2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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 court’s
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 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).
c. Right of possessor 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.”
d. Right of child to apply for
probation despite appeal - Section 4 of
PD No. 968 provides: “Application for
probation must be filed within the period of
41 | P a g e
JUDGE MARLO B. CAMPANILLA
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 the best
interest to the child. For this purpose,
Section 4 of Presidential Degree No. 968,
otherwise known as the “Probation Law of
1976”, is hereby amended
accordingly.” 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.
SUSPENDED SENTENCE OF CHILD IN
CONFLICT WITH THE LAW
Persons who have been convicted
and are serving sentence at the time of the
effectivity of RA No. 9344 (Juvenile Justice
and Welfare Act), and who were below the
age of eighteen (18) years at the time of the
commission of the offense for which they
were convicted and are serving sentence,
shall likewise benefit from the retroactive
application of this law. They shall be
entitled to appropriate dispositions
provided under this Act and their sentences
shall be adjusted accordingly. 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).
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. However, 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 (People vs.
Mantalba, G.R. No. 186227, July 20, 2011,
Justice Peralta; People vs. Monticalvo, G.R.
No. 193507, January 30, 2013).
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
Under Section 38 of RA No. 9344,
instead of pronouncing the judgment of
conviction, the court shall place the child in
conflict with the law under suspended
sentence, without need of application even
if he is already 18 of age or more at that
time. However, under Section 40, the
sentence shall be suspended until the child
reaches the maximum age of 21
years. Hence, once the child in conflict with
the law has reached 21 years of age, or
over, the application of Sections 38 and 40
is moot and academic. But he even if
already over 21 years old at the time of
conviction, may still avail of the benefits of
being confined in an agricultural camp and
other training facilities instead of a regular
penal institution in accordance with Section
51 (People vs. Salcedo, GR No. 186523,
June 22, 2011, Justice Peralta).
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);
42 | P a g e
JUDGE MARLO B. CAMPANILLA
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.
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 mayor––an 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.
Good faith is a defense in criminal
prosecutions for usurpation of official
functions. The requirement of permits to
transport was accused’s decision alone; it
was a result of the collective decision of the
participants during the Multi-Sectoral
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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
against accused’s allegedly intended
usurpation. Thus, the presence of DENR
official during the Multi-Sectoral Assembly
strengthens accused’s 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.
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 (Miñoso v. Pamulag, A.M. No. P-
43 | P a g e
JUDGE MARLO B. CAMPANILLA
05-2067, 31 August 2005; Pace v.
Leonardo, A.M. No. P-03-1675, 6 August
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-01-1472, June 26, 2003).
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; Justice Peralta).
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, Justice Peralta).
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 budget
officer. Municipal treasurer certified to the
availability of funds and released the money
even without the requisite budget officer’s
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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
municipality’s 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).
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 aree qually
punishable for malversation (Torres vs.
People, GR No. 175074, August 31, 2011,
Justice Peralta)..
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 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, Justice Peralta).
Prima facie evidence of
malversation - More importantly, in
malversation of public funds, the
prosecution is burdened to prove beyond
reasonable doubt, either by direct or
circumstantial evidence, that the public
officer appropriated, misappropriated or
consented, or through abandonment or
negligence, permitted another person to
take public property or public funds under
his custody. Absent such evidence, the
public officer cannot be held criminally
liable for malversation. Mere absence of
funds is not sufficient proof of conversion;
44 | P a g e
JUDGE MARLO B. CAMPANILLA
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 (Legrama vs.
Sandiganbayan, GR No. 178626, June 13,
2012; Justice Peralta).
Verily, in the crime of malversation
of public funds, all that is necessary for
conviction is proof that the accountable
officer had received the public funds and
that he failed to account for the said funds
upon demand without offering sufficient
explanation why there was a shortage. In
fine, petitioner’s failure to present
competent and credible evidence that would
exculpate her and rebut the prima
facie presumption of malversation clearly
warranted a verdict of conviction (Legrama
vs. Sandiganbayan, GR No. 178626, June
13, 2012; Justice Peralta).
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 latter’s 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 crime is not attempted murder
but physical injuries only (Pentecoste, Jr.
vs. People, G.R. No. 167766, April 7, 2010).
EXCESSIVE CHASTISEMENT
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
“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).
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,
Justice Peralta; Magtira vs. People, G.R.
No. 170964, March 7, 2012). However,
demand is not necessary if there is evidence
of misappropriation.
