Criminal Law

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.
CAMPANILLA
PRO REO
In dubio pro reo is means "when in doubt, for the accused. Intimately
related to the in dubio pro reo principle is the rule of lenity. The rule applies when
the court is faced with two possible interpretations of a penal statute, one that is
prejudicial to the accused and another that is favorable to him. The rule calls for
the adoption of an interpretation which is more lenient to the accused (Intestate
estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010).
POSITIVIST THEORY AND CLASSICAL THERORY
The positivist theory states that the basis for criminal liability is the sum
total of the social and economic phenomena to which the offense is expressed.
The purpose of penalties is to secure justice. The penalties imposed must not
only be retributive but must also be reformative, to give the convict an
opportunity to live a new life and rejoin society as a productive and civic-spirited
member of the community. The adoption of the aspects of the Positivist theory is
exemplified by the indeterminate sentence law, impossible crime, privilege
mitigating circumstance of minority and modifying circumstances, rule on
imposition of penalties for heinous and quasi-heinous crimes) (Joya vs. Jail
Warden of Batangas, G.R. Nos. 159418-19, December 10, 2003;).
Under the classical theory, man is essentially a moral creature with an
absolutely free will choose between good and evil. When he commits a felonious
or criminal act, the act is presumed to have been done voluntarily, i.e. with
freedom, intelligence and intent. Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will appears unimpaired (People vs.
Estrada, G.R. No. 130487, June 19, 2000). Since the Revised Penal Code is based
on the classical school of thought, it is the identity of the mens rea which is
considered the predominant consideration and, therefore, warrants the
imposition of the same penalty for conspirators on the consequential theory that
the act of one is thereby the act of all (Hon. Sandiganbayan, Honrado, G.R. No.
115439-41, July 16, 1997). Under this theory, the criminal liability is based on
the result of the felonious act (proximate cause rule).
CHARACTERISTIC OF CRIMINAL LAW
There are three characteristics of criminal law, to wit: (1) generality (2)
territoriality, and (3) prospectivity. The general, territorial and prospective
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2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

characteristics of criminal law are principles that define and demarcate the
scope and limitation of the operation of criminal law. Under these three
principles, the operation or enforceability of criminal law is limited to wrongful
acts committed on or after its effectivity (prospectivity) within the territory of the
Philippines (territoriality) by person living and sojourning therein (generality).
GENERALITY - Generality principle is akin to territoriality principle in
the sense that the demarcating factor of both principles is the territory of the
Philippines. Under generality principle, criminal law is enforceable to person
living or sojourning in the territory of the Philippines. Under the territoriality
principle, criminal law is applicable only to criminal act committed within the
territory of the Philippines. But the concept of generality is different from
territoriality. The applicability of territoriality principle or generality principle
will depend on the issue raised by the accused in questioning the jurisdiction of
the court. If the accused attacks the jurisdiction of the court because of the
unique characteristic of his person (e.g. he is a foreigner, military, hermit,
primitive, ambassador, legislator, President), the applicable principle is
generality. If the accused attacks the jurisdiction of the court due to the unique
characteristic of the place where the crime was committed (e.g. the place of
commission is foreign vessel, embassy or high sea) etc, the applicable principle
is territoriality.
1. Military officers - The Revised Penal Code and special criminal laws
are enforceable against military men living or sojourning in the Philippines.
However, CA 408 (Articles of War) which vests jurisdiction over members of the
AFP to the courts-martial. RA 7055 (AN ACT STRENGTHENING CIVILIAN
SUPREMACY OVER THE MILITARY) did not divest the military courts of
jurisdiction to try cases involving "service-connected crimes or offenses" under
CA 408 (Example: Mutiny or sedition, quarrels, frays; disorders, breaking an
arrest or escaping from confinement, releasing prisoners without proper
authority, wrongful appropriation of captured property, corresponding with, or
aiding the enemy, spies, dueling, fraud against the government affecting matters
and equipment). In fact, RA No. 7055 mandates that these service-connected
crimes shall be tried by the court-martial (Navales v. Abaya, G.R. No. 162318,
October 25, 2004). CA 408 is a law of preferential application since it excludes
members of the AFP from the operation of the Revised Penal Code and special
criminal laws if the crimes committed by them are service-connected as defined
by RA 7055.
2. Consular officers - Despite the ruling in Schneckenburger vs.
Moran, consular officers and employees are now enjoying immunity from
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criminal prosecution of acts performed in the exercise of consular function
under 1967, Convention on Consular Relation. Slander (Liang vs. People, GR NO
125865, January 28, 2000) or reckless imprudence resulting in homicide is not
function-related. Consul is liable for committing this crime.
TERRITORIALITY PRINCIPLE: Under the principle of territoriality, the

Philippines has jurisdiction over crimes committed inside its territory except as
provided in the treaties and laws of preferential application.
1. Embassy - The ground occupied by US embassy is in fact the

territory of the USA to which the premises belong through possession or
ownership. A person who committed a crime within the premises of an embassy
will be prosecuted under the law of Philippines because of the principle of
territoriality (See: Reagan vs. Commission on Internal Revenue, 30 SCRA 968,
En Banc; Answers to 2009 Bar Examination Questions by UP Law Complex).
However, jurisdiction of the Philippines over the embassy is limited or restricted
by the principles of inviolability of diplomatic premises, which is a generally
accepted principle of international law. Warrant of arrest cannot be served
inside US embassy without waiver of American government of its right under
the principle of inviolability.
2. English rule - There are two fundamental rules in International Law
regarding crimes committed aboard a foreign merchant vessel (not military
vessel), if the same is within the 12-mile territorial water (not internal or
archipelagic water or high seas) of the Philippines to wit: (1) French rule - Crimes
committed aboard a foreign merchant vessel within the territorial water of the
Philippines are subject to the jurisdiction of the flag state (extra-territoriality
principle) unless their commission affects the peace and security of our country.
(2) English rule Crimes committed aboard a foreign merchant vessel within the
territorial water of the Philippines are subject to jurisdiction of the Philippines
(territoriality principle) unless their commission does not affect its peace and
security, or has no pernicious effect therein. It is the English rule that obtains
in this jurisdiction.
3. Convention of the law of the Sea - Under the Convention on the
Law of the Sea, the flag state of foreign merchant vessel passing through the
territorial sea has jurisdiction over crimes committed therein. However, the
Philippines can exercise jurisdiction to arrest any person or to conduct any
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investigation in connection with any crime committed on board the ship during
its passage in the following cases: (1) if the consequences of the crime extend to
the coastal State; (2) if the crime is of a kind to disturb the peace of the country
or the good order of the territorial sea; (3) if the assistance of the local
authorities has been requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or (4) if such measures are necessary
for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
4. Drug trafficking - Following the English rule, the Philippines has no
jurisdiction over transportation of opium in a foreign vessel in transit in
territorial water of our country because possession of opium does not have a
pernicious effect on our country (U.S. vs. Look Chaw). But under the
Convention of the law of the Sea, the Philippines can exercise jurisdiction to
arrest any person or to conduct any investigation involving transportation of
dangerous drugs since this is a measure necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.
EXTRA-TERRITORIALITY - Under the principle of extra-territoriality, the

Philippines has jurisdiction over crimes committed outside its territory for those
five instances mention in Article 2 such as crime committed in vessel of
Philippines
registry
(ownership
is
not
material),
function-related
crime
committed by public officer (such as corruption or direct bribery), crimes

against national security (such as treason, espionage; rebellion is not a crime
against national security), and crime against law of nation such as piracy and
mutiny). In People vs. Tulin, G.R. No. 111709, August 30, 2001- Piracy is an
exception to the rule on territoriality in criminal law (Article 2). The same
principle applies even if accused were charged, not with a violation of qualified
piracy under the penal code but under a special law, PD No. 532 which
penalizes piracy in Philippine waters. It is likewise, well-settled that regardless of
the law penalizing the same, piracy is a reprehensible crime against the whole
world.
PROSPECTIVITY: Article 22 of RPC - If the court in trying an accused,

who committed a crime prior to the passage of the law, should give retroactive
effect to the law provided that: (1) it is favorable to the accused and (2) the
accused is not a habitual delinquent (Article 22). Ex post facto law - Congress in
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passing a law can insert retroactive effect provision therein subject to the
Constitution of ex post facto law. If the retroactive provision of the law has
passed the constitutional test on prohibition against ex post facto law, the court
must give retroactive effect to this law even if the accused is a habitual
delinquent. Nullum crimen poena sine lege If the law repeals a previous law or
provision defining a crime, the applicable principle is not Article 22 of RPC but
nullum crimen poena sine lege (There is no crime when there is no law punishing
it). Since the intention of the new law is to decriminalize an act punishable by
the repealed law, the accused should be acquitted or released if the already
convicted, even though he is a habitual delinquent.
X committed crime under RA No. 6425, the penalty for which is life
imprisonment. RA No. 7659 amended RA No. 6425 by prescribing the penalty of
reclusion temporal. Should RA No. 7659 be given retroactive effect? Answer: Yes.
The maximum duration of reclusion temporal is 40 years of imprisonment while
life imprisonment has no duration. Thus, reclusion perpetua is a lighter penalty
than life imprisonment. The amendatory law, being more lenient and favorable to
the accused than the original provisions thereof should be accorded retroactive
application (People vs. Morilla, GR No. 189833, February 05, 2014).
RA No. 9346 prohibits the imposition of death penalty, prescribes
reclusion perpetua in lieu of death penalty or life imprisonment if the special law
does not use the nomenclature of the penalties under RPC and declares a
person sentenced to reclusion perpetua as a prescribed or reduced penalty is
ineligible for parole. This law has a retroactive effect. Penal laws which are
favorable to accused are given retroactive effect. This principle is embodied
under Article 22 of RPC, which provides: Penal laws shall have a retroactive
effect insofar as they favor the persons guilty of a felony, who is not a habitual
criminal (People vs. Talaro, et.al., GR No. 175781, March 20, 2012).
REPEAL: Decriminalization - Repeal of a penal law deprives the courts
of jurisdiction to punish persons charged with a violation of the old penal law
prior to its repeal (Sindiong and Pastor, 77 Phil. 1000; Binuya, 61 Phil. 208; U.S.
vs. Reyes, 10 Phil. 423; U.S. vs. Academia, 10 Phil. 431; Arizala vs. Court of
Appeals, G.R. No. 43633, September 14, 1990; Almuete, et al., G.R. No. L-265,
February 27,19 76). The intention of the new law is to decriminalize an act
punishable of old law. Thus, person cannot be punished for subversion under
RA 1700, which was repealed by RA 7637, even though he is a habitual
delinquent.
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New regulation - Repeal with re-enactment of a penal law does not

deprive the courts of jurisdiction to punish persons charged with a violation of
the old penal law prior to its repeal. Such repeal even without a saving clause
would not destroy criminal liability of the accused (U.S. vs. Cana, 12 Phil. 241).
The intention of the new law is not to decriminalize an act punishable of old law
but merely to provide new regulation. If the new law is favorable to the accused,
who is not a habitual delinquent, it shall be given retroactive effect. Example: A
was charged for the crime of rape under Article 336 of RPC for raping his minor
daughter. However, RA 8353 expressly repealed Article 336 but re-enacted the
provision on rape by reclassifying it as a crime against person, redefining it and
prescribing a graver penalty for the commission thereof. The repeal of Article
336 does not deprive the courts of jurisdiction to try and punish A for rape
under Article 336. RA No. 8353 shall not be given retroactive effect since it is
not favorable to the accused.
DECRIMINALIZATION
1. Vagrancy - Before Article 202 of RPC punishes vagrancy and
prostitution. But Article 202 of RPC as amended merely penalizes prostitution. In
sum, RA No. 10158 has decriminalized vagrancy by omitting portions of Article
202 involving crime vagrancy. A reading of the Senate deliberation pertaining to
the passage of law decriminalizing vagrancy shows that they considered vagrants
as victims of poverty and that the law on vagrancy serves to oppress the very
people that the government sought to protect.
In view of the new policy of the State decriminalizing vagrancy, which is
embodied in RA No. 10158, ordinance, which punishes vagrancy, should
be declared as contrary to law, and hence, invalid. Settled is the rule that what
the national legislature expressly allows by law, a local legislature may not
disallow by ordinance or resolution (Lina vs. Pana, G.R. No. 129093, August 30,
2001). The spring cannot rise higher than its source. As aptly explained by
Justice Nachura in his book, An ordinance must not be contrary to the
Constitution or law. Prohibited activities may not be legalized in the guise of
regulation; activities allowed by law cannot be prohibited, only regulated.
RA No. 10158 shall be given retroactive effect. Under Section 2 and 3
thereof, all pending cases for vagrancy shall be dismissed and all persons serving
sentence for vagrancy shall be immediately released. Since Sections 2 and 3 of
RA No. 10158 expressly provide retroactive application to the law without
distinction, whether the offender is a habitual delinquent or not.
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2. Premature marriage - Under Article 351 of RPC, a woman in
contracting marriage within 301 days from death of husband, or dissolution or
annulment of marriage is liable for the crime of premature marriage. However, RA
No. 10655 decriminalizes premature marriage by repealing Article 351.
Premature marriage was decriminalize since Article 351 discriminates women
because this provision is not applicable to men. Moreover, Article 351 sought to
prevent a possible confusion as to whether the father of the child born after the
dissolution of the marriage is the first husband or the second. This preventive
measure is not anymore necessary since paternity and filiation could now be
easily determined through modern technology.
MISTAKE OF FACT PRINCIPLE:
Requisites: (1) That the acts done would have been lawful had the facts
been as the accused believed them to be (2) that the mistake of fact is not due to
negligence or unlawful intent of the offender. The Supreme Court in several
cases had applied the mistake of fact doctrine, which allowed the accused,
who committed a crime on a mistaken belief, to enjoy the benefit of the
justifying circumstance of self-defense (United States vs. Ah Chong, 15 Phil.,
488), defense of person and right (US vs. Bautista, G.R. No. 10678 August 17,
1915), defense of honor (United States vs. Apego, 23 Phil. 391), performance of
duty, (People vs. Mamasalaya, G.R. No.L-4911, February 10, 1953), and the
exempting circumstance of obedience of an order of superior officer (People vs.
Beronilla, G.R. No. L-4445, February 28, 1955). In Ah Chong, the accused, who
believed that the victim was a robber and that his life was in danger because of
the commencement of unlawful aggression, was acquitted due to mistake of fact
doctrine in relation to the rule on self-defense. In Oanis vs. Galanta, the
accused, who believed that the sleeping victim is a notorious criminal to be
arrested by them, was held guilty of murder for shooting him since the mistake
of fact principle in relation to performance of duty is not applicable. Second
element is not present since they did not ascertain first his identify despite
opportunity. The first element is not likewise present since the killing of victim
believed to be a criminal was not necessary consequence of the due performance
of duty of the accused as police officers.
The gist of the theft is the intent to deprive another of his property in a
chattel, either for gain or out of wantonness or malice to deprive another of his
right in the thing taken. This cannot be where the taker honestly believes the
property is his own or that of another, and that he has a right to take
possession of it for himself or for another, for the protection of the latter.
However, the belief of the accused of his ownership over the property must be
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honest and in good faith and not a mere sham or pretense. If the claim is
dishonest, a mere pretense, taking the property of another will not protect the
taker (Gaviola vs. People, G.R. No. 163927, January 27, 2006). This belief of
ownership as a defense in theft is in accordance with the mistake of fact
doctrine.
X informed the authorities regarding armed rebel elements on board a
vehicle in a certain barangay. Several policemen, Barangay officers and members
of the Civil Home Defense Force (CHDF) responded to information and set a check
point. X pointed at an approaching jitney occupied by rebels. They flagged down
the vehicle but the same did not stop. They attacked the vehicle with automatic
weapons by firing directly thereat. One died and another was wounded. It turned
out however that the victims are unarmed innocent civilians. Are those
responsible for the death and injuries of the victims liable for homicide? Is the
doctrine of mistake of fact applicable? Answer: They are liable for homicide and
attempted homicide. The duty of those manning the check point is to identify the
occupants of their suspect vehicle and search for firearms inside it to validate the
information they had received; they may even effect a bloodless arrest. While,
rebellion is a continuing offense, they cannot open fire at or kill the suspects
under any and all circumstances. There is no evidence showing that they were
placed in real mortal danger in the presence of the victims. Hence, the mistake of
fact principle is not applicable since there is negligence or bad faith on their part
(Yapyucu vs. Sandiganbayan, GR No. 120744-46, June 25, 2012).
South African athlete Oscar Pistorius has been found guilty of culpable
homicide after the judge found he killed his girlfriend by mistake. The judge said
the athlete had acted "negligently" when he fired shots through a toilet door, but
in the "belief that there was an intruder". If the case happened here, should the
athlete be convicted of homicide or reckless imprudence resulting in homicide?
Answer: The athlete should be held liable with homicide with privilege
mitigating circumstance of defense of property.
In mistake of fact, which negates dolo, it is important requisite that that
act would have been lawful had the fact been as the accused believed them to be.
If there was really an intruder inside the toilet, it would be considered as
unlawful aggression against his property, which would allow him to use
reasonable means to repel it in accordance with the self-help doctrine under
Article 429 of the Civil Code and defense of property under Article 12 of the
Revised Penal Code. However, the means employed by him firing shots through
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the toilet door is not reasonable; and hence, he is only entitled to privileged
migrating circumstance of incomplete defense of property (See: People vs.
Narvaez, G.R. Nos. L-33466-67, April 20, 1983). In sum, the act would have been
attended by the privilege mitigating circumstance of incomplete justification had
the facts been as the accused believed them to be.
VOLUNTARINESS Concurrence of freedom, intelligence and intent
makes up the criminal mind behind the criminal act. Thus, to constitute a
crime, the act must, generally and in most cases, be accompanied by a criminal
intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the
mind of the person performing the act complained of is innocent (People vs.
Ojeda, G.R. Nos. 104238-58, June 3, 2004). Voluntariness is an element of
crime, whether committed by dolo or culpa or punishable under special law. The
act to be considered a crime must be committed with freedom and intelligence.
In addition to voluntariness, intentional felony must be committed with dolo
(malice), culpable felony with culpa, and mala prohibita under special law with
intent to perpetrate the act or with specific intent (such as animus possidendi in
illegal possession of firearm). Presumption of voluntariness: In the determination
of the culpability of every criminal actor, voluntariness is an essential element.
Without it, the imputation of criminal responsibility and the imposition of the
corresponding penalty cannot be legally sanctioned. The human mind is an
entity, and understanding it is not purely an intellectual process but is
dependent to a large degree upon emotional and psychological appreciation. A
mans act is presumed voluntary. It is improper to assume the contrary, i.e. that
acts were done unconsciously, for the moral and legal presumption is that every
person is presumed to be of sound mind, or that freedom and intelligence
constitute the normal condition of a person (People vs. Opuran, G.R. Nos.
147674-75, March 17, 2004).
CRIMINAL INTENT To be held liable for intentional felony, the
offender must commit the act prohibited by RPC with specific criminal intent
and general criminal intent. General criminal intent (dolo in Article 3 of RPC) is
an element of all crimes but malice is properly applied only to deliberate acts
done on purpose and with design. Evil intent must unite with an unlawful act
for there to be a felony. A deliberate and unlawful act gives rise to a presumption
of malice by intent. On the other hand, specific intent is a definite and actual
purpose to accomplish some particular thing. In estafa, the specific intent is to
defraud, in homicide intent to kill, in theft intent to gain (Recuerdo vs. People,
G.R. No. 168217, June 27, 2006, ). In the US vs. Ah Chong, the accused was
acquitted because of mistake of fact principle even though the evidence showed
that he attacked the deceased with intent to kill (United States vs. Apego, G.R.
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No. 7929, November 8, 1912; Dissenting opinion of J. Trent), which was
established by the statement of the accused "If you enter the room I will kill you."
Article 249 (homicide) should be read in relation to Article 3. The accused was
acquitted not because of the absence of intent to kill (specific intent) but by
reason of lack of general intent (dolo or malice).
PRESUMED MALICE - The general criminal intent (malice) is presumed
from the criminal act and in the absence of any general intent is relied upon as
a defense, such absence must be proved by the accused (Ah Chong case, the
accused was able to rebut the presumption of general criminal intent or malice).
Generally, a specific intent is not presumed. Its existence, as a matter of fact,
must be proved by the State just as any other essential element. This may be
shown, however, by the nature of the act, the circumstances under which it was
committed, the means employed and the motive of the accused (Recuerdo vs.
People, G.R. No. 168217, June 27, 2006). There are other specific intents that
are presumed. If a person died due to violence, intent to kill is conclusively
presumed. Intent to gain is presumed from taking property without consent of
owner.
MOTIVE
Doubt as to the identity of the culprit - Motive gains importance only
when the identity of the assailant is in doubt. As held in a long line of cases, the
prosecution does not need to prove the motive of the accused when the latter has
been identified as the author of the crime. The accused was positively identified
by witnesses. Thus, the prosecution did not have to identify and prove the motive
for the killing. It is a matter of judicial knowledge that persons have been killed
for no apparent reason at all, and that friendship or even relationship is no
deterrent to the commission of a crime. The lack or absence of motive for
committing the crime does not preclude conviction where there are reliable
witnesses who fully and satisfactorily identified the petitioner as the perpetrator
of the felony (Kummer vs. People, GR No. 174461, September 11, 2013).
Circumstantial or inconclusive evidence - Indeed, motive becomes
material when the evidence is circumstantial or inconclusive, and there is some
doubt on whether a crime has been committed or whether the accused has
committed it.
The following circumstantial evidence is sufficient to convict
accused: 1. Accused had motive to kill the deceased because during the
altercation the latter slapped and hit him with a bamboo, prompting Romulo to
get mad at the deceased; 2. Accused was chased by the deceased eastward after
the slapping and hitting incident; 3. Said accused was the last person seen with
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the deceased just before he died; (4) Accused and Antonio Trinidad surrendered
to police authorities with the samurai; (5) Some of the wounds inflicted on the
deceased were caused by a bolo or a knife. (Trinidad vs. People, GR No. 192241,
June 13, 2012).
INDETERMINATE OFFENSE DOCTRINE In People vs. Lamahang,

G.R. No. 43530, August 3, 1935, En Banc - Accused who was caught in the act
of making an opening with an iron bar on the wall of a store was held guilty of
attempted trespassing and not attempted robbery. The act of making an opening
on the wall of the store is an overt act of trespassing since it reveals an evident
intention to enter by means of force said store against the will of its owner.
However, it is not an overt act of robbery since the intention of the accused once
he succeeded in entering the store is not determinate; it is subject to different
interpretations. His final objective could be to rob, to cause physical injury to its
occupants, or to commit any other offense. In sum, the crime the he intended to
commit inside the store is indeterminate, and thus, an attempt to commit it is
not punishable as attempted felony.
In Cruz vs. People, G.R. No. 166441, October 08, 2014 - The petitioner
climbed on top of the naked victim, and was already touching her genitalia with
his hands and mashing her breasts when she freed herself from his clutches and
effectively ended his designs on her. Yet, inferring from such circumstances that
rape, and no other, was his intended felony would be highly unwarranted. This
was so, despite his lust for and lewd designs towards her being fully manifest.
Such circumstances remained equivocal, or "susceptible of double interpretation"
(People v. Lamahang). Verily, his felony would not exclusively be rape had he been
allowed by her to continue, and to have sexual congress with her, for some other
felony like simple seduction (if he should employ deceit to have her yield to him)
could also be ultimate felony.
PROXIMATE CAUSE
Proximate cause is the primary or moving cause of the death of the
victim; it is the cause, which in the natural and continuous sequence unbroken
with any efficient intervening cause produces death and without which the
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fatal result could not have happened. It is the cause, which is the nearest in the
order of responsible causation (Blacks Law Dictionary). Intervening cause - The
direct relation between the intentional felony and death may be broken by
efficient intervening cause or an active force which is either a distinct act or fact
absolutely foreign from the felonious act of the offender. Lightning that kills the
injured victim or tetanus infecting the victim several days after the infliction of
injuries, or voluntary immersing the wounds to aggravate the crime committed
by accused is an intervening cause. Thus, the accused is liable for physical
injuries because of the intervening cause rule. On the other hand, carelessness
of the victim, or involuntary removal of the drainage, lack of proper treatment is
not an intervening cause. Hence, the accused is liable for the death because of
the proximate cause rule.
If the victim died due to tetanus of which he was infected when the
accused inflicted injuries upon him, the crime committed is homicide (People vs.
Cornel, G.R. No. L-204, May 16, 1947). If the victim died due to tetanus of
which he was infected after the accused inflicted injuries upon him, the crime
committed is physical injuries. The accused is not liable for homicide because
tetanus is an efficient intervening cause. Thus, the proximate cause of the death
of the victim is not the infliction of injuries. In Villacorta vs. People, G.R. No.
186412, September 7, 2011 (Justice De Castro), there had been an interval of
22 days between the date of the stabbing and the date when victim was rushed to
hospital, exhibiting symptoms of severe tetanus infection. Since the victim was
infected of severe tetanus, he died the next day. The incubation period of severe
tetanus is less than 14 days. Hence, he could not have been infected at the time of
the stabbing since that incident occurred 22 days before the victim was rushed to
the hospital. The infection of victims stab wound by tetanus was an efficient
intervening cause. The accused was held liable for physical injuries.
Proximate cause has been defined as "that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred." Although there
was no direct injury on his vital organs of the victim, his wounds affected his
kidneys, causing multiple organ failure and eventually his death. Accused is
liable for homicide. Without the stab wounds, the victim could not have been
afflicted with an infection which later on caused multiple organ failure that
caused his death. The offender is criminally liable for the death of the victim if
his delictual act caused, accelerated or contributed to the death of the victim
(Belbis, Jr. vs. People, GR No. 181052, November 14, 2012).
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ERROR IN PERSONAE - In case of error in personae, person is
criminally responsible for committing an intentional felony although the
consequent victim is different from that intended due to mistake of identity.
Requisites: In order to make a person criminally liable in case of error in
personae, the following requisites must be present: (1) Offender committed an
intentional felony; (2) The consequent victim against whom the felony was
directed is different from that intended due to mistake of identity. If the penalty
for the intended crime is different from that of the committed crime, the court
shall impose the penalty for the intended crime or committed crime, whichever
is lesser.
ABERRATIO ICTUS - In case of aberratio ictus, person is criminally
responsible for committing an intentional felony although the consequent victim
is different from that intended due to mistake of blow. Requisites: In order to
make a person criminally liable in case of aberratio ictus, the following
requisites must be present: (1) Offender committed an intentional felony; (2) The
consequent victim against whom the felony was directed is different from that
intended due to mistake of blow. The crime committed against the intended
victim and victim injured due to aberratio ictus shall be made a complex crime
(compound crime). The court shall impose the penalty for the most serious
crime in its maximum period.
The circumstance of aberratio ictus (mistake in the blow) can neither
exempt the accused from criminal responsibility nor mitigate his criminal
liability. Under Article 4 of RPC, criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which
he intended (Matic vs. People, G.R. No. 180219, November 23, 2011).
PRAETER INTENTIONEM: In case of praeter intentionem, person is
criminally responsible for committing an intentional felony although its wrongful
consequence is graver than that intended. Requisites: In order to make a person
criminally liable under Article 4 (1) in case of praeter intentionem, the following
requisites must be present: (1) Offender committed an intentional felony; (2) The
wrongful act done, which is graver than that intended, is the direct, natural and
logical consequence of the felony committed by the offender. Praeter intentionem
may be appreciated as mitigating circumstance of lack of intent to commit so
grave a wrong than that committed.
When death resulted, even if there was no intent to kill, the crime is homicide,
not just physical injuries, since with respect to crimes of personal violence the penal law
looks particularly to the material results following the unlawful act and holds the
13 | P a g e

aggressor responsible for all the consequences thereof. He who is the cause of the cause
is the cause of the evil caused (Seguritan vs. People, G.R. No. 172896, April 19,
2010).
1. Mitigating circumstance - The mitigating circumstance that the
offender had no intention to commit so grave a wrong as that committed or praeter
intentionem is obtaining when there is a notable disparity between the means
employed by the accused to commit a wrong and the resulting crime
committed. The intention of the accused at the time of the commission of the
crime is manifested from the weapon used, the mode of attack employed and the
injury sustained by the victim (People vs. Maglian, G.R. No. 189834, March 30,
2011).The mitigating circumstance of praeter intentionem cannot be appreciated if the
acts employed by accused were reasonably sufficient to produce and did actually produce
the death of the victim (People vs. Sales, G.R. No. 177218, October 3, 2011).
2. Evident premeditation- In case of aberatiu ictus and error in

personae, the SC did not appreciate evident premeditation since the victim, who
was actually killed, is not contemplated in the premeditation of the accused
(People vs. Trinidad, G.R. NO. L-38930, June 28, 1988; People vs. Mabug-at, 51
Phil., 967; People vs. Trinidad, G.R. No. L-38930, June 28, 1988). However,
praeter
intentionem
and
evident
premeditation
can
be
independently
appreciated. there is no incompatibility between evident premeditation and no

intention to commit so grave a wrong since the latter is based on the state of
mind of the offender while the former manner of committing the crime (Reyes;
People vs. Enriquez, 58 Phil. 536).
3. Treachery - If accused employed means to render the victim

defenseless, treachery shall be appreciated even if the killing is due to error in
personae (People vs. Del Castillo, Sr., G.R. No. L-32995, April 30, 1984) or
aberratio ictus (People vs. Mabug-at, G.R. No. 25459, August 10, 1926, En
Banc) or with the circumstance of praeter intentionem (People vs. Cagoco, G.R.
No. 38511, October 6, 1933)
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4. Conspiracy - Conspirators, who conspired to kill a particular parson,
are equally liable for the killing of another person due to error in personae
(People vs. Pinto, Jr. and Buenaflor, G.R. No. No. 39519, November 21, 1991).
However, conspirator, who never even fired a single shot and whose only
participation was to drive their getaway vehicle and to lend his firearm to his
back rider so that the latter could finish off the target victim was not found
accountable for the injury sustained by the unintended victim was just a starcrossed bystander who was accidentally hit in the process (aberratio ictus)
(People vs. Herbias, G.R. No. 112716-17, December 16, 1996; People vs. Flora
and Flora, G.R. No. 125909, June 23, 2000).
INTENT TO KILL: Intent to kill is an element of homicide and murder.
But even if offender had no intent to kill, he would be held just the same liable
for homicide or murder if his felonious act is the proximate cause of the death of
the latter. Even if there is no intent to kill, offender is liable for homicide or
murder if the victim died as a result of the felonious act of the former. The
offenders act is considered felonious if it is accompanied with criminal or evil
intent such as intent to inflict injury, intent to hide the body of the crime, intent
to threaten victim, intent to silence the hold-up victim, or intent to rape.
Offender is liable for homicide because it is the natural, direct and logical
consequence of an act committed with criminal intent.
a. With intent to hide the body of the crime In People vs. Ortega,
Jr., G.R. No. 116736, July 24, 1997 - Ortega stabbed the victim. Garcia assisted
Ortega in concealing the body of the victim by throwing the body into the well.
Victim died due to drowning. Issue: Is Garcia liable for the death of the victim as
principal in homicide even if his intention was not to kill the victim but merely
to assist Ortega in concealing his dead body not knowing that the victim was
still alive at that time? In assisting Ortega carry the body of victim to the well,
Garcia was committing an intentional felony; concealing the body of the crime to
prevent its discovery makes him liable as an accessory in homicide. Hence,
Garcia should be held liable for the direct, natural and logical consequence of
his felonious act of assisting Ortega in hiding the body of the victim. Since
proximate cause of death of the victim is the felonious and accessory act of
throwing the victim into the well, Garcia should be held liable for the death as
principal in homicide.
b. With intent to threaten In US vs. Valdez, G.R. No. 16486, March
22, 1921, En Banc - The accused in rage he moved towards victim with a big
knife in hand, threatening to stab him. Victim believing himself in great and
immediate peril jumped into the water where he was drowned. The accused was
15 | P a g e

found guilty of homicide. The act of threatening to stab victim constitutes a
felony of threat. Hence, accused is liable for the direct, natural and logical
consequence of his intentional and felonious act. It was held that: "If a man
creates in another man's mind an immediate sense of danger which causes such
person to try to escape, and in so doing he injures himself, the person who creates
such a state of mind is responsible for the injuries which result."
d. Intent to inflict injury - Intentional infliction of injury resulting in
death of the victim constitutes homicide or murder. In People vs. Pugay, et al.,
No 74324, November 17, 1988, the deceased, a retardate, and the accused
Pugay were friends. Deceased used to run errands for Pugay and at times they
slept together. During a town fiesta fair was held in the public plaza. Accused,
Pugay and Samson with several companions, who appeared to be drunk, made
the deceased dance by tickling him with a piece of wood. Not content with what
they were doing with the deceased, the accused Pugay suddenly took a can of
gasoline from under the engine of the Ferris wheel and poured its contents on
the body of the former. Then, the accused Samson set victim on fire making a
human torch out of him. Pugay and Samson were stunned when they noticed
the deceased burning. Crime committed by Samson: There is no intent to kill.
The act of the Accused was merely a part of their fun-making that evening.
Accused merely intended to set the deceased's clothes on fire. His act, however,
does not relieve him of criminal responsibility. Burning the clothes of the victim
would cause at the very least some kind of physical injuries on his person, a
felony. Since such felony of physical injuries resulted into a graver offense, he
must be held responsible therefor. (Note: The crime is not murder qualified by
means of fire because the fire was not use to kill but merely to inflict injury).
e. Recklessness Even if there is no intent to kill and evil intent,
offender is liable for culpable felony if the victim died as a result of the
recklessness of the former. Crime committed by Pugay: Having taken the can
from under the engine of the Ferris wheel and holding it before pouring its
contents on the body of the deceased, this accused knew that the can contained
gasoline. The stinging smell of this flammable liquid could not have escaped his
notice even before pouring the same. Clearly, he failed to exercise all the
diligence necessary to avoid every undesirable consequence arising from any act
that may be committed by his companions who at the time were making fun of
the deceased. The accused is only guilty of homicide through reckless
imprudence.
f. Accident - If there is no intent to kill, evil intent and recklessness on
the part of the accused, he is not liable for his intentional act, which caused the
16 | P a g e

death of the victim. In United States vs. Tanedo (15 Phil. Rep., 196), deceased
went with the accused to hunt wild chickens at the forest. While hunting, the
accused came upon a wild chicken, and, not seeing deceased about and not
knowing or having any reason to believe that he was in that vicinity shot the
chicken. The bullet that hit the chicken recoiled and hit the deceased. It was
held that accused is not criminally liable. Life was taken by misfortune or
accident while in the performance of a lawful act executed with due care and
without intention of doing harm. Note: The accused could not have foreseen that
the slug after hitting the chicken would recoil and hit deceased. The principle
enunciated in Tanedo case will not apply if the place where the accused lawfully
discharged his firearm is populated. In People vs. Nocum, G.R. No. L-482, 25
February 1947, En Banc - There was a fistic fight between two persons. Desiring
to stop the encounter, accused shouted at the combatants. As these paid him no
attention, he drew a .45 caliber pistol and shot twice in the air. The bout
continued, however; so he fired another shot at the ground, but unfortunately
the bullet ricocheted, and hit an innocent by-stander, resident of the place.
Victim died. It was held that: The mishap should be classed as homicide
through reckless imprudence, the slaying having been unintentional. It is apparent
that defendant willfully discharged his gun-for without taking the precautions
demanded by the circumstance that the district was populated, and the likelihood
that his bullet would glance over the hard pavement of the Manila thoroughfare.
Note: The accused should have foreseen that the slug after hitting the pavement
would recoil and might hit somebody.
IMPOSSIBLE CRIME
Offender shall be held liable for impossible crime if the following
requisites are present: (1) offender performing an act which would have been an
offense against person or property; (2) offender performed an act with evil
intent; (3) offender did not commit the offense because of the impossibility of its
accomplishment or employment of inadequate or ineffectual means; and (4)
offender in performing an act is not violating another provision of the law (Luis
B. Reyes).
Impossible crime of theft - X, employee of Mega Inc., received check
from the customer of her employer. Instead of remitting the check to her
employer, X deposited the check under her account. However, the drawee bank
dishonored the check because of insufficiency of funds. What is the crime
committed by X? Answer: The crime committed is impossible crime of qualified
theft. Qualified theft is a crime against property. The act of depositing the check
is committed with evil intent. The mere act of unlawfully taking the check meant
17 | P a g e

for Mega Inc. showed her intent to gain or be unjustly enriched. There is factually
impossibility to accomplish the crime of qualified theft since the check is
unfunded. (Jacinto vs. People, G.R. No. 162540, July 13, 2009).
Intod principle - In Intod vs. Court of Appeals, G.R. No. 103119,
October 21, 1992 Outside the house of the victim, accused with intent to kill
fired at the bedroom, where the victim is supposed to be sleeping. No one was in
the room when the accused fired the shots. No one was hit by the gun fire. The
accused were convicted of impossible crime. Accused shoot the place where he
thought his victim would be, although in reality, the victim was not present in
said place and thus, the accused failed to accomplish their end due to its factual
impossibility. In the United States, criminal laws are silent regarding impossible
crimes; hence where the offense sought to be committed is factually impossible
of accomplishment, the offender shall be liable for attempted crime. On the
other hand, where the offense is legally impossible of accomplishment, the actor
cannot be held liable for any crime. In the Philippines, the crime committed is
impossible crime if the offense sought to be committed is factually or legally
impossible. Killing a dead person is impossible crime because of legal
impossibility. Putting the hand inside an empty pocket with intention to steal a
wallet is impossible crime because of factual impossibility.
Raping a dead person - Prior to RA 8353, rape is a crime against
chastity. Thus, if a person raped a dead person believing that she was just
sleeping, offender could not be held liable for impossible crime (J. Ramon
Aquino). In impossible crime the act could have constituted the crime against
person or property if its accomplishment was not impossible. Rape is neither a
crime against person nor against property. However, RA 8353 reclassifies rape
from crime against chastity to crime against person. Hence, an offender for
raping a dead person without knowing that she was already dead may now be
held liable for impossible crime.
Committing another crime - A discharged shotgun at B from a
distance of 300 yards; but because of the limited range of the firepower of the
shotgun, it would be impossible for A to harm B. A is liable of discharged of
firearm and not impossible crime. Where the offender unlawful entered the
house and took a watch that turned out to be his own, he is liable for trespass
to dwelling and not impossible crime (Criminal Law Conspectus by Justice
Florenz Regalado). If the accused administered abortive drugs upon his
girlfriend whom he believed to be pregnant, which turned out not to be true, but
the woman became ill for more than 30 days, the accused will be liable for
18 | P a g e

serious physical injuries and not impossible crime of abortion (Criminal Law
Reviewer by Gregorio).
STAGES
ATTEMPTED AND FRUSTRATED STAGES: In attempted felony, the
offender performs directly an overt act, which consists of one or more acts of
execution, but not enough to consequently produce the felony. In frustrated
felony, the offenders perform all the acts of execution that would produce the
felony as a matter of consequence. To determine whether the felony is at the
attempted or frustrated stage, acts of execution of execution of a felony must be
identified. Example: The acts of execution that would produce homicide or
murder are infliction of mortal wounds upon the victim. If the wounds inflicted
upon the victim with intent to kill are non-mortal, the crime committed is
attempted homicide; if wounds are mortal, the crime committed is frustrated
homicide.
In attempted felony and frustrated felony, the external acts performed by
the offender and the intended felony must have a direct connection; but in an
attempted felony, the offender failed to perform all the acts of execution; thus
his external acts would not produce the felony as a consequence; on the other
hand in a frustrated felony, the offender performed all the acts of execution;
thus, his external acts would produce the felony as a consequence.
FRUSTRATED AND CONSUMMATED - In frustrated and consummated
felony, the accused performed all acts of execution that would produce the
felony as a consequence. If the felony is not produced due to external cause, the
crime committed is frustrated felony; if the felony is produced the crime
committed is consummated.
In frustrated felony, the offender performed all the acts of execution but
the felony was not produced as a consequence due to extraneous cause.
However, there are felonies, the commission of which has no frustrated stage
since the performance of all the acts of execution immediately consummates the
felony. In homicide or murder case, once the offender inflicted mortal wound on
the victim, all the acts of execution are considered performed. However, what
consummates homicide or murder is not the infliction of mortal wounds but the
death of the victim as a consequence of the mortal wound inflicted. Thus, if the
mortally wounded victim did not die due to medical intervention, homicide or
murder is only at the frustrated stage. On the other hand, in rape once the
offender sexually penetrate the labia of the vagina of the victim, all the acts of
19 | P a g e

