ATTY. SALVADOR N. MOYA II, LL.M.

Managing Partner, Moya Ablola Ebarle Law Firm

Lifetime Member, IBP, Bulacan Chapter
Member, Board of Directors, Philippine Trial Lawyers, Inc.
Member, Vanguard of the Philippine Constitution Inc.
Advance, Pre-Bar, Pre-week Reviewer and Mock Bar Examiner in Remedial Law, UP Law Center
Pre-Bar Reviewer in Chair’s Cases (Criminal Law), Legal EDGE Review Center
Bar Reviewer in Remedial Law, Powerhaus Review Center
Special Lecturer in Remedial Law, Villasis Law Center
Bar Reviewer in Criminal Law, Recoletos Law Center
MCLE Lecturer on Trial Advocacy
Author, The 2000 Rules of Criminal Procedure, Notes and Cases
Bar Notes and Cases in Criminal Law
The Revised Guidelines on Continuous Trial in Criminal Cases in Relation to
The 2000 Rules of Criminal Procedure
Bar Notes and Cases in Remedial Law
The Revised Rules of Evidence, Notes and Cases
The 1997 Rules of Civil Procedure As Amended, Notes and Cases (Vol. 1)
Provisional Remedies and Special Civil Actions, Notes and Cases (Vol. 2)
The Rules of Special Proceedings, Notes and Cases
Cross-Examination as a Science and Not an Art (The Contrarian System)
Professor, Tarlac State University College of Law in Remedial Law Review, Evidence,
Criminal Procedure, Election Law, Environmental Law, and Conflict of Laws
Professor, New Era University College of Law in Civil Procedure,
Criminal Procedure and Remedial Law Review
Professor, San Sebastian College-Recoletos, Institute of Law, Manila in Criminal Law Review
and Remedial Law Review
Professor, University of the East College of Law in Remedial Law Review
Professor, Bulacan State University College of Law in Remedial Law Review I and Criminal Procedure
SUGGESTED ANSWERS IN
THE 2017 BAR
EXAMINATION QUESTIONS
IN CRIMINAL LAW BASED
ON JUSTICE LUCAS P.
BERSAMIN’S DECISIONS
BY
ATTY. SALVADOR N. MOYA II, LL.M.
2017 BAR
QUESTION I
2017 BAR QUESTION
I (A)
 (A)

MALA IN SE, N. [LATIN “EVIL IN

ITSELF”] (17C) A CRIME OR AN
ACT THAT IS INHERENTLY
IMMORAL, SUCH AS MURDER
ARSON, OR RAPE.— ALSO
TERMED MALUM PER SE. PL.
MALA IN SE. — MALUM IN SE,
ADJ. [GARNER, B. A. (2014). BLACK’S LAW DICTIONARY. TENTH EDITION (P.
AND  MALA PROHIBITA,  BETWEEN  WHAT  ONE  MIGHT  CALL  A 
CRIME  AND  AN  OFFENCE  —  OR  BETWEEN  WHAT  ONE  MIGHT 
CALL  A  FELONY  AND  A  MISDEMEANOUR,  IF  ONE  COULD 
MODERNIZE  THOSE  TERMS  SO  THAT  THE  LATTER  WAS  GIVEN 
ITS  NATURAL  MEANING  —  IS  THAT  CRIME  MEANS  TO  THE 
ORDINARY MAN SOMETHING THAT IS SINFUL OR IMMORAL, AND 
AN OFFENCE AT WORST A PIECE OF MISBEHAVIOUR.” 
 
“THE  DISTINCTION  BETWEEN  OFFENSES  MALA IN SE  AND 
OFFENSES  MALA PROHIBITA  WAS  RECOGNIZED  AT  LEAST  AS 
EARLY AS  THE  FIFTEENTH  CENTURY.  IT  HAS  BEEN  CRITICIZED 
REPEATEDLY.  ABOUT  A  CENTURY  AND  A  HALF  AGO  THE 
DISTINCTION  WAS  SAID  TO  BE  ONE  ‘NOT  FOUNDED  UPON ANY 
SOUND  PRINCIPLE’  AND  WHICH  HAD  ‘LONG  SINCE  BEEN 
EXPLODED.’  THE  SUPREME  COURT,  HOWEVER,  HAS  SHOWN 
“PROHIBITED EVIL”] (18C) AN
ACT THAT IS A CRIME MERELY
BECAUSE IT IS PROHIBITED BY
STATUTE, ALTHOUGH THE ACT
ITSELF IS NOT NECESSARILY
IMMORAL. •MISDEMEANORS
SUCH AS JAYWALKING AND
RUNNING A STOPLIGHT ARE
MALA PROHIBITA, AS ARE MANY
REGULATORY VIOLATIONS. PL.
MALA PROHIBITA. — MALUM
CHARACTER  —  THE  PART  OF  IT  THAT  DEALS  WITH  MALUM PROHIBITUM 
RATHER  THAN  MALUM  IN  SE  —  IS  BASED  UPON  THE  .  .  .  PRINCIPLE  .  .  . 
THAT  THE  CHOICE  OF  THE  INDIVIDUAL  MUST  GIVE  WAY  TO  THE 
CONVENIENCE OF THE MANY.” 

“AS  CUSTOMARILY  USED  THESE  PHRASES  ARE  MUTUALLY 

EXCLUSIVE. AN  OFFENSE  MALUM PROHIBITUM IS  NOT A  WRONG  WHICH 
IS  PROHIBITED,  BUT  SOMETHING  WHICH  IS  WRONG  ONLY  IN  THE  SENSE 
THAT  IT  IS  AGAINST  THE  LAW.  THIS  IS  EMPHASIZED  AT  TIMES  BY  SUCH 
PHRASES AS  ‘MALUM PROHIBITUM  ONLY’  OR  ‘BUT  MALUM PROHIBITUM,’ 
ALTHOUGH  IT  IS  UNDERSTOOD  WITHOUT  ANY  SUCH  QUALIFICATION.  A 
FAILURE TO UNDERSTAND THIS USAGE OF THE TERMS HAS LED SOME TO 
ASSUME  THAT  ALL  STATUTORY  ADDITIONS  TO  THE  COMMON  LAW  OF 
CRIMES  ARE  MALA PROHIBITA.  ONE  WRITER  EMPHASIZED  HIS 
CONFUSION  BY  SPEAKING  OF  EMBEZZLEMENT  AS  MALUM PROHIBITUM. 
THIS  ASSUMPTION  IS  UTTERLY  WITHOUT  FOUNDATION.  AN  ACT  MAY  BE 
MALUM IN SE ALTHOUGH NO PUNISHMENT IS PROVIDED BY LAW. IF THIS 
DEFECT  IS  CORRECTED  BY  APPROPRIATE  LEGISLATION,  WHAT 
2017 BAR QUESTION
I (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(B)

YES, BUT FOR LESS SERIOUS PHYSICAL

INJURIES AND NOT FOR CHILD ABUSE.
(BONGALON VS. PEOPLE, 694 SCRA 12, 20 MARCH 2013.)

ART. 265 OF THE REVISED PENAL CODE

PROVIDES THAT:
SHALL INFLICT UPON ANOTHER PHYSICAL INJURIES NOT DESCRIBED IN 
THE  PRECEDING  ARTICLES,  BUT  WHICH  SHALL  INCAPACITATE  THE 
OFFENDED  PARTY  FOR  LABOR  FOR  TEN  DAYS  OR  MORE,  OR  SHALL 
REQUIRE  MEDICAL  ASSISTANCE  FOR  THE  SAME  PERIOD,  SHALL  BE 
GUILTY  OF  LESS  SERIOUS  PHYSICAL  INJURIES AND  SHALL  SUFFER  THE 
PENALTY OF ARRESTO MAYOR.

WHENEVER LESS SERIOUS PHYSICAL INJURIES SHALL HAVE BEEN

INFLICTED WITH THE MANIFEST INTENT TO KILL OR OFFEND THE INJURED
PERSON, OR UNDER CIRCUMSTANCES ADDING IGNOMINY TO THE
OFFENSE IN ADDITION TO THE PENALTY OF ARRESTO MAYOR, A FINE NOT
EXCEEDING 500 PESOS SHALL BE IMPOSED.

ANY LESS SERIOUS PHYSICAL INJURIES INFLICTED UPON THE

OFFENDER'S PARENTS, ASCENDANTS, GUARDIANS, CURATORS,
TEACHERS, OR PERSONS OF RANK, OR PERSONS IN AUTHORITY, SHALL
BE PUNISHED BY PRISION CORRECCIONAL IN ITS MINIMUM AND MEDIUM
PERIODS, PROVIDED THAT, IN THE CASE OF PERSONS IN AUTHORITY, THE
DISCUSSION:
IN THE CASE OF BONGALON VS. PEOPLE, SUPRA, THE
SUPREME COURT, THROUGH MR. JUSTICE BERSAMIN, WHO
DELIVERED THE OPINION OF THE COURT SAID:

“NOT EVERY INSTANCE OF THE LAYING OF HANDS ON A

CHILD CONSTITUTES THE CRIME OF CHILD ABUSE UNDER
SECTION 10 (A) OF REPUBLIC ACT NO. 7610. ONLY WHEN THE
LAYING OF HANDS IS SHOWN BEYOND REASONABLE DOUBT TO
BE INTENDED BY THE ACCUSED TO DEBASE, DEGRADE OR
DEMEAN THE INTRINSIC WORTH AND DIGNITY OF THE CHILD AS A
HUMAN BEING SHOULD IT BE PUNISHED AS CHILD ABUSE.
OTHERWISE, IT IS PUNISHED UNDER THE REVISED PENAL CODE.”
TRIED AND FOUND GUILTY OF VIOLATING IS SECTION 10(A),
ARTICLE VI OF REPUBLIC ACT NO. 7610, WHICH RELEVANTLY
STATES:

SECTION 10. OTHER ACTS OF NEGLECT, ABUSE, CRUELTY

OR EXPLOITATION AND OTHER CONDITIONS PREJUDICIAL TO THE
CHILD’S DEVELOPMENT. –

(A) ANY PERSON WHO SHALL COMMIT ANY OTHER ACTS

OF CHILD ABUSE, CRUELTY OR EXPLOITATION OR BE
RESPONSIBLE FOR OTHER CONDITIONS PREJUDICIAL TO THE
CHILD’S DEVELOPMENT INCLUDING THOSE COVERED BY ARTICLE
59 OF PRESIDENTIAL DECREE NO. 603, AS AMENDED, BUT NOT
COVERED BY THE REVISED PENAL CODE, AS AMENDED, SHALL
SUFFER THE PENALTY OF PRISION MAYOR IN ITS MINIMUM
PERIOD.
 CHILD ABUSE, THE CRIME CHARGED, IS DEFINED BY SECTION 3(B) OF REPUBLIC ACT
NO. 7610, AS FOLLOWS:

SECTION 3. DEFINITION OF TERMS. –

XXXX

(B) "CHILD ABUSE" REFERS TO THE MALTREATMENT, WHETHER HABITUAL OR NOT,

OF THE CHILD WHICH INCLUDES ANY OF THE FOLLOWING:

(1) PSYCHOLOGICAL AND PHYSICAL ABUSE, NEGLECT, CRUELTY, SEXUAL ABUSE

AND EMOTIONAL MALTREATMENT;
(2) ANY ACT BY DEEDS OR WORDS WHICH DEBASES, DEGRADES OR DEMEANS THE
INTRINSIC WORTH AND DIGNITY OF A CHILD AS A HUMAN BEING;
(3) UNREASONABLE DEPRIVATION OF HIS BASIC NEEDS FOR SURVIVAL, SUCH AS
FOOD AND SHELTER; OR
(4) FAILURE TO IMMEDIATELY GIVE MEDICAL TREATMENT TO AN INJURED CHILD
RESULTING IN SERIOUS IMPAIRMENT OF HIS GROWTH AND DEVELOPMENT OR IN HIS
PERMANENT INCAPACITY OR DEATH.
FACT BY THE RTC AND THE CA TO THE EFFECT THAT THE
PETITIONER STRUCK JAYSON AT THE BACK WITH HIS HAND
AND SLAPPED JAYSON ON THE FACE, WE DISAGREE WITH
THEIR HOLDING THAT HIS ACTS CONSTITUTED CHILD ABUSE
WITHIN THE PURVIEW OF THE ABOVE-QUOTED PROVISIONS.
THE RECORDS DID NOT ESTABLISH BEYOND REASONABLE
DOUBT THAT HIS LAYING OF HANDS ON JAYSON HAD BEEN
INTENDED TO DEBASE THE "INTRINSIC WORTH AND DIGNITY"
OF JAYSON AS A HUMAN BEING, OR THAT HE HAD THEREBY
INTENDED TO HUMILIATE OR EMBARRASS JAYSON. THE
RECORDS SHOWED THE LAYING OF HANDS ON JAYSON TO
HAVE BEEN DONE AT THE SPUR OF THE MOMENT AND IN
ANGER, INDICATIVE OF HIS BEING THEN OVERWHELMED BY
HIS FATHERLY CONCERN FOR THE PERSONAL SAFETY OF
HIS OWN MINOR DAUGHTERS WHO HAD JUST SUFFERED
 WITH THE LOSS OF HIS SELF-CONTROL, HE
LACKED THAT SPECIFIC INTENT TO DEBASE, DEGRADE
OR DEMEAN THE INTRINSIC WORTH AND DIGNITY OF A
CHILD AS A HUMAN BEING THAT WAS SO ESSENTIAL IN
THE CRIME OF CHILD ABUSE.

IT IS NOT TRITE TO REMIND THAT UNDER THE

WELL-RECOGNIZED DOCTRINE OF PRO REO EVERY
DOUBT IS RESOLVED IN FAVOR OF THE PETITIONER AS
THE ACCUSED. THUS, THE COURT SHOULD CONSIDER
ALL POSSIBLE CIRCUMSTANCES IN HIS FAVOR.