Misappropriation as an element of
the offense of estafa connotes 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. 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
45 | P a g e
JUDGE MARLO B. CAMPANILLA
vs. People, GR No. 165411, June 18, 2009,
Justice Peralta).
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
inspection of the items for sale (Tabaniag
vs. People, GR No. 165411, June 18, 2009,
Justice Peralta).
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, Justice Peralta).
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 co-conspirators. 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,
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
Justice Peralta).
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 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
46 | P a g e
JUDGE MARLO B. CAMPANILLA
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 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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
co-conspirators 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 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
47 | P a g e
JUDGE MARLO B. CAMPANILLA
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, ).
FALSIFICATION
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 cashier’s 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).
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).
What is the crime committed if
private document is falsified as a necessary
means to commit or conceal estafa or
malversation?
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.
Falsification - If the offender
committed 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).
Estafa or malversation– If a person
falsified a 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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).
Note: 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.
What is the crime committed if
public, official, or commercial document is
falsified as a necessary means to commit or
conceal estafa or malversation?
Complex crime - Since damage to
third person is not an element of
falsification of public, official or commercial
document, it consummates the very
moment the offender falsifies the document.
If the offender uses the falsified document
to defraud a third person or the
government, estafa or malversation is also
committed. Estafa or malversation
consummates the moment the third person
or government suffers damages. Since
falsification is committed as a necessary
means to commit estafa or malversation,
complex crime under Article 48 is
committed. (See: Ambito, vs. People, G. R.
No. 127327, Feb. 13, 2009; People vs.
Barbas, G.R. No. 41265, July 27, 1934).
Separate crimes - If falsification of
public, official or commercial document is
used as a means to conceal estafa or
malversation, two distinct crimes of estafa
(or malversation) and falsification are
committed. There is nocomplex crime since
falsification is not a necessary means to
commit estafa or malversation since the
latter was already consummated when the
former was committed (See: People vs.
Monteverde, G.R. No. 139610, August 12,
2002).
When the offender commits on a
public, official or commercial document any
of the acts of falsification as a necessary
means to commit another crime like estafa,
theft or malversation, the two crimes form a
complex crime. The falsification of a public,
official, or commercial document may be a
means of committing estafa, because before
the falsified document is actually utilized to
defraud another, the crime of falsification
has already been consummated, damage or
intent to cause damage not being an
element of the crime of falsification of
public, official or commercial document. In
other words, the crime of falsification has
48 | P a g e
JUDGE MARLO B. CAMPANILLA
already existed. Actually utilizing that
falsified public, official or commercial
document to defraud another is estafa. But
the damage is caused by the commission of
estafa, not by the falsification of the
document. Therefore, the falsification of
the public, official or commercial document
is only a necessary means to commit estafa.
Taken in its entirety, the proven facts show
that petitioner could not have withdrawn
the money without falsifying the questioned
documents. The falsification was,
therefore, a necessary means to commit
estafa, and falsification was already
consummated even before the falsified
documents were used to defraud the bank.
The crime committed is complex crime of
estafa through falsification of commercial
document (Tanenggee vs. People, GR No.
179448, June 26, 2013).
In Patula vs. People, G.R. No.
164457, April 11, 2012 - According to the
theory and proof of the Prosecution,
petitioner misappropriated or converted the
sums paid by her customers, and later
falsified the duplicates of the receipts before
turning such duplicates to her employer to
show that the customers had paid less than
the amounts actually reflected on the
original receipts. Obviously, she committed
the falsification in order to conceal her
misappropriation or conversion.
Considering that the falsification was not
an offense separate and distinct from
the estafa charged against her, the
Prosecution could legitimately prove her
acts of falsification as its means of
establishing her misappropriation or
conversion as an essential ingredient of the
crime duly alleged in the information. In
that manner, her right to be informed of the
nature and cause of the accusation against
her was not infringed or denied to her.
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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
civil disturbance (People vs. Bayon, GR No.
168627, July 02, 2010, Justice Peralta).
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.
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 complainant’s 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).
49 | P a g e
JUDGE MARLO B. CAMPANILLA
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 accused’s 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 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 accused’s 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
constitutive of theft. If the possession is
juridical or legal, misappropriation thereof
is estafa through misappropriation.
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).
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 (People v. Locson, G.R.
No. L-35681, October 18, 1932). In one
case, 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 (Aigle vs. People,
G.R. No. 174181, June 27, 2012).
Driver of jeepney under boundary
arrangement, who did not return the
vehicle to it’s 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
50 | P a g e
JUDGE MARLO B. CAMPANILLA
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).
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,).
