. (People vs. Mendoza,
January 31, 2005)

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7. What are the elements of sexual abuse under RA 7610, in addition to the
elements of acts of lasciviousness under the Revised Penal Code?
Ans: The elements of sexual abuse under Section 5, Article of Rep.
Act No. 7610 that must be proven in addition to the elements of
acts of lasciviousness are the following:
(1) The accused commits the act of sexual intercourse or
lasciviousness conduct;
(2) The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and
(3) The child, whether male or female, is below 18 years of age.
The first element obtains. Section 32, Article X of the
Implementing Rules and Regulations of Rep. Act No. 7610 defines
lasciviousness conduct as follows:
(T)he intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth of any
person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or public area of a person. (Emphasis Supplied)
As we observed in People v. Larin, Section 5 of Rep. Act No. 7610
does not merely cover a situation of a child being abused for profit,
but also one in which a child engages in any lascivious conduct
through coercion or intimidation. As case law has it, intimidation
need not necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free
exercise of the will of the offended party. This is especially true in
the case of young, innocent and immature girls who could not be
expected to act with equanimity of disposition and with nerves of
steel. Young girls cannot be expected to act like adults under the
same circumstances or to have the courage and intelligence to
disregard the threat. (Amployo vs. People, April 26, 2005)
X
1. Distinguish between Robbery and Theft?
Ans:
The crime of theft is akin to the crime of robbery. The only

difference is in robbery there is force upon things or violence or
intimidation against persons in taking of personal properties. In the
crime of theft the taking of the personal property with intent to gain
is without violence against or intimidation of persons nor force upon
things and the taking shall be without the consent of the owner. In
robbery, the taking is against the will of the owner. (Roque vs.
People, November 25, 2004)
2. Distinguish between Theft and Estafa?

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Ans: In theft, the personal property is in the possession of another, unlike

estafa, [where] the possession of the thing is already in the hands
of the offender. In People vs. Locson, 57 Phil, 325, it was held.
Commentators on the Spanish Penal Code lay great stress on the
taking away is, getting possession in theft, laying hold of the, so
that if the thing is not taken away, but received and then
appropriated or converted, without consent of the owner, it may be
any other crime, that of estafa for issuance. Can a person tasked
to receive and collect capital contributions and having collected and
received in her capacity as teller as alleged in the information, be
guilty of theft? The question should be answered in the negative.
(Roque vs. People, November 25, 2004)
3. What is the crime committed by a looter who steals goods during a state
of emergency or national calamity?
Ans: Qualified Theft, aggravated by the taking of the property on the
occasion of fire, earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident or civil disturbance (Art. 310, as
amended by R.A. 120, B.P. No. 71, May 1, 1980)
X
1. When does Sandiganbayan have jurisdiction over Murder or Homicide
committed by public officers?
Ans: Indeed, murder and homicide will never be the main function of any
public office. No public office will ever be a constituent element of
murder. When then would murder or homicide, committed by a
public officer, fall within the exclusive and original jurisdiction of the
Sandiganbayan? People v. Montejo (108 Phil. 613) provides the
answer. The Court explained that a public officer commits an
offense in relation to his office if he perpetrates the offense while
performing, though in an improper or irregular manner, his official
functions and he cannot commit the offense without holding his
public office. In such a case, there is an intimate connection
between the offense and the office of the accused. If the
information alleges the close connection between the offense
charged and the office of the accused, the case falls within the
jurisdiction of the Sandiganbayan. People v. Montejo is an
exception that Sanchez v. Demetriou recognized. (Crisostomo
vs. Sandiganbayan, G.R. No. 152398, April 14, 2005, Caprio J.)
Aguinaldo v. Domagas (G.R. No. 98452, resolution dated Sept.
26, 1991, cited in Republic vs. Asuncion, 231 SCRA 680)
promulgated on 26 September 1991, modified Deloso v. Domingo
Aguinaldo v. Domagas, clarified that offenses specified in Section
4(a)(2) of PD 1606, as amended by PD 1861, must be committed
by public officers and employees in relation to their office and the
information must allege this fact. The succeeding cases of
Sanchez v. Demetriou (227 SCRA 627) and Natividad v. Felix
(229 SCRA 680) reiterated the Aguinaldo v. Domagas ruling.
(Crisostomo vs. Sandiganbayan, G.R. No. 152398, April 14,
2005, Caprio J.)
2. What determines whether a public officer is an accountable public officer?

