PRO REO

In dubio pro reo is means "when in doubt, for the

accused. Intimately related to the in dubio pro
reo principle is the rule of lenity. The rule applies
when the court is faced with two possible
interpretations of a penal statute, one that is
prejudicial to the accused and another that is
favorable to him. The rule calls for the adoption of
an interpretation which is more lenient to the
accused (Intestate estate of Gonzales vs. People, G.R.
No. 181409, February 11, 2010).

POSITIVIST THEORY AND CLASSICAL THERORY

The positivist theory states that the basis for

criminal liability is the sum total of the social and
economic phenomena to which the offense is
expressed. The purpose of penalties is to secure
justice. The penalties imposed must not only be
retributive but must also be reformative, to give the
convict an opportunity to live a new life and rejoin
society as a productive and civic-spirited member of
the community. The adoption of the aspects of the
Positivist theory is exemplified by the indeterminate
sentence law, impossible crime, privilege mitigating
circumstance of minority and modifying
circumstances, rule on imposition of penalties for
heinous and quasi-heinous crimes) (Joya vs. Jail
Warden of Batangas, G.R. Nos. 159418-
19, December 10, 2003;).

Under the classical theory, man is essentially a

moral creature with an absolutely free will choose
between good and evil. When he commits a felonious
or criminal act, the act is presumed to have been
1|Page
done voluntarily, i.e. with freedom, intelligence and
intent. Man, therefore, should be adjudged or held
accountable for wrongful acts so long as free will
appears unimpaired (People vs. Estrada, G.R. No.
130487, June 19, 2000). Since the Revised Penal
Code is based on the classical school of thought, it is
the identity of the mens rea which is considered the
predominant consideration and, therefore, warrants
the imposition of the same penalty for conspirators
on the consequential theory that the act of one is
thereby the act of all (Hon. Sandiganbayan,
Honrado, G.R. No. 115439-41, July 16, 1997).
Under this theory, the criminal liability is based on
the result of the felonious act (proximate cause rule).

CHARACTERISTIC OF CRIMINAL LAW

There are three characteristics of criminal law,

to wit: (1) generality (2) territoriality, and (3)
prospectivity. The general, territorial and
prospective characteristics of criminal law are
principles that define and demarcate the scope and
limitation of the operation of criminal law. Under
these three principles, the operation or
enforceability of criminal law is limited to wrongful
acts committed on or after its effectivity
(prospectivity) within the territory of the Philippines
(territoriality) by person living and sojourning
therein (generality).

GENERALITY - Generality principle is akin to

territoriality principle in the sense that the
demarcating factor of both principles is the territory
of the Philippines. Under generality principle,
criminal law is enforceable to person living or
sojourning in the territory of the Philippines. Under
the territoriality principle, criminal law is applicable
2|Page
only to criminal act committed within the territory
of the Philippines. But the concept of generality is
different from territoriality. The applicability of
territoriality principle or generality principle will
depend on the issue raised by the accused in
questioning the jurisdiction of the court. If the
accused attacks the jurisdiction of the court
because of the unique characteristic of his person
(e.g. he is a foreigner, military, hermit, primitive,
ambassador, legislator, President), the applicable
principle is generality. If the accused attacks the
jurisdiction of the court due to the unique
characteristic of the place where the crime was
committed (e.g. the place of commission is foreign
vessel, embassy or high sea) etc, the applicable
principle is territoriality.

1. Military officers - The Revised Penal Code

and special criminal laws are enforceable against
military men living or sojourning in the Philippines.
However, CA 408 (Articles of War) which vests
jurisdiction over members of the AFP to the courts-
martial. RA 7055 (AN ACT STRENGTHENING
CIVILIAN SUPREMACY OVER THE MILITARY) did
not divest the military courts of jurisdiction to try
cases involving "service-connected crimes or
offenses" under CA 408 (Example: Mutiny or
sedition, quarrels, frays; disorders, breaking an
arrest or escaping from confinement, releasing
prisoners without proper authority, wrongful
appropriation of captured property, corresponding
with, or aiding the enemy, spies, dueling, fraud
against the government affecting matters and
equipment). In fact, RA No. 7055 mandates that
these service-connected crimes shall be tried by the
court-martial (Navales v. Abaya, G.R. No. 162318,
October 25, 2004). CA 408 is a law of preferential
3|Page
application since it excludes members of the AFP
from the operation of the Revised Penal Code and
special criminal laws if the crimes committed by
them are service-connected as defined by RA 7055.

2. Consular officers - Despite the ruling in

Schneckenburger vs. Moran, consular officers and
employees are now enjoying immunity from criminal
prosecution of acts performed in the exercise of
consular function under 1967, Convention on
Consular Relation. Slander (Liang vs. People, GR NO
125865, January 28, 2000) or reckless imprudence
resulting in homicide is not function-related. Consul
is liable for committing this crime.

TERRITORIALITY PRINCIPLE: Under the

principle of territoriality, the Philippines has
jurisdiction over crimes committed inside its
territory except as provided in the treaties and laws
of preferential application.

1. Embassy - The ground occupied by US

embassy is in fact the territory of the USA to which
the premises belong through possession or
ownership. A person who committed a crime within
the premises of an embassy will be prosecuted
under the law of Philippines because of the principle
of territoriality (See: Reagan vs. Commission on
Internal Revenue, 30 SCRA 968, En Banc; Answers
to 2009 Bar Examination Questions by UP Law
Complex). However, jurisdiction of the Philippines
over the embassy is limited or restricted by the
principles of inviolability of diplomatic premises,
which is a generally accepted principle of
international law. Warrant of arrest cannot be
served inside US embassy without waiver of

4|Page
American government of its right under the
principle of inviolability.

2. English rule - There are two fundamental

rules in International Law regarding crimes
committed aboard a foreign merchant vessel (not
military vessel), if the same is within the 12-mile
territorial water (not internal or archipelagic water or
high seas) of the Philippines to wit: (1) French rule -
Crimes committed aboard a foreign merchant vessel
within the territorial water of the Philippines are
subject to the jurisdiction of the flag state (extra-
territoriality principle) unless their commission
affects the peace and security of our country. (2)
English rule Crimes committed aboard a foreign
merchant vessel within the territorial water of the
Philippines are subject to jurisdiction of the
Philippines (territoriality principle) unless their
commission does not affect its peace and security,
or has no pernicious effect therein. It is the English
rule that obtains in this jurisdiction.

3. Convention of the law of the Sea - Under

the Convention on the Law of the Sea, the flag state
of foreign merchant vessel passing through the
territorial sea has jurisdiction over crimes
committed therein. However, the Philippines can
exercise jurisdiction to arrest any person or to
conduct any investigation in connection with any
crime committed on board the ship during its
passage in the following cases: (1) if the
consequences of the crime extend to the coastal
State; (2) if the crime is of a kind to disturb the
peace of the country or the good order of the
territorial sea; (3) if the assistance of the local
authorities has been requested by the master of the
ship or by a diplomatic agent or consular officer of
5|Page
the flag State; or (4) if such measures are necessary
for the suppression of illicit traffic in narcotic drugs
or psychotropic substances.

4. Drug trafficking - Following the English

rule, the Philippines has no jurisdiction over
transportation of opium in a foreign vessel in transit
in territorial water of our country because
possession of opium does not have a pernicious
effect on our country (U.S. vs. Look Chaw). But
under the Convention of the law of the Sea, the
Philippines can exercise jurisdiction to arrest any
person or to conduct any investigation involving
transportation of dangerous drugs since this is a
measure necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.

EXTRA-TERRITORIALITY - Under the principle

of extra-territoriality, the Philippines has jurisdiction
over crimes committed outside its territory for those
five instances mention in Article 2 such as crime
committed in vessel of Philippines registry
(ownership is not material), function-related crime
committed by public officer (such as corruption or
direct bribery), crimes against national security
(such as treason, espionage; rebellion is not a crime
against national security), and crime against law of
nation such as piracy and mutiny). In People vs.
Tulin, G.R. No. 111709, August 30, 2001- Piracy is
an exception to the rule on territoriality in criminal
law (Article 2). The same principle applies even if
accused were charged, not with a violation of
qualified piracy under the penal code but under a
special law, PD No. 532 which penalizes piracy in
Philippine waters. It is likewise, well-settled that
regardless of the law penalizing the same, piracy is
a reprehensible crime against the whole world.
6|Page
 PROSPECTIVITY: Article 22 of RPC - If the court
in trying an accused, who committed a crime prior
to the passage of the law, should give retroactive
effect to the law provided that: (1) it is favorable to
the accused and (2) the accused is not a habitual
delinquent (Article 22). Ex post facto law - Congress
in passing a law can insert retroactive effect
provision therein subject to the Constitution of ex
post facto law. If the retroactive provision of the law
has passed the constitutional test on prohibition
against ex post facto law, the court must give
retroactive effect to this law even if the accused is a
habitual delinquent. Nullum crimen poena sine lege
If the law repeals a previous law or provision
defining a crime, the applicable principle is not
Article 22 of RPC but nullum crimen poena sine lege
(There is no crime when there is no law punishing
it). Since the intention of the new law is to
decriminalize an act punishable by the repealed law,
the accused should be acquitted or released if the
already convicted, even though he is a habitual
delinquent.

X committed crime under RA No. 6425, the

penalty for which is life imprisonment. RA No. 7659
amended RA No. 6425 by prescribing the penalty of
reclusion temporal. Should RA No. 7659 be given
retroactive effect? Answer: Yes. The maximum
duration of reclusion temporal is 40 years of
imprisonment while life imprisonment has no
duration. Thus, reclusion perpetua is a lighter
penalty than life imprisonment. The amendatory law,
being more lenient and favorable to the accused
than the original provisions thereof should be
accorded retroactive application (People vs. Morilla,
GR No. 189833, February 05, 2014).
7|Page
 RA No. 9346 prohibits the imposition of death
penalty, prescribes reclusion perpetua in lieu of
death penalty or life imprisonment if the special law
does not use the nomenclature of the penalties
under RPC and declares a person sentenced to
reclusion perpetua as a prescribed or reduced
penalty is ineligible for parole. This law has a
retroactive effect. Penal laws which are favorable to
accused are given retroactive effect. This principle is
embodied under Article 22 of RPC, which provides:
Penal laws shall have a retroactive effect insofar as
they favor the persons guilty of a felony, who is not
a habitual criminal (People vs. Talaro, et.al., GR No.
175781, March 20, 2012).

REPEAL: Decriminalization - Repeal of a penal

law deprives the courts of jurisdiction to punish
persons charged with a violation of the old penal law
prior to its repeal (Sindiong and Pastor, 77 Phil.
1000; Binuya, 61 Phil. 208; U.S. vs. Reyes, 10 Phil.
423; U.S. vs. Academia, 10 Phil. 431; Arizala vs.
Court of Appeals, G.R. No. 43633, September 14,
1990; Almuete, et al., G.R. No. L-265, February
27,19 76). The intention of the new law is to
decriminalize an act punishable of old law. Thus,
person cannot be punished for subversion under RA
1700, which was repealed by RA 7637, even though
he is a habitual delinquent.

New regulation - Repeal with re-enactment of a

penal law does not deprive the courts of jurisdiction
to punish persons charged with a violation of the
old penal law prior to its repeal. Such repeal even
without a saving clause would not destroy criminal
liability of the accused (U.S. vs. Cana, 12 Phil. 241).
The intention of the new law is not to decriminalize
8|Page
an act punishable of old law but merely to provide
new regulation. If the new law is favorable to the
accused, who is not a habitual delinquent, it shall
be given retroactive effect. Example: A was
charged for the crime of rape under Article 336 of
RPC for raping his minor daughter. However, RA
8353 expressly repealed Article 336 but re-enacted
the provision on rape by reclassifying it as a crime
against person, redefining it and prescribing a
graver penalty for the commission thereof. The
repeal of Article 336 does not deprive the courts of
jurisdiction to try and punish A for rape under
Article 336. RA No. 8353 shall not be given
retroactive effect since it is not favorable to the
accused.

DECRIMINALIZATION

1. Vagrancy - Before Article 202 of RPC

punishes vagrancy and prostitution. But Article 202
of RPC as amended merely penalizes prostitution. In
sum, RA No. 10158 has decriminalized vagrancy by
omitting portions of Article 202 involving crime
vagrancy. A reading of the Senate deliberation
pertaining to the passage of law decriminalizing
vagrancy shows that they considered vagrants as
victims of poverty and that the law on vagrancy
serves to oppress the very people that the
government sought to protect.

In view of the new policy of the State

decriminalizing vagrancy, which is embodied in RA
No. 10158, ordinance, which punishes vagrancy,
should be declared as contrary to law, and hence,
invalid. Settled is the rule that what the national
legislature expressly allows by law, a local legislature
may not disallow by ordinance or resolution (Lina vs.
9|Page
Pana, G.R. No. 129093, August 30, 2001). The
spring cannot rise higher than its source. As aptly
explained by Justice Nachura in his book, An
ordinance must not be contrary to the Constitution or
law. Prohibited activities may not be legalized in the
guise of regulation; activities allowed by law cannot
be prohibited, only regulated.

RA No. 10158 shall be given retroactive effect.

Under Section 2 and 3 thereof, all pending cases for
vagrancy shall be dismissed and all persons serving
sentence for vagrancy shall be immediately released.
Since Sections 2 and 3 of RA No. 10158 expressly
provide retroactive application to the law without
distinction, whether the offender is a habitual
delinquent or not.