WHAT  CRIME,  THEN,  DID  THE  PETITIONER 

COMMIT?
 CONSIDERING THAT JAYSON’S PHYSICAL INJURY
REQUIRED FIVE TO SEVEN DAYS OF MEDICAL
ATTENTION, THE PETITIONER WAS LIABLE FOR SLIGHT
PHYSICAL INJURIES UNDER ARTICLE 266(1) OF THE
REVISED PENAL CODE, TO WIT:

ARTICLE 266. SLIGHT PHYSICAL INJURIES AND

MALTREATMENT. — THE CRIME OF SLIGHT PHYSICAL
INJURIES SHALL BE PUNISHED:

1. BY ARRESTO MENOR WHEN THE OFFENDER HAS

INFLICTED PHYSICAL INJURIES WHICH SHALL INCAPACITATE
THE OFFENDED PARTY FOR LABOR FROM ONE TO NINE
DAYS, OR SHALL REQUIRE MEDICAL ATTENDANCE DURING
THE SAME PERIOD.
MENOR, WHICH RANGES FROM ONE DAY TO 30 DAYS OF
IMPRISONMENT. IN IMPOSING THE CORRECT PENALTY, HOWEVER, WE
HAVE TO CONSIDER THE MITIGATING CIRCUMSTANCE OF PASSION OR
OBFUSCATION UNDER ARTICLE 13 (6) OF THE REVISED PENAL
CODE, BECAUSE THE PETITIONER LOST HIS REASON AND SELF-
CONTROL, THEREBY DIMINISHING THE EXERCISE OF HIS WILL
POWER. PASSION OR OBFUSCATION MAY LAWFULLY ARISE FROM
CAUSES EXISTING ONLY IN THE HONEST BELIEF OF THE ACCUSED. IT IS
RELEVANT TO MENTION, TOO, THAT IN PASSION OR OBFUSCATION, THE
OFFENDER SUFFERS A DIMINUTION OF INTELLIGENCE AND INTENT. WITH
HIS HAVING ACTED UNDER THE BELIEF THAT JAYSON AND ROLDAN HAD
THROWN STONES AT HIS TWO MINOR DAUGHTERS, AND THAT JAYSON
HAD BURNED CHERRLYN’S HAIR, THE PETITIONER WAS ENTITLED TO THE
MITIGATING CIRCUMSTANCE OF PASSION. ARRESTO MENOR IS
PRESCRIBED IN ITS MINIMUM PERIOD (I.E., ONE DAY TO 10 DAYS) IN THE
ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE THAT OFFSET THE
MITIGATING CIRCUMSTANCE OF PASSION. ACCORDINGLY, WITH THE
INDETERMINATE SENTENCE LAW BEING INAPPLICABLE DUE TO THE
2017 BAR QUESTION
II
2017 BAR QUESTION II
(A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(A)

I DISAGREE WITH THE RECOMMENDATION OF THE

INVESTIGATING PROSECUTOR. THE INFORMATION
THAT SHOULD BE FILED IS ATTEMPTED RAPE WITH
HOMICIDE.
 
HERE, THE REAL INTENT OF ALISWAN WAS TO
RAPE AMYTHEST. BUT LATER ON, HE DESISTED. THE
KILLING OF ALLESSO WAS COMMITTED BY ALISWAN BY
REASON OR ON OCCASION OF THE ATTEMPTED RAPE.
 THE FACTUAL MILIEU HERE IS SIMILAR TO
THAT IN THE CASE OF PEOPLE VS.
VILLAFLORES TO WHICH THE SUPREME COURT
TRACES THE MEANING OF “BY REASON OR ON
OCCASION OF RAPE” HOMICIDE WAS COMMITTED,
IS NOT LIMITED TO THE VICTIM OF THE RAPE OR
ATTEMPTED RAPE, BUT INCLUDES ANY PERSON
SO LONG AS THE VICTIM OF THE HOMICIDE IS
LINKED TO THE RAPE. (PEOPLE VS. VILLAFLORES, 669
SCRA 365, 11 APRIL 2012.)
DISCUSSION:

IN PEOPLE VS. VILLAFLORES (669 SCRA

365, 11 APRIL 2012), MR. JUSTICE BERSAMIN
DELIVERED THE OPINION OF THE COURT AND
TRACES THE MEANING OF “BY REASON OR ON
THE OCCASION OF RAPE”.

THUS, AS QUOTED IN VILLAFLORES:

 
REPUBLIC ACT NO. 8353 (ANTI-RAPE LAW OF
1997) PERTINENTLY PROVIDES:
 ARTICLE 266-A. RAPE; WHEN AND HOW COMMITTED. –
RAPE IS COMMITTED
1) BY A MAN WHO HAVE CARNAL KNOWLEDGE OF A
WOMAN UNDER ANY OF THE FOLLOWING CIRCUMSTANCES:
A) THROUGH FORCE, THREAT, OR INTIMIDATION;
B) WHEN THE OFFENDED PARTY IS DEPRIVED OF
REASON OR OTHERWISE UNCONSCIOUS;
C) BY MEANS OF FRAUDULENT MACHINATION OR ABUSE
OF AUTHORITY; AND
D) WHEN THE OFFENDED PARTY IS UNDER TWELVE (12)
YEARS OF AGE OR IS DEMENTED, EVEN THOUGH NONE OF THE
CIRCUMSTANCE MENTIONED ABOVE BE PRESENT.
X-X-X-X
 ARTICLE 266-B. PENALTIES. – RAPE UNDER PARAGRAPH
1 OF THE NEXT PRECEDING ARTICLE SHALL BE PUNISHED
BY RECLUSION PERPETUA.
 
XXX
 
WHEN THE RAPE IS ATTEMPTED AND A HOMICIDE IS
COMMITTED BY REASON OR ON THE OCCASION THEREOF,
THE PENALTY SHALL BE RECLUSION PERPETUA TO DEATH.
 
WHEN BY REASON OR ON THE OCCASION OF THE
RAPE, HOMICIDE IS COMMITTED, THE PENALTY SHALL BE
DEATH.
 
XXX
DEFINES AND SETS FORTH THE COMPOSITE
CRIMES OF ATTEMPTED RAPE WITH HOMICIDE
AND RAPE WITH HOMICIDE. IN BOTH COMPOSITE
CRIMES, THE HOMICIDE IS COMMITTED BY REASON
OR ON THE OCCASION OF RAPE. AS CAN BE NOTED,
EACH OF SAID COMPOSITE CRIMES IS PUNISHED
WITH A SINGLE PENALTY, THE FORMER WITH
RECLUSION PERPETUA TO DEATH, AND THE LATTER
WITH DEATH.
 
THE PHRASES BY REASON OF THE RAPE AND ON
THE OCCASION OF THE RAPE ARE CRUCIAL IN
DETERMINING WHETHER THE CRIME IS A
 THE PHRASE BY REASON OF THE RAPE
OBVIOUSLY CONVEYS THE NOTION THAT THE
KILLING IS DUE TO THE RAPE, THE OFFENSE THE
OFFENDER ORIGINALLY DESIGNED TO COMMIT.
THE VICTIM OF THE RAPE IS ALSO THE VICTIM OF
THE KILLING. THE INDIVISIBILITY OF THE
HOMICIDE AND THE RAPE (ATTEMPTED OR
CONSUMMATED) IS CLEAR AND ADMITS OF NO
DOUBT. IN CONTRAST, THE IMPORT OF THE
PHRASE ON THE OCCASION OF THE RAPE MAY
NOT BE AS EASY TO DETERMINE.
OCCASION OF THE RAPE, A RESORT TO THE
MEANING THE FRAMERS OF THE LAW
INTENDED TO CONVEY THEREBY IS HELPFUL.
INDEED, DURING THE FLOOR
DELIBERATIONS OF THE SENATE ON
REPUBLIC ACT NO. 8353, THE LEGISLATIVE
INTENT ON THE IMPORT OF THE PHRASE ON
THE OCCASION OF THE RAPE TO REFER 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
  
I WOULD LIKE TO FIND OUT, FIRST OF ALL, MR.
PRESIDENT, WHAT IS THE MEANING OF THE PHRASE
APPEARING IN LINE 24, "OR ON THE OCCASION"?
 
WHEN THE RAPE IS ATTEMPTED OR FRUSTRATED, AND
HOMICIDE IS COMMITTED BY REASON OF THE RAPE, I
WOULD UNDERSTAND THAT. BUT WHAT IS THE MEANING OF
THE PHRASE "ON THE OCCASION OF RAPE"? HOW FAR IN
TIME MUST THE COMMISSION OF THE HOMICIDE BE
CONSIDERED A HOMICIDE "ON THE OCCASION" OF THE
RAPE? WILL IT BE, IF THE RAPISTS HAPPEN TO LEAVE THE
PLACE OF RAPE, THEY ARE DRUNK AND THEY KILLED
SOMEBODY ALONG THE WAY, WOULD THERE BE A LINK
BETWEEN THAT HOMICIDE AND THE RAPE? WILL IT BE "ON
COMMITTED WITH A VERY SHORT TIME LAPSE.
 
SENATOR ENRILE. I WOULD LIKE TO TAKE THE
FIRST SCENARIO, MR. PRESIDENT: IF THE RAPIST
ENTERS A HOUSE, KILLS A MAID, AND RAPES
SOMEBODY INSIDE THE HOUSE, I WOULD PROBABLY
CONSIDER THAT AS A RAPE "ON THE OCCASION OF".
OR IF THE RAPISTS FINISHED COMMITTING THE
CRIME OF RAPE, AND UPON LEAVING, SAW
SOMEBODY, LET US SAY, A POTENTIAL WITNESS
INSIDE THE HOUSE AND KILLS HIM, THAT IS
PROBABLY CLEAR. BUT SUPPOSE THE MAN
HAPPENS TO KILL SOMEBODY, WILL THERE BE A
LINK BETWEEN THESE? WHAT IS THE INTENT OF
PRINCIPAL CRIME HERE, OF COURSE, IS RAPE,
AND HOMICIDE IS A RESULT OF THE
CIRCUMSTANCES SURROUNDING THE RAPE.
 
SO, THE INSTANCE WHICH WAS BROUGHT UP
BY THE GOOD SENATOR FROM CAGAYAN WHERE,
LET US SAY, THE OFFENDER IS FLEEING THE
PLACE OR IS APPREHENDED BY THE POLICE
AND HE COMMITS HOMICIDE, I THINK
WOULD BE EXAMPLES WHERE THE PHRASE
"ON THE OCCASION THEREOF" WOULD
APPLY. BUT THE PRINCIPAL INTENT, MR.
PRESIDENT, IS RAPE. [RECORD OF THE SENATE (10TH
2017 BAR QUESTION II
(B)
ANSWER BASED ON JUSTICE(B)
LUCAS P. BERSAMIN’S DECISION
YES. THE MOTION IS CORRECT. UNDER SECTION
6 OF R.A. NO. 9344, THE MINIMUM AGE OF
CRIMINAL RESPONSIBILITY IS 18. HERE, ALISWAN
WAS ONLY 16 AT THE TIME OF THE COMMISSION OF THE
CRIME. THUS, HE IS EXEMPT FROM CRIMINAL LIABILITY.
HOWEVER, HE WILL BE SUBJECTED TO AN
INTERVENTION PROGRAM, UNLESS HE/SHE HAS ACTED
WITH DISCERNMENT, IN WHICH CASE, SUCH CHILD
SHALL BE SUBJECTED TO THE APPROPRIATE
PROCEEDINGS IN ACCORDANCE WITH LAW. FURTHER,
ALTHOUGH ALISWAN IS EXEMPT FROM CRIMINAL
LIABILITY, IT DOES NOT MEAN THAT HE CAN ESCAPE
 IN THE CASE OF OFFICE OF THE COURT
ADMINISTRATOR VS. LARIDA, JR. (718 SCRA 359, 11 MARCH
2014), THE GRANTING OF A MOTION TO QUASH BY THE
RESPONDENT JUDGE FILED BY MINOR JAYSON ESPIRITO
WITH RTC, BRANCH 18, TAGAYTAY CITY WAS ONE OF THE
ADMINISTRATIVE CHARGES AGAINST HIM. WHILE THE
PRESIDING JUDGE WAS PENALIZED FOR TWO (2) MONTHS
SUSPENSION WITHOUT PAY, HE WAS ABSOLVED FOR THE
ADMINISTRATIVE CHARGED OF THE ALLEGED  RECEIVING 
OF  A  BRIBE  IN  GRANTING  THE  MOTION  TO  QUASH 
WITHOUT  WAITING  FOR  THE  COMMENT  OF  THE  PUBLIC 
PROSECUTOR. MR. JUSTICE BERSAMIN SPEAKING FOR
THE HIGH COURT (EN BANC) UPHELD THE
RECOMMENDATION OF THE INVESTIGATING JUSTICE
 X-X-X-X

JAYSON  ESPIRITU,  THE  ACCUSED  IN  CRIMINAL 

CASE  NO.  TG-5307-06,  WAS  A  MINOR  OF  15  YEARS  AND 
11  MONTHS  AT  THE  TIME  OF  THE  COMMISSION  OF  THE 
OFFENSE  CHARGED  AS  BORNE  OUT  BY  THE  COPY  OF 
HIS  BIRTH  CERTIFICATE  ATTACHED  TO  THE  MOTION  TO 
QUASH. HE WAS FOR THAT REASON ENTITLED TO THE
QUASHAL OF THE INFORMATION FILED AGAINST HIM FOR
BEING EXEMPT FROM CRIMINAL LIABILITY BASED ON
SECTION 6 OF REPUBLIC ACT NO. 9344 (JUVENILE
JUSTICE AND WELFARE ACT OF 2006), WHICH STATES AS
FOLLOWS:
CHILD  FIFTEEN  (15)  YEARS  OF AGE  OR  UNDER AT  THE  TIME  OF 
THE  COMMISSION  OF  THE  OFFENSE  SHALL  BE  EXEMPT  FROM 
CRIMINAL  LIABILITY.  HOWEVER,  THE  CHILD  SHALL  BE 
SUBJECTED  TO  AN  INTERVENTION  PROGRAM  PURSUANT  TO 
SECTION 20 OF THIS ACT.