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Ans: The name or relative importance of the office or employment is not

the controlling factor. The nature of the duties of the public officer or
employee, the fact that as part of his duties he received public
money for which he is bound to account and failed to account for it,
is the factor which determines whether or not malversation is
committed by the accused public officer or employee. Hence, a
mere clerk in the provincial or municipal government may be held
guilty of malversation if he or she is entrusted with public finds and
misappropriates the same. (Barriga vs. Sandiganbayan, et. al.,
G.R Nos. 161784-86, April 26, 2005, Callejo)
3. Distinguish between malversation and illegal use of public funds.
Ans: For the accused to be guilty of illegal use of public funds or
property, the prosecution is burdened to prove the following
elements:
(1) The offenders are accountable officers in both crimes.
(2) The offender in illegal use of public funds or property does not
derive any personal gain or profit; in malversation, the offender
in certain cases profits from the proceeds of the crime.
(3) In illegal use, the public fund or property is applied to another
public use; in malversation, the public fund or property is applied
to the personal use and benefit of the offender or of another
person. (Barriga vs. Sandiganbayan, et. al., G.R Nos.
161784-86, April 26, 2005, Callejo)
4. What are the requisites of technical malversation?
Ans: The following:
1) That the offender is a public officer;
2) That there is public fund or property under his administration;
3) That such public fund or property has been appropriated by law
or ordinance;
4) That he applies the same to a public use other than that for
which such fund or property has been appropriated by law or
ordinance.
In relation to 2nd element, if the public funds are established to be
part of savings, the same ceased to be appropriated by law or
ordinance for any specific purpose. The 3 rd requisite is likewise
absent in the absence of any law or ordinance appropriating the
funds forming part of savings. Moreover, criminal intent cannot be
based on disputable presumption under Sec. 5(b), Rule 131.
(Abdulla vs. People, G.R. No. 150129, April 6, 2005, Garcia)
X
1. What are the essential elements of violation of B.P. No. 22?

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Ans: The following:

(1) the making, drawing, and issuance of any check to apply for
account or for value;
(2) the knowledge of the maker, drawer, or issuer that at the time of
issue there are no sufficient funds in or credit with the drawee
bank for the payment of such check in full upon its presentment;
and
(3) the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason
had not the drawer, without any valid cause, ordered the bank to
stop payment. (Marigomen vs. People, G.R. No. 153451, May
26, 2005, Callejo)
2. Is verbal notice of dishonor sufficient?
Ans: No, the notice of dishonor must be in writing; a verbal notice is not
enough. The rationale for this was explained by the Court in
Domagsang v. Court of Appeals, to wit:
Petitioner counters that the lack of a written notice of
dishonor is fatal. The Court agrees.
While, indeed, Section 2 of B.P. Blg. 22 does not state
that the notice of dishonor be in writing, taken in conjunction,
however, with Section 3 of the law, i.e., that where there are no
sufficient funds in or credit with such drawee bank, such fact
shall always be explicitly stated in the notice of dishonor or
refusal, a mere oral notice or demand to pay would appear to
be insufficient for conviction under the law. The Court is
convinced that both the spirit and letter of the Bouncing Checks
Law would require for the act to be punished thereunder not
only that the accused issued a check that is dishonored, but that
likewise the accused has actually been notified in writing of the
fact of dishonor. The consistent rule is that penal statutes have
to be construed strictly against the State and liberally in favor of
the accused. (Marigomen vs. People, G.R. No. 153451, May
26, 2005, Callejo)
3. If the drawer or maker is an officer of the corporation, is notice of dishonor
to said corporation sufficient?
Ans: No. Thus, if the drawer or maker is an officer of a corporation, the
notice of dishonor to the said corporation is not notice to the
employee or officer who drew or issued the check for and in its
behalf. The Court explained in Lao v. Court of Appeals, to wit:
In this light, the postulate of Respondent Court of
Appeals that (d)emand on the Corporation constitutes demand
on appellant (herein petitioner), is erroneous. Premiere has no
obligation to forward the notice addressed to it to the employee
concerned, especially because the corporation itself incurs no
criminal liability under B.P. Blg. 22 for the issuance of a
bouncing check. Responsibility under B.P. Blg. 22 is personal to

