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ATENEO LAW SCHOOL

Criminal Law II, Section 1-E

Atty. Lorenzo U. Padilla, A.B., Ll. B., M.B.A., Ll. M.

MIDTERM EXAMINATION POINTERS

Part One
EXPLAIN YOUR UNDERSTANDING

1. Can restitution, payment or reimbursement be asserted as a


defense against a prosecution for malversation of public funds or property;
why?

2. How is indirect bribery committed?

3. Would the crime be abortion where the offender caused a fetus


with an intra-uterine life of only 6 months to be expelled prematurely and
deliberately from the maternal womb, assuming that it was born alive,
although it died shortly thereafter; why?

4. When may a public officer who is not in charge of public funds or


property by virtue of his official position, or even a private individual, be held
liable for malversation?

5. Distinguish serious illegal detention from arbitrary detention?

6. How is serious illegal detention committed, and when is illegal


detention merely considered slight?

7. When does kidnapping constitute terrorism?

8. Distinguish trespass to dwelling from violation of domicile.

9. Define the crime of theft .

10. May theft be committed in the frustrated stage; why?

11. Distinguish brigandage under Article 306, Revised Penal Code,


from highway robbery/brigandage under Presidential Decree No. 532.

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12. How are grave threats committed ?

13. Distinguish grave coercion from unjust vexation .

14. May a person charged with a violation of Batas Pambansa Blg. 22,
on the issuance of bouncing checks, be also prosecuted for a violation of
Article 315(2)(d), on the issuance of checks without sufficient funds? If so,
under what circumstances?

15. When, if at all, may a private individual incur criminal liability for
the crime of infidelity in the custody of prisoners.

16. May the use of an unlicensed firearm be appreciated in the crime


of robbery with homicide, when the same is committed by a band? Why?

17. If by reason or on the occasion of robbery, both homicide and rape


were committed, how is the crime to be characterized and charged in the
information?

18. Discuss the requirements of the provision under Article 217 of the
Revised Penal Code that establishes a prima facie presumption of
malversation?

19. When, if at all, may conviction for malversation stand on the basis
solely of a presumption?

20. Discuss the so-called theory of absorption as applied to rebellion


and explain, with reasons, whether or not it is also applicable to (a) coup
detat; and (b) sedition.

Part Two
SOLVE THE PROBLEMS

1. Y, a policeman patrolling his beat, saw a person acting suspiciously


inside the premises of Z. Y covered himself behind a concrete wall and watched the
person as he was picking some valuable property inside the premises. The policeman
saw the person carrying away the property and when he was out of the premises, Y
stopped and placed him under arrest. X was charged, prosecuted and convicted of
theft, in its consummated stage. X appealed on the ground that since Y saw him even
before he began to take the property and, therefore, the policeman could have
prevented the crime, he should not be held liable for theft. In any event, he added, he
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should have been charged, if at all, only with attempted or frustrated theft,
considering that, under the circumstances, with the policeman around and watching
his every move, there was no way for him to have accomplished the purpose being
imputed to him. Rule on both contentions.

2. (a) A, with other members of the NPA, asked the people in a barrio
for foodstuff, at the same time warning them, on pain of having their heads cut off,
not to report the presence of members of the NPA in those parts to the Philippine
Army. Disregarding the warning, B and C denounced the members of the NPA to
the local Philippine Army detachment, with the result that the NPA members were
ambushed by the soldiers of the Philippine Army. In retaliation for what B and C had
done, a group of NPA members led by A (A and Others) returned to the barrio
and apprehended B and C, and with their hands bounds to their backs, cut off their
heads. Then, A and his companions took everything they could use from the house
of B and C. Can A and Others be convicted of murder, as a separate crime from
rebellion? Can the crime of murder committed by A and Others be complexed
with rebellion?

(b) A raid was staged in the town of Tiaong, Quezon, between 8:00 and 9:00
in the evening of November 14, 2xxx, by armed men, who were members of the New
Peoples Army (NPA), resulting in the burning down and complete destruction of the
house of Mayor MP, including its contents; the house of VR, and the house of one
YM, the death of Patrolman DP and civilians VS and LU, and the wounding of
Patrolman PL and five civilians. During and after the burning of the houses, some of
the raiders engaged in looting, robbing one house and two Chinese restaurants. The
raiders were finally dispersed and driven from the town by the Philippine Army
soldiers who came to reinforce those stationed in the town. The raiders did not attack
the seat of local Government. The object if the raid was to kidnap or kill MP, who
was then Mayor of Tiaong, and destroy his house, on inducement of the latters
political rival, in preparation for the coming elections. What crime or crimes
was/were committed?