A CHILD ABOVE FIFTEEN (15) YEARS BUT BELOW EIGHTEEN 
(18)  YEARS  OF  AGE  SHALL  LIKEWISE  BE  EXEMPT  FROM 
CRIMINAL  LIABILITY  AND  BE  SUBJECTED  TO  AN  INTERVENTION 
PROGRAM,  UNLESS  HE/SHE  HAS ACTED  WITH  DISCERNMENT,  IN 
WHICH  CASE,  SUCH  CHILD  SHALL  BE  SUBJECTED  TO  THE 
APPROPRIATE PROCEEDINGS IN ACCORDANCE WITH THIS ACT.

THE  EXEMPTION  FROM  CRIMINAL  LIABILITY  HEREIN 

ESTABLISHED  DOES  NOT  INCLUDE  EXEMPTION  FROM  CIVIL 
LIABILITY,  WHICH  SHALL  BE  ENFORCED  IN  ACCORDANCE  WITH 
EXISTING LAWS. (EMPHASIS SUPPLIED)
FRAUD, DISHONESTY OR CORRUPTION, THE ACTS OF A
JUDGE DONE IN HIS JUDICIAL CAPACITY ARE NOT SUBJECT
TO DISCIPLINARY ACTION ALTHOUGH THEY ARE
ERRONEOUS. CONSIDERING THAT THERE WAS NO FRAUD,
DISHONESTY OR CORRUPTION THAT ATTENDED THE
OMISSION OF PRIOR NOTICE, WE SIMPLY CAUTION HIM
AGAINST A REPETITION OF THE OMISSION OF PRIOR
NOTICE.

THE INVESTIGATING JUSTICE FOUND THE CHARGE OF

BRIBERY AGAINST JUDGE LARIDA UNSUPPORTED BY
COMPETENT EVIDENCE. WE CONCUR. THE RECORDS ARE
BEREFT OF THE EVIDENCE THAT WOULD ESTABLISH THE
CHARGE. INNUENDO AND HEARSAY WILL NOT ESTABLISH
THE ACCUSATION. WE INSIST THAT ANY ACCUSATION OF
2017 BAR QUESTION II
(C)
 (C)
ANSWER BASED ON JUSTICE LUCAS P. BERSAMIN’S DECISION
I WILL CHARGE AMANTE FOR VIOLATION OF R.A.
NO. 7610 IN RELATION TO ART. 265 OF THE RPC. THE
VICTIM ALISTO WAS THE TWIN BROTHER OF ALISWAN.
HENCE, HE IS ALSO SIXTEEN (16) YEARS OLD AND A MINOR.
THE ACT OF AMANTE CONSTITUTES CHILD ABUSE AS
HE MALTREATED ALISTO WHEN HE INFLICTED ON HIM
PHYSICALLY WITH CRUELTY. FURTHER, BY RAPPING
THE BODY WITH PREPARED TARPAULIN READING
RAPIST AKO HUWAG TULARAN, IT DEBASES,
DEGRADES OR DEMEANS THE INTRINSIC WORTH AND
DIGNITY OF ALISTO.
CONSIDERING THAT ALISTO RECEIVED MEDICAL
ATTENDANCE FOR TEN (10) DAYS DUE TO THE INJURY HE
SUFFERED FROM AMANTE, THE LATTER IS ALSO LIABLE FOR
2017 BAR QUESTION II
(D)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(D)
THE DEFENSE OF AMANTE IS MISTAKE OF FACT
AS HIS INTENDED VICTIM WAS ALISWAN AND NOT
ALISTO. HOWEVER, THIS KIND OF DEFENSE WILL NOT
PROSPER AS AMANTE ACTED MALICIOUSLY AND
WILLFULLY. THE ACT OF AMANTE WHEN HE KNOCKED
DOWN ALISTO AND BECAME UNCONSCIOUS ON THE
PAVEMENT, AND THEN DRAPED HIS BODY WITH A
PREPARED TARPAULIN READING RAPIST AKO HUWAG
TULARAN, WERE UNLAWFUL. MOREOVER, THE ACT OF
AMANTE IS CALLED ERROR EN PERSONAE OR
  
FURTHER, THE LACK OF CRIMINAL INTENT
DOES NOT APPLY IN CASE OF VIOLATION OF
SPECIAL LAW IN THIS JURISDICTION. ALISTO WAS A
MINOR BEING THE TWIN BROTHER OF ALISWAN.
THUS, REGARDLESS OF THE LACK OF CRIMINAL
INTENT ON THE PART OF AMANTE, HE IS STILL
CRIMINALLY LIABLE FOR VIOLATION OF R.A. NO.
7610. CRIMES PUNISHABLE BY SPECIAL LAWS, THE
ACT ALONE, IRRESPECTIVE OF ITS MOTIVES,
CONSTITUTE THE OFFENSE. THE ACT OF AMANTE
IS CONSIDERED AS MALA PROHIBITA. (BONGALON VS.
PEOPLE, 694 SCRA 12, 20 MARCH 2013.)
2017 BAR QUESTION
III
2017 BAR QUESTION
III (A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION

(A)

NOT ALL OF THEM COULD BE HELD LIABLE

FOR PLUNDER BASED ON THE ELEMENTS OF R.A.
NO. 7080 AS AMENDED BY R.A. NO. 7659.

ONLY THE FOLLOWING INDIVIDUALS COULD

BE HELD LIABLE FOR PLUNDER:
P50,000,000.00 AFTER HE SIGNED THE CONTRACT IN
FAVOR OF THE FIRM OF MR. GANGNAM. HIS WIFE
PROVINCIAL FIRST LADY DEE IS ALSO LIABLE AS THE
AMOUNT GIVEN TO GOVERNOR DATU, HIS HUSBAND,
WAS DEPOSITED IN HER ACCOUNT. SHE IS CONSIDERED
AS CO-CONSPIRATOR;
 
2) BOKAL DIVA IS ALSO LIABLE FOR PLUNDER. HE
WAS THE ONE WHO LOBBIED FOR THE AWARD OF THE
PROJECT TO THE FIRM OF MR. GANGNAM IN THE
SANGUNIANG PANLALAWIGAN. HE RECEIVED 25% OF OR
P25,000,000.00 AND ANOTHER P25,000,000.00 IN
ANOTHER PROJECT OF MR. GANGNAM IN THE
CONSTRUCTION OF AN OVERPRICED BLANK SPORTS
ARENA IN THE MUNICIPALITY TO WHICH DOLOR IS THE
MAYOR. THE AGGREGATE AMOUNT HAS A TOTAL OF
P50,000,000.00. FURTHER, TERRY, THE SECRETARY OF
 TO SUCCESSFULLY MOUNT A CRIMINAL
PROSECUTION FOR PLUNDER, THE STATE MUST
ALLEGE AND ESTABLISH THE FOLLOWING ELEMENTS,
NAMELY:

1. THAT THE  OFFENDER  IS  A  PUBLIC  OFFICER

WHO ACTS BY HERSELF OR IN CONNIVANCE WITH
MEMBERS OF HER FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES OR OTHER PERSONS;

2. THAT THE OFFENDER  AMASSES, 

ACCUMULATES  OR  ACQUIRES  ILL-GOTTEN  WEALTH
PUBLIC FUNDS OR RAIDS ON THE PUBLIC
TREASURY;
 
(B) BY RECEIVING, DIRECTLY OR INDIRECTLY,
ANY COMMISSION, GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY OTHER FORM OF PECUNIARY
BENEFITS FROM ANY PERSON AND/OR ENTITY IN
CONNECTION WITH ANY GOVERNMENT CONTRACT
OR PROJECT OR BY REASON OF THE OFFICE OR
POSITION OF THE PUBLIC OFFICER;
 
(C) BY THE ILLEGAL OR FRAUDULENT
CONVEYANCE OR DISPOSITION OF ASSETS
BELONGING TO THE NATIONAL GOVERNMENT OR ANY OF
EQUITY OR ANY OTHER FORM OF INTEREST OR
PARTICIPATION INCLUDING THE PROMISE OF FUTURE
EMPLOYMENT IN ANY BUSINESS ENTERPRISE OR
UNDERTAKING;
 
(E) BY ESTABLISHING AGRICULTURAL,
INDUSTRIAL OR COMMERCIAL MONOPOLIES OR OTHER
COMBINATIONS AND/OR IMPLEMENTATION OF DECREES
AND ORDERS INTENDED TO BENEFIT PARTICULAR
PERSONS OR SPECIAL INTERESTS; OR
 
(F) BY TAKING ADVANTAGE OF OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION OR INFLUENCE TO UNJUSTLY ENRICH
HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
 3. THAT THE AGGREGATE AMOUNT OR
TOTAL VALUE OF THE ILL-GOTTEN WEALTH
AMASSED, ACCUMULATED OR ACQUIRED IS AT
LEAST P50,000,000.00.
 
THE CORPUS DELICTI OF PLUNDER IS THE
AMASSMENT, ACCUMULATION OR ACQUISITION
OF ILL-GOTTEN WEALTH VALUED AT NOT LESS
THAN P50,000,000.00. THE FAILURE TO
ESTABLISH THE CORPUS DELICTI SHOULD LEAD TO
THE DISMISSAL OF THE CRIMINAL PROSECUTION.
(MACAPAGAL-ARROYO VS. PEOPLE, 797 SCRA
241, 19 JULY 2016.)
2017 BAR QUESTION
III (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION

(B)

IN MACAPAGAL-ARROYO VS. PEOPLE (797 SCRA 241,

19 JULY 2016), CITING ESTRADA V. SANDIGANBAYAN, THE
COURT, THRU MR. JUSTICE BERSAMIN, RECOGNIZED TWO
NUANCES OF APPRECIATING CONSPIRACY AS A MEANS
TO COMMIT A CRIME, THE WHEEL CONSPIRACY AND
THE CHAIN CONSPIRACY.
 THE WHEEL CONSPIRACY OCCURS WHEN THERE
IS A SINGLE PERSON OR GROUP (THE HUB) DEALING
INDIVIDUALLY WITH TWO OR MORE OTHER PERSONS
OR GROUPS (THE SPOKES). THE SPOKE TYPICALLY
INTERACTS WITH THE HUB RATHER THAN WITH
ANOTHER SPOKE. IN THE EVENT THAT THE SPOKE
SHARES A COMMON PURPOSE TO SUCCEED, THERE IS
A SINGLE CONSPIRACY. HOWEVER, IN THE INSTANCES
WHEN EACH SPOKE IS UNCONCERNED WITH THE
SUCCESS OF THE OTHER SPOKES, THERE ARE MULTIPLE
CONSPIRACIES.
 An illustration of wheel conspiracy wherein there is
only one conspiracy involved was the conspiracy alleged
in the information for plunder filed against former
President Estrada and his co-conspirators. Former
President Estrada was the hub while the spokes were all
the other accused individuals. The rim that enclosed the
spokes was the common goal in the overall
conspiracy, i.e., the amassing, accumulation and
acquisition of ill-gotten wealth.
 THE CHAIN CONSPIRACY RECOGNIZED IN
ESTRADA  V.  SANDIGANBAYAN  EXISTS WHEN
THERE IS SUCCESSIVE COMMUNICATION AND
COOPERATION IN MUCH THE SAME WAY AS
WITH LEGITIMATE BUSINESS OPERATIONS
BETWEEN MANUFACTURER AND
WHOLESALER, THEN WHOLESALER AND
RETAILER, AND THEN RETAILER AND
CONSUMER.
 THIS INVOLVES INDIVIDUALS LINKED TOGETHER
IN A VERTICAL CHAIN TO ACHIEVE A CRIMINAL
OBJECTIVE. ILLUSTRATIVE OF CHAIN CONSPIRACY WAS
THAT INVOLVED IN UNITED STATES V. BRUNO, OF THE
US COURT OF APPEALS FOR THE SECOND CIRCUIT.
THERE, 88 DEFENDANTS WERE INDICTED FOR A
CONSPIRACY TO IMPORT, SELL, AND POSSESS
NARCOTICS. THIS CASE INVOLVED SEVERAL
SMUGGLERS WHO HAD BROUGHT NARCOTICS TO
RETAILERS WHO, IN TURN, HAD SOLD THE NARCOTICS
TO OPERATIVES IN TEXAS AND LOUISIANA FOR
DISTRIBUTION TO ADDICTS.
CIRCUIT RULED THAT WHAT TRANSPIRED WAS A SINGLE
CHAIN CONSPIRACY IN WHICH THE SMUGGLERS KNEW
THAT THE MIDDLEMEN MUST SELL TO RETAILERS FOR
DISTRIBUTION TO ADDICTS, AND THE RETAILERS KNEW
THAT THE MIDDLE MEN MUST PURCHASE DRUGS FROM
SMUGGLERS. AS REASONED BY THE COURT, "THE
CONSPIRATORS AT ONE END OF THE CHAIN KNEW THAT
THE UNLAWFUL BUSINESS WOULD NOT AND COULD NOT,
STOP WITH THEIR BUYERS; AND THOSE AT THE OTHER
END KNEW THAT IT HAD NOT BEGUN WITH THEIR
SELLERS." EACH CONSPIRATOR KNEW THAT "THE
SUCCESS OF THAT PART WITH WHICH HE WAS
 THIS MEANS, THEREFORE, THAT "EVERY MEMBER 
OF THE CONSPIRACY WAS LIABLE FOR EVERY ILLEGAL 
TRANSACTION  CARRIED OUT  BY  OTHER  MEMBERS  OF 
THE CONSPIRACY IN TEXAS AND IN LOUISIANA."