execution are considered performed. But since sexual penetration consummates
rape, there are no occasions where the offender performed all the acts of
execution and yet the felony was not produced as a consequence. In sum, there
is no such thing as frustrated rape since the performance of all the acts of
execution immediately consummates rape.
ABSOLUTORY CAUSE In attempted felony and frustrated felony, the
offender failed to accomplish his criminal objective by reason of extraneous
causes; if the causes are not extraneous, the accused will be absolved from
criminal liability.
a. Negative Act - In the attempted stage of the execution of a felony, the
offender must do a negative act to be exempt from criminal liability for
attempted felony; since the offender has not yet performed all the acts of
execution that would produce the felony as a consequence, he must
spontaneously desist from further doing criminal acts that will complete all the
acts of execution. Example: A with intent to kill shot B; B sustained nonmortal wound. To be exempt from criminal liability for attempted homicide or
murder, A must spontaneously desist from further shooting B in order not to
inflict mortal injury upon him.
b. Positive Act If the offender performs all the acts of execution,
which would produce the felony as a consequence, offender is not exempted
from liability for frustrated felony even if he voluntary desisted from further
doing criminal act. Spontaneous desistance is a defense in attempted felony but
not in frustrated felony. In the frustrated stage of the execution of a felony, the
offender must do a positive act to be exempt from criminal liability; since the
offender has performed all the acts of execution that would produce the felony
as a consequence, he must do something to prevent, or thwart the production of
the felony. Example: A with intent to kill shot B; B sustained mortal wound.
To be exempt from criminal liability for frustrated felony, it is not enough that A
would desist from further shooting B. The spontaneous desistance is not a
valid defense since A had already inflicted mortal wound on B that would
cause his death as a consequence. Thus, A must save the life of B by treating
his wound. If B did not die because As medical treatment, the latter will not
be held liable for frustrated felony because the homicide was not produced due
to the will of A.
c. Not absolutory cause If the felony is consummated, offender
cannot undo what was done. Offender would not be absolved from criminal
liability even if he had done something that will mitigate the effects of the
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felonious act. Example: (1) Restitution of funds malversed immediately and
voluntarily made before the case was instituted is not an absolutory cause
(Navarro vs. Meneses III, CBD Adm. Case No. 313, January 30, 1998, En Banc).
(2) A stole chicken under the house of B one evening. Realizing that what he
did was wrong, A returned the chicken to the place under the house of B.
Since the crime of theft was already consummated, the return of the stolen
property does not relieve A of criminal responsibility. A had already performed
all the acts of execution, which produced the crime of theft before he returned
the chicken (Reyes). (3) The fact that the accused abandoned victim after six
days of captivity does not lessen his criminal culpability much less exempt him
from criminal liability for the kidnapping and detention of victim (Baldogo, G.R.
No. 128106-07, January 24, 2003, En Banc).
SPONTANOEUS DESISTANCE - The term spontaneous is not equivalent
to voluntary. Even if the desistance is voluntary, the same could not exempt the
offender from liability for attempted felony if there is an external constraint. The
term spontaneous means proceeding from natural feeling or native tendency
without external constraint; it is synonymous with impulsive, automatic and
mechanical (People vs. Lizada, G.R. No. 143468-71, January 24, 2003, En Banc).
Accused had previously raped the victim several times. During the
subject incident, accused was wearing a pair of short pants but naked from waist
up. He entered the bedroom of victim, went on top of her, held her hands,
removed her panty, mashed her breasts and touched her sex organ. However,
accused saw Rossel peeping through the door and dismounted. He berated
Rossel for peeping and ordered him to go back to his room and to sleep. Accused
then left the room of the victim. Held: Accused intended to have carnal knowledge
of victim. The overt acts of accused proven by the prosecution were not merely
preparatory acts. By the series of his overt acts, accused had commenced the
execution of rape, which, if not for his desistance, will ripen into the crime of
rape. Although accused desisted from performing all the acts of execution,
however, his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused is
guilty only of attempted rape (People vs. Lizada, G.R. No. 143468-71, January 24,
2003, En Banc).
HOMICIDE OR MURDER The intent to kill, as an essential element of
homicide at whatever stage, may be before or simultaneous with the infliction of
injuries. The evidence to prove intent to kill may consist of, inter alia, the means
used; the nature, location and number of wounds sustained by the victim; and
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the conduct of the malefactors before, at the time of, or immediately after the
killing of the victim (Escamilla vs. People, GR No. 188551, February 27, 2013).
X opened the door and while still in the car drew a gun and shot A once,
hitting him just below the left armpit. X sped away. The wound sustained by A is
not fatal. What is the crime committed? Answer: X only shot the victim once and
did not hit any vital part of the latter's body. If he intended to kill him, X could
have shot the victim multiple times or even ran him over with the car. Since
intent to kill is lacking but wounds are inflicted upon the victim, the crime is not
attempted murder but physical injuries only (Pentecostes, Jr. vs. People, GR No.
167766, April 07, 2010).
X was charged with frustrated murder for hacking the neck of victim with
the use of a scythe. Invoking the doctrine in Pentecostes, Jr., X claimed that had
he intended to kill victim, he could have repeatedly hacked him to ensure the
latters death. Is the argument tenable? Answer: No. Pentesoste Jr. case is not
applicable since the victim in that case was shot in the arm, a non-vital part of
the body. In this case, the use of a scythe against victims
neck was
determinative of the homicidal intent of X. A single hacking blow in the neck
could be enough to decapitate a person and leave him dead. Refraining from
further hacking the victim does not negate intent to kill. What could have been a
fatal blow was already delivered and there was no more desistance to speak of
(People vs. Abella, G.R. No. 198400, October 07, 2013).
Using a gun, he shot the victim in the chest. Despite a bloodied right
upper torso, the latter still managed to run towards his house to ask for help.
Nonetheless, petitioner continued to shoot at him three more times, albeit
unsuccessfully. The wound sustained by the victim is fatal. The crime committed
is frustrated homicide (Escamilla vs. People, GR No. 188551, February 27, 2013).
COMPLEX CRIME
Killing persons and injuring two more by treacherously detonating a
hand grenade in a dancing place constitutes the complex crime of multiple
murders with double attempted murder. Single act of detonating an explosive
device may quantitatively constitute a cluster of several separate and distinct
offenses, yet these component criminal offenses should be considered only as a
single crime in law on which a single penalty is imposed because the offender
was impelled by a single criminal impulse which shows his lesser degree of
perversity. Even though the other victim did not suffer mortal wounds, the crime
committed is not physical injuries, because accused was motivated by the same
22 | P a g e

intent to kill when he detonated the explosive device inside the dancing place
(People vs. Barde, G.R. No. 183094, September 22, 2010).
RECOMMENDED EXECUTIVE CLEMENCY
Accused was convicted of crime RA No. 8282 for his failure to remit SSS
contributions of his employees and was sentenced to suffer up to 20 years of
reclusion temporal. The penalty is excessive since he already paid his delinquent
contribution. Under Article 5 of the Revised Penal Code, the courts are bound to
apply the law as it is and impose the proper penalty, no matter how harsh it
might be. The same provision, however, gives the Court the discretion to
recommend to the President actions it deems appropriate but are beyond its
power when it considers the penalty imposed as excessive. Although an accused
is convicted under a special penal law, the Court is not precluded from giving the
Revised Penal Code suppletory application in light of Article 10 of the same Code
(Mendoza vs. People, G.R. No. 183891, October 19, 2011).
CONSPIRACY
IMPLIED CONSPIRACY - In People vs. Dollendo, G.R. No. 181701,
January 18, 2012 -The evidence of a chain of circumstances, to wit: that
appellant went inside the house of Romines to ascertain that the victim was
there; that he fetched Dollendo to bring him to Ruiz; that he gave the dipang to
Dollendo to commit the crime; and that they both fled after the stabbing, taken
collectively, shows a community of criminal design to kill the victim. Evidently,
there was conspiracy in the commission of the crime.
COLLECTIVE RESPONSIBILITY - It is immaterial whether appellant
acted as a principal or as an accomplice because the conspiracy and his
participation therein have been established. In conspiracy, the act of one is the
act of all and the conspirators shall be held equally liable for the crime (People vs.
Siongco, G.R. No. 186472, July 5, 2010).
DISSOCIATION - To exempt himself from criminal liability, a conspirator
must have performed an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the commission thereof (People vs.
Ebet, G.R. No. 181635 November 15, 2010).
MASTERMIND - To be held liable as conspirator, it must also be shown
that the accused performed an overt act in furtherance of the conspiracy except
23 | P a g e
in the case of the mastermind of a crime (People vs. Vera, GR No. 128966, August
18, 1999). One who plans the commission of a crime is liable as conspirator and
principal by inducement (People vs. Comiling, G.R. No. 140405, March 4, 2004,
En banc).Notwithstanding, the fact that one was not at the crime scene, evidence
proved that he was the mastermind of the criminal act or the principal by
inducement. What is important is that inducement was the determining cause of
the commission of the crime. The command or advice made by principal by
inducement was of such nature that, without it, the crime would not have
materialized (People vs. Janjalani, G.R. No. 188314, January 10, 2011).
PRESENCE - Accused, unarmed, appeared in the company of his
employer, and another person. His employer shot and killedthe victim. Accused
did nothing to prevent the killing. Accused fled together with his employer and
other person.The fact that accused appeared together with employer and another
and fled with them proves a certain degree of participation and cooperation in
the execution of the crime. However, there is doubt as to whether accused acted
as a principal or just a mere accomplice. Such doubt should be resolved in favor
of the milder form of criminal liabilitythat of a mere accomplice (People vs.
Tomas, G.R. No. 192251, February 16, 2011). If the accused is armed at the
time, he could be held liable as principal on the basis of implied conspiracy. The
fact that the companion of the criminal actor is armed may mean that the former
is supplying moral assistance to the latter. The armed presence of conspiratorial
companion may prove a sense of security and encouragement on the part of the
material executor or may serve as deterrence against possible defender or rescuer
(Galgo, G.R. No. 133887, May 28, 2002, En Banc).
SPECIAL LAW - B.P. Blg. 22 does not expressly proscribe the

supplementary application of the provisions RPC including the rule on
conspiracy. Hence, such rule may be applied supplementarily. Thus, a nonissuer of bum check can be held liable for violation of BP Blg. 22 on the basis of
conspiracy. (Ladonga vs. People, G.R. No. 141066, February 17, 2005). The
principle of conspiracy may be applied to RA No. 9262. Thus, a person (such as
mother-in-law), who has no marital, sexual or dating relationship with the
victim, can be held liable for violence against woman on the basis of conspiracy
(Go-Tan vs. Go, G.R. No. 168852, September 30, 2008)
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Anti-graft law - May a private person be indicted for conspiracy in
violating Section 3(g) of R.A. 3019 even if the public officer, with whom he was
alleged to have conspired, has died prior to the filing of the Information? Answer:
Yes. The death of the public officer does not mean that the allegation of
conspiracy between him and private individual can no longer be proved or that
their alleged conspiracy is already expunged. The only thing extinguished by the
death of the public officer is his criminal liability. His death did not extinguish
the crime nor did it remove the basis of the charge of conspiracy between him
and private individual (People vs. Go, GR NO. 168539, March 25, 2014, en banc).
Robbery with rape When a homicide takes place by reason of or on the
occasion of the robbery, all those who took part shall be guilty of the special
complex crime of robbery with homicide whether they actually participated in the
killing, unless there is proof that there was an endeavor to prevent the
killing. The records are bereft of any evidence to prove, or even remotely suggest,
that appellant attempted to prevent the killing. Therefore, the basic principle in
conspiracy that the "act of one is the act of all," applies in this case ( People vs.
Ebet, GR No. 181635, November 15, 2010; People vs. De Leon, GR No. 179943,
June 26, 2009; People vs. Diu, GR No. 201449, April 03, 2013)
If a robber tries to prevent the commission of homicide after the
commission of the robbery, he is guilty only of robbery and not of robbery with
homicide. All those who conspire to commit robbery with homicide are guilty as
principals of such crime, although not all profited and gained from the robbery.
One who joins a criminal conspiracy adopts the criminal designs of his coconspirators and can no longer repudiate the conspiracy once it has materialized
(People vs. Ebet, GR No. 181635, November 15, 2010; People vs. Diu, GR No.
201449, April 03, 2013).
Kidnapping with rape - A, B and C kidnapped X from her house, and
then detained her in a safe house for purpose of extorting ransom. While C went
to Jolibee to buy food, A raped X in the presence of B. What is the crime
committed by A, B and C? Answer: A is liable for special complex crime of
kidnapping and serious illegal detention with rape. Since X is a female, taking
her away from her house against her will and holding her as captive constitute
kidnapping and serious illegal detention. Raping the kidnapped victim is a
qualifying circumstance. These two crimes should be integrated together to form
a composite crime where the law prescribes a single penalty.
B is also liable for special complex crime of kidnapping and serious
illegal detention with rape. Since conspiracy is established between A and B in
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the commission of kidnapping, the latter is responsible for the rape committed by
former since there is no showing that B endeavored to prevent A from raping X
(People vs. Anticamaray, GR No. 178771, June 08, 2011).
C is only liable for kidnapping and serious illegal detention. Since there
is no evidence that he is aware of the commission of rape, he could not have
prevented A from raping the victim. Hence, he is not responsible for the rape
(People vs. Anticamaray, supra).
SELF-DEFENSE
SELF-HELP PRINCIPLE - In People vs. Apolinar, CA, 38 O.G. 2870, it
was held: Defense of property is not of such importance as right to life, and
defense of property can be invoked as a justifying circumstance only when it is
coupled with an attack on the person of one entrusted with said property.
However, in People vs. Narvaez, G.R. Nos. L-33466-67, April 20, 1983, the SC
found the presence of unlawful aggression despite the fact that the invasion of
his property right was not coupled by an attack against the accused. The accused
has the right to resist pursuant Article 429 of the Civil Code, which provides:
The owner or lawful possessor of a thing has the right to exclude any person
from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property. However, since the
means employed to resist the invader (killing) is not reasonable, the accused is
merely given the benefit of incomplete self-defense. Justice Florenz Regalado
stated that the rule in Apolinar case may be deemed to have been superseded by
Narvaez case.
UNLAWFUL AGGRESSION The essential requisites of self-defense are
the following: (1) unlawful aggression on the part of the victim; (2) reasonable
necessity of the means employed to prevent or repel such aggression; and (3) lack
of sufficient provocation on the part of the person resorting to self-defense.
Verily, to invoke self-defense successfully, there must have been an unlawful and
unprovoked attack that endangered the life of the accused, who was then forced
to inflict severe wounds upon the assailant by employing reasonable means to
resist the attack (Belbis, Jr. vs. People, GR No. 181052, November 14, 2012).
The rule consistently adhered to in this jurisdiction is that when the
accuseds defense is self-defense he thereby admits being the author of the death
of the victim, that it becomes incumbent upon him to prove the justifying
circumstance to the satisfaction of the court. The rationale for the shifting of the
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burden of evidence is that the accused, by his admission, is to be held criminally
liable unless he satisfactorily establishes the fact of self-defense. But the burden
to prove guilt beyond reasonable doubt is not thereby lifted from the shoulders of
the State, which carries it until the end of the proceedings. In other words, only
the onus probandi shifts to the accused, for self-defense is an affirmative
allegation that must be established with certainty by sufficient and satisfactory
proof. He must now discharge the burden by relying on the strength of his own
evidence, not on the weakness of that of the Prosecution, considering that the
Prosecutions evidence, even if weak, cannot be disbelieved in view of his
admission of the killing (People vs. Roman, GR No. 198110, July 31, 2013).
Unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense. Without it, there can be no self-defense, whether
complete or incomplete, that can validly be invoked. There is an unlawful
aggression on the part of the victim when he puts in actual or imminent danger
the life, limb, or right of the person invoking self-defense. There must be actual
physical force or actual use of a weapon. It is present only when the one
attacked faces real and immediate threat to ones life. It must be continuous;
otherwise, it does not constitute aggression warranting self-defense (People vs.
Gamez, GR No. 202847, October 23, 2013). Accordingly, the accused must
establish the concurrence of three elements of unlawful aggression, namely: (a)
there must be a physical or material attack or assault; (b) the attack or assault
must be actual, or, at least, imminent; and (c) the attack or assault must be
unlawful (People vs. Roman, GR No. 198110, July 31, 2013).
Kinds of aggression - Unlawful aggression is of two kinds: (a) actual or
material unlawful aggression; and (b) imminent unlawful aggression. Actual or
material unlawful aggression means an attack with physical force or with a
weapon, an offensive act that positively determines the intent of the aggressor to
cause the injury. Imminent unlawful aggression means an attack that is
impending or at the point of happening; it must not consist in a mere threatening
attitude, nor must it be merely imaginary, but must be offensive and positively
strong (like aiming a revolver at another with intent to shoot or opening a knife
and making a motion as if to attack). Imminent unlawful aggression must not be
a mere threatening attitude of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by an angry countenance, or
like aiming to throw a pot (People v. Del Castillo, G.R. No. 169084, January 18,
2012; People vs. Roman, GR No. 198110, July 31, 2013; People vs. Malicdem,
G.R. No. 184601, November 12, 2012 (Justice De Castro)
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Ordinarily there is a difference between the act of drawing ones gun and
the act of pointing ones gun at a target. The former cannot be said to be unlawful
aggression on the part of the victim. For unlawful aggression to be attendant
there must be a real danger to life or personal safety. Unlawful aggression
requires an actual, sudden and unexpected attack, or imminent danger thereof,
and not merely a threatening or intimidating attitude. Here, the act of the victim
in drawing a gun from his waist cannot be categorized as unlawful aggression.
Such act did not put in real peril the life or personal safety of appellant. The facts
surrounding the case must, however, be differentiated from current
jurisprudence on unlawful aggression. Accused was justified in defending himself
considering that victim was a trained police officer and an
inebriated and
disobedient colleague. Even if the victim did not point his firearm at accused,
there would still be a finding of unlawful aggression on the part of the victim
(Nacnac vs. People, G.R. No. 191913, March 21, 2012).
In People vs. Fontanilla, G.R. No. 177743, January 25, 2012 - Indeed,
had victim really attacked accused, the latter would have sustained some injury
from the aggression. It remains, however, that no injury of any kind or gravity
was found on the person of accused when he presented himself to the hospital.
In contrast, the physician who examined the cadaver of victim testified that he
had been hit on the head more than once. The plea of self-defense was thus
belied, for the weapons used by accused and the location and number of wounds
he inflicted on victim revealed his intent to kill, not merely an effort to prevent or
repel an attack from victim. We consider to be significant that the gravity of the
wounds manifested the determined effort of the accused to kill his victim, not
just to defend himself.
Ceased aggression - The unlawful aggression on the part of the victim
ceased when accused Rodolfo was able to get hold of the bladed weapon.
Although there was still some struggle involved between the victim and accused,
there is no doubt that the latter, who was in possession of the same weapon,
already became the unlawful aggressor. Retaliation is not the same as selfdefense. In retaliation, the aggression that was begun by the injured party
already ceased when the accused attacked him, while in self-defense the
aggression still existed when the aggressor was injured by the accused. Such an
aggression can also be surmised on the four stab wounds sustained by the victim
on his back. It is hard to believe based on the location of the stab wounds, all at
the back portion of the body, that accused was defending himself. It would have
been different if the wounds inflicted were located in the front portion of the
victim's body. Thus, the first element of self-defense is not present ( Belbis, Jr. vs.
People, GR No. 181052, November 14, 2012).
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Necessary means - The means employed by a person claiming selfdefense must be commensurate to the nature and the extent of the attack sought
to be averted, and must be rationally necessary to prevent or repel an unlawful
aggression. In the present case, four stab wounds that are the product of direct
thrusting of the bladed weapon are not necessary to prevent what the accused
claim to be the continuous unlawful aggression from the victim as the latter was
already without any weapon. In connection therewith, having established that
there was no unlawful aggression on the part of the victim when he was stabbed,
accused cannot avail of the mitigating circumstance of incomplete self-defense
(Belbis, Jr. vs. People, GR No. 181052, November 14, 2012).
Under doctrine of rationale equivalence, plea of self-defense would
prosper if there is a rational equivalence between the means of attack by the
unlawful aggressor and the means of defense by the accused that would
characterize the defense as reasonable. The doctrine of rational equivalence
presupposes the consideration not only of the nature and quality of the weapons
used by the defender and the assailantbut of the totality of circumstances
surrounding the defense vis--vis, the unlawful aggression. Clearly, this
continuous attack by accused despite the fact that aggressor already was
neutralized by the blow constitutes force beyond what is reasonably required to
repel the aggressionand is therefore unjustified (Espinosa vs. People, G.R. No.
181071, March 15, 2010).
BATTERED WOMAN SYNDROME: "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
(Section 3 of RA No. 9262). Each of the phases of the cycle of violence must be
proven to have characterized at least two battering episodes between the
accused and her intimate partner and such final episode produced in the
battered persons mind an actual fear of an imminent harm from her batterer
and an honest belief that she needed to use force in order to save her life.
(People vs. Genosa, G.R. No. 135981, January 15, 2004). The three phases of
the Battered Woman Syndrome are: (1) the tension-building phase; (2) the acute
battering incident; and (3) the tranquil, loving or non-violent phase (People vs.
Genosa, G.R. No. 135981, January 15, 2004; Answer to the 2010 Bar
Examination Questions by UP Law Complex). The essence of this defense of
Battered Woman Syndrome as a defense is that battered woman, who suffers
from physical and psychological or emotional distress, is acting under an
irresistible impulse to defend herself although at the time of commission of the
crime the batterer-victim had not yet committed unlawful aggression. In Genosa
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supra, it was held that it is crucial to the BWS defense is the state of mind of the
battered woman at the time of the offense. She must have actually feared
imminent harm from her batterer and honestly believed in the need to kill him in
order to save her life. That is why even in the absence of actual aggression or
any other element of self-defense, a woman, who is found to be suffering from
battered woman syndrome is not criminally liable for killing her husband.
IRRESISTABLE FORCE
A person who acts under the compulsion of an irresistible force, like one
who acts under the impulse of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act with freedom. Actus me
invite factus non est meus actus. An act done by me against my will is not my
act. The force contemplated must be so formidable as to reduce the actor to a
mere instrument who acts not only without will but against his will. The duress,
force, fear or intimidation must be present, imminent and impending, and of
such nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act be done. A threat of future injury is not enough. The
compulsion must be of such a character as to leave no opportunity for the
accused for escape or self-defense in equal combat (People vs. Dequina, G.R. No.
177570, January 19, 2011)
MINORITY
The rights and privileges of a child in conflict with the law are as follows:
1. Exempting circumstance of minority - To exempt a minor, who is 15
years old or more, from criminal liability, it must be shown that he committed the
criminal act without discernment. Choosing an isolated and dark place to
perpetrate the crime, to prevent detection and boxing the victim to weaken her
defense are indicative of accuseds mental capacity to fully understand the
consequences of his unlawful action (People vs. Jacinto, G.R. No. 182239, March
16, 2011).
A child, who are already serving sentence, shall likewise benefit from the
retroactive application of RA 9344. They shall be immediately released if they are
so qualified under this Act or other applicable law (Section 68 of RA No. 9344;
People vs. Monticalvo, G.R. No. 193507, January 30, 2013).
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2. Privilege mitigating circumstance In People vs. Agacer, G.R. No.
177751, January 7, 2013 Accused is entitled to the privileged mitigating
circumstance of minority, which graduates the penalty one degree lower. The
rationale of the law in extending such leniency and compassion is that because of
his age, the accused is presumed to have acted with less discernment. This is
regardless of the fact that his minority was not proved during the trial and that
his birth certificate was belatedly presented for our consideration, since to rule
accordingly will not adversely affect the rights of the state, the victim and his
heirs.
Under Section 98 of RA No. 9165, the provisions in RPC is not applicable
unless the accused is a minor. In such case, the penalty of life imprisonment
shall be considered reclusion perpetua. In sum, if the accused is a minor, Article
68 of RPC on the privilege mitigating circumstance of minority shall apply to
crime of illegal possession of dangerous drug even though this is malum
prohibitum punishable by life imprisonment. Hence, the penalty of life
imprisonment for illegal possession of dangerous drug committed by a minor,
which is treated as reclusion perpetua, shall be graduated to reclusion temporal
because of the privilege mitigating circumstance of minority (People vs.
Montalaba, G.R. No. 186227, July 20, 2011)
3. Suspension of sentence - While Section 38 of RA 9344 provides that
suspension of sentence can still be applied even if the child in conflict with the
law is already 18 years of age or more at the time of the pronouncement of
his/her guilt, Section 40 of the same law limits the said suspension of sentence
until the child reaches the maximum age of 21. Hence, the child in conflict with
the law, who reached 21 years, cannot avail of privilege of suspension of sentence
(People vs. Mantalba, G.R. No. 186227, July 20, 2011; People vs. Salcedo, GR No.
186523, June 22, 2011; People vs. Arpon, G.R. No. 183563, December 14, 2011
(Justice De Castro; People vs. Monticalvo, G.R. No. 193507, January 30, 2013).
4. Probation - Right to apply for probation despite appeal - Section 4 of
PD No. 968 provides: Application for probation must be filed within the period of
perfecting an appeal and no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction.
However, RA No. 9344 has expressly amended Section 4 of PD No. 968 and
provides that a child in conflict with the law can apply for probation at any time.
Section 42 of RA No. 9344 provides: The court may, after it shall have convicted
and sentenced a child in conflict with the law, and upon application at any time,
place the child on probation in lie of service of his/her sentence taking into account
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the best interest to the child. The phrase at any time mentioned in Section 42
means the child in conflict with the law may file application for probation even
beyond the period of perfecting an appeal and even if the child has perfected the
appeal from the judgment of conviction.
Right of possessor or user of dangerous drugs to apply for probation The rule under Section 24 of RA No. 9165, which disqualifies drug traffickers
and pushers for applying for probations, does not extend to possessor of
dangerous drugs. In Padua vs. People, G.R. No. 168546, July 23, 2008, it was
held that: The law considers the users and possessors of illegal drugs as
victims while the drug traffickers and pushers as predators. Hence, while drug
traffickers and pushers, like Padua, are categorically disqualified from availing
the law on probation, youthful drug dependents, users and possessors alike, are
given the chance to mend their ways.
Right to apply for probation even if the penalty for possession of

dangerous drug is more than 6 years Under Section 9 of PD 968, one is
sentenced to suffer a penalty (maximum indeterminate penalty) of more than is
not qualified to apply for probation. However, under Section 70 of RA No. 9165, a
first time minor offender can apply for probation for the crime of illegal
possession of dangerous drug even if the penalty is higher than 6 years of
imprisonment.
5. Agricultural camp or other training facilities - The child in conflict
with the law may, after conviction and upon order of the court, be made to serve
his sentence, in lieu of confinement in a regular penal institution, in an
agricultural camp and other training facilities in accordance with Section 51 of
RA No. 9344 (People vs. Mantalba, G.R. No. 186227, July 20, 2011; People vs.
Salcedo, GR No. 186523, June 22, 2011; People vs. Arpon, G.R. No. 183563,
December 14, 2011, Justice De Castro).
6. Full credit of preventive imprisonment - Under Article 29 of RPC, a
convicted recidivist is not entitled to a full or 4/5 credit of his preventive
imprisonment. However, if the convict is a child, the applicable rule for crediting
the period of commitment and detention is not Article 29 of RPC but Section 41,
RA 9344. Under the said provision, the full time spent in actual commitment and
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detention of juvenile delinquent shall be credited in the services of his sentence
(Atizado vs. People, G.R. No. 173822, October 13, 2010.
IMBECILITY
In exempting circumstance of minority under Section 6 of RA No. 9344,
what is important is the chronological age of the accused. If the actual age of the
child is 15 years or under, he is exempt from criminal liability. In People vs.
Roxas, G.R. No. 200793, June 04, 2014 - In determining age for purposes of
exemption from criminal liability, Section 6 clearly refers to the age as determined
by the anniversary of ones birth date, and not the mental age.
In exempting circumstance of imbecility, what is important is the mental
age of the accused. If the mental age of the accused is 2 years, he is an idiot; if
his mental age is 7 years old, he is an imbecile (People vs. Butiong, G.R. No.
168932, October 19, 2011). An idiot or imbecile is exempt from criminal liability.
If the mental age of the accused is 12 years old, he is a feebleminded
(People vs. Butiong). A feebleminded is not an imbecile; hence, he is not exempt
from criminal liability (People vs. Nunez, G.R. NO. 112429-30, July 23, 1997)
In People vs. Roxas, the chronological age of the victim is 18 years while
his mental age is 9 years old. Exempting circumstance of minority cannot be
appreciated since he is not a minor. His actual age is not below 18 years.
Exempting circumstance of imbecility cannot be appreciated. He is not an
imbecile since his mental age is not 7 years.
INSANITY
Acts penalized by law are always presumed to be voluntary, and it is
improper to conclude that a person acted unconsciously in order to relieve him of
liability, unless his insanity is conclusively proved (People vs. Pambid, GR No.
124453, March 15, 2000).Insanity is the exception rather than the rule in the
human condition. The presumption, under Article 800 of the Civil Code, is that
every human is sane. Anyone who pleads the exempting circumstance of insanity
bears the burden of proving it with clear and convincing evidence. It is in the
nature of confession and avoidance. An accused invoking insanity admits to have
committed the crime but claims that he or she is not guilty because of insanity
(People vs. Tibon, G.R. No. 188320, June 29, 2010).
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Insanity as an exempting circumstance must relate to the time
immediately preceding or coetaneous with the commission of the offense with
which accused is charged (People vs. Tibon, supra).
COGNITION TEST AND VOLITION TEST - The case of Formigones
established two distinguishable tests to determine the insane condition of the
accused:
(a) The test of cognition whether there was a complete deprivation of
intelligence in committing the criminal act After satisfying his lust, accused
threatened the victim. This implies that accused knew what he was doing, that it
was wrong, and wanted to keep it a secret. It also indicated that the crime was
committed during one of his lucid intervals. Accused is not exempt from liability
for failure to pass the cognition test (People vs. Alipio, G.R. No. 185285, October
5, 2009) and
Evidence tended to show that accused was not deprived of reason at all
and can still distinguish right from wrong when, after satisfying his lust, he
threatened victim. This single episode irresistibly implies, for one, that accused
knew what he was doing, that it was wrong, and wanted to keep it a secret. And
for another, it indicated that the crime was committed during one of lucid
intervals of accused (People vs. Alipio, supra).
(b) The test of volition whether there was a total deprivation of freedom
of the will. In the Bonoan case, schizophrenic accused, who acted under
irresistible homicidal impulse to kill (volition test), was acquitted due to insanity.
This is not anymore a good rule. Even if the mental condition of the accused had
passed the volition test, the plea of insanity will not prosper unless it also passed
the cognition test. The controlling test is cognition (People vs. Opuran, G.R. Nos.
147674-75, March 17, 2004). Accused will be convicted if he was not totally
deprived of reason and freedom of will (People vs. Garchitorena, G. R. No.
175605, August 28, 2009 (Justice De Castro). Only when there is a complete
deprivation of intelligence at the time of the commission of the crime should the
exempting circumstance of insanity be considered (People vs. Bulagao, G.R. No.
184757, October 05, 201, Justice De Castro).
In recent Supreme Court cases, the plea of insanity of person, who is
suffering from schizophrenia, was rejected because of failure to pass the
cognition test. In sum, a schizophrenic accused must be deprived completely of
intelligence to be exempt from criminal liability (See: People vs. Medina, G.R. No.
113691, February 6, 1998; People vs. Pascual, G.R. No. 95029, March 24,
34 | P a g e

1993).If a person (such as sex maniac, homicidal maniac or kleptomaniac)had
merely passed the volition test but not the cognition test, he will only be given the
benefit of mitigating circumstance of illness. Diminution of freedom of the will is
enough to mitigate the liability of the offender suffering from illness (See: People
vs. Rafanan, Jr. November 21, 1991, G.R. No. 54135, November 21, 1991).
ABSOLUTORY CAUSE IN CRIME AGAINST PROPERTY
No criminal liability is incurred by the stepfather who commits malicious
mischief against his stepson; by the stepmother who commits theft against her
stepson; by the stepfather who steals something from his stepson; by the
grandson who steals from his grandfather; by the accused who swindles his
sister-in-law living with him; and by the son who steals a ring from his mother
(Intestate Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010).
The absolutory cause applies to theft, swindling and malicious mischief. It does
not apply to theft through falsification or estafa through falsification (Intestate
Estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010). There are
two viewson whether the extinguishment of marriage by death of the spouse
dissolves the relationship by affinity for purpose of absolutory cause. The first
holds that relationship by affinity terminates with the dissolution of the
marriage, while the second maintains that relationship continues even after the
death of the deceased spouse. The principle of pro reo calls for the adoption of the
continuing affinity view because it is more favorable to the accused (Intestate
estate of Gonzales vs. People, G.R. No. 181409, February 11, 2010).
INSTIGATION AND ENTRAPMENT
Instigation means luring the accused into a crime that he, otherwise,
had no intention to commit, in order to prosecute him." It differs from
entrapment which is the employment of ways and means in order to trap or
capture a criminal. In instigation, the criminal intent to commit an offense
originates from the inducer and not from the accused who had no intention to
commit and would not have committed it were it not for the prodding of the
inducer. In entrapment, the criminal intent or design originates from the accused
and the law enforcers merely facilitate the apprehension of the criminal by using
ruses and schemes. Instigation results in the acquittal of the accused, while
entrapment may lead to prosecution and conviction.
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Instigation means luring the accused into a crime that he, otherwise,
had no intention to commit, in order to prosecute him. It differs from entrapment
which is the employment of ways and means in order to trap or capture a
criminal. In instigation, the criminal intent to commit an offense originates from
the inducer and not from the accused who had no intention to commit and would
not have committed it were it not for the prodding of the inducer. In entrapment,
the criminal intent or design originates from the accused and the law enforcers
merely facilitate the apprehension of the criminal by using ruses and
schemes. Instigation results in the acquittal of the accused, while entrapment
may lead to prosecution and conviction (People vs. Espiritu, G.R. No. 180919,
January 9, 2013).
In People vs. Espiritu et. Al., G.R. No. 180919, January 9, 2013 - Here,
the evidence clearly established that the police operatives employed entrapment,
not instigation, to capture appellant and her cohorts in the act of selling shabu.
It must be recalled that it was only upon receipt of a report of the drug trafficking
activities of Espiritu from the confidential informant that a buy-bust team was
formed and negotiations for the sale of shabu were made. Also, appellant testified
that she agreed to the transaction of her own free will when she saw the same as
an opportunity to earn money. Notably too, appellant was able to quickly produce
a sample. This confirms that she had a ready supply of the illegal drugs. Clearly,
she was never forced, coerced or induced through incessant entreaties to source
the prohibited drug for Carla and PO3 Cario and this she even categorically
admitted during her testimony.
Moreover, a police officers act of soliciting drugs from appellant during

the buy-bust operation, or what is known as the "decoy solicitation," is not
prohibited by law and does not invalidate the buy-bust operation. in a
prosecution for sale of illicit drugs, any of the following will not exculpate the
accused: "(1) that facilities for the commission of the crime were intentionally
36 | P a g e

placed in his way; or (2) that the criminal act was done at the solicitation of the
decoy or poseur-buyer seeking to expose his criminal act; or (3) that the police
authorities feigning complicity in the act were present and apparently assisted in
its commission."
Hence, even assuming that the PAOCTF operatives repeatedly asked her
to sell them shabu, appellants defense of instigation will not prosper. This is
"especially true in that class of cases where the offense is the kind that is
habitually committed, and the solicitation merely furnished evidence of a course
of conduct. Mere deception by the police officer will not shield the perpetrator, if
the offense was committed by him free from the influence or instigation of the
police officer."
MITIGATING CIRCUMSTANCES
VOLUNTARY SURRENDER To appreciate the mitigating circumstance

of voluntary surrender, the following requisites must be proven, namely: (1) the
offender has not actually been arrested; (2) the offender surrendered himself to a
person in authority; and (3) the surrender was voluntary. A surrender to be
voluntary must be spontaneous, showing the intent of the accused to submit
himself unconditionally to the authorities, either because he acknowledges his
guilt, or he wishes to save them the trouble and expense necessarily incurred in
his search and capture. Voluntary surrender presupposes repentance (People vs.
Tabarnero, G.R. No. 168169, February 24, 2010, Justice De Castro)
The surrender made after 14 days from the date of killing cannot be
considered voluntary since his act did not emanate from a natural impulse to
admit the killing or to save the police officers the effort and expense that would
be incurred in his search and incarceration. (People vs. Agacer, G.R. No. 177751,
December 14, 2011).
The accused surrendered only after having been informed of the charge
of rape against him or about two months from the commission of the alleged
37 | P a g e

crime. He even denied the said charge upon his purported surrender. The alleged
surrender, therefore, does not qualify as a mitigating circumstance (People vs.
Salle, G.R. No. 181083, January 21, 2010, Justice De Castro).
Surrender is not voluntary where the accused went to Barangay
Chairman after the killings to seek protection against the retaliation of the
victims relatives, not to admit his participation in the killing of the victims
(People vs. Del Castillo, G.R. No. 169084, January 18, 2012).
The evidence shows that the appellants were arrested when the police
officers manning the checkpoint stopped the passenger jeepney driven by
appellant Ronald and arrested the appellants. The fact that the appellants did
not resist but went peacefully with the peace officers does not mean that they
surrendered voluntarily (People vs. Castillano, G.R. No. 139412, April 2, 2003).
VOLUNTARY CONFESSION - A plea of guilty made after the prosecution

had begun presenting its evidence cannot be considered voluntary since it was
made only after the accused realized that the evidence already presented by the
prosecution is enough to cause his conviction. It is not required that the
prosecution must have presented all its evidence when the plea of guilty was
made to negate the appreciation of mitigating circumstance of voluntary
confession (People vs. Montinola, G.R. No. 131856-57, July 9, 2001, En Banc).
VENDICATION: The mitigating circumstance of having acted in the

immediate vindication of a grave offense was, likewise, properly appreciated. The
appellant
was
humiliated,
mauled
and
almost
stabbed
by
the
deceased. Although the unlawful aggression had ceased when the appellant
stabbed Anthony, it was nonetheless a grave offense for which the appellant may
be given the benefit of a mitigating circumstance. But the
mitigating
circumstance of sufficient provocation cannot be considered apart from the

circumstance of vindication of a grave offense. These two circumstances arose
38 | P a g e

from one and the same incident, i.e., the attack on the appellant by Anthony, so
that they should be considered as only one mitigating circumstance (People vs.
Torpio, G.R. No. 138984, June 4, 2004).
In vindication of grave offense, criminal exemption of accessories,

alternative circumstance of relationship and defense of stranger, the concept of
relationship is the same. It refers to (1) spouse, (2) ascendants, (3) descendants,
or (4) legitimate, natural or adopted brothers or sisters or (5) of his relatives by
affinity in the same degrees. However, in defense of relative, there is an additional
concept of relationship. It includes relatives by consanguinity within the fourth
civil degree. Thus, an uncle is a relative within the concept of defense of stranger
(Reyes). However, relationship of uncle and niece is not an alternative
circumstance (People vs. Ulit, G.R. Nos. 131799-801, February 23, 2004).
PASSION - The following essential requirements must be present: (1)
there was an act that was both unlawful and sufficient to produce such condition
(passion or obfuscation) of the mind; and (2) such act was not far removed from
the commission of the crime by a considerable length of time, during which the
perpetrator might have recovered his normal equanimity (People vs. Comillo, G.R.
No. 186538, November 25, 2009). Four days after the victims attempted on the
virtue of his wife, accused killed them. The period of four days was sufficient
enough a time within which accused could have regained his composure and selfcontrol. Hence, passion should not be appreciated (People vs. Rebucan, G.R. No.
182551, July 27, 2011, Justice De Castro).
AGGRAVATING CIRCUMSTANCES
Generic aggravating circumstances has the effect of increasing the

penalty for the crime to its maximum period, but it cannot increase the same to
the next higher degree. It must always be alleged and charged in the information,
and must be proven during the trial in order to be appreciated. Moreover, it can
be offset by an ordinary mitigating circumstance (People vs. De Leon, GR No.
179943, June 26, 2009).
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It is now a requirement that the aggravating as well as the qualifying
circumstances be expressly and specifically alleged in the complaint or
information. Otherwise, they cannot be considered by the trial court in its
judgment, even, if they are subsequently proved during trial (Sombilon, Jr. vs.
People, G.R. No. 175528, September 30, 2009, Justice De Castro)
Section 8, Rule 110 of the Rules of Court has expressly required that
qualifying and aggravating circumstances be specifically alleged in the
information. Due to such requirement being pro reo, the Court has authorized its
retroactive application in favor of even those charged with felonies committed
prior to December 1, 2000, which is the date of the effectivity of the 2000
revision of the Rules of Criminal Procedure that embodied the requirement (People
vs. Dadulla, G. R. No. 172321, February 9, 2011).
TAKING ADVANTAGE OF POSITION - The mere use of service firearm is
not enough to constitute taking advantage of public position. Fact that accused
made use of firearms which they were authorized to carry or possess by reason of
their positions, could not supply the required connection between the office and
the crime.The crime in question, for example, could have been committed by the
defendants in the same or like manner and with the same case if they had been
private individuals and fired with unlicensed weapons (People vs. Mandolado,
G.R. No. L-51304, June 28, 1983; People vs. Joyno, G.R. No. 123982, March 15,
1999, En Banc; People vs. Villa, Jr., G.R. No. 129899, April 27, 2000; People vs.
Villamor, G.R. Nos. 140407-08 and 141908-09, January 15, 2002, En Banc; and
People vs. Fallorina, G.R. No. 137347, March 4, 2004, En Banc).
IGNOMINY - After killing the victim, the accused severed his sexual
organ. Should ignominy be appreciated? No. For ignominy to be appreciated, it is
required that the offense be committed in a manner that tends to make its effect
more humiliating, thus adding to the victims moral suffering. Where the victim
was already dead when his body or a part thereof was dismembered, ignominy
cannot be taken against the accused (People vs. Cachola, G.R. Nos. 148712-15,
January 21, 2004)`
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TREACHERY To appreciate treachery, two (2) conditions must be
present, namely, (a) the employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate, and (b) the means of
execution were deliberately or consciously adopted (People vs. Duavis, GR No.
190861, December 07, 2011).
Treachery is not a qualifying circumstance but a generic aggravating

circumstance to robbery with homicide although said crime is classified as a crime
against property and a single and indivisible crime (People vs. Baron, G.R. No.
188601, June 29, 2010).
As the killing, in this case, is perpetrated with both treachery and by
means of explosives, the latter shall be considered as a qualifying
circumstance since it is the principal mode of attack. Reason dictates that this
attendant circumstance should qualify the offense while treachery will be
considered merely as a generic aggravating circumstance (People vs. Barde G.R.
No. 183094, September 22, 2010).
EMPLOMENT OF MEANS TO WEAKEN DEFENSE - If the employment

of means to weaken the defense of the victim renders the victim defenseless,
treachery absorbs circumstance of employing means to weaken defense (People
vs. Tunhawan, G.R. NO. L-81470, October 27, 1988).
DISGUISE - If the accused covers his face with a handkerchief when he
treacherously killed the victim, the crime committed is murder qualified by
treachery and aggravated by disguise (People vs. Piring, G.R. No. 45053, October
19, 1936). If the accused covers his face with a handkerchief when he killed the
victim, the crime committed is murder qualified by employment of means of
affords impunity.
If the accused treacherously stabbed the victim, and the crime
committed is murder qualified by treachery and aggravated by disguise. If the
accused covers his face with a handkerchief when he killed the victim, the crime
committed is murder qualified by employment of means of affords impunity.
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NIGHTTIME - Thus, treachery absorbs nighttime where had it not been
at night the offender, with his cohorts, would not have been able to approach the
deceased without the latter's becoming aware of his presence and guessing his
intention; If they were able to catch victim completely unawares, it was due to the
darkness of the night which covered them (People vs. Gumarang , GR N. 46413,
October 6, 1939).
As a general rule, nighttime is aggravating because the darkness of the

night facilitated the commission of the crime or insured impunity. Thus,
nighttime cannot aggravate the crime if it is committed in a lighted place
although at the wee hours of the night (People vs. Clario, G.R. NO. 134634, July
31, 2001). The darkness of the night and not nighttime per se is important in
appreciating it as modifying circumstance (People vs. Banhaon,
G.R. No.
131117, June 15, 2004). But if the offender purposely selected the wee hour of
the night when neighbors and occupants of the house including the victim were
sleeping to facilitate the commission of the crime or to afford impunity, nighttime
is appreciable even if the place of commission is lighted. (People vs. Demate, G.R.
No. 132310, January 20, 2004, En Banc).While accused were already outside the
victims house at around 11:00 p.m., they purposely waited until 2:00 a.m. before
breaking into the residence so as not to call the attention of the victims,
household members and/or their neighbors. Taking advantage of the fact that
the victim and household members were asleep, accused entered the well-lighted
bedroom and killed the victim. Nighttime should be appreciated since accused
took advantage of the silence of the night (People vs. Ventura and Ventura, G.R.
No. 148145-46, July 5, 2004, Per Curiam).
ABUSE OF SUEPRIOR STRENGHT - Abuse of superior strength is