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the accused; hence, personal knowledge of the notice of

dishonor is necessary. Consequently, constructive notice to the
corporation is not enough to satisfy due process. Moreover, it is
petitioner, as an officer of the corporation, who is the latters
agent for purposes of receiving notices and other documents,
and not the other way around. It is but axiomatic that notice to
the corporation, which has a personality distinct and separate
from the petitioner, does not constitute notice to the latter.
(Marigomen vs. People, G.R. No. 153451, May 26, 2005,
Callejo)
4. May imprisonment be imposed by the Judge for violation of B.P. No. 22?
Ans: Yes. SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001,
established a rule of preference in imposing the above penalties.
When the circumstances of the case clearly indicate good faith or a
clear mistake of fact without taint of negligence, the imposition of a
fine alone may be considered as the preferred penalty. The
determination of the circumstances that warrant the imposition of a
fine rests upon the trial judge only. Should the judge deem that
imprisonment is appropriate, such penalty may be imposed. (Go,
et. al. vs. Dimagiba, G.R. No. 151876, June 21, 2005,
Panganiban)
X
1. The Senate issues a summons to Jok Jok Bolante to appear before the
Senate Blue Ribbon Committee investigating the fertilizer scam in aid of
legislation. Jok Jok Bolante refuses, without any legal excuse to obey
such summons. What crime, if any, does Jok Jok Bolante commit?
Ans: Disobedience to summons issued by the National Assembly under
Art. 150 of the Revised Penal Code.
2. RB appears before the Senate as a witness or resource person but
refuses to answer any legal inquiry and to produce the books and papers
in his possession in relation to the engagement of a lobby group in the
United States concerning the initiative to amend the Philippine
Constitution.
a.
What possible offense does A commit?
Ans: Refusal to answer any inquiry and refusal to produce books and
papers in his possession.
3. A restrains B from attending as a witness or induces B to disobey the
summons or to be sworn by any Congressional body or official. What are
the possible offenses committed by A?
Ans: Also violation of Art. 150 which penalizes such acts.

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STUDY GUIDE AND PRACTICAL EXERCISES

MULTIPLE CHOICE
1. A, B and C took a large cattle belonging to D while the cattle was grazing
in an open grassland, without the knowledge and consent of D.
Multiple Choice: Select the best answer and explain why the other choices
are not the best answer.
The crime committed by A, B and C is:
a) Qualified Theft
b) Cattle rustling
c) Robbery
2. If C can prove that he owns a large cattle with the same size, gender and
description as the large cattle of D also grazing in the same grass land,
what defense may A, B and C invoke?
a)
b)
c)
d)
Aberratio ictus
Error en personae
Mistake of fact
Praeter intentionem
Select the best answer and explain why it is the best answer and why the
other choices are not the best answer.
3. Assume that A, B and C in the first problem above pre-agreed to steal the
large cattle of A and to have the same slaughtered for sale to divide the
profits.
D pardons A after A pays for the price of the cattle to D. What is the effect
of pardon of A on the criminal liability of B and C?
4. A inserts his finger in the vagina of B, As girl friend, without the prior
knowledge and consent of B, stealthily, but without violence, force or
intimidation. B is annoyed because of his perceived lack of respect of A for
her dignity.
A commits the crime of:
a)
b)
c)
d)
e)
Rape by sexual assault