ONCE THE STATE PROVED THE CONSPIRACY AS A

MEANS TO COMMIT A CRIME, EACH CO-CONSPIRATOR
IS AS CRIMINALLY LIABLE AS THE OTHERS, FOR THE
ACT OF ONE IS THE ACT OF ALL. A CO-CONSPIRATOR
DOES NOT HAVE TO PARTICIPATE IN EVERY DETAIL OF
THE EXECUTION; NEITHER DOES HE HAVE TO KNOW
THE EXACT PART PERFORMED BY THE CO-
CONSPIRATOR IN THE EXECUTION OF THE CRIMINAL
ACT. OTHERWISE, THE CRIMINAL LIABILITY OF EACH
2017 BAR QUESTION
III (C)
 ANSWER BASED ON
(C)
JUSTICE LUCAS P. BERSAMIN’S DECISION

GOVERNOR DATU, HIS WIFE, FIRST LADY DEE,

BOKAL DIVA, HER SECRETARY TERRY AND MAYOR
DOLOR ARE ALL LIABLE FOR VIOLATION OF SECTION
3(B) OF R.A. NO. 3019. SECTION 3(B) OF REPUBLIC ACT
NO. 3019, PUNISHED ANY PUBLIC OFFICER FOR
"[D]IRECTLY OR INDIRECTLY REQUESTING OR
RECEIVING ANY GIFT, PRESENT, SHARE, PERCENTAGE,
OR BENEFIT, FOR HIMSELF OR FOR ANY OTHER
PERSON, IN CONNECTION WITH ANY CONTRACT OR
TRANSACTION BETWEEN THE GOVERNMENT AND ANY
OTHER PARTY, WHEREIN THE PUBLIC OFFICER IN HIS
OFFICIAL CAPACITY HAS TO INTERVENE UNDER THE
 IN THE CASE OF PEOPLE VS.
SANDIGANBAYAN, FIRST DIVISION AND
SECOND DIVISION SUPRA, IT WAS HELD THAT:

THE SANDIGANBAYAN CORRECTLY

APPLIED THE
RESTRICTIVE MEANING OF THE
TERM TRANSACTION AS
USED IN SECTION 3(B) OF REPUBLIC ACT NO.
3019
ADOPTED IN SORIANO, JR. V.
SANDIGANBAYAN IN ITS QUESTIONED
RESOLUTION DISMISSING CRIMINAL CASE NO. SB-
INVESTIGATION OF A CRIMINAL COMPLAINT
CONDUCTED BY PETITIONER SORIANO, JR., THEN A
FISCAL, WAS A "CONTRACT OR TRANSACTION" AS
TO BRING THE COMPLAINT WITHIN THE AMBIT OF
SECTION 3(B) OF REPUBLIC ACT NO. 3019, WHICH
PUNISHED ANY PUBLIC OFFICER FOR
"[D]IRECTLY OR INDIRECTLY REQUESTING OR
RECEIVING ANY GIFT, PRESENT, SHARE,
PERCENTAGE, OR BENEFIT, FOR HIMSELF OR
FOR ANY OTHER PERSON, IN CONNECTION
WITH ANY CONTRACT OR
TRANSACTION BETWEEN THE GOVERNMENT
AND ANY OTHER PARTY, WHEREIN THE PUBLIC
CONDUCTED BY THE PETITIONER WAS NOT A
CONTRACT. NEITHER WAS IT A TRANSACTION
BECAUSE THIS TERM MUST BE CONSTRUED AS
ANALOGOUS TO THE TERM WHICH PRECEDES IT.
A TRANSACTION, LIKE A CONTRACT, IS ONE
WHICH INVOLVES SOME CONSIDERATION AS IN
CREDIT TRANSACTIONS AND THIS ELEMENT
(CONSIDERATION) IS ABSENT IN THE INVESTIGATION
CONDUCTED BY THE PETITIONER.
 
IN THE LIGHT OF THE FOREGOING, WE AGREE
WITH THE PETITIONER THAT IT WAS ERROR FOR THE
SANDIGANBAYAN TO HAVE CONVICTED HIM OF
 THE STATE NOW ARGUES, HOWEVER, THAT THE
SANDIGANBAYAN THEREBY COMMITTED GRAVE
ABUSE OF DISCRETION RESULTING TO LACK OR IN
EXCESS OF JURISDICTION FOR APPLYING THE
INTERPRETATION OF THE
TERM TRANSACTION IN SORIANO, JR. CONSIDERING
THAT THE TERM TRANSACTION SHOULD BE
CONSTRUED MORE LIBERALLY, AND POSITING
THAT SORIANO, JR. WAS ALREADY ABANDONED BY
THE COURT, CITING FOR THAT PURPOSE THE
RULINGS IN MEJIA V. PAMARAN, PELIGRINO V.
PEOPLE, AND CHANG V. PEOPLE.

WE DISAGREE WITH THE PETITIONER, AND FIND

3(B) OF REPUBLIC ACT NO. 3019 HAS NOT BEEN
OVERTURNED BY THE COURT.
 
IN MEJIA V. PAMARAN, DECIDED EN BANC ON
APRIL 15, 1988, MEJIA HAD DEMANDED AND RECEIVED
MONEY FROM SOME PERSONS INVOLVED IN CERTAIN
CASES IN A TRIAL COURT WHERE MEJIA WAS THEN
SERVING AS THE BRANCH CLERK OF COURT IN
CONSIDERATION OF A PROMISE THAT SHE WOULD HELP
IN GETTING A FAVORABLE JUDGMENT FOR THEM. THE
ISSUE WAS WHETHER OR NOT MEJIA COULD BE
CONVICTED UNDER THE INFORMATION THAT ALLEGED
THAT SHE HAD DEMANDED A CERTAIN AMOUNT,
ALTHOUGH THE SANDIGANBAYAN FOUND THAT THE
 THE COURT DISMISSED HER PETITION, AND
RULED THAT "[I]N A PROSECUTION UNDER THE
FOREGOING PROVISION OF THE ANTI-GRAFT LAW
THE VALUE OF THE GIFT, MONEY OR PRESENT,
ETC. IS IMMATERIAL XXX [W]HAT IS PENALIZED IS
THE RECEIPT OF ANY GIFT, PRESENT, SHARE,
PERCENTAGE, OR BENEFIT BY A PUBLIC OFFICER
IN CONNECTION WITH A CONTRACT OR
TRANSACTION WITH THE GOVERNMENT,
WHEREIN THE PUBLIC OFFICER HAS TO
INTERVENE IN HIS OFFICIAL CAPACITY." THE
COURT NOWHERE RULED ON THE PROPER
13, 2001, PELIGRINO, AN EXAMINER OF THE BUREAU
OF INTERNAL REVENUE, WAS CONVICTED OF
VIOLATING SECTION 3(B) OF REPUBLIC ACT NO. 3019
FOR DEMANDING THE AMOUNT OF ₱200,000.00 FROM
THE COMPLAINANT IN CONNECTION WITH THE
LATTER’S TAX LIABILITIES. PELIGRINO’S DEFENSE WAS
THAT HE DID NOT "DEMAND" THE MONEY, BUT THE
MONEY WAS JUST GIVEN TO HIM. HE ARGUED THAT HE
HAD ONLY INFORMED THE COMPLAINANT OF HIS TAX
DEFICIENCIES, AND THAT THE COMPLAINANT HAD
THEN REQUESTED THE REDUCTION OF THE AMOUNT
CLAIMED AS HIS TAX DEFICIENCIES. THE COURT FOUND
NO MERIT IN PELIGRINO’S ARGUMENT. THE RULING
HAD NOTHING TO DO WITH THE INTERPRETATION OF
CASE IN WHICH TWO PERSONS – CHANG AND SAN MATEO –
WERE CONVICTED OF VIOLATING SECTION 3(B) OF REPUBLIC
ACT NO. 3019 AFTER BEING FOUND TO HAVE RECEIVED
₱125,000.00 IN CONSIDERATION OF THEIR ISSUANCE OF A
CERTIFICATE OF EXAMINATION TO THE EFFECT THAT THE
COMPLAINANT HAD "NO TAX LIABILITY" IN FAVOUR OF THE
MUNICIPALITY, NOTWITHSTANDING THAT IT HAD NOT SETTLED
WITH THEM ON THEIR ASSESSED DEFICIENCY TAX OF
₱494,000.00. CHANG AND SAN MATEO CONTENDED THAT THE
CHARGE HAD RESULTED FROM AN INVOLUNTARY CONTACT
WHEREBY COMPLAINANT MAGAT HAD SIMPLY TOSSED TO THEM
THE BROWN ENVELOPE; THAT THERE HAD BEEN NO
CONSPIRACY BETWEEN THEM; AND THAT WHAT HAD
TRANSPIRED HAD BEEN AN INSTIGATION, NOT AN ENTRAPMENT.
IN AFFIRMING THEIR CONVICTION, THE COURT DID NOT TOUCH
ON THE PROPER INTERPRETATION OF THE
 THE THREE RULINGS THE STATE HAS CITED HERE DID NOT
OVERTURN THE INTERPRETATION MADE IN SORIANO, JR. OF THE
TERM TRANSACTION AS USED IN SECTION 3(B) OF REPUBLIC
ACT NO. 3019 BECAUSE THE PROPER INTERPRETATION OF THE
TERM WAS CLEARLY NOT DECISIVE IN THOSE CASES. ON THE
CONTRARY, IN THE LATER RULING IN MERENCILLO V.
PEOPLE, PROMULGATED IN 2007, THE COURT REITERATED THE
RESTRICTIVE INTERPRETATION GIVEN IN SORIANO, JR. TO THE
TERM TRANSACTION AS USED IN SECTION 3(B) OF REPUBLIC
ACT NO. 3019 IN CONNECTION WITH A DIFFERENTIATION
BETWEEN BRIBERY UNDER THE REVISED PENAL CODE AND THE
VIOLATION OF SECTION 3(B) OF REPUBLIC ACT NO. 3019 BY
HOLDING THAT THE LATTER IS "LIMITED ONLY TO
CONTRACTS OR TRANSACTIONS INVOLVING MONETARY
CONSIDERATION WHERE THE PUBLIC OFFICER HAS THE
AUTHORITY TO INTERVENE UNDER THE LAW."
ANY THAT THE TERM TRANSACTION AS USED IN
SECTION 3(B) OF REPUBLIC ACT NO. 3019 IS
SUSCEPTIBLE OF BEING INTERPRETED BOTH
RESTRICTIVELY AND LIBERALLY, CONSIDERING THAT
LAWS CREATING, DEFINING OR PUNISHING CRIMES AND
LAWS IMPOSING PENALTIES AND FORFEITURES ARE TO
BE CONSTRUED STRICTLY AGAINST THE STATE OR
AGAINST THE PARTY SEEKING TO ENFORCE THEM, AND
LIBERALLY AGAINST THE PARTY SOUGHT TO BE
CHARGED.
 
CLEARLY, THE SANDIGANBAYAN DID NOT
ARBITRARILY, OR WHIMSICALLY, OR CAPRICIOUSLY
QUASH THE INFORMATION FOR FAILING TO PROPERLY
2017 BAR QUESTION
III (D)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S
(D) DECISION

MR. GANGNAM IS LIABLE FOR CORRUPTION OF

PUBLIC OFFICIALS UNDER ART. 212 OF THE REVISED
PENAL CODE. THE ELEMENTS OF CORRUPTION OF PUBLIC
OFFICIALS UNDER ARTICLE 212 OF THE REVISED PENAL
CODE, THAT ARE PRESENT IN THIS CASE ARE:
1.THAT THE OFFENDER MAKES OFFERS OR PROMISES, OR
GIVE GIFTS OR PRESENTS TO A PUBLIC OFFICER; AND

2. THAT THE OFFERS OR PROMISES ARE MADE OR THE

GIFTS OR PRESENTS ARE GIVEN TO A PUBLIC OFFICER UNDER
CIRCUMSTANCES THAT WILL MAKE THE PUBLIC OFFICER LIABLE
FOR DIRECT BRIBERY OR INDIRECT BRIBERY. (DISINI VS.
 THE ALLEGATIONS IN THE INFORMATION FOR
CORRUPTION OF PUBLIC OFFICIALS, IF
HYPOTHETICALLY ADMITTED, WOULD ESTABLISH THE
ESSENTIAL ELEMENTS OF THE CRIME. THE
INFORMATION STATED THAT: (1) DISINI MADE AN
OFFER AND PROMISE, AND GAVE GIFTS TO
PRESIDENT MARCOS, A PUBLIC OFFICER; AND (2) IN
CONSIDERATION OF THE OFFERS, PROMISES AND
GIFTS, PRESIDENT MARCOS, IN CAUSING THE
AWARD OF THE CONTRACTS TO BURNS & ROE
AND WESTINGHOUSE BY TAKING ADVANTAGE OF
HIS POSITION AND IN COMMITTING SAID ACT IN
RELATION TO HIS OFFICE, WAS PLACED UNDER
 THE SECOND ELEMENT OF CORRUPTION OF
PUBLIC OFFICERS SIMPLY REQUIRED THE PUBLIC
OFFICER TO BE PLACED UNDER CIRCUMSTANCES,
NOT ABSOLUTE CERTAINTY, THAT WOULD MAKE HIM
LIABLE FOR DIRECT OR INDIRECT BRIBERY. THUS,
EVEN WITHOUT ALLEGING THAT PRESIDENT MARCOS
RECEIVED OR ACCEPTED DISINI’S OFFERS, PROMISES
AND GIFTS – AN ESSENTIAL ELEMENT IN DIRECT
BRIBERY – THE ALLEGATION THAT PRESIDENT
MARCOS CAUSED THE AWARD OF THE CONTRACTS TO
BURNS & ROE AND WESTINGHOUSE SUFFICED TO
PLACE HIM UNDER CIRCUMSTANCES OF BEING LIABLE
FOR DIRECT BRIBERY.
2017 BAR
QUESTION IV
2017 BAR QUESTION
IV (A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(A)

THE CHARGE OF FORCIBLE ABDUCTION WITH

RAPE FILED WITH RTC, BRANCH 8 IS NOT
CORRECT. THE PRINCIPAL OBJECTIVE OF THE
ABDUCTION OF MAITA BY SOLITO IS TO RAPE HER.
THUS, FORCIBLE ABDUCTION IS ABSORBED IN
THE CRIME OF RAPE. (PEOPLE VS. SABADLAB, 668 SCRA 237,
14 MARCH 2012.)
 IN PEOPLE VS. SABADLAB SUPRA, IT WAS HELD
THAT:
 
ALTHOUGH FORCIBLE ABDUCTION WAS
SEEMINGLY COMMITTED, WE CANNOT HOLD HIM
GUILTY OF THE COMPLEX CRIME OF FORCIBLE
ABDUCTION WITH RAPE WHEN THE OBJECTIVE OF
THE ABDUCTION WAS TO COMMIT THE RAPE. UNDER
THE CIRCUMSTANCES, THE RAPE ABSORBED THE
FORCIBLE ABDUCTION.
 