present whenever there is inequality of forces between the victim and the
aggressor, considering that a situation of superiority of strength is notoriously
advantageous for the aggressor and is selected or taken advantage of by him in
the commission of the crime (People vs. Garchitorena, G. R. No. 175605, August
28, 2009 (Justice De Castro).The victim need not be completely defenseless in
order for the said aggravating circumstance to be appreciated (People vs. Paling,
G.R. No. 185390 March 16, 2011). If the victim is completely defenseless,
treachery should be appreciated (People vs. Rebucan, G.R. No. 182551, July 27,
2011). When the circumstance of abuse of superior strength concurs with
42 | P a g e

treachery, the former is absorbed in the latter (People vs. Dadao, et.al., G.R. No.
201860, January 22, 2014 (Justice De Castro).
EVIDENT PREMEDITATION - To warrant a finding of evident
premeditation, the prosecution must establish the confluence of the following
requisites: (a) the time when the offender determined to commit the crime; (b) an
act manifestly indicating that the offender clung to his determination; and (c) a
sufficient interval of time between the determination and the execution of the
crime to allow him to reflect upon the consequences of his act (People vs.
Sabangan, G.R. No. 191722, December 11, 2013, Justice De Castro). The
essence of evident premeditation is that the execution of the criminal act must be
preceded by cool thought and reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to arrive at a calm judgment
(People vs. Alinao, GR No. 191256, September 18, 2013).
Accused told witness that they were going to kill the doctor. After less
than thirty minutes, the accused killed the victim, who is a doctor. Evident
premeditation should not be appreciated. The span of time (less than thirty
minutes), from the time the accused showed their determination to kill the victim
up to the time they shot the victim, could not have afforded them full opportunity
for meditation and reflection on the consequences of the crime they committed
(People vs. Patelan, G.R. No. 182918, June 6, 2011).Unlike evident
premeditation, there is no requirement for conspiracy to exist that there be a
sufficient period of time to elapse to afford full opportunity for meditation and
reflection. Instead, conspiracy arises on the very moment the plotters agree,
expressly or impliedly, to commit the subject felony (People vs. Carandang, G.R.
No. 175926, July 6, 2011).
DISREGARD OF SEX: Robbery with homicide is essentially a felony

against property. The aggravating circumstance of disregard of the victims age is
applied only to crimes against persons and honor. Moreover, the bare fact that
the victim is a woman does not per se constitute disregard of sex. For this
circumstance to be properly considered, the prosecution must adduce evidence
that in the commission of the crime, the accused had particularly intended to
insult or commit disrespect to the sex of the victim (People vs. Reyes, G.R. No.
153119, April 13, 2004.
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The circumstances of disregard of sex, age or rank should be taken
singly or together. But the circumstance of dwelling should be considered
independently from the circumstance of disregard of age, sex and rank since
these circumstances signify different concepts. In the latter, the disrespect
shown by offender pertains to the person of the offended due to her rank, age
and sex. In the former, the disrespect pertains to the dwelling of the offended
party due to the sanctity of privacy which the law accords it. In People vs. Puno,
G.R. No. L-33211, June 29, 1981, En Banc - Disregard of rank and dwelling
were appreciated independently.
In robbery with violence and intimidation against persons, dwelling is

aggravating because in this class of robbery, the crime may be committed
without the necessity of trespassing the sanctity of the offended party's
house(People vs. Evangelio, G.R. No. 181902, August 31, 2011).
AID OF ARMED MEN: Aid of armed men or persons affording immunity

requires (1) that the armed men are accomplices who take part in minor capacity,
directly or indirectly (People vs. Lozano, G.R. Nos. 137370-71, September 29,
2003, En Banc) and (2) that the accused availed himself of their aid or relied
upon them when the crime was committed. Thus, this circumstance should not
be appreciated were armed men acted in concert to ensure the commission of the
crime (People vs. Carino, G.R. No. 131117, June 15, 2004). In aid of armed
men, the men act as accomplices only. They must not be acting in the
commission of the crime under the same purpose as the principal accused,
otherwise they are to be regarded as co-principals or co-conspirators (People vs.
Enoja, GR No. 204894, March 10, 2014).
CRUELTY: The crime is not aggravated by cruelty simply because the

victim sustained ten stab wounds, three of which were fatal. For cruelty to be
considered as an aggravating circumstance there must be proof that, in inflicting
several stab wounds on the victim, the perpetrator intended to exacerbate the
44 | P a g e

pain and suffering of the victim. The number of wounds inflicted on the victim is
not proof of cruelty (Simangan vs. People, G.R. No. 157984. July 8, 2004).
REPETITION - Differences of recidivism, quasi-recidivism, reiteracion

and habitual delinquency:
(a) Nature of crime In recidivism, the first crime, and the aggravated
second crime are embraced in the same Title of the Revised Penal Code; In quasirecidivism, the nature of the first crime and aggravated second crime is not
material. In reiteration, the penalty for the first crime is equal or greater than
that for the aggravated second crime or the penalty for the first two crimes is
lighter than that for the aggravated third crime. In habitual delinquency, the first,
second and third crimes must be a habitual-delinquency crime, and that is,
serious or less serious physical injuries, theft, robbery, estafa or falsification of
document.
(b) Time element In recidivism, the accused was convicted of the first
crime by final judgment at the time of trial of the second crime. In quasirecidivism, the accused has been convicted by final judgment of the first offense
but before beginning to serve his sentence or while servicing of his sentence , he
committed the second crime. In reiteration, the accused was convicted of the first
crime (or first two crimes) and served his sentences at the time he was convicted
of the second crime (or third crime). In habitual delinquency, the accused was
convicted of first habitual-delinquency crime; within 10 years after conviction or
release, he was found guilty of habitual-delinquency crime for the second time;
within 10 years after conviction or release he was found guilty of habitualdelinquency crime for the third time or oftener.
(c) Nature of the aggravating circumstance - Recidivism and reiteration are
ordinary aggravating circumstances, the presence of any of which will trigger the
application of the penalty for the second crime committed in its maximum period
unless it is off-set by mitigating circumstance. Quasi-recidivism is special
aggravating circumstance, the presence of which will trigger the application of
the penalty for the second crime or third crime in its maximum period regardless
of the presence of mitigating circumstance. Habitual delinquency is an
extraordinary or special aggravating circumstance, the presence of which will
trigger the imposition of additional penalty for the third or subsequent crime.
This is not subject to the off-set rule.
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ALTERNATIVE CIRCUMSTANCE
Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of
the crime and other conditions attending its commission. Based on a strict
interpretation,
alternative
circumstances
are
thus
not
aggravating
circumstances per se. (People vs. Orilla, G.R. Nos. 148939-40, February 13,
2004, En banc).
If the offender has committed a felony in a state of intoxication, this
circumstance may be mitigating or aggravating. If the prosecution claims
intoxication as aggravating, it must establish that the intoxication is habitual or
intentional (People vs. Patelan, G.R. No. 182918, June 6, 2011). Even if the
accused could still fully comprehend what is right and what is wrong,
intoxication is aggravating as long as intoxication is habitual or intentional and it
boasted the courage of accused that propelled him to commit the crime. To
aggravate the liability of the accused, it is not necessary that degree of
intoxication must have impaired the will power of the accused (People vs. Ga,
G.R. No. 49831, June 27, 1990). If accused claims intoxication as mitigating, he
must establish that his intoxication was not habitual or subsequent to the plan
to commit the crime and that he took such quantity of alcoholic beverage, prior
to the commission of the crime, as would blur his reason (People vs. Fontillas,
G.R. No. 184177, December 15, 2010, Justice De Castro). Failure of the
prosecution or the accused to do so, intoxication is neither aggravating nor
mitigating.
PARTICIPATION
Chief actor - Criminal or chief actor is the person who actually
committed the crime. He is the one who committed or omitted the act, which
causes the criminal result. He directly perpetrated the acts, which constitute the
crime. With or without conspiracy, the chief actor is a principal by direct
participation.
Criminal participator - Criminal participator is the offender who
participated in committing a crime by indispensable or dispensable act. He
performed an act, which is not constitutive of felony but intended to give moral
or material aid to the chief actor.
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(1) With conspiracy - If there is conspiracy, the criminal participator or

cooperator is a principal by direct participation. The act of the chief actor is
considered the act of the criminal participator.
(2) Without conspiracy - If there is no conspiracy, criminal participator
may be held liable as principal by indispensable cooperation, accomplice or
accessory depending upon the nature and time of participation. A criminal
participator may participate in the commission of the crime by previous,
simultaneous and/or subsequent acts.
(a) Previous or simultaneous acts The criminal participator by
previous or simultaneous acts is liable either as principal by
indispensable cooperation or accomplice. If the cooperation is
indispensable, the participator is a principal by indispensable
cooperation; if dispensable an accomplice.
(b) Subsequent acts The criminal participator by subsequent acts is
liable as an accessory. An accessory does not participate in the criminal
design, nor cooperate in the commission of the felony, but, with
knowledge of the commission of the crime, he subsequently takes part by
any of the three modes under Article 19.
The liability of accessory and principal should also be considered as

quasi-collective. It is quasi-collective in the sense that the principal and the
accessory are liable for the felony committed but the penalty for the latter is two
degrees lower than that for the former.
ACCOMPLICE AND CONSPIRATOR - In People vs. PO1 Eusebio G.R. No.

182152, February 25, 2013 - It noted that victim had only three gunshot wounds
despite the many shots fired at him. Since Bongon shot victim thrice at very close
range, causing him to fall, it appears that it was only Bongon who inflicted those
wounds. And, considering that the prosecution evidence did not show that the
shots three other accused fired from their guns made their marks, there is
doubts that the three agreed beforehand with Bongon to kill victim. It cannot rule
out the possibility that they fired their guns merely to scare off outside
interference.
47 | P a g e

Because witnesses are rarely present when several accused come to an
agreement or conspired to commit a crime, such agreement is usually inferred
from their "concerted actions" while committing it. On the other hand,
accomplices are the persons who, not being principals, cooperate in the
execution of the offense by previous or simultaneous acts.
The line that separates a conspirator by concerted action from an

accomplice by previous or simultaneous acts is indeed slight. Accomplices do not
decide whether the crime should be committed; but they assent to the plan and
cooperate in its accomplishment. The solution in case of doubt is that such doubt
should be resolved in favor of the accused. It was held that when there is doubt
as to whether a guilty participant in a homicide performed the role of principal or
accomplice, the Court should favor the "milder form of responsibility." He should
be given the benefit of the doubt and can be regarded only as an accomplice.
Hence, in the case at bar, the other three accused should be granted the benefit
of doubt and should considered merely as accomplices.
It is immaterial whether accused acted as a principal or an accomplice.

What really matters is that the conspiracy was proven and he took part in it.
Without the participation of accused, the offense would not have been
committed. He was the one who paved the way for victim to board the vehicle and
his closeness with the victim led the latter to trust the former, thus,
accomplishing their devious plan of kidnapping him. Consequently, the
conspirators shall be held equally liable for the crime, because in a conspiracy
the act of one is the act of all (People vs. Cruz, Jr., GR No. 168446, September
18, 2009).
ACCOMPLICE - In order that a person may be considered an accomplice,
namely, (1) that there be community of design; that is knowing the criminal
design of the principal by direct participation, he concurs with the latter in his
purpose; (2) that he cooperates in the execution by previous or simultaneous act,
with the intention of supplying material or moral aid in the execution of the
crime in an efficacious way; and (3) that there be a relation between the acts
done by the principal and those attributed to the person charged as accomplice
(People vs. Gambao, GR No. 172707, October 01, 2013).
48 | P a g e

Accused entered the room where the victim was detained and conversed
with kidnappers regarding stories unrelated to the kidnapping. Accused should
be held liable as accomplice. The defenses raised by accused are not sufficient to
exonerate her criminal liability. Assuming arguendo that she just came to the
resort thinking it was a swimming party, it was inevitable that she acquired
knowledge of the criminal design of the principals when she saw victim being
guarded in the room. A rational person would have suspected something was
wrong and would have reported such incident to the police. Accused, however,
chose to keep quiet; and to add to that, she even spent the night at the cottage. It
has been held before that being present and giving moral support when a crime
is being committed will make a person responsible as an accomplice in the crime
committed. It should be noted that the accused-appellants presence and
company were not indispensable and essential to the perpetration of the
kidnapping for ransom; hence, she is only liable as an accomplice. Moreover, in
case of doubt, the participation of the offender will be considered as that of an
accomplice rather than that of a principal (People vs. Gambao, GR No. 172707,
October 01, 2013).
X and Y did not participate when the victim was forcibly abducted.
However, they owned the safehouse, the basement of their house, where the
kidnapped victim was detained. X assisted the kidnappers when the victim the
basement stairs of the safehouse. Y brought foods to the safehouse. Are X and Y
liable as accomplice or principal by direct participation? They are liable as
principals because of conspiracy. Their participations are of minor importance.
These acts pertain to those committed by mere accomplices. However, their acts
coincide with their ownership of the safehouse. They provided the place where
the victim is to be detained, which is logically a primary consideration in a
conspiracy to commit the crime of kidnapping for ransom. Ownership of the
safehouse and their participations reasonably indicate that they were among
those who at the outset planned, and thereafter concurred with and participated
in the execution of the criminal design (People vs. Salvador, GR No. 201443, April
10, 2013).
FENCING
The essential elements of the crime of fencing are as follows: (1) a crime
of robbery or theft has been committed; (2) the accused, who is not a principal or
on accomplice in the commission of the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in
any manner deals in any article, item, object or anything of value, which has
49 | P a g e

been derived from the proceeds of the crime of robbery or theft; (3) the accused
knew or should have known that the said article, item, object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and (4)
there is, on the part of one accused, intent to gain for oneself or for another (Ong
vs. People, GR No. 190475, April 10, 2013).
The essential elements of the crime of fencing under PD No. 1612 are as
follows: (1) A crime of robbery or theft has been committed; (2) The accused,
who is not a principal or accomplice in the commission of the crime of robbery
or theft (or carnapping but not malversation or estafa), buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of value, which has been derived
from the proceeds of the said crime; (3) The accused knows or should have
known that the said article, item, object or anything of value has been derived
from the proceeds of the crime of robbery or theft; and (4) There is on the part of
the accused, intent to gain for himself or for another (Francisco vs. People, G.R.
No. 146584, July 12, 2004).
a. Proving robbery or theft Commission of robbery or theft by the
principal as an element of fencing should be proven beyond reasonable doubt to
convict the fencer. One may not be convicted of the crime of fencing if the
complainant did not lodge a criminal complaint against the principal in the
crime of theft. This will create doubt if theft was really committed (Tan vs.
People, G.R. No. 134298, August 26, 1999) Failure to show finality of conviction
of theft against the principal is fatal to prosecution for fencing. In Francisco vs.
People, G.R. No. 146584, July 12, 2004, - The decision of the trial court
convicting the principal of theft does not constitute proof against the accused for
the crime of fencing, that the principal had, indeed, stolen the jewelry. There is
no showing that the said decision was already final and executory when the trial
court rendered its decision in the fencing case. Accused was acquitted.
b. Knowledge - In Dimat vs. People, G.R. No. 181184, January 25, 2012
But Presidential Decree 1612 is a special law and, therefore, its violation is
regarded as malum prohibitum, requiring no proof of criminal intent. Of course,
the prosecution must still prove that accused knew or should have known that
the Nissan Safari he acquired and later sold to complainant was derived from
theft or robbery and that he intended to obtain some gain out of his acts.
Accused knew that the Nissan Safari he bought was not properly
documented. He said that Tolentino showed him its old certificate of registration
and official receipt. But this certainly could not be true because, the vehicle
having been carnapped, Tolentino had no documents to show. That Tolentino
50 | P a g e

was unable to make good on his promise to produce new documents undoubtedly
confirmed to accused that the Nissan Safari came from an illicit source. Still,
accused sold the same to complainant who apparently made no effort to check
the papers covering her purchase. That complainant might herself be liable for
fencing is of no moment since she did not stand accused in the case.
Accused was in the business of buy and sell of tires for the past 24
years,] ought to have known the ordinary course of business in purchasing from
an unknown seller. Admittedly, Go approached accused and offered to sell the 13
tires (which were stolen) and he did not even ask for proof of ownership of the
tires. The entire transaction, from the proposal to buy until the delivery of tires
happened in just one day. His experience from the business should have given
him doubt as to the legitimate ownership of the tires considering that it was his
first time to transact with Go and the manner it was sold is as if Go was just
peddling the 13 tires in the streets. Accused was convicted of fencing (Ong vs.
People, GR No. 190475, April 10, 2013).
Accused knew the requirement of the law in selling second hand tires.
Section 6 of P.D. 1612 requires stores, establishments or entities dealing in the
buying and selling of any good, article, item, object or anything else of value
obtained from an unlicensed dealer or supplier thereof to secure the necessary
clearance or permit from the station commander of the Integrated National Police
in the town or city where that store, establishment or entity is located before
offering the item for sale to the public. In fact, accused has practiced the
procedure of obtaining clearances from the police station for some used tires he
wanted to resell but, in this particular transaction, he was remiss in his duty as
a diligent businessman who should have exercised prudence (Ong vs. People, GR
No. 190475, April 10, 2013).
The issuance of a sales invoice or receipt is proof of a legitimate
transaction and may be raised as a defense in the charge of fencing; however,
that defense is disputable. In this case, the validity of the issuance of the receipt
was disputed, and the prosecution was able to prove that Gold Link and its
address were fictitious. Accused failed to overcome the evidence presented by the
prosecution and to prove the legitimacy of the transaction. Thus, he was unable
to rebut the prima facie presumption under Section 5 of P.D. 1612 (Ong vs.
People, GR No. 190475, April 10, 2013).
c. Presumption: Section 6 of PD No. 1612 provides: Mere possession of
any good, article, item, object, or anything of value which has been the subject
of robbery or thievery shall be prima facie evidence of fencing.Possession is not
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limited to actual manual control of the offender over the stolen property but
extends to power and dominion over it.
Circumstances normally exist to forewarn, for instance, a reasonably
vigilant buyer that the object of the sale may have been derived from the proceeds
of robbery or theft. Such circumstances include the time and place of the sale,
both of which may not be in accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact that the seller is not
regularly engaged in the business of selling goods may likewise suggest the
illegality of their source, and therefore should caution the buyer. This justifies the
presumption found in Section 5 of P.D. No. 1612 that mere possession of any
goods, object or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing. This presumption is reasonable
for no other natural or logical inference can arise from the established fact of
possession of the proceeds of the crime of robbery or theft (Ong vs. People, GR
No. 190475, April 10, 2013).
The accessory in theft should materially benefit from it. Riding in a
stolen vehicle is not profiting within the contemplation of Article 17 of the
Revised Penal Code since it does not improve his economic position. Profiting is
not synonymous to intent to gain as an element of theft (Gregorio). However, in
violation of PD No. 1612, use of stolen property gives rise to the presumption of
fencing. Hence, the user may be held liable for fencing even though he did not
materially benefit from crime of theft.
The presumption of theft is disputable. The presumption of fencing may
be overcome by showing proof that accused bought the item from a licensed
dealer of second-hand items (Hizon-Pamintuan vs. People, G.R. No. 11414, July
11, 1994) or by showing official receipts covering the purchases of property,
which is the subject of fencing (D. M Consunji, Inc. vs. Esguerra, G.R. No.
118590, July 30, 1996).
d. Recently stolen property If suspect is found in possession of
recently stolen property, he should be charged as principal in the crime of theft
or robbery. Under Section 3 (j), Rule 131, a person found in possession of a
thing taken in the doing of recently wrongful act is the taker and the doer of the
whole act. Settled is the rule that unexplained possession of recently stolen
property is prima facie evidence of guilt of the crime of theft ( US vs. Ungal, 37
Phil., 835). If the subject property is not recently stolen, the presumption under
Section 3 (j), Rule 131 will not arise. However, the possessor is still presumed to
have violated PD No. 1612 even if the property being possessed was not recently
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stolen. Under the law, mere possession of stolen property gives rise to the
presumption of fencing.
OBSTRUCTION OF JUSTICE
Obstruction of justice under PD No. 1829 is committed by any person
who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by (1) altering, destroying, suppressing or concealing any paper, record,
document, or object, with intent to impair its verity, authenticity, legibility,
availability, or admissibility as evidence in any investigation of or official
proceedings in, criminal cases, or to be used in the investigation of, or official
proceedings in, criminal cases; (2) harboring or concealing, or facilitating the
escape of, any person he knows, or has reasonable ground to believe or suspect,
has committed any offense under existing penal laws in order to prevent his
arrest prosecution and conviction;
a. Commission of crime, not an element - To be held liable as
accessory under the Revised Penal Code, it is required that the crime was
committed by the principal. To be held liable for obstruction of justice, it is not
necessary that the crime was committed by a criminal suspect. Example: A
committed suicide. To make it appear that B murdered A, C placed the gun
used in perpetrating suicide inside the bag of B. C committed the crime of
obstruction of justice for having obstructed the investigation of a criminal case
involving the death of A. C cannot be held liable as accessory because
murder was not really committed.
b. Knowledge - An accessory under Revised Penal Code must have
knowledge of the commission of the crime by the principal. To commit
obstruction of justice, what is important is not knowledge of the commission of
a crime but awareness of an ongoing or impending investigation and prosecution
of a criminal case. In fact, even though the suspect did not commit a crime,
obstruction of justice is committed if he knowingly obstructs, impedes, or
frustrates the said investigation and prosecution.
c. Obstructing criminal investigation or prosecution - Public officer,
who destroyed dangerous drugs as evidence for monetary consideration, is liable
for obstruction of justice in addition to graft and corruption and direct bribery
(2005 Bar Exam)
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If a respondent in a preliminary investigation altered the allegation in
the complaint-affidavit as to the date of criminal incident to make it appear that
the crime, with which he was charged, had prescribed, the alteration is
constitutive of the crime of falsification of document under Article 172 of the
Revised Penal Code and obstruction of justice under PD No. 1829.
d. Principal of the crime - A and B killed X. After the slaughter,
A and B burned the dead body of X in the forest to prevent its discovery.
Can A and B be charged as accessory of the crime to murder or obstruction
of justice? A and B are principals by direct participation in the crime of
murder qualified by employment of means to afford impunity. Hence, they
cannot be charged as accessories. Under the Revised Penal Code, accessories
must not have participated in the commission of the crime as principals.
However, in addition to murder, they can be charged with the crime of
obstruction of justice for destroying an object to impair its availability as
evidence in a case. Under PD No. 1829, it is not required that the offenders
must not have participated as principals.
e. Suspicion - An accessory under Article 19 (3) of the Revised Penal
Code must have knowledge of the commission of the crime by the principal.
Entertaining suspicion is not itself proof of knowledge that a crime has been
committed. Knowledge and suspicion are not synonymous. The word
suspicion is defined as being the imagination of the existence of something
without proof, or upon very slight evidence or upon no evidence at all (Reyes).
On the other hand, the offender may violate Section 1 (c) of PD No. 1829 even
though he has no knowledge of the commission of the crime as long as he has
reasonable ground to believe or suspects that the person he assisted has
committed a crime. In some, mere suspicion is enough to establish the second
element of the offense.
d. Preventing an illegal arrest Harboring or concealing a criminal
suspect in order to prevent a lawful warrantless arrest or the implementation of
a warrant of arrest constitutes obstruction of justice. However, harboring or
concealing a criminal suspect to prevent an illegal arrest is not a crime. The
term arrest in Section 1 (c) of PD No. 1829 contemplates a lawful arrest
(Posadas vs. the Hon. Ombudsman, G.R. No. 131492, September 29, 2000)
e. Accessory To make a person liable as accessory under the Revised
Penal Code, it is required that he is a public officer, who acted with abuse of his
public functions, or that the person assisted is guilty as principal in treason,
parricide, murder, or an attempt to take the life of the Chief Executive or a
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principal, who is known to be habitually guilty of some other crime. This
requirement is not applicable if the accused is charged with obstruction of
justice.
f. No exempting circumstance - Accessories are exempt from criminal
liability if the principal merely committed a light felony (Article 16 of the Revised
Penal Code). Accessories of the second or third kind are exempt also from
criminal responsibility if they are related to the criminal actor (Article 20 of the
Code). However, if the accessories of the crime were charged with the crime of
obstruction of justice, they cannot claim criminal exemption under the Revised
Penal Code. PD No. 1829 has no provision on criminal exemption.
Article 29 of RPC
RA NO. 10592 and its implementing rules
1. Preventive imprisonment Under Article 29 of RPC as amended by

RA No. 10592 and its implementing rules and regulations, an accused who has
undergone preventive imprisonment shall be credited, either full or four-fifths
(4/5) term, for his actual detention or service of his sentence, provided he is not
disqualified.
Credit for preventive imprisonment for the penalty of reclusion perpetua
shall be deducted from thirty (30) years.
a. No credit by reason of disqualification The grant of credit of

preventive imprisonment shall not apply to the following:
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a. An accused who is recidivist;
b. An accused who has been convicted previously twice or more times of
any crime; and
c. An accused who, upon being summoned for the execution of his
sentence, has failed to surrender voluntarily before a court of law.
b. Full time credit - An accused who has undergone preventive

imprisonment shall be credited with the full time during which he has undergone
preventive imprisonment if;
a. He agrees voluntarily, in writing, to abide by the same disciplinary
rules imposed upon convicted prisoners; and
b. Such undertaking is executed with the assistance of the counsel.
The undertaking is called detainees manifestation, which is defined as a

written declaration of a detained prisoner, with the assistant of a counsel, stating
his refusal to abide by the same disciplinary rules imposed upon a convicted
prisoner for the purpose of availing the full credit of the period of his preventive
imprisonment
c. 4/5 time credit - An accused who has undergone preventive

imprisonment and who does not agree to abide by the same disciplinary rules
imposed upon prisoners convicted by final judgment shall be credited by the
service of his sentence with four-fifths (4/5) of the time during which he has
undergone preventive imprisonment if;
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a. He shall do in writing
b. With the assistance of counsel.
In sum, the detainee must execute a written waiver, which is called

detainees waiver defined as a written declaration of a detained prisoner, with the
assistant of a counsel, stating his refusal to abide by the same disciplinary rules
imposed upon a prisoner convicted by final judgment and thus be entitled to a
credit of four-fifths (4/5) of the time during preventive imprisonment.
d. Full time credit for child in conflict with the law - If the offender is
a child, the applicable rule for crediting the period of commitment and detention
is not Article 29 of the Revised Penal Code but Section 41, RA 9344. Under the
said provision, the full time spent in actual commitment and detention of juvenile
delinquent shall be credited in the services of his sentence.
2. Immediate release Under Article 29 of RPC as amended by RA No.
10592, whenever an accused has undergone preventive imprisonment for a
period equal to the imposable maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet decided, he shall be released
immediately without prejudice to the continuation of the trial thereof or the
proceeding on appeal, if the same is under review, except for the following:
1) Recidivist
2) Habitual Delinquent
3) Escapee
4) Person charged with heinous crimes
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If the maximum penalty to which the accused may be sentenced is

destierro, he shall be released after thirty (30) days of imprisonment.
The computation of preventive imprisonment for purposes of immediate

release shall be the actual period of detention with good conduct time allowance;
provided, however, that if the accused is absent without motu propio order the
re-arrest of the accused.
3. Good conduct time allowance (GCTA) Before, only prisoner service

sentence is entitled to allowance for good conduct. However, under Article 94 of
RPC as amended by RA 10592, the following shall be entitled to good conduct
time allowance:
a. A detention prisoner qualified for credit for preventive imprisonment

for his good conduct and exemplary behaviour; and
b. A prisoner convicted by the final judgment in any penal institution,

rehabilitation or detention center or any other local jail for his good
conduct and exemplary behaviour.
The good conduct time allowances under Article 97 as amended are as follows:
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First 2 years of imprisonment 20 days for each month of good behavior
3rd to 5th year 23 days for each month of good behavior
6th to 10th year 25 days for each month of good behavior
11th year and successive years 30 days for each month of good behavior
An appeal by the accused shall not deprive him of entitlement to the

above allowances for good conduct.
4. Time Allowance for Study, Teaching and Mentoring (TASTM) - A

prisoner is also entitled to Time Allowance for Study, Teaching and Mentoring,
which is privilege granted to a prisoner, whether detained or convicted by final
judgment, as a reward for having earned a post post-graduate degree or collage
degree, a certificate of completion of a vocational or technical skills or values
development course, a high school or elementary diploma or to one serving his
fellow prisoner as a teacher or mentor while incarcerated, equivalent to a
deduction of a maximum of fifteen (15) days for every month of study or
mentoring services
5. Special time allowance for loyalty (STAL) - Special time allowance
for loyalty is a privilege granted to a prisoner, whether detained or convicted by
final judgment, who has evaded preventive imprisonment or service of sentence
during said calamity, and surrendered to the authorities within forty-eight (48)
hours following the proclamation announcing the passing away of the calamity
and the catastrophe referred to in the said article in the form of the deduction of
one fifth (1/5) from his preventive imprisonment or service of sentence or a
deduction of two fifth (2/5) if prisoner opted to stay in jail or prison during the
calamity.
However, prisoner is not entitled to special time allowance for loyalty if he
has committed other offense or any act in violation of the law.
In case of disorder in the penal institution resulting from a conflagration,
earthquake, explosion, or similar catastrophe, or during a mutiny in which the
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prisoner has not participated, the prisoner, entitled to special time allowance for
loyalty (STAL) or liable for evasion of sentence.
a. No evasion - In case said prisoner chose to stay in the place of his
confinement notwithstanding the existence of a calamity or catastrophe, he is
entitled to deduction of two-fifths (2/5) of the period of his sentence. This a new
rule introduced by RA No. 10592.
Article 98 under the original version does not grant special allowance for
loyalty to prisoner who did not escape despite the existence of calamity (Losada
vs. Acenas, GR NO. L-810, March 31, 1947; Fortuno vs. Director of Prisons, GR
NO. L-1782, February 2, 1948). RA No. 10529 sought to correct this rule since a
prisoner who did not escape despite of the calamity manifests a higher degree of
loyalty to the penal system than those who evaded their sentence but thereafter
gives themselves up upon the passing away of the calamity.
b. Evasion In case the prisoner chose to evade evaded his preventive
imprisonment or the service of his sentence during the calamity and the
President issued a proclamation by the President announcing the passing away of
such calamity, he has to options:
1. He may give himself up to the authorities within forty-eight hours
following the issuance of a proclamation by the President announcing the
passing away of such calamity. In such case, he is entitled to one fifth (1/5)
special time allowance for loyalty under Article 98; or
2. He may not give himself up to the authorities within said period of
forty-eight hours. In such case, he is liable for evasion of sentence under Article
158. The penalty for evasion under Article 158 is equivalent to one-fifth of the
time still remaining to be served under the original sentence, which in no case
shall exceed six months.
Prisoner is entitled to special time allowance for loyalty whether he is a
convicted or detention prisoner. Article 98 of RPC as amended by RA No. 10592
provides "This Article shall apply to any prisoner whether undergoing preventive
imprisonment or serving sentence." Special allowance is given to prisoner, who
evaded his preventive imprisonment or the service of his sentence during calamity
but give himself up within the required period.
However, a detention prisoner is not liable for evasion of sentence under
Article 158 of RPC if he fails to give himself up within forty-eight hours following
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the announcement of the passing away of such calamity. RA No. 10592 amended
Article 98 to extend the benefit of a special allowance to preventive prisoner but
the amendment does not include Article 158. The crime of evasion under Article
158 is committed only by a convict, who shall evade the service of his sentence
during calamity and fail to give himself up within the period.
PENALTY
In De Castro vs. People, G.R. No. 171672, February 02, 2015, the court
should prescribe the correct penalties in complex crimes in strict observance of
Article 48 of the Revised Penal Code. In estafa through falsification of commercial
documents, the court should impose the penalty for the graver offense in the
maximum period. Otherwise, the penalty prescribed is invalid, and will not attain
finality.
RECLUSION PERPETUA AND LIFE IMPRISONMENT
If the law was amended to change the penalty from life imprisonment to
reclusion perpetua, the amendatory law, being more lenient to the accused than
the previous law, should be accorded retroactive application. The penalty of
reclusion perpetua is a lighter penalty than life imprisonment. (People vs. Pang,
G.R. No. 176229, October 19, 2011).
ISLAW
RA 9165 provides that illegal possession of less than five (5) grams of
shabu is penalized with imprisonment of 12 years and 1 day to 20 years. The
court sentenced the accused to suffer a straight penalty of imprisonment of 12
years and 1 day. Is the penalty imposed by the court correct? No. The
indeterminate Sentence Law mandates that, in case of a special law, the accused
shall be sentenced "to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum shall not be
less than the minimum term prescribed by the same." (Asiatico vs. People, G.R.
No. 195005, September 12, 2011)
SPECIAL MITIGATING CIRCUMSTANCE: Under Article 64 (5), the
presence of two or more mitigating circumstances will graduate the divisible
penalty prescribed by law to one degree lower. This is called special mitigating
circumstance. However, the appreciation of this circumstance is subject to two
conditions: (1) the penalty prescribed by law must be divisible; and (2) there
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must be no aggravating circumstance. In People vs. Takbobo, G.R. No. No.
102984, June 30, 1993 - Accused was found guilty of parricide punishable by
the penalty of reclusion perpetua to death. Applying Article 63, when the penalty
is composed of two indivisible penalties, the penalty cannot be lowered by one
degree, no matter how many mitigating circumstances are present. The rule on
special mitigating circumstance is found in Article 64 (5) which provides the
"rules for the application of penalties which contain three periods," meaning,
divisible penalties. Article 64 (5) is inapplicable. Thus, the rule applicable in
said case is found in Article 63, and not in Article 64.
If there are two mitigating circumstances, the penalty prescribed law
shall graduated to one degree lower, and the graduated penalty shall be applied
in it medium period. If there are three mitigating circumstances taken as special
mitigating, the penalty prescribed law shall graduated to one degree lower, and
the graduated penalty shall be applied in it minimum period. Reason: The two
mitigating circumstances were taken to constitute special mitigating
circumstance; while the remaining mitigating circumstance was used to apply
the graduated penalty in its minimum period.
GRADUATING DEATH PENALTY - For purposes of graduating penalty,
the penalty of death is still the penalty to be reckoned with. RA No. 9346, which
prohibits the imposition of death penalty, does not exclude death penalty in the
order of graduation of penalties. In qualified rape, the penalty for accomplice is
reclusion perpetua, the penalty next lower in degree than death prescribed for
the crime (See: People vs. Jacinto, G.R. No. 182239, March 16, 2011).
SUPPLETORY APPLICATION - A special law prescribes the penalty of 10
years of imprisonment for violation thereof while another law prescribes the
penalty of arresto mayor. Can the rules on graduation of penalties or application
of penalty on its proper imposable period under RPC applicable to violation of
these special laws?(a) Where the special law has not adopted the Spanish
penalties (10 years of imprisonment) under RPC, rules on graduation of penalties
or application of penalty on its proper imposable period is not applicable. Article
10 of RPC on suppletory effects of the Code cannot be invoked where there is a
legal or physical impossibility of such supplementary application (People vs.
Mantalba, G.R. No. 186227, July 20, 2011). The penalty of 10 years of
imprisonment can neither be graduated by decrees nor divided into three
periods. (b) Where the special law has adopted the Spanish penalty (arresto
mayor) under RPC, rules on graduation of penalties or application of penalty on
its proper imposable period are applicable. Where the penalty under a special law
is actually taken from the Revised Penal Code in its technical nomenclature, the
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penal system under the Code is necessarily applicable to this law (See: People vs.
Mantalba, supra). This adoption reveals the statutory intent to give the provisions
on penalties for felonies under RPC the corresponding application to said special
law, in the absence of any express or implicit proscription in these special laws
(See: People vs. Simon, G.R. No. 93028, July 29, 1994).
SUBSIDIARY PENALTY UNDER RA No. 10159
Article 39 of the Revised Penal Code as amended by RA No. 10159
provides: If the convict has no property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall be subject to a subsidiary
personal liability at the rate of one day for each amount equivalent to the highest
minimum wage rate prevailing in the Philippines at the time of the rendition of
judgment of conviction by the trial court, subject to the following rules:
1. If the principal penalty imposed be prision correctional or arresto and
fine, he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed onethird of the term of the sentence, and in no case shall it continue for more than
one year, and no fraction or part of a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for
a fight felony.
3. When the principal penalty imposed is higher than prision
correctional, no subsidiary imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement
in a penal institution, but such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules, shall continue to suffer the
same deprivations as those of which the principal penalty consists.
5. The subsidiary personal liability which the convict may have suffered
by reason of his insolvency shall not relieve him from the fine in case his
financial circumstances should improve.
Special law - In Escalante vs. People, G.R. No. 192727, January 9, 2013
- The penalty for election offense is imprisonment of not less than one year but
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not more than six years. Under ISLAW, if the offense is punished by special law,
the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law and the
minimum shall not be less than the minimum term prescribed by the same.
Applying the ISLAW, the imposable penalty for violation of the election gun ban
should have a maximum period, which shall not exceed six (6) years, and a
minimum period which shall not be less than one (1) year.
THREE-FOLD AND 40 YEARS LIMITATION RULE