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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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.PLDT’s 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 PLDT’s telephone system, through which
petitioner is able to resell or re-route
international long distance calls using
respondent PLDT’s facilities constitutes
acts of subtraction (taking)penalized under
the said article(Laurel vs. Abrogar).
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 Diño 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 latter’s consent. While the Diño
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
one’s 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.
51 | P a g e
JUDGE MARLO B. CAMPANILLA
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 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, Justice Peralta).
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
perpetrator’s 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
robbery with homicide is for the
prosecution to firmly establish the
offender’s 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, 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,
52 | P a g e
JUDGE MARLO B. CAMPANILLA
Justice Peralta; People vs. De Leon, GR
No. 179943, June 26, 2009, Justice
Peralta; People vs. Diu, GR No. 201449,
April 03, 2013).
In People vs. Concepcion, G.R. No.
200922, July 18, 2012 - Accused snatched
victim’s 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. Accused’s co-
conspirator, who was driving the
motorcycle, died because he lost 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, Justice
Peralta; People vs. De Leon, GR No.
179943, June 26, 2009, Justice Peralta;
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, Justice Peralta;
People vs. De Leon, GR No. 179943, June
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
26, 2009, Justice Peralta; 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 latter crime may be
committed in a place other than the situs of
the robbery (People vs. Ebet, GR No.
181635, November 15, 2010, Justice
Peralta).
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 10th 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, Justice Peralta).
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
53 | P a g e
JUDGE MARLO B. CAMPANILLA
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, Justice Peralta).
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, Justice Peralta).
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 Valderosa’s 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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.
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
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).
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 accused. There is a national
presumption that one intends the natural
54 | P a g e
JUDGE MARLO B. CAMPANILLA
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
security implications than
destructive arson (People vs. Macabando,
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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.
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 appellant’s act
affected many families will not convert the
crime to destructive arson, since the
appellant’s 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.
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).
55 | P a g e
JUDGE MARLO B. CAMPANILLA
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, Justice
Peralta).
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, Justice Peralta).
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, Justice
Peralta).
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 victim’s 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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 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
child’s freedom remains at the mercy and
control of the abductor (People vs. Baluya,
GR No. 181822, April 13, 2011, Justice
Peralta).
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).
RAPE
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 person’s
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).
MENTAL RETARDATION - In rape,
the phrase "deprived of reason" refers to
mental abnormality, deficiency or
56 | P a g e
JUDGE MARLO B. CAMPANILLA
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 individual’s former
intellectual level and often by emotional
apathy, madness, or insanity. On the other
hand, the phrase deprived of
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).
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).
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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).
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, Justice
Peralta).
Qualifying circumstance of
mental disability - The mere fact that the
rape victim is a mental retardate does not
automatically merit the appreciation of
qualifying circumstance. Under Article 266-
B (10) of RPC, knowledge by the offender of
the mental disability, emotional disorder, or
physical handicap at the time of the
commission of the rape is the qualifying
circumstance. As such this circumstance
must be formally alleged in the information
and duly proved by the prosecution (People
vs. Obogne, GR No. 199740, March 24,
2014).
RPC punishes the rape of a mentally
disabled person regardless of the
perpetrator’s awareness of his victim’s
mental condition. However, the
perpetrator’s knowledge of the victim’s
mental disability, at the time he committed
the rape, qualifies the crime (People vs.
Caoile, GR No. 203041, June 05, 2013).
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
57 | P a g e
JUDGE MARLO B. CAMPANILLA
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 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)
RAPE THROUGH FRAUDELENT
MACHINATION - 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. It is
submitted that the crime committed by
accused is rape through fraudulent
machination.
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).
HOMICIDE 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
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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” 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).
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.
QUALIFIED RAPE - In People vs.
Lascano, G.R. No. 192180, March 21, 2012
– Rape is qualified when the offender knew
of the mental disability, emotional disorder
and/or physical handicap of the offended
party at the time of the commission of the
crime. However, 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
58 | P a g e
JUDGE MARLO B. CAMPANILLA
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).
SPONTANEOUS DESISTANCE AND
NOT VOLUNTARY 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).
ATTEMPTED RAPE - The elements
of the crime of acts lasciviousness are: (1)
that the offender commits any act of
lasciviousness or lewdness; (2) that it is
done: (a) by using force and intimidation or
(b) when the offended party is deprived of
reason or otherwise unconscious, or (c)
when the offended party is under 12 years
of age; and (3) that the offended party is
another person of either sex (People vs.