2. Premature marriage - Under Article 351 of

RPC, a woman in contracting marriage within 301
days from death of husband, or dissolution or
annulment of marriage is liable for the crime of
premature marriage. However, RA No. 10655
decriminalizes premature marriage by repealing
Article 351. Premature marriage was decriminalize
since Article 351 discriminates women because this
provision is not applicable to men. Moreover, Article
351 sought to prevent a possible confusion as to
whether the father of the child born after the
dissolution of the marriage is the first husband or
the second. This preventive measure is not anymore
necessary since paternity and filiation could now be
easily determined through modern technology.
MISTAKE OF FACT PRINCIPLE:

Requisites: (1) That the acts done would have

been lawful had the facts been as the accused

10 | P a g e
 believed them to be (2) that the mistake of fact is
not due to negligence or unlawful intent of the
offender. The Supreme Court in several cases had
applied the mistake of fact doctrine, which allowed
the accused, who committed a crime on a mistaken
belief, to enjoy the benefit of the justifying
circumstance of self-defense (United States vs. Ah
Chong, 15 Phil., 488), defense of person and right
(US vs. Bautista, G.R. No. 10678 August 17, 1915),
defense of honor (United States vs. Apego, 23 Phil.
391), performance of duty, (People vs. Mamasalaya,
G.R. No.L-4911, February 10, 1953), and the
exempting circumstance of obedience of an order of
superior officer (People vs. Beronilla, G.R. No. L-
4445, February 28, 1955). In Ah Chong, the
accused, who believed that the victim was a robber
and that his life was in danger because of the
commencement of unlawful aggression, was
acquitted due to mistake of fact doctrine in relation
to the rule on self-defense. In Oanis vs. Galanta, the
accused, who believed that the sleeping victim is a
notorious criminal to be arrested by them, was held
guilty of murder for shooting him since the mistake
of fact principle in relation to performance of duty is
not applicable. Second element is not present since
they did not ascertain first his identify despite
opportunity. The first element is not likewise
present since the killing of victim believed to be a
criminal was not necessary consequence of the due
performance of duty of the accused as police
officers.

The gist of the theft is the intent to deprive

another of his property in a chattel, either for gain
or out of wantonness or malice to deprive another of
his right in the thing taken. This cannot be where
the taker honestly believes the property is his own
11 | P a g e
 or that of another, and that he has a right to take
possession of it for himself or for another, for the
protection of the latter. However, the belief of the
accused of his ownership over the property must be
honest and in good faith and not a mere sham or
pretense. If the claim is dishonest, a mere pretense,
taking the property of another will not protect the
taker (Gaviola vs. People, G.R. No. 163927, January
27, 2006). This belief of ownership as a defense in
theft is in accordance with the mistake of fact
doctrine.

X informed the authorities regarding armed

rebel elements on board a vehicle in a certain
barangay. Several policemen, Barangay officers and
members of the Civil Home Defense Force (CHDF)
responded to information and set a check point. X
pointed at an approaching jitney occupied by rebels.
They flagged down the vehicle but the same did not
stop. They attacked the vehicle with automatic
weapons by firing directly thereat. One died and
another was wounded. It turned out however that
the victims are unarmed innocent civilians. Are
those responsible for the death and injuries of the
victims liable for homicide? Is the doctrine of
mistake of fact applicable? Answer: They are liable
for homicide and attempted homicide. The duty of
those manning the check point is to identify the
occupants of their suspect vehicle and search for
firearms inside it to validate the information they
had received; they may even effect a bloodless arrest.
While, rebellion is a continuing offense, they cannot
open fire at or kill the suspects under any and all
circumstances. There is no evidence showing that
they were placed in real mortal danger in the
presence of the victims. Hence, the mistake of fact
principle is not applicable since there is negligence
12 | P a g e
or bad faith on their part (Yapyucu vs.
Sandiganbayan, GR No. 120744-46, June 25, 2012).

South African athlete Oscar Pistorius has been

found guilty of culpable homicide after the judge
found he killed his girlfriend by mistake. The judge
said the athlete had acted "negligently" when he fired
shots through a toilet door, but in the "belief that
there was an intruder". If the case happened here,
should the athlete be convicted of homicide or
reckless imprudence resulting in homicide?
Answer: The athlete should be held liable with
homicide with privilege mitigating circumstance of
defense of property.
In mistake of fact, which negates dolo, it is
important requisite that that act would have been
lawful had the fact been as the accused believed
them to be. If there was really an intruder inside the
toilet, it would be considered as unlawful aggression
against his property, which would allow him to use
reasonable means to repel it in accordance with the
self-help doctrine under Article 429 of the Civil Code
and defense of property under Article 12 of the
Revised Penal Code. However, the means employed
by him firing shots through the toilet door is not
reasonable; and hence, he is only entitled to
privileged migrating circumstance of incomplete
defense of property (See: People vs. Narvaez, G.R.
Nos. L-33466-67, April 20, 1983). In sum, the act
would have been attended by the privilege mitigating
circumstance of incomplete justification had the
facts been as the accused believed them to be.
VOLUNTARINESS Concurrence of freedom,
intelligence and intent makes up the criminal
mind behind the criminal act. Thus, to constitute

13 | P a g e
 a crime, the act must, generally and in most cases,
be accompanied by a criminal intent. Actus non
facit reum, nisi mens sit rea. No crime is committed
if the mind of the person performing the act
complained of is innocent (People vs. Ojeda, G.R.
Nos. 104238-58, June 3, 2004). Voluntariness is an
element of crime, whether committed by dolo or
culpa or punishable under special law. The act to be
considered a crime must be committed with freedom
and intelligence. In addition to voluntariness,
intentional felony must be committed with dolo
(malice), culpable felony with culpa, and mala
prohibita under special law with intent to perpetrate
the act or with specific intent (such as animus
possidendi in illegal possession of firearm).
Presumption of voluntariness: In the determination
of the culpability of every criminal actor,
voluntariness is an essential element. Without it,
the imputation of criminal responsibility and the
imposition of the corresponding penalty cannot be
legally sanctioned. The human mind is an entity,
and understanding it is not purely an intellectual
process but is dependent to a large degree upon
emotional and psychological appreciation. A mans
act is presumed voluntary. It is improper to assume
the contrary, i.e. that acts were done unconsciously,
for the moral and legal presumption is that every
person is presumed to be of sound mind, or that
freedom and intelligence constitute the normal
condition of a person (People vs. Opuran, G.R. Nos.
147674-75, March 17, 2004).

CRIMINAL INTENT To be held liable for

intentional felony, the offender must commit the act
prohibited by RPC with specific criminal intent and
general criminal intent. General criminal intent
(dolo in Article 3 of RPC) is an element of all crimes
14 | P a g e
 but malice is properly applied only to deliberate acts
done on purpose and with design. Evil intent must
unite with an unlawful act for there to be a felony. A
deliberate and unlawful act gives rise to a
presumption of malice by intent. On the other hand,
specific intent is a definite and actual purpose to
accomplish some particular thing. In estafa, the
specific intent is to defraud, in homicide intent to
kill, in theft intent to gain (Recuerdo vs. People, G.R.
No. 168217, June 27, 2006, ). In the US vs. Ah
Chong, the accused was acquitted because of
mistake of fact principle even though the evidence
showed that he attacked the deceased with intent to
kill (United States vs. Apego, G.R. No. 7929,
November 8, 1912; Dissenting opinion of J. Trent),
which was established by the statement of the
accused "If you enter the room I will kill you." Article
249 (homicide) should be read in relation to Article
3. The accused was acquitted not because of the
absence of intent to kill (specific intent) but by
reason of lack of general intent (dolo or malice).

PRESUMED MALICE - The general criminal

intent (malice) is presumed from the criminal act
and in the absence of any general intent is relied
upon as a defense, such absence must be proved by
the accused (Ah Chong case, the accused was able
to rebut the presumption of general criminal intent
or malice). Generally, a specific intent is not
presumed. Its existence, as a matter of fact, must be
proved by the State just as any other essential
element. This may be shown, however, by the
nature of the act, the circumstances under which it
was committed, the means employed and the motive
of the accused (Recuerdo vs. People, G.R. No.
168217, June 27, 2006). There are other specific
intents that are presumed. If a person died due to
15 | P a g e
 violence, intent to kill is conclusively presumed.
Intent to gain is presumed from taking property
without consent of owner.

MOTIVE

Doubt as to the identity of the culprit -

Motive gains importance only when the identity of
the assailant is in doubt. As held in a long line of
cases, the prosecution does not need to prove the
motive of the accused when the latter has been
identified as the author of the crime. The accused
was positively identified by witnesses. Thus, the
prosecution did not have to identify and prove the
motive for the killing. It is a matter of judicial
knowledge that persons have been killed for no
apparent reason at all, and that friendship or even
relationship is no deterrent to the commission of a
crime. The lack or absence of motive for committing
the crime does not preclude conviction where there
are reliable witnesses who fully and satisfactorily
identified the petitioner as the perpetrator of the
felony (Kummer vs. People, GR No. 174461,
September 11, 2013).

Circumstantial or inconclusive evidence -

Indeed, motive becomes material when the evidence
is circumstantial or inconclusive, and there is some
doubt on whether a crime has been committed or
whether the accused has committed it. The
following circumstantial evidence is sufficient to
convict accused: 1. Accused had motive to kill the
deceased because during the altercation the latter
slapped and hit him with a bamboo, prompting
Romulo to get mad at the deceased; 2. Accused was
chased by the deceased eastward after the slapping
and hitting incident; 3. Said accused was the last
16 | P a g e
person seen with the deceased just before he died;
(4) Accused and Antonio Trinidad surrendered to
police authorities with the samurai; (5) Some of the
wounds inflicted on the deceased were caused by a
bolo or a knife. (Trinidad vs. People, GR No. 192241,
June 13, 2012).

INDETERMINATE OFFENSE DOCTRINE In

People vs. Lamahang, G.R. No. 43530, August 3,
1935, En Banc - Accused who was caught in the act
of making an opening with an iron bar on the wall of
a store was held guilty of attempted trespassing and
not attempted robbery. The act of making an
opening on the wall of the store is an overt act of
trespassing since it reveals an evident intention to
enter by means of force said store against the will of
its owner. However, it is not an overt act of robbery
since the intention of the accused once he
succeeded in entering the store is not determinate;
it is subject to different interpretations. His final
objective could be to rob, to cause physical injury to
its occupants, or to commit any other offense. In
sum, the crime the he intended to commit inside the
store is indeterminate, and thus, an attempt to
commit it is not punishable as attempted felony.

In Cruz vs. People, G.R. No. 166441, October 08,

2014 - The petitioner climbed on top of the naked
victim, and was already touching her genitalia with
his hands and mashing her breasts when she freed
herself from his clutches and effectively ended his
designs on her. Yet, inferring from such
circumstances that rape, and no other, was his
intended felony would be highly unwarranted. This
was so, despite his lust for and lewd designs towards
her being fully manifest. Such circumstances
remained equivocal, or "susceptible of double
17 | P a g e
interpretation" (People v. Lamahang). Verily, his
felony would not exclusively be rape had he been
allowed by her to continue, and to have sexual
congress with her, for some other felony like simple
seduction (if he should employ deceit to have her
yield to him) could also be ultimate felony.
PROXIMATE CAUSE

Proximate cause is the primary or moving cause

of the death of the victim; it is the cause, which in
the natural and continuous sequence unbroken
with any efficient intervening cause produces
death and without which the fatal result could not
have happened. It is the cause, which is the nearest
in the order of responsible causation (Blacks Law
Dictionary). Intervening cause - The direct relation
between the intentional felony and death may be
broken by efficient intervening cause or an active
force which is either a distinct act or fact absolutely
foreign from the felonious act of the offender.
Lightning that kills the injured victim or tetanus
infecting the victim several days after the infliction
of injuries, or voluntary immersing the wounds to
aggravate the crime committed by accused is an
intervening cause. Thus, the accused is liable for
physical injuries because of the intervening cause
rule. On the other hand, carelessness of the victim,
or involuntary removal of the drainage, lack of
proper treatment is not an intervening cause.
Hence, the accused is liable for the death because of
the proximate cause rule.

If the victim died due to tetanus of which he

was infected when the accused inflicted injuries
upon him, the crime committed is homicide (People
vs. Cornel, G.R. No. L-204, May 16, 1947). If the

18 | P a g e
 victim died due to tetanus of which he was infected
after the accused inflicted injuries upon him, the
crime committed is physical injuries. The accused is
not liable for homicide because tetanus is an
efficient intervening cause. Thus, the proximate
cause of the death of the victim is not the infliction
of injuries. In Villacorta vs. People, G.R. No.
186412, September 7, 2011 (Justice De Castro),
there had been an interval of 22 days between the
date of the stabbing and the date when victim was
rushed to hospital, exhibiting symptoms of severe
tetanus infection. Since the victim was infected of
severe tetanus, he died the next day. The incubation
period of severe tetanus is less than 14 days. Hence,
he could not have been infected at the time of the
stabbing since that incident occurred 22 days before
the victim was rushed to the hospital. The infection
of victims stab wound by tetanus was an efficient
intervening cause. The accused was held liable for
physical injuries.

Proximate cause has been defined as "that

cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred." Although there was no
direct injury on his vital organs of the victim, his
wounds affected his kidneys, causing multiple organ
failure and eventually his death. Accused is liable for
homicide. Without the stab wounds, the victim could
not have been afflicted with an infection which later
on caused multiple organ failure that caused his
death. The offender is criminally liable for the death
of the victim if his delictual act caused, accelerated
or contributed to the death of the victim (Belbis, Jr.
vs. People, GR No. 181052, November 14, 2012).

19 | P a g e
 ERROR IN PERSONAE - In case of error in
personae, person is criminally responsible for
committing an intentional felony although the
consequent victim is different from that intended
due to mistake of identity. Requisites: In order to
make a person criminally liable in case of error in
personae, the following requisites must be present:
(1) Offender committed an intentional felony; (2) The
consequent victim against whom the felony was
directed is different from that intended due to
mistake of identity. If the penalty for the intended
crime is different from that of the committed crime,
the court shall impose the penalty for the intended
crime or committed crime, whichever is lesser.

ABERRATIO ICTUS - In case of aberratio ictus,

person is criminally responsible for committing an
intentional felony although the consequent victim is
different from that intended due to mistake of blow.
Requisites: In order to make a person criminally
liable in case of aberratio ictus, the following
requisites must be present: (1) Offender committed
an intentional felony; (2) The consequent victim
against whom the felony was directed is different
from that intended due to mistake of blow. The
crime committed against the intended victim and
victim injured due to aberratio ictus shall be made a
complex crime (compound crime). The court shall
impose the penalty for the most serious crime in its
maximum period.

The circumstance of aberratio ictus (mistake in

the blow) can neither exempt the accused from
criminal responsibility nor mitigate his criminal
liability. Under Article 4 of RPC, criminal liability is
incurred by any person committing a felony
although the wrongful act done be different from
20 | P a g e
that which he intended (Matic vs. People, G.R. No.
180219, November 23, 2011).