Simultaneous service - When the culprit has to serve two or more
penalties, he shall serve them simultaneously if the nature of the penalties will
so permit. Thus, convict could serve simultaneously arresto mayor and fine,
prision correccional and perpetual absolute disqualification, or reclusion
perpetua and civil interdiction. In sum, while lingering in prison, convict could
pay fine, return the property confiscated, be disallowed to cast his vote or to act
function as a public officer. In Rodriguez vs. Director of Prisons, G.R. No. L35386, September 28, 1972, En Banc - Penalties which could be served
simultaneously with other penalties, are perpetual or temporary absolute
disqualification, perpetual or temporary special disqualification, public censure,
suspension from public office and other accessory penalties. There are only two
modes of serving two or more (multiple) penalties: simultaneously or
successively. Successive service When the culprit has to serve two or more
penalties, he shall serve them successively if the nature of the penalties will not
permit simultaneous service. Convict must serve multiple penalties successively:
(1) where the penalties to be served are destierro and imprisonment; and (2)
where the penalties to be served are imprisonment. However, the successive
service of sentences is subject to the three-fold rule and 40-year limitation rule.
a. Three-fold rule - The maximum period of the imprisonment that
convict must suffer in serving multiple penalties must not exceed threefold the
length of time corresponding to the most severe of the penalties imposed upon
him. A was sentenced to suffer penalty of 7 years of prision mayor for serious
physical injuries, 6 years of prision correccional for qualified less serious
physical injuries, 5 years of prision correccional for robbery and 5 years of
prison correccional for theft. The total duration of the penalties imposed on him
is 23 years. The most severe penalty imposed on him is 7 years of prision mayor.
Thus, threefold the length of time corresponding to the most severe of the
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penalties is 21 years. A will be imprisoned for 21 years because of the threefold rule.
b. Forty-year limitation rule The maximum period of the
imprisonment that convict must suffer in serving multiple penalties must not
exceed forty years. A was sentenced to suffer three penalties of 15 years of
reclusion temporal for three counts of homicide and the penalty of 10 years of
prision mayor for serious physical injuries. The total duration of the penalties
imposed on him is 55 years. The most severe penalty imposed on him, is 15
years of reclusion temporal. Thus, threefold the length of time corresponding to
the most severe of the penalties is 45 years. A will be imprisoned for 40 years
because of the forty year limitation rule.
Article 70 provides that the maximum duration of the convicts sentence
shall not be more than threefold the length of time corresponding to the most
severe of the penalties imposed upon him. No other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the said
maximum period. Such maximum period shall in no case exceed forty
years. Applying said rule, despite the four penalties of reclusion perpetua for
four counts of qualified theft, accused-appellant shall suffer imprisonment for a
period not exceeding 40 years (People vs. Mirto, G.R. No. 193479, October 19,
2011).
In Mejorada vs. Sandiganbayan, G.R. No. L-51065-72, June 30, 1987, En
Banc - This article is to be taken into account not in the imposition of the penalty
but in connection with the service of the sentence imposed. Article 70 speaks of
"service" of sentence. Nowhere in the article is anything mentioned about the
"imposition of penalty". It merely provides that the prisoner cannot be made to
serve more than three times the most severe of these penalties the maximum of
which is forty years.
SPECIAL COMPLEX CRIME
KIDNAPPING WITH HOMICIDE
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Old rule: (1) Where the accused kidnapped the victim for the purpose of
killing him, and he was in fact killed by his abductor, the crime committed was
the complex crime of kidnapping with murder as the kidnapping of the victim
was a necessary means of committing the murder. (2) Where the victim was
kidnapped not for the purpose of killing him but was subsequently slain as an
afterthought, two (2) separate crimes of kidnapping and murder were committed.
Present rule: Where the person kidnapped is killed in the course of the detention,
regardless of whether the killing was purposely sought or was merely an
afterthought, the kidnapping and murder or homicide can no longer be
complexed, nor be treated as separate crimes, but shall be punished as a special
complex crime (People vs. Ramos, G.R. No. 118570, October 12, 1998, En Banc,
People vs. Larranaga, 138874-75, February 3, 2004, En Banc; People vs.
Montanir, GR No. 187534, April 04, 2011; People vs. Dionaldo, G.R. No. 207949,
July 23, 2014)
However, where there is no actual detention (People vs. Masilang, 1986)

or intent to deprive liberty (People vs. Estacio Jr., G.R. No. 171655, July 22,
2009, En Banc) killing the person is murder. Demand for ransom will not convert
the crime into kidnapping.
If kidnapping is a necessary means to commit frustrated murder, special

complex crime of kidnapping and serious illegal detention with frustrated
homicide. Homicide as a component of special complex crime must be at the
consummated stage. In this situation, the crime committed is complex crime of
kidnapping and serious illegal detention with frustrated murder (See: People vs.
Roxas, GR No. 172604, August 17, 2010)
RAPE WITH HOMICIDE
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Raping a dying victim Stabbing the victim and raping her while she
was dying is not a special complex crime of rape with homicide because the
original design of the victim is kill and not to rape the victim. These are not
separate crimes of murder and rape since the bestiality at the threshhold of
death of the victim shall be regarded either as a form of ignominy causing
disgrace or as a form of cruelty which aggravated the murder because it was
unnecessary to the commission thereof (People vs. Laspardas, G.R. No. L-46146,
Oct. 23, 1979). Hitting the victim thrice with a piece of wood and inserting
toothbrush into the anal orifice while the victim was dying is not special complex
crime of rape through sexual assault with homicide because the original design
of the victim is kill and not to sexually assault the victim. These are not separate
crimes of murder and rape through sexual assault since the bestiality at the
threshhold of death of the victim shall be regarded as a form of cruelty which
aggravated the murder because it was unnecessary to the commission thereof
(People vs. Bernabe, G.R. No. 185726, October 16, 2009, Justice De Castro)
Homicide - In the special complex crime of rape with homicide, the
term "homicide" is to be understood in its generic sense, and includes murder
and slight physical injuries committed by reason or on occasion of the
rape. Hence, even if the circumstances of treachery, abuse of superior strength
and evident premeditation are alleged in the information and duly established by
the prosecution, the same would not qualify the killing to murder and the crime
committed is still rape with homicide. However, these circumstances shall be
regarded as ordinary aggravating (People vs. Laog, G.R. No. 178321, October 5,
2011).
By reason or on occasion of rape - The phrase by reason of the
rape obviously conveys the notion that the killing is due to the rape, which is the
crime the offender originally designed to commit. The victim of the rape is also
the victim of the killing. The indivisibility of the homicide and the rape (attempted
or consummated) is clear and admits of no doubt. In contrast, the import of the
phrase on the occasion of the rape may not be as easy to determine. The
phrase on the occasion of the rape as shown by Senate deliberations refers to a
killing that occurs immediately before or after, or during the commission itself of
the attempted or consummated rape, where the victim of the homicide may be a
person other than the rape victim herself for as long as the killing is linked to the
rape, became evident (People vs. Villaflores, G.R. No. 184926, April 11, 2012).
A and B were walking along the rice paddies when X suddenly
assaulted them with a lead pipe. X killed A, and thereafter, raped B. X is
liable for special complex crime of rape with homicide. There is no doubt that X
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killed A to prevent her from aiding B or calling for help once she is able to run
away, and also to silence her completely so she may not witness the rape of B,
the original intent of X (People vs. Laog, G.R. No. 178321, October 5, 2011).
Stabbing after the rape - In People vs. Isla, G.R. No. 199875, November
21, 2012 - With respect to the stabbings, it appears that Isla committed two acts.
The first was while he was ravishing AAA. The Court considers this and the rape
as one continuous act, the stabbing being necessary, as far as he was concerned,
for the successful perpetration of the crime. When he testified, Isla claimed that
he had to use the knife so he could have sexual intercourse with her. The second
stabbing took place after consummation of the rape act. According to AAA, after
her defilement, she noticed the knife bloodied and she tried to wrest it from him.
In their struggle, she was stabbed under her lower left breast but she was able to
force Isla to drop the knife. This second stabbing is a separate and distinct
offense as it was not a necessary means to commit the rape. It was intended to
do away with her life.
COMPLEX CRIME
There are two kinds of complex crimes. The first is known as compound
crime, or when a single act constitutes two or more grave or less grave
felonies. The second is known as complex crime proper, or when an offense is a
necessary means for committing the other (People vs. Rebucan, G.R. No. 182551,
July 27, 2011).The underlying philosophy of complex crimes in the Revised Penal
Code, which follows the pro reo principle, is intended to favor the accused by
imposing a single penalty irrespective of the crimes committed. The rationale
being, that the accused who commits two crimes with single criminal impulse
demonstrates lesser perversity than when the crimes are committed by different
acts and several criminal resolutions (People vs. Gaffud, Jr., G.R. No. 168050,
September 19, 2008)
COMPLEX CRIME AND COMPOSITE CRIME - A composite crime, also
known as a special complex crime, is composed of two or more crimes that the
law treats as a single indivisible and unique offense for being the product of a
single criminal impulse. It is a specific crime with a specific penalty provided by
law. The distinctions between a composite crime, on the one hand, and a complex
or compound crime under Article 48 are as follows: (1) In a composite crime, the
composition of the offenses is fixed by law; In a complex or compound crime, the
combination of the offenses is not specified but generalized, that is, grave and/or
less grave, or one offense being the necessary means to commit the other; (2) For
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a composite crime, the penalty for the specified combination of crimes is specific;
for a complex or compound crime, the penalty is that corresponding to the most
serious offense, to be imposed in the maximum period; and (3) A light felony that
accompanies a composite crime is absorbed; a light felony that accompanies the
commission of a complex or compound crime may be the subject of a separate
information (People vs. Villaflores, G.R. No. 184926, April 11, 2012).
COMPOUND CRIME
The single act of pitching or rolling the hand grenade on the floor of the
gymnasium which resulted in the death of one victim and injuries to other
victims constituted a compound crime of multiple murders qualified by means of
explosion (People vs. Mores, GR No. 189846, June 26, 2013, Justice De Castro).
The single act of running over the victims with a van constitutes compound crime
of multiple murders (People vs. Punzalan, Jr., G.R. No. 199892, December 10,
2012 (Justice De Castro)
X was charged with complex crime with murder and attempted murder.
The information alleges that the accused shot the victim, but it does not allege
that he did so several times. However, the evidence show that accused shot her
and her father several times. Can X be convicted of separate crimes of murder
and attempted murder or complex crime? Answer: On the basis of evidence, X
committed separate crimes of murder and attempted murder. Several shootings
rule out the application of the concept of complex crime. However, evidence does
not conform to the Information, which contains no allegation accused shot the
victims several times. In the absence of a clear statement of several shootings in
the Information, the accused may be convicted only of the complex crime of
murder with attempted murder. After all, the concept of complex crimes is
intended to favor the accused by imposing a single penalty irrespective of the
number of crimes committed. Information merely states that accused shot the
victims. This is a compound crime since murder and attempted murder was
produced by a single act of shooting. To rule that the accused should be
convicted of two separate offenses of murder and attempted murder pursuant to
the evidence presented but contrary to the allegations in the Information is to
violate the right of the accused to be informed of the nature and cause of the
accusation against him (People vs. Bernardo, GR No. 198789, June 03, 2013).
Single act rule - If there is more than one death resulting from different
acts there is no compound crime of multiple homicides or murder. Article 48
speaks of a single act. In People vs. Toling, G.R. No. L-27097, January 17, 1975
- Twin brothers, who ran amok like juramentados in a passenger train, and
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killed their eight co-passengers, were held liable for eight (8) murders and one
attempted murder. The conduct of the twins evinced conspiracy and community
of design. The eight killings and the attempted murder were perpetrated by
means of different acts. Hence, they cannot be regarded as constituting a
complex crime under Article 48 of the Revised Penal Code, which refers to cases
where "a single act constitutes two or more grave felonies, of, when an offense is
a necessary means for committing the other.
In People vs. Punzalan G .R. No. 199892, December 1, 2001 - Appellant
was animated by a single purpose, to kill the navy personnel, and committed a
single act of stepping on the accelerator, swerving to the right side of the road
ramming through the navy personnel, causing the death of two persons and, at
the same time, constituting an attempt to kill others. The crime committed is
complex crime of multiple murders and attempted murder.
Single criminal impulse Several acts committed by several offenders
with one criminal impulse resulting in several deaths constitute one crime: the
compound crime of multiple homicides or murders. In People vs. Lawas, L-7618-20,
June 30, 1955 - Members of the Home Guard, upon order of their leader, Lawas,
simultaneously and successively fired at several victims. After a short time, the
firing stopped immediately when Lawas ordered his men to cease fire. As a
result of the firing, fifty (50) persons died. It was held that the evidence positively
shows that the killing was the result of a single impulse, which was induced by
the order of the leader to fire, and continued with the intention to comply
therewith, as the firing stopped as soon as the leader gave the order to that
effect. There was no intent on the part of the accused either to fire at each and
every of the victims as separately and distinctly from each other. If the act or acts
complained of resulted from a single criminal impulse, it constitutes a single
offense - compound crime of multiple homicides.
Under the Lawas principle, if accused fired their guns killing several
victims pursuant to a single impulse, they shall be held liable for continued
crime of murder. The Lawas principle should only be applied in a case where (1)
there is no conspiracy (People vs. Hon. Pineda, G.R. No. L-26222, July 21, 1967)
and (2) it is impossible to ascertain the number of deaths caused by each
accused (People vs. Tabaco, G.R. No. 100382-100385, March 19, 1997). In
conspiracy, each conspirator is not only liable for deaths attributable to him but
also for deaths caused by others because in conspiracy the act of one is the act of
all. Thus, the Lawas doctrine should not be applied if there is conspiracy since
the number of victims actually killed by each conspirator is not anymore material
if there is conspiracy (People vs. Elarcosa, G.R. No. 186539, June 29, 2010).
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In People vs. Nelmida, G.R. No. 184500. September 11, 2012 Significantly, there was no conspiracy in Lawas case. However, the Lawas
doctrine is more of an exception than the general rule. With the presence of
conspiracy in the case at bench, appellants had assumed joint criminal
responsibility the act of one is the act of all. The ascertainment of who among
them actually hit, killed and/or caused injury to the victims already becomes
immaterial. Collective responsibility replaced individual responsibility. The Lawas
doctrine, premised on the impossibility of determining who killed whom, cannot
be applied.
In Lawas, this Court was merely forced to apply Article 48 of RPC

because of the impossibility of ascertaining the number of persons killed by each
accused. Since conspiracy was not proven therein, joint criminal responsibility
could not be attributed to the accused. Each accused could not be held liable for
separate crimes because of lack of clear evidence showing the number of persons
actually killed by each of them.
In conspiracy, the act of one is the act of all. It is as though each one
performed the act of each one of the conspirators. Each one is criminally
responsible for each one of the deaths and injuries of the several victims. The
severalty of the acts prevents the application of Article 48. The applicability of
Article 48 depends upon the singularity of the act, thus the definitional phrase "a
single act constitutes two or more grave or less grave felonies." To apply the first
half of Article 48, there must be singularity of criminal act; singularity of
criminal impulse is not written into the law.
Single purpose rule - In People vs. Abella, 93 SCRA 25, the Lawas
principle was applied despite the presence of conspiracy. In the said case,
sixteen prisoners, who are members of the OXO gang, were able to break into the
cell of Sigue-Sigue gang and killed fourteen (14) inmates. All accused were
convicted for a compound crime. It was held: Where a conspiracy animates
several persons with a single purpose, their individual acts done in pursuance of
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that purpose are looked upon as a single act, the act of execution, giving rise to a
complex offense. Various acts committed under one criminal impulse may
constitute a single complex offense. Basis - The single purpose rule was
actually adopted in consideration of the plight of the prisoners. Requisites -There
are two requisites to apply the Abella principle: (1) there must be a conspiracy,
which animates several persons to commit crimes under a single criminal
purpose; and (2) the offenders committed crimes in prison against their fellow
prisoners (People vs. Pincalin, et al., G.R. No. L-38755, January 22, 1981).
In People vs. Nelmida, G.R. No. 184500. September 11, 2012 - The
application of the Abella doctrine, has already been clarified in Pincalin, thus:
where several killings on the same occasion were perpetrated, but not involving
prisoners, a different rule may be applied, that is to say, the killings would be
treated as separate offenses. If the killings did not involve prisoners or it was not
a case of prisoners killing fellow prisoners, Abella would not apply.
COMPLEX CRIME PROPER - In U.S. vs. Hernandez, 29 Phil. 109,

accused Hernandez, who seduced a 15-year-old girl to live with him by
procuring the performance of a fictitious marriage ceremony with the help of
Bautista, who pretended to be a Protestant minister, was held liable for the
complex crime proper of simple seduction (Art. 338) through usurpation of
official function (Art. 177). Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor. Comment: The case of
Hernandez was decided prior to the effectivity of the RPC. At that time, a
religious official such as a bishop is a person in authority within the purview of
the Old Penal Code (Smith, G.R. No. 14057, January 22, 1919). However, Article
152 of RPC does not include religious minister as a person in authority. Hence,
performing the function of religious minister in solemnizing marriage is not
usurpation of official function.
DOCTRINE OF ABSORPTION - What is the effect of the elimination of

the overt acts of violence in Article 135 by RA No. 9668? In People vs.
Hernandez, G.R. No. L-6025, July 18, 1956 The Supreme Court justified the
doctrine of absorption in rebellion since murder, robbery, and arson are just a
part of the engaging in war against the forces of the government", "committing
serious violence", and destroying property in Article 135. However, RA No. 6968
eliminated the phrases "engaging in war against the forces of the government",
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"committing serious violence" and destroying property in Article 135.
According to Florenz Regalado, the amendment of Article 135 does not affect the
accepted concept of rebellion and these overt acts of violence are deemed
subsumed in the provision on rebellion in Article 134. Under this principle of
subsumption, engaging in combat against the forces of the Government,
destroying property or committing serious violence is an essential ingredient of
rebellion.
If the accused committed robbery, but thereafter, they detained the
victims to forestall their capture by the police, the crime committed is robbery
only. Robbery absorbs kidnapping and serious illegal detention. The detention
was only incidental to the main crime of robbery, and although in the course
thereof women and children were also held, that threats to kill were made, the
act should not be considered as a separate offense (People vs. Astor, G.R. Nos. L71765-66, 29 April 1987). If the accused committed robbery, but thereafter, they
detained the victims to demand additional money, and later forestall their capture
by the police, the crime committed is complex crime of robbery through
kidnapping and serious illegal detention. The detention was availed of as a means
of insuring the consummation of the robbery. The detention was not merely a
matter of restraint to enable the malefactors to escape, but deliberate as a means
of extortion for an additional amount. Hence, the Astor principle is not applicable
(People vs. Salvilla, G.R. No. 86163 April 26, 1990). If the accused committed
robbery by band, but thereafter, they took one of the victims and detained him
for seven days in another place for purpose of demanding ransom, they are liable
of separate crimes of robbery by band and kidnapping for ransom (People vs.
Basao, G.R. No. 189820, October 10, 2012, Justice De Castro).
ABDUCTION AND MULTIPLE RAPES
Main objective is to rape If the main objective of the accused is to
rape the victim, the crime committed is rape. Forcible abduction (People vs.
Mejoraday, G.R. No. 102705, July 30, 1993; People vs. Almanzor, G.R. No.
124916, July 11, 2002) or illegal detention (People vs. Nuguid, G.R. No. 148991,
January 21, 2004), which is incidental to the commission of rape, is absorbed.
The doctrine of absorption rather than Article 48 of RPC is applicable since
forcible abduction or illegal detention is an indispensable means to commit rape.
Abduction with lewd design If forcible abduction is a necessary
means to commit rape, this is a complex crime proper under Article 48 of RPC.
However, multiple rapes were committed, forcible abduction will be considered as
a necessary means to commit the first rape but not the subsequent rape. Hence,
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with respect to the first rape, the crime committed is rape though forcible
abduction while the subsequent rapes will be treated as separate crimes (People
vs. Jose, G.R. No. L-28232, February 6, 1971; People vs. Garcia, G.R. No.
141125, February 28, 2002, En Banc; People vs. Amaro, G.R. No. 199100, July
18, 2014).
As a rule, forcible abduction is an indispensable means to commit rape;
hence, the latter absorbs the former. However, if the victim was brought in a
house or motel or in a place with considerable distance from the place where she
was abducted, forcible abduction will be considered as a necessary means to
commit rape; hence, the crime committed is complex crime proper.
Abduction to deprive liberty If the accused abducted the victim
without clear showing of lewd design, the crime committed is kidnapping and
serious illegal detention since it will appear that the intention of the accused is to
deprive victim of his liberty. If as a consequence of illegal detention, the victim
was rape, the crime committed is a special complex crime of kidnapping and
serious illegal detention with rape. This is the crime committed regardless of the
number of rapes. Multiple rapes will be considered as a component of this special
complex crime (People vs. Mirandilla, Jr., G.R. No. 186417, July 27, 2011; People
vs. Anticamaray, G.R. No. 178771, June 8, 2011). If as a consequence of illegal
detention, the victim was rape and then killed, the crime committed is a special
complex crime of kidnapping and serious illegal detention with homicide and
rape. Both the homicide and rape will be considered as a component of this
special complex crime (People vs. Larranaga, 138874-75, February 3, 2004, En
Banc).
The difference between rape through forcible abduction and kidnapping
with rape lies on the criminal intention of the accused at the precise moment of
abduction. If the abduction is committed with lewd design, the crime committed
is rape through forcible abduction. On the other hand, if the abduction is
committed without lewd design, the crime committed is kidnapping and serious
illegal detention with rape (People vs. Mirandilla, Jr., G.R. No. 186417, July 27,
2011). Even if the victim was detained for one week and in the course thereof,
she was rape, the crime committed is rape through forcible abduction if the
abduction is committed with lewd design (People vs. Amaro, G.R. No. 199100,
July 18, 2014).
MULTIPLE KIDDNAPPINGS - In People v Tadah, G.R. No. 186226,
February 1, 2012 - Since the prosecution adduced proof beyond reasonable
doubt that the accused conspired to kidnap the 5 victims for ransom, and
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kidnapped and illegally detained them until they were released by the accused
after the latter received the P2,000,000.00 ransom xxx Appellant Yusop Tadah is
found guilty beyond reasonable doubt of 5 counts of kidnapping.
DELICTO CONTINUADO
In order that continuous crime may exist, there should be: (1) plurality of
acts performed separately during a period of time; (2) unity of criminal intent and
purpose and (3) unity of penal provision infringed upon or violated (Santiago vs.
Garchitorena , GR NO. 109266, December 2, 1993).
a. Single criminal impulse to steal - In People vs. Tumlos, G.R. No.

46428, April 13, 1939, En Banc - The theft of the thirteen cows owned by six
owners involved thirteen (13) acts of taking. However, the acts of taking took
place at the same time and in the same place; consequently, accused performed
but one act. The intention was likewise one, namely, to take for the purpose of
appropriating or selling the thirteen cows which he found grazing in the same
place. The fact that eight of said cows pertained to one owner and five to another
does not make him criminally liable for as many crimes as there are owners, for
the reason that in such case neither the intention nor the criminal act is
susceptible of division.
b. Single criminal impulse to commit robbery - In People vs. Dela

Cruz, G.R. No. L-1745, May 23, 1950, it was held that ransacking several houses
located within the vicinity of a sugar mill while two of the bandits guarded the
victims with guns leveled at them is a continued crime of robbery. Several acts of
robbery were made pursuant to general plan to despoil all those in the said place,
which is an indicative of a single criminal design.
Accused intended only to rob one place; and that is the Energex gasoline
station. That they did; and in the process, also took away by force the money and
valuables of the employees working in said gasoline station. Clearly inferred from
these circumstances are the series of acts which were borne from one criminal
resolution. A continuing offense is a continuous, unlawful act or series of acts set
on foot by a single impulse and operated by an unintermittent force, however long
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a time it may occupy. The perpetrated acts were not entirely distinct and
unconnected from one another. Thus, there is only single offense or crime (People
vs. De Leon, GR No. 179943, June 26, 2009).
c. Single criminal impulse to satisfy lust - In People vs. Aaron, G.R.

NOS. 136300-02, September 24, 2002 - The accused inserted his penis into the
victims vagina; he then withdrew it and ordered the latter to lie down on the floor
and, for the second time, he inserted again his penis into the victims vagina; the
accused, thereafter, stood up and commanded the victim to lie near the
headboard of the makeshift bed and, for the third time, he inserted again his
penis into the victims vagina and continued making pumping motions. Accused
is convicted of only one count of rape. Accused thrice succeeded in inserting his
penis into the private part of victim. However, the three penetrations occurred
during one continuing act of rape in which the accused obviously motivated by a
single criminal intent. Accused decided to commit those separate and distinct
acts of sexual assault merely because of his lustful desire to change positions
inside the room where the crime was committed.
In People vs. Lucena, GR No. 190632, February 26, 2014 - Accused

thrice succeeded in inserting his penis into the private part of victim. The three
(3) penetrations occurred one after the other at an interval of five (5) minutes
wherein the accused would rest after satiating his lust upon his victim and, after
he has regained his strength, he would again rape the victim. When the accused
decided to commit those separate and distinct acts of sexual assault upon victim,
he was not motivated by a single impulse, but rather by several criminal intents.
Hence, his conviction for three (3) counts of rape is indubitable.
d. Foreknowledge doctrine - In Gamboa vs. CA, G.R. No. L-41054,

November 28, 1975 - Accused cannot be held to have entertained continuously
the same criminal intent in making the first abstraction on October 2, 1972 for
the subsequent abstractions on the following days and months until December
30, 1972, for the simple reason that he was not possessed of any fore-knowledge
of any deposit by any customer on any day or occasion and which would pass on
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to his possession and control. At most, his intent to misappropriate may arise
only when he comes in possession of the deposits on each business day but not
in future, since petitioner company operates only on a day-to-day transaction.
As a result, there could be as many acts of misappropriation as there are times
the private respondent abstracted and/or diverted the deposits to his own
personal use and benefit (People vs. Dichupa, G.R. No. L-16943, October 28,
1961).
X as punong barangay was angered when he discovered a tap from the
main line of the public water tank. On separate occasions, X threatened to kill
and crack the skulls of A, B, and C, who suspected to be responsible for the
tapping of water line. There is no continued crime since the three crimes of
grave threat were not committed under a single criminal impulse. Xs intent to
threaten A, B, and C with bodily harm arose only when he chanced upon
each of his victims. Moreover, X has no foreknowledge that will change upon
the second and third victims at the time he was committing the first threat.
Several threats can only be considered as continued crime if the offender
threatened three individuals at the same place and at the same time (Paera vs.
People, G.R. No. 181626, May 30, 2011).
NOVATION
The novation theory may perhaps apply prior to the filing of the criminal
information in court by the state prosecutors because up to that time the original
trust relation may be converted by the parties into an ordinary creditor-debtor
situation, thereby placing the complainant in estoppel to insist on the original
trust. But after the justice authorities have taken cognizance of the crime and
instituted action in court, the offended party may no longer divest the
prosecution of its power to exact the criminal liability, as distinguished from the
civil. The crime being an offense against the state, only the latter can renounce it
(Degaos vs. People, GR No. 162826, October 14, 2013).
It may be observed in this regard that novation is not one of the means
recognized by the Penal Code whereby criminal liability can be extinguished;
hence, the role of novation may only be to either prevent the rise of criminal
liability or to cast doubt on the true nature of the original basic transaction,
whether or not it was such that its breach would not give rise to penal
responsibility, as when money loaned is made to appear as a deposit, or other
similar disguise is resorted to (Degaos vs. People, GR No. 162826, October 14,
2013).
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Although the novation of a contract of agency to make it one of
sale may relieve an offender from an incipient criminal liability, that did not
happen here, for the partial payments and the proposal to pay the balance the
accused made during the barangay proceedings were not at all incompatible with
Degaos liability under the agency that had already attached. Rather than
converting the agency to sale, therefore, he even thereby confirmed his liability as
the sales agent of the complainants. The acceptance of partial payments, without
further change in the original relation between the complainant and the accused,
cannot produce novation. For the latter to exist, there must be proof of intent to
extinguish the original relationship, and such intent cannot be inferred from the
mere acceptance of payments on account of what is totally due. Much less can it
be said that the acceptance of partial satisfaction can effect the nullification of a
criminal liability that is fully matured, and already in the process of enforcement.
Thus, this Court has ruled that the offended partys acceptance of a promissory
note for all or part of the amount misapplied does not obliterate the criminal
offense (Degaos vs. People, GR No. 162826, October 14, 2013).
DEATH OF THE ACCUSED
Novation can only be used as a defense in a crime where one of its
elements is the existence of contractual relationship between the offender and the
victim. Defense of novation is applicable to estafa through misappropriation
because the contractual trust relationship between the parties can be validly
novated or converted by the parties into an ordinary creditor-debtor situation,
thereby placing the complainant in estoppel to insist on the original trust (People
vs. Nery, G.R. No. L-19567, February 5, 1964, En Banc). Novation cannot be
used as a defense in case of theft or estafa through falsification of document. In
theft case, there was no contractual relationship or bilateral agreement which
can be modified or altered by the parties (People vs. Tanjutco, G.R. No. L-23924,
April 29, 1968, En Banc).In estafa through falsification of public documents, the
liability of the offender cannot be extinguished by mere novation (Milla vs. People,
G.R. No. 188726, January 25, 2012).
In People v. Bayotas, the Court laid down the rules in case the accused
dies prior to final judgment:
1. Death of the accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability based solely thereon. As opined by
Justice Regalado, in this regard, the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from
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and based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore.
2. Corollarily, the claim for civil liability survives notwithstanding the
death of accused, if the same may also be predicated on a source of obligation
other than delict. Article 1157 of the Civil Code enumerates these other sources
of obligation from which the civil liability may arise as a result of the same act or
omission: law; contracts; quasi-contracts; quasi-delicts;
3. Where the civil liability survives, as explained in Number 2 above, an
action for recovery therefor may be pursued but only by way of filing a separate
civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal
Procedure as amended. This separate civil action may be enforced either against
the executor/administrator or the estate of the accused, depending on the source
of obligation upon which the same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right
to file this separate civil action by prescription, in cases where during the
prosecution of the criminal action and prior to its extinction, the private-offended
party instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article 1155 of the Civil Code, that
should thereby avoid any apprehension on a possible privation of right by
prescription (People vs. Amistoso, GR No. 201447, August 28, 2013)
PRESCRIPTION
The crime of falsification of a public document involving a deed of sale
which was registered with the Registry of Deeds, the rule on constructive notice
can be applied in the construction of Article 91. Hence, the prescriptive period
of the crime shall have to be reckoned from the time the notarized deed of sale
was recorded in the Registry of Deeds (People vs. Reyes, G.R. No. 74226, July
27, 1989). Constructive notice rule is not applicable to registration of bigamous
marriage in the Office of the Civil Registrar. Furthermore, P.D. 1529, which
governed registration of document involving real property, specifically provides
the rule on constructive notice. On the other hand, Act No. 3753 or the Family
Code, which governed registration of marriage do not provide rule on
constructive notice (Sermonia vs. Court of Appeals, G.R. No. 109454, June 14,
1994); hence the period of prescription commences to run on the date of actual
discovery of the bigamous marriage.
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COMMENCEMENT - As a rule, period of prescription commence to run
from the date of discovery of its commission. However, if the crime is not yet
actionable at the time of its commission, period of prescription will commence to
run from the time it becomes actionable. In false testimony, the crime was
committed at the time the accused falsely testified in court. However, the period
of prescription for false testimony commences to run from the date of the finality
of judgment of a case in which the offender testified falsely. Prior to the date of
finality, the crime is not yet actionable (People vs. Maneja, G.R. No. 47684, June
10, 1941).
In violation of BP Blg. 22, the crime is consummated upon the dishonor

of the check by the drawee bank (Bautista vs. Court of Appeals, G.R. No.
143375, July 6, 2001). However, the period of prescription for such crime
commences to run from the date of the expiration of the five-day period from
receipt of notice of dishonor by the drawer. Prior to that date, the crime is not
yet actionable since the offender can still avert criminal prosecution by
satisfying the amount of the check or making arrangement for its payment
within five day grace period.
Moreover, the running of prescription for crime punishable under

special law shall be interrupted upon filing of complaint with prosecutor office
for preliminary investigation. It would be absurd to consider the prescriptive
period for crime under BP Blg. 22 as already running even prior to the
expiration of the grace period despite the fact that the complainant could not
cause its interruption by filing a complaint for preliminary investigation since it
is not yet actionable.
In People vs. Pangilinan, G.R. No. 152662, June 13, 2012 - This Court
reckons the commencement of the period of prescription for violations of BP Blg.
22 imputed to accused sometime in the latter part of 1995, as it was within this
period that the accused was notified by the private complainant of the fact of
dishonor of the subject checks and, the five (5) days grace period granted by law
had elapsed. The private complainant then had, pursuant to Act 3326, four
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years there from or until the latter part of 1999 to file her complaint or
information against the petitioner before the proper court.
Blameless ignorance doctrine - Generally, the prescriptive period shall
commence to run on the day the crime is committed. An exception to this rule is
the "blameless ignorance" doctrine, incorporated in Section 2 of Act No. 3326.
Under this doctrine, "the statute of limitations runs only upon discovery of the
fact of the invasion of a right which will support a cause of action. Considering
that during the Marcos regime, no person would have dared to assail the legality
of the transactions involving cronies such as behest loan, it would be
unreasonable to expect that the discovery of the unlawful transactions was
possible prior to 1986 (Disini vs. Sandiganbayan, G.R. No. 169823-24 and
174764-65, September 11, 2013). Hence, the prescriptive period for violation of
RA No. 3019 commenced from the date of its discovery in 1992 after the
Committee made an exhaustive investigation (Presidential Ad hoc fact-finding
committee vs. Hon. Desierto, G.R. No. 135715, April 13, 2011)
INTERRUPTION OF PRESCRIPTION Under Act No. 3326, the
running of the prescription of offense punishable under special law shall be
interrupted when judicial proceedings for investigation and punishment are
instituted against the guilty person. The proceeding is described as judicial
since when Act No. 3326 was passed on December 4, 1926, preliminary
investigation of criminal offenses was conducted by justices of the peace.
Considering that preliminary investigation in criminal case for purposes of
prosecution has become the exclusive function of the executive branch, the term
proceedings should now be understood either executive or judicial in
character: executive when it involves the investigation phase and judicial when it
refers to the trial and judgment stage. Hence, institution of proceeding, whether
executive or judicial, interrupts the running of prescriptive period (Panaguiton
vs. Department of Justice, G.R. No. 167571, November 25, 2008).
Thus, the commencement of the following proceedings for the
prosecution of the accused effectively interrupted the prescriptive period for the
offense charged: (1) Filing of complaint for violation of BP 22 with the Office of
the City Prosecutor (Panaguiton vs. Department of Justice, supra); (2) Filing of
complaint for violations of the Revised Securities Act and the Securities with the
Securities and Exchange Commission (SEC vs. Interport Resources Corporation,
G.R. No. 135808, October 6, 2008, the Supreme Court En Banc); and (3) Filing
of complaint for violation of RA No. 3019 with the Office of the Ombudsman
(Disini vs. Sandiganbayan, G.R. No. 169823-24 and 174764-65, September 11,
2013)
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Exceptions:
1. Violation of ordinance In Zaldivia v. Reyes, Jr., G.R. No. 102342,
July 3, 1992 - The proceedings referred to in Section 2 of Act No. 3326 are
judicial proceedings (which does not include administrative proceedings). Thus,
a crime such as violation of ordinance may prescribe even if the complaint is filed
seasonably with the prosecutor's office if, intentionally or not, he delays the
institution of the necessary judicial proceedings until it is too late.
In Jadewell Parking Systems Corp. vs. Lidua, Sr., GR No. 169588, Oct. 7,
2013, the Supreme Court applied the Zaldivia principle to prescription of
violation of ordinance. In this case, what is involved in this case is violation of
ordinance of Baguio City, a chartered city. Accordingly, when the representatives
of the petitioner filed the Complaint before the Provincial Prosecutor of Baguio,
the prescription period was running. It continued to run until the filing of the
Information. They had two months to file the Information and institute the
judicial proceedings by filing the Information with the Municipal Trial Court.
While the case of Pangilinan categorically abandoned the Zaldivia
principle, the Supreme Court in Jadewell case ruled the doctrine of Pangilinan
pertains to violations of special laws but not to ordinances. In sum, if what is
involved is prescription of violation of special law, institution of administrative
proceeding for investigation interrupts the prescriptive period. Zaldivia is not
controlling. If what is involved is prescription of violation of ordinance,
institution of judicial proceeding is required to interrupt the running of
prescription. Zaldivia case is controlling.
2. Invalid proceeding In People vs. Romualdez and Sandiganbayan,
G.R. No. 166510, April 29, 2009 - The investigatory power of the PCGG extended
only to alleged ill-gotten wealth cases, absent previous authority from the
President for the PCGG to investigate such graft and corruption cases involving
the Marcos cronies. Accordingly, the preliminary investigation conducted by the
PCGG leading to the filing of the first information is void ab initio, and thus
could not be considered as having tolled the fifteen (15)-year prescriptive period
for violation of RA No. 3019. After all, a void ab initio proceeding such as the first
preliminary investigation by the PCGG could not be accorded any legal effect.
MARRIAGE IN RAPE
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There are two rules under Article 334 of RPC in connection with
marriage as a mode of criminal extinction. First, in cases of seduction,
abduction, acts of lasciviousness and rape, the marriage of the offender with
the offended party shall extinguish the criminal action or remit the penalty
already imposed upon him. Second, the provisions of this paragraph shall also
be applicable to the co-principals, accomplices and accessories after the fact of
the abovementioned crimes.
According to Regalado, since rape is now a crime against person, it
should be considered ad deleted from the text of Article 334. In case of rape,
the applicable rule is Article 266-C of RPC as amended by RA 8353. Under this
provision, subsequent marriage between the offender and offended party shall
extinguish the criminal action or penalty. It seems that RA 8353 adopted the
first rule in Article 344 of RPC but not the second rule. Hence, marriage
between the offender and offended party will not extinguish the criminal
liability of the co-principal, accomplice or accessory of the crime of rape
PROBATION
Probation distinguished from parole and pardon (1) Grant of probation
is judicial while that of parole and pardon is executive. (2) Probation and parole
are suspension sentence while pardon is remission of penalty. (3) Offender can
only apply for probation within the period of perfecting an appeal; offender is
eligible for pardon after conviction by final judgment; offender is eligible for
parole after serving the minimum of the indeterminate penalty. (4) Offender, who
was sentenced to suffer a penalty of more than 6 years of imprisonment, is
disqualified to apply for probation. Offender, who was sentence to suffer
reclusion perpetua or death penalty, is not qualified for parole. However, the
President can pardon offender even if the penalty imposed upon him is reclusion
perpetua or death penalty.
a. Mutual exclusive remedies - Probation is not a right but a mere
privilege, an act of grace and clemency conferred by the State, and may be
granted by the court to a deserving defendant. Accordingly, the grant of probation
rests solely upon the discretion of the court. It is to be exercised primarily for the
benefit of organized society, and only incidentally for the benefit of the accused
(Almero vs. People, GR No. 188191, March 12, 2014).
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise eligible
convict to immediately admit his liability and save the state of time, effort and
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expenses to jettison an appeal. The law expressly requires that an accused must
not have appealed his conviction before he can avail of probation. This outlaws
the element of speculation on the part of the accused to wager on the result of
his appeal that when his conviction is finally affirmed on appeal he now
applies for probation as an escape hatch thus rendering nugatory the appellate
court's affirmance of his conviction (Almero vs. People, GR No. 188191, March
12, 2014).
Aside from the goals of according expediency and liberality to the
accused, the rationale for the treatment of appeal and probation as mutually
exclusive remedies is that they rest on diametrically opposed legal positions. An
accused applying for probation is deemed to have accepted the judgment. The
application for probation is an admission of guilt on the part of an accused for
the crime which led to the judgment of conviction. This was the reason why the
Probation Law was amended: precisely to put a stop to the practice of appealing
from judgments of conviction even if the sentence is probationable for the
purpose of securing an acquittal and applying for the probation only if the
accused fails in his bid (Almero vs. People, GR No. 188191, March 12, 2014).
While accused did not file an appeal before applying for probation, he
assailed the validity of the conviction in the guise of a petition supposedly
assailing the denial of probation. In so doing, he attempted to circumvent P.D.
No. 968, as amended by P.D. 1990, which seeks to make appeal and probation
mutually exclusive remedies (Almero vs. People, GR No. 188191, March 12,
2014).
b. Non-probationable offense - The accused, who was convicted by the
lower court of a non-probationable offense (frustrated homicide), but on appeal
was found guilty of a probationable offense (attempted homicide), may apply for
probation upon remand of the case to the RTC because of the following reasons:
(1) The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of
liberality towards the accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions; (2) If the accused will not be
allowed to apply for probation, he will be made to pay for the trial courts
erroneous judgment with the forfeiture of his right to apply for probation; (3)
While it is true that probation is a mere privilege, the accused has the right to
apply for that privilege; (4) It is true that under the probation law the accused
who appeals "from the judgment of conviction" is disqualified from availing
himself of the benefits of probation. But, as it happens, two judgments of
conviction have been meted out to accused: one, a conviction for frustrated
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homicide by the regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court (Colinares vs. People, G.R. No.
182748, December 13, 2011). The SC reaffirmed the Colinares case in Villareal
vs. People, G.R. No. 151258, December 1, 2014, accused was convicted of
homicide, a non-probationable crime, by the trial court. However, the SC found
them liable for reckless imprudence resulting in homicide, which is a
probationable crime, because of lack of dolo. They can still apply for probation.
CRIMES AGAINST FUNDEMENTAL LAW
UNLAWFUL ARREST AND ARBITRARY DETENTION
In unlawful arrest, the private individual or public officer in its private
capacity arrests or detains the victim without reasonable ground or legal
authority for purpose of delivering him to the proper judicial authority. In
arbitrary detention, the public officer, who has authority to make arrest, detains
the victim without legal grounds (People vs. Bringas G.R. No. 189093, April 23,
2010) for the purpose of: (1) Delivering him to judicial authority (U.S. us. Gellada,
15 Phil. 120); (2) Conducting criminal investigation (People vs. Oliva, 95 Phil. 962;
U.S. vs. Agravante, G.R. No. 3947, January 28, 1908); or (3) Determining if he
committed or is committing a crime [U.S. vs. Hawchaw, G.R. No. L-6909,
February 20, 1912].
Arbitrary detention is a crime against fundamental law of the law or the
Constitution. A public officer, who is vested with the authority to detain or to
order the detention of a person accused of a crime, is acting in behalf of the State
in arresting or detaining a person. If such public officer detained a person in
violation of his constitutional right against unreasonable seizure (or not in
accordance with Section 5, Rule 113 of the Revised Rules of Criminal Procedure),
the crime committed is arbitrary detention. Unlawful arrest is a crime against
personal liberty and security. A public officer, who is not vested with the
authority to detain or to order the detention of a person (e.g. stenographer,
researcher or municipal treasurer), is not acting in behalf of the State in making
a warrantless arrest. Such public officer acting in his private capacity (or a
private individual) could not violate the Constitution (People vs Marti, G.R. No.
81561, January 18,1991); hence, if he arrests or detains a person not in
accordance with Section 5, Rule 113 of the Revised Rules of Criminal Procedure,
the crime committed is unlawful arrest. The essence of this crime is not
violation of fundamental law of the law but deprivation of liberty of the victim.
CRIMES AGAINST PUBLIC INTEREST
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FALSIFICATION
Affidavit - In Lonzanida vs. People, G.R. Nos. 160243-52, July 20, 2009,
Justice De Castro - Petitioner as mayor, who is authorized to administer oath,
attested to the fact that the affiants swore and signed their affidavits in his
presence when in fact they never did. He committed falsification by causing it to
appear that persons have participated in an act or proceeding when in fact and in
truth, they did not participate in the act or proceeding.
Commercial document - Commercial documents are, in general,
documents or instruments which are used by merchants or businessmen to
promote or facilitate trade or credit transactions. Promissory notes facilitate
credit transactions while a check is a means of payment used in business in lieu
of money for convenience in business transactions. A cashiers check necessarily
facilitates bank transactions for it allows the person whose name and signature
appear thereon to encash the check and withdraw the amount indicated therein
(Tanenggee vs. People, GR No. 179448, June 26, 2013).
Damage as an element - Is intent to cause damage an element of
falsification of public or official document? No. In falsification of public or official
documents, it is not necessary that there be present the idea of gain or the intent
to injure a third person because in the falsification of a public document, what is
punished is the violation of the public faith and the destruction of the truth as
therein solemnly proclaimed (Regidor, Jr., vs. People, G. R. Nos. 166086-92 Feb.
13, 2009).
Falsification and estafa, malversation or theft
When the offender commits falsification of public, official or commercial
document as a necessary means to commit malversation (People vs. Barbas, G.R.
No. L-41265, July 27, 1934), estafa (Ilumin vs. Sandiganbayan, G.R. No. 85667,
February 23, 1995; Intestate Estate of Gonzales vs. People, G.R. No. 181409,
February 11, 2010; Ambito vs. People, G.R. No. 127327, February 13, 2009,
Justice De castro, Tanenggee vs. People, GR No. 179448, June 26, 2013) or theft
(People vs. Salonga, G.R. No. 131131, June 21, 2001), the crime committed is
complex crime proper under Article 48 of RPC.
If the public officer is an accountable officer, misappropriation of public
funds is malversation (People vs. Barbas). If the public officer is not an
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accountable officer,
Sandiganbayan).
misappropriation
of
funds
is
estafa
(Ilumin
vs.
Using a falsified check to defraud the bank is estafa through falsification