THE PENALTY OF RECLUSION PERPETUA WAS
CORRECTLY PRESCRIBED. ARTICLE 266-A AND ARTICLE 266-
B OF THE REVISED PENAL CODE, AS AMENDED BY
 ARTICLE 266-A. RAPE; WHEN AND HOW COMMITTED. –
RAPE IS COMMITTED –

1) BY A MAN WHO SHALL HAVE CARNAL KNOWLEDGE

OF A WOMAN UNDER ANY OF THE CIRCUMSTANCES:

A) THROUGH FORCE, THREAT, OR INTIMIDATION;

B) WHEN THE OFFENDED PARTY IS DEPRIVED OF

REASON OR OTHERWISE UNCONSCIOUS;

C) BY MEANS OF FRAUDULENT MACHINATIONS OR

GRAVE ABUSE OF AUTHORITY; AND

D) WHEN THE OFFENDED PARTY IS UNDER TWELVE (12)

YEARS OF AGE OR IS DEMENTED, EVEN THOUGH NONE OF THE
CIRCUMSTANCES MENTIONED ABOVE BE PRESENT.
 ARTICLE 266-B. PENALTIES. – RAPE UNDER
PARAGRAPH 1 OF THE NEXT PRECEDING ARTICLE SHALL
BE PUNISHED BY RECLUSION PERPETUA.
 
ON THE OTHER HAND, THE CHARGED
AGAINST SOLITO SHOULD HAVE BEEN ILLEGAL
POSSESSION OF MARIJUANA AS THERE WAS NO
ILLEGAL SALE THAT TRANSPIRED BETWEEN HIM
AND PO2 MASAHOL. (PEOPLE VS. MANANSALA, 695 SCRA 70, 3
APRIL 2013.)
 FOR SURE, THERE HAVE BEEN MANY OCCASIONS IN
WHICH THE COURT HAS FOUND AN ACCUSED CHARGED
WITH THE ILLEGAL SALE OF MARIJUANA IN VIOLATION OF
SECTION 4 GUILTY INSTEAD OF THE ILLEGAL POSSESSION OF
MARIJUANA IN VIOLATION OF SECTION 8. IN THE OFT-CITED
CASE OF PEOPLE V. LACERNA, THE COURT HELD AS
PREVAILING THE DOCTRINE THAT THE ILLEGAL SALE OF
MARIJUANA ABSORBS THE ILLEGAL POSSESSION OF
MARIJUANA, EXCEPT IF THE SELLER WAS ALSO
APPREHENDED IN THE ILLEGAL POSSESSION OF ANOTHER
QUANTITY OF MARIJUANA NOT COVERED BY OR NOT
INCLUDED IN THE ILLEGAL SALE, AND THE OTHER QUANTITY
OF MARIJUANA WAS PROBABLY INTENDED FOR SOME FUTURE
DEALINGS OR USE BY THE ACCUSED. THE PREMISE USED IN
LACERNA WAS THAT THE ILLEGAL POSSESSION, BEING AN
 IN PEOPLE VS. MANZANO, THE COURT IDENTIFIED THE
ELEMENTS OF ILLEGAL SALE OF PROHIBITED DRUGS, AS
FOLLOWS:

(1) THE ACCUSED SOLD AND DELIVERED A

PROHIBITED DRUG TO ANOTHER, AND

(2) HE KNEW THAT WHAT HE HAD SOLD AND

DELIVERED WAS A DANGEROUS DRUG. ALTHOUGH IT DID
NOT EXPRESSLY STATE IT, THE COURT STRESSED DELIVERY,
WHICH IMPLIES PRIOR POSSESSION OF THE PROHIBITED
DRUGS. SALE OF A PROHIBITED DRUG CAN NEVER BE
PROVEN WITHOUT SEIZURE AND IDENTIFICATION OF THE
PROHIBITED DRUG, AFFIRMING THAT POSSESSION IS A
CONDITION SINE QUA NON.
AN ELEMENT OF AND IS NECESSARILY INCLUDED IN THE
ILLEGAL SALE OF PROHIBITED DRUGS, THE COURT WILL
THUS DETERMINE APPELLANT’S CULPABILITY UNDER
SECTION 8.

FROM THE PENAL PROVISION UNDER CONSIDERATION

AND FROM THE CASES ADJUDICATED, THE ELEMENTS OF
ILLEGAL POSSESSION OF PROHIBITED DRUGS ARE AS
FOLLOWS:
(A) THE ACCUSED IS IN POSSESSION OF AN ITEM OR
OBJECT WHICH IS IDENTIFIED TO BE A PROHIBITED DRUG;

(B) SUCH POSSESSION IS NOT AUTHORIZED BY LAW;

AND
DESCRIBED IN LACERNA, HOWEVER, THE INVOLVEMENT OF A
SINGLE OBJECT IN BOTH THE ILLEGAL SALE AS THE CRIME
CHARGED AND THE ILLEGAL POSSESSION AS THE CRIME
PROVED IS INDISPENSABLE, SUCH THAT ONLY THE
PROHIBITED DRUGS ALLEGED IN THE INFORMATION TO BE
THE SUBJECT OF THE ILLEGAL SALE IS CONSIDERED
COMPETENT EVIDENCE TO SUPPORT THE CONVICTION OF
THE ACCUSED FOR THE ILLEGAL POSSESSION. AS SUCH, THE
ILLEGAL POSSESSION IS EITHER DEEMED ABSORBED BY OR IS
CONSIDERED A NECESSARY ELEMENT OF THE ILLEGAL SALE.
ON THE OTHER HAND, ANY OTHER ILLEGAL SUBSTANCE
FOUND IN THE POSSESSION OF THE ACCUSED THAT IS NOT
PART OF THE SUBJECT OF THE ILLEGAL SALE SHOULD BE
PROSECUTED UNDER A DISTINCT AND SEPARATE
INFORMATION CHARGING ILLEGAL POSSESSION; OTHERWISE,
THE FUNDAMENTAL RIGHT OF THE ACCUSED TO BE INFORMED
NECESSARILY INCLUDED IN THE CRIME OF DRUG PUSHING
OR DEALING, FOR WHICH THE ACCUSED HAVE BEEN
CHARGED WITH." THE RIGHT OF MANANSALA TO BE
INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM ENUNCIATED IN SECTION 14(2),
ARTICLE III OF THE 1987 CONSTITUTION WAS NOT
VIOLATED SIMPLY BECAUSE THE INFORMATION HAD
PRECISELY CHARGED HIM WITH SELLING, DELIVERING,
GIVING AWAY AND DISTRIBUTING MORE OR LESS 750
GRAMS OF DRIED MARIJUANA LEAVES. THEREBY, HE WAS
BEING SUFFICIENTLY GIVEN NOTICE THAT HE WAS ALSO TO
BE HELD TO ACCOUNT FOR POSSESSING MORE OR LESS
750 GRAMS OF DRIED MARIJUANA LEAVES. AS LACERNA
AND SIMILAR RULINGS HAVE EXPLAINED, THE CRIME OF
ILLEGAL SALE OF MARIJUANA DEFINED AND PUNISHED
 AS SUCH, THE CRIME OF ILLEGAL SALE INCLUDED OR
ABSORBED THE CRIME OF ILLEGAL POSSESSION. THE RULE
IS THAT WHEN THERE IS A VARIANCE BETWEEN THE
OFFENSE CHARGED IN THE COMPLAINT OR INFORMATION,
AND THAT PROVED OR ESTABLISHED BY THE EVIDENCE,
AND THE OFFENSE AS CHARGED NECESSARILY INCLUDES
THE OFFENSE PROVED, THE ACCUSED SHALL BE
CONVICTED OF THE OFFENSE PROVED INCLUDED IN THAT
WHICH IS CHARGED. ACCORDING TO SECTION 5, RULE 120,
RULES OF COURT (1985), THE RULE THEN APPLICABLE, AN
OFFENSE CHARGED NECESSARILY INCLUDES THAT WHICH
IS PROVED, WHEN SOME OF THE ESSENTIAL ELEMENTS OR
INGREDIENTS OF THE FORMER, AS THIS IS ALLEGED IN THE
COMPLAINT OR INFORMATION, CONSTITUTE THE LATTER.
2017 BAR QUESTION
IV (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S
(B) DECISION

YES, THE RULING OF BOTH COURTS, ARE

CORRECT. RTC, BRANCH 8 CORRECTLY RULED THE
RELEASE OF THE VEHICLE. THE CRIME OF RAPE WAS
ALREADY TERMINATED LEADING TO THE
CONVICTION OF SOLITO. FURTHER, THE
CONFISCATION OR RETENTION OF THE SAID VEHICLE
HAS NO MORE PURPOSE EVEN ON APPEAL.
WHEREAS, THE ORDER OF DENIAL OF RELEASE
OF THE MOTOR VEHICLE BY RTC, BRANCH 29 WAS
ALSO CORRECT. (PDEA VS. BRODETT, 658 SCRA 399, 28
 IN PDEA VS. BRODETT, SUPRA, IT WAS HELD THAT:
 
OBJECTS OF LAWFUL COMMERCE CONFISCATED IN THE
COURSE OF AN ENFORCEMENT OF THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF 2002 (REPUBLIC ACT NO. 9165)
THAT ARE THE PROPERTY OF A THIRD PERSON ARE SUBJECT TO
BE RETURNED TO THE LAWFUL OWNER WHO IS NOT LIABLE
FOR THE UNLAWFUL ACT. BUT THE TRIAL COURT MAY NOT
RELEASE SUCH OBJECTS PENDING TRIAL AND BEFORE
JUDGMENT.

THE LEGAL PROVISION APPLICABLE TO THE CONFISCATION

AND FORFEITURE OF THE PROCEEDS OR INSTRUMENTS OF THE
UNLAWFUL ACT, INCLUDING THE PROPERTIES OR PROCEEDS
DERIVED FROM ILLEGAL TRAFFICKING OF DANGEROUS DRUGS
THE PROPERTIES OR PROCEEDS DERIVED FROM THE ILLEGAL
TRAFFICKING OF DANGEROUS DRUGS AND/OR PRECURSORS AND
ESSENTIAL CHEMICALS. – EVERY PENALTY IMPOSED FOR THE
UNLAWFUL IMPORTATION, SALE, TRADING, ADMINISTRATION,
DISPENSATION, DELIVERY, DISTRIBUTION, TRANSPORTATION OR
MANUFACTURE OF ANY DANGEROUS DRUG AND/OR CONTROLLED
PRECURSOR AND ESSENTIAL CHEMICAL, THE CULTIVATION OR
CULTURE OF PLANTS WHICH ARE SOURCES OF DANGEROUS DRUGS,
AND THE POSSESSION OF ANY EQUIPMENT, INSTRUMENT,
APPARATUS AND OTHER PARAPHERNALIA FOR DANGEROUS DRUGS
INCLUDING OTHER LABORATORY EQUIPMENT, SHALL CARRY WITH IT
THE CONFISCATION AND FORFEITURE, IN FAVOR OF THE
GOVERNMENT, OF ALL THE PROCEEDS DERIVED FROM UNLAWFUL
ACT, INCLUDING, BUT NOT LIMITED TO, MONEY AND OTHER ASSETS
OBTAINED THEREBY, AND THE INSTRUMENTS OR TOOLS WITH
WHICH THE PARTICULAR UNLAWFUL ACT WAS COMMITTED, UNLESS
THEY ARE THE PROPERTY OF A THIRD PERSON NOT LIABLE
APPROPRIATE CRIMINAL CASE FILED, THE COURT SHALL
IMMEDIATELY SCHEDULE A HEARING FOR THE CONFISCATION
AND FORFEITURE OF ALL THE PROCEEDS OF THE OFFENSE AND
ALL THE ASSETS AND PROPERTIES OF THE ACCUSED EITHER
OWNED OR HELD BY HIM OR IN THE NAME OF SOME OTHER
PERSONS IF THE SAME SHALL BE FOUND TO BE MANIFESTLY
OUT OF PROPORTION TO HIS/HER LAWFUL INCOME: PROVIDED,
HOWEVER, THAT IF THE FORFEITED PROPERTY IS A VEHICLE,
THE SAME SHALL BE AUCTIONED OFF NOT LATER THAN FIVE (5)
DAYS UPON ORDER OF CONFISCATION OR FORFEITURE.
 