PRAETER INTENTIONEM: In case of praeter

intentionem, person is criminally responsible for
committing an intentional felony although its
wrongful consequence is graver than that intended.
Requisites: In order to make a person criminally
liable under Article 4 (1) in case of praeter
intentionem, the following requisites must be
present: (1) Offender committed an intentional
felony; (2) The wrongful act done, which is graver
than that intended, is the direct, natural and logical
consequence of the felony committed by the
offender. Praeter intentionem may be appreciated as
mitigating circumstance of lack of intent to commit
so grave a wrong than that committed.

When death resulted, even if there was no intent to

kill, the crime is homicide, not just physical injuries,
since with respect to crimes of personal violence the
penal law looks particularly to the material results
following the unlawful act and holds the aggressor
responsible for all the consequences thereof. He who is
the cause of the cause is the cause of the evil caused
(Seguritan vs. People, G.R. No. 172896, April 19,
2010).

1. Mitigating circumstance - The mitigating

circumstance that the offender had no intention to
commit so grave a wrong as that committed or
praeter intentionem is obtaining when there is a
notable disparity between the means employed by
the accused to commit a wrong and the resulting
crime committed. The intention of the accused at
the time of the commission of the crime is
manifested from the weapon used, the mode of
21 | P a g e
attack employed and the injury sustained by the
victim (People vs. Maglian, G.R. No. 189834, March
30, 2011).The mitigating circumstance of praeter
intentionem cannot be appreciated if the acts employed
by accused were reasonably sufficient to produce and
did actually produce the death of the victim (People vs.
Sales, G.R. No. 177218, October 3, 2011).

2. Evident premeditation- In case of aberatiu

ictus and error in personae, the SC did not
appreciate evident premeditation since the victim,
who was actually killed, is not contemplated in the
premeditation of the accused (People vs. Trinidad,
G.R. NO. L-38930, June 28, 1988; People vs.
Mabug-at, 51 Phil., 967; People vs. Trinidad, G.R.
No. L-38930, June 28, 1988). However, praeter
intentionem and evident premeditation can be
independently appreciated. there is no
incompatibility between evident premeditation and
no intention to commit so grave a wrong since the
latter is based on the state of mind of the offender
while the former manner of committing the crime
(Reyes; People vs. Enriquez, 58 Phil. 536).

3. Treachery - If accused employed means to

render the victim defenseless, treachery shall be
appreciated even if the killing is due to error in
personae (People vs. Del Castillo, Sr., G.R. No. L-
32995, April 30, 1984) or aberratio ictus (People vs.
Mabug-at, G.R. No. 25459, August 10, 1926, En
Banc) or with the circumstance of praeter
intentionem (People vs. Cagoco, G.R. No. 38511,
October 6, 1933)

4. Conspiracy - Conspirators, who conspired to

kill a particular parson, are equally liable for the
killing of another person due to error in personae
22 | P a g e
 (People vs. Pinto, Jr. and Buenaflor, G.R. No. No.
39519, November 21, 1991). However, conspirator,
who never even fired a single shot and whose only
participation was to drive their getaway vehicle and
to lend his firearm to his back rider so that the
latter could finish off the target victim was not
found accountable for the injury sustained by the
unintended victim was just a star-crossed bystander
who was accidentally hit in the process (aberratio
ictus) (People vs. Herbias, G.R. No. 112716-17,
December 16, 1996; People vs. Flora and Flora, G.R.
No. 125909, June 23, 2000).

INTENT TO KILL: Intent to kill is an element of

homicide and murder. But even if offender had no
intent to kill, he would be held just the same liable
for homicide or murder if his felonious act is the
proximate cause of the death of the latter. Even if
there is no intent to kill, offender is liable for
homicide or murder if the victim died as a result of
the felonious act of the former. The offenders act is
considered felonious if it is accompanied with
criminal or evil intent such as intent to inflict
injury, intent to hide the body of the crime, intent to
threaten victim, intent to silence the hold-up victim,
or intent to rape. Offender is liable for homicide
because it is the natural, direct and logical
consequence of an act committed with criminal
intent.

a. With intent to hide the body of the crime

In People vs. Ortega, Jr., G.R. No. 116736, July 24,
1997 - Ortega stabbed the victim. Garcia assisted
Ortega in concealing the body of the victim by
throwing the body into the well. Victim died due to
drowning. Issue: Is Garcia liable for the death of the
victim as principal in homicide even if his intention
23 | P a g e
 was not to kill the victim but merely to assist Ortega
in concealing his dead body not knowing that the
victim was still alive at that time? In assisting
Ortega carry the body of victim to the well, Garcia
was committing an intentional felony; concealing
the body of the crime to prevent its discovery makes
him liable as an accessory in homicide. Hence,
Garcia should be held liable for the direct, natural
and logical consequence of his felonious act of
assisting Ortega in hiding the body of the victim.
Since proximate cause of death of the victim is the
felonious and accessory act of throwing the victim
into the well, Garcia should be held liable for the
death as principal in homicide.

b. With intent to threaten In US vs. Valdez,

G.R. No. 16486, March 22, 1921, En Banc - The
accused in rage he moved towards victim with a big
knife in hand, threatening to stab him. Victim
believing himself in great and immediate peril
jumped into the water where he was drowned. The
accused was found guilty of homicide. The act of
threatening to stab victim constitutes a felony of
threat. Hence, accused is liable for the direct,
natural and logical consequence of his intentional
and felonious act. It was held that: "If a man creates
in another man's mind an immediate sense of danger
which causes such person to try to escape, and in so
doing he injures himself, the person who creates
such a state of mind is responsible for the injuries
which result."

d. Intent to inflict injury - Intentional

infliction of injury resulting in death of the victim
constitutes homicide or murder. In People vs.
Pugay, et al., No 74324, November 17, 1988, the
deceased, a retardate, and the accused Pugay were
24 | P a g e
 friends. Deceased used to run errands for Pugay
and at times they slept together. During a town
fiesta fair was held in the public plaza. Accused,
Pugay and Samson with several companions, who
appeared to be drunk, made the deceased dance by
tickling him with a piece of wood. Not content with
what they were doing with the deceased, the
accused Pugay suddenly took a can of gasoline from
under the engine of the Ferris wheel and poured its
contents on the body of the former. Then, the
accused Samson set victim on fire making a human
torch out of him. Pugay and Samson were stunned
when they noticed the deceased burning. Crime
committed by Samson: There is no intent to kill. The
act of the Accused was merely a part of their fun-
making that evening. Accused merely intended to
set the deceased's clothes on fire. His act, however,
does not relieve him of criminal responsibility.
Burning the clothes of the victim would cause at the
very least some kind of physical injuries on his
person, a felony. Since such felony of physical
injuries resulted into a graver offense, he must be
held responsible therefor. (Note: The crime is not
murder qualified by means of fire because the fire
was not use to kill but merely to inflict injury).
e. Recklessness Even if there is no intent to
kill and evil intent, offender is liable for culpable
felony if the victim died as a result of the
recklessness of the former. Crime committed by
Pugay: Having taken the can from under the engine
of the Ferris wheel and holding it before pouring its
contents on the body of the deceased, this accused
knew that the can contained gasoline. The stinging
smell of this flammable liquid could not have
escaped his notice even before pouring the same.
Clearly, he failed to exercise all the diligence

25 | P a g e
 necessary to avoid every undesirable consequence
arising from any act that may be committed by his
companions who at the time were making fun of the
deceased. The accused is only guilty of homicide
through reckless imprudence.

f. Accident - If there is no intent to kill, evil

intent and recklessness on the part of the accused,
he is not liable for his intentional act, which caused
the death of the victim. In United States vs. Tanedo
(15 Phil. Rep., 196), deceased went with the accused
to hunt wild chickens at the forest. While hunting,
the accused came upon a wild chicken, and, not
seeing deceased about and not knowing or having
any reason to believe that he was in that vicinity
shot the chicken. The bullet that hit the chicken
recoiled and hit the deceased. It was held that
accused is not criminally liable. Life was taken by
misfortune or accident while in the performance of a
lawful act executed with due care and without
intention of doing harm. Note: The accused could
not have foreseen that the slug after hitting the
chicken would recoil and hit deceased. The principle
enunciated in Tanedo case will not apply if the place
where the accused lawfully discharged his firearm is
populated. In People vs. Nocum, G.R. No. L-482, 25
February 1947, En Banc - There was a fistic fight
between two persons. Desiring to stop the
encounter, accused shouted at the combatants. As
these paid him no attention, he drew a .45 caliber
pistol and shot twice in the air. The bout continued,
however; so he fired another shot at the ground, but
unfortunately the bullet ricocheted, and hit an
innocent by-stander, resident of the place. Victim
died. It was held that: The mishap should be
classed as homicide through reckless imprudence,
the slaying having been unintentional. It is apparent
26 | P a g e
 that defendant willfully discharged his gun-for
without taking the precautions demanded by the
circumstance that the district was populated, and the
likelihood that his bullet would glance over the hard
pavement of the Manila thoroughfare. Note: The
accused should have foreseen that the slug after
hitting the pavement would recoil and might hit
somebody.

IMPOSSIBLE CRIME

Offender shall be held liable for impossible

crime if the following requisites are present: (1)
offender performing an act which would have been
an offense against person or property; (2) offender
performed an act with evil intent; (3) offender did
not commit the offense because of the impossibility
of its accomplishment or employment of inadequate
or ineffectual means; and (4) offender in performing
an act is not violating another provision of the law
(Luis B. Reyes).

Impossible crime of theft - X, employee of

Mega Inc., received check from the customer of her
employer. Instead of remitting the check to her
employer, X deposited the check under her account.
However, the drawee bank dishonored the check
because of insufficiency of funds. What is the crime
committed by X? Answer: The crime committed is
impossible crime of qualified theft. Qualified theft is
a crime against property. The act of depositing the
check is committed with evil intent. The mere act of
unlawfully taking the check meant for Mega Inc.
showed her intent to gain or be unjustly enriched.
There is factually impossibility to accomplish the
crime of qualified theft since the check is unfunded.
(Jacinto vs. People, G.R. No. 162540, July 13, 2009).
27 | P a g e
 Intod principle - In Intod vs. Court of Appeals,
G.R. No. 103119, October 21, 1992 Outside the
house of the victim, accused with intent to kill fired
at the bedroom, where the victim is supposed to be
sleeping. No one was in the room when the accused
fired the shots. No one was hit by the gun fire. The
accused were convicted of impossible crime.
Accused shoot the place where he thought his
victim would be, although in reality, the victim was
not present in said place and thus, the accused
failed to accomplish their end due to its factual
impossibility. In the United States, criminal laws are
silent regarding impossible crimes; hence where the
offense sought to be committed is factually
impossible of accomplishment, the offender shall be
liable for attempted crime. On the other hand,
where the offense is legally impossible of
accomplishment, the actor cannot be held liable for
any crime. In the Philippines, the crime committed
is impossible crime if the offense sought to be
committed is factually or legally impossible. Killing a
dead person is impossible crime because of legal
impossibility. Putting the hand inside an empty
pocket with intention to steal a wallet is impossible
crime because of factual impossibility.

Raping a dead person - Prior to RA 8353, rape

is a crime against chastity. Thus, if a person raped
a dead person believing that she was just sleeping,
offender could not be held liable for impossible
crime (J. Ramon Aquino). In impossible crime the
act could have constituted the crime against person
or property if its accomplishment was not
impossible. Rape is neither a crime against person
nor against property. However, RA 8353 reclassifies
rape from crime against chastity to crime against
28 | P a g e
 person. Hence, an offender for raping a dead person
without knowing that she was already dead may
now be held liable for impossible crime.

Committing another crime - A discharged

shotgun at B from a distance of 300 yards; but
because of the limited range of the firepower of the
shotgun, it would be impossible for A to harm B.
A is liable of discharged of firearm and not
impossible crime. Where the offender unlawful
entered the house and took a watch that turned out
to be his own, he is liable for trespass to dwelling
and not impossible crime (Criminal Law Conspectus
by Justice Florenz Regalado). If the accused
administered abortive drugs upon his girlfriend
whom he believed to be pregnant, which turned out
not to be true, but the woman became ill for more
than 30 days, the accused will be liable for serious
physical injuries and not impossible crime of
abortion (Criminal Law Reviewer by Gregorio).

STAGES

ATTEMPTED AND FRUSTRATED STAGES: In

attempted felony, the offender performs directly an
overt act, which consists of one or more acts of
execution, but not enough to consequently produce
the felony. In frustrated felony, the offenders
perform all the acts of execution that would produce
the felony as a matter of consequence. To determine
whether the felony is at the attempted or frustrated
stage, acts of execution of execution of a felony
must be identified. Example: The acts of execution
that would produce homicide or murder are
infliction of mortal wounds upon the victim. If the
wounds inflicted upon the victim with intent to kill
are non-mortal, the crime committed is attempted
29 | P a g e
 homicide; if wounds are mortal, the crime
committed is frustrated homicide.

In attempted felony and frustrated felony, the

external acts performed by the offender and the
intended felony must have a direct connection; but
in an attempted felony, the offender failed to
perform all the acts of execution; thus his external
acts would not produce the felony as a
consequence; on the other hand in a frustrated
felony, the offender performed all the acts of
execution; thus, his external acts would produce
the felony as a consequence.

FRUSTRATED AND CONSUMMATED - In

frustrated and consummated felony, the accused
performed all acts of execution that would produce
the felony as a consequence. If the felony is not
produced due to external cause, the crime
committed is frustrated felony; if the felony is
produced the crime committed is consummated.

In frustrated felony, the offender performed all

the acts of execution but the felony was not
produced as a consequence due to extraneous
cause. However, there are felonies, the commission
of which has no frustrated stage since the
performance of all the acts of execution immediately
consummates the felony. In homicide or murder
case, once the offender inflicted mortal wound on
the victim, all the acts of execution are considered
performed. However, what consummates homicide
or murder is not the infliction of mortal wounds but
the death of the victim as a consequence of the
mortal wound inflicted. Thus, if the mortally
wounded victim did not die due to medical
intervention, homicide or murder is only at the
30 | P a g e
 frustrated stage. On the other hand, in rape once
the offender sexually penetrate the labia of the
vagina of the victim, all the acts of execution are
considered performed. But since sexual penetration
consummates rape, there are no occasions where
the offender performed all the acts of execution and
yet the felony was not produced as a consequence.
In sum, there is no such thing as frustrated rape
since the performance of all the acts of execution
immediately consummates rape.