of commercial document (Tanengee vs. People). Using a stolen and falsified check
to defraud the bank is theft through falsification of commercial document (People
vs. Salonga).
When the offender commits falsification of public, official or commercial
document as a means to conceal malversation (People vs. Sendaydiego, G.R. Nos.
L-33252-54, January 20, 1978; People vs. Villanueva, G.R. No. 39047, October
31, 1933, En Banc), estafa (People vs. Monteverde, G.R. No. 139610, August 12,
2002; People vs. Benito, G.R. No. 36979, November 23, 1932) or theft, the crimes
are separate. This is not complex crime proper since one is not a necessary
means to commit another.
Other view: If falsification is committed for purpose of enabling the
accused to commit malversation (People vs. Silvanna, G.R. No. L-43120, July 27,
1935; Zafra vs. People, G.R. No. 176317, July 23, 2014) or estafa (People vs. Go,
G.R. No. 191015, August 06, 20140, the accused is liable for complex crime
proper.
Under the doctrine of common element, an element used to complete one
crime cannot be legally re-used to complete the requisites of a subsequent crime
(Regalado). The common element of estafa or malversation and falsification is
damage to the victim. Thus, falsification of private document and estafa cannot
co-exist. The use of damage as an element in falsification precludes the re-use
thereof to complete the elements of estafa, and vice versa.
If the falsification of a private document is committed as a means to
commit estafa, the proper crime to be charged is falsification. If the estafa can be
committed without the necessity of falsifying a private document, the proper
crime to be charged is estafa (Batulanon vs. People, G.R. NO. 139857, September
15, 2006).
If the offender commits falsification of private document as a means to
commit estafa, he is liable for falsification only. Falsification absorbs estafa. (See:
U.S. vs Chan Tiao, G.R. No. 12609, October 30, 1917; People vs. Reyes, G.R. No.
L-34516, November 10, 1931).
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If a person commits falsification of private document to conceal
malversation or estafa, the crime is malversation or estafa only. Falsification of
private document is not committed because: (a) the use of damage as an element
in estafa precludes the re-use thereof to complete the elements of falsification;
and (b) the damage to third person is not caused by the falsity in the document
but by the commission of estafa (See: People vs. Beng, 40 O.G. 1913).
If falsification of private document was used as a means to commit
estafa, the former was committed ahead of the latter; hence, falsification absorbs
the element of damage of estafa. If falsification of private document was used as a
means to conceal estafa, the latter was committed ahead of the former; hence,
estafa absorbs the element of damage of falsification.
USURPATION OF FUNCTION
Usurpation of authority is committed by knowingly and falsely
representing himself to be an officer, agent or representative of any department
or agency of the government or of any foreign government. Usurpation of function
is committed by performing any act under pretense of official position pertaining
to any person in authority or public officer of the government or any foreign
government, or any agency thereof, without being lawfully entitled to do so ( Ruzol
vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013).
In Ruzol vs. Sandiganbayan, GR Nos. 186739-960, April 17, 2013 Accused, a mayor issued permits to transport salvaged forest products. According
to prosecution, DENR is the only government instrumentality that can issue the
permits to transport salvaged forest products. The prosecution asserted that
accused usurped the official functions that properly belong to the DENR.
Accused chose to exercise the right to protect the environment and to
share in this responsibility by exercising his authority as municipal mayoran
act which was executed with the cooperation of non-governmental organizations,
stakeholders, and concerned citizens. His acts may be invalid but it does
necessarily mean that such mistakes automatically justify his conviction.
There is no showing that accused possessed that criminal mind when
he in his capacity as mayor issued the subject permits. What is clear from the
records is that accused, as municipal mayor, intended to regulate and monitor
salvaged forest products in order to avert the occurrence of illegal logging in the
area.
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Good faith is a defense in criminal prosecutions for usurpation of official
functions. The requirement of permits to transport was accuseds decision alone;
it was a result of the collective decision of the participants during the MultiSectoral Consultative Assembly. If, indeed, accused intended to usurp the official
functions of the DENR, he would not have asked the presence of a DENR official
who has the authority and credibility to publicly object against accuseds
allegedly intended usurpation. Thus, the presence of DENR official during the
Multi-Sectoral Assembly strengthens accuseds claim of good faith.
The DENR is not the sole government agency vested with the authority to
issue permits relevant to the transportation of salvaged forest products,
considering that, pursuant to the general welfare clause, LGUs may also exercise
such authority.
CRIMES COMMITTED BY PUBLIC OFFICER
MALVERSATION
The essential elements common to all acts of malversation under Article
217 of the Revised Penal Code are: (1) That the offender be a public officer; (2)
That he had the custody or control of funds or property by reason of the duties of
his office; (3) That he had the custody or control of funds or property by reason of
the duties of his office; (4) That those funds or property were public funds or
property for which he was accountable; and (5) That he appropriated, took,
misappropriated or consented, or through abandonment or negligence, permitted
another person to take them (Legrama vs. Sandiganbayan, GR No. 178626, June
13, 2012).
Accountable officer An accountable public officer is one who has
custody or control of public funds or property by reason of the duties of his
office. 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
school principal of a public high school may be held guilty of malversation if he
or she is entrusted with public funds and misappropriates the same (Torres vs.
People, GR No. 175074, August 31, 2011).
The municipal mayor initiated the request for obligation of allotments
and certified and approved the disbursement vouchers. The municipal
accountant obligated the allotments despite lack of prior certification from the
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budget officer. Municipal treasurer certified to the availability of funds and
released the money even without the requisite budget officers certification. The
signatures of beneficiaries, who supposed to have received the money, were
forged. Can the mayor and accountant be held liable for malversation even
though they are not accountable officer? Yes. Ordinarily, a municipalitys mayor
and accountant are not accountable public officers as defined under the
law. However, a public officer who is not in charge of public funds or property by
virtue of his official position, or even a private individual, may be liable for
malversation if such public officer or private individual conspires with an
accountable public officer to commit malversation. In this case, combined acts of
the mayor and accountant, and treasurer, an accountable officer, conspired to
defraud the government (People vs. Pajaro, G.R. Nos. 167860-65, June 17, 2008).
In addition, municipal mayors are chief executives of their respective
municipalities. Under the Government Auditing Code of the Philippines, he is
responsible for all government funds pertaining to the municipality. As a required
standard procedure, the signatures of the mayor and the treasurer are needed
before any disbursement of public funds can be made. No checks can be
prepared and no payment can be effected without their signatures on a
disbursement voucher and the corresponding check. In other words, any
disbursement and release of public funds require their approval. The mayor and
treasurer had control and responsibility over the funds of the municipality.
Hence, they are accountable officers. Any unlawful disbursement or
misappropriation of the municipal funds would make them accountable for
malversation (Evangelista vs. Hon. Sandiganbayan, G.R. No. 158413, February
08, 2012).
Intentional and culpable malversation Malversation may be
committed either through a positive act of misappropriation of public funds or
property, or passively through negligence. To sustain a charge of malversation,
there must either be criminal intent or criminal negligence, and while the
prevailing facts of a case may not show that deceit attended the commission of
the offense, it will not preclude the reception of evidence to prove the existence of
negligence because both are equally punishable for malversation (Torres vs.
People, GR No. 175074, August 31, 2011).
Even when the Information charges intentional malversation, conviction
for malversation through negligence may still be adjudged if the evidence
ultimately proves the mode of commission of the offense. Malversation is
committed either intentionally or by negligence. The dolo or the culpa present in
the offense is only a modality in the perpetration of the felony. Even if the mode
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charged differs from mode proved, the same offense of malversation is involved
and conviction thereof is proper (Torres vs. People, GR No. 175074, August 31,
2011).
Presumption of malversation - Mere absence of funds is not sufficient
proof of conversion; neither is the mere failure of the public officer to turn over
the funds at any given time sufficient to make even the prima facie case. In fine,
conversion must be proved. However, an accountable officer may be convicted of
malversation even in the absence of direct proof of misappropriation so long as
there is evidence of shortage in his account which he is unable to explain.
Under Article 217, a presumption was installed that upon demand by
any duly authorized officer, the failure of a public officer to have duly
forthcoming any public funds or property with which said officer is accountable
should be prima facie evidence that he had put such missing funds or
properties to personal use.
When these circumstances are present, a
presumption of law arises that there was malversation of public funds or
properties. To be sure, this presumption is disputable and rebuttable by evidence
showing that the public officer had fully accounted for the alleged cash shortage
(Legrama vs. Sandiganbayan, G.R. No. 178626, June 13, 2012).
In the crime of malversation, all that is necessary for conviction is
sufficient proof that the accountable officer had received public funds, that he
did not have them in his possession when demand therefor was made, and that
he could not satisfactorily explain his failure to do so. Direct evidence of personal
misappropriation by the accused is hardly necessary as long as the accused
cannot explain satisfactorily the shortage in his accounts (Icdang vs.
Sandiganbayan, G.R. No. 185960, January 25, 2012).
FAILURE TO RENDER ACCOUNTING
In People vs. Lumauig, G.R. No.166680, July 7, 2014 - Article 218 of RPC
consists of the following elements: (1) that the offender is a public officer,
whether in the service or separated therefrom; (2) that he must be an
accountable officer for public funds or property; (3) that he is required by law or
regulation to render accounts to the Commission on Audit, or to a provincial
auditor; and (4) that he fails to do so for a period of two months after such
accounts should be rendered.
Petitioner received cash advance for payment of the insurance coverage of
motorcycles purchased by the Municipality in 1994. Under COA Circular,
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petitioner is required to liquidate the same within 20 days after the end of the
year or on ore before January 20, 1995. To avoid liability under Article 218, he
should have liquidated the cash advance within two months from the time it was
due, or on or before March 20, 1995. Petitioner was liable for failure to render
account under Article 218 because it took him over six years before settling his
accounts. Demand before an accountable officer is held liable for a violation of
the crime is not required. Article 218 merely provides that the public officer be
required by law and regulation to render account.
KNOWINGLY RENDERING UNJUST JUDGEMENT
To commit the offense of knowingly rendering an unjust judgment, the
offender must be a judge who is adequately shown to have rendered an unjust
judgment, not one who merely committed an error of judgment or taken the
unpopular side of a controversial point of law. The term knowingly means sure
knowledge, conscious and deliberate intention to do an injustice. Thus, the
complainant must not only prove beyond reasonable doubt that the judgment is
patently contrary to law or not supported by the evidence but that it was also
made with deliberate intent to perpetrate an injustice. Good faith and the
absence of malice, corrupt motives or improper consideration are sufficient
defenses that will shield a judge from the charge of rendering an unjust
decision. In other words, the judge was motivated by hatred, revenge, greed or
some other similar motive in issuing the judgment. Bad faith is, therefore, the
ground for liability. The failure of the judge to correctly interpret the law or to
properly appreciate the evidence presented does not necessarily render him
administratively liable (Re: Verified Complaint for Disbarment of AMA LAnd Inc.
against CA Association Justice Bueser et.al., OCA IPI No. 12-204-CA-J, March
11, 2014).
USURPATION OF JUDICIAL AUTHORITY
Under Article 241 of the Revised Penal Code, the crime of
usurpation of judicial authority involves the following elements: (1) that the
offender is an officer of the executive branch of the government; and (2) that he
assumes judicial powers, or obstructs the execution of any order or decision
rendered by any judge within his jurisdiction. These elements were alleged in the
information. Mayor Irisari was an officer of the executive branch (Munez vs.
Arino, A.M. No. MTJ-94-985, February 21, 1995). In usurpation of judicial
function, the accused, who is not a judge, attempts to perform an act the
authority for which the law has vested only in a judge (Mioso v. Pamulag, A.M.
No. P-05-2067, 31 August 2005; Pace v. Leonardo, A.M. No. P-03-1675, 6 August
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2003,). A Provincial Adjudicator, who rendered judgment in DARAB Case in the
performance of a quasi-judicial function, closely akin to the function of a judge of
a court of law, could not be held liable under Article 241 of RPC, therefore,
considering that the acts constitutive of usurpation of judicial function were
lacking herein (Reyes vs. People, G.R. Nos. 177105-06, August 12, 2010). A clerk
of court, who is not an officer of the executive branch, cannot be held liable for
usurpation of judicial function. However, a clerk of court, who usurped judicial
prerogative of the judge by issuing the arrest of an accused in a criminal case, is
administratively liable for grave misconduct (Albior vs. Auguis, A.M. No. P-011472, June 26, 2003).
CRIMES AGAINST PERSONS
PARRICIDE
Parricide is committed when: (1) a person is killed; (2) the deceased is killed by
the accused; and (3) the deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other ascendant or other descendant, or
the legitimate spouse of the accused (People vs. Gamez, GR No. 202847, October
23, 2013).
MURDER
Murder, the prosecution must prove that: (1) a person was killed; (2) the
accused killed him; (3) the killing was attended by any of the qualifying
circumstances mentioned in Article 248; and (4) the killing is neither parricide
nor infanticide (People vs. Camat, G.R. No. 188612, July 30, 2012
ATTEMPTED MURDER - Accused opened the door of his vehicle and
then drew a gun and shot victim once, hitting him just below the left armpit.
Victim immediately ran at the back of the car, while accused sped away. Is the
accused liable for attempted murder? No. Accused only shot the victim once and
did not hit any vital part of the latters body. If he intended to kill him, accused
could have shot the victim multiple times or even ran him over with the
car. When such intent is lacking but wounds are inflicted upon the victim, the
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crime is not attempted murder but physical injuries only (Pentecoste, Jr. vs.
People, G.R. No. 167766, April 7, 2010).
EXCESSIVE CHASTISEMENT
X tied his son to a coconut tree and, there after hit on his right eye and
right leg. As a consequence, his son sustained injuries that would heal in one
week upon medication. Is X liable for slight physical injuries despite the fact
that his intention in beating his son is merely to discipline him? Yes. X cannot
evade criminal culpability by the circumstance that he merely intended to
discipline his son (People vs. Sales, G.R. No. 177218, October 3, 2011).
RAPE
INTIMIDATION - It is a well-entrenched law that intimidation in rape
includes the moral kind of intimidation or coercion. Intimidation is a relative
term, depending on the age, size and strength of the parties, and their
relationship with each other. It can be addressed to the mind as well. For rape
to exist it is not necessary that the force or intimidation employed be so great or
of such character as could not be resisted. It is only necessary that the force or
intimidation be sufficient to consummate the purpose which the accused had in
mind. Intimidation must be viewed in the light of the victim's perception and
judgment at the time of the rape and not by any hard and fast rule. It is
therefore enough that it produces fear -- fear that if the victim does not yield to
the bestial demands of the accused, something would happen to her at the
moment or thereafter, as when she is threatened with death if she reports the
incident. Intimidation would also explain why there are no traces of struggle
which would indicate that the victim fought off her attacker (People vs. Leonardo
G.R. No. 181036. July 6, 2010).
Tenacious resistance - Among the amendments of the law on rape
introduced under RA No. 8353 is Section 266-D, which provides Any physical
overt act manifesting resistance against the act of rape in any degree from the
offended party, or where the offended party is so situated as to render her/him
incapable of giving valid consent, may be accepted as evidence in the prosecution
rape (People vs. Sabadlab, G.R. No. 175924, March 14, 2012). The legislators
agreed that Article 266-D is intended to soften the jurisprudence on tenacious
resistance (People vs. Dulay, G.R. Nos. 144344-68, July 23, 2002, En banc).
Failure to shout should not be taken against the victim (People vs. Rivera, GR No.
200508, September 04, 2013; see: People vs. Rubio, G.R. No. 195239, March 7,
2012; People vs. Penilla, GR No. 189324, March 20, 2013). It necessary for the
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victim to sustain physical injuries. She need not kick, bite, hit or scratch the
offender with her fingernails to prove that she had been defensive. It is sufficient
that she yielded because of a real application of bodily harm (People vs. Torres,
G.R. No. 134766, January 16, 2004). The use of a weapon, by itself, is strongly
suggestive of force or at least intimidation, and threatening the victim with a gun
is sufficient to bring her into submission (People vs. Tubat, G.R. No. 183093,
February 1, 2012; People vs. Penilla, GR No. 189324, March 20, 2013).
In incestuous rape of a minor, actual force or intimidation need not even
be employed where the overpowering moral influence of appellant, who is private
complainants father, would suffice (People vs. Samandre, G.R. No. 181497,
February 22, 2012) In rape committed by a father, his moral ascendancy and
influence over the victim substitute for the requisite force, threat, and
intimidation, and strengthen the fear which compels the victim to conceal her
dishonor (People vs. Ortega, G.R. No. 186235, January 25, 2012; People vs.
Broca, GR No. 201447, January 09, 2013 People vs. Candellada, G.R. No.
189293, July 10, 2013, Justice De Castro). The absence of violence or offer of
resistance would not affect the outcome of the case because the overpowering
and overbearing moral influence of the father over his daughter takes the place of
violence and offer of resistance required in rape cases committed by an accused
who did not have blood relationship with the victim (People vs. Osma, G.R. No.
187734, August 29, 2012, Justice De Castro). In People vs. Abanilla, G.R. Nos.
148673-75, October 17, 2003, En Banc - Being the father, appellants force or
threat was sufficient to create fear in the mind of the complainant compelling her
to submit to his sexual abuse.
Sweetheart theory - The sweetheart theory, as a defense, necessarily
admits carnal knowledge, the first element of rape. This admission makes the
sweetheart theory more difficult to defend, for it is not only an affirmative defense
that needs convincing proof; after the prosecution has successfully established
a prima facie case, the burden of evidence is shifted to the accused, who has to
adduce evidence that the intercourse was consensual (People vs. Deligero, GR No.
189280, April 17, 2013).
Sweetheart defense will not exculpate accused from liability for rape
against mentally retarded person. In the rape of a woman deprived of reason or
unconscious, the victim has no will. The absence of will determines the existence
of the rape. Such lack of will may exist not only when the victim is unconscious
or totally deprived of reason, but also when she is suffering some mental
deficiency impairing her reason or free will. Carnal knowledge of a woman so
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weak in intellect as to be incapable of legal consent constitutes rape (People vs.
Caoile, GR No. 203041, June 05, 2013).
A child was not capable of fully understanding or knowing the import of
her actions and in consequence, remained vulnerable to the cajolery and
deception of adults. Unlike rape, therefore, consent is immaterial in cases
involving sexual absue under Section 5 of RA 7610. For purposes of sexual
abuse, the sweetheart defense is unacceptable. A child exploited in prostitution
or subjected to other sexual abuse cannot validly give consent to sexual
intercourse with another person (Caballo vs. People, GR No. 198732, June 10,
2013).
MENTAL RETARDATION In People vs. Dalan, G.R. No. 203086, June
11, 2014 - The term statutory rape should only be confined to situations where
the victim of rape is a person less than 12 years of age. If the victim of rape is a
person with mental abnormality, deficiency, or retardation, the crime committed
is simple rape committed against a person "deprived of reason" . In short, carnal
knowledge with a mental retardate with mental age of below 12 years, while akin
to statutory rape should still be designated as simple rape. At any rate, proof of
force, threat or intimidation is dispensed with in both statutory rape and rape
with a person who is deprived of reason.
In rape, the phrase "deprived of reason" refers to mental abnormality,
deficiency or retardation, which includes (a) idiot (equivalent to two-year old
child); (b) imbecile (seven-year old child); (c) moron or feebleminded (twelve-year
old child) and (d) borderline intelligence. A person is guilty of rape when he had
sexual intercourse with a female who was suffering from a "borderline mental
deficiency (People vs. Butiong, G.R. No. 168932, October 19, 2011; G.R. No.
140209, December 27, 2002, People vs. Dalandas)
Intimidation - Mental retardation was not alleged in the information.
However, the accused can be convicted of with rape though intimidation alleged
in the Information. Having sex with a mentally retarded person even with consent
constitutes rape through intimidation (People vs. Balatazo, G.R. No.
118027, January 29, 2004).
Demented person - The term demented refers to a person who has
dementia, which is a condition of deteriorated mentality, characterized by marked
decline from the individuals former intellectual level and often by emotional
apathy, madness, or insanity. On the other hand, the phrase deprived of
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reason includes those suffering from mental abnormality, deficiency, or

retardation. Thus, a mental retardate can be properly classified as a person who
is deprived of reason, and not one who is demented.
Accused was charged in the Information with rape of a demented person
with a mental age of 7 years old. Evidence however shows that the victim is not
demented but mentally retarded. The mistake will not exonerate accused. His
rights to be informed of the nature and cause of the accusation against him were
violated. The allegation that the victim is a person with a mental age of 7 years
old is sufficient to inform accused of the nature of the charges against him.
Carnal knowledge of a woman who is a mental retardate is rape (People vs.
Caoile, GR No. 203041, June 05, 2013, Justice De Castro).
Accused was charged in the Information with rape of a demented person

with mental capacity below 18 years old. Evidence however shows that the victim
is not demented but mentally retarded. Mistake in the information will not
exonerate the accused he failed to raise this as an objection, and the particular
facts stated in the Information were protestation sufficient to inform him of the
nature of the charge against him (People vs. Ventura, Sr. GR. No. 205230, March
12, 2014).
Deafmute - The deprivation of reason need not be complete. Mental

abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic
woman is rape. Sexual intercourse with an insane woman was considered rape.
But a deafmute is not necessarily deprived of reason. These circumstances must
be proven. Intercourse with a deafmute is not rape of a woman deprived of
reason, in the absence of proof that she is an imbecile (People vs. Caoile, GR No.
203041, June 05, 2013).
Borderline intelligence - The traditional but now obsolescent terms
applied to those degrees of mental retardation were (a) idiot, having an IQ of 019, and a maximum intellectual factor in adult life equivalent to that of the
average two-year old child; (b)imbecile by an IQ of 20 to 49 and a maximum
intellectual function in adult life equivalent to that of the average seven-year old
child; (c) moron or feebleminded, having an IQ of 50 to 69 and a maximum
intellectual function in adult life equivalent to that of the average twelve-year old
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child. Psychiatrists and psychologists apply the term borderline intelligence to
those with IQ between 70 to 89. A person is guilty of rape when he had sexual
intercourse with a female who was suffering from a borderline mental deficiency
(People vs. Bayrante, G.R. No. 188978, June 13, 2012 (Justice De Castro).
STATUTORY RAPE - In statutory rape, what the law punishes is carnal
knowledge of a woman below 12 years of age. Thus, the only subject of inquiry is
the age of the woman and whether carnal knowledge took place. The law
presumes that the victim does not and cannot have a will of her own on account
of her tender years (People vs. Dollano, Jr., GR No. 188851, October 19, 2011).
QUALIFIED RAPE - RPC punishes the rape of a mentally disabled
person regardless of the perpetrators awareness of his victims mental condition.
However, the perpetrators knowledge of the victims mental disability, at the time
he committed the rape, qualifies the crime (People vs. Caoile, GR No. 203041,
June 05, 2013). Since knowledge is an element of this qualifying circumstance, it
must be formally alleged in the information and duly proved by the prosecution
(People vs. Obogne, GR No. 199740, March 24, 2014). In People vs. Lascano, G.R.
No. 192180, March 21, 2012 the information in the present case merely stated
that the victim was blind; it did not specifically allege that the appellant knew of
her blindness at the time of the commission of the rape. Hence, the crime
committed is simple rape.
In qualifying circumstances of minority and relationship in rape and
special aggravating circumstance under Section 31(c) of RA No. 7610 in sexual
abuse under Section 5, the guardian must be a person who has legal relationship
with his ward. He must be legally appointed was first (People vs. Flores G.R. No.
188315, August 25, 2010).
MARITAL RAPE In People vs. Jumawan, G.R. No. 187495, April 21,
2014
Husbands do not have property rights over their wives bodies. Sexual
intercourse, albeit within the realm of marriage, if not consensual, is rape. This
is the clear State policy expressly legislated in Section 266-C of RPC as amended
by RA No. 8353 or the Anti-Rape Law of 1997, which provides in case it is the
legal husband who is the offender, the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or the penalty. RA No 8353
eradicated the archaic notion that marital rape cannot exist because a husband
has absolute proprietary rights over his wifes body and thus her consent to every
act of sexual intimacy with him is always obligatory or at least, presumed.
Husbands are once again reminded that marriage is not a license to forcibly rape
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their wives. A husband does not own his wifes body by reason of marriage. By
marrying, she does not divest herself of the human right to an exclusive
autonomy over her own body and thus, she can lawfully opt to give or withhold
her consent to marital coitus. A husband aggrieved by his wifes unremitting
refusal to engage in sexual intercourse cannot resort to felonious force or
coercion to make her yield. He can seek succor before the Family Courts that can
determine whether her refusal constitutes psychological incapacity justifying an
annulment of the marriage.
CONSPIRACY - Accused are liable for two (2) counts of rape on account
of a clear conspiracy between them, shown by their obvious concerted efforts to
perpetrate, one after the other, the rapes. Each of them is responsible not only for
the rape committed personally by him but also for the rape committed by the
other as well (People vs. Lascano, G.R. No. 192180, March 21, 2012).
PARDON - For crimes of seduction, abduction, and acts of
lasciviousness, pardon and marriage extinguish criminal liability. However,
pardon should have been made prior to the institution of the criminal actions
(People vs. Dollano, Jr., GR No. 188851, October 19, 2011). Rape is no longer a
crime against chastity for it is now classified as a crime against
persons. Consequently, rape is no longer considered a private crime or that
which cannot be prosecuted, except upon a complaint filed by the aggrieved
party. Hence, pardon by the offended party of the offender in the crime of rape
will not extinguish the offender's criminal liability (People vs. Bonaagua, GR No.
188897, June 06, 2011).
UNTENABLE DEFENSE - In crimes against chastity, the medical
examination of the victim is not an indispensable element for the successful
prosecution of the crime as her testimony alone, if credible, is sufficient to
convict the accused thereof (People vs. Ortega, G.R. No. 186235, January 25,
2012).
In Sison vs. People, G.R. No. 187229, February 22, 2012 -While
petitioner was portraying AAA as a prostitute, the latter cried. AAA's crying
shows how she might have felt after being raped by the petitioner and yet be
accused of a woman of loose morals. The victim's moral character in rape is
immaterial where it is shown that intimidation was used for the victim to have
sex with the accused.
Time and again, we have taken into consideration how rapists are not
deterred by the presence of people nearby, such as the members of their own
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family inside the same room, with the likelihood of being discovered, since lust
respects no time, locale or circumstance (People vs. Colorado, G.R. No. 200792,
November 14, 2012)
It is not absurd nor contrary to human experience that AAA gave birth
ten (10) months after the alleged sexual assault as there may be cases of long
gestations. In any event, we dismiss appellants contention as immaterial to the
case at bar because jurisprudence tells us that impregnation is not an element of
rape. Whether the child which the rape victim bore was fathered by the accused,
or by some unknown individual, is of no moment. What is important and decisive
is that the accused had carnal knowledge of the victim against the latters will or
without her consent, and such fact was testified to by the victim in a truthful
manner (People vs. Gahi, G.R. No. 202976, February 19, 2014, Justice De
Castro).
STAGES
CONSUMMATED RAPE If the touching" of the female organ
constitutes the sliding of the penis into or the touching of either labia majoraor
labia minoraof the pudendum, the crime committed is consummated rape.
Anything short of that will only result in either attempted rape or acts of
lasciviousness (People vs. Publico, April 13, 2011, G.R. No. 183569). However, the
penis that touches the external genitalia must be capable of consummating the
sexual act to constitute consummated rape (People vs. Butiong, G.R. No. 168932,
October 19, 2011). Touching must be made in the context of the presence or
existence of an erect penis capable of penetration (People vs. Campuhan, G.R. No.
129433, March 30, 2000).
Circumstantial evidence - In People vs. Castillo, GR No. 193666,
February 19, 2014, Justice De Castro - Absent any showing of the slightest
penetration of the female organ, i.e, touching of either labia of the pudendum by
the penis, there can be no consummated rape. However, even though the victim
testified that there was no penetration and the accused simply rubbed his penis
in the victim's vagina, accused will be convicted of consummated Rape if there
are evidence that the pain felt by the victim, the sex organ of the victim suffered
injury, and there is bleeding of the victim's genitalia.
Hymen is intact - Sexual penetration even without laceration of the
hymen or even the briefest of contact consummates rape (People vs. Pangilinan,
G.R. No. 183090, November 14, 2011). It is possible for the victims hymen to
remain intact despite repeated sexual intercourse. Likewise, whether the
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accuseds penis fully or only partially penetrated the victims genitalia, it is still
possible that her hymen would remain intact because it was thick and
distensible or elastic. The strength and dilability of the hymen varies from one
woman to another such that it may be so elastic as to stretch without laceration
during intercourse, or on the other hand, may be so resistant that its surgical
removal is necessary before intercourse can ensue. In some cases even, the
hymen is still intact even after the woman has given birth (People vs. Deligero,
GR No. 189280, April 17, 2013; People vs. Broca, GR No. 201447, January 09,
2013).
ATTEMPTED RAPE If the touching merely constitutes an epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on
the external layer of the victims vagina, or the mons pubis, the crime committed
is either attempted rape or acts of lasciviousness (People v. Campuhan, G.R. No.
129433, March 30, 2000). Attempted rape is committed when the touching of
the vagina by the penis is coupled with the intent to penetrate; otherwise, there
can only be acts of lasciviousness. The difference between attempted rape and
acts of lasciviousness lies in the intent of the perpetrator as deduced from his
external acts. (People vs. Dadulla, G. R. No. 172321, February 9, 2011; People vs.
Collado G.R. Nos. 135667-70, March 1, 2001).
To be held liable of attempted rape, it must be shown that erectile penis
is in the position to penetrate (Cruz vs. People, G.R. No. 166441, October 08,
2014) or the offender actually commenced to force his penis into the victim's
sexual organ (People vs. Banzuela, G.R. No. 202060, December 11, 2013, Justice
De Castro).
Mother of the victim saw X was kneeling before victim whose pajamas
and panty were already removed, while his short pants were down to his knees.
Accused was forcing his penis into victims vagina. Horrified, she cursed the
accused and boxed him several times. Is X liable for acts of lasciviousness or
attempted rape? X should be held liable for attempted rape since it was not
shown that his penis was able to penetrate vagina of victim however slight (People
vs. Campuhan, G.R. No. 129433, March 30, 2000, En Banc). Intent to have
sexual intercourse was clearly established in this case.
The victims statements that the accused was trying to force his sex
organ into mine and binundol-undol ang kanyang ari did not prove that the
accuseds penis reached the labia of the pudendum of the victims vagina.
Accused was convicted of attempted rape (People vs. Pareja, G.R. No. 188979,
September 5, 2012).
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ACTS OF LASCIVIOUNESS The elements of acts of lasciviousness,
punishable under Article 336 of the RPC, are: (1) That the offender commits any
act of lasciviousness or lewdness; (2) That it is done under any of the following
circumstances: a. By using force or 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 (People vs. Garcia, G.R. No. 200529, September 19, 2012; (People vs. Rellota,
GR No. 168103 , August 03, 2010). The modes of committing acts of lasciviousness
are the same as those of committing rape under the old version.
Undressing the victim (People vs. Sanico, G.R. No. 208469, August 13,
2014) or touching her vagina by the hand of the accused (People vs. Banzuela) or
rubbing his penis on the mons pubis of the pudendum (People vs. Abanilla, G.R.
Nos. 148673-75, October 17, 2003) is merely acts of lasciviousness.
RAPE THROUGH SEXUAL ASSAULT
It is commonly denominated as organ rape or penile rape and must be
attended by any of the circumstances enumerated in subparagraphs (a) to (d) of
paragraph 1. On the other hand, rape under paragraph 2 of Article 266-A is
commonly known as rape by sexual assault. The perpetrator, under any of the
attendant circumstances mentioned in paragraph 1, commits this kind of rape by
inserting his penis into another persons mouth or anal orifice, or any instrument
or object into the genital or anal orifice of another person. It is also called
instrument or object rape, also gender-free rape (People vs. Soria, G.R. No. I
79031, November 14, 2012).
A, a child, testified that X touched her private part and licked it but he
did not insert his finger inside her vagina. What is the crime committed? Answer:
If the tongue, in an act of cunnilingus, touches the outer lip of the vagina, the act
should also be considered as already consummating the crime of rape through
sexual assault, not the crime of acts of lasciviousness. This testimony of the
victim, however, is open to various interpretation, since it cannot be identified
what specific part of the vagina was defiled by X. Thus, X cannot be convicted of
rape through sexual assault. Thus, X is liable for acts of lasciviousness (People
vs. Bonaagua, GR No. 188897, June 06, 2011).
Prior to RA No. 8353, rape through sexual assault is considered as acts
of lasciviousness. However, upon the passage of RA No. 8353, acts, which were as
acts of lasciviousness before, are now treated as rape through sexual assault.
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However, the concept of rape through sexual assault has not acquired some of
the characteristic of acts of lasciviousness.
1. Doctrine of absorption If the accused commits rape and acts of
lasciviousness, the latter is absorbed by the former (People vs. Dy, G.R. Nos.
115236-37, January 29, 2002). But if the accused commits rape through sexual
intercourse and rape through sexual abuse, the doctrine of absorption is not
applicable. The accused will be convicted of separate crimes of rape through
sexual intercourse and rape through sexual abuse.
In People vs. Crisostomo, GR No. 196435, January 29, 2014 Accused
on the same occasion inserted a lit cigarette stick into genital orifice of victim (6
years of age) and her anal orifice, and had sexual intercourse with her. He is
guilt for two counts of rape by sexual assault and rape through sexual
intercourse.
In People vs. Espera, G.R. No. 202868, October 02, 2013 - Justice De
Castro Accused inserted his penis into the mouth of the victim, and thereafter,
rape her. He was convicted of rape through sexual assault by inserting his penis
into the mouth of the victim and rape by sexual intercourse. Doctrine of
absorption was not applied.
2. Variance rule If the crime charged is rape, but the crime proven is
acts of lasciviousness, the accused will be convicted of the latter because of the
variance rule. Acts of lasciviousness is necessarily included in the charge of rape.
If the crime charged is rape through sexual intercourse, but the crime
proven is rape through sexual assault, the accused cannot be convicted of the
latter. The variance rule is not applicable since rape through sexual assault is not
necessarily included in the charge of rape through sexual intercourse. The
elements of these two crimes are materially and substantially different. In such
case, the accused will be convicted of acts of lasciviousness (People vs. Pareja, GR
No. 202122, January 15, 2014, Justice De Castro; People vs. Cuaycong, G.R.
No. 196051, October 02, 2013, Justice De Castro; People vs. CA, G.R. No.
183652, February 25, 2015).
CHILD PROSTITUION AND SEXUAL ABUSE
Sexual abuse under Section 5(b) of R.A. No. 7610 has three elements: (1)
the accused commits an act of sexual intercourse or lascivious conduct; (2) the
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said act is performed with a child exploited in prostitution or subjected to other
sexual abuse; and (3) the child is below 18 years old.
Sexual abuse and lascivious conduct - "Sexual abuse" includes the

employment, use, persuasion, inducement, enticement or coercion of a child to
engage in, or assist another person to engage in, sexual intercourse or lascivious
conduct or the molestation, prostitution, or incest with children;
"Lascivious conduct" means the 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 pubic area of a person
(Section 2(g) and (h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases)
Child exploited in prostitution or subject to other sexual abuse Children, whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse (Section 5 of RA No 7610).
The averments in the information against the accused clearly make out a
charge for sexual abuse under Section 5(b) of RA No. 7610 although the caption
charged him with child abuse under Section 10 (a). However, the character of the
crime is not determined by the caption or preamble of the information nor from
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the specification of the provision of law alleged to have been violated (People vs.
Rayon, G.R. No. 194236, January 30, 2013)
Sexual intercourse or lascivious conduct under the coercion or influence

of any adult exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended partys free will
(Caballo vs. People, GR No. 198732, June 10, 2013).
Accused (23 years of age) repeatedly assured the victim (17 years) of his
love for her, and even, promised to marry her. In addition, he also guaranteed
that she would not get pregnant since he would be using the "withdrawal
method" for safety. These were meant to influence her to set aside her
reservations and eventually give into having sex with accused, with which he
succeeded. The age disparity between an adult and a minor placed accused in a
stronger position over the victim so as to enable him to force his will upon the
latter. An important factor is that the victim refused accused's incipient advances
and in fact, asked him to leave. However, the victim eventually yielded. Thus, it
stands to reason that she was put in a situation deprived of the benefit of clear
thought and choice. The actuations of the accused may be classified as "coercion"
and "influence" within the purview of Section 5 of RA 7610. Hence, accused is
guilty of sexual abuse (Caballo vs. People, GR No. 198732, June 10, 2013).
The Information alleged that accused committed acts of lasciviousness

upon the person of victim, a minor subjected to sexual abuse. Can the accused
be convicted for sexual abuse under Section 5 (b) of RA No. 7610? Answer: No.
Under the law, committing lascivious conduct upon a child under coercion or
influence of an adult or group is sexual abuse. There is no allegation of coercion
or influence, which is an indispensable ingredient of this crime. It does not
contain the essential facts constituting the offense, but a statement of a
conclusion of law. Thus, accused cannot be convicted of sexual abuse under
such Information. The information is void for being violative of the accuseds
constitutionally-guaranteed right to be informed of the nature and cause of the
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accusation against him (People vs. Pangilinan, GR No. 183090, November 14,
2011, ).
Child 12 years of age or above X taking advantage of his ascendancy

committed sexual intercourse with his daughter (15 years of age). What crime
can X be prosecuted for? The child is under the influence of an adult. This is
sexual abuse under Section 5 (b) of RA No. 7610. The act is committed with
psychological intimidation or grave abuse authority. This is rape. Hence, X can be
prosecuted for either (1) sexual abuse under violation of RA No. 7610; or rape
under Article 266-A of RPC. X should not be charged for Rape in relation to
sexual abuse. Existing jurisprudence, however, proscribes charging an accused
for both crimes, rather, he may be charged only for either (Alberto vs. Hon. Court
of Appeals, GR No. 182130, June 19, 2013). X cannot be accused of both crimes
for the same act because his right against double jeopardy will be prejudiced. A
person cannot be subjected twice to criminal liability for a single criminal act.
Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610.
Under Section 48 of RPC, a felony cannot be complexed with an offense penalized
by a special law (People v. Abay, G.R. No. 177752, February 24, 2009; People vs.
Pangilinan, G.R. No. 183090, Nov. 14, 2011, , People v. Dahilig, G.R. No. 187083,
June 13, 2011, People v. Matias, G.R. No. 186469, June 13, 2012 and Alberto
vs. Hon. Court of Appeals, G.R. No. 182130, June 19, 2013).
Child under 12 years Those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victims is under twelve (12) years of age, the
perpetrators shall be prosecuted for rape and for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium
period (Section 5).
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X taking advantage of his ascendancy committed sexual intercourse
with his daughter (9 years of age). What crime can X be prosecuted for? The
child, who is under the influence of an adult, is under 12 years of age. Hence, X
should be prosecuted for statutory rape. Section 5 (b) of RA No. 7610 provides
that when the victim (child subjected to sexual abuse) is under 12 years of age,
the perpetrators shall be prosecuted for rape (People vs. Jalosjos, G.R. Nos.
132875-76, November 16, 2001).
Accused was convicted of rape through sexual assault committed against

a 4 year old child. There is no allegation in the Information that the child is
indulged in lascivious conduct for money, profit, or any other consideration or
due to the coercion or influence of any adult, syndicate or group. Accused was
punished under RPC. In sum, the penalty under RA 7160 was not imposed since
the information failed to allege that the victim is exploited in prostitution or
subjected to sexual abuse (Pielago vs. People, GR No. 202020, March 13, 2013)
Rape through sexual assault and sexual abuse - X forced A, a minor,

in an isolated place and inserted his finger into her vagina. (a) For what crimes
can X be prosecuted if A is 17 years of age at the time?
Answer: X committed rape through sexual assault, or object or
instrument rape under RPC since he inserted object, his finger, into the vaginal
orifice of A by using force. The crime of sexual abuse under Section 5 of RA No.
7160 is also committed since A is indulged in lascivious conduct under coercion
of an adult. However, X can only be prosecuted either for rape or sexual abuse.
(b) Would your answer be the same if the age A is 10 years old?
Answer: Since A, who is a child indulged in lascivious conduct under
coercion of an adult, is under 12 years of age, X should be prosecuted for rape
through sexual assault under RPC. Under Section 5 of RA No. 7610, when the
child subjected to sexual abuse is under twelve (12) years of age, the perpetrators
shall be prosecuted for rape under RPC (People vs. Pangilinan, GR No. 183090,
November 14, 2011, ).
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(c) The penalty for rape through sexual assault under RPC as amended
by RA No. 8353 is prision mayor while the penalty under RA No. 7610 for acts of
lasciviousness committed against a child subjected to sexual abuse, under 12
years of age, is reclusion temporal in its medium period. If the age of A is 10
years old, would you impose the penalty under RA No. 8353 or under RA No.
7610?
Answer: One who commits acts of lasciviousness in relation to RA No.
7610 suffers the more severe penalty of reclusion temporal in its medium period
than the one who commits rape through sexual assault, which is merely
punishable by prision mayor. This is undeniably unfair to the child victim. To be
sure, it was not the intention of the framers of RA No. 8353, to have disallowed
the applicability of RA No. 7610 to sexual abuses committed to children. Despite
the passage of RA No. 8353, R.A. No. 7610 is still good law, which must be
applied when the victims are children (People vs. Chingh, G.R. No. 178323,
March 16, 2011). The penalty under RA No. 7160 should be imposed.
(d) The penalty for qualified rape through sexual assault is reclusion
temporal under RPC as amended by RA No. 8353. If A is the 10 year-old daughter
of X, would you impose penalty penalty under RA No. 8353 or under RA No.
7610?
Answer: Since the crime committed is rape through sexual assault with
qualifying circumstance of minority and relationship, the rationale of unfairness
to the child victim that Chingh case wanted to correct is absent because RPC as
amended by RA No. 8353 already prescribes the penalty of reclusion temporal for
this crime. Hence, there is no more need to apply the penalty prescribed by RA
No. 7610 for sexual abuse (People vs. Bonaagua, G.R. No. 188897, June 6, 2011).
The penalty under RPC should be imposed.
CONSENT OF THE VICTIM - Is consent of the victim a defense in rape,
or child prostitution or sexual abuse? A child exploited in prostitution may seem
to "consent" to what is being done to her or him and may appear not to complain.
However, a child who is "a person below eighteen years of age or those unable to
fully take care of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of their age or mental disability or
condition" is incapable of giving rational consent to any lascivious act or sexual
intercourse (People vs. Dulay, GR No. 193854, September 24, 2012; People vs.
Delantar, G.R. No. 169143, February 2, 2007). Submissiveness of child under
influence or psychological coercion of adult is not likewise a defense in sexual
abuse (People vs. Larin, G.R. No. 128777, October, 7 1998).
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But if the sexual abuse is committed as alleged in the information
against a child, who indulges in sexual intercourse under coercion, the
prosecution must show lack of consent on the part of the victim. Showing that
the child consented to the sexual intercourse will negate coercion as an element
of the crime (see: People vs. Abello, G.R. No. 151952, March 25, 2009).
CHILD PROSTITUTION
The elements of child prostitution are: (1) The accused engages in, promotes,
facilitates or induces child prostitution; (2) The act is done through, but not
limited to, the following means: (a) Acting as a procurer of a child prostitute;
Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means; (c) Taking advantage of influence or
relationship to procure a child as a prostitute; (d) Threatening or using violence
towards a child to engage him as a prostitute; or giving monetary consideration,
goods or other pecuniary benefit to a child with intent to engage such child in
prostitution; (3) The child is exploited or intended to be exploited in prostitution
and (4) The child, whether male or female, is below 18 years of age ( People vs.
Dulay, GR No. 193854, September 24, 2012).
X convinced A to accompany her. When they reached Kubuhan, X
suddenly pulled A inside a room where Y. Y gives money to X and tells her to look
for a younger girl. Thereafter, Y wielded a knife and tied As hands to
the papag and raped her. A asked for X's help when she saw the latter peeping
into the room while she was being raped, but X did not do so. After the rape, X
and Y told A not to tell anyone what had happened or else they would get back at
her. What is the crime committed by X?
Answer: X is not liable as principal by indispensable cooperation. From
the time X convinced A to go with her until X received money from Y are not
indispensable in the crime of rape. Anyone could have accompanied A and
offered the latter's services in exchange for money and A could still have been
raped. Note: Conspiracy was not alleged in the information.
X is liable for child prostitution under Section 5 of RA No. 7610. X
facilitated or induced child prostitution. The act of X in convincing A, who was
12 years old at that time, to go with her and thereafter, offer her for sex to a man
in exchange for money makes her liable for child prostitution (People vs. Dulay,
GR No. 193854, September 24, 2012).
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CHILD ABUSE
Under Section 10 (a) of RA No. 7610, child abuse or cruelty is committed

by any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the childs
development including those covered by Article 59 of PD No. 603 but not covered
by the RPC.
Under Section 3 (b), "child abuse" refers to the maltreatment, whether

habitual or not, of the child which includes any of the following: (1) Psychological
and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being; (3) Unreasonable deprivation of
his basic needs for survival, such as food and shelter; or (4) Failure to
immediately give medical treatment to an injured child resulting in serious
impairment of his growth and development or in his permanent incapacity or
death.
Section 10 (a) punishes not only those enumerated under Article 59 of