DURING THE PENDENCY OF THE CASE IN THE REGIONAL
TRIAL COURT, NO PROPERTY, OR INCOME DERIVED
THEREFROM, WHICH MAY BE CONFISCATED AND FORFEITED,
SHALL BE DISPOSED, ALIENATED OR TRANSFERRED AND THE
SAME SHALL BE IN CUSTODIA LEGIS AND NO BOND SHALL BE
 THE PROCEEDS OF ANY SALE OR DISPOSITION OF ANY
PROPERTY CONFISCATED OR FORFEITED UNDER THIS SECTION
SHALL BE USED TO PAY ALL PROPER EXPENSES INCURRED IN
THE PROCEEDINGS FOR THE CONFISCATION, FORFEITURE,
CUSTODY AND MAINTENANCE OF THE PROPERTY PENDING
DISPOSITION, AS WELL AS EXPENSES FOR PUBLICATION AND
COURT COSTS. THE PROCEEDS IN EXCESS OF THE ABOVE
EXPENSES SHALL ACCRUE TO THE BOARD TO BE USED IN ITS
CAMPAIGN AGAINST ILLEGAL DRUGS.
 THERE IS NO QUESTION, FOR EVEN PDEA HAS ITSELF
POINTED OUT, THAT THE TEXT OF SECTION 20 OF R. A. NO. 9165
RELEVANT TO THE CONFISCATION AND FORFEITURE OF THE
PROCEEDS OR INSTRUMENTS OF THE UNLAWFUL ACT IS SIMILAR
TO THAT OF ARTICLE 45 OF THE REVISED PENAL CODE, WHICH
STATES:
ARTICLE 45. CONFISCATION AND FORFEITURE OF THE
PROCEEDS OR INSTRUMENTS OF THECRIME. – EVERY PENALTY
IMPOSED FOR THE COMMISSION OF A FELONY SHALL CARRY
WITH IT THE FORFEITURE OF THE PROCEEDS OF THE CRIME AND
THE INSTRUMENTS OR TOOLS WITH WHICH IT WAS COMMITTED.
SUCH PROCEEDS AND INSTRUMENTS OR TOOLS SHALL BE
CONFISCATED AND FORFEITED IN FAVOR OF THE GOVERNMENT,
UNLESS  THEY  BE  THE  PROPERTY  OF  A  THIRD  PERSON  NOT 
LIABLE  FOR  THE  OFFENSE, BUT THOSE ARTICLES WHICH ARE
 THE COURT HAS INTERPRETED AND APPLIED ARTICLE 45
OF THE REVISED PENAL CODE IN PEOPLE V. JOSE, CONCERNING
THE CONFISCATION AND FORFEITURE OF THE CAR USED BY THE
FOUR ACCUSED WHEN THEY COMMITTED THE FORCIBLE
ABDUCTION WITH RAPE, ALTHOUGH THE CAR DID NOT BELONG
TO ANY OF THEM, HOLDING:

XXX ARTICLE 45 OF THE REVISED PENAL CODE BARS THE

CONFISCATION AND FORFEITURE OF AN INSTRUMENT OR TOOL
USED IN THE COMMISSION OF THE CRIME IF SUCH "BE THE
PROPERTY OF A THIRD PERSON NOT LIABLE FOR THE OFFENSE,"
IT IS THE SENSE OF THIS COURT THAT THE ORDER OF THE
COURT BELOW FOR THE CONFISCATION OF THE CAR IN
QUESTION SHOULD BE SET ASIDE AND THAT THE SAID CAR
SHOULD BE ORDERED DELIVERED TO THE INTERVENOR FOR
FORECLOSURE AS DECREED IN THE JUDGMENT OF THE COURT
INSTRUMENTS BELONGING TO A THIRD PERSON, THEREFORE, THERE
MUST BE AN INDICTMENT CHARGING SUCH THIRD PERSON EITHER
AS A PRINCIPAL, ACCESSORY, OR ACCOMPLICE. LESS THAN THAT
WILL NOT SUFFICE TO PREVENT THE RETURN OF THE TOOLS AND
INSTRUMENTS TO THE THIRD PERSON, FOR A MERE SUSPICION OF
THAT PERSON’S PARTICIPATION IS NOT SUFFICIENT GROUND FOR
THE COURT TO ORDER THE FORFEITURE OF THE GOODS SEIZED.
HOWEVER, THE OFFICE OF THE CITY PROSECUTOR PROPOSED
THROUGH ITS COMMENT AND OBJECTION SUBMITTED ON AUGUST
27, 2009 IN THE RTC THAT THE DELIVERY TO THE RTC OF THE
LISTED PERSONAL EFFECTS FOR SAFEKEEPING, TO BE HELD THERE
THROUGHOUT THE DURATION OF THE TRIAL, WOULD BE TO ENABLE
THE PROSECUTION AND THE DEFENSE TO EXHAUST THEIR POSSIBLE
EVIDENTIARY VALUE. THE OFFICE OF THE CITY PROSECUTOR
FURTHER OBJECTED TO THE RETURN OF THE CAR BECAUSE IT
APPEARED TO BE THE VEHICLE USED IN THE TRANSACTION OF THE
SALE OF DANGEROUS DRUGS, AND, AS SUCH, WAS THE
 ON ITS PART, PDEA REGARDS THE DECISION OF THE CA TO
BE NOT IN ACCORD WITH APPLICABLE LAWS AND THE
PRIMORDIAL INTENT OF THE FRAMERS OF R. A. NO. 9165, AND
CONTENDS THAT THE CAR SHOULD NOT BE RELEASED FROM
THE CUSTODY OF THE LAW BECAUSE IT HAD BEEN SEIZED
FROM ACCUSED BRODETT DURING A LEGITIMATE ANTI-ILLEGAL
OPERATION. IT ARGUES THAT THE MOTION TO RETURN NON-
DRUG EVIDENCEDID NOT INTIMATE OR ALLEGE THAT THE CAR
HAD BELONGED TO A THIRD PERSON; AND THAT EVEN IF THE
CAR HAD BELONGED TO MS. BRODETT, A THIRD PERSON, HER
OWNERSHIP DID NOT IPSO FACTO AUTHORIZE ITS RELEASE,
BECAUSE SHE WAS UNDER THE OBLIGATION TO PROVE TO THE
RTC THAT SHE HAD NO KNOWLEDGE OF THE COMMISSION OF
THE CRIME. IT INSISTS THAT THE CAR IS A PROPERTY IN
CUSTODIALEGIS AND MAY NOT BE RELEASED DURING THE
PENDENCY OF THE TRIAL.
  
WE NOTE THAT THE RTC GRANTED ACCUSED
BRODETT’S MOTION TO RETURN NON-DRUG EVIDENCE ON
NOVEMBER 4, 2009 WHEN THE CRIMINAL PROCEEDINGS
WERE STILL GOING ON, AND THE TRIAL WAS YET TO BE
COMPLETED. ORDERING THE RELEASE OF THE CAR AT
THAT POINT OF THE PROCEEDINGS WAS PREMATURE,
CONSIDERING THAT THE THIRD PARAGRAPH OF SECTION
20, SUPRA, EXPRESSLY FORBIDS THE DISPOSITION,
ALIENATION, OR TRANSFER OF ANY PROPERTY, OR INCOME
DERIVED THEREFROM, THAT HAS BEEN CONFISCATED
FROM THE ACCUSED CHARGED UNDER R.A. NO. 9165
DURING THE PENDENCY OF THE PROCEEDINGS IN THE
REGIONAL TRIAL COURT. SECTION 20 FURTHER EXPRESSLY
REQUIRES THAT SUCH PROPERTY OR INCOME DERIVED
 INDEED, FORFEITURE, IF WARRANTED PURSUANT
TO EITHER ARTICLE 45 OF THE REVISED PENAL CODE
AND SECTION 20 OF R.A. NO. 9165, WOULD BE A PART
OF THE PENALTY TO BE PRESCRIBED. THE
DETERMINATION OF WHETHER OR NOT THE CAR (OR
ANY OTHER ARTICLE CONFISCATED IN RELATION TO
THE UNLAWFUL ACT) WOULD BE SUBJECT OF
FORFEITURE COULD BE MADE ONLY WHEN THE
JUDGMENT WAS TO BE RENDERED IN THE
PROCEEDINGS. SECTION 20 IS ALSO CLEAR AS TO THIS.
IN THE RTC AS BEING IN CUSTODIA LEGISIS PRIMARILY INTENDED TO
PRESERVE IT AS EVIDENCE AND TO ENSURE ITS AVAILABILITY AS SUCH.
TO RELEASE IT BEFORE THE JUDGMENT IS RENDERED IS TO DEPRIVE
THE TRIAL COURT AND THE PARTIES ACCESS TO IT AS EVIDENCE.
CONSEQUENTLY, THAT PHOTOGRAPHS WERE ORDERED TO BE TAKEN
OF THE CAR WAS NOT ENOUGH, FOR MERE PHOTOGRAPHS MIGHT NOT
FILL IN FULLY THE EVIDENTIARY NEED OF THE PROSECUTION. AS SUCH,
THE RTC’S ASSAILED ORDERS WERE ISSUED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
BEING IN CONTRAVENTION WITH THE EXPRESS LANGUAGE OF SECTION
20 OF R.A. NO. 9165.
NONETHELESS, THE COURT NEED NOT ANNUL THE ASSAILED
ORDERS OF THE RTC, OR REVERSE THE DECISION OF THE CA. IT
APPEARS THAT ON AUGUST 26, 2011 THE RTC PROMULGATED ITS
DECISION ON THE MERITS IN CRIMINAL CASE NO. 09-208 AND CRIMINAL
CASE NO. 09-209, ACQUITTING BOTH BRODETT AND JOSEPH AND
FURTHER ORDERING THE RETURN TO THE ACCUSED OF ALL NON-DRUG
ESTABLISH ALL THE LINKS IN THE CHAIN OF CUSTODY IS FATAL 
TO  THE  CASE  AT  BAR.  THE  COURT  CANNOT  MERELY  RELY  ON 
THE  PRESUMPTION  OF  REGULARITY  IN  THE  PERFORMANCE  OF 
OFFICIAL FUNCTION IN VIEW OF THE GLARING BLUNDER IN THE 
HANDLING  OF  THE  CORPUS  DELICTI  OF  THESE  CASES.  THE 
PRESUMPTION  OF  REGULARITY  SHOULD  BOW  DOWN  TO  THE 
PRESUMPTION  OF  INNOCENCE  OF  THE  ACCUSED.  HENCE,  THE 
TWO  (2) ACCUSED  BRODETT AND  JOSEPH  SHOULD  BE AS  IT  IS 
HEREBY  ACQUITTED  OF  THE  CRIMES  HEREIN  CHARGED  FOR 
ILLEGAL  SELLING  AND  ILLEGAL  POSSESSION  OF  DANGEROUS 
DRUGS.

WHEREFORE,  PREMISES  CONSIDERED,  FOR  FAILURE  OF 

THE  PROSECUTION  TO  PROVE  THE  GUILT  OF  THE  ACCUSED 
BEYOND  REASONABLE  DOUBT,  RICHARD  BRODETT  Y  SANTOS 
AND  JORGE  JOSEPH  Y  JORDANA  ARE  ACQUITTED  OF  THE 
 THE  SUBJECT  DRUG  EVIDENCE  ARE  ALL  ORDERED 
TRANSMITTED  TO  THE  PHILIPPINE  DRUG  ENFORCEMENT 
AGENCY  (PDEA)  FOR  PROPER  DISPOSITION. ALL  THE  NON-
DRUG  EVIDENCE  EXCEPT  THE  BUY  BUST  MONEY AND  THE 
GENUINE  MONEY  ARE  ORDERED  RETURNED  TO  THE 
ACCUSED.
 
THE  GENUINE  MONEY  USED  IN  THE  BUY  BUST 
OPERATION  AS  WELL  AS  THE  GENUINE  MONEY 
CONFISCATED  FROM  BOTH  ACCUSED  ARE  ORDERED 
ESCHEATED  IN  FAVOR  OF  THE  GOVERNMENT  AND 
ACCORDINGLY TRANSMITTED TO THE NATIONAL TREASURY 
FOR PROPER DISPOSITION. (EMPHASIS SUPPLIED) 
SEIZES THE OPPORTUNITY TO PERFORM ITS DUTY TO
FORMULATE GUIDELINES ON THE MATTER OF CONFISCATION
AND FORFEITURE OF NON-DRUG ARTICLES, INCLUDING THOSE
BELONGING TO THIRD PERSONS NOT LIABLE FOR THE
OFFENSE, IN ORDER TO CLARIFY THE EXTENT OF THE POWER
OF THE TRIAL COURT UNDER SECTION 20 OF R.A. NO.
9165. THIS THE COURT MUST NOW DO IN VIEW OF THE
QUESTION ABOUT THE CONFISCATION AND FORFEITURE OF
NON-DRUG OBJECTS BEING SUSCEPTIBLE OF REPETITION IN
THE FUTURE.
 
WE RULE THAT HENCEFORTH THE REGIONAL TRIAL
COURTS SHALL COMPLY STRICTLY WITH THE PROVISIONS
OF SECTION 20 OF R.A. NO. 9165, AND SHOULD NOT
RELEASE ARTICLES, WHETHER DRUGS OR NON-DRUGS,
FOR THE DURATION OF THE TRIAL AND BEFORE THE
2017 BAR QUESTION V
2017 BAR QUESTION V (A)
 (A)

ART. 203. WHO ARE PUBLIC OFFICERS. — FOR THE

PURPOSE OF APPLYING THE PROVISIONS OF THIS AND
THE PRECEDING TITLES OF THIS BOOK, ANY PERSON
WHO, BY DIRECT PROVISION OF THE LAW, POPULAR
ELECTION OR APPOINTMENT BY COMPETENT
AUTHORITY, SHALL TAKE PART IN THE PERFORMANCE
OF PUBLIC FUNCTIONS IN THE GOVERNMENT OF THE
PHILIPPINE ISLANDS, OF SHALL PERFORM IN SAID
GOVERNMENT OR IN ANY OF ITS BRANCHES PUBLIC
DUTIES AS AN EMPLOYEE, AGENT OR SUBORDINATE
OFFICIAL, OF ANY RANK OR CLASS, SHALL BE DEEMED
TO BE A PUBLIC OFFICER. (CODAL PROVISION
2017 BAR QUESTION V (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S
(B) DECISION
THE QUESTION WAS A REVERSE TO THE CASE OF
MESINA VS. PEOPLE (758 SCRA 659, 17 JUNE 2015).

THE CRIME CHARGED AGAINST MR. GULANG FOR

VIOLATION OF ARTICLE 217 AND ART. 218 OF THE
RPC ARE IMPROPER. ALSO FOR VIOLATION OF
SECTION 3(E) OF R.A. NO. 3019. THE NUMBER ONE
ELEMENT FOR MALVERSATION IS THAT, THE
OFFENDER MUST BE A PUBLIC OFFICER. THIS IS
ABSENT IN THIS CASE.