ABSOLUTORY CAUSE In attempted felony

and frustrated felony, the offender failed to
accomplish his criminal objective by reason of
extraneous causes; if the causes are not extraneous,
the accused will be absolved from criminal liability.

a. Negative Act - In the attempted stage of the

execution of a felony, the offender must do a
negative act to be exempt from criminal liability for
attempted felony; since the offender has not yet
performed all the acts of execution that would
produce the felony as a consequence, he must
spontaneously desist from further doing criminal
acts that will complete all the acts of execution.
Example: A with intent to kill shot B; B
sustained non-mortal wound. To be exempt from
criminal liability for attempted homicide or murder,
A must spontaneously desist from further
shooting B in order not to inflict mortal injury
upon him.

b. Positive Act If the offender performs all the

acts of execution, which would produce the felony
as a consequence, offender is not exempted from
liability for frustrated felony even if he voluntary
desisted from further doing criminal act.
31 | P a g e
 Spontaneous desistance is a defense in attempted
felony but not in frustrated felony. In the frustrated
stage of the execution of a felony, the offender must
do a positive act to be exempt from criminal
liability; since the offender has performed all the
acts of execution that would produce the felony as a
consequence, he must do something to prevent, or
thwart the production of the felony. Example: A
with intent to kill shot B; B sustained mortal
wound. To be exempt from criminal liability for
frustrated felony, it is not enough that A would
desist from further shooting B. The spontaneous
desistance is not a valid defense since A had
already inflicted mortal wound on B that would
cause his death as a consequence. Thus, A must
save the life of B by treating his wound. If B did
not die because As medical treatment, the latter
will not be held liable for frustrated felony because
the homicide was not produced due to the will of
A.

c. Not absolutory cause If the felony is

consummated, offender cannot undo what was
done. Offender would not be absolved from criminal
liability even if he had done something that will
mitigate the effects of the felonious act. Example: (1)
Restitution of funds malversed immediately and
voluntarily made before the case was instituted is
not an absolutory cause (Navarro vs. Meneses III,
CBD Adm. Case No. 313, January 30, 1998, En
Banc). (2) A stole chicken under the house of B
one evening. Realizing that what he did was wrong,
A returned the chicken to the place under the
house of B. Since the crime of theft was already
consummated, the return of the stolen property
does not relieve A of criminal responsibility. A
had already performed all the acts of execution,
32 | P a g e
 which produced the crime of theft before he
returned the chicken (Reyes). (3) The fact that the
accused abandoned victim after six days of captivity
does not lessen his criminal culpability much less
exempt him from criminal liability for the
kidnapping and detention of victim (Baldogo, G.R.
No. 128106-07, January 24, 2003, En Banc).

SPONTANOEUS DESISTANCE - The term

spontaneous is not equivalent to voluntary. Even if
the desistance is voluntary, the same could not
exempt the offender from liability for attempted
felony if there is an external constraint. The term
spontaneous means proceeding from natural
feeling or native tendency without external
constraint; it is synonymous with impulsive,
automatic and mechanical (People vs. Lizada, G.R.
No. 143468-71, January 24, 2003, En Banc).

Accused had previously raped the victim several

times. During the subject incident, accused was
wearing a pair of short pants but naked from waist
up. He entered the bedroom of victim, went on top of
her, held her hands, removed her panty, mashed her
breasts and touched her sex organ. However,
accused saw Rossel peeping through the door and
dismounted. He berated Rossel for peeping and
ordered him to go back to his room and to sleep.
Accused then left the room of the victim. Held:
Accused intended to have carnal knowledge of
victim. The overt acts of accused proven by the
prosecution were not merely preparatory acts. By
the series of his overt acts, accused had commenced
the execution of rape, which, if not for his
desistance, will ripen into the crime of rape.
Although accused desisted from performing all the
acts of execution, however, his desistance was not
33 | P a g e
spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of
Rossel. Hence, accused is guilty only of attempted
rape (People vs. Lizada, G.R. No. 143468-71,
January 24, 2003, En Banc).

HOMICIDE OR MURDER The intent to kill, as

an essential element of homicide at whatever stage,
may be before or simultaneous with the infliction of
injuries. The evidence to prove intent to kill may
consist of, inter alia, the means used; the nature,
location and number of wounds sustained by the
victim; and the conduct of the malefactors before, at
the time of, or immediately after the killing of the
victim (Escamilla vs. People, GR No. 188551,
February 27, 2013).
X opened the door and while still in the car drew
a gun and shot A once, hitting him just below the
left armpit. X sped away. The wound sustained by A
is not fatal. What is the crime committed? Answer: X
only shot the victim once and did not hit any vital
part of the latter's body. If he intended to kill him, X
could have shot the victim multiple times or even
ran him over with the car. Since intent to kill is
lacking but wounds are inflicted upon the victim, the
crime is not attempted murder but physical injuries
only (Pentecostes, Jr. vs. People, GR No. 167766,
April 07, 2010).

X was charged with frustrated murder for

hacking the neck of victim with the use of a scythe.
Invoking the doctrine in Pentecostes, Jr., X claimed
that had he intended to kill victim, he could have
repeatedly hacked him to ensure the latters death.
Is the argument tenable? Answer: No. Pentesoste Jr.
case is not applicable since the victim in that case

34 | P a g e
was shot in the arm, a non-vital part of the body. In
this case, the use of a scythe against victims neck
was determinative of the homicidal intent of X. A
single hacking blow in the neck could be enough to
decapitate a person and leave him dead. Refraining
from further hacking the victim does not negate
intent to kill. What could have been a fatal blow was
already delivered and there was no more desistance
to speak of (People vs. Abella, G.R. No. 198400,
October 07, 2013).

Using a gun, he shot the victim in the chest.

Despite a bloodied right upper torso, the latter still
managed to run towards his house to ask for help.
Nonetheless, petitioner continued to shoot at him
three more times, albeit unsuccessfully. The wound
sustained by the victim is fatal. The crime committed
is frustrated homicide (Escamilla vs. People, GR No.
188551, February 27, 2013).

COMPLEX CRIME

Killing persons and injuring two more by

treacherously detonating a hand grenade in a
dancing place constitutes the complex crime of
multiple murders with double attempted murder.
Single act of detonating an explosive device may
quantitatively constitute a cluster of several separate
and distinct offenses, yet these component criminal
offenses should be considered only as a single crime
in law on which a single penalty is imposed because
the offender was impelled by a single criminal
impulse which shows his lesser degree of perversity.
Even though the other victim did not suffer mortal
wounds, the crime committed is not physical
injuries, because accused was motivated by the
same intent to kill when he detonated the explosive
35 | P a g e
device inside the dancing place (People vs. Barde,
G.R. No. 183094, September 22, 2010).

RECOMMENDED EXECUTIVE CLEMENCY

Accused was convicted of crime RA No. 8282 for

his failure to remit SSS contributions of his
employees and was sentenced to suffer up to 20
years of reclusion temporal. The penalty is excessive
since he already paid his delinquent contribution.
Under Article 5 of the Revised Penal Code, the courts
are bound to apply the law as it is and impose the
proper penalty, no matter how harsh it might be.
The same provision, however, gives the Court the
discretion to recommend to the President actions it
deems appropriate but are beyond its power when it
considers the penalty imposed as
excessive. Although an accused is convicted under
a special penal law, the Court is not precluded from
giving the Revised Penal Code suppletory application
in light of Article 10 of the same Code (Mendoza vs.
People, G.R. No. 183891, October 19, 2011).

CONSPIRACY

IMPLIED CONSPIRACY - In People vs. Dollendo,

G.R. No. 181701, January 18, 2012 -The evidence
of a chain of circumstances, to wit: that appellant
went inside the house of Romines to ascertain that
the victim was there; that he fetched Dollendo to
bring him to Ruiz; that he gave the dipang to
Dollendo to commit the crime; and that they both
fled after the stabbing, taken collectively, shows a
community of criminal design to kill the victim.
Evidently, there was conspiracy in the commission of
the crime.

36 | P a g e
 COLLECTIVE RESPONSIBILITY - It is
immaterial whether appellant acted as a principal or
as an accomplice because the conspiracy and his
participation therein have been established. In
conspiracy, the act of one is the act of all and the
conspirators shall be held equally liable for the crime
(People vs. Siongco, G.R. No. 186472, July 5, 2010).

DISSOCIATION - To exempt himself from

criminal liability, a conspirator must have performed
an overt act to dissociate or detach himself from the
conspiracy to commit the felony and prevent the
commission thereof (People vs. Ebet, G.R. No.
181635 November 15, 2010).

MASTERMIND - To be held liable as

conspirator, it must also be shown that the accused
performed an overt act in furtherance of the
conspiracy except in the case of the mastermind of a
crime (People vs. Vera, GR No. 128966, August 18,
1999). One who plans the commission of a crime is
liable as conspirator and principal by inducement
(People vs. Comiling, G.R. No. 140405, March 4,
2004, En banc).Notwithstanding, the fact that one
was not at the crime scene, evidence proved that he
was the mastermind of the criminal act or the
principal by inducement. What is important is that
inducement was the determining cause of the
commission of the crime. The command or advice
made by principal by inducement was of such
nature that, without it, the crime would not have
materialized (People vs. Janjalani, G.R. No. 188314,
January 10, 2011).

PRESENCE - Accused, unarmed, appeared in

the company of his employer, and another
person. His employer shot and killedthe victim.
37 | P a g e
Accused did nothing to prevent the killing. Accused
fled together with his employer and other person.The
fact that accused appeared together with employer
and another and fled with them proves a certain
degree of participation and cooperation in the
execution of the crime. However, there is doubt as
to whether accused acted as a principal or just a
mere accomplice. Such doubt should be resolved in
favor of the milder form of criminal liabilitythat of
a mere accomplice (People vs. Tomas, G.R. No.
192251, February 16, 2011). If the accused is armed
at the time, he could be held liable as principal on
the basis of implied conspiracy. The fact that the
companion of the criminal actor is armed may mean
that the former is supplying moral assistance to the
latter. The armed presence of conspiratorial
companion may prove a sense of security and
encouragement on the part of the material executor
or may serve as deterrence against possible defender
or rescuer (Galgo, G.R. No. 133887, May 28, 2002,
En Banc).

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

proscribe the supplementary application of the
provisions RPC including the rule on conspiracy.
Hence, such rule may be applied supplementarily.
Thus, a non-issuer of bum check can be held liable
for violation of BP Blg. 22 on the basis of
conspiracy. (Ladonga vs. People, G.R. No. 141066,
February 17, 2005). The principle of conspiracy may
be applied to RA No. 9262. Thus, a person (such as
mother-in-law), who has no marital, sexual or
dating relationship with the victim, can be held
liable for violence against woman on the basis of
conspiracy (Go-Tan vs. Go, G.R. No. 168852,
September 30, 2008)

38 | P a g e
 Anti-graft law - May a private person be
indicted for conspiracy in violating Section 3(g) of
R.A. 3019 even if the public officer, with whom he
was alleged to have conspired, has died prior to the
filing of the Information? Answer: Yes. The death of
the public officer does not mean that the allegation
of conspiracy between him and private individual
can no longer be proved or that their alleged
conspiracy is already expunged. The only thing
extinguished by the death of the public officer is his
criminal liability. His death did not extinguish the
crime nor did it remove the basis of the charge of
conspiracy between him and private individual
(People vs. Go, GR NO. 168539, March 25, 2014, en
banc).

Robbery with rape When a homicide takes

place by reason of or on the occasion of the robbery,
all those who took part shall be guilty of the special
complex crime of robbery with homicide whether
they actually participated in the killing, unless there
is proof that there was an endeavor to prevent the
killing. The records are bereft of any evidence to
prove, or even remotely suggest, that appellant
attempted to prevent the killing. Therefore, the basic
principle in conspiracy that the "act of one is the act
of all," applies in this case (People vs. Ebet, GR No.
181635, November 15, 2010; People vs. De Leon, GR
No. 179943, June 26, 2009; People vs. Diu, GR No.
201449, April 03, 2013)

If a robber tries to prevent the commission of

homicide after the commission of the robbery, he is
guilty only of robbery and not of robbery with
homicide. All those who conspire to commit robbery
with homicide are guilty as principals of such crime,
although not all profited and gained from the
39 | P a g e
robbery. One who joins a criminal conspiracy adopts
the criminal designs of his co-conspirators and can
no longer repudiate the conspiracy once it has
materialized (People vs. Ebet, GR No. 181635,
November 15, 2010; People vs. Diu, GR No. 201449,
April 03, 2013).

Kidnapping with rape - A, B and C kidnapped

X from her house, and then detained her in a safe
house for purpose of extorting ransom. While C went
to Jolibee to buy food, A raped X in the presence of
B. What is the crime committed by A, B and C?
Answer: A is liable for special complex crime of
kidnapping and serious illegal detention with rape.
Since X is a female, taking her away from her house
against her will and holding her as captive constitute
kidnapping and serious illegal detention. Raping the
kidnapped victim is a qualifying circumstance. These
two crimes should be integrated together to form a
composite crime where the law prescribes a single
penalty.

B is also liable for special complex crime of

kidnapping and serious illegal detention with rape.
Since conspiracy is established between A and B in
the commission of kidnapping, the latter is
responsible for the rape committed by former since
there is no showing that B endeavored to prevent A
from raping X (People vs. Anticamaray, GR No.
178771, June 08, 2011).

C is only liable for kidnapping and serious illegal

detention. Since there is no evidence that he is
aware of the commission of rape, he could not have
prevented A from raping the victim. Hence, he is not
responsible for the rape (People vs. Anticamaray,
supra).
40 | P a g e
 SELF-DEFENSE

SELF-HELP PRINCIPLE - In People vs. Apolinar,

CA, 38 O.G. 2870, it was held: Defense of property is
not of such importance as right to life, and defense
of property can be invoked as a justifying
circumstance only when it is coupled with an attack
on the person of one entrusted with said property.
However, in People vs. Narvaez, G.R. Nos. L-33466-
67, April 20, 1983, the SC found the presence of
unlawful aggression despite the fact that the
invasion of his property right was not coupled by an
attack against the accused. The accused has the
right to resist pursuant Article 429 of the Civil Code,
which provides: The owner or lawful possessor of a
thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he
may use such force as may be reasonably necessary
to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property.
However, since the means employed to resist the
invader (killing) is not reasonable, the accused is
merely given the benefit of incomplete self-defense.
Justice Florenz Regalado stated that the rule in
Apolinar case may be deemed to have been
superseded by Narvaez case.