(c) One morning, an armed band, hereinafter called X and Others,


composed of some fifteen men, according to some of the witnesses, and of over forty,
according to others, entered the town of Binangonan and kidnapped JS, the municipal
mayor; JT, provincial secretary, who happened to be in the town; SA, municipal health
officer; one LG, and an American whose name does not appear. These people were
led along the road toward the town of Carmona; but when the party had covered
about half the distance to the town, a band of Army soldiers was encountered by
them. In the course of the fight which ensued, and as a result of the confusion
thereby produced, the prisoners succeeded in escaping from their captors. X and
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Others were also eventually captured. If all the foregoing facts are alleged in the
information, without more, and proved at the trial, can X and Others be
convicted of the crime of rebellion; why?

(d) KD, who appears to be an area leader of the New People's Army (NPA),
Sparrow Unit, directed AM, CA, DR, and VB, members of the NPA to go to Barrio
Punti and kill one RA, who was suspected by KD to be a Philippine Army (PA)
informer. All four of them went to the barrio of RA, AM carrying a Browning
shotgun, DR a Thompson, CA a carbine and VB, a homemade gun called Bulldog.
They arrived at Punti at 9:00 A.M. and they saw RA at the river bank giving his
carabao a bath. DR went to RA and, after a while, shot him with his gun. AM also
shot him with his Browning followed with another shot by CA, as a result of which
RA fell down and died. AM then placed on the dead body of RA a writing and
drawing made by their association warning the people and the PA of their activities.
Thereafter, the group returned and reported to KD that RA was already dead. After
subsequent apprehension, an information was filed by the provincial fiscal charging
AM, VB, and CA of the crime of murder. After conviction for murder, AM appealed.
Can it be contended, in this appeal, that the crime committed is not murder
but rebellion only?

(e) FS executed an affidavit, wherein he provided details regarding meetings


that CB and Others attended in 2005 and 2006 in which plans to overthrow violently
the Arroyo government were allegedly discussed and decided upon, among others.
Are those statements in FS affidavit sufficient to serve as basis for a finding of
probable cause against CB for the crime of Rebellion or for any other crime?

3. AF issued the check to induce HS to execute a deed of sale in his


favor. The Deed of Absolute Sale was signed after AF gave PNB Check No.
395532-S to HS. AF did not dispute that at the time of the issuance of PNB
Check No. 395532-S, his account balance was only P1,026.53. AF closed his
account on 27 May 1994, three months before the date indicated in PNB Check
No. 395532-S. Charged with estafa for having issued an unfunded check, AF
asserts that he could not be liable for that crime as the element of deceit is
absent, considering that even without informing the payee of the check, the
latter could already have discerned that the checks had no funds because if he
had sufficient funds to pay the balance of the purchase price, he would not
have issued the checks. Rule on AFs defense (10%).

4. X, having lost to Y in the game of poker, intended to divest Y of his


winnings amounting to P20,000.00. In pursuit of his plan to rob Y of his
winnings, X shot and killed him as well as his companion, Z. PO W, who was
behind Y and Z, at that time, saw X and a companion running up a hill when,

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suddenly, he heard gunshots and then saw Y and Z, who were then walking
ahead of the group, hit by the gunfire. By instant, PO W dove into a canal to
save himself from the continuous gunfire of X. PO W ran towards VA and FA,
who were walking behind the group, and informed the two that Y and Z were
ambushed by X and his companion. The three sought help from the police
authorities and returned to the scene of the crime where they saw Z, who was
still alive and who narrated that it was X and his companion who ambushed
them and took the money, estimated at P12,000.00, which he won in the card
game. If X is prosecuted for this incident, should he be convicted of: (1)
robbery with homicide, for the killing and robbery of Y and Z; why (5%);
and (2) attempted murder, for shots fired by X against PO W; why (5%)?

5. Where the municipal mayor never denied that he received checks


representing disallowed cash advances and he, in fact, admitted that the
disallowed cash advances were made under his authority, and that he was the
payee of the checks and that he received them, may it be contended that
such municipal mayor is an accountable public officer for purposes of
applying Art. 217, RPC, on malversation; why (5%)?

Part Three
CHOOSE THE BEST ANSWERS

_____ 1. Acts of lasciviousness may be distinguished from attempted rape


in terms of: (a) the performance of acts of lascivious character; (b) the
manner of committing the crime; (c) the external manifestation of the
crime; (d) the intent of the offender.

_____ 2. Where X and Others grabbed a 16-year old girl, dragged her to a
nearby forest and there brutally ravished her, the crime is: (a) kidnapping
with rape; (b) rape only; (c) kidnapping only, rape being a mere incident
thereof, possibly aggravating the same; (d) forcible abduction with rape.