Acts of lasciviousness
Unjust vexation
Malicious mischief
None of the above
Select the best answer and explain why the other answers are not the
best answer.
5. Assume that B is a minor below 18 at the time A inserts his finger in the
vagina of B, the crime committed by A is:
a) unjust vexation

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b) anti-child abuse
c) rape through sexual assault
d) acts of lasciviousness
6. H and W, husband and wife, have a lovers quarrel one night. W refuses
the sexual advances of H. H waits until W falls aslept and has sexual
intercourse with W. H commits the crime of:
a)
b)
c)
d)
e)
marital rape
statutory rape
unjust vexation
malicious mischief
no crime
7. Isau was the first borne of Isaac and by tradition and customary practice of
premoginator, he is entitled to inherit the fortune of Isaac in trust for the
other siblings. Jacob, posing as Isau, with the aid and cooperation of their
mother and the wife of Isaac, succeeded in making Isaac believe that
Jacob was Isau leading Isaac to give his blessing to Jacob as the
successor to all his fortune.
a) Was Jacob guilty of usurpation of civil status of Isau?
b) Was the mother guilty as a principal by indispensable cooperation or
as an accomplice? Explain fully.
c) Did Jacob commit theft or estafa?
d) Was Jacob criminally liable to Isau, assuming the Revised Penal Code
was applicable at the time of the commission of deceit by Jacob?
8. As mother, M, cannot be released from the hospital because they cannot
pay the hospital bills. M suggests to A that she wants to commit suicide if A
cannot release her from the hospital. Fearing that M would commit
suicide, A issues post-dated checks to secure the release of M from the
hospital in payment for her medical and hospital bills. All the PDCs
bounced.
Charged with estafa, A interposes the defense of avoidance of greater evil
and injury.
a) Will the defense proper?
b) Did A commit estafa and violation of B.P. # 22 or only violation of B.P. #
22?
Explain your answer.
OBJECTIVE TYPE QUESTIONS
1. Is mistake of fact a justifying or an exempting circumstance? Explain.
2. Are the provisions of the Revised Penal Code applicable to crimes defined
under the Human Security Act?
3. Distinguish between rebellion and coup d etat.
4. Why is there no frustrated theft? (Valenzuela vs. People, G.R. No.
160188, June 21, 2007)

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5. What are the qualifying circumstances in Murder? Give their respective

elements or requisites.
6. A in the heat of anger threatens to shoot B with an unlicensed armalite
rifle.
May A be prosecuted for light threat and illegal possession of an
unlicensed firearm? Explain.
7. A, treasurer of ABC Corporation, issues a corporate check to B for
valuable consideration. The check is dishonored for insufficiency of funds.
B sends a written notice of dishonor to ABC Corporation with a request to
make good the check or make an arrangement for payment within 5 days
from receipt of notice.
Prosecuted for violation of BP No. 22, A interposes the defense of lack of
written notice of dishonor to him. Will the defense prosper? Explain your
answer.
8. A goes to the house of B livid with anger to confront B for mauling his
brother earlier in the day. A, armed with a bolo, violently knocks at the
main door of the house asking B to come out. Fearing for the safety of his
wife and children, B gets an unlicensed caliber 22 rifle and rusher to the
back of the house to close the open door there. B points the gun at A to
stop him from attacking him, but A grabs the end barrel of the 22 caliber
rifle, causing the rifle to explode and hit A in the stomach. A dies.
May A invoke the justifying circumstance of self-defense and the
exempting circumstance of accident? Explain your answer.
9. In People vs. Bindoy, the Accused was attacked by an on-rushing
assailant with a bolo. In order to defend himself, he swang his bolo
backwards in preparation for defending himself. It turned out that there
was a bystander behind him who was hit and as a result died.
The Supreme Court absolved the Accused on the ground of accident as
an exempting circumstance. The accused was performing the lawful act of
self-defense without fault or negligence when by mere accident the fatal
injury was inflicted without criminal intent on the bystander behind him.
May People vs. Bindoy be applied to the case in number 8 above?
10. Distinguish between:
a) Instigation and entrapment
b) Complex crime from special complex crime
c) Mala en se from mala prohibita
11. Who are the principals criminally liable for the commission of felonies?
Define or give the elements or requisites of each.
12. Enumerate and give the elements or requisites of:
a)
b)
c)
d)
the justifying circumstances