PD No. 603, but also four distinct acts, i.e., (a) child abuse, (b) child cruelty, (c)
child exploitation and (d) being responsible for conditions prejudicial to the
child's development. We stress that Section 10 refers to acts of child abuse other
than child prostitution and other sexual abuse under Section 5, attempt to
commit child prostitution under Section 6, child trafficking under Section 7,
attempt to commit child trafficking under Section 8, and obscene publications
and indecent shows under Section 9 (People vs. Rayon, G.R. No. 194236,
January 30, 2013).
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In Bongalon vs. People, G.R. No. 169533, March 20, 2013 - Accused saw
the victim and his companions hurting his minor daughters. Angered, accused
struck minor-victim at the back with his hand and slapped his face. Since the
accused committed the act at the spur of the moment, they are perpetrated
without intent to debase his "intrinsic worth and dignity" as a human being, or to
humiliate or embarrass him. Without such intent, the crime committed is not
child abuse under RA 7610 but merely slight physical injuries.
In Rosaldes vs. People, G.R. No. 173988, October 08, 2014 - Although
the accused, as a schoolteacher, could duly discipline her minor student, her
infliction of the physical injuries on him was unnecessary, violent and excessive.
The boy even fainted from the violence suffered at her hands. She could not
justifiably claim that she acted only for the sake of disciplining him. Her physical
maltreatment of him was precisely prohibited by no less than the Family Code,
which has expressly banned the infliction of corporal punishment by a school
administrator, teacher or individual engaged in child care exercising special
parental authority. Accused was convicted of child abuse under Section 10 (a) of
RA No. 7610.
CRIMES AGAINST PROPERTY
ESTAFA
ESTAFA
THROUGH
MISAPPROPRIATION
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 to the offender (Tabaniag vs. People, GR No. 165411, June 18, 2009;
Magtira vs. People, G.R. No. 170964, March 7, 2012). However, demand is not
necessary if there is evidence of misappropriation.
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Misappropriation as an element of the offense of estafa connotes an act
of using, or disposing of, anothers property as if it were ones own, or of devoting
it to a purpose or use different from that agreed upon. Failure to account upon
demand for funds or property held in trust without offering any satisfactory
explanation for the inability to account is circumstantial evidence of
misappropriation. Demand for the return of the thing delivered in trust and the
failure of the accused to account are similarly circumstantial evidence that the
courts can appreciate (Magtira vs. People, G.R. No. 170964, March 7, 2012).
The essence of estafa under Article 315, par. 1(b) is the appropriation or
conversion of money or property received to the prejudice of the owner. The words
"convert" and "misappropriate" connote an act of using or disposing of another's
property as if it were one's own, or of devoting it to a purpose or use different
from that agreed upon. To misappropriate for one's own use includes not only
conversion to one's personal advantage, but also every attempt to dispose of the
property of another without right (Tabaniag vs. People, GR No. 165411, June 18,
2009).
X received from A jewelry with obligation to return the same if unsold or
deliver the proceeds of sale. In the acknowledgement receipt, X is prohibited from
selling jewelry the jewelry on credits or giving it for safekeeping. X transferred the
jewelry to Y, a subagent. Y failed to return the jewelry. Is X liable for estafa
through conversion?
Answer: No. It must be pointed out that the law on agency in our
jurisdiction allows the appointment by an agent of a substitute or sub-agent in
the absence of an express agreement to the contrary between the agent and the
principal. In the case at bar, the appointment of sub-agent was not expressly
prohibited by A. Neither does it appear that X was verbally forbidden by A from
passing on the jewelry to another person. Thus, it cannot be said that X's act of
entrusting the jewelry to Y is characterized by abuse of confidence because such
an act was not proscribed and is, in fact, legally sanctioned.
Since properties were given by X to Y to achieve the very same end for
which they were delivered to her in the first place, there is no conversion since
the same were not devoted to a purpose or use different from that agreed upon.
Similarly, it cannot be said that X delivered them to Y "without right." Aside from
the fact that no condition or limitation was imposed on the mode or manner by
which X was to effect the sale, it is also consistent with usual practice for the
seller to necessarily part with the valuables in order to find a buyer and allow
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inspection of the items for sale (Tabaniag vs. People, GR No. 165411, June 18,
2009).
Can X be held liable for estafa through negligence? Answer: No. In
estafa, the profit or gain must be obtained by the accused personally, through his
own acts, and his mere negligence in permitting another to take advantage or
benefit from the entrusted chattel cannot constitute estafa (Tabaniag vs. People,
GR No. 165411, June 18, 2009).
Can X be held liable for estafa on the basis of conspiracy? Answer: No. If
an agent acted in conspiracy with subagent in carrying out the actual
misappropriation, then the former would be answerable for the acts of his coconspirators. However, the mere fact that X failed to return the pieces of jewelry
upon demand is not proof of conspiracy, nor is it proof of misappropriation or
conversion (Tabaniag vs. People, GR No. 165411, June 18, 2009).
ESTFA THROUGH ISSUANCE OF BOUNCING CHECK - The essential
elements of estafa through bouncing check: (1) the accused shall defraud another
by issuing or postdating check in payment of an obligation contracted at the time
the check is issued; (2) lack or insufficiency of funds to cover the check; (3) check
was issued or postdated prior to or simultaneously with the parting of money or
property by the payee; and (4) damage to the payee thereof.
It is the criminal fraud or deceit in the issuance of a check that is
punishable, not the non-payment of a debt. Prima facie evidence of deceit exists
by law upon proof that the drawer of the check failed to deposit the amount
necessary to cover his check within three days from receipt of the notice of
dishonor. To be guilty of estafa the accused must have used the check in order to
defraud the complainant. What the law punishes is the fraud or deceit, not the
mere issuance of the worthless check. Accused could not be held guilty
of estafa simply because he had issued the check used to defraud complainant.
The proof of guilt must still clearly show that it had been accused as the drawer
who had defrauded complainant by means of the check. Complainant admitted
that it was another person who received the rice from him and who delivered the
bearer check to him (People vs. Reyes, GR No. 157943, September 04, 2013).
In order to constitute estafa under this statutory provision, the act of postdating
or issuing a check in payment of an obligation must be the efficient cause of the
defraudation. This means that the offender must be able to obtain money or
property from the offended party by reason of the issuance of the check, whether
dated or postdated. In other words, the Prosecution must show that the person to
whom the check was delivered would not have parted with his money or property
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were it not for the issuance of the check by the offender (People vs. Reyes, GR No.
157943, September 04, 2013).
ABUSE OF CONFIDENCE AND DECEIT - The offense of estafa, in
general, is committed either by (a) abuse of confidence or (b) means of deceit. The
acts constituting estafa committed with abuse of confidence are enumerated in
item (1) of Article 315 of the Revised Penal Code, as amended; item (2) of Article
315 enumerates estafa committed by means of deceit. Deceit is not an essential
requisite of estafa by abuse of confidence; the breach of confidence takes the
place of fraud or deceit, which is a usual element in the other estafas (Brokmann
vs. People, G.R. No. 199150, February 6, 2012).
ESTAFA AND OTHER DECEIT - What is the difference between estafa
through false representation and other deceit? The common elements of these
two crimes are: (1) false pretense, fraudulent act or pretense must be made or
executed prior to or simultaneously with the commission of the fraud; and (2) as
a result, the offended party suffered damage or prejudice. It is essential that
such false statement or fraudulent representation constitutes the very cause or
the only motive for the private complainant to part with her property. In estafa
under Article 315, the false representation is committed by using fictitious name,
or falsely pretending to possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions; or by means of other similar deceits.
Following the principle of ejusdem generis, other deceit as a means to commit
estafa must be similar to pretending to possess power, imaginary transaction etc.
If the deceit is not similar to pretending to possess power or imaginary
transaction, the crime committed is other deceit under Article 318. In Guinhawa
vs. People, G.R. No. 162822 August 25, 2005 () - Fraudulent representation of
the seller that the van to be sold is brand new constitutes other deceit under
Article 318. On the other hand, in People vs. Rubaton, C.A., 65 O.G. 5048, issue
of May 19, 1069, false representation that accused has a palay by reason of
which the victim parted his money in consideration of the palay constitutes
estafa under Article 315. Unlike in the Guinhawa case, the transaction in
Rubaton case is imaginary.
Authority to sell - Primelink entered into joint venture agreement with
the owner of a certain land to develop a club. Accused represent to complainant
on October 10, 1996 Primelink will finished the Club by July 1998. Because of
this representation complainant purchased a Club share. However, the Club was
not completed because the owner of the property mortgaged it in violation of their
agreement. The projected was aborted. Accused is not liable for estafa for such
representation. False pretense of power to develop the Club resulting in damage
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to buyer is estafa. However, the law requires that the false pretense be used prior
to or simultaneous with the execution of the fraud, and that is October 10, 1996.
In this case, there is no showing that Primelink possessed no power (capability)
to develop the Club and that accused knew that the Club was a bogus project.
Primelink is a legitimate developer. In fact, it has already released money for the
initial funding of the project. The project was only aborted because of the
problem with the owner of the land, which occurred after October 10, 1996.
However, the false pretense made by accused that Primelink was authorized to
sell membership shares is estafa. False pretense of qualification (to sell securities)
is within the contemplation of the provision on estafa (Lopez vs. People, GR NO.
199294, July 31, 2013)
SUBSEQUENT FRAUD - Is the fraudulent act committed by the accused
subsequent to the time the victim parted his money constitutes estafa? In the
prosecution for this kind of estafa, it is indispensable that the false pretense or
fraudulent act is committed prior to or simultaneously with the commission of
the fraud, it being essential that such false statement or representation
constitutes the very cause or the only motive which induces the offended party to
part with his money. In the absence of such requisite, any subsequent act of the
accused, however fraudulent and suspicious it might appear, cannot serve as
basis for prosecution for estafa (Ambito, vs. People, G. R. No. 127327, Feb. 13,
2009).
REPRESENTATION OF FUTURE PROFIT - When will a representation
of a future profits or income be considered as an actionable fraud or estafa?
Where one states that the future profits or income of an enterprise shall be a
certain sum, but he actually knows that there will be none, or that they will be
substantially less than he represents, the statements constitute an actionable
fraud where the hearer believes him and relies on the statement to his injury. In
the present case, it is abundantly clear that the profits which Elvira and her coconspirators promised to Elizabeth would not be realized (Joson vs. People, G. R.
No. 178836, July 23, 2008).
OTHER DECEIT- Other deceit under Article 316 (a) of RPC is committed
by any person who, knowing that the real property is encumbered, shall dispose
of the same, although such encumbrance be not recorded. The law was taken
from Article 455 of the Spanish Penal Code. However, the words "como libre" in
the Spanish Penal Code, which means "free from encumbrance" do not appear
in the English text of RPC, nonetheless, the same are deemed incorporated in
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the RPC. The gravamen of the crime is the disposition of legally encumbered real
property by the offender under the express representation that there is no
encumbrance thereon. Hence, for one to be criminally liable for estafa under the
law, the accused must make an express representation in the deed of
conveyance that the property sold or disposed of is free from any encumbrance
(Naya vs. Abing, G.R. No. 146770, February 27, 2003, ).
THEFT
QUALIFIED THEFT - The elements of the crime of theft are: (1) that
there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things. Theft
becomes qualified "if committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is a motor vehicle, mail matter or large cattle,
or consists of coconuts taken from the premises of a plantation, fish taken from a
fishpond or fishery, or if property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular accident or civil
disturbance (People vs. Bayon, GR No. 168627, July 02, 2010).
ABUSE OF CONFIDENCE - To warrant the conviction and, hence,
imposition of the penalty for qualified theft, there must be an allegation in the
information and proof that there existed between the offended party and the
accused such high degree of confidence ]or that the stolen goods have been
entrusted to the custody or vigilance of the accused. In other words, where the
accused had never been vested physical access to, or material possession of, the
stolen goods, it may not be said that he or she exploited such access or material
possession thereby committing such grave abuse of confidence in taking the
property (Viray vs. People, GR No. 205180, November 11, 2013).
In Zapanta vs. People, G.R. No. 170863, March 20, 2013 - Accused
betrayed the trust and confidence reposed on him when he, as project manager,
repeatedly took construction materials from the project site, without the
authority and consent of Engr. Marigondon, the owner of the construction
materials. He is liable for qualified theft.
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Taking committed by accused cannot be qualified by the breaking of the
door, as it was not alleged in the Information. Moreover, the same breaking of the
door does not constitute the qualifying element of grave abuse of confidence. The
very fact that accused forced open the main door because he was denied access
to complainants house negates the presence of such confidence in him by private
complainant. Without ready access to the interior of the house where the
properties were taken, it cannot be said that complaint had a firm trust on
accused and that the same trust facilitated taking of the personal properties
(Viray vs. People, GR No. 205180, November 11, 2013).
If the subject matter of a crime against property was money, identity of
the offended party is material and necessary for the proper identification of the
offense charged. Since money is generic and has no earmarks that could properly
identify it, the only way that it (money) could be described and identified in a
complaint is by connecting it to the offended party or the individual who was
robbed as its owner or possessor. Thus, the erroneous designation of the
offended party would also be material, as the subject matter of the offense could
no longer be described with such particularity as to properly identify the offense
charged (Senador vs. People, GR No. 201620, March 06, 2013).
If the subject matter of a crime against property is specific or one
described with such particularity as to properly identify the offense charged,
then an erroneous designation of the offended party is not material and would
not result in the violation of the accuseds constitutional right to be informed of
the nature and cause of the accusation against her. Such error would not result
in the acquittal of the accused (Senador vs. People, GR No. 201620, March 06,
2013).
Accused asserted that the person named as the offended party in the
Information is not the same person who made the demand and filed the
complaint. According to accused, the private complainant in the Information
went by the name Cynthia Jaime, whereas, during trial, the private
complainant turned out to be Rita Jaime. Applying the Uba principle, the case
should be dismissed. Is the argument tenable?
Answer: No. The principle in People vs. Uba, 106 Phil. 332 is not
applicable. In Uba case, the appellant was charged with oral defamation, a crime
against honor, wherein the identity of the person against whom the defamatory
words were directed is a material element. Thus, an erroneous designation of the
person injured is material. On the contrary, in the instant case, accused was
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charged with estafa, a crime against property that does not absolutely require as
indispensable the proper designation of the name of the offended party. Rather,
what is absolutely necessary is the correct identification of the criminal act
charged in the information. Thus, in case of an error in the designation of the
offended party in crimes against property, Rule 110, Sec. 12 of the Rules of Court
mandates the correction of the information, not its dismissal.
In this case, the subject matter of the offense does not refer to money or
any other generic property. Instead, the information specified the subject of the
offense as various kinds of jewelry valued in the total amount of P705,685.00.
Thus, The error in the designation of the offended party in the information is
immaterial and did not violate accuseds constitutional right to be informed of the
nature and cause of the accusation against her.
THEFT THROUGH MISAPPROPRIATION - Misappropriation of personal
property in possession of the accused may constitute estafa or theft depending
upon the nature of possession. If his possession of the property is physical or de
facto, misappropriation thereof is constitutive of theft. If the possession is
juridical or legal, misappropriation thereof is estafa through misappropriation.
1. Agency - A travelling sales agent, who failed to return to his principal
the proceeds of goods he was commissioned or authorized to sell, is liable for
estafa because his possession is juridical. Under the Civil Code Article 1914 of
the Civil Code, an agent can even assert, as against his own principal, an
independent, autonomous, right to retain money or goods received in
consequence of the agency; as when the principal fails to reimburse him for
advances he has made, and indemnify him for damages suffered without his fault
(Guzman v. Court of Appeals, 99 Phil. 703). On the other hand, branch manager
of the company, who misappropriate payments from customers that he collected
and accepted, is liable for qualified theft. Because of this employer-employee
relationship, he cannot be considered an agent of the company and is not covered
by the Civil Code provisions on agency. Money received by an employee in behalf
of his employer is considered to be only in the material possession of the
employee (People vs. Mirto, G.R. No. 193479, October 19, 2011).
In Carganillo vs. People, G.R. No. 182424, September 22, 2014 Accused
received money from complainant for the purpose of buying palay with the
corresponding obligations to (1) deliver the palay to the Palay Buying Station or
(2) return the money in case of failure to purchase palay. Possession is juridical.
Failure to return is estafa.
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In Tria vs. People, G.R. No. 204755, September 17, 2014 - By selling the
jewelry on credit, the petitioner used the property for a purpose other than that
agreed upon. The words convert and misappropriate connote an act of using
or disposing of anothers property as if it were ones own or devoting it to a
purpose or use different from that agreed upon.
In Velayo vs. People, G.R. No. 204025, November 26, 2014 Accused
induced to complainant to entrust to her the funds for the taxes because she
knew someone at the BIR who could help her facilitate the remittance, and even
reduce the amounts due. She received the money for remit the same to the BIR
with full freedom and discretion. Thus, she had juridical possession of money.
The crime committed is estafa,
2. Employer-employee relationship As a rule, the possession of the
employee is only physical possession. Hence, misappropriation of property is
considered as theft. If the property is accessible to the employee, the qualifying
circumstance of abuse of confidence can be appreciated.
In People v. Locson, G.R. No. L-35681, October 18, 1932 - The receiving
teller of a bank, who misappropriated the money received by him for the bank, is
liable for qualified theft. The possession of the teller is the possession of the
bank. Payment by third persons to the teller is payment to the bank itself. The
teller has no independent right or title to retain or possess the same as against
the bank.
In Balerta vs. People, G.R. No. 205144, November 26, 2014 Accused
was handling the funds lent by Care Philippines to his employer as cash
custodian. Over the funds, she had mere physical or material possession, but she
held no independent right or title, which she can set up against employer. Hence,
juridical possession of the funds as an element of the crime of estafa by
misappropriation is absent.
In Benabaye vs. People, G.R. No. 203466, February 25, 2015 - Accused
was merely a collector of loan payments from clients of his employer. Hence, as an
employee of the Bank, specifically, its temporary cash custodian whose tasks are
akin to a bank teller, she had no juridical possession over the missing funds but
only their physical or material possession. Since the accused was charged with
estafa, but the crime proven is theft, the case was dismissed without prejudice,
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Driver of jeepney under boundary arrangement, who did not return the
vehicle to its owner, is liable for carnapping. In People v. Isaac G.R. No. L-7561,
April 30, 1955, the rules prohibits motor vehicle operator from allowing the use
and operation of his equipment by another person under a fixed rental basis. In
the eye of the law the driver was only an employee of the owner rather than a
lessee. For being an employee, his possession of the jeepney is physical, and
misappropriation thereof is qualified theft. In People vs. Bustinera, G. R. No.
148233, June 8, 2004, the Supreme Court affirmed the principle in Isaac case,
but found the accused guilty of carnapping in view of the passage of RA No.
6539(Anti-Carnapping Act).
However, there are instances where the possession of the employee is
considered as juridical.
1. In Aigle vs. People, G.R. No. 174181, June 27, 2012 - A corporate officer
received the property to be utilized in the fabrication of bending machines in trust
from the corporation and he has absolute option on how to use them without the
participation of the corporation. Upon demand, the officer failed to account the
property. Since the corporate officer received the property in trust with absolute
option on how to use them without the participation of the corporation, he
acquired not only physical possession but also juridical possession over the
equipment. He is liable for estafa through misappropriation.
2. In People vs. Go, G.R. No. 191015, August 6, 2014 The President of
the Bank is holding the banks fund in trust or for administration for the banks
benefit. His possession is juridical. Hence, misappropriating the funds by making
fictitious loan is estafa.
3. In Gamboa vs. People, G.R. No. 188052, April 21, 2014 - Accused
employed as Liaison Officer of a pawnshop received money in trust to secure or
renew licenses and permits. His possession is juridical. Hence, misappropriating
the money is estafa.
THEFT OF INTANGIBLE PROPERTY - The term "personal property" in
the Revised Penal Code should be interpreted in the context of the Civil Code.
Consequently, any personal property, tangible or intangible, corporeal or
incorporeal, capable of appropriation can be the object of theft. Business may be
appropriated under Bulk Sales Law. Thus, the business of providing
telecommunication and the telephone service is a personal property (Laurel vs.
Abrogar, G.R. No. 155076, January 13, 2009,).
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The word "take" in the RPC includes controlling the destination of the
property stolen to deprive the owner of the property, such as the use of a meter
tampering, use of a device to fraudulently obtain gas, and the use of a jumper to
divert electricity. Appropriation of forces of nature which are brought under
control by science such as electrical energy can be achieved by tampering with
any apparatus used for generating or measuring such forces of nature,
wrongfully redirecting such forces of nature from such apparatus, or using any
device to fraudulently obtain such forces of nature (Laurel vs. Abrogar).
A "phreaker" is one who engages in the act of manipulating phones and
illegally markets telephone services. Phreaking includes the act of engaging in
International Simple Resale (ISR) or the unauthorized routing and completing of
international long distance calls using lines, cables, antennae, and/or air wave
frequency and connecting these calls directly to the local or domestic exchange
facilities of the country where destined (Laurel vs. Abrogar, G.R. No. 155076,
February 27, 2006 and January 13, 2009).
Can PLDT validly claim that the long distance calls are its properties
stolen by the phreaker? No. International long distance calls take the form of
electrical energy. It cannot be said that such international long distance calls
were personal properties belonging to PLDT since the latter could not have
acquired ownership over such calls. PLDT merely encodes, augments, enhances,
decodes and transmits said calls using its complex communications
infrastructure and facilities. PLDT not being the owner of said telephone calls,
then it could not validly claim that such telephone calls were taken without its
consent (Laurel vs. Abrogar). Telephone calls belong to the persons making the
calls.
Can phreaker be held criminally liable for engaging in ISR involving the
telephone facilities of PLDT? Yes. Phreaker can be held liable for access device
fraud under RA No. 8484 and theft under the Revised Penal Code.PLDTs
business of providing telecommunication or telephone service is personal
property which can be the object of theft. While telephone calls are not properties
belonging to PLDT that can be stolen, it is the use of these communications
facilities without the consent of PLDT that constitutes the crime of theft, which is
the unlawful taking of the telephone services and business.The act of conducting
ISR operations by illegally connecting various equipment or apparatus to PLDTs
telephone system, through which petitioner is able to resell or re-route
international long distance calls using respondent PLDTs facilities constitutes
acts of subtraction (taking)penalized under the said article(Laurel vs. Abrogar).
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THEFT OF BULKY GOODS - Is the ability of the accused to freely
dispose of bulky goods stolen from the owner determinative as to the
consummation of theft? No. In Valenzuela vs. People, G. R. No. 160188, June 21,
2007, the Supreme Court En Banc expressly abandoned the principle in Dio
case. It was held that: The ability of the offender to freely dispose of the property
stolen is not a constitutive element of the crime of theft. Such factor runs
immaterial to the statutory definition of theft, which is the taking, with intent to
gain, of personal property of another without the latters consent. While the Dio
dictum is considerate to the mindset of the offender, the statutory definition of
theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.
Unlawful taking is deemed complete from the moment the offender
gains possession of the thing, even if he has no opportunity to dispose of the
same. Unlawful taking, which is the deprivation of ones personal property, is the
element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all. Thus, theft cannot have a frustrated stage. Theft can
only be attempted or consummated (Valenzuela vs. People, G. R. No. 160188,
June 21, 2007, En Banc).
THEFT OF CHECK - In Miranda vs. People, G.R. No. 176298, January
25, 2012 - Petitioner was entrusted with checks payable to complainant by virtue
of her position as accountant and bookkeeper. She deposited the said checks to
the joint account maintained by complainant, then withdrew a total
of P797,187.85 from said joint account using the pre-signed checks, with her as
the payee. Petitioner argued that full ownership of the thing stolen needed to be
established first before she could be convicted of qualified theft. Held: The subject
of the crime of theft is any personal property belonging to another. Hence, as long
as the property taken does not belong to the accused, who has a valid claim
thereover, it is immaterial whether said offender stole it from the owner, a mere
possessor, or even a thief of the property.
ROBBERY
Robbery with homicide exists when a homicide is committed either by

reason, or on occasion, of the robbery. To sustain a conviction for robbery with
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homicide, the prosecution must prove the following elements: (1) the taking of
personal property is committed with violence or intimidation against persons; (2)
the property belongs to another; (3) the taking is animo lucrandi or with intent to
gain; and (4) on the occasion or by reason of the robbery, the crime of homicide,
as used in the generic sense, was committed.
a. Intent to rob - A conviction needs certainty that the robbery is the
central purpose and objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must precede the taking of human
life, but the killing may occur before, during or after the robbery (People vs.
Ladiana, GR No. 174660, May 30, 2011).
Assuming that robbery was indeed committed, the prosecution must

establish with certitude that the killing was a mere incident to the robbery, the
latter being the perpetrators main purpose and objective. It is not enough to
suppose that the purpose of the author of the homicide was to rob; a mere
presumption of such fact is not sufficient. Stated in a different manner, a
conviction requires certitude that the robbery is the main purpose, and
objective of the malefactor and the killing is merely incidental to the robbery.
The intent to rob must precede the taking of human life but the killing may
occur before, during or after the robbery. What is crucial for a conviction for the
crime of robbery with homicide is for the prosecution to firmly establish the
offenders intent to take personal property before the killing, regardless of the
time when the homicide is actually carried out (People vs. Gatarin, GR NO.
198022, April 07, 2014).
b. Intent to kill and rob - However, the law does not require that the
sole motive of the malefactor is robbery and commits homicide by reason or on
the occasion thereof. In one case, it was ruled that even if the malefactor
intends to kill and rob another, it does not preclude his conviction for the special
complex crime of robbery with homicide. The fact that the intent of the felons
was tempered with a desire also to avenge grievances against the victim killed,
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does not negate the conviction of the accused and punishment for robbery with
homicide (People vs. Daniela, G.R. No. 139230, April 24, 2003).
c. Robbing, killing and raping - A conviction for robbery with homicide

is proper even if the homicide is committed before, during or after the
commission of the robbery. The homicide may be committed by the actor at the
spur of the moment or by mere accident. Even if two or more persons are killed
and a woman is raped and physical injuries are inflicted on another, on the
occasion or by reason of robbery, there is only one special complex crime of
robbery with homicide. What is primordial is the result obtained without
reference or distinction as to the circumstances, cause, modes or persons
intervening in the commission of the crime (People vs. Daniela, G.R. No.
139230, April 24, 2003).
d. One of the robbers is the victim of homicide - It is immaterial that

the death would supervene by mere accident; or that the victim of homicide is
other than the victim of robbery, or that two or more persons are killed or that
aside from the homicide, rape, intentional mutilation, or usurpation of authority,
is committed by reason or on the occasion of the crime. Likewise immaterial is
the fact that the victim of homicide is one of the robbers; the felony would still
be robbery with homicide. Once a homicide is committed by or on the occasion of
the robbery, the felony committed is robbery with homicide. All the felonies
committed by reason of or on the occasion of the robbery are integrated into one
and indivisible felony of robbery with homicide. The word homicide is used in
its generic sense. Homicide, thus, includes murder, parricide, and infanticide
(People vs. Laog, G.R. No. 178321, October 5, 2011; (People vs. Ebet, GR No.
181635, November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009;
People vs. Diu, GR No. 201449, April 03, 2013).
In People vs. Concepcion, G.R. No. 200922, July 18, 2012 - Accused
snatched victims shoulder bag which was hanging on her left shoulder. No
violence, intimidation or force was used in snatching her shoulder bag. Given the
facts, the snatching of shoulder bag constitutes the crime of theft, not robbery.
Accuseds co-conspirator, who was driving the motorcycle, died because he lost
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control of the motorcycle and crashed in front of a taxi. Since accused as
passenger in the motorcycle, did not perform or execute any act that caused the
death of his companion, he cannot be held liable for homicide.
e. Homicide through reckless imprudence - In robbery with homicide,
the original criminal design of the malefactor is to commit robbery, with homicide
perpetrated on the occasion or by reason of the robbery. The intent to commit
robbery must precede the taking of human life. The homicide may take place
before, during or after the robbery. It is only the result obtained, without
reference or distinction as to the circumstances, causes or modes or persons
intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless
imprudence or simple negligence. The constitutive elements of the crime, namely,
robbery and homicide, must be consummated (People vs. Ebet, GR No. 181635,
November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009; People
vs. Diu, GR No. 201449, April 03, 2013).
f. Failure to present the stolen property - Intent to rob is an internal
act but may be inferred from proof of violent unlawful taking of personal property.
When the fact of taking has been established beyond reasonable doubt,
conviction of the accused is justified even if the property subject of the robbery is
not presented in court. After all, the property stolen may have been abandoned or
thrown away and destroyed by the robber or recovered by the owner. The
prosecution is not burdened to prove the actual value of the property stolen or
amount stolen from the victim. Whether the robber knew the actual amount in
the possession of the victim is of no moment because the motive for robbery can
exist regardless of the exact amount or value involved (People vs. Ebet, GR No.
181635, November 15, 2010; People vs. De Leon, GR No. 179943, June 26, 2009;
People vs. Diu, GR No. 201449, April 03, 2013).
g. Direct connection between robbery and homicide - Essential for
conviction of robbery with homicide is proof of a direct relation, an intimate
connection between the robbery and the killing, whether the latter be prior or
subsequent to the former or whether both crimes were committed at the same
time (People vs. Buyagan, G.R. No. 187733, February 8, 2012). Homicide is said
to have been committed by reason or on the occasion of robbery if, for instance, it
was committed to (a) facilitate the robbery or the escape of the culprit; (b) to
preserve the possession by the culprit of the loot; (c) to prevent discovery of the
commission of the robbery; or, (d) to eliminate witnesses in the commission of the
crime. As long as there is a nexus between the robbery and the homicide, the
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latter crime may be committed in a place other than the situs of the robbery
(People vs. Ebet, GR No. 181635, November 15, 2010,).
h. Claim of ownership - The 10th floor unit of a building is owned by a
corporation and served as the family residence prior to the death of the parents
of X and A. The unit, including the personal properties inside, is the subject of
estate proceedings pending in another court and is, therefore, involved in the
disputed claims among the siblings. X armed with a Board Resolution
authorizing him to break open the door lock system of 10 th floor unit of a building
and to install a new door lock system went up to the subject unit to implement
said resolution. According to A, X brought out from the unit her personal
belongings. Is X liable for robbery?
Answer: No. X took property openly and avowedly under that claim of
ownership. The fact that these properties were taken under claim of ownership
negates the element of intent to gain. One who takes the property openly and
avowedly under claim of title offered in good faith is not guilty of robbery even
though the claim of ownership is untenable. X should not be held liable for the
alleged unlawful act absent a felonious intent. Actus non facit reum, nisi mens sit
rea. A crime is not committed if the mind of the person performing the act
complained of is innocent (Sy vs. Gutierrez, GR No. 171579, November 14,
2012).
i. Robbery with rape - To be convicted of robbery with rape, the
following elements must concur: (1) the taking of personal property is committed
with violence or intimidation against persons; (2) the property taken belongs to
another; (3) the taking is characterized by intent to gain or animus lucrandi; and
(4) the robbery is accompanied by rape (People vs. Evangelio, GR No. 181902,
August 31, 2011).
The following circumstantial evidence presented by the prosecution,
when analyzed and taken together, lead to the inescapable conclusion that the
accused raped AAA: first, while two of the robbers were stealing, appellant and
one of the robbers brought AAA inside the comfort room; second, inside the
comfort room, AAA was stripped off her clothes and her panty; third, when AAA
resisted and struggled, appellant and the other robber banged her head against
the wall, causing her to lose consciousness; fourth, when she regained
consciousness, the culprits were already gone and she saw her shorts and panty
strewn at her side; and fifth, she suffered pain in her knees, head, stomach and,
most of all, in her vagina which was then bleeding (People vs. Evangelio, GR No.
181902, August 31, 2011).
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UNINHABITED HOUSE - In Marquez vs. People, G.R. No. 181138,
December 3, 2012 - The records show that the store alleged to have been robbed
by petitioners is not an inhabited house, public building or building dedicated to
religious worship and their dependencies under Article 299 and as defined under
Article 301.
From Valderosas testimony, it can be deduced that the
establishment allegedly robbed was a store not used as a dwelling. In fact, after
the robbery took place, there was a need to inform Valderosa of the same as she
was obviously not residing in the store. If the store was not actually occupied at
the time of the robbery and was not used as a dwelling, since the owner lived in a
separate house, the robbery committed therein is punished under Article 302.
Neither was the place where the store is located owned by the government. It
was actually just a stall rented by Valderosa from a private person. Hence, the
applicable provision in this case is Article 302 and not Article 299 of the RPC.
CARNAPPING - Under the Anti-Carnapping Act, the penalty of reclusion

perpetua to death shall be imposed when the owner or driver of the vehicle is
killed in the course of the commission of the carnapping or on the occasion
thereof. To prove the special complex crime of carnapping with homicide, there
must be proof not only of the essential elements of carnapping, but also that it
was the original criminal design of the culprit and the killing was perpetrated "in
the course of the commission of the carnapping or on the occasion thereof"
(People vs. Nocum et. Al., G.R. No. 179041, April 1, 2013).
Under RA 9346, persons convicted of offenses punishable with reclusion

perpetua or whose sentences will be reduced to reclusion perpetua by reason of
this law, shall not be eligible for parole.
ARSON
Is it necessary for the prosecution to prove wrongful intent to burn on
the part of the accused to establish arson? No. Although intent may be an
ingredient of the crime of arson, it may be inferred from the acts of the
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accused. There is a presumption that one intends the natural consequences of
his act; and when it is shown that one has deliberately set fire to a building, the
prosecution is not bound to produce further evidence of his wrongful intent. If
there is an eyewitness to the crime of arson, he can give in detail the acts of the
accused. When this is done the only substantial issue is the credibility of the
witness (People vs. De Leon, G. R. No. 180762, March 4, 2009).
What is the crime committed if the offender burned the building and
there is person who died? In the classification of crimes committed by fire
involving the killing of the victim, attention must be given to the intention of the
author. Main objective of the offender determines the kind of crime committed.
(a) Intent to burn If the main objective is the burning of the building or edifice,
but death results by reason or on the occasion of arson, the crime is
simply arson (qualified by dead of the victim), and the resulting homicide is
absorbed. (b) Intent to kill If the main objective is to kill a particular person
who may be in a building or edifice, when fire is resorted to as the means to
accomplish such goal the crime committed is murder only. When the Code
declares that killing committed by means of fire is murder, it intends that fire
should be purposely adopted as a means to that end. There can be no murder
without a design to take life. Murder qualified by means of fire absorbs the crime
of arson since the latter is an inherent means to commit the former (People vs.
Baluntong, G.R. No. 182061, March 15, 2010; People vs. Cedenio, G.R. No.
93485, June 27, 1994) (c) Intent to conceal If the objective is to kill, and in fact
the offender has already done so, and arson is resorted to as a means to cover up
the killing, the offender may be convicted of two separate crimes of either
homicide or murder, and arson.
Article 320 of RPC contemplates the malicious burning of structures,
both public and private, hotels, buildings, edifices, trains, vessels, aircraft,
factories and other military, government or commercial establishments by any
person or group of persons. Section 3 of PD No. 1613, on the other hand,
currently governs simple arson. P.D. No. 1613 contemplates the malicious
burning of public and private structures, regardless of size, not included in
Article 320 of the RPC, as amended by Republic Act No. 7659. This law punishes
simple arson with a lesser penalty because the acts that constitute it have a
lesser degree of perversity and viciousness. Simple arson contemplates crimes
with less significant social, economic, political, and national security implications
than destructive arson (People vs. Macabando, GR No. 188708, July 31, 2013).
Burning of inhabited house or dwelling is simple arson under Section 3 of P.D.
No. 1613, and not destructive arson under RPC. Burning personal property is
also simple arson under Section 1 of PD No. 1613.
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The nature of Destructive Arson is distinguished from Simple Arson by
the degree of perversity or viciousness of the criminal offender. The acts
committed under Art. 320 of The Revised Penal Code constituting Destructive
Arson are characterized as heinous crimes "for being grievous, odious and
hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and
ordered society." On the other hand, acts committed under PD 1613 constituting
Simple Arson are crimes with a lesser degree of perversity and viciousness that
the law punishes with a lesser penalty. In other words, Simple Arson
contemplates crimes with less significant social, economic, political and national
security implications than Destructive Arson (People vs. Macabando, GR No.
188708, July 31, 2013).
The Information alleged that the appellant set fire to his own house, and
that the fire spread to other inhabited houses. These allegations were established
by evidence. The accused testified that his burnt two-story house was used as
a residence. That the appellants act affected many families will not convert the
crime to destructive arson, since the appellants act does not appear to be
heinous or represents a greater degree of perversity and viciousness when
compared to those acts punished under Article 320 of the RPC. The established
evidence only showed that the appellant intended to burn his own house, but the
conflagration spread to the neighboring houses (People vs. Macabando, GR No.
188708, July 31, 2013). Note: Setting fire to his own property under
circumstances which expose to danger the life or property of another is arson
under Section 1 of PD No. 1613.
CRIMES AGAINST LIBERTY AND SECURITY
KIDNAPPING
As for the crime of kidnapping, the following elements, as provided in
Article 267 of the Revised Penal Code, must be proven: (a) a person has been
deprived of his liberty, (b) the offender is a private individual, and (c) the
detention is unlawful. (People vs. Jovel, G.R. No. 189820. October 10, 2012).
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The crime has the following elements: (1) the offender is a private
individual; (2) he kidnaps or detains another, or in any manner deprives the
latter of his liberty; (3) the act of detention or kidnapping is illegal; and (4) in the
commission of the offense, any of the following circumstances is present: (a) the
kidnapping or detention lasts for more than three days; (b) it is committed by
simulating public authority; (c) any serious physical injuries are inflicted upon
the person kidnapped or detained or threats to kill him are made; or (d) the
person kidnapped or detained is a minor, female or a public official (People vs.
Jacalney, GR No. 168552, October 03, 2011).
The essence of the crime of kidnapping is the actual deprivation of the
victim's liberty, coupled with the intent of the accused to effect it. It includes not
only the imprisonment of a person but also the deprivation of his liberty in
whatever form and for whatever length of time. It involves a situation where the
victim cannot go out of the place of confinement or detention, or is restricted or
impeded in his liberty to move (People vs. Jacalney, GR No. 168552, October 03,
2011).
X dragged A, a minor, to his house after the latter refused to go with him.
Upon reaching the house, X tied her hands. When A pleaded that she be allowed
to go home, he refused. After more or less one hour, X released A and instructed
her on how she could go home. What is the crime committed? Answer: The crime
committed is kidnapping and serious illegal detention. When X tied the hands of
A, the former's intention to deprive the latter of her liberty has been clearly
shown. For there to be kidnapping, it is enough that the victim is restrained from
going home. Because of her tender age, and because she did not know her way
back home, she was then and there deprived of her liberty. This is irrespective of
the length of time that she stayed in such a situation. If the victim is a minor, the
duration of his detention is immaterial (People vs. Jacalney, GR No. 168552,
October 03, 2011).
X seized A, 9 years of age, him by twisting his right arm, pointed a knife
at him. X brought A to a in a place strange and unfamiliar to him. Because of his
tender age, he did not know the way back home. X called victims mother to
inform her that the child is in his custody and of threatening her that she will no
longer see her son if she failed to show his wife to him. In a case for kidnapping
and serious illegal detention, X argued s free to go home if he wanted to because
he was not confined, detained or deprived of his liberty. Is the argument tenable?
Answer: No. For kidnapping to exist, it is not necessary that the offender kept the
victim in an enclosure or treated him harshly. Where the victim in a kidnapping
case is a minor, it becomes even more irrelevant whether the offender forcibly
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restrained the victim. Leaving a child in a place from which he did not know the
way home, even if he had the freedom to roam around the place of detention,
would still amount to deprivation of liberty. For under such a situation, the
childs freedom remains at the mercy and control of the abductor (People vs.
Baluya, GR No. 181822, April 13, 2011, ).
In this case, victim, a minor, was not locked up. However, she was seized
and taken from her house through force and dragged to the mountain. Since
then, she was restrained of her liberty by and kept under the control of accused.
She was prevented from going back home for a period of about six days. Accused
is guilty of kidnapping and illegally detaining victim even if she was not lock-up.
Under the Spanish Penal Code, the modes of committing illegal detention is
"Secuestrare" and "Encerrare". "Secuestrare" means sequestration. To sequester is
to separate for a special purpose, remove or set apart, withdraw from
circulation. It also means to lock-up or imprison. "Encerrare" is a broader concept
than secuestrare. Encerrare includes not only the imprisonment of a person but
also the deprivation of his liberty in whatever form and for whatever length of
time (People vs. Baldago, G.R. No. 128106-07, January 24, 2003).
THREATS
What is the difference among grave threats, light threats and other light
threats? In grave threats, the wrong threatened amounts to a crime which may or
may not be accompanied by a condition. In light threats, the wrong threatened
does not amount to a crime but is always accompanied by a condition. In other
light threats, the wrong threatened does not amount to a crime and there is no
condition (Calauag vs. People, (G. R. No. 171511, March 4, 2009).
BLACKMAIL
Blackmailing may constitute: (1) Light threats under Article 283; (2)
Threatening to publish, or offering to prevent the publication of, a libel for
compensation under Article 356; and (3) robbery with intimidation against
person. Example: X, DENR officer, threatened to confiscate the hot logs from
complainant and prosecute it for illegal logging unless the latter will give her
P100,000. Complainant gave X the amount demanded. The crime committed is
robbery with intimidation (extortion). In robbery with intimidation of persons,
the intimidation consists in causing or creating fear in the mind of a person or in
bringing in a sense of mental distress in view of a risk or evil that may be
impending, real or imagined. Such fear of injury to person or property must
continue to operate in the mind of the victim at the time of the delivery of the
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money. In this case, the P100,000.00 "grease money" was taken by X from
complainant through intimidation. By using her position as the DENR officer, X
succeeded in coercing the complainants to choose between two alternatives: to
part with their money, or suffer the burden and humiliation of prosecution and
confiscation of the logs (Sazon vs. Sandiganbayan, G.R. No. 150873, February
10, 2009).
CRIMES AGAINST CIVIL STATUS
A priest, who performed a marriage ceremony despite knowledge that the
couple had no marriage license, is liable for illegal marriage. The non-filing of a
criminal complaint against the couple does not negate criminal liability of the
petitioner. Article 352 does not make this an element of the crime.
Bigamy
Even if the first marriage is null and avoid because of psychological
incapacity of either or both parties (Wiegel v. Sempio-Diy, 143 SCRA 499) or the
absence of a marriage license or of an affidavit of cohabitation (Lasanas vs.
People, G.R. No. 159031, June 23, 2014), contracting a second marriage
constitutes the crime of bigamy unless a judicial declaration of the nullity of the
first marriage has been secured beforehand.
However, the principle that one who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of bigamy is not
applicable where the parties merely signed the marriage contract without marriage
ceremony performed by a duly authorized solemnizing officer. The mere private
act of signing a marriage contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Such act alone, without more,
cannot be deemed to constitute an ostensibly valid marriage for which one might
be held liable for bigamy unless he first secures a judicial declaration of nullity
before he contracts a subsequent marriage. The law abhors an injustice and the
Court is mandated to liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the presumption of innocence to ensure
that justice is done (Morigo vs. People, G.R. No. 145226, February 06, 2004).
X married A, but during the subsistence of such marriage X married B.
A filed a complaint for bigamy against X. X filed a petition for the annulment of
his first marriage with A on the ground of psychological incapacity which was
granted. X moved for the quashal of the information and dismissal of the
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criminal complaint alleging that his first marriage had already been declared
void ab initio. (a) Is the argument tenable?
No. Article 40 of the Family Code has settled once and for all the
conflicting jurisprudence on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action or a ground for
defense. It has been held in a number of cases that a judicial declaration of
nullity is required before a valid subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage, reprehensible and immoral.
What makes a person criminally liable for bigamy is when he contracts a
second or subsequent marriage during the subsistence of a valid
marriage. Parties to the marriage should not be permitted to judge for themselves
its nullity, for the same must be submitted to the judgment of competent courts
and only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration, the presumption is that the marriage
exists. Therefore, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being prosecuted
for bigamy. Otherwise, a person who commits bigamy can simply evade
prosecution by immediately filing a petition for the declaration of nullity of his
earlier marriage and hope that a favorable decision is rendered therein before
anyone institutes a complaint against him (People vs. Odtuhan, GR No. 191566,
July 17, 2013).
(b) Would your answer be the same if the declaration of nullity of the first
marriage was obtained before the filing of the complaint for bigamy against X?
Yes. Settled is the rule that criminal culpability attaches to the offender
upon the commission of the offense and from that instant, liability appends to
him until extinguished as provided by law and that the time of filing of the
criminal complaint or information is material only for determining prescription
(People vs. Odtuhan, GR No. 191566, July 17, 2013, ).
(c) Would your answer be the same if the first marriage was contracted
prior to the Family Code?
Yes. Article 40, which is a rule of procedure, should be applied
retroactively because Article 256 of the Family Code itself provides that said
"Code shall have retroactive effect insofar as it does not prejudice or impair vested
or acquired rights." The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive application to pending actions.
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The retroactive application of procedural laws is not violative of any right of a
person who may feel that he is adversely affected. The reason is that as a general
rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs.
People, GR No. 164435, June 29, 2010, ).
(d) Would your answer be the same if the second marriage was the one
declared null and void?
Yes. It is a settled rule that the criminal culpability attaches to the
offender upon the commission of the offense, and from that instant, liability
appends to him until extinguished as provided by law. It is clear then that the
crime of bigamy was committed by X from the time he contracted the second
marriage with B. Thus, the finality of the judicial declaration of nullity of Xs
second marriage does not impede the filing of a criminal charge for bigamy
against him (Walter vs. People, GR No. 183805, July 03, 2013, ).
(e) Would your answer be the same if both the first marriage and the
second marriage are declared null and void?
Yes. The subsequent judicial declaration of nullity of Xs two marriages
cannot be considered a valid defense in the crime of bigamy. The moment X
contracted a second marriage without the previous one having been judicially
declared null and void, the crime of bigamy was already consummated because
at the time of the celebration of the second marriage, first marriage, which had
not yet been declared null and void by a court of competent jurisdiction, was
deemed valid and subsisting. Neither would a judicial declaration of the nullity of
second marriage make any difference. Since a marriage contracted during the
subsistence of a valid marriage is automatically void, the nullity of this second
marriage is not per se an argument for the avoidance of criminal liability for
bigamy. What the law penalizes is the mere act of contracting a second or
subsequent marriage during the subsistence of a valid marriage" (Jarillo vs.
People, GR No. 164435, September 29, 2009)
Illegal marriage
In Ronulo vs. People, G.R. No. 182438, July 02, 2014 - Article 352 of the
RPC, as amended, penalizes an authorized solemnizing officer who shall perform
or authorize any illegal marriage ceremony. The elements of this crime are as
follows: (1) authority of the solemnizing officer; and (2) his performance of an
illegal marriage ceremony. The law sets the minimum requirements constituting a
marriage ceremony: first, there should be the personal appearance of the
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contracting parties before a solemnizing officer; and second, their declaration in