_____ 3. Which of the following may serve as basis to differentiate estafa


with abuse of confidence from malversation; (a) the circumstance of the
offender as being entrusted with funds or property; (b) the continuing
nature of the offense; (c) the resulting damage; (d) the nature of the funds
or property involved as public or private.

_____ 4. Where X entered the house of Y, a woman, took her money and
jewelry, raped her and, then, killed her, the crime committed is: (a) robbery
with rape; (b) robbery with rape, aggravated by homicide; (c) robbery with
homicide only; (d) robbery with homicide, aggravated by rape.

_____ 5. The following are special complex crimes defined in relation to


robbery: (a) robbery with homicide; (b) robbery with rape; (c) attempted or
frustrated robbery with homicide; (d) robbery with frustrated homicide or
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murder.

_____ 6. The common element in various forms of grave coercion is: (a)
preventing another from doing something not prohibited by law; (b)
compelling another to do something against his will; (c) use of violence or
such display of force as controls the will of the victim; (d) demand for
money or imposition of condition.

_____ 7. A domestic servant who, taking advantage of the absence of the


owner thereof, broke open a locked chest and took money and jewelry
therefrom and, thereafter, spent the proceeds for her own benefit, committed
the crime of: (a) simple theft; (b) qualified theft; (c) estafa with abuse of
confidence; (d) robbery with force upon things.

_____8. X who picked the pocket of Y, succeeding to extract Ys wallet


therefrom, but threw it away, seconds afterwards, after finding it empty,
allowing Y, who was running after X, to retrieve it, is: (a) guilty of theft; (b)
guilty of unjust vexation; (c) guilty of an impossible crime; (d) not guilty of
any crime at all.

_____ 9. What element of theft is lacking when a person takes property


belonging to another, believing in good faith that it belongs to him and returns
the same one day after realizing that it was not so: (a) violence against or
intimidation of persons; (b) use of force upon things; (c) intent of gain; (d)
intent to withhold the thing at the time of taking with the character of
permanency?

_____ 10. A who, while visiting the house of his married sister, B, saw the
latters purse and took it, extracting therefrom a P50 bill with which he bought
himself some food, is (a) liable for theft; (b) not criminally but only civilly
liable; (c) liable for estafa or swindling; (d) exempt from criminal and civil
liability.

_____ 11. X, a stranger, poisoned Y, a pregnant woman, with intent to kill


her. As a consequence, Y died, along with the foetus in her womb. Under the
circumstances, X should be held liable for: (a) murder; (b) murder with
intentional abortion; (c) murder with unintentional abortion; (d) murder
and abortion, as two separate and distinct crimes.

_____ 12. A public officer does not incur criminal liability for revealing
secrets of private individuals coming to his knowledge by reason of his office
when: (a) the secrets merely affect the name, honor or reputation of such
private individuals; (b) the secrets affect merely the fortunes of such
private individuals; (c) the secrets are contrary to public interest or the
administration of justice; (d) no damage is caused by revealing such
secrets to such private individuals.
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_____ 13. In which case, among the following cases, would the act of
preventing another from doing something, by means of violence or intimidation,
constitute grave coercion instead of another crime: (a) preventing the meeting
of a legislative body; (b) hindering or preventing another from joining any
lawful association or from attending any of its meeting committed by a
public officer; (c) preventing a member of Congress from attending the
meetings thereof, or from expressing his opinion or from casting his vote;
(d) preventing another from casting his vote in a popular election.

_____ 14. Trespass to dwelling is qualified when committed: (a) by means of


violence or intimidation; (b) with grave abuse of confidence; (c) with
obvious ungratefulness; (d) by entering the dwelling through a means not
intended or ingress or egress.

_____ 15. The factor that distinguishes grave threat from robbery with
intimidation is: (a) the existence of a demand for money or property; (b)
presence or absence of the element of intent of gain; (c) attainment of the
purpose of the offender; (d) the directness, persistence and continuing
nature of the intimidation employed and the immediacy of gain obtained
or intended.

_____ 16. Which of the following is not an element of estafa with


unfaithfulness: (a) that the offender has an onerous obligation to deliver
something of value; (b) that such thing pertains to his art or business; (c)
that he alters its substance, quantity or quality; (d) that there is damage
or prejudice caused to another.

_____ 17. X, a policeman who pretended to arrest a 15-year old girl, who is a
no longer physically a virgin but of good reputation, for jaywalking, and who
took her to a certain house where he had sexual intercourse with the girl with
her consent, is liable for qualified seduction because: (a) the girl is unmarried
and of good reputation; (b) the girl was not raped but consented to the
sexual intercourse; (c) the girl is under 18 years of age and of good
reputation; (d) the policeman is a person in public authority and such
term includes any person exercising public authority, whether directly or
as an agent.