the exempting circumstances
the alternative circumstances
the qualifying circumstances

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in: (1) Murder

(2) qualified rape
(3)qualified theft
(4) qualified piracy
13. Define (1) syndicated estafa; (2) crime committed by a syndicate;
14. May illegal possession of firearms be prosecuted independently:
(1) when another crime is committed other than homicide, murder, coup de
etat, or rebellion?
(2) if the unlicensed firearm is used in the commission of the lesser offense of
light threat?
15. Can you answer the multiple choice questions appended to the 2008
edition of reviewer on Special Penal Laws of the author?
Multiple Choice (Select the Best Answer and Explain your choice.)
1. In expressed conspiracy
a) The act of one is the act of all, except as to those who try to prevent
the commission of the crime.
b) There is unity of purpose and design as shown by the concerted
actions of the participants to achieve the commission of the crime.
c) There is pre-agreement and planning to commit the crime.
2. It means mistake in the blow.
a) Mistake of identity
b) Aberratio ictus
c) Praeter Intentionim
3. This official in the Foreign Service has no diplomatic immunity.
a) Ambassador
b) Consul
c) Charge affair
4. This penalty is intended to protect the accused from the vendetta of
the family of the offended party.
a) Bond to keep the peace
b) Destierro
c) Fine
5. Battered Woman Syndrome is
a)
b)
c)
d)
Exempting
Justifying
Mitigating
Aggravating

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6. Intoxication is aggravating
a) If purposely sought and resorted to before the commission of the
crime.
b) If not habitual although purposely resorted to before the commission of
the crime to gain courage.
c) If accidental provided that the accused is not a habitual drunkard.
7. Violation of the Trust Receipt Law is a crime against:
a)
b)
c)
d)
Property
National security
Pubic Order
Public interest
8. Subsidiary imprisonment applies to:

a) Failure to pay the fine by reason of insolvency
b) Reparation of damages
c) Costs of proceedings
9. A continuing crime is committed:
a) When a single act constitutes two or more grave or less grave felony.
b) When an offense is committed as a necessary means to commit the
other.
c) When a series of acts are committed arising from one criminal
resolution.
10. The period of prescription of offenses is counted from:
a) The commission of the offense.
b) The discovery of the offense by the offended parties, the authorities or
their agents.
c) The discovery of the identity of the offender.
11. Prejudicial Question may be invoked to suspend the criminal
proceedings.
a) If the civil action which involves a prejudicial question was filed ahead
of the criminal case.
b) If the resolution in the civil action is determinative of the guilt or
innocence of the Accused.
c) Even at the preliminary investigation stage before the Public
Prosecution Office.
12. An aggravating circumstance may be appreciated only:
a) If alleged in the Information and proven at the trial.
b) Even if not alleged in the Information but proven at the trial, but if
qualifying, may be appreciated only as generic aggravating.
c) If not objected to and proven during the trial even if not alleged in the
Information.
13. Under the Dangerous Drugs Act, prosecution for illegal use of
prohibited drugs:

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a) May not be made without a Drug Test conducted on the person of the
Accused.
b) May be made provided that the penalty for illegal possession is lower
than the penalty for illegal use in which case the prosecution would
be for illegal use provided it is supported by a Drug Test.
14. Illegal Possession of Firearm
a) May not be prosecuted separately when used in the commission of
homicide or murder, but will only be appreciated as an aggravating
circumstance.
b) May be complexed with the killing if it is the means of committing the
crime, such as Homicide thru illegal possession of firearms.
c) May be prosecuted even without the evidence of lack of license or
permit.
15. Rape is a crime against:
a) Chastity
b) Person
c) Honor
16. A jumps from the roof of a tall building to commit suicide. He falls on
B who is physically injured requiring medical attendance for more
than 3 months.
a) A is not liable because suicide in not an offense. Under Art. 4, only a
person committing a felony is liable for all the natural consequences of
his felonious acts.
b) A is liable for Serious Physical Injuries thru reckless Imprudence
because he did not exercise prudence and precaution not to cause
anybody any harm in the process of committing suicide.
c) A is not liable because he has no criminal intent to cause injury to B.
17. Libel is committed:
a) By publication of facts connected with the private life of another and
offensive to the honor, virtue and reputation of said person, even
though said publication is made in connection with narration in any
judicial or administrative proceeding.
b) By offensive and scurrilous epithets, including words imputing
unchastity to the mother and tending to injure the character of the
daughter.
c) By performing any act which shall cast dishonor, discredit or contempt
upon another person.
d) By directly imputing to an innocent person the commission of a crime.
e) By doing any intrigue which has for its principal purpose to blemish the
honor or reputation of a person.
18. What is the crime committed by person who contracts a marriage
knowing that the requirements of the law have not been complied
with by obtaining the consent of the other by means of violence,
intimidation or fraud.
a) Bigamy
b) Marriage contracted against provisions of law
c) Premature marriage

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d) Performance of illegal marriage ceremony

19. Usurpation of Civil status is committed by one who:
a) Represents himself as another and assumes the latters filiation or
rights.
b) Simulates birth
c) Substitutes one child for another
d) Conceals or abandons any legitimate child with intent to cause such
child to lose its civil status
20. The ascendants, guardians, teachers and any person who, by abuse
of confidence or authority or relationship who cooperate in the
execution of an offense by previous or simultaneous acts in a
manner not indispensable to the commission thereof are liable as:
a) Principals
b) Accomplice
c) Accessory
21. This crime may be prosecuted even without the Complaint filed by
the offended party.
a)
b)
c)
d)
e)
f)
g)
Adultery
Concubinage
Rape
Acts of lasciviousness
Consented abduction
Corruption of minors
Seduction
22. What is the crime committed by a person who kissed the offended
party and her breast was touched as an incidental consequence of
the embrace.
a) Light coercion under Art. 287 (2)
b) Acts of lasciviousness
c) Slander by Deeds
23. A buys a car on installments secured by a chattel mortgage recorded
in the Register of Deeds of Makati City. A brings the car to Davao and
sells it there. A commits the crime of:
a) Estafa with abuse of confidence
b) Removal and Sale of mortgaged property
c) Estafa thru deceit
24. Spouses, ascendants and descendants and relatives by affinity in
the same line, brother and sisters and brothers-in-law and sisters-inlaw living together, the widowed spouse, are both criminally and
civilly liable in the crime of:
a)
b)
c)
d)
Theft
Estafa
Malicious mischief
Robbery

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25. Any person who, by means of violence against or intimidation of