UNLAWFUL AGGRESSION The essential

requisites of self-defense are the following: (1)
unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the person
resorting to self-defense. Verily, to invoke self-
defense successfully, there must have been an
unlawful and unprovoked attack that endangered
41 | P a g e
the life of the accused, who was then forced to inflict
severe wounds upon the assailant by employing
reasonable means to resist the attack (Belbis, Jr. vs.
People, GR No. 181052, November 14, 2012).

The rule consistently adhered to in this

jurisdiction is that when the accuseds defense is
self-defense he thereby admits being the author of
the death of the victim, that it becomes incumbent
upon him to prove the justifying circumstance to the
satisfaction of the court. The rationale for the
shifting of the burden of evidence is that the
accused, by his admission, is to be held criminally
liable unless he satisfactorily establishes the fact of
self-defense. But the burden to prove guilt beyond
reasonable doubt is not thereby lifted from the
shoulders of the State, which carries it until the end
of the proceedings. In other words, only the onus
probandi shifts to the accused, for self-defense is an
affirmative allegation that must be established with
certainty by sufficient and satisfactory proof. He
must now discharge the burden by relying on the
strength of his own evidence, not on the weakness of
that of the Prosecution, considering that the
Prosecutions evidence, even if weak, cannot be
disbelieved in view of his admission of the killing
(People vs. Roman, GR No. 198110, July 31, 2013).

Unlawful aggression is a condition sine qua

non for the justifying circumstance of self-defense.
Without it, there can be no self-defense, whether
complete or incomplete, that can validly be invoked.
There is an unlawful aggression on the part of the
victim when he puts in actual or imminent danger
the life, limb, or right of the person invoking self-
defense. There must be actual physical force or
actual use of a weapon. It is present only when the
42 | P a g e
one attacked faces real and immediate threat to
ones life. It must be continuous; otherwise, it does
not constitute aggression warranting self-defense
(People vs. Gamez, GR No. 202847, October 23,
2013). Accordingly, the accused must establish the
concurrence of three elements of unlawful
aggression, namely: (a) there must be a physical or
material attack or assault; (b) the attack or assault
must be actual, or, at least, imminent; and (c) the
attack or assault must be unlawful (People vs.
Roman, GR No. 198110, July 31, 2013).

Kinds of aggression - Unlawful aggression is of

two kinds: (a) actual or material unlawful
aggression; and (b) imminent unlawful aggression.
Actual or material unlawful aggression means an
attack with physical force or with a weapon, an
offensive act that positively determines the intent of
the aggressor to cause the injury. Imminent
unlawful aggression means an attack that is
impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it
be merely imaginary, but must be offensive and
positively strong (like aiming a revolver at another
with intent to shoot or opening a knife and making a
motion as if to attack). Imminent unlawful
aggression must not be a mere threatening attitude
of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by
an angry countenance, or like aiming to throw a pot
(People v. Del Castillo, G.R. No. 169084, January 18,
2012; People vs. Roman, GR No. 198110, July 31,
2013; People vs. Malicdem, G.R. No. 184601,
November 12, 2012 (Justice De Castro)

Ordinarily there is a difference between the act

of drawing ones gun and the act of pointing ones
43 | P a g e
gun at a target. The former cannot be said to be
unlawful aggression on the part of the victim. For
unlawful aggression to be attendant there must be a
real danger to life or personal safety. Unlawful
aggression requires an actual, sudden and
unexpected attack, or imminent danger thereof, and
not merely a threatening or intimidating attitude.
Here, the act of the victim in drawing a gun from his
waist cannot be categorized as unlawful aggression.
Such act did not put in real peril the life or personal
safety of appellant. The facts surrounding the case
must, however, be differentiated from current
jurisprudence on unlawful aggression. Accused was
justified in defending himself considering that victim
was a trained police officer and an inebriated and
disobedient colleague. Even if the victim did not
point his firearm at accused, there would still be a
finding of unlawful aggression on the part of the
victim (Nacnac vs. People, G.R. No. 191913, March
21, 2012).

In People vs. Fontanilla, G.R. No. 177743,

January 25, 2012 - Indeed, had victim really
attacked accused, the latter would have sustained
some injury from the aggression. It remains,
however, that no injury of any kind or gravity was
found on the person of accused when he presented
himself to the hospital. In contrast, the physician
who examined the cadaver of victim testified that he
had been hit on the head more than once. The plea
of self-defense was thus belied, for the weapons used
by accused and the location and number of wounds
he inflicted on victim revealed his intent to kill, not
merely an effort to prevent or repel an attack from
victim. We consider to be significant that the gravity
of the wounds manifested the determined effort of

44 | P a g e
the accused to kill his victim, not just to defend
himself.

Ceased aggression - The unlawful aggression on

the part of the victim ceased when accused Rodolfo
was able to get hold of the bladed weapon. Although
there was still some struggle involved between the
victim and accused, there is no doubt that the latter,
who was in possession of the same weapon, already
became the unlawful aggressor. Retaliation is not
the same as self-defense. In retaliation, the
aggression that was begun by the injured party
already ceased when the accused attacked him,
while in self-defense the aggression still existed
when the aggressor was injured by the accused.
Such an aggression can also be surmised on the four
stab wounds sustained by the victim on his back. It
is hard to believe based on the location of the stab
wounds, all at the back portion of the body, that
accused was defending himself. It would have been
different if the wounds inflicted were located in the
front portion of the victim's body. Thus, the first
element of self-defense is not present (Belbis, Jr. vs.
People, GR No. 181052, November 14, 2012).

Necessary means - The means employed by a

person claiming self-defense must be commensurate
to the nature and the extent of the attack sought to
be averted, and must be rationally necessary to
prevent or repel an unlawful aggression. In the
present case, four stab wounds that are the product
of direct thrusting of the bladed weapon are not
necessary to prevent what the accused claim to be
the continuous unlawful aggression from the victim
as the latter was already without any weapon. In
connection therewith, having established that there
was no unlawful aggression on the part of the victim
45 | P a g e
when he was stabbed, accused cannot avail of the
mitigating circumstance of incomplete self-defense
(Belbis, Jr. vs. People, GR No. 181052, November 14,
2012).

Under doctrine of rationale equivalence, plea of

self-defense would prosper if there is a rational
equivalence between the means of attack by the
unlawful aggressor and the means of defense by the
accused that would characterize the defense as
reasonable. The doctrine of rational equivalence
presupposes the consideration not only of the nature
and quality of the weapons used by the defender and
the assailantbut of the totality of circumstances
surrounding the defense vis--vis, the unlawful
aggression. Clearly, this continuous attack by
accused despite the fact that aggressor already was
neutralized by the blow constitutes force beyond
what is reasonably required to repel the aggression
and is therefore unjustified (Espinosa vs. People,
G.R. No. 181071, March 15, 2010).

BATTERED WOMAN SYNDROME: "Battered

Woman Syndrome" refers to a scientifically defined
pattern of psychological and behavioral symptoms
found in women living in battering relationships as
a result of cumulative abuse (Section 3 of RA No.
9262). Each of the phases of the cycle of violence
must be proven to have characterized at least two
battering episodes between the accused and her
intimate partner and such final episode produced in
the battered persons mind an actual fear of an
imminent harm from her batterer and an honest
belief that she needed to use force in order to save
her life. (People vs. Genosa, G.R. No. 135981,
January 15, 2004). The three phases of the Battered
Woman Syndrome are: (1) the tension-building
46 | P a g e
 phase; (2) the acute battering incident; and (3) the
tranquil, loving or non-violent phase (People vs.
Genosa, G.R. No. 135981, January 15, 2004;
Answer to the 2010 Bar Examination Questions by
UP Law Complex). The essence of this defense of
Battered Woman Syndrome as a defense is that
battered woman, who suffers from physical and
psychological or emotional distress, is acting under
an irresistible impulse to defend herself although at
the time of commission of the crime the batterer-
victim had not yet committed unlawful aggression.
In Genosa supra, it was held that it is crucial to the
BWS defense is the state of mind of the battered
woman at the time of the offense. She must have
actually feared imminent harm from her batterer and
honestly believed in the need to kill him in order to
save her life. That is why even in the absence of
actual aggression or any other element of self-
defense, a woman, who is found to be suffering from
battered woman syndrome is not criminally liable
for killing her husband.

IRRESISTABLE FORCE

A person who acts under the compulsion of an

irresistible force, like one who acts under the
impulse of an uncontrollable fear of equal or greater
injury, is exempt from criminal liability because he
does not act with freedom. Actus me invite factus
non est meus actus. An act done by me against my
will is not my act. The force contemplated must be
so formidable as to reduce the actor to a mere
instrument who acts not only without will but
against his will. The duress, force, fear or
intimidation must be present, imminent and
impending, and of such nature as to induce a well-
grounded apprehension of death or serious bodily
47 | P a g e
harm if the act be done. A threat of future injury is
not enough. The compulsion must be of such a
character as to leave no opportunity for the accused
for escape or self-defense in equal combat (People vs.
Dequina, G.R. No. 177570, January 19, 2011)

MINORITY

The rights and privileges of a child in conflict

with the law are as follows:

1. Exempting circumstance of minority - To

exempt a minor, who is 15 years old or more, from
criminal liability, it must be shown that he
committed the criminal act without discernment.
Choosing an isolated and dark place to perpetrate
the crime, to prevent detection and boxing the victim
to weaken her defense are indicative of accuseds
mental capacity to fully understand the
consequences of his unlawful action (People vs.
Jacinto, G.R. No. 182239, March 16, 2011).

A child, who are already serving sentence, shall

likewise benefit from the retroactive application of
RA 9344. They shall be immediately released if they
are so qualified under this Act or other applicable
law (Section 68 of RA No. 9344; People vs.
Monticalvo, G.R. No. 193507, January 30, 2013).

2. Privilege mitigating circumstance In

People vs. Agacer, G.R. No. 177751, January 7, 2013
Accused is entitled to the privileged mitigating
circumstance of minority, which graduates the
penalty one degree lower. The rationale of the law in
extending such leniency and compassion is that
because of his age, the accused is presumed to have
acted with less discernment. This is regardless of the
48 | P a g e
fact that his minority was not proved during the trial
and that his birth certificate was belatedly presented
for our consideration, since to rule accordingly will
not adversely affect the rights of the state, the victim
and his heirs.

Under Section 98 of RA No. 9165, the provisions

in RPC is not applicable unless the accused is a
minor. In such case, the penalty of life imprisonment
shall be considered reclusion perpetua. In sum, if
the accused is a minor, Article 68 of RPC on the
privilege mitigating circumstance of minority shall
apply to crime of illegal possession of dangerous
drug even though this is malum prohibitum
punishable by life imprisonment. Hence, the penalty
of life imprisonment for illegal possession of
dangerous drug committed by a minor, which is
treated as reclusion perpetua, shall be graduated to
reclusion temporal because of the privilege
mitigating circumstance of minority (People vs.
Montalaba, G.R. No. 186227, July 20, 2011)

3. Suspension of sentence - While Section 38

of RA 9344 provides that suspension of sentence can
still be applied even if the child in conflict with the
law is already 18 years of age or more at the time of
the pronouncement of his/her guilt, Section 40 of
the same law limits the said suspension of sentence
until the child reaches the maximum age of
21. Hence, the child in conflict with the law, who
reached 21 years, cannot avail of privilege of
suspension of sentence (People vs. Mantalba, G.R.
No. 186227, July 20, 2011; People vs. Salcedo, GR
No. 186523, June 22, 2011; People vs. Arpon, G.R.
No. 183563, December 14, 2011 (Justice De
Castro; People vs. Monticalvo, G.R. No. 193507,
January 30, 2013).
49 | P a g e
 4. Probation - Right to apply for probation
despite appeal - Section 4 of PD No. 968 provides:
Application for probation must be filed within the
period of perfecting an appeal and no application for
probation shall be entertained or granted if the
defendant has perfected the appeal from the
judgment of conviction. However, RA No. 9344 has
expressly amended Section 4 of PD No. 968 and
provides that a child in conflict with the law can
apply for probation at any time. Section 42 of RA No.
9344 provides: The court may, after it shall have
convicted and sentenced a child in conflict with the
law, and upon application at any time, place the child
on probation in lie of service of his/her sentence
taking into account the best interest to the child. The
phrase at any time mentioned in Section 42 means
the child in conflict with the law may file application
for probation even beyond the period of perfecting an
appeal and even if the child has perfected the appeal
from the judgment of conviction.

Right of possessor or user of dangerous drugs to

apply for probation - The rule under Section 24 of
RA No. 9165, which disqualifies drug traffickers and
pushers for applying for probations, does not extend
to possessor of dangerous drugs. In Padua vs.
People, G.R. No. 168546, July 23, 2008, it was held
that: The law considers the users and possessors of
illegal drugs as victims while the drug traffickers
and pushers as predators. Hence, while drug
traffickers and pushers, like Padua, are
categorically disqualified from availing the law on
probation, youthful drug dependents, users and
possessors alike, are given the chance to mend their
ways.

50 | P a g e
 Right to apply for probation even if the penalty
for possession of dangerous drug is more than 6
years Under Section 9 of PD 968, one is sentenced
to suffer a penalty (maximum indeterminate penalty)
of more than is not qualified to apply for probation.
However, under Section 70 of RA No. 9165, a first
time minor offender can apply for probation for the
crime of illegal possession of dangerous drug even if
the penalty is higher than 6 years of imprisonment.