_____18. For an attorney's act of revealing secrets of a client learned in


professional capacity to constitute betrayal of trust, (a) it is necessary that
the revelation of such secrets should cause damage or prejudice to the
client; (b) it is enough that such secrets have been revealed; (c) the
attorney must, at least have, intent to cause damage or prejudice to the
client; (d) the attorney must intend to betray the clients trust, hence
mere revelation of such secrets is not enough.

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_____19. In the felony of maltreatment of prisoners, the lower penalty
prescribed in Art. 235, Rev. Pen. Code, is imposable in all of the following
cases: (a) if the purpose of maltreatment is only to extort a confession; (b)
if the purpose of maltreatment is simply to obtain information; (c) if
maltreatment arises from the imposition of punishments not authorized
by the regulations or by inflicting such punishment in a cruel and
humiliating manner; (d) if no physical injury or damage is caused to the
prisoner.

_____20. In illegal use of public funds or property, the existence of damage


or embarrassment to the public service is (a) entirely immaterial because it
is not an element of said felony; (b) material because it is an element of
the said felony; (c) material in fixing the penalty for the said felony; (d)
material or immaterial, depending upon the circumstances of the case.

_____21. Where nothing in the evidence would show that the victim had a
wristwatch and that the accused took said watch, as alleged in the information,
although the accused admitted in his confession that he announced a hold-up
with a loaded gun inside the victim's taxicab and thereafter he and the victim
grappled for his gun, but as they struggled, accused squeezed the trigger, thus
shooting the victim to death, then hurriedly getting off the taxicab, leaving his
gun behind, the accused should be convicted of: (a) robbery with
homicide, because the overt acts so far executed by him, including his
announcement of a hold up, clearly show his intention to rob the victim;
(b) attempted robbery with homicide, because the homicide was by reason
of an attempt to commit robbery; (c) homicide only, because nothing in
the evidence would show that the victim had a wristwatch and that the
accused took said watch, as alleged in the information; (d) attempted
robbery and homicide as separate offenses, because there is no such thing
as attempted robbery with homicide.

_____22. Whenever a public officer commits any of the crimes of swindling


and other deceits, defined and penalized under Chapter 6, Title Ten of the Rev.
Pen. Code, taking advantage of his official position, then (a) he may only be
prosecuted therefor under the relevant provisions of Title Seven of the
same Code, on crimes committed by public officers, particularly Article
214 thereof; (b) he will be prosecuted under the appropriate provisions on
swindling and other deceits, defined and penalized under Chapter 6, Title
Ten of the Rev. Pen. Code, with the special aggravating circumstance of
abuse of official position; (c) he will be prosecuted under the appropriate
provisions on swindling and other deceits, defined and penalized under
Chapter 6, Title Ten of the Rev. Pen. Code, subject to the provisions of
Article 214, Title Seven of the same Code; (d) he will be prosecuted under
the appropriate provisions of Article 214, Title Seven of the same Code or
under the appropriate provisions on swindling and other deceits, defined

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and penalized under Chapter 6, Title Ten of the Rev. Pen. Code,
depending upon the choice of the prosecution.

_______23. Where X entered the house of Y, a woman, took her money and
jewelry, raped her and, then, killed her, the crime committed is: (a) robbery
with homicide only; (b) robbery with rape; (c) robbery with homicide,
aggravated by rape; (d) robbery with rape, aggravated by homicide.

_______24. In the context of the elements of estafa with abuse of confidence


under Article 315[1](b), Revised Penal Code, (a) a formal or written demand is
necessary, such that the failure of the prosecution to present proof of a
written demand would be fatal to its cause; (b) a formal or written
demand is necessary only if there is no evidence of misappropriation or
conversion, such that the failure of the prosecution to present proof of a
written demand in such case would be fatal to its cause; (c) a formal or
written demand is necessary only if there is evidence of misappropriation
or conversion, such that the failure of the prosecution to present proof of
a written demand in such case would be fatal to its cause; (d) a formal or
written demand is not necessary at all, whether or not there is evidence
of misappropriation or conversion, and its absence is not fatal to the
cause of the prosecution.

_______25. Even if the accused had been charged with acts of lasciviousness
for having inserted his finger into the genital or anal orifice of the victim, (a) he
can be convicted of rape by sexual assault under Art. 266-A, paragraph 2,
as the former necessarily includes the latter; (b) he cannot be convicted of
rape by sexual assault under Art. 266-A, paragraph 2, as the former does
not necessarily include the latter; (c) he can be convicted of rape by
sexual assault under Art. 266-A, paragraph 2, as the former is penalized
less severely than the latter and both their means of commission is the
same; (d) he cannot be convicted of rape by sexual assault under Art. 266-
A, paragraph 2, because he cannot be punished for an offense graver than
that with which he was charged.

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