Rellota, GR No. 168103 , August 03, 2010,
Justice Peralta).
“X” removed the towel wrapped in
the body of “A”, laid her on the sofa and
kissed and touched her. “A” testified that
“X” wanted to rape her. Is “X” liable for
attempted rape? No. The acts of “X” does
not demonstrate the intent to have carnal
knowledge of “A”; thus, dismissing the mere
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
opinion and speculation of “A”, based on
her testimony, that “X” wanted to rape
her. Even so, the acts should not be left
unpunished as the elements of the crime of
acts of lasciviousness (People vs. Rellota,
G.R. No. 168103. August 3, 2010, Justice
Peralta)
What is the crime committed if the
penis of the accused touched female organ
of the non-consenting victim?(a) 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). 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).
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). (b) 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 victim’s
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).
“X” opened the zipper and buttons
of the victim’s shorts, touching her, and
trying to pull her from under the bed. Is “X”
liable for acts of lasciviousness or
attempted rape?The acts of “X” manifested
lewd designs, not intent to lie with her. The
evidence to prove that a definite intent to lie
with the victim motivated “X” was plainly
wanting, therefore, rendering him guilty
only of acts of lasciviousness (People vs.
Dadulla, G. R. No. 172321, February 9,
2011).
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 victim’s vagina.
Horrified, she cursed the accused and
59 | P a g e
JUDGE MARLO B. CAMPANILLA
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.
In the following circumstances, the
accused were convicted of attempted rape:
(1) kissing AAA’s nape and neck;
undressing her; removing his clothes and
briefs; lying on top of her; holding her
hands and parting her legs; and trying to
insert his penis into her vagina; (2) The
victim declared that the accused placed his
penis on her vagina; and claimed that it
touched her private parts. The victim’s
testimony is too ambiguous to prove the
vital element of penile penetration; (3) The
victim testified that the accused placed his
penis on top of her vagina, and that she felt
pain. There was no showing that the
accused’s penis entered the victim’s vagina.
The pain that the victim felt might have
been caused by the accused’s failed
attempts to insert his organ into her vagina;
(4) The victim did not declare that there was
the slightest penetration, which was
necessary to consummate rape. (5) The
victim testified that the accused “poked”
her vagina. The Court could not discern
from the victim's testimony that the
accused attained some degree of penile
penetration, which was necessary to
consummate rape. (5) The victim’s
statements that the accused was “trying to
force his sex organ into mine” and
“binundol-undol ang kanyang ari” did not
prove that the accused’s penis reached the
labia of the pudendum of the victim’s
vagina (People vs. Pareja, G.R. No. 188979,
September 5, 2012).
Consummated rape through
sexual assault - 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, Justice
Peralta).
 2014 BAR REVIEWER ON CRIMINAL LAW
UNIVERSITY OF THE PHILIPPINES LAW CENTER
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).
Variance rule - Information charged
the accused with rape through carnal
knowledge. Thus, accused cannot be found
guilty of rape by sexual assault even though
it was proven during trial. This is due to
the material differences and substantial
distinctions between the two modes of rape;
thus, the first mode is not necessarily
included in the second, and vice-
versa. Consequently, to convict accused of
rape by sexual assault when what he was
charged with was rape through carnal
knowledge, would be to violate his
constitutional right to be informed of the
nature and cause of the accusation against
him. Nevertheless, accused may be
convicted of the lesser crime of acts of
lasciviousness under the variance
doctrine even though the crime charged
against accused was for rape through
carnal knowledge, he can be convicted of
the crime of acts of lasciviousness without
violating any of his constitutional rights
because said crime is included in the crime
of rape (People vs. Pareja, GR No. 202122,
January 15, 2014).
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, Justice
Peralta).
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, Justice Peralta).
Hymen rapture, not required - It is
possible for the victim’s hymen to remain
intact despite repeated sexual
intercourse. Likewise, whether the
accused’s penis fully or only partially
penetrated the victim’s genitalia, it is still
possible that her hymen would remain
intact because it was thick and distensible
60 | P a g e
JUDGE MARLO B. CAMPANILLA
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).
The absence of fresh lacerations in
victim’s hymen does not prove that
appellant did not rape her. A freshly broken
hymen is not an essential element of rape
and healed lacerations do not negate
rape. In addition, a medical examination
and a medical certificate are merely
corroborative and are not indispensable to
the prosecution of a rape case. The credible
disclosure of a minor that the accused
raped her is the most important proof of the
sexual abuse (People vs. Broca, GR No.
201447, January 09, 2013).
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 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