personal, takes possession of any real property is guilty of:
a) Anti-squatting
b) Occupation of real property (Art. 312)
c) Grave coercion
26. When motor vehicle is taken without the consent of the owner or
with threat or force, the crime committed is:
a) Qualified Theft
b) Robbery
c) Carnapping
27. When what is taken without the consent of the Owner is any of: road
rollers, trolley cars, streets-sweepers, sprinklers, lawn movers,
bulldozers, graders, fork-lifts, amphibian trucks and cranes if not
used on public highways, vehicles, which run only on rails or tracts,
and tractors, trailers and reaction engines of all kinds used
exclusively for agricultural purposes, what is the crime committed:
a) Carnapping
b) Qualified Theft
c) Robbery
28. A, the husband of B, in order to discover the secret of A, seizes the
papers and letters of B, without revealing the secrets of B.
a) A is not liable because he did not reveal the secret of B.
b) A is exempt even if he should reveal the secret of B because as
spouse, A is exempt from criminal liability.
c) A is guilty of discovery secrets thru seizure of correspondence under
Art. 290.
29. A person charged of Grave Threats or Light Threats who is required
to give Bond For Good Behaviour (not molest the person threatened)
a) Shall be sentenced to Destierro if he fails to give such Bond.
b) Shall be jailed even before conviction if he fails to give such Bond.
30. A person in the heat of anger draws and points a gun on another and
orally threatens to kill him but does not persist in the idea involved in
his threat is guilty of:
a)
b)
c)
d)
Other light threat

Light threat
Grave threat
Grave coercion
31. What is the crime committed by the police officers who arrested
rallyists without any ground for warrantless arrest for the purpose of
delivering them to the authorities?
a) Grave coercion
b) Arbitrary detention
c) Unlawful arrest under Act 269

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32. The crime committed by a husband who killed his pregnant wife with
violence is/are:
a) Parricide and unintentional abortion
b) Complex Crime of parricide with unintentional abortion
c) Parricide and Intentional Abortion
33. Killing a child less than 3 day old
a) Parricide
b) Infanticide
c) Murder
34. Shooting a person without intent to kill is:
a) Discharge of Firearms (Art. 254)
b) Attempted Homicide
c) Alarm and sandal
35. A person who destroys an official document to defraud another is
guilty of:
a) Infidelity in the custody of documents
b) Other form of swindling
36. The crime committed by a public officer who accepts gifts offered to
him by reason of his office without doing any favor to the giver:
a) Direct Bribery
b) Indirect Bribery
c) None of the above
37. A public officer who agrees to perform an act or refrain to perform
any act in connection with the performance of his official duty in
consideration of any offer, promise gift or present is guilty of:
a) Indirect Bribery
b) Direct Bribery
c) Corruption of Public Official
38. The crime committed by the private person who offers or gives the
bribe is:
a) Corruption of Public Official
b) Direct Bribery
c) Indirect Bribery
39. As defined in the Revised Penal Code:
a) A woman who indulges in sexual intercourse for money even
occasionally only and not habitually or regularly is a prostitute.
b) A woman who for money or profit habitually indulges in lascivious
conduct is a prostitute.
c) She is a prostitute if she habitually engages in sexual intercourse only
for money.

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40. What is the crime committed by private participants in the coup de

etat who publicly make use of an insignia uniforms or dress
pertaining to an office not held by them or to a class of persons of
which he is not a member?
a) Illegal use of uniforms or Insignia (Art. 179)
b) Usurpation of official functions (Art. 177)
c) Concealing true name (Art. 178)
41. The crime of illegal assemblies is committed:
a) By attending a meeting in which the audience is incited to the
commission of the crime of treason, rebellion or insurrection sedition or
assault upon a person in authority or his agents.
b) Membership in an association totally organized for the purpose of
committing any of the crimes under the Revised Penal Code or some
purposes contrary to public morals.
c) Without public uprising, any outcry tending to incite rebellion or sedition
in a public place (Art. 153, par. 3)
42. Rebellion is committed:
a) By rising publicly and taking arms against the Government
b) By a swift attack, accompanied by violence, intimidation, threat,
strategy or stealth, against the duly constituted authorities.
c) By employing force or intimidation for the purpose of depriving the
Chief Executive of the legislative of any of their powers.
43. The crime committed by a public officer or employee who, in cases
search is proper shall search the domicile, papers or other
belongings on any person, in the absence of the latter, any member
of his family or in their default the presence of two witnesses
residing in the same locality:
a) Violation of Domicile (Art. 128)
b) Searching Domicile without witnesses
c) Trespass to dwelling
44. The crime committed by public officer who detains a person without
legal ground.
a) Illegal Detention
b) Arbitrary detention
c) Qualified kidnapping
45. The crime committed by persons who board and seize a vessel in
Philippine internal waters is:
a) Qualified piracy
b) Robbery because it took place in Philippine waters
c) Mutiny
46. The crime committed by a person who compels a change in the
course or destination of an aircraft of Philippine Registry or seizes or
usurps the control thereof while in flight or by any person who
compels an aircraft of foreign registry to land in Philippine territory
or seizes or usurps its control while on Philippine territory.