5. Agricultural camp or other training

facilities - The child in conflict with the law may,
after conviction and upon order of the court, be
made to serve his sentence, in lieu of confinement in
a regular penal institution, in an agricultural camp
and other training facilities in accordance with
Section 51 of RA No. 9344 (People vs. Mantalba, G.R.
No. 186227, July 20, 2011; People vs. Salcedo, GR
No. 186523, June 22, 2011; People vs. Arpon, G.R.
No. 183563, December 14, 2011, Justice De
Castro).
6. Full credit of preventive imprisonment -
Under Article 29 of RPC, a convicted recidivist is not
entitled to a full or 4/5 credit of his preventive
imprisonment. However, if the convict is a child, the
applicable rule for crediting the period of
commitment and detention is not Article 29 of RPC
but Section 41, RA 9344. Under the said provision,
the full time spent in actual commitment and
detention of juvenile delinquent shall be credited in
the services of his sentence (Atizado vs. People, G.R.
No. 173822, October 13, 2010.

IMBECILITY

51 | P a g e
 In exempting circumstance of minority under
Section 6 of RA No. 9344, what is important is the
chronological age of the accused. If the actual age of
the child is 15 years or under, he is exempt from
criminal liability. In People vs. Roxas, G.R. No.
200793, June 04, 2014 - In determining age for
purposes of exemption from criminal liability,
Section 6 clearly refers to the age as determined by
the anniversary of ones birth date, and not the
mental age.
In exempting circumstance of imbecility, what is
important is the mental age of the accused. If the
mental age of the accused is 2 years, he is an idiot; if
his mental age is 7 years old, he is an imbecile
(People vs. Butiong, G.R. No. 168932, October 19,
2011). An idiot or imbecile is exempt from criminal
liability.
If the mental age of the accused is 12 years old,
he is a feebleminded (People vs. Butiong). A
feebleminded is not an imbecile; hence, he is not
exempt from criminal liability (People vs. Nunez,
G.R. NO. 112429-30, July 23, 1997)
In People vs. Roxas, the chronological age of the
victim is 18 years while his mental age is 9 years
old. Exempting circumstance of minority cannot be
appreciated since he is not a minor. His actual age is
not below 18 years. Exempting circumstance of
imbecility cannot be appreciated. He is not an
imbecile since his mental age is not 7 years.

INSANITY

Acts penalized by law are always presumed to be

voluntary, and it is improper to conclude that a
person acted unconsciously in order to relieve him of
52 | P a g e
liability, unless his insanity is conclusively proved
(People vs. Pambid, GR No. 124453, March 15,
2000).Insanity is the exception rather than the rule
in the human condition. The presumption, under
Article 800 of the Civil Code, is that every human is
sane. Anyone who pleads the exempting
circumstance of insanity bears the burden of proving
it with clear and convincing evidence. It is in the
nature of confession and avoidance. An accused
invoking insanity admits to have committed the
crime but claims that he or she is not guilty because
of insanity (People vs. Tibon, G.R. No. 188320, June
29, 2010).

Insanity as an exempting circumstance must

relate to the time immediately preceding or
coetaneous with the commission of the offense with
which accused is charged (People vs. Tibon, supra).

COGNITION TEST AND VOLITION TEST - The

case of Formigones established two distinguishable
tests to determine the insane condition of the
accused:

(a) The test of cognition whether there was a

complete deprivation of intelligence in committing
the criminal act After satisfying his lust, accused
threatened the victim. This implies that accused
knew what he was doing, that it was wrong, and
wanted to keep it a secret. It also indicated that the
crime was committed during one of his lucid
intervals. Accused is not exempt from liability for
failure to pass the cognition test (People vs. Alipio,
G.R. No. 185285, October 5, 2009) and

Evidence tended to show that accused was not

deprived of reason at all and can still distinguish
53 | P a g e
right from wrong when, after satisfying his lust, he
threatened victim. This single episode irresistibly
implies, for one, that accused knew what he was
doing, that it was wrong, and wanted to keep it a
secret. And for another, it indicated that the crime
was committed during one of lucid intervals of
accused (People vs. Alipio, supra).

(b) The test of volition whether there was a

total deprivation of freedom of the will. In the
Bonoan case, schizophrenic accused, who acted
under irresistible homicidal impulse to kill (volition
test), was acquitted due to insanity. This is not
anymore a good rule. Even if the mental condition of
the accused had passed the volition test, the plea of
insanity will not prosper unless it also passed the
cognition test. The controlling test is cognition
(People vs. Opuran, G.R. Nos. 147674-75, March 17,
2004). Accused will be convicted if he was not totally
deprived of reason and freedom of will (People vs.
Garchitorena, G. R. No. 175605, August 28, 2009
(Justice De Castro). Only when there is a complete
deprivation of intelligence at the time of the
commission of the crime should the exempting
circumstance of insanity be considered (People vs.
Bulagao, G.R. No. 184757, October 05, 201, Justice
De Castro).
In recent Supreme Court cases, the plea of
insanity of person, who is suffering from
schizophrenia, was rejected because of failure to
pass the cognition test. In sum, a schizophrenic
accused must be deprived completely of intelligence
to be exempt from criminal liability (See: People vs.
Medina, G.R. No. 113691, February 6, 1998; People
vs. Pascual, G.R. No. 95029, March 24, 1993).If a
person (such as sex maniac, homicidal maniac or

54 | P a g e
kleptomaniac)had merely passed the volition test but
not the cognition test, he will only be given the
benefit of mitigating circumstance of illness.
Diminution of freedom of the will is enough to
mitigate the liability of the offender suffering from
illness (See: People vs. Rafanan, Jr. November 21,
1991, G.R. No. 54135, November 21, 1991).

ABSOLUTORY CAUSE IN CRIME AGAINST

PROPERTY

No criminal liability is incurred by the stepfather

who commits malicious mischief against his
stepson; by the stepmother who commits theft
against her stepson; by the stepfather who steals
something from his stepson; by the grandson who
steals from his grandfather; by the accused who
swindles his sister-in-law living with him; and by the
son who steals a ring from his mother (Intestate
Estate of Gonzales vs. People, G.R. No. 181409,
February 11, 2010). The absolutory cause applies to
theft, swindling and malicious mischief. It does not
apply to theft through falsification or estafa through
falsification (Intestate Estate of Gonzales vs. People,
G.R. No. 181409, February 11, 2010). There are two
viewson whether the extinguishment of marriage by
death of the spouse dissolves the relationship by
affinity for purpose of absolutory cause. The first
holds that relationship by affinity terminates with
the dissolution of the marriage, while the second
maintains that relationship continues even after the
death of the deceased spouse. The principle of pro
reo calls for the adoption of the continuing affinity
view because it is more favorable to the accused
(Intestate estate of Gonzales vs. People, G.R. No.
181409, February 11, 2010).

55 | P a g e
 INSTIGATION AND ENTRAPMENT

Instigation means luring the accused into a

crime that he, otherwise, had no intention to
commit, in order to prosecute him." It differs from
entrapment which is the employment of ways and
means in order to trap or capture a criminal. In
instigation, the criminal intent to commit an offense
originates from the inducer and not from the
accused who had no intention to commit and would
not have committed it were it not for the prodding of
the inducer. In entrapment, the criminal intent or
design originates from the accused and the law
enforcers merely facilitate the apprehension of the
criminal by using ruses and schemes. Instigation
results in the acquittal of the accused, while
entrapment may lead to prosecution and conviction.

Instigation means luring the accused into a

crime that he, otherwise, had no intention to
commit, in order to prosecute him. It differs from
entrapment which is the employment of ways and
means in order to trap or capture a criminal. In
instigation, the criminal intent to commit an offense
originates from the inducer and not from the
accused who had no intention to commit and would
not have committed it were it not for the prodding of
the inducer. In entrapment, the criminal intent or
design originates from the accused and the law
enforcers merely facilitate the apprehension of the
criminal by using ruses and schemes. Instigation
results in the acquittal of the accused, while
entrapment may lead to prosecution and conviction
(People vs. Espiritu, G.R. No. 180919, January 9,
2013).

56 | P a g e
 In People vs. Espiritu et. Al., G.R. No. 180919,
January 9, 2013 - Here, the evidence clearly
established that the police operatives employed
entrapment, not instigation, to capture appellant
and her cohorts in the act of selling shabu. It must
be recalled that it was only upon receipt of a report
of the drug trafficking activities of Espiritu from the
confidential informant that a buy-bust team was
formed and negotiations for the sale of shabu were
made. Also, appellant testified that she agreed to the
transaction of her own free will when she saw the
same as an opportunity to earn money. Notably too,
appellant was able to quickly produce a sample. This
confirms that she had a ready supply of the illegal
drugs. Clearly, she was never forced, coerced or
induced through incessant entreaties to source the
prohibited drug for Carla and PO3 Cario and this
she even categorically admitted during her
testimony.

Moreover, a police officers act of soliciting drugs

from appellant during the buy-bust operation, or
what is known as the "decoy solicitation," is not
prohibited by law and does not invalidate the buy-
bust operation. in a prosecution for sale of illicit
drugs, any of the following will not exculpate the
accused: "(1) that facilities for the commission of the
crime were intentionally placed in his way; or (2)
that the criminal act was done at the solicitation of
the decoy or poseur-buyer seeking to expose his
criminal act; or (3) that the police authorities
feigning complicity in the act were present and
apparently assisted in its commission."

Hence, even assuming that the PAOCTF

operatives repeatedly asked her to sell them shabu,
appellants defense of instigation will not prosper.
57 | P a g e
This is "especially true in that class of cases where
the offense is the kind that is habitually committed,
and the solicitation merely furnished evidence of a
course of conduct. Mere deception by the police
officer will not shield the perpetrator, if the offense
was committed by him free from the influence or
instigation of the police officer."

MITIGATING CIRCUMSTANCES

VOLUNTARY SURRENDER To appreciate the

mitigating circumstance of voluntary surrender, the
following requisites must be proven, namely: (1) the
offender has not actually been arrested; (2) the
offender surrendered himself to a person in
authority; and (3) the surrender was voluntary. A
surrender to be voluntary must be spontaneous,
showing the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt, or he wishes to save them
the trouble and expense necessarily incurred in his
search and capture. Voluntary surrender
presupposes repentance (People vs. Tabarnero, G.R.
No. 168169, February 24, 2010, Justice De Castro)
The surrender made after 14 days from the date
of killing cannot be considered voluntary since his
act did not emanate from a natural impulse to admit
the killing or to save the police officers the effort and
expense that would be incurred in his search and
incarceration. (People vs. Agacer, G.R. No. 177751,
December 14, 2011).
The accused surrendered only after having been
informed of the charge of rape against him or about
two months from the commission of the alleged
crime. He even denied the said charge upon his
purported surrender. The alleged surrender,
58 | P a g e
therefore, does not qualify as a mitigating
circumstance (People vs. Salle, G.R. No. 181083,
January 21, 2010, Justice De Castro).
Surrender is not voluntary where the accused
went to Barangay Chairman after the killings to seek
protection against the retaliation of the victims
relatives, not to admit his participation in the killing
of the victims (People vs. Del Castillo, G.R. No.
169084, January 18, 2012).

The evidence shows that the appellants were

arrested when the police officers manning the
checkpoint stopped the passenger jeepney driven by
appellant Ronald and arrested the appellants. The
fact that the appellants did not resist but went
peacefully with the peace officers does not mean that
they surrendered voluntarily (People vs. Castillano,
G.R. No. 139412, April 2, 2003).

VOLUNTARY CONFESSION - A plea of guilty

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

VENDICATION: The mitigating circumstance of

having acted in the immediate vindication of a grave
offense was, likewise, properly appreciated. The
appellant was humiliated, mauled and almost
stabbed by the deceased. Although the unlawful

59 | P a g e
aggression had ceased when the appellant stabbed
Anthony, it was nonetheless a grave offense for
which the appellant may be given the benefit of a
mitigating circumstance. But the mitigating
circumstance of sufficient provocation cannot be
considered apart from the circumstance of
vindication of a grave offense. These two
circumstances arose from one and the same
incident, i.e., the attack on the appellant by
Anthony, so that they should be considered as only
one mitigating circumstance (People vs. Torpio, G.R.
No. 138984, June 4, 2004).

In vindication of grave offense, criminal

exemption of accessories, alternative circumstance
of relationship and defense of stranger, the concept
of relationship is the same. It refers to (1) spouse, (2)
ascendants, (3) descendants, or (4) legitimate,
natural or adopted brothers or sisters or (5) of his
relatives by affinity in the same degrees. However, in
defense of relative, there is an additional concept of
relationship. It includes relatives by consanguinity
within the fourth civil degree. Thus, an uncle is a
relative within the concept of defense of stranger
(Reyes). However, relationship of uncle and niece is
not an alternative circumstance (People vs. Ulit, G.R.
Nos. 131799-801, February 23, 2004).

PASSION - The following essential requirements

must be present: (1) there was an act that was both
unlawful and sufficient to produce such condition
(passion or obfuscation) of the mind; and (2) such
act was not far removed from the commission of the
crime by a considerable length of time, during which
the perpetrator might have recovered his normal
equanimity (People vs. Comillo, G.R. No.
186538, November 25, 2009). Four days after the
60 | P a g e
victims attempted on the virtue of his wife, accused
killed them. The period of four days was sufficient
enough a time within which accused could have
regained his composure and self-control. Hence,
passion should not be appreciated (People vs.
Rebucan, G.R. No. 182551, July 27, 2011, Justice
De Castro).
AGGRAVATING CIRCUMSTANCES

Generic aggravating circumstances has the

effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to
the next higher degree. It must always be alleged
and charged in the information, and must be proven
during the trial in order to be appreciated. Moreover,
it can be offset by an ordinary mitigating
circumstance (People vs. De Leon, GR No. 179943,
June 26, 2009).

It is now a requirement that the aggravating as

well as the qualifying circumstances be expressly
and specifically alleged in the complaint or
information. Otherwise, they cannot be considered
by the trial court in its judgment, even, if they are
subsequently proved during trial (Sombilon, Jr. vs.
People, G.R. No. 175528, September 30, 2009,
Justice De Castro)
Section 8, Rule 110 of the Rules of Court has
expressly required that qualifying and aggravating
circumstances be specifically alleged in the
information. Due to such requirement being pro reo,
the Court has authorized its retroactive application
in favor of even those charged with felonies
committed prior to December 1, 2000, which is the
date of the effectivity of the 2000 revision of
the Rules of Criminal Procedure that embodied the
61 | P a g e
requirement (People vs. Dadulla, G. R. No. 172321,
February 9, 2011).