the presence of not less than two witnesses that they take each other as husband
and wife. For purposes of determining if a marriage ceremony has been
conducted, a marriage certificate is not included in the requirements.
CRIMES AGAINST HONOR
DEFAMATION
Is truthful defamatory imputation against private individual and
government employee a defense in libel? Proof of truth of defamatory imputation
against private individual is a defense if it is published with good motives and for
justifiable ends. Proof of the truth of defamatory imputation against government
employees is a defense: (1) if it is published with good motives and for justifiable
ends; or (2) if the act or omission imputed constitutes a crime; or (3) if the
imputation not constituting a crime is related to the discharge of his duties.
Truthfulness of imputation of a crime or a function-related defamatory act
against a public officer is a defense even though he does not prove that the
imputation was published with good motives and for justifiable ends (Vasquez vs.
CA, G.R. No. 118971, September 15, 1999).
MALICE - What are the different rules on presumption involving malice
as an element of libel or oral defamation? 1. Disputable presumption of malice Every defamatory imputation is presumed to be malicious. Presumed malice is
also known as malice in law. However, the following circumstances negate the
presumption of malice in a defamatory statement: (1) if there is a good intention
and justifiable motive for making it is shown; (2) if the defamatory statements is a
qualified privilege communication such (a) A private communication made by any
person to another in the performance of any legal, moral or social duty; and (b) A
fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions
(Article 354 of RPC). The enumeration under Article 354 is not an exclusive list of
qualifiedly privileged communications since fair commentaries on matters of
public interest are likewise privileged (Borjal vs. CA, G.R. No. 126466 January 14,
1999). 2. Conclusive presumption of lack of malice If the defamatory statements
are an absolute privilege communication, lack of malice is conclusively
presumed. Thus, the person making defamatory imputation is not answerable for
libel. Absolutely privileged communications are those which are not actionable
even if the author has acted in bad faith such as speech or debate in the
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Congress or in any Committee thereof (Philippine Journalists, Inc vs. Thoenen,
G.R. No. 143372, December 13, 2005) or words uttered or published in the
course of judicial proceedings, provided the statements are pertinent or relevant
to the case (Malit vs. People, G.R. No. L-58681, May 31, 1982).
FAIR COMMENT DOCTRINE - What is the doctrine of fair comment?
Under this doctrine, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or slander. The
doctrine of fair comment means that while in general every defamatory and
public imputation is deemed false, and every false imputation is deemed
malicious, nevertheless, when the defamatory imputation is directed against a
public person in his public capacity, it is not necessarily actionable. In order
that such defamatory imputation to a public official may be actionable, it must
either be a false allegation of fact or a comment based on a false supposition. If
the comment is an expression of opinion, based on established facts, then it is
immaterial that the opinion happens to be mistaken, as long as it might
reasonably be inferred from the facts (Borjal vs. CA, G.R. No. 126466, January
14, 1999).
What is the difference between fair and true report, and fair comment as
a privilege communications? (1) In fair and true report, the accused makes a
report on the function-related acts performed by public officers without any
comments or remarks. On the other hand, in fair comment, the accused is making
a comment on the function-related acts performed by public officers. (2) In fair
and true report, the prosecution must prove actual malice i.e., such as the report
was made in bad faith. In fair comment, the prosecution must actual malice i.e.,
comment was made with knowledge that comment was false or with reckless
disregard of whether it was false or not (Sulivan vs. Newyork Times doctrine;
Guingguing vs. the Honorable Court of Appeals, G.R. No. 128959, September 30,
2005) Only false statements made with the high degree of awareness of their
probable falsity demanded by New York Times may be the subject of either civil or
criminal sanctions (Flor vs. People, G.R. No. 139987, March 31, 2005). (3) In fair
and true report, the report involving defamatory statement must be true. In fair
comment, the defamatory imputation in the commentary is not true but the
accused has no knowledge that it is false and has not recklessly disregarded to
know whether it is false or not.
Is error or misstatement in commentaries on function related acts of
public officer actionable in a news articles for being libelous? Even assuming that
the contents of the articles are false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements are inevitable in any
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scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of language.
There must be some room for misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance can they courageously and
effectively function as critical agencies in our democracy (Borjal vs. CA, G.R. No.
126466, January 14, 1999).
Brillante implicated Jejomar Binay, then the OIC Mayor of Makati, and
Dr. Nemesio Prudente, then President of the Polytechnic University of the
Philippines in a planned assassination of Syjuco as well as election-related
terrorism. Is the doctrine of fair comment applicable in this libel case? The New
York Times principle is not applicable since the utterances are unrelated to a
public officers performance of his duties (Brillante vs. CA, G.R. Nos. 118757 &
121571, October 19, 2004). Obviously, commission of murder and terrorism is
not related to the performance of their duties as public officers.
Cristy Fermin imputed to Annabelle Rama Gutierrez an actress the crime
of malversation and of vices or defects for being fugitives from the law and of
being a wastrel. Is the doctrine of fair comment applicable in this libel case? No.
It is unrelated to public figures work (Fermin vs. People, G.R. No. 157643, March
28, 2008). The defamatory imputation has nothing to do to with works of
Annabelle as a as an actress.
In his series of articles of Erwin Tulfo, he targeted one Atty. "Ding" So of
the Bureau of Customs as being involved in criminal activities, and was using his
public position for personal gain. He went even further than that, and called Atty.
So an embarrassment to his religion, saying "ikawnayataangpinakagago at
magnanakawsamiyembronito." He accused Atty. So of stealing from the
government with his alleged corrupt activities. And when Atty. So filed a libel suit
against him, Tulfo wrote another article, challenging Atty. So, saying,
"Nagalititongtarantadongsi Atty. So dahilbinabantayankosiya at in-expose
angkagaguhanniyasa [Bureau of Customs]." In his testimony, Tulfo admitted that
he did not personally know Atty. So, and had neither met nor known him prior to
the publication of the subject articles. He also admitted that he did not conduct a
more in-depth research of his allegations before he published them, and relied
only on his source at the Bureau of Customs. Is Tulfo liable for Libel? Yes.
Journalists bear the burden of writing responsibly when practicing their
profession, even when writing about public figures or matters of public interest.
The report made by Tulfo cannot be considered as "fair" and "true" since he did
not do research before making his allegations, and it has been shown that these
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allegations were baseless. The articles are not "fair and true reports," but merely
wild accusations. He had written and published the subject articles with reckless
disregard of whether the same were false or not (Erwin Tulfo vs. People, G.R. No.
161032, September 16, 2008).
The article in Bander newspaper details the sexual activities of a certain
Miss S and one Philip Henson who had a romantic liaison. The words used in
the article convey that Miss S is a sexual libertine with unusually wanton
proclivities in the bedroom. Is the article defamatory and malicious? Is the writer
liable for libel? Yes. In a society such as ours, where modesty is still highly
prized among young ladies, the behavior attributed to Miss S by the article in
question had besmirched both her character and reputation. Since on its face the
article is defamatory, there is a presumption that the offender acted with malice.
However, the writer cannot be held liable for libel. The libelous article, while
referring to "Miss S," does not give a sufficient description or other indications
which identify "Miss S." In short, the article fails to show that "Miss S" and
complainant are one and the same person. Although the article is libelous,
complainant could not have been the person defamed therein (Diaz v. People,
G.R. No. 159787, May 25, 2007).
INTERNET LIBEL - Under Article 355, a libel committed by means of
writing, printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar means. Is the internet used
to post a malicious defamatory imputation through facebook within the
contemplation of the phrase any similar means in Article 355? Yes. Writing,
printing, lithography, engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition has a common characteristic, and that is,
their permanent nature as a means of publication, and this explains the graver
penalty for libel than that prescribed for oral defamation (People vs. Santiago,
G.R. No. L-17663, May 30, 1962). Hence, the phrase any similar means should
be understood in the lights of the said common characteristic of the means to
commit libel. Since nature of internet as a means of publication is likewise
permanent, it should be considered as a means to commit libel.
What is the venue for internet libel committed? As a general rule, the
venue of libel cases where the complainant is a private individual is limited to
only either of two places, namely: 1) where the complainant actually resides at
the time of the commission of the offense; or 2) where the alleged defamatory
article was printed and first published (Article 360 of RPC).However, the place
where libelous article was accessed by the offended party in the internet is not
equivalent to the place where the libelous article is printed and first published.
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To rule otherwise is to allow the evil sought to be prevented by the amendment to
Article 360, and that was the indiscriminate laying of the venue in libel cases in
distant, isolated or far-flung areas, to harass an accused. At any rate, Article 360
still allow offended party to file the civil or criminal complaint for internet libel in
their respective places of residence (Bonifacio vs. RTC, Makati, Branch 149, G.R.
No. 184800, May 5, 2010).
Libel is not a constitutionally protected speech and that the government
has an obligation to protect private individuals from defamation. Indeed, cyber
libel is actually not a new crime since Article 353, in relation to Article 355 of the
penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms
that online defamation constitutes similar means for committing libel (Disini vs.
Secretary of Justice, G.R. No. 20335, February 18. 2014).
VENUE - The rules on venue for libel in Article 360 of RPC are as follows:
(1) Whether the offended party is a public official or a private person, the
criminal action may be filed in the Regional Trial Court of the province or city
where the libelous article is printed and first published; (2) If the offended party
is a private individual, the criminal action may also be filed in the Regional Trial
Court of the province where he actually resided at the time of the commission of
the offense. (3) If the offended party is a public officer whose office is in Manila at
the time of the commission of the offense, the action may be filed in the Regional
Trial Court of Manila. (4) If the offended party is a public officer holding office
outside of Manila, the action may be filed in the Regional Trial Court of the
province or city where he held office at the time of the commission of the offense
(Foz, Jr., vs. People, GR No. 167764, October 09, 2009, ).
Information alleged that the libelous writings were published in Panay
News, a daily publication with a considerable circulation in the City of Iloilo and
that complainant (private individual) is a physician in Iloilo. Is the Information
quashable for improper venue?
Answer: Yes. The allegations in the Information that "Panay News, a daily
publication with a considerable circulation in the City of Iloilo" only showed that
Iloilo was the place where Panay News was in considerable circulation but did
not establish that the said publication was printed and first published in Iloilo
City.
The Information failed to allege the residence of complainant. While the
Information alleges that complainant is a physician in Iloilo City, such allegation
did not clearly and positively indicate that he was actually residing in Iloilo City
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at the time of the commission of the offense. It is possible that complainant was
actually residing in another place (Foz, Jr., vs. People, GR No. 167764, October
09, 2009).
RECKLESS IMPRUDENCE
Following a vehicular collision in August 2004, Jason Ivler was charged
with reckless imprudence resulting in slight physical injuries for injuries
sustained by Maria and reckless imprudence resulting in homicide and damage
to property for the death of Nestor and damage to their vehicle. Court convicted
Jason for the first charged. Should the information for the second charge be
quashed on the basis of the rule on double jeopardy? Reckless imprudence under
Article 365 is a single quasi-offense by itself and not merely a means to commit
other crimes; hence conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of its various
consequences. The essence of the quasi offense of criminal negligence under
article 365 of the Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a felony. The law
penalizes thus the negligent or careless act, not the result thereof. The gravity of
the consequence is only taken into account to determine the penalty. It does not
qualify the substance of the offense. And, as the careless act is single, whether
the injurious result should affect one person or several persons, the offense
criminal negligence remains one and the same, and cannot be split into different
crimes and prosecutions (Ivler vs. Modesto-San Pedro, G.R. No. 172716,
November 17, 2010). Note: The principle in Ivler case has abandoned the
principle (Ortega view) that culpa is just a modality by which a felony may be
committed.
In People vs. Dumayag, G.R. No. 172778, 26 November 2012 - The
evidence indubitably shows that before the collision, the passenger bus was
cruising along its rightful lane when the tricycle coming from the opposite
direction suddenly swerved and encroached on its lane. The accident would not
have happened had Genayas, the tricycle driver, stayed on his lane and did not
recklessly try to overtake another vehicle while approaching a blind curve.
Section 37 of R.A. No. 4136 mandates all motorists to drive and operate vehicles
on the right side of the road or highway. When overtaking another, it should be
made only if the highway is clearly visible and is free from oncoming vehicle.
Overtaking while approaching a curve in the highway, where the drivers view is
obstructed, is not allowed. Corollarily, drivers of automobiles, when overtaking
another vehicle, are charged with a high degree of care and diligence to avoid
collision. The obligation rests upon him to see to it that vehicles coming from the
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opposite direction are not taken unaware by his presence on the side of the road
upon which they have the right to pass.
In Sevilla vs. People, G.R. No. 194390, August 13, 2014 - That in answer
to the question of whether there is a pending criminal case against him, accused,
a a municipal councilor marked the box corresponding to the no answer despite
the pendency of a criminal case against him for direct assault. According to the
accused, the PDS was prepared by his secretary. It was held that there was a
legal obligation on the part of accused a to disclose in his PDS that there was a
pending case against him. However, accused cannot be convicted of falsification
of public document since he did not act with malicious intent to falsify the
aforementioned entry in his PDS. However, considering that accuseds PDS was
haphazardly and recklessly done, which resulted in several false entries therein,
accused was convicted of reckless imprudence resulting in falsification of
document.
In Solidum vs. People, GR No. 192123, March 10, 2014 - The standard of
medical care of a prudent physician must be determined from expert testimony in
most cases; and in the case of a specialist (like an anesthesiologist), the standard
of care by which the specialist is judged is the care and skill commonly possessed
and exercised by similar specialists under similar circumstances. The specialty
standard of care may be higher than that required of the general practitioner.
Here, the Prosecution presented no witnesses with special medical qualifications
in anesthesia to provide guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not impossible, to
determine whether the first three elements of a negligence and malpractice action
were attendant.
VIOLENCE AGAINST WOMAN

Are the acts of attaching the face of his ex-girlfriend on a nude body of a
woman in a picture, sending the picture to her through cell phone text message
and threatening to post it in the internet for all to see that caused substantial
emotional and psychological distress to her constitutive of psychological violence
against woman under Section 5 (h) of RA No. 9262? Yes. Under Section 5 (h) of
RA No. 9262 the following conduct that caused substantial emotional and
psychological distress to the woman with whom the offender has a marital,
sexual or dating relationship is punishable: (1) Stalking (2) Peering in the window
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or lingering outside the residence of the woman or her child; (3) Entering or
remaining in the dwelling against her will; (4) Destroying property and inflicting
harm to animals; and (5) Engaging in any form of harassment or violence. The
acts described above are considered harassment within the contemplation of the
phrase any form of harassment in Section 5 (h) (5) (Ang vs. The Honorable CA,
G.R. No. 182835, April 20, 2010).
Is habituality an element of violence against women and their children
under Section 5 (h)? No. Section 3(a) of R.A. 9262 punishes "any act or series of
acts" that constitutes violence against women. This means that a single act of
harassment contemplated in Section 5 (h), which translates into violence, would
be enough. The object of the law is to protect women and children. Punishing
only violence that is repeatedly committed would license isolated ones (Ang vs.
The Honorable CA, G.R. No. 182835, April 20, 2010).
HAZING
The night before the commencement of the rites, the neophytes of
AngGaling fraternity were briefed on what to expect. They were told that there
would be physical beatings, that the whole event would last for three days, that
that they could quit anytime. A, a neophyte, consented to the initiation ritual,
having asked his parents for permission to join the fraternity. Even after going
through the fraternitys grueling tradition ritualsmainly being beaten by a
paddle on the arms and legsduring the first day, A continued and completed
the second day of initiation. As consequence of the hazing, A died. What is the
crime committed by members of the fraternity, who directly participated in the
infliction of harm against A? The crime committed is hazing. The principle in
Villareal vs. People, G.R. No. 151258, February 1, 2012 finding the accused liable
for reckless imprudence resulting in homicide is not anymore controlling in the
light of RA No. 8049 (Anti-hazing Law).
The crime of hazing is thus committed when the following essential
elements are established: (1) a person is placed in some embarrassing or
humiliating situation or subjected to physical or psychological suffering or injury;
and (2) these acts were employed as a prerequisite for the persons admission or
entry into an organization (People vs. Bayabos, G.R. No. 171222, February 18,
2015).
Failure to allege that the physical or psychological harm were employed
as a prerequisite for admission or entry into the organization would prevent the
successful prosecution of the criminal responsibility of the accused, either as
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principal or as accomplice, for the crime of hazing. Plain reference to a technical
term in this case, hazing is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and thus a mere conclusion of
law (People vs. Bayabos).
Under Section 4 of RA 8049, the officers and members of the fraternity,
sorority or organization who actually participated in the infliction of physical
harm upon recruit, neophyte or applicant on occasion of hazing shall be liable as
principals for the crime of hazing. Hazing is an initiation rite or practice as a
prerequisite for admission into membership in a fraternity, sorority or
organization or a requirement for employment in a corporation by placing the
recruit, neophyte or applicant in some embarrassing or humiliating situations.
Organization includes but is not limited to groups, teams, fraternities,
sororities, citizen army training corps, educational institutions, clubs, societies,
cooperatives, companies, partnerships, corporations, the PNP, and the AFP. The
Philippine Merchant Marine Academy is included in the term organization within
the meaning of the law (People vs. Bayabos).
What are the differences between hazing and homicide or murder? The
differences of homicide or murder and hazing are as follows: (a) In homicide or
murder, what is criminal is the killing of person. Hence, intent to kill is an
indispensable element. Death of the victim consummates the crime. In hazing,
what is prohibited is the infliction of the infliction of physical or psychological
suffering on another in furtherance of the latters admission or entry into an
organization (People vs. Bayabos). Hence, intent to kill is not material. Death of
the neophyte is only important to determine the proper imposable penalty. (b)
Homicide or murder is malum in se. Consent of the victim to the infliction of
harm may negate dolo or criminal intent, which would make the killing
punishable as reckless imprudence (Villareal vs. People, G.R. No. 151258,
February 1, 2012). Hazing is malum prohibitum. Consent of the neophyte is not
a defense. (c) In homicide or murder, praeter intentionem is appreciable as a
mitigating circumstance. In hazing, the law expressly disallows the appreciation
of this circumstance. In homicide or murder, the basis of criminal liability is the
actual and conspiratorial participation of the offender in killing the victim. In
hazing, criminal responsibility is based on (1) actual participation in inflicting
physical harm, (2) presumed participation (of those who are present during the
hazing), (3) the presence of adviser, (4) participation in the planning (by officers,
former officers and alumni of the fraternity); (5) knowledge (of the parent of frat
member in the home of whom hazing occurred, owner of the place commission,
and school authorities).
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The owner of the place commission, and school authorities are liable for
hazing as accomplices.
In the case of school authorities and faculty members who have had no
direct participation in the act, they may nonetheless be charged as accomplices if
it is shown that (1) hazing, as established by the above elements, occurred; (2)
the accused are school authorities or faculty members; and (3) they consented to
or failed to take preventive action against hazing in spite actual knowledge thereof
(People vs. Bayabos).
The corresponding responsibilities of the principal, accomplice, and
accessory are distinct from each other. As long as the commission of the offense
(hazing) can be duly established in evidence, the determination of the liability of
the accomplice or accessory can proceed independently of that of the principal
(People vs. Bayabos).
In hazing, taking action to prevent the occurrence of hazing is a defense
by any offender except (1) those who actually inflicted physical harm and (2)
those (officers, former officers and alumni of the fraternity), who planned the
hazing.
LOOSE FIREARM
Section 29 of RA No. 10591 provides:
SEC. 29. Use of Loose Firearm in the Commission of a Crime. The use
of a loose firearm, when inherent in the commission of a crime punishable under
the Revised Penal Code or other special laws, shall be considered as an
aggravating circumstance: Provided, That if the crime committed with the use of
a loose firearm is penalized by the law with a maximum penalty which is lower
than that prescribed in the preceding section for illegal possession of firearm, the
penalty for illegal possession of firearm shall be imposed in lieu of the penalty for
the crime charged:Provided, further, That if the crime committed with the use of
a loose firearm is penalized by the law with a maximum penalty which is equal to
that imposed under the preceding section for illegal possession of firearms, the
penalty of prision mayor in its minimum period shall be imposed in addition to
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the penalty for the crime punishable under the Revised Penal Code or other
special laws of which he/she is found guilty.
If the violation of this Act is in furtherance of, or incident to, or in

connection with the crime of rebellion of insurrection, or attempted coup d
etat,such violation shall be absorbed as an element of the crime of rebellion or
insurrection, or attempted coup d etat.
If the crime is committed by the person without using the loose firearm,
the violation of this Act shall be considered as a distinct and separate offense.
USE OF LOOSE FIREARM AS AGGRVATING CIRCUMSTANCE - As a

rule, when use of a loose firearm in committing is inherent in the commission of
other crime, such circumstance shall be considered as an aggravating
circumstance. For example, if a loose firearm was used in committing homicide,
the penalty of reclusion temporal prescribed for shall be applied in its maximum
period.
However, if the penalty for illegal possession of loose firearm is graver
than that prescribed for other crime committed, the penalty for the latter shall be
applied. For example, the penalty for simple robbery is prision correccional in its
maximum period to prision mayor in its medium period while the penalty for
illegal possession of small arm under Section 28 of RA No. 10591 is prision
mayor in its medium period. If a loose firearm classified as small arm is used in
committing simple robbery, the penalty of prision mayor in its medium period
prescribed under RA 10591 shall be imposed.
Furthermore, if the maximum penalty prescribed for the other crime is
equal to that for illegal possession of loose firearm, prision mayor in its minimum
period shall be imposed in addition to the penalty for the other crime. For
example, the penalty of reclusion perpetua is prescribed for homicide and illegal
possession of a Class B light weapon. If a loose firearm involving a Class B light
weapon is used to commit homicide, the penalty of prision mayor in its minimum
period in addition to reclusion perpetua shall be imposed.
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Lastly, if a loose firearm is used in the commission of rebellion, sedition
or coup d etat, the latter shall be absorbed in the former.
DISTINCT AND SEPARATE CRIME - If the crime is committed by the
person without using the loose firearm, the violation of this Act shall be
considered as a distinct and separate offense (RA No. 10591). Conversely, if the
crime is committed by the person with the use of loose firearm, illegal possession
of loose firearm is not a separate offense. In such a case, the illegal possession of
loose firearm shall be considered as an aggravating circumstance or a special
circumstance that justifies that imposition of graver penalty or additional penalty,
or as a mere element of rebellion, sedition or coup d etat.
QUASABLE INFORMATION - Prior to RA 8294, the rules obtaining, if

the offender killed a person with the use of unlicensed firearm, were as follows:
(1) use of unlicensed firearm was not an aggravating circumstance in murder or
homicide under PD 1866; (2) offender is liable independently for homicide or
murder and illegal possession of firearm.
Under PD 1866 as amended by RA 8294, the rules, if the offender killed

a person with the use of unlicensed firearm, are as follows: (1) offender is liable
for homicide or murder with aggravating circumstance of use of unlicensed
firearm; and (2) the crimes of murder or homicide and illegal use or possession
of firearm are integrated into a single offense.
In People vs. Bergante, G.R. No. 120369-70, February 27, 1998 - The
violation of PD No. 1866 should have been punished separately conformably
with our ruling in the case of Quijada G.R. No. 115008-09, July 24, 1996, En
Banc. Nevertheless, fortunately for appellant, PD No. 1866 was recently
amended by RA No. 8294, which provides that if homicide or murder is
committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance. In short, only one
offense should be punished, viz., either homicide or murder, and the use of the
unlicensed firearm should only be considered as an aggravating circumstance.
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In Celino vs. CA, G.R. No. 170562, June 29, 2007, the Supreme Court
ruled that:
When the other crime involved is one of those enumerated under RA 8294
(e.g. homicide, murder, rebellion, sedition or coup d etat) any information for illegal
possession of firearm should be quashed because the illegal possession of firearm
would have to be tried together with such other offense, either considered as an
aggravating circumstance in murder or homicide,, or absorbed as an element of
rebellion, insurrection, sedition or attempted coup detat.
When the other crime involved is not one of those enumerated under RA
8294, any information for illegal possession of firearm should not be quashed. The
separate case for illegal possession of firearm should continue to be prosecuted.
Settled is the rule that an accused cannot be convicted for illegal possession of
firearm if another crime was committed at the same time. Since accusation is not
synonymous with guilt, it cannot establish outright that other crime was
committed. However, the accused must be exonerated of illegal possession of
firearms if he is convicted of some other crime.
Considering that under RA No. 10591 use of loose firearm is not only an
aggravating circumstance in murder or homicide but also in other crime such as
robbery or grave threat, the illegal possession of firearm should not be
considered a separate and distinct crime if other crime is committed and the
use of loose firearm in inherent therein. Following the same line of reasoning in
the case of Celino, any information for illegal possession of firearm should be
quashed because the illegal possession of loose firearm would have to be tried
together with such other offense, either considered as an aggravating
circumstance in murder or homicide,, robbery, grave threat, alarm and scandal,
physical injuries or absorbed as an element of rebellion, insurrection, sedition or
attempted coup detat.
DANGEROUS DRUGS
POSSESSION OF DRUGS For a prosecution for illegal possession of a
dangerous drug to prosper, it must be shown that (a) the accused was in
possession of an item or an object identified to be a prohibited or regulated drug;
(b) such possession is not authorized by law; and (c) the accused was freely and
consciously aware of being in possession of the drug (David vs. People, Gr No.
181861, October 17, 2011, ).
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This crime is mala prohibita, and, as such, criminal intent is not an

essential element. However, the prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs. Possession, under the law,
includes not only actual possession, but also constructive possession. Actual
possession exists when the drug is in the immediate physical possession or
control of the accused. On the other hand, constructive possession exists when
the drug is under the dominion and control of the accused or when he has the
right to exercise dominion and control over the place where it is found. Exclusive
possession or control is not necessary. The accused cannot avoid conviction if his
right to exercise control and dominion over the place where the contraband is
located, is shared with another (Del Castillo vs. People, GR No. 185128, January
30, 2012, ).
Mere possession of a dangerous drug per
facie evidence of knowledge or animus possidendi sufficient
absent a satisfactory explanation of such possession shifted to the accused, to explain the absence of knowledge
(Miclat, Jr. vs. People, GR No. 176077, August 31, 2011, ).
se constitutes prima
to convict an accused
the onus probandi is
or animus possidendi
KNOWLEDGE - Is knowledge an element of dangerous drugs despite this

crime is malum prohibitum? Yes. For illegal possession of dangerous drugs, the
prosecution must establish that the accused freely and consciously possessed
the dangerous drug without authority. However, mere possession of dangerous
drug constitutes prima facie evidence of knowledge or animus possidendi
sufficient to convict an accused in the absence of any satisfactory explanation
(Asiatico vs. People, G.R. No. 195005, September 12, 2011).
ATTEMPTED SALE - A, poseur buyer, asked X if he has available
shabu for sale. X answered in the affirmative and showed to A a plastic
sachet containing shabu. A immediately identified himself as a policeman, and
then, apprehended X and confiscated the shabu from his pocket. What is the
crime committed by X? X is liable for attempted sale of shabu punishable
under Section 26 of RA 9165. Attempt to sell shabu was shown by the overt act
of appellant therein of showing the substance to the poseur-buyer. The sale was
aborted when the police officers identified themselves and placed appellant under
arrest (People vs. Figueroa, G.R. No. 186141, April 11, 2012).
DELIVERY - Is the absence of marked money as evidence fatal to
prosecution of sale and delivery of dangerous drugs? No. The law
defines deliver as a persons act of knowingly passing a dangerous drug to
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another with or without consideration. Considering that the appellant was
charged with the sale and the delivery of prohibited drugs, the consummation of
the crime of delivery of marijuana may be sufficiently established even in the
absence of the marked money (People vs. Domingcil, G.R. No. 140679, January
14, 2004).
LACK OF COORDINATION WITH PDEA - Silence of the law as to the
consequences of the failure on the part of the law enforcers to seek the prior
authority of the PDEA cannot be interpreted as a legislative intent to make an
arrest without such PDEA participation illegal or evidence obtained pursuant to
such an arrest inadmissible (People vs. Clarite, G.R. No. 187157, February 15,
2012). Lack of coordination with the PDEA will not invalidate a buy-bust
operation. Such coordination is not an indispensable requirement in buy-bust
operations. Neither Section 86 of Republic Act No. 9165 nor its Implementing
Rules and Regulations make PDEAs participation a condition sine qua non for
the conduct of a buy-bust operation (People vs. Mendosa, G.R. No. 189327,
February 29, 2012)
CONFIRMATORY TEST - In Ambre vs. People, G.R. No. 191532. August
15, 2012 - In no instance did accused challenge, at the RTC, the supposed
absence of confirmatory drug test conducted on her. Accused only questioned
the alleged omission when she appealed her conviction before the CA. It was too
late in the day for her to do so. Well entrenched is the rule that litigants cannot
raise an issue for the first time on appeal as this would contravene the basic
rules of fair play and justice.
PHOTOGRAPHY AND INVENTORY Under Section 21 of RA No. 9165,
the apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof; However, the Implementing rules of RA No. 9165
provides that non-compliance with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of the seized items are properly
preserved by the apprehending officer/team, shall not render void and invalid
such seizures of and custody over said items.
Non-compliance with the requirements of Section 21 of R.A. No. 9165 will
not necessarily render the items seized or confiscated in a buy-bust operation
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inadmissible. Strict compliance with the letter of Section 21 is not required if
there is a clear showing that the integrity and the evidentiary value of the seized
items have been preserved, i.e., the items being offered in court as exhibits are,
without a specter of doubt, the very same ones recovered in the buy-bust
operation. Hence, once the possibility of substitution has been negated by
evidence of an unbroken and cohesive chain of custody over the contraband,
such contraband may be admitted and stand as proof of the corpus
delicti notwithstanding the fact that it was never made the subject of an
inventory or was photographed pursuant to Section 21 (1) of Republic Act No.
9165 (David vs. People, Gr No. 181861, October 17, 2011, ; Marquez vs. People,
G.R. No. 197207, March 13, 2013; People vs. Morate, GR No. 201156, January
29, 2014; People vs. Ladip, GR No. 196146, March 12, 2014; People vs. Bis, GR
No. 191360, March 10, 2014).
In People vs. Gonzales, G.R. No. 182417, April 3, 2013 - By way of

exception, Republic Act No. 9165 and its IRR both state that the non-compliance
with the procedures thereby delineated and set would not necessarily invalidate
the seizure and custody of the dangerous drugs provided there were justifiable
grounds for the non-compliance, and provided that the integrity of the evidence
of the corpus delicti was preserved. But the non-compliance with the procedures,
to be excusable, must have to be justified by the States agents themselves.
Considering that PO1 Dimla tendered no justification in court for the noncompliance with the procedures, the exception did not apply herein. The
absolution of accused should then follow, for we cannot deny that the observance
of the chain of custody as defined by the law was the only assurance to him that
his incrimination for the very serious crime had been legitimate and insulated
from either invention or malice. In this connection, the Court states that the
unexplained non-compliance with the procedures for preserving the chain of
custody of the dangerous drugs has frequently caused the Court to absolve those
found guilty by the lower courts.
CHAIN OF CUSTODY As a method of authenticating evidence, the
chain of custody rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in the
chain, from the moment the item was picked up to the time it is offered into
evidence, in such a way that every person who touched the exhibit would
describe how and from whom it was received, where it was and what happened to
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it while in the witness possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. These witnesses
would then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone not in the
chain to have possession of the same (People vs. Constantino, Jr. GR No. 199689,
March 12, 2014).
Thus, the following links must be established in the chain of custody in a
buy-bust situation: first, the seizure and marking, if practicable, of the illegal
drug recovered from the accused by the apprehending officer; second, the turn
over of the illegal drug seized by the apprehending officer to the investigating
officer; third, the turn over by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and fourth, the turn over and
submission of the marked illegal drugs seized from the forensic chemist to the
court (People vs. Constantino, Jr. GR No. 199689, March 12, 2014)
MARKING - Crucial in proving the chain of custody is the marking of the

seized dangerous drugs or other related items immediately after they are seized
from the accused, for the marking upon seizure is the starting point in the
custodial link that succeeding handlers of the evidence will use as reference
point. Moreover, the value of marking of the evidence is to separate the marked
evidence from the corpus of all other similar or related evidence from the time of
seizure from the accused until disposition at the end of criminal proceedings,
obviating switching, planting or contamination of evidence. A failure to mark at
the time of taking of initial custody imperils the integrity of the chain of custody
that the law requires (People vs. Constantino, Jr. GR No. 199689, March 12,
2014)
The rule requires that the marking of the seized items should be done in
the presence of the apprehended violator and immediately upon confiscation to
ensure that they are the same items that enter the chain and are eventually the
ones offered in evidence. There are occasions when the chain of custody rule is
relaxed such as when the marking of the seized items immediately after seizure
and confiscation is allowed to be undertaken at the police station rather than at
the place of arrest for as long as it is done in the presence of an accused in illegal
drugs cases. However, even a less-than-stringent application of the requirement
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would not suffice to sustain the conviction in this case. There was no categorical
statement from any of the prosecution witnesses that markings were made, much
less immediately upon confiscation of the seized items. There was also no
showing that markings were made in the presence of the accused in this case
(Lopez vs. People, GR No. 188653, January 29, 2014).
Drug peddling in schools is prevalent; the scenario attending this case is

likely to be repeated many times. To impose on school personnel the observance
of the same procedure required of law enforces (like marking) processes that are
unfamiliar to them is to set a dangerous precedent that may eventually lead to
the acquittal of many drug peddlers. To our mind, the evidentiary value of the
seized specimen remains intact as long as the school personnel who had initial
contact with the drug/s was able to establish that the evidence had not been
tampered with when he handed it to the police (Marquez vs. People, G.R. No.
197207, March 13, 2013)
PARAPHERNALIA WITH TRACES OF SHABU In People vs. Matinez,