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a) Hijacking under RA 6235 (1971)

b) Grave coercion
c) Terrorism
47. Treason is not committed
a) By a non-resident alien who commits acts of treason abroad
b) By a Filipino who adheres to the enemy giving the enemy aid and
comfort abroad.
c) By a resident alien who adheres to the enemy giving it aid and comfort
abroad.
48. The crime of expulsion, which is committed by a public officer who,
without legal authority a) expels any person from the Philippines or
b) compels such person to change his residence is a crime against:
a) National Security and the laws of Nations
b) The fundamental laws of the state
c) Public order
49. A complex penalty is:
a) The penalty for Complex Crime
b) A penalty consisting of three periods which are distinct penalties
c) The penalty for special complex crime
50. The Revised Penal Code belongs to:
a) Classical School
b) Positivist School
c) Principally to Classical School with certain features of the Positivist
School such as the provisions on impossible crime.

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Preweek 2010 Criminal Law

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2010 PRE-WEEK REVIEW PREDICTIONS AND REMINDERS

a. What are the characteristics of Penal Laws?

Prof. Arturo M. de Castro

2. mala prohibita made punishable only by special law

1. What is praeter intentionem?

Prof. Arturo M. de Castro

7. If A discharges an unlicensed firearm in a public plaza and is charged with

1. What is the concept of the Battered Woman Syndrome? State its

Prof. Arturo M. de Castro

Ans: No, he is absolutely exempt from criminal liability even if he acted

Prof. Arturo M. de Castro

be appreciated only in crimes against persons or honor. It is

Prof. Arturo M. de Castro

Prof. Arturo M. de Castro

b. Who gave place for commission of slight illegal detention (Art.

Prof. Arturo M. de Castro

Prof. Arturo M. de Castro

Are B,C & D guilty of rape through conspiracy?

Prof. Arturo M. de Castro

The crime of theft is akin to the crime of robbery. The only

2. Distinguish between Theft and Estafa?

Prof. Arturo M. de Castro

Ans: In theft, the personal property is in the possession of another, unlike

Prof. Arturo M. de Castro

Ans: The name or relative importance of the office or employment is not

Prof. Arturo M. de Castro

Ans: The following:

Prof. Arturo M. de Castro

the accused; hence, personal knowledge of the notice of

What possible offense does A commit?

Prof. Arturo M. de Castro

STUDY GUIDE AND PRACTICAL EXERCISES

Rape by sexual assault

Prof. Arturo M. de Castro

Prof. Arturo M. de Castro

5. What are the qualifying circumstances in Murder? Give their respective

the justifying circumstances

Prof. Arturo M. de Castro

in: (1) Murder

Prof. Arturo M. de Castro

8. Subsidiary imprisonment applies to:

Prof. Arturo M. de Castro

Prof. Arturo M. de Castro

d) Performance of illegal marriage ceremony

Prof. Arturo M. de Castro

25. Any person who, by means of violence against or intimidation of

Other light threat

Prof. Arturo M. de Castro

Prof. Arturo M. de Castro

40. What is the crime committed by private participants in the coup de

Prof. Arturo M. de Castro

a) Hijacking under RA 6235 (1971)

Prof. Arturo M. de Castro

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