TAKING ADVANTAGE OF POSITION - The mere

use of service firearm is not enough to constitute
taking advantage of public position. Fact that
accused made use of firearms which they were
authorized to carry or possess by reason of their
positions, could not supply the required connection
between the office and the crime.The crime in
question, for example, could have been committed
by the defendants in the same or like manner and
with the same case if they had been private
individuals and fired with unlicensed weapons
(People vs. Mandolado, G.R. No. L-51304, June 28,
1983; People vs. Joyno, G.R. No. 123982, March 15,
1999, En Banc; People vs. Villa, Jr., G.R. No.
129899, April 27, 2000; People vs. Villamor, G.R.
Nos. 140407-08 and 141908-09, January 15, 2002,
En Banc; and People vs. Fallorina, G.R. No. 137347,
March 4, 2004, En Banc).

IGNOMINY - After killing the victim, the accused

severed his sexual organ. Should ignominy be
appreciated? No. For ignominy to be appreciated, it
is required that the offense be committed in a
manner that tends to make its effect more
humiliating, thus adding to the victims moral
suffering. Where the victim was already dead when
his body or a part thereof was dismembered,
ignominy cannot be taken against the accused
(People vs. Cachola, G.R. Nos. 148712-15, January
21, 2004)`

TREACHERY To appreciate treachery, two (2)

conditions must be present, namely, (a) the
employment of means of execution that gives the
62 | P a g e
person attacked no opportunity to defend himself or
to retaliate, and (b) the means of execution were
deliberately or consciously adopted (People vs.
Duavis, GR No. 190861, December 07, 2011).

Treachery is not a qualifying circumstance but a

generic aggravating circumstance to robbery with
homicide although said crime is classified as a crime
against property and a single and indivisible crime
(People vs. Baron, G.R. No. 188601, June 29, 2010).

As the killing, in this case, is perpetrated with

both treachery and by means of explosives, the latter
shall be considered as a qualifying
circumstance since it is the principal mode of
attack. Reason dictates that this attendant
circumstance should qualify the offense while
treachery will be considered merely as a generic
aggravating circumstance (People vs. Barde G.R. No.
183094, September 22, 2010).

EMPLOMENT OF MEANS TO WEAKEN

DEFENSE - If the employment of means to weaken
the defense of the victim renders the victim
defenseless, treachery absorbs circumstance of
employing means to weaken defense (People vs.
Tunhawan, G.R. NO. L-81470, October 27, 1988).

DISGUISE - If the accused covers his face with a

handkerchief when he treacherously killed the
victim, the crime committed is murder qualified by
treachery and aggravated by disguise (People vs.
Piring, G.R. No. 45053, October 19, 1936). If the
accused covers his face with a handkerchief when he
killed the victim, the crime committed is murder
qualified by employment of means of affords
impunity.
63 | P a g e
 If the accused treacherously stabbed the victim,
and the crime committed is murder qualified by
treachery and aggravated by disguise. If the accused
covers his face with a handkerchief when he killed
the victim, the crime committed is murder qualified
by employment of means of affords impunity.

NIGHTTIME - Thus, treachery absorbs

nighttime where had it not been at night the
offender, with his cohorts, would not have been able
to approach the deceased without the latter's
becoming aware of his presence and guessing his
intention; If they were able to catch victim
completely unawares, it was due to the darkness of
the night which covered them (People vs.
Gumarang , GR N. 46413, October 6, 1939).

As a general rule, nighttime is aggravating

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

ABUSE OF SUEPRIOR STRENGHT - Abuse of

superior strength is present whenever there is
inequality of forces between the victim and the
aggressor, considering that a situation of superiority
of strength is notoriously advantageous for the
aggressor and is selected or taken advantage of by
him in the commission of the crime (People vs.
Garchitorena, G. R. No. 175605, August 28, 2009
(Justice De Castro).The victim need not be
completely defenseless in order for the said
aggravating circumstance to be appreciated (People
vs. Paling, G.R. No. 185390 March 16, 2011). If the
victim is completely defenseless, treachery should be
appreciated (People vs. Rebucan, G.R. No. 182551,
July 27, 2011). When the circumstance of abuse of
superior strength concurs with treachery, the former
is absorbed in the latter (People vs. Dadao, et.al.,
G.R. No. 201860, January 22, 2014 (Justice De
Castro).
EVIDENT PREMEDITATION - To warrant a
finding of evident premeditation, the prosecution
must establish the confluence of the following
requisites: (a) the time when the offender determined
to commit the crime; (b) an act manifestly indicating
that the offender clung to his determination; and (c)
a sufficient interval of time between the

65 | P a g e
determination and the execution of the crime to
allow him to reflect upon the consequences of his act
(People vs. Sabangan, G.R. No. 191722, December
11, 2013, Justice De Castro). The essence of
evident premeditation is that the execution of the
criminal act must be preceded by cool thought and
reflection upon the resolution to carry out the
criminal intent during a space of time sufficient to
arrive at a calm judgment (People vs. Alinao, GR No.
191256, September 18, 2013).
Accused told witness that they were going to kill
the doctor. After less than thirty minutes, the
accused killed the victim, who is a doctor. Evident
premeditation should not be appreciated. The span
of time (less than thirty minutes), from the time the
accused showed their determination to kill the victim
up to the time they shot the victim, could not have
afforded them full opportunity for meditation and
reflection on the consequences of the crime they
committed (People vs. Patelan, G.R. No. 182918,
June 6, 2011).Unlike evident premeditation, there is
no requirement for conspiracy to exist that there be
a sufficient period of time to elapse to afford full
opportunity for meditation and reflection. Instead,
conspiracy arises on the very moment the plotters
agree, expressly or impliedly, to commit the subject
felony (People vs. Carandang, G.R. No. 175926, July
6, 2011).

DISREGARD OF SEX: Robbery with homicide is

essentially a felony against property. The aggravating
circumstance of disregard of the victims age is
applied only to crimes against persons and honor.
Moreover, the bare fact that the victim is a woman
does not per se constitute disregard of sex. For this
circumstance to be properly considered, the

66 | P a g e
prosecution must adduce evidence that in the
commission of the crime, the accused had
particularly intended to insult or commit disrespect
to the sex of the victim (People vs. Reyes, G.R. No.
153119, April 13, 2004.

The circumstances of disregard of sex, age or

rank should be taken singly or together. But the
circumstance of dwelling should be considered
independently from the circumstance of disregard of
age, sex and rank since these circumstances signify
different concepts. In the latter, the disrespect
shown by offender pertains to the person of the
offended due to her rank, age and sex. In the
former, the disrespect pertains to the dwelling of the
offended party due to the sanctity of privacy which
the law accords it. In People vs. Puno, G.R. No. L-
33211, June 29, 1981, En Banc - Disregard of rank
and dwelling were appreciated independently.

In robbery with violence and intimidation

against persons, dwelling is aggravating because in
this class of robbery, the crime may be committed
without the necessity of trespassing the sanctity of
the offended party's house(People vs. Evangelio, G.R.
No. 181902, August 31, 2011).

AID OF ARMED MEN: Aid of armed men or

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

CRUELTY: The crime is not aggravated by

cruelty simply because the victim sustained ten stab
wounds, three of which were fatal. For cruelty to be
considered as an aggravating circumstance there
must be proof that, in inflicting several stab wounds
on the victim, the perpetrator intended to exacerbate
the pain and suffering of the victim. The number of
wounds inflicted on the victim is not proof of cruelty
(Simangan vs. People, G.R. No. 157984. July 8,
2004).

REPETITION - Differences of recidivism, quasi-

recidivism, reiteracion and habitual delinquency:

(a) Nature of crime In recidivism, the first

crime, and the aggravated second crime are
embraced in the same Title of the Revised Penal
Code; In quasi-recidivism, the nature of the first
crime and aggravated second crime is not material.
In reiteration, the penalty for the first crime is equal
or greater than that for the aggravated second crime
or the penalty for the first two crimes is lighter than
that for the aggravated third crime. In habitual
delinquency, the first, second and third crimes must
be a habitual-delinquency crime, and that is, serious
or less serious physical injuries, theft, robbery,
estafa or falsification of document.

68 | P a g e
 (b) Time element In recidivism, the accused was
convicted of the first crime by final judgment at the
time of trial of the second crime. In quasi-recidivism,
the accused has been convicted by final judgment of
the first offense but before beginning to serve his
sentence or while servicing of his sentence, he
committed the second crime. In reiteration, the
accused was convicted of the first crime (or first two
crimes) and served his sentences at the time he was
convicted of the second crime (or third crime). In
habitual delinquency, the accused was convicted of
first habitual-delinquency crime; within 10 years
after conviction or release, he was found guilty of
habitual-delinquency crime for the second time;
within 10 years after conviction or release he was
found guilty of habitual-delinquency crime for the
third time or oftener.

(c) Nature of the aggravating circumstance -

Recidivism and reiteration are ordinary aggravating
circumstances, the presence of any of which will
trigger the application of the penalty for the second
crime committed in its maximum period unless it is
off-set by mitigating circumstance. Quasi-recidivism
is special aggravating circumstance, the presence of
which will trigger the application of the penalty for
the second crime or third crime in its maximum
period regardless of the presence of mitigating
circumstance. Habitual delinquency is an
extraordinary or special aggravating circumstance,
the presence of which will trigger the imposition of
additional penalty for the third or subsequent crime.
This is not subject to the off-set rule.

ALTERNATIVE CIRCUMSTANCE

69 | P a g e
 Alternative circumstances are those which must
be taken into consideration as aggravating or
mitigating according to the nature and effects of the
crime and other conditions attending its
commission. Based on a strict interpretation,
alternative circumstances are thus not aggravating
circumstances per se. (People vs. Orilla, G.R. Nos.
148939-40, February 13, 2004, En banc).

If the offender has committed a felony in a state

of intoxication, this circumstance may be mitigating
or aggravating. If the prosecution claims intoxication
as aggravating, it must establish that the
intoxication is habitual or intentional (People vs.
Patelan, G.R. No. 182918, June 6, 2011). Even if the
accused could still fully comprehend what is right
and what is wrong, intoxication is aggravating as
long as intoxication is habitual or intentional and it
boasted the courage of accused that propelled him to
commit the crime. To aggravate the liability of the
accused, it is not necessary that degree of
intoxication must have impaired the will power of
the accused (People vs. Ga, G.R. No. 49831, June
27, 1990). If accused claims intoxication as
mitigating, he must establish that his intoxication
was not habitual or subsequent to the plan to
commit the crime and that he took such quantity of
alcoholic beverage, prior to the commission of the
crime, as would blur his reason (People vs. Fontillas,
G.R. No. 184177, December 15, 2010, Justice De
Castro). Failure of the prosecution or the accused to
do so, intoxication is neither aggravating nor
mitigating.

PARTICIPATION

70 | P a g e
 Chief actor - Criminal or chief actor is the
person who actually committed the crime. He is the
one who committed or omitted the act, which
causes the criminal result. He directly perpetrated
the acts, which constitute the crime. With or
without conspiracy, the chief actor is a principal by
direct participation.

Criminal participator - Criminal participator is

the offender who participated in committing a crime
by indispensable or dispensable act. He performed
an act, which is not constitutive of felony but
intended to give moral or material aid to the chief
actor.

(1) With conspiracy - If there is conspiracy, the

criminal participator or cooperator is a principal
by direct participation. The act of the chief actor is
considered the act of the criminal participator.

(2) Without conspiracy - If there is no conspiracy,

criminal participator may be held liable as
principal by indispensable cooperation, accomplice
or accessory depending upon the nature and time
of participation. A criminal participator may
participate in the commission of the crime by
previous, simultaneous and/or subsequent acts.

(a) Previous or simultaneous acts The

criminal participator by previous or
simultaneous acts is liable either as principal by
indispensable cooperation or accomplice. If the
cooperation is indispensable, the participator is
a principal by indispensable cooperation; if
dispensable an accomplice.

71 | P a g e
 (b) Subsequent acts The criminal participator
by subsequent acts is liable as an accessory. An
accessory does not participate in the criminal
design, nor cooperate in the commission of the
felony, but, with knowledge of the commission of
the crime, he subsequently takes part by any of
the three modes under Article 19.

The liability of accessory and principal should

also be considered as quasi-collective. It is quasi-
collective in the sense that the principal and the
accessory are liable for the felony committed but the
penalty for the latter is two degrees lower than that
for the former.

ACCOMPLICE AND CONSPIRATOR - In People

vs. PO1 Eusebio G.R. No. 182152, February 25,
2013 - It noted that victim had only three gunshot
wounds despite the many shots fired at him. Since
Bongon shot victim thrice at very close range,
causing him to fall, it appears that it was only
Bongon who inflicted those wounds. And,
considering that the prosecution evidence did not
show that the shots three other accused fired from
their guns made their marks, there is doubts that
the three agreed beforehand with Bongon to kill
victim. It cannot rule out the possibility that they
fired their guns merely to scare off outside
interference.

Because witnesses are rarely present when

several accused come to an agreement or conspired
to commit a crime, such agreement is usually
inferred from their "concerted actions" while
committing it. On the other hand, accomplices are
the persons who, not being principals, cooperate in

72 | P a g e
the execution of the offense by previous or
simultaneous acts.

The line that separates a conspirator by

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

It is immaterial whether accused acted as a

principal or an accomplice. What really matters is
that the conspiracy was proven and he took part in
it. Without the participation of accused, the offense
would not have been committed. He was the one who
paved the way for victim to board the vehicle and his
closeness with the victim led the latter to trust the
former, thus, accomplishing their devious plan of
kidnapping him. Consequently, the conspirators
shall be held equally liable for the crime, because in
a conspiracy the act of one is the act of all (People
vs. Cruz, Jr., GR No. 168446, September 18, 2009).

ACCOMPLICE - In order that a person may be

considered an accomplice, namely, (1) that there be
community of design; that is knowing the criminal
design of the principal by direct participation, he
concurs with the latter in his purpose; (2) that he
73 | P a g e
cooperates in the execution by previous or
simultaneous act, with the intention of supplying
material or moral aid in the execution of the crime in
an efficacious way; and (3) that there be a relation
between the acts done by the principal and those
attributed to the person charged as accomplice
(People vs. Gambao, GR No. 172707, October 01,
2013).