G.R. No. 191366, December 13, 2010 - This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases where the presence of
dangerous drugs as basis for possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec. 11. Although not incorrect, it
would be more in keeping with the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use, provided that
there is a positive confirmatory test result as required under Sec. 15. The
minimum penalty under the last paragraph of Sec. 11 for the possession of
residue is imprisonment of twelve years and one day, while the penalty under
Sec. 15 for first time offenders of drug use is a minimum of six months
rehabilitation in a government center. To file charges under Sec. 11 on the basis
of residue alone would frustrate the objective of the law to rehabilitate drug users
and provide them with an opportunity to recover for a second chance at life.
In order to effectively fulfill the intent of the law to rehabilitate drug

users, this Court thus calls on law enforcers and prosecutors in dangerous drugs
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cases to exercise proper discretion in filing charges when the presence of
dangerous drugs is only and solely in the form of residue and the confirmatory
test required under Sec. 15 is positive for use of dangerous drugs. In such cases,
to afford the accused a chance to be rehabilitated, the filing of charges for or
involving possession of dangerous drugs should only be done when another
separate quantity of dangerous drugs, other than mere residue, is found in the
possession of the accused as provided for in Sec. 15.
PENALTY
FOR
POSSESSION
OF
MARIJUANA
AND
SHABU
Possession of different kinds of dangerous drugs in a single occasion constitutes

a single offense of possession of dangerous drugs (David vs. People, G .R. No.
181861, October 17, 2011).
PLANTING OF EVIDENCE - As a general rule, planting of evidence to

incriminate an innocent person constitutes the crime of incriminating an
innocent person under Article 363 of RPC. However, if the incriminatory
evidence planted is dangerous drugs or unauthorized explosives, loose firearm,
the crime committed is planting of evidence under RA 9165 for the dangerous
drug, PD 1866 as amended by RA 9516 for the explosive and RA No. 10591.
PLEA BARGAINING - Section 23 of RA No. 9165, any person charged
under any crime involving dangerous drugs regardless of the imposable penalty
shall not be allowed to avail of the provision on plea-bargaining.
TRAFFICKING IN PERSON
Can accused be convicted of illegal recruitment and trafficking in person
for the same of act of recruiting a person for prostitution without violating the
rule on double jeopardy? Yes. When an act or acts violate two or more different
laws and constitute two different offenses, a prosecution under one will not bar a
prosecution under the other. The constitutional right against double jeopardy
only applies to risk of punishment twice for the same offense, or for an act
punished by a law and an ordinance. The prohibition on double jeopardy does
not apply to an act or series of acts constituting different offenses (People vs.
Lalli, G.R. No. 195419, October 12, 2011).
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Is trafficking in persons limited to transportation of victims? No.
Trafficking in Persons under Sections 3(a) and 4 of RA 9208 is not only limited to
transportation of victims, but also includes the act of recruitment of victims for
trafficking (People vs. Lalli, G.R. No. 195419, October 12, 2011).
Is recruitment of the victim for prostitution with her consent or
knowledge constitutive of the crime of trafficking in person? Yes. The crime of
Trafficking in Persons can exist even with the victims consent or knowledge
(People vs. Lalli, G.R. No. 195419, October 12, 2011).
In People vs. Casio, G.R. No. 211465, December 03, 2014 - Accused took
advantage of AAAs vulnerability as a child and as one who need money. The
victims consent is rendered meaningless due to the coercive, abusive, or
deceptive means employed by perpetrators of human trafficking. Even without
the use of coercive, abusive, or deceptive means, a minors consent is not given
out of his or her own free will.
If the accused sell the child to another for purpose of prostitution on a single
occasion, the crime committed is child prostitution under Section 5 (a) of RA No
7610 (People vs. Dulay, GR No. 193854, September 24, 2012). If the accused
maintained the child for prostitution, the crime committed is qualified trafficking
in person under Section 4 and 6 of RA No. 9208 (People vs. Casio).
ILLEGAL RECRUITMENT
It is well-established in jurisprudence that a person may be charged and
convicted for both illegal recruitment and estafa. The reason therefor is not hard
to discern: illegal recruitment is malum prohibitum, while estafa is mala in se. In
the first, the criminal intent of the accused is not necessary for conviction. In the
second, such intent is imperative (People vs. Chua, G. R. No. 187052, September
13, 2012).
BP BLG. 22
What Batas Pambansa Blg. 22 punished was the mere act of issuing a
worthless check. The law did not look either at the actual ownership of the check
or of the account against which it was made, drawn, or issued, or at the intention
of the drawee, maker or issuer. Also, that the check was not intended to be
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deposited was really of no consequence to her incurring criminal liability under
Batas Pambansa Blg. 22 (Resterio vs. People, G.R. No. 177438. September 24,
2012).
The giving of the written notice of dishonor does not only supply the
proof for the second element arising from the presumption of knowledge the law
puts up but also affords the offender due process. The law thereby allows the
offender to avoid prosecution if she pays the holder of the check the amount due
thereon, or makes arrangements for the payment in full of the check by the
drawee within five banking days from receipt of the written notice that the check
had not been paid. The Court cannot permit a deprivation of the offender of this
statutory right by not giving the proper notice of dishonor (Resterio vs. People,
G.R. No. 177438. September 24, 2012).
Where the check is drawn by a corporation, company or entity, the
person or persons who actually signed the check in behalf of such drawer shall
be liable under this Act." This provision recognizes the reality that a corporation
can only act through its officers. Hence, its wording is unequivocal and
mandatory that the person who actually signed the corporate check shall be
held liable for a violation of BP 22. This provision does not contain any
condition, qualification or limitation (Mitra Vs. People and Tarcelo, G.R. No.
191404. July 5, 2010)
NOTICE OF DISHONOR IN ESTAFA CASE - The essential elements of
the felony are: (1) a check is postdated or issued in payment of an obligation
contracted at the time it is issued; (2) lack or insufficiency of funds to cover the
check; and (3) damage to the payee thereof. It is criminal fraud or deceit in the
issuance of a check which is made punishable under the RPC, and not the nonpayment of a debt. The postdating or issuing of a check in payment of an
obligation when the offender had no funds in the bank or his funds deposited
therein are not sufficient to cover the amount of the check is a false pretense or
a fraudulent act. However deceit is presumed if the drawer of the check fails to
deposit the amount needed to cover his check within three days from receipt of
notice of dishonor.
a. No notice of dishonor - If there is no notice of dishonor, the
prosecution can still prove the existence of deceit such as in a case where the
accused knows that his checking account is closed. The receipt by the drawer of
the notice of dishonor is not an element of the estafa through bouncing check.
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b. With notice of dishonor - If there is notice of dishonor, the
presumption of deceit can still be rebutted by: (1) proof that the check is issued
in payment of a pre-existing obligation or (1) evidence of good faith, a defense in
estafa by postdating a check. Good faith may be demonstrated, for instance, by a
debtors offer to arrange a payment scheme with his creditor or making full
payment of the entire amount of the dishonored checks. However, simply empty
promise to pay complainant the value of the bum checks issued in order to
induce her to part with her property in favor of accused is not an evidence of
good faith that will rebut the presumption of deceit. (See: People vs. Ojeda, G.R.
Nos. 104238-58, June 3, 2004, Corona; Lopez vs. People, G.R. No. 166810,
June 26, 2008, De Castro; Recuerdo vs. People, G.R. No. 168217, June 27,
2006, )
NOTICE OF DISHONOR IN BP BLG. 22 - Notice of dishonor of a check
to the maker in BP Blg. 22 must be in writing. A mere oral notice to the drawer
or maker of the dishonor of his check is not enough. If the maker or drawer
pays, or makes arrangements with the drawee bank for the payment of the
amount due within the five-day period from notice of the dishonor given to the
drawer, it is a complete defense; the accused may no longer be indicted for
violation of Section 1, B.P. Blg. 22. If he is so indicted, he may set up the
payment of the amount due as a complete defense. Assuming that the accused
had knowledge that he had insufficient funds in the drawee bank when he
issued the questioned checks, he could still have paid the checks or made
arrangements with the drawee bank for the payment of the said checks if he had
been duly notified of their dishonor. In not sending a notice or letter of dishonor
to the petitioner as required by law, the complaint deprived the accused of his
right to avoid prosecution for violation of B.P. Blg. 22 (Sia vs. G.R. No.
149695, April 28, 2004).
In San Mateo vs. People, G.R. No. 200090, March 6, 2013 - Complainant
tried to serve the notice of dishonor to the accused two times. On the first
occasion, complainants counsel sent a demand letter to accuseds residence at
Greenhills, San Juan which the security guard refused to accept. Thus, the
liaison officer left the letter with the security guard with the instruction to hand
it to accused. But the prosecution failed to show that the letter ever reached
accused. On the second occasion, counsel sent a demand letter to accused by
registered mail which was returned with the notation "N/S Party Out 12/12/05"
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and that accused did not claim it despite three notices to her. Since there is
insufficient proof that accused actually received the notice of dishonor, the
presumption that she knew of the insufficiency of her funds cannot arise. For
this reason, the Court cannot convict her with moral certainty of violation of B.P.
22.
Nevertheless, accuseds acquittal does not entail the extinguishment of

her civil liability for the dishonored checks. An acquittal based on lack of proof
beyond reasonable doubt does not preclude the award of civil damages. For this
reason, the trial courts directive for San Mateo to pay the civil liability in the
amount representing the total value of the checks plus 12% interest per annum
from the time the said sum became due and demandable until fully paid, stands.
In Campos vs. People. G.R. No. 187401, September 17, 2014 - Exerting
efforts to reach an amicable settlement with her creditor after the checks which
she issued were dishonored by the drawee bank is a circumstantial evidence of
receipt of notice of dishonor. Accused would not have entered into the alleged
arrangements if she had not received a notice of dishonor from her creditor, and
had no knowledge of the insufficiency of her funds with the bank and the
dishonor of her checks.
Lopez vs. People, G.R. No. 166810, June 26, 2008, Justice De Castro
-Under Section 114(d) of the Negotiable Instruments Law, notice of dishonor is
not required to be given to the drawer in either of the following cases where the
drawer has no right to expect or require that the drawee or acceptor will honor
the check. Since petitioner's bank account was already closed even before the
issuance of the subject check, he had no right to expect or require the drawee
bank to honor his check. By virtue of the aforequoted provision of law, petitioner
is not entitled to be given a notice of dishonor.
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The crime involved in Lopez vs. People is estafa through issuance of
bouncing check. However, it is submitted the Lopez principle can be applied to
violation of BP 22.
PAYMENT - In Lim vs. People, G.R. No. 190834, November 26, 2014 The fact that the issuer of the check had already paid the value of the dishonored
check after having received the subpoena from the Office of the Prosecutor
should have forestalled the filing of the Information in court. The spirit of the law
which, for B.P. Big. 22, is the protection of the credibility and stability of the
banking system, would not be served by penalizing people who have evidently
made amends for their mistakes and made restitution for damages even before
charges have been filed against them. In effect, the payment of the checks before
the filing of the informations has already attained the purpose of the law.
It should be emphasized as well that payment of the value of the

bounced check after the information has been filed in court would no longer have
the effect of exonerating the accused from possible conviction for violation of B.P.
Big. 22. Since from the commencement of the criminal proceedings in court,
there is no circumstance whatsoever to show that the accused had every
intention to mitigate or totally alleviate the ill effects of his issuance of the
unfunded check, then there is no equitable and compelling reason to preclude
his prosecution. In such a case, the letter of the law should be applied to its full
extent.
Furthermore, to avoid any confusion, the Court's ruling in this case

should be well differentiated from cases where the accused is charged with estafa
under Article 315, par. 2(d) of the Revised Penal Code, where the fraud is
perpetuated by postdating a check, or issuing a check in payment of an obligation
when the offender had no funds in the bank, or his funds deposited therein were
not sufficient to cover the amount of the check. In said case of estafa, damage
158 | P a g e

and deceit are the essential elements of the offense, and the check is merely the
accused's tool in committing fraud. In such a case, paying the value of the
dishonored check will not free the accused from criminal liability. It will merely
satisfy the civil liability of the crime but not the criminal liability.
SUSPENSION OF PAYMENT - X in his capacity as officer of Z

corporation issued a corporate check in favor of A. The check bounced due to
DAIF. Notice of dishonor was received by X. After three months, SEC issued order
creating the Management Committee and ordering the suspension of all pending
actions for claims against Z corporation. (a) Is X liable for violation of BP Blg. 22?
Answer: Yes. X was formally notified of the dishonor of the checks. Yet, it
was only more than three months after, that the SEC issued order for the
suspension of all pending actions for claims against Z corporation. Thus, X was
not precluded from making good the checks during that three-month gap when
he received the letter and when the SEC issued the order (Tiong Rosario vs. Co,
G.R. No. 133608, August 26, 2008)
(b) Would your answer be the same if the order of suspension was issued
before the presentment for payment of the check when the drawee bank and the
sending of notice of dishonor?
Answer: No. X is not liable for violation of BP Blg. 22. Considering that
there was a lawful Order from the SEC, the contract is deemed suspended. When
a contract is suspended, it temporarily ceases to be operative; and it again
becomes operative when a condition occurs - or a situation arises - warranting
the termination of the suspension of the contract. When a contract is subject to a
suspensive condition, its birth takes place or its effectivity commences only if
and when the event that constitutes the condition happens or is fulfilled. Thus,
at the time A presented the check for encashment, it had no right to do so, as
there was yet no obligation due from X (Gidwani vs. People, GR No. 195064,
January 15, 2014).
159 | P a g e
ANTI-GRAFT AND CORRUPT PRACTICES LAW

RA NO. 3019
Conspiracy Only public officer can be held criminally liable for
violation of RA No. 3019. However, if there is conspiracy, the act of the public
officer in violating RA No. 3019 is imputable to the private individual although
there are not similarly situated in relation to the object of the crime. Moreover,
Section 9 provides penalty for public officer or private person for crime under
Section 3. Hence, a private individual can be prosecuted for violation of RA No.
3019 (Go vs. The Fifth Division, Sandiganbayan, G.R. No. 172602, April 13,
2007). Even if the public officer with whom the private individual allegedly
conspired, the latter can still be prosecuted for violation of RA No. 3019. Death
extinguishes the criminal liability but not the crime. Hence, if there is proof of
the crime and conspiracy of dead public officer with private individual, the latter
can still be convicted of violation of RA No. 3019 (People vs. Go, GR NO. 168539,
March 25, 2014). However, the public officer with whom the private individual
allegedly conspired is acquitted, the latter should also be acquitted (Marcos vs.
Sandiganbayan, G.R. No. 126995, October 6, 1998).
SECTION 3 (a) - The elements of Section 3(a) of Republic Act No. 3019
are: 1. The offender is public officer; 2. The offender persuades, induces or
influences another public officer to perform an act or the offender allows himself
to be persuaded, induced, or influenced to commit an act; 3. That the act
performed by the other public officer or committed by another constitutes a
violation of ruled and regulations duly promulgated by competent authority or an
offense in connection with the official duty of the latter (Ampil vs. Hon.
Ombudsman, G.R. No. 192685, July 31, 2013.
In Baviera vs. Zoleta, G.R. No. 169098, Oct. 12, 2006 - The Supreme
Court considered the Senate deliberation of Section 3 (a) of RA No. 3019 in
resolving the case. According to Senator Tolentino, if there is no proof of the
consideration in the use of the influence, the offense is not committed under the
bill. Because the logic and intention of the sponsor (Senator TOLENTINO) of the
aforecited provision, the SC said that Acting Secretary of Justice did not commit
a violation of the same as there is no proof that she received consideration in
exchange for her decision to allow Mr. Raman to travel abroad despite the Hold
Departure Order issued by the Secretary of Justice.
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SECTION 3 (b) - The elements of the crime under Section 3 (b) of RA No.
3019 are: (1) the offender is a public officer; (2) he requested or received a gift,
present, share, percentage or benefit; (3) he made the request or receipt on behalf
of the offender or any other person; (4) the request or receipt was made in
connection with a contract or transaction with the government and (5) he has the
right to intervene, in an official capacity under the law, in connection with a
contract or transaction has the right to intervene (Merencillo vs. People, G.R.
Nos. 142369-70, April 13, 2007).
Section 3 (b) of RA No. 3019, directly or indirectly requesting or receiving
any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government
and any other party, wherein the public officer in his official capacity has to
intervene under the law is punishable. Section 3 (b) is limited only to contracts or
transactions involving monetary consideration where the public officer has the
authority to intervene under the law. Preliminary investigation is not a contract
or transaction is not a contract or transaction within the contemplated of Section
3 (b). Hence, requesting or receiving money in connection with a preliminary
investigation is not a violation of this provision (Soriano, Jr. vs. Sandiganbayan,
G.R. No. 65952, July 31, 1984; People vs. Sandiganbayan. and Justice Secretary
Perez).
SECTION 3 (e) - In Dela Cuersta vs. Sandiganbayan, G.R. Nos. 16406869, November 19, 2013 - The informations alleged that accused as members of
the Philippine Coconut Authority, acting in conspiracy with each other and with
evident bad faith and manifest partiality, gave financial assistance to COCOFED,
a private entity, without an appropriate budget, giving unwarranted benefit to the
same and causing undue injury to the Government.
The element in the crime of technical malversation that public fund be
appropriated for a public use requires an earmarking of the fund or property for
a specific project. For instance there is no earmarking if money was part of the
municipalitys general fund, intended by internal arrangement for use in paving
a
particular
road
but
applied
instead
to
the
payrolls
of
different barangay workers in the municipality. That portion of the general fund
was not considered appropriated since it had not been earmarked by law or
ordinance for a specific expenditure. Here, there is no allegation in the
informations that the P2 million and P6 million grants to COCOFED had been
earmarked for some specific expenditures.
161 | P a g e

What is more, the informations do not allege that the subject P2 million
and P6 million were applied to a public use other than that for which such sums
had been appropriated. Quite the contrary, those informations allege that those
sums were unlawfully donated to a private entity, not applied to some public
use. Clearly, the constitutional right of the accused to be informed of the crimes
with which they are charged would be violated if they are tried for technical
malversation under criminal informations for violation of Section 3(e) of R.A.
3019 filed against them.
This crime has the following essential elements: 1. The accused must be
a public officer discharging administrative, judicial or official functions; 2. He
must have acted with manifest partiality, evident bad faith or gross inexcusable
negligence; and 3. His action caused any undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions (People vs. Atienza, GR No. 171671,
June 18, 2012).
First element - The accused must be a public officer discharging
administrative, judicial or official functions. In Consigna vs. People, G.R. no.
175750, April 2, 2014 Petitioner, a municipal treasurer, is considered a public
officer discharging official functions when she misused such position to be able
to take out a loan from complainant, who was misled into the belief that former,
as municipal treasurer, was acting on behalf of the municipality. The petitioner
misrepresented that the loan is to be used to pay for the salaries of the employees
of the municipality and to construct the municipal gymnasium. The victim could
have been the Municipality of General Luna since the checks signed by the mayor
was issued to the complainant. It was just fortunate that the mayor instructed
the bank to stop payment of the checks issued by petitioner. Thus, the municipal
treasurer can be held liable for violation of Section 3 (e) of RA No. 3019 for
causing damage to complainant.
Mejorada principle - In Stilgrove vs. Sabas, A.M. No. P-06-2257, March
28, 2008 Admittedly, the Court made a statement in Zoomzat that for one to be
held liable under Section 3 (e), he must be an officer or employee of offices or
government corporations charged with the grant of licenses or permits or other
concessions. The earlier case of Mejorada however, squarely addressed the issue
on the proper interpretation of Section 3 (e). Mejorada was decided by the Court
en banc. Following the constitutional mandate that no doctrine or principle of law
laid down by the Court in a decision rendered en banc or in division may be
modified or reversed except by the Court sitting en banc, the case of Zoomzat
cannot reverse the pronouncement in Mejorada, the former case having been
162 | P a g e

decided by a Division of the Court. In Consigna vs. People, G.R. No. 175750,
April 2, 2014, the SC re-affirmed the principle in Mejorada.
Second element - The accused must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence. Section 3(e) of RA 3019 may be
committed either by dolo, as when the accused acted with evident bad faith or
manifest partiality, or by culpa, as when the accused committed gross
inexcusable negligence (Plameras vs. People, GR No. 187268, September 04,
2013).
Arias principle - In Arias v. Sandiganbayan, G.R. Nos. 81563 & 82512,
19 December 1989 - All heads of offices have to rely to a reasonable extent on
their subordinates and on the good faith of those who prepare bids, purchase
supplies, or enter into negotiations. If a department secretary entertains
important visitors, the auditor is not ordinarily expected to call the restaurant
about the amount of the bill, question each guest whether he was present at the
luncheon, inquire whether the correct amount of food was served, and otherwise
personally look into the reimbursement voucher's accuracy, propriety, and
sufficiency. There has to be some added reason why he should examine each
voucher in such detail. Any executive head of even small government agencies or
commissions can attest to the volume of papers that must be signed. There are
hundreds of documents, letters, memoranda, vouchers, and supporting papers
that routinely pass through his hands. The number in bigger offices or
departments is even more appalling. There should be other grounds than the
mere signature or approval appearing on a voucher to sustain a conspiracy
charge and conviction.
Non-applicability of the Arias principle The principle of Arias case
where reliance on the subordinate was considered as a defense in case of
violation of Section 3 (e) RA No. 3019 is not applicable:
(1) Where the accused has foreknowledge of existing anomaly - e.g. mayor
signed the inspection report and the disbursement voucher despite the fact that
he had foreknowledge that the materials delivered by Guadines have already been
confiscated by the DENR (Escara vs. People, G.R. No. 164921, July 8, 2005);
(2) Where there is deviation from ordinary procedure e.g. mayor issued
and encashed municipal checks despite the facts that the disbursement vouchers
were in the name of Kelly Lumber but the checks were not payable to the supplier,
Kelly Lumber and that checks were payable upon his order (Cruz vs. The Hon.
Sandiganbayan, G.R. No. 134493, August 16, 2005).
163 | P a g e

(3) Where the public official invoking the Arias principle is not acting in
his capacity as head of office, who is relying on his subordinate e.g. head of the
office of the city administrator relied on the acts of the heads of the Office of the
City Treasurer, the Office of the City Accountant in granting cash advance to a
paymaster (Jaca vs. People, G.R. No. 166967, January 28, 2013).
4. Rivera vs. People, G.R. No. 156577, December 03, 2014 - In the case
at bench, Perez should have placed himself on guard when the documents and
vouchers given to him by his subordinates did not indicate the retention money
required by P.D. No. 1594. Moreover, when he personally inspected the
construction site of PAL Boat, he should have noticed the financial weakness of
the contractor and the defective works. Deplorably, Perez kept mum and chose to
continue causing undue injury to the government. No other conclusion can be
inferred other than his manifest partiality towards PAL Boat
Conspiracy of silence or inaction As a rule, the principle of
conspiracy as a mode of committing a crime or for purpose of applying the
collective responsibility rule is only applicable to intentional felony. The concept
of conspiracy, the elements of which are agreement and decision to commit a
crime, are not consistent with culpable felony. Persons cannot definitely agree
and decide to commit a culpable crime.
Exception:
Public officers can incur collective criminal responsibility through a
conspiracy for violation of Section 3(e) of RA No. 3019 through gross and
inexcusable negligence, and of incurring. This is called conspiracy of silence and
inaction arising from gross inexcusable negligence. To establish this kind of
conspiracy, it is essential to prove the breach of duty borders on malice and is
characterized by flagrant, palpable and willful indifference to consequences
insofar as other persons may be affected. Conspiracy of silence or inaction would
almost always be inferred only from the surrounding circumstances and the
parties' acts or omissions that, taken together, indicate a common understanding
and concurrence of sentiments respecting the commission of the offense. The
duties and responsibilities that the occupancy of a public office carry and the
degree of relationship of interdependence of the different offices involved here
determine the existence of conspiracy where gross inexcusable negligence was
the mode or commission of the offense (Jaca vs. People, G.R. No. 166967,
January 28, 2013).
164 | P a g e

In Jaca vs. People, supra - A paymaster obtained cash advances despite
the fact that she has previous unliquidated cash advances. The cash advance
remained unliquidated to the damage of the city. The City Treasurer certified that
the cash advances are necessary, lawful and incurred under my direct
supervision. The City Accountant certified that the expenditures are supported
by documents and previous cash advances are liquidated and accounted for. The
City Administrator approved the voucher and countersigned the check. The
paymaster is liable for violation of Section 3 (e) of RA No. 3019. The City
Treasurer, City Accountant and City administrator are liable because of
conspiracy of silence or inaction. According to SC, the petitioners are all heads or
their respective offices that perform interdependent functions in the processing of
cash advances. The petitioners' attitude of buck-passing in the face of the
irregularities in the voucher and the absence of supporting documents and their
indifference to their individual and collective duties to ensure that laws and
regulations are observed in the disbursement of the funds of the local
government of Cebu can only lead to a finding of conspiracy of silence and
inaction.
Erroneous interpretation of the law - An erroneous interpretation of a
provision of law regarding the entitlement of a government employee who was
wrongfylly removed to RATA, absent any showing of some dishonest or wrongful
purpose, does not constitute and does not necessarily amount to bad faith
(Ysidoro vs. Hon. Leonardo-De Castro, G.R. No. 171513, February 06, 2012).
Third element - His action caused undue injury to any party, including
the government or gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.
There are two ways by which a public official violates Section 3(e) of RA
No. 3019 in the performance of his functions, namely: (1) by causing undue
injury to any party, including the Government; or (2) by giving any private party
any unwarranted benefit, advantage or preference. The accused may be charged
under either mode or both. The disjunctive term or connotes that either act
qualifies as a violation of Section 3(e) (Rivera vs. People, G.R. No. 156577,
December 03, 2014).
The concept of "undue injury," in the context of Section 3(e) RA No. 3019
is the same as the civil law concept of "actual damage." It is required that undue
injury must be specified, quantified and proven to the point of moral certainty.
Speculative or incidental injury is not sufficient. The damages suffered cannot be
based on flimsy and non-substantial evidence or upon speculation, conjecture or
165 | P a g e

guesswork but must depend on competent proof and on the best evidence
obtainable regarding specific facts which could afford some basis for measuring
compensatory or actual damage (M.A. Jimenez Inc. vs. The Hon. Ombudsman,
G.R. No. 155307, June 06, 2011).
In Braza vs. the Hon. Sandiganbayan, G.R. No. 195032, February 20,
2013 - There are two (2) ways by which a public official violates Section 3(e) of
R.A. No. 3019 in the performance of his functions, namely: (1) by causing undue
injury to any party, including the Government; or (2) by giving any private party
any unwarranted benefit, advantage or preference. The accused may be charged
under either mode or under both. The disjunctive term or connotes that either
act qualifies as a violation of Section 3(e) of R.A. No. 3019. ] In other words, the
presence of one would suffice for conviction. "To be found guilty under the second
mode, it suffices that the accused has given unjustified favor or benefit to
another, in the exercise of his official, administrative and judicial functions." The
element of damage is not required for violation of Section 3 (e) under the second
mode.
Private party - In Ambil vs. Sandiganbayan, G.R. No. 175457, July 06,
2011 - In drafting the Anti-Graft Law, the lawmakers opted to use "private party"
rather than "private person" to describe the recipient of the unwarranted
benefits, advantage or preference for a reason. The term "party" is a technical
word having a precise meaning in legal parlance as distinguished from "person"
which, in general usage, refers to a human being. Thus, a private person simply
pertains to one who is not a public officer. While a private party is more
comprehensive in scope to mean either a private person or a public officer acting
in a private capacity to protect his personal interest. In the present case, when
petitioners transferred Mayor Adalim from the provincial jail and detained him at
petitioner Ambil, Jr.'s residence, they accorded such privilege to Adalim, not in
his official capacity as a mayor, but as a detainee charged with murder. Thus, for
purposes of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was a
private party.
SECTION 3 (g) In Braza vs. the Hon. Sandiganbayan, G.R. No. 195032,
February 20, 2013 - For conviction of violation of Sec. 3(g), the prosecution must
establish the following elements: 1. The offender is a public officer; 2. He entered
into a contract or transaction in behalf of the government; and 3. The contract or
transaction is manifestly and grossly disadvantageous to the government.
On the other hand, an accused may be held criminally liable of violation
of Section 3 (e) of R.A. No. 3019, provided that the following elements are present:
166 | P a g e

1. The accused must be a public officer discharging administrative, judicial or
official functions; 2. The accused must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and 3. His action caused
undue injury to any party, including the government or gave any private party
unwarranted benefits, advantage or preference in the discharge of his functions.
Although violation of Sec. 3 (g) of R.A. No. 3019 and violation of Sec. 3(e)
of the same law share a common element, the accused being a public officer, the
latter is not inclusive of the former. The essential elements of each are not
included among or do not form part of those enumerated in the other. For double
jeopardy to exist, the elements of one offense should ideally encompass or
include those of the other. What the rule on double jeopardy prohibits refers to
identity of elements in the two offenses.
Overpricing In Sajul vs. Sandiganbayan, supra - To substantiate the
assertion that the price of Bato-Bato Enterprises was exorbitant, the prosecution
presented a quotation from Zodiac Trading which states that a fire extinguisher of
the same make and kind would allegedly cost only about P1,500 which was
P1,000 less of Bato-Batos price. It was held that: The comparison of prices
between Bato-bato Enterprises with that of Zodiac Trading is rather
unacceptable. In the first place, Zodiac trading was not properly identified as a
company dealing with fire extinguishers or a leading company selling fire
extinguishers, for that matter. Nobody from the company appeared in court to
testify about its company or its product. The components of its fire extinguishers
were not actually proven to be the same as that of Bato-Bato Enterprises. The
quotation of Zodiac Trading was merely solicited. The veracity of such quotation
was not proven. Considering all these circumstances, it is rather unfair to
compare the prices of Bato-Bato Enterprises with that of Zodiac Trading when
the basis of the comparison has not been established. It could not be concluded
that there was an overpricing of the fire extinguishers when the prosecution
single out only one company, which apparently quoted a lower price than that of
Bato-Bato Enterprises.
In order to show that there was an overpricing in the subject transaction, a
canvass of different suppliers with their corresponding prices should have been
procured which could readily show the differences in the price quotations. Absent
this competent evidence, it is rather unfair to conclude that the price of BatoBato Enterprises was exorbitant on the basis alone of a submitted quotation of
one company and to further rule that the contract was grossly injurious to the
government. The contract entered into by the petitioner would not cause obvious
or glaring injury to the government when petitioner merely continued the
167 | P a g e

purchase from a regular supplier, which he had authority to do so even without
the benefit of bidding.
In Caunan vs. People, G.R. Nos. 181999 & 182001-04 and Marquez vs.
Sandiganbayan, Fourth Division, G.R. Nos. 182020-24, September 2, 2009 The
evidence of the prosecution did not include a signed price quotation from the
walis tingting suppliers of Paraaque City. In fact, even the walis tingting
furnished the audit team by petitioners and the other accused was different from
the walis tingting actually utilized by the Paraaque City street sweepers at the
time of ocular inspection by the audit team. At the barest minimum, the evidence
presented by the prosecution, in order to substantiate the allegation of
overpricing, should have been identical to the walis tingting purchased in 19961998. Only then could it be concluded that the walis tingting purchases were
disadvantageous to the government because only then could a determination
have been made to show that the disadvantage was so manifest and gross as to
make a public official liable under Section 3(g) of R.A. No. 3019.
SECTION 4 (a) - In Disini vs. Sandiganbayan, G.R. No. 169823-24 and
174764-65, September 11, 2013 The elements of the offense under Section 4
(a) of R.A. No. 3019 are: (1) That the offender has family or close personal
relation with a public official; (2) That he capitalizes or exploits or takes
advantage of such family or close personal relation by directly or indirectly
requesting or receiving any present, gift, material or pecuniary advantage from
any person having some business, transaction, application, request, or contract
with the government; (3) That the public official with whom the offender has
family or close personal relation has to intervene in the business transaction,
application, request, or contract with the government.
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The allegations in the information charging the violation of Section 4(a) of
R.A. No. 3019, if hypothetically admitted, would establish the elements of the
offense, considering that: (1) Disini, being the husband of Paciencia EscolinDisini, the first cousin of First Lady Imelda Romualdez-Marcos, and at the same
time the family physician of the Marcoses, had close personal relations and
intimacy with and free access to President Marcos, a public official; (2) Disini,
taking advantage of such family and close personal relations, requested and
received
$1,000,000.00
from
Burns
&
Roe
and
$17,000,000.00
from
Westinghouse, the entities then having business, transaction, and application

with the Government in connection with the PNPPP; (3) President Marcos, the
public officer with whom Disini had family or close personal relations, intervened
to secure and obtain for Burns & Roe the engineering and architectural contract,
and for Westinghouse the construction of the PNPPP.
SECTION 7 Section 7 of RA No. 3019 provides: Section 7. Statement of

assets and liabilities. Every public officer, within thirty days after the approval of
this Act or after assuming office, and within the month of January of every other
year thereafter, as well as upon the expiration of his term of office, or upon his
resignation or separation from office, shall prepare and file with the office of the
corresponding Department Head, or in the case of a Head of Department or chief of
an independent office, with the Office of the President, or in the case of members of
the Congress and the officials and employees thereof, with the Office of the
Secretary of the corresponding House, a true detailed and sworn statement of
assets and liabilities, including a statement of the amounts and sources of his
income, the amounts of his personal and family expenses and the amount of
income taxes paid for the next preceding calendar year: Provided, That public
officers assuming office less than two months before the end of the calendar year,
may file their statements in the following months of January.
On the other hand, Section 8 of RA No. 6713 provides: SECTION 8.

Statements and Disclosure. Public officials and employees have an obligation to
accomplish and submit declarations under oath of, and the public has the right to
169 | P a g e
know, their assets, liabilities, net worth and financial and business interests
including those of their spouses and of unmarried children under eighteen (18)
years of age living in their households. (A) Statements of Assets and Liabilities and
Financial Disclosure. All public officials and employees, except those who serve
in an honorary capacity, laborers and casual or temporary workers, shall file under
oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of
Business Interests and Financial Connections and those of their spouses and
unmarried children under eighteen (18) years of age living in their households.
XXXXXX The documents must be filed: (a) within thirty (30) days after assumption
of office; (b) on or before April 30, of every year thereafter; and (c) within thirty (30)
days after separation from the service.
The rule directing full disclosure of wealth in the SALN is a means of

preventing said evil and is aimed particularly at minimizing if not altogether
curtailing the opportunities for official corruption and maintaining a standard of
honesty in the public service. By the SALN, the public is able to monitor
movement in the fortune of a public official; it serves as a valid check and
balance mechanism to verify undisclosed properties and wealth (Gupilan-Aguilar
vs. Office of the Umbudsman, G.R. No. 197307, February 26, 2014).
It is imperative that every public official or government employee must

make and submit a complete disclosure of his assets, liabilities and net worth in
order to suppress any questionable accumulation of wealth. This serves as the
basis of the government and the people in monitoring the income and lifestyle of
public officials and employees in compliance with the constitutional policy to
eradicate corruption, to promote transparency in government, and to ensure that
all government employees and officials lead just and modest lives, with the end in
view of curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service (OCA vs. Usman, A.M.
No. SCC-08-12, October 19, 2011). In fact, filing SALN is a constitutional duty.
Article 11, Section 17 of the 1987 Constitution provides: Section 17. A public
officer or employee shall, upon assumption of office and as often thereafter as may
be required by law, submit a declaration under oath of his assets, liabilities, and
net worth.
170 | P a g e

Failure to file SALN as required by law is a violation of Section 8 of RA
No. 6713 and Section 7 of RA No. 3019 (Concerned Taxpayer vs. Doblada, A.M.
No. P-99-1342, June 8, 2005). Since both laws provide a penalty for failure to file
SALN, the offender should only be prosecuted and punished either under one or
the other.
However, it is submitted that Section 7 of RA No. 3019 has been modified

by Section 8 of RA No. 6713. The court takes judicial notice of the fact that
public officers are now submitting SALN in compliance with Rules Implementing
the
Code
of
Conduct
and
Ethical
Standards
for
Public
Officials
and
Employees issued by the Civil Service Commission. They are required to file the
SALN on or before April 30, of every year as required under RA No. 6713 and not
within the month of January of every other year as mandated under RA No.
3019.
Section 8 of RA No. 6713 excludes public officials and employees, who

serve in an honorary capacity, laborers and casual or temporary workers from the
requirement of filling SALN. If these public officers are excused from filling SALN
under RA 6713, it would be absurd to criminally make them responsible under
RA No. 3019 for failure to file it. By parity of reasoning, if a public officer filed a
SALN in April of a certain year in compliance of RA No. 6713 he should not be
made criminally liable under RA No. 3019 which requires that the SALN should
be filed within the month of January.
RA No. 3019 is enacted in 1960 or prior to the 1987 Constitution, while

RA No.6713 is passed precisely to implement the constitutional provision on
SALN. Section 8 of RA No. 6713 is the latest legislative expression that gives
spirit and substance to State policy of transparency and public accountability.
Hence, the time regulation and the exclusionary rule under RA No. 6713
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regarding the filing of SALN is controlling even if the accused is charged for
failure to file SALN under Section 7 of RA No. 3019.
SECTION 13 - Any incumbent public officer against whom any criminal

prosecution under a valid information for crime of corruption under RA 3019,
crimes committed by public officer under RPC or for any offense involving fraud
upon government or public funds or property whether as a simple or as a
complex offense and in whatever stage of execution and mode of participation, is
pending in court, shall be suspended from office. Usurpation of public authority
(Miranda vs. Hon. Sandiganbayan, G.R. NO. 154098, July 27, 2005, En Banc)
and election offense (Juan vs. People, G.R. No. 132378, January 18, 2000) are
offenses involving fraud upon the government. Falsification of document
(voucher) is offense involving fraud upon public funds or property (Bustillo vs.
Sandiganbayan, G.R. No. 146217, April 7, 2006).
Presumption of innocence - The preventive suspension under Section

13 of RA No. 3019 is not penalty.
Thus, suspension, which is being ordered
before a judgment of conviction is reached, is not violation of constitutional right

to be presumed innocent (Bunye vs. Escareal, G.R. No. 110216, September 10,
1993). The suspended accused, whose culpability remains to be proven, are still
entitled to the constitutional presumption of innocence (Juan vs. People, G.R. No.
132378, January 18, 2000).
Ex post facto law - Article 24 (3) of the Revised Penal Code clearly states
that suspension from the employment or public office during the trial or in order to
institute proceedings shall not be considered as penalty. It is not a penalty because
it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official
concerned shall be entitled to reinstatement and to the salaries and benefits,
which he failed to receive during suspension. This is merely preventive measures
172 | P a g e

before final judgment. Not being a penal provision, therefore, the suspension from
office, pending trial, of the public officer charged with crimes mentioned in the
amendatory provision committed before its effectivity does not violate the
constitutional provision on ex post facto law (Bayot vs. Sandiganbayan, G.R. No.
L-61776 to L-61861, March 23, 1984).
Pre-suspension hearing - While the suspension of a public officer under

this provision is mandatory, the suspension requires a prior hearing to determine
the validity of the information filed against him, taking into account the
serious and far reaching consequences of a suspension of an elective public
official even before his conviction.
The accused public officials right to
challenge the validity of the information before a suspension order may be issued
includes the right to challenge the (i) validity of the criminal proceeding leading to
the filing of an information against him, and (ii) propriety of his prosecution on
the ground that the acts charged do not constitute a violation of R.A. No. 3019 or
of the provisions on bribery of the Revised Penal Code (Miguel vs. Hon.
Sandiganbayan, G.R. No. 172035, July 04, 2012).
In Luciano vs. Mariano, G.R. N L-32950, July 30, 1971 Where the
preliminary investigation was for falsification, the office of the prosecutor could
not validly charged the petitioner with the graver crime of violation of RA No.
3019. Thus, he is entitled to a new preliminary investigation. The ruling on the
validity of the information is to be held in abeyance until after the outcome of the
preliminary investigation of violation of RA No. 3019, and hence no suspension
order can issue. Should the fiscal find no case, he will then so inform the trial
court and move to dismiss the case. In the contrary case, respondent court will
then have to hear and decide petitioners' pending motion to quash before it,
which squarely raises question that the facts charged do not constitute an
offense and are not punishable under section 3 (a) and (e) of Republic Act No.
3019, contrary to the information's averment.
173 | P a g e

Procedure - Upon the filing of such information, the trial court should
issue an order with proper notice requiring the accused officer to show cause at a
specific date of hearing why he should not be ordered suspended from office
pursuant to 13 of RA No. 3019. Where either the prosecution seasonably files a
motion for an order of suspension or the accused in turn files a motion to quash
the information or challenges the validity thereof, such show-cause order of the
trial court would no longer be necessary. What is indispensable is that the trial
court duly hear the parties at a hearing held for determining the validity of the
information, and thereafter hand down its ruling, issuing the corresponding
order of suspension should it uphold the validity of the information or
withholding such suspension in the contrary case.
No specific rules need be laid down for such pre-suspension hearing.

Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against him, e.g.
that he has not been afforded the right of due preliminary investigation; that the
acts for which he stands charged do not constitute a violation of the provisions of
Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under section 13 of
the Act; or he may present a motion to quash the information on any of the
grounds provided in Rule 117 of the Rules of Court (Miguel vs. Hon.
Sandiganbayan, G.R. No. 172035, July 04, 2012)
Period of preventive suspension- Even though the law is silent on the

duration of the preventive suspension, the suspension should not be indefinite.
Section 13 of RA No. 3019 does not provide the period of preventive suspension.
Hence, the duration of suspension under the Administrative Code, which
provides that the suspension may not exceed 90 days (Layus M.D. vs.
Sandiganbayan, G.R. No. 134272, December 8, 1999) may be adopted in fixing
the duration of suspension under RA 3019. The said 90-day maximum period for
suspension shall apply to all those who are validly charged under RA 3019,
174 | P a g e
whether elective or appointive officer or employee (Gonzaga vs. Sandiganbayan,

G.R. No. 96131, September 6, 1991).
SPEEDY DISOPOSITION OF CASES - In People vs. Hon. Sandiganbayan,

and Perez, G.R. No. 188165, December 11, 2013 - There was really no sufficient
justification tendered by the State for the long delay of more than five years in
bringing the charges against the respondents before the proper court. On the
charge of robbery, the preliminary investigation would not require more than five
years to ascertain the relevant factual and legal matters. The basic elements of
the offense, that is, the intimidation or pressure allegedly exerted on Cong.
Jimenez, the manner by which the money extorted had been delivered, and the
respondents had been identified as the perpetrators, had been adequately bared
before the Office of the Ombudsman. The obtention of the bank documents was
not indispensable to establish probable cause to charge them with the offense. In
fine, the Office of the Ombudsman transgressed the respondents right to due
process as well as their right to the speedy disposition of their case. Because of
the inordinate delay in resolving the criminal complaint by the Ombudsman
against respondent, the cases against respondent were dismissed.
PLUNDER
RA No. 7080
1. The elements of plunder are:
(1) That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons;
(2) That he amassed, accumulated or acquired ill-gotten wealth through
a combination or series of the following overt or criminal acts:
(a) through misappropriation, conversion,
misuse,
malversation of public funds or raids on the public treasury;
or
(b) by receiving, directly or indirectly, any commission, gift,

share, percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer;
175 | P a g e

(c) by the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries;
(d) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise
or undertaking;
(e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees and
orders intended to benefit particular persons or special interests; or
(f) by taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines; and,
(3) That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least P50,000,000.00 (Joseph Ejercito
Estrada vs. Sandiganbayan, G.R. No. 148560, November 19, 2001).
2. A Senator on three occasions identified Napoles bogus nongovernmental as recipient of his PDAP in the total amount of 100 million. Instead
of using the fund for legitimate purpose, the Senator and Napoles divided the
money on the basis of 40-60 sharing. Napoles got the lions share. Did they
commit plunder?
No. The Senator as a public officer did not amassed, accumulated or
acquired ill-gotten wealth through series of misuse or malversation of public
funds in the aggregate amount of at least P50,000,000.00. The Senator merely
acquired 40 million pesos in this modus operandi. On the other hand, Napoles on
her private capacity cannot commit plunder.
3. Would you answer be the same if the Senator got the lions share of
60%?
176 | P a g e

Yes. The Senator, who acquired 60 million pesos, is liable for plunder.
Under RA 7080, plunder can be committed by a public officer who acts by
himself or in connivance other persons
Napoles is likewise liable on the basis of conspiracy. Because of
conspiracy, the acts of plunder committed by the Senator, a public officer, is
attributable to Napoles, a private individual, although they are not similarly
situated in relation to the object of the crime.
4. Can the Senator use the defense in malversation that he is not
responsible for the misuse of his PDAP since it is the duty of the appropriate
implementing agency of the government to check that the recipient of the fund
is not bogus?
No. Assuming that the duty to check that the recipient of the Senators
PDAP is not bogus belongs to the appropriate agency of the government, the
Senator is still liable since malversation can be committed through culpa.
CYBERLIBEL
Writing, printing, lithography, engraving, radio, phonograph, painting,

theatrical exhibition, cinematographic exhibition are means of publication in libel
(2002 Bar Examination). They have a common characteristic, and that is, their
permanent nature as a means of publication and this explains the graver penalty
for libel than that prescribed for oral defamation. Hence, the phrase any similar
means should be understood in the lights of the said common characteristic of
the means to commit libel. Thus, defamation thorough amplifier constitutes
slander under Article 358 and not libel since its nature as means of publication
is not permanent, and thus, it is not similar to radio or other means mentioned
in Article 355 since (People vs. Santiago, G.R. No. L-17663, May 30, 1962). On
the other hand, television though not expressly mentioned in Article 355 easily
qualifies under the general provision or any similar means (People vs. Casten,
CA-G.R. No. 07924-CR, December 13, 1974; 2005 Bar Examination). Since
nature of internet as a means of publication is permanent, it should be
considered as a means to commit libel. In Disini, the Supreme Court ruled:
177 | P a g e
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed, cyberlibel
is actually not a new crime since Article 353, in relation to Article 355 of
the Penal Code, already punishes it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes "similar means" for committing
libel.
Venue of cyber libel - As a general rule, the venue of libel cases where
the complainant is a private individual is limited to only either of two places,
namely: 1) where the complainant actually resides at the time of the commission
of the offense; or 2) where the alleged defamatory article was printed and first
published (Article 360 of the Revised Penal Code).
However, the place where libelous article was accessed by the offended
party in the internet is not equivalent to the place where the libelous article
is printed and first published within the contemplation of the rule on venue
under Article 360 of the Revised Penal Code.
To rule otherwise is to allow the evil sought to be prevented by the

amendment to Article 360, and that was the indiscriminate or arbitrary laying of
the venue in libel cases in distant, isolated or far-flung areas, meant to
accomplish nothing more than harass or intimidate an accused. The disparity or
unevenness of the situation becomes even more acute where the offended party
is a person of sufficient means or possesses influence, and is motivated by spite
or the need for revenge.
178 | P a g e
To equate the first access to the defamatory article on website with

"printing and first publication of the article" would spawn the very ills that the
amendment to Article 360 of the RPC sought to discourage and prevent. It hardly
requires much imagination to see the chaos that would ensue in situations where
the websites author or writer, a blogger or anyone who posts messages therein
could be sued for libel anywhere in the Philippines that the private complainant
may have allegedly accessed the offending website.
At any rate, Article 360 still allow offended party to file the civil or
criminal complaint for internet libel in their respective places of residence
(Bonifacio vs. RTC, Makati, Branch 149,G.R. No. 184800, May 5, 2010)
179 | P a g e

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2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

TERRITORIALITY PRINCIPLE: Under the principle of territoriality, the

1. Embassy - The ground occupied by US embassy is in fact the

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

EXTRA-TERRITORIALITY - Under the principle of extra-territoriality, the

committed by public officer (such as corruption or direct bribery), crimes

PROSPECTIVITY: Article 22 of RPC - If the court in trying an accused,

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

New regulation - Repeal with re-enactment of a penal law does not

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

INDETERMINATE OFFENSE DOCTRINE In People vs. Lamahang,

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2. Evident premeditation- In case of aberatiu ictus and error in

appreciated. there is no incompatibility between evident premeditation and no

3. Treachery - If accused employed means to render the victim

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

SPECIAL LAW - B.P. Blg. 22 does not expressly proscribe the

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

Right to apply for probation even if the penalty for possession of

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

Moreover, a police officers act of soliciting drugs from appellant during

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

VOLUNTARY SURRENDER To appreciate the mitigating circumstance

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

VOLUNTARY CONFESSION - A plea of guilty made after the prosecution

VENDICATION: The mitigating circumstance of having acted in the

circumstance of sufficient provocation cannot be considered apart from the

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

In vindication of grave offense, criminal exemption of accessories,

Generic aggravating circumstances has the effect of increasing the

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

Treachery is not a qualifying circumstance but a generic aggravating

EMPLOMENT OF MEANS TO WEAKEN DEFENSE - If the employment

2015 BAR REVIEWER ON CRIMINAL LAW JUDGE MARLO B.CAMPANILLA

As a general rule, nighttime is aggravating because the darkness of the