WHEREAS, THE ELEMENTS OF SECTION 3(E) OF

 IN EVERY PROSECUTION FOR THE VIOLATION OF
SECTION 3 (E) OF R.A. NO. 3019, THE STATE MUST PROVE
THE FOLLOWING ESSENTIAL ELEMENTS, NAMELY:
 
1. THE ACCUSED IS A PUBLIC OFFICER DISCHARGING
ADMINISTRATIVE, JUDICIAL OR OFFICIAL FUNCTIONS;
 
2. HE MUST HAVE ACTED WITH MANIFEST
PARTIALITY, EVIDENT BAD FAITH, OR GROSS INEXCUSABLE
NEGLIGENCE IN THE DISCHARGE OF HIS FUNCTIONS AND;
 
3. HIS ACTION CAUSED ANY UNDUE INJURY TO ANY
PARTY, INCLUDING THE GOVERNMENT, OR GAVE ANY
PRIVATE PARTY UNWARRANTED BENEFITS, ADVANTAGE OR
PREFERENCE IN THE DISCHARGE OF HIS FUNCTIONS.
DISCUSSION:

THE CRIME OF MALVERSATION OF PUBLIC FUNDS

CHARGED HEREIN IS DEFINED AND PENALIZED UNDER ARTICLE
217 OF THE REVISED PENAL CODE, AS AMENDED, AS FOLLOWS:

ARTICLE 217. MALVERSATION OF PUBLIC FUNDS OR

PROPERTY. - PRESUMPTION OF MALVERSATION. - ANY PUBLIC
OFFICER WHO, BY REASON OF THE DUTIES OF HIS OFFICE, IS
ACCOUNTABLE FOR PUBLIC FUNDS OR PROPERTY, SHALL
APPROPRIATE THE SAME, OR SHALL TAKE OR MISAPPROPRIATE
OR SHALL CONSENT, OR THROUGH ABANDONMENT OR
NEGLIGENCE, SHALL PERMIT ANY OTHER PERSON TO TAKE
SUCH PUBLIC FUNDS OR PROPERTY, WHOLLY OR PARTIALLY, OR
SHALL OTHERWISE BE GUILTY OF THE MISAPPROPRIATION OR
MALVERSATION OF SUCH FUNDS OR PROPERTY SHALL SUFFER:
 4. THE PENALTY OF RECLUSION TEMPORAL IN ITS
MEDIUM AND MAXIMUM PERIODS, IF THE AMOUNT INVOLVED IS
MORE THAN TWELVE THOUSAND PESOS BUT IS LESS THAN
TWENTY-TWO THOUSAND PESOS. IF THE AMOUNT EXCEEDS THE
LATTER, THE PENALTY SHALL BE RECLUSION TEMPORAL IN ITS
MAXIMUM PERIOD TO RECLUSION PERPETUA.
IN ALL CASES, PERSONS GUILTY OF MALVERSATION SHALL
ALSO SUFFER THE PENALTY OF PERPETUAL SPECIAL
DISQUALIFICATION AND A FINE EQUAL TO THE AMOUNT OF THE
FUNDS MALVERSED OR EQUAL TO THE TOTAL VALUE OF THE
PROPERTY EMBEZZLED.
THE FAILURE OF A PUBLIC OFFICER TO HAVE DULY
FORTHCOMING ANY PUBLIC FUNDS OR PROPERTY WITH WHICH
HE IS CHARGEABLE, UPON DEMAND BY ANY DULY AUTHORIZED
OFFICER, SHALL BE PRIMA FACIE EVIDENCE THAT HE HAS PUT
THE FOLLOWING ELEMENTS, TO WIT:

(A) THAT THE OFFENDER IS A PUBLIC OFFICER;

(B) THAT HE HAD THE CUSTODY OR CONTROL OF

FUNDS OR PROPERTY BY REASON OF THE DUTIES OF HIS
OFFICE;

(C) THAT THE FUNDS OR PROPERTY WERE PUBLIC

FUNDS OR PROPERTY FOR WHICH HE WAS ACCOUNTABLE;
AND

(D) THAT HE APPROPRIATED, TOOK,

MISAPPROPRIATED OR CONSENTED OR, THROUGH
ABANDONMENT OR NEGLIGENCE, PERMITTED ANOTHER
 THE ELEMENTS OF THE CRIME CHARGED WERE
DULY ESTABLISHED AGAINST THE PETITIONER.

THE PROSECUTION PROVED, FIRSTLY, THAT THE

PETITIONER WAS A PUBLIC OFFICER WITH THE POSITION
OF LOCAL TREASURER OFFICER I OF CALOOCAN CITY;
SECONDLY, THAT BY REASON OF HIS POSITION, HE WAS
TASKED TO COLLECT FEES AND TAXES REGULARLY
LEVIED BY THE MINI CITY HALL, INCLUDING MARKET
FEES, MISCELLANEOUS FEES, REAL PROPERTY TAXES,
AND THE SUBJECT PATUBIG COLLECTION; AND, THIRDLY,
THAT ALL OF THE FEES AND TAXES COLLECTED WERE
UNQUESTIONABLY PUBLIC FUNDS FOR WHICH HE WAS
ACCOUNTABLE.
MISAPPROPRIATION, THE PETITIONER DID NOT REBUT
THE PRESUMPTION THAT HE HAD MISAPPROPRIATED
THE PATUBIG COLLECTION TO HIS PERSONAL USE. HE
HAD EARLIER FEIGNED IGNORANCE OF HAVING
RECEIVED THE PATUBIG COLLECTION WHEN HE
PHONED MS. BACLIT TO TELL HER THAT HE DID NOT
RECEIVE THE COLLECTION. HE STILL INSISTED THAT HE
HAD NOT RECEIVED THE SUM FROM MS. BACLIT WHEN
THE CITY TREASURER SUMMONED THEM BOTH. HIS
DENIAL CONTINUED UNTIL THE NEXT DAY WHEN CITY
MAYOR MALONZO HIMSELF ASKED THEM BOTH ABOUT
THE MATTER. ONLY AFTER THE PETITIONER'S VAULT
WAS FINALLY OPENED DID HE DECLARE THAT THE
COLLECTION WAS INTACT INSIDE HIS VAULT. EVEN THEN,
 CONFORMABLY WITH ARTICLE 217 OF THE REVISED
PENAL CODE, SUPRA, THE FAILURE OF THE PETITIONER
TO HAVE THE PATUBIG COLLECTION DULY
FORTHCOMING UPON DEMAND BY THE DULY
AUTHORIZED OFFICER WAS PRIMA FACIE EVIDENCE
THAT HE HAD PUT SUCH MISSING FUND TO PERSONAL
USE. ALTHOUGH THE SHOWING WAS MERELY PRIMA
FACIE, AND, THEREFORE, REBUTTABLE, HE DID NOT
REBUT IT, CONSIDERING THAT HE NOT ONLY DID NOT
ACCOUNT FOR THE COLLECTION UPON DEMAND BUT
EVEN STEADFASTLY DENIED HAVING RECEIVED IT UP TO
THE TIME OF THE INSPECTION OF THE SEALED VAULT.
UNDER THE CIRCUMSTANCES, HE WAS GUILTY OF THE
MISAPPROPRIATION OF THE COLLECTION.
NEGLIGENCE. THE DOLO OR THE CULPA IS ONLY A MODALITY IN
THE PERPETRATION OF THE FELONY. EVEN IF THE MODE CHARGED
DIFFERS FROM THE MODE PROVED, THE SAME OFFENSE OF
MALVERSATION IS STILL COMMITTED; HENCE, A CONVICTION IS
PROPER. ALL THAT IS NECESSARY FOR A CONVICTION IS
SUFFICIENT PROOF THAT THE ACCUSED ACCOUNTABLE OFFICER
HAD RECEIVED PUBLIC FUNDS OR PROPERTY, AND DID NOT HAVE
THEM IN HIS POSSESSION WHEN DEMAND THEREFOR WAS MADE
WITHOUT ANY SATISFACTORY EXPLANATION OF HIS FAILURE TO
HAVE THEM UPON DEMAND. FOR THIS PURPOSE, DIRECT
EVIDENCE OF THE PERSONAL MISAPPROPRIATION BY THE
ACCUSED IS UNNECESSARY AS LONG AS HE CANNOT
SATISFACTORILY EXPLAIN THE INABILITY TO PRODUCE OR ANY
SHORTAGE IN HIS ACCOUNTS. ACCORDINGLY, WITH THE EVIDENCE
ADDUCED BY THE STATE BEING ENTIRELY INCOMPATIBLE WITH THE
PETITIONER'S CLAIM OF INNOCENCE, WE UPHOLD THE CA'S
AFFIRMANCE OF THE CONVICTION, FOR, INDEED, THE PROOF OF
2017 BAR QUESTION VI (A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION

(A)

IT IS THE FAILURE OF THE ACCUSED

TO TOUCH THE LABIAS, THAT WILL
AMOUNT ONLY TO ATTEMPTED RAPE BY
CARNAL KNOWLEDGE.
 IN OBJECTIVE TERMS, CARNAL  KNOWLEDGE, THE
OTHER ESSENTIAL ELEMENT IN CONSUMMATED STATUTORY 
RAPE, DOES NOT REQUIRE FULL PENILE PENETRATION OF
THE FEMALE. THE COURT HAS CLARIFIED IN PEOPLE  V. 
CAMPUHAN THAT THE MERE TOUCHING OF THE EXTERNAL
GENITALIA BY A PENIS CAPABLE OF CONSUMMATING THE
SEXUAL ACT IS SUFFICIENT TO CONSTITUTE CARNAL
KNOWLEDGE. ALL  THAT  IS  NECESSARY  TO  REACH  THE 
CONSUMMATED STAGE OF RAPE IS FOR THE PENIS OF THE 
ACCUSED  CAPABLE  OF  CONSUMMATING  THE  SEXUAL  ACT 
TO COME INTO CONTACT WITH THE LIPS OF THE PUDENDUM 
OF  THE  VICTIM. THIS MEANS THAT THE RAPE IS
CONSUMMATED ONCE THE PENIS OF THE ACCUSED
CAPABLE OF CONSUMMATING THE SEXUAL ACT TOUCHES
NOT MEAN MERE EPIDERMAL CONTACT, OR STROKING OR
GRAZING OF ORGANS, OR A SLIGHT BRUSH OR A SCRAPE
OF THE PENIS ON THE EXTERNAL LAYER OF THE VICTIM’S
VAGINA, OR THE MONS PUBIS, BUT RATHER THE ERECT
PENIS TOUCHING THE LABIAS OR SLIDING INTO THE FEMALE
GENITALIA. ACCORDINGLY, THE CONCLUSION THAT
TOUCHING THE LABIA MAJORA OR THE LABIA MINORA OF
THE PUDENDUM CONSTITUTES CONSUMMATED RAPE
PROCEEDS FROM THE PHYSICAL FACT THAT THE LABIAS
ARE PHYSICALLY SITUATED BENEATH THE MONS PUBIS OR
THE VAGINAL SURFACE, SUCH THAT FOR THE PENIS TO
TOUCH EITHER OF THEM IS TO ATTAIN SOME DEGREE OF
PENETRATION BENEATH THE SURFACE OF THE FEMALE
GENITALIA. IT IS REQUIRED, HOWEVER, THAT THIS MANNER 
OF TOUCHING OF THE LABIAS MUST BE SUFFICIENTLY AND 
2017 BAR QUESTION VI (C)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(C)
SECTION 6 OF REPUBLIC ACT NO. 9344
(JUVENILE JUSTICE AND WELFARE ACT OF 2006),
XXX STATES AS FOLLOWS:

SECTION 6. MINIMUM AGE OF CRIMINAL

RESPONSIBILITY. - A CHILD FIFTEEN (15) YEARS OF
AGE OR UNDER AT THE TIME OF THE COMMISSION OF
THE OFFENSE SHALL BE EXEMPT FROM CRIMINAL
LIABILITY. HOWEVER, THE CHILD SHALL BE SUBJECTED
TO AN INTERVENTION PROGRAM PURSUANT TO
 A CHILD ABOVE FIFTEEN (15) YEARS BUT BELOW
EIGHTEEN (18) YEARS OF AGE SHALL LIKEWISE BE
EXEMPT FROM CRIMINAL LIABILITY AND BE SUBJECTED
TO AN INTERVENTION PROGRAM, UNLESS HE/SHE HAS
ACTED WITH DISCERNMENT, IN WHICH CASE, SUCH
CHILD SHALL BE SUBJECTED TO THE APPROPRIATE
PROCEEDINGS IN ACCORDANCE WITH THIS ACT.
 
THE EXEMPTION FROM CRIMINAL LIABILITY
HEREIN ESTABLISHED DOES NOT INCLUDE EXEMPTION
FROM CIVIL LIABILITY, WHICH SHALL BE ENFORCED IN
ACCORDANCE WITH EXISTING LAWS. (OFFICE OF THE
COURT ADMINISTRATOR VS. LARIDA, JR., 718 SCRA 359, 11
* DOLI INCAPAX – INCAPABLE OF
CRIMINAL INTENTION OR MALICE;
NOT OF THE AGE OF DISCRETION;
NOT POSSESSED OF SUFFICIENT
DISCRETION AND INTELLIGENCE
TO DISTINGUISH BETWEEN RIGHT
AND WRONG TO THE EXTENT OF
BEING CRIMINALLY RESPONSIBLE
FOR HIS ACTIONS. [BLACK, H. C. (1979).
BLACK’S LAW DICTIONARY. FIFTH EDITION (P.
2017 BAR QUESTION VIII
2017 BAR QUESTION VIII (A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION S

(A)

UNLAWFUL AGGRESSION IS OF TWO KINDS:

(A) ACTUAL OR MATERIAL UNLAWFUL
AGGRESSION; AND (B) IMMINENT
UNLAWFUL AGGRESSION. (PEOPLE VS.
DULIN, 760 SCRA 413, 29 JUNE 2015.)
  ACTUAL OR MATERIAL UNLAWFUL
AGGRESSION MEANS AN ATTACK WITH
PHYSICAL FORCE OR WITH A WEAPON, AN
OFFENSIVE ACT THAT POSITIVELY
DETERMINES THE INTENT OF THE
AGGRESSOR TO CAUSE THE INJURY. (PEOPLE VS.
DULIN, 760 SCRA 413, 29 JUNE 2015; PEOPLE VS. NUGAS, 661
SCRA 159, 23 NOVEMBER 2011.)
MEANS AN ATTACK THAT IS IMPENDING OR AT THE
POINT OF HAPPENING; IT MUST NOT CONSIST IN A
MERE THREATENING ATTITUDE, NOR MUST IT BE
MERELY IMAGINARY, BUT MUST BE OFFENSIVE AND
POSITIVELY STRONG (LIKE AIMING A REVOLVER AT
ANOTHER WITH INTENT TO SHOOT OR OPENING A
KNIFE AND MAKING A MOTION AS IF TO ATTACK).
IMMINENT UNLAWFUL AGGRESSION MUST NOT BE
A MERE THREATENING ATTITUDE OF THE VICTIM,
SUCH AS PRESSING HIS RIGHT HAND TO HIS HIP
WHERE A REVOLVER WAS HOLSTERED,
ACCOMPANIED BY AN ANGRY COUNTENANCE, OR
LIKE AIMING TO THROW A POT. (PEOPLE VS. DULIN, 760
 THERE WAS NEITHER MATERIAL NOR
IMMINENT UNLAWFUL AGGRESSION HERE. ON
THE PART OF PORTHOS, WHILE ARAMIS
DISPLAYED FEARLESSNESS AND AGGRESSIVELY
SHOUTED BACK AT HIM, THERE WAS NO PHYSICAL
FORCE OR WEAPON THAT MIGHT ENDANGER HIS
LIFE. IN OTHER WORDS, IT WAS NOT LIFE
THREATENING.

IT WAS ARAMIS WHO WAS THE AGGRESSOR

HERE IN VIEW OF HIS ACT IN ACTUALLY
SHOOTING PHORTOS, ALTHOUGH ON HIS LEG
ONLY. HENCE, WE COULD CONCLUDE THAT THERE
2017 BAR QUESTION VIII (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION

(B)

ARAMIS CANNOT PLEAD THAT HIS ACT IN

SHOOTING PORTHOS WAS SELF-DEFENSE. THERE
WAS NO ELEMENT OF UNLAWFUL
AGGRESSION AS A CONDITION SINE QUA
NON ON THE PART OF PORTHOS.
 
 THE ACCIDENTAL BUMPING OF HIS CAR BY
PORTHOS CANNOT BE CONSIDERED AS ENOUGH
PROVOCATION, NEITHER WAS THE VERBAL
TUSSLE BETWEEN THEM. NO PERSON CAN BE
KILLED OR INJURED BY ACT OF SHOUTING
FEARLESSLY AGAINST EACH OTHER. I CANNOT
ALSO ADHERE TO THE PROSECUTION’S
CONTENTION THAT SELF-DEFENSE APPLIES ONLY
TO CONSUMMATED KILLINGS. SELF-DEFENSE
APPLIES EVEN IN FRUSTRATED MURDER AS THE
LAW DID NOT QUALIFY ITS APPLICATION. (PEOPLE
VS. DULIN, 760 SCRA 413, 29 JUNE 2015; PEOPLE VS. NUGAS,
 THE ACCUSED WHO PLEADS SELF-DEFENSE ADMITS
THE AUTHORSHIP OF THE CRIME. THE BURDEN OF PROVING
SELF-DEFENSE RESTS ENTIRELY ON HIM, THAT HE MUST
THEN PROVE BY CLEAR AND CONVINCING EVIDENCE THE
CONCURRENCE OF THE FOLLOWING ELEMENTS OF SELF-
DEFENSE, NAMELY:

(1) UNLAWFUL AGGRESSION;

(2) REASONABLE NECESSITY OF THE MEANS

EMPLOYED TO PREVENT OR REPEL THE UNLAWFUL
AGGRESSION; AND

(3) LACK OF SUFFICIENT PROVOCATION ON THE PART

 THE  MOST  IMPORTANT  OF  ALL  THE  ELEMENTS  IS 
UNLAWFUL  AGGRESSION, WHICH  IS  THE  CONDITION 
SINE  QUA  NON  FOR  UPHOLDING  SELF-DEFENSE  AS  A 
JUSTIFYING  CIRCUMSTANCE.  UNLESS  THE  VICTIM 
COMMITTED  UNLAWFUL  AGGRESSION  AGAINST  THE 
ACCUSED,  SELF-DEFENSE,  WHETHER  COMPLETE  OR 
INCOMPLETE, SHOULD NOT BE APPRECIATED, FOR THE 
TWO  OTHER  ESSENTIAL  ELEMENTS  OF  SELF-DEFENSE 
WOULD  HAVE  NO  FACTUAL  AND  LEGAL  BASES 
WITHOUT  ANY  UNLAWFUL  AGGRESSION  TO  PREVENT 
OR REPEL.

UNLAWFUL AGGRESSION AS THE CONDITION SINE

QUA NON FOR UPHOLDING SELF-DEFENSE IS APTLY
THE PRIMORDIAL ELEMENT OF THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE. WITHOUT UNLAWFUL
AGGRESSION, THERE CAN BE NO JUSTIFIED KILLING IN
DEFENSE OF ONESELF. THE TEST FOR THE PRESENCE OF
UNLAWFUL AGGRESSION UNDER THE CIRCUMSTANCES IS
WHETHER THE AGGRESSION FROM THE VICTIM PUT IN REAL
PERIL THE LIFE OR PERSONAL SAFETY OF THE PERSON
DEFENDING HIMSELF; THE PERIL MUST NOT BE AN IMAGINED
OR IMAGINARY THREAT. ACCORDINGLY, THE ACCUSED MUST
ESTABLISH THE CONCURRENCE OF THREE ELEMENTS OF
UNLAWFUL AGGRESSION, NAMELY:
(A) THERE MUST BE A PHYSICAL OR MATERIAL ATTACK
OR ASSAULT;
(B) THE ATTACK OR ASSAULT MUST BE ACTUAL, OR, AT
LEAST, IMMINENT; AND
2017 BAR QUESTION VIII (C)
 ANSWER BASED ON
(C)
JUSTICE LUCAS P. BERSAMIN’S DECISION
THERE IS TREACHERY WHEN THE OFFENDER COMMITS ANY
OF THE CRIMES AGAINST PERSONS, EMPLOYING MEANS AND
METHODS OR FORMS IN THE EXECUTION THEREOF WHICH TEND
TO DIRECTLY AND SPECIALLY ENSURE ITS EXECUTION, WITHOUT
RISK TO HIMSELF ARISING FROM THE DEFENSE WHICH THE
OFFENDED PARTY MIGHT MAKE.
CONDITIONS MUST CONCUR IN ORDER FOR TREACHERY
TO BE APPRECIATED, NAMELY: ONE, THE ASSAILANT
EMPLOYED MEANS, METHODS OR FORMS IN THE
EXECUTION OF THE CRIMINAL ACT WHICH GIVE THE
PERSON ATTACKED NO OPPORTUNITY TO DEFEND
HIMSELF OR TO RETALIATE; AND TWO, SAID MEANS,
  THERE IS TREACHERY HERE BECAUSE OF
THE ELEMENT OF SURPRISE. PORTHOS HAS
NO CHANCE TO DEFEND HIMSELF WHEN
ARAMIS SUDDENLY DREW HIS GUN AND
SHOOT PORTHOS ALTHOUGH THEY WERE
FACING EACH OTHER.
 
THERE CAN BE NO SELF-DEFENSE
UNLESS THE VICTIM COMMITTED UNLAWFUL
AGGRESSION AGAINST THE PERSON WHO
RESORTED TO SELF DEFENSE. (PEOPLE VS.
MEDIADO, 641 SCRA 366, 2 FEBRUARY 2011.)
2017 BAR QUESTION X
2017 BAR QUESTION X (A)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION

(A)

THE APPLICATION OF THE INDETERMINATE

SENTENCE LAW IS MANDATORY BOTH FOR THOSE
CRIMES PUNISHABLE BY THE REVISED PENAL
CODE AND SPECIAL LAWS.
DISCUSSION:

THE  REQUIREMENT  OF  IMPOSING  AN 

INDETERMINATE  SENTENCE  IN  ALL  CRIMINAL 
OFFENSES  WHETHER  PUNISHABLE  BY 
THE REVISED PENAL CODE OR BY SPECIAL LAWS, 
WITH  DEFINITE  MINIMUM  AND  MAXIMUM  TERMS, 
AS  THE  COURT  DEEMS  PROPER  WITHIN  THE 
LEGAL  RANGE  OF  THE  PENALTY  SPECIFIED  BY 
THE  LAW  MUST,  THEREFORE,  BE  DEEMED 
MANDATORY.  (BAUTISTA VS. PEOPLE, 608 SCRA 355, 16
DECEMBER 2009.)  
 THUS, SECTION 1 OF THE INDETERMINATE SENTENCE
LAW, AS AMENDED, PROVIDES:

SECTION 1. HEREAFTER, IN IMPOSING A PRISON SENTENCE

FOR AN OFFENSE PUNISHED BY THE REVISED PENAL CODE, OR
ITS AMENDMENTS, THE COURT SHALL SENTENCE THE ACCUSED
TO AN INDETERMINATE SENTENCE THE MAXIMUM TERM OF
WHICH SHALL BE THAT WHICH, IN VIEW OF THE ATTENDING
CIRCUMSTANCES, COULD BE PROPERLY IMPOSED UNDER THE
RULES OF THE SAID CODE, AND THE MINIMUM WHICH SHALL BE
WITHIN THE RANGE OF THE PENALTY NEXT LOWER TO THAT
PRESCRIBED BY THE CODE FOR THE OFFENSE; AND IF  THE 
OFFENSE IS PUNISHED BY ANY OTHER LAW, THE COURT SHALL 
SENTENCE  THE  ACCUSED  TO  AN  INDETERMINATE  SENTENCE, 
THE  MAXIMUM  TERM  OF  WHICH  SHALL  NOT  EXCEED  THE 
MAXIMUM FIXED BY SAID LAW AND THE MINIMUM SHALL NOT BE 
CORRECT THE INDETERMINATE SENTENCE. UNDER
SECTION 1, SUPRA, THE MINIMUM OF THE
INDETERMINATE SENTENCE IS A PENALTY “WITHIN THE
RANGE OF THE PENALTY NEXT LOWER TO THAT
PRESCRIBED BY THE [REVISED PENAL] CODE FOR THE
OFFENSE,” AND THE MAXIMUM IS “THAT WHICH, IN VIEW
OF THE ATTENDING CIRCUMSTANCES, COULD BE
PROPERLY IMPOSED UNDER THE RULES OF THE SAID
CODE.” CONSIDERING THAT THE CLEAR OBJECTIVE OF
THE INDETERMINATE SENTENCE LAW IS TO HAVE THE
CONVICT SERVE THE MINIMUM PENALTY BEFORE
BECOMING ELIGIBLE FOR RELEASE ON PAROLE
PURSUANT TO THE INDETERMINATE SENTENCE LAW,
BOTH THE MINIMUM AND THE MAXIMUM PENALTIES
 THIS OBJECTIVE CANNOT BE ACHIEVED
OTHERWISE, FOR DETERMINING WHEN THE CONVICT
WOULD BE ELIGIBLE FOR RELEASE ON PAROLE
WOULD BE NEARLY IMPOSSIBLE IF THE MINIMUM AND
THE MAXIMUM WERE AS INDEFINITE AS THE RTC
FIXED THE INDETERMINATE SENTENCE. INDEED,
THAT THE SENTENCE IS AN INDETERMINATE ONE
RELATES ONLY TO THE FACT THAT SUCH IMPOSITION
WOULD LEAVE THE PERIOD BETWEEN THE MINIMUM
AND THE MAXIMUM PENALTIES INDETERMINATE “IN
THE SENSE THAT HE MAY, UNDER THE CONDITIONS
SET OUT IN SAID ACT, BE RELEASED FROM SERVING
SAID PERIOD IN WHOLE OR IN PART.” (FRANSDILLA VS.
2017 BAR QUESTION X (B)
 ANSWER BASED ON
JUSTICE LUCAS P. BERSAMIN’S DECISION
(B)
THE STRAIGHT PENALTY THE CA IMPOSED WAS
CONTRARY TO THE INDETERMINATE SENTENCE
LAW, WHOSE SECTION 1 REQUIRES THAT THE PENALTY
OF IMPRISONMENT SHOULD BE AN INDETERMINATE
SENTENCE. ACCORDING TO SPOUSES BACAR V. JUDGE
DE GUZMAN, JR., THE IMPOSITION OF AN
INDETERMINATE SENTENCE WITH MAXIMUM AND
MINIMUM PERIODS IN CRIMINAL CASES NOT EXCEPTED
FROM THE COVERAGE OF THE INDETERMINATE
SENTENCE LAW PURSUANT TO ITS SECTION 2 IS
 THE NEED FOR SPECIFYING THE MINIMUM AND
MAXIMUM PERIODS OF THE INDETERMINATE SENTENCE
IS TO PREVENT THE UNNECESSARY AND EXCESSIVE
DEPRIVATION OF LIBERTY AND TO ENHANCE THE
ECONOMIC USEFULNESS OF THE ACCUSED, SINCE HE
MAY BE EXEMPTED FROM SERVING THE ENTIRE
SENTENCE, DEPENDING UPON HIS BEHAVIOR AND HIS
PHYSICAL, MENTAL, AND MORAL RECORD. THE 
REQUIREMENT  OF  IMPOSING  AN  INDETERMINATE 
SENTENCE  IN  ALL  CRIMINAL  OFFENSES  WHETHER 
PUNISHABLE  BY  THE REVISED PENAL CODE OR  BY 
SPECIAL LAWS, WITH DEFINITE MINIMUM AND MAXIMUM 
TERMS,  AS  THE  COURT  DEEMS  PROPER  WITHIN  THE 
LEGAL RANGE OF THE PENALTY SPECIFIED BY THE LAW 
SENTENCE IS MANDATORY. FOR INSTANCE, IN
ARGONCILLO V. COURT OF APPEALS, THREE PERSONS
WERE PROSECUTED FOR AND FOUND GUILTY OF
ILLEGAL FISHING (WITH THE USE OF EXPLOSIVES) AS
DEFINED IN SECTION 33, PRESIDENTIAL DECREE NO. 704,
AS AMENDED BY PRESIDENTIAL DECREE NO. 1058, FOR
WHICH THE PRESCRIBED PENALTY WAS IMPRISONMENT
FROM 20 YEARS TO LIFE IMPRISONMENT. THE TRIAL
COURT IMPOSED ON EACH OF THE ACCUSED A
STRAIGHT PENALTY OF 20 YEARS IMPRISONMENT, AND
THE CA AFFIRMED THE TRIAL COURT. ON APPEAL,
HOWEVER, THIS COURT DECLARED THE STRAIGHT
PENALTY TO BE ERRONEOUS, AND MODIFIED IT BY
IMPOSING IMPRISONMENT RANGING FROM 20 YEARS, AS
 THANK YOU FOR
LISTENING.

HOPEFULLY YOU
LEARNED
SOMETHING....
BY

ATTY. SALVADOR N. MOYA II

BSC, LL.B., LL.M.