Accused entered the room where the victim was

detained and conversed with kidnappers regarding
stories unrelated to the kidnapping. Accused should
be held liable as accomplice. The defenses raised by
accused are not sufficient to exonerate her criminal
liability. Assuming arguendo that she just came to
the resort thinking it was a swimming party, it was
inevitable that she acquired knowledge of the
criminal design of the principals when she saw
victim being guarded in the room. A rational person
would have suspected something was wrong and
would have reported such incident to the police.
Accused, however, chose to keep quiet; and to add to
that, she even spent the night at the cottage. It has
been held before that being present and giving moral
support when a crime is being committed will make
a person responsible as an accomplice in the crime
committed. It should be noted that the accused-
appellants presence and company were not
indispensable and essential to the perpetration of
the kidnapping for ransom; hence, she is only liable
as an accomplice. Moreover, in case of doubt, the
participation of the offender will be considered as
that of an accomplice rather than that of a principal
(People vs. Gambao, GR No. 172707, October 01,
2013).

74 | P a g e
 X and Y did not participate when the victim was
forcibly abducted. However, they owned the
safehouse, the basement of their house, where the
kidnapped victim was detained. X assisted the
kidnappers when the victim the basement stairs of
the safehouse. Y brought foods to the safehouse. Are
X and Y liable as accomplice or principal by direct
participation? They are liable as principals because
of conspiracy. Their participations are of minor
importance. These acts pertain to those committed
by mere accomplices. However, their acts coincide
with their ownership of the safehouse. They provided
the place where the victim is to be detained, which is
logically a primary consideration in a conspiracy to
commit the crime of kidnapping for ransom.
Ownership of the safehouse and their participations
reasonably indicate that they were among those who
at the outset planned, and thereafter concurred with
and participated in the execution of the criminal
design (People vs. Salvador, GR No. 201443, April
10, 2013).

FENCING

The essential elements of the crime of fencing

are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a
principal or on accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or buys
and sells, or in any manner deals in any article,
item, object or anything of value, which has been
derived from the proceeds of the crime of robbery or
theft; (3) the accused knew or should have known
that the said article, item, object or anything of value
has been derived from the proceeds of the crime of
robbery or theft; and (4) there is, on the part of one
75 | P a g e
accused, intent to gain for oneself or for another
(Ong vs. People, GR No. 190475, April 10, 2013).

The essential elements of the crime of fencing

under PD No. 1612 are as follows: (1) A crime of
robbery or theft has been committed; (2) The
accused, who is not a principal or accomplice in the
commission of the crime of robbery or theft (or
carnapping but not malversation or estafa), buys,
receives, possesses, keeps, acquires, conceals, sells
or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of
value, which has been derived from the proceeds of
the said crime; (3) The accused knows or should
have known that the said article, item, object or
anything of value has been derived from the
proceeds of the crime of robbery or theft; and (4)
There is on the part of the accused, intent to gain
for himself or for another (Francisco vs. People, G.R.
No. 146584, July 12, 2004).

a. Proving robbery or theft Commission of

robbery or theft by the principal as an element of
fencing should be proven beyond reasonable doubt
to convict the fencer. One may not be convicted of
the crime of fencing if the complainant did not lodge
a criminal complaint against the principal in the
crime of theft. This will create doubt if theft was
really committed (Tan vs. People, G.R. No. 134298,
August 26, 1999) Failure to show finality of
conviction of theft against the principal is fatal to
prosecution for fencing. In Francisco vs. People,
G.R. No. 146584, July 12, 2004, - The decision of
the trial court convicting the principal of theft does
not constitute proof against the accused for the
crime of fencing, that the principal had, indeed,
stolen the jewelry. There is no showing that the said
76 | P a g e
 decision was already final and executory when the
trial court rendered its decision in the fencing case.
Accused was acquitted.
b. Knowledge - In Dimat vs. People, G.R. No.
181184, January 25, 2012 But Presidential Decree
1612 is a special law and, therefore, its violation is
regarded as malum prohibitum, requiring no proof
of criminal intent. Of course, the prosecution must
still prove that accused knew or should have known
that the Nissan Safari he acquired and later sold to
complainant was derived from theft or robbery and
that he intended to obtain some gain out of his acts.
Accused knew that the Nissan Safari he bought was
not properly documented. He said that Tolentino
showed him its old certificate of registration and
official receipt. But this certainly could not be true
because, the vehicle having been carnapped,
Tolentino had no documents to show. That
Tolentino was unable to make good on his promise
to produce new documents undoubtedly confirmed
to accused that the Nissan Safari came from an illicit
source. Still, accused sold the same to complainant
who apparently made no effort to check the papers
covering her purchase. That complainant might
herself be liable for fencing is of no moment since
she did not stand accused in the case.

Accused was in the business of buy and sell of

tires for the past 24 years,] ought to have known the
ordinary course of business in purchasing from an
unknown seller. Admittedly, Go approached
accused and offered to sell the 13 tires (which were
stolen) and he did not even ask for proof of
ownership of the tires. The entire transaction, from
the proposal to buy until the delivery of tires
happened in just one day. His experience from the

77 | P a g e
business should have given him doubt as to the
legitimate ownership of the tires considering that it
was his first time to transact with Go and the
manner it was sold is as if Go was just peddling the
13 tires in the streets. Accused was convicted of
fencing (Ong vs. People, GR No. 190475, April 10,
2013).

Accused knew the requirement of the law in

selling second hand tires. Section 6 of P.D. 1612
requires stores, establishments or entities dealing in
the buying and selling of any good, article, item,
object or anything else of value obtained from an
unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station
commander of the Integrated National Police in the
town or city where that store, establishment or
entity is located before offering the item for sale to
the public. In fact, accused has practiced the
procedure of obtaining clearances from the police
station for some used tires he wanted to resell but,
in this particular transaction, he was remiss in his
duty as a diligent businessman who should have
exercised prudence (Ong vs. People, GR No. 190475,
April 10, 2013).

The issuance of a sales invoice or receipt is proof

of a legitimate transaction and may be raised as a
defense in the charge of fencing; however, that
defense is disputable. In this case, the validity of
the issuance of the receipt was disputed, and the
prosecution was able to prove that Gold Link and its
address were fictitious. Accused failed to overcome
the evidence presented by the prosecution and to
prove the legitimacy of the transaction. Thus, he
was unable to rebut the prima facie presumption

78 | P a g e
under Section 5 of P.D. 1612 (Ong vs. People, GR
No. 190475, April 10, 2013).

c. Presumption: Section 6 of PD No. 1612

provides: Mere possession of any good, article,
item, object, or anything of value which has been
the subject of robbery or thievery shall be prima
facie evidence of fencing.Possession is not limited
to actual manual control of the offender over the
stolen property but extends to power and dominion
over it.

Circumstances normally exist to forewarn, for

instance, a reasonably vigilant buyer that the object
of the sale may have been derived from the proceeds
of robbery or theft. Such circumstances include the
time and place of the sale, both of which may not be
in accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact
that the seller is not regularly engaged in the
business of selling goods may likewise suggest the
illegality of their source, and therefore should
caution the buyer. This justifies the presumption
found in Section 5 of P.D. No. 1612 that mere
possession of any goods, object or anything of value
which has been the subject of robbery or thievery
shall be prima facie evidence of fencing. This
presumption is reasonable for no other natural or
logical inference can arise from the established fact
of possession of the proceeds of the crime of robbery
or theft (Ong vs. People, GR No. 190475, April 10,
2013).

The accessory in theft should materially benefit

from it. Riding in a stolen vehicle is not profiting
within the contemplation of Article 17 of the Revised
Penal Code since it does not improve his economic
79 | P a g e
 position. Profiting is not synonymous to intent to
gain as an element of theft (Gregorio). However, in
violation of PD No. 1612, use of stolen property
gives rise to the presumption of fencing. Hence, the
user may be held liable for fencing even though he
did not materially benefit from crime of theft.
The presumption of theft is disputable. The
presumption of fencing may be overcome by
showing proof that accused bought the item from a
licensed dealer of second-hand items (Hizon-
Pamintuan vs. People, G.R. No. 11414, July 11,
1994) or by showing official receipts covering the
purchases of property, which is the subject of
fencing (D. M Consunji, Inc. vs. Esguerra, G.R. No.
118590, July 30, 1996).

d. Recently stolen property If suspect is

found in possession of recently stolen property, he
should be charged as principal in the crime of theft
or robbery. Under Section 3 (j), Rule 131, a person
found in possession of a thing taken in the doing of
recently wrongful act is the taker and the doer of
the whole act. Settled is the rule that unexplained
possession of recently stolen property is prima facie
evidence of guilt of the crime of theft ( US vs. Ungal,
37 Phil., 835). If the subject property is not recently
stolen, the presumption under Section 3 (j), Rule
131 will not arise. However, the possessor is still
presumed to have violated PD No. 1612 even if the
property being possessed was not recently stolen.
Under the law, mere possession of stolen property
gives rise to the presumption of fencing.

OBSTRUCTION OF JUSTICE

80 | P a g e
 Obstruction of justice under PD No. 1829 is
committed by any person who knowingly or willfully
obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and
prosecution of criminal cases by (1) altering,
destroying, suppressing or concealing any paper,
record, document, or object, with intent to impair its
verity, authenticity, legibility, availability, or
admissibility as evidence in any investigation of or
official proceedings in, criminal cases, or to be used
in the investigation of, or official proceedings in,
criminal cases; (2) harboring or concealing, or
facilitating the escape of, any person he knows, or
has reasonable ground to believe or suspect, has
committed any offense under existing penal laws in
order to prevent his arrest prosecution and
conviction;

a. Commission of crime, not an element - To

be held liable as accessory under the Revised Penal
Code, it is required that the crime was committed by
the principal. To be held liable for obstruction of
justice, it is not necessary that the crime was
committed by a criminal suspect. Example: A
committed suicide. To make it appear that B
murdered A, C placed the gun used in
perpetrating suicide inside the bag of B. C
committed the crime of obstruction of justice for
having obstructed the investigation of a criminal
case involving the death of A. C cannot be held
liable as accessory because murder was not really
committed.

b. Knowledge - An accessory under Revised

Penal Code must have knowledge of the commission
of the crime by the principal. To commit obstruction
of justice, what is important is not knowledge of the
81 | P a g e
 commission of a crime but awareness of an ongoing
or impending investigation and prosecution of a
criminal case. In fact, even though the suspect did
not commit a crime, obstruction of justice is
committed if he knowingly obstructs, impedes, or
frustrates the said investigation and prosecution.

c. Obstructing criminal investigation or

prosecution - Public officer, who destroyed
dangerous drugs as evidence for monetary
consideration, is liable for obstruction of justice in
addition to graft and corruption and direct bribery
(2005 Bar Exam)

If a respondent in a preliminary investigation

altered the allegation in the complaint-affidavit as to
the date of criminal incident to make it appear that
the crime, with which he was charged, had
prescribed, the alteration is constitutive of the crime
of falsification of document under Article 172 of the
Revised Penal Code and obstruction of justice under
PD No. 1829.

d. Principal of the crime - A and B killed

X. After the slaughter, A and B burned the
dead body of X in the forest to prevent its
discovery. Can A and B be charged as accessory
of the crime to murder or obstruction of justice? A
and B are principals by direct participation in the
crime of murder qualified by employment of means
to afford impunity. Hence, they cannot be charged
as accessories. Under the Revised Penal Code,
accessories must not have participated in the
commission of the crime as principals. However, in
addition to murder, they can be charged with the
crime of obstruction of justice for destroying an
object to impair its availability as evidence in a case.
82 | P a g e
 Under PD No. 1829, it is not required that the
offenders must not have participated as principals.

e. Suspicion - An accessory under Article 19 (3)

of the Revised Penal Code must have knowledge of
the commission of the crime by the principal.
Entertaining suspicion is not itself proof of
knowledge that a crime has been committed.
Knowledge and suspicion are not synonymous.
The word suspicion is defined as being the
imagination of the existence of something without
proof, or upon very slight evidence or upon no
evidence at all (Reyes). On the other hand, the
offender may violate Section 1 (c) of PD No. 1829
even though he has no knowledge of the
commission of the crime as long as he has
reasonable ground to believe or suspects that the
person he assisted has committed a crime. In some,
mere suspicion is enough to establish the second
element of the offense.

d. Preventing an illegal arrest Harboring or

concealing a criminal suspect in order to prevent a
lawful warrantless arrest or the implementation of a
warrant of arrest constitutes obstruction of justice.
However, harboring or concealing a criminal suspect
to prevent an illegal arrest is not a crime. The term
arrest in Section 1 (c) of PD No. 1829 contemplates
a lawful arrest (Posadas vs. the Hon. Ombudsman,
G.R. No. 131492, September 29, 2000)

e. Accessory To make a person liable as

accessory under the Revised Penal Code, it is
required that he is a public officer, who acted with
abuse of his public functions, or that the person
assisted is guilty as principal in treason, parricide,
murder, or an attempt to take the life of the Chief
83 | P a g e
 Executive or a principal, who is known to be
habitually guilty of some other crime. This
requirement is not applicable if the accused is
charged with obstruction of justice.

f. No exempting circumstance - Accessories

are exempt from criminal liability if the principal
merely committed a light felony (Article 16 of the
Revised Penal Code). Accessories of the second or
third kind are exempt also from criminal
responsibility if they are related to the criminal
actor (Article 20 of the Code). However, if the
accessories of the crime were charged with the
crime of obstruction of justice, they cannot claim
criminal exemption under the Revised Penal Code.
PD No. 1829 has no provision on criminal
exemption.

Article 29 of RPC
RA NO. 10592 and its implementing rules

1. Preventive imprisonment Under Article 29

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

84 | P a g e
 a. No credit by reason of disqualification
The grant of credit of preventive imprisonment shall
not apply to the following:

a. An accused who is recidivist;

b. An accused who has been convicted
previously twice or more times of any crime; and
c. An accused who, upon being summoned for
the execution of his sentence, has failed to
surrender voluntarily before a court of law.

b. Full time credit - An accused who has

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

The undertaking is called detainees

manifestation, which is defined as a written
declaration of a detained prisoner, with the assistant
of a counsel, stating his refusal to abide by the same
disciplinary rules imposed upon a convicted prisoner
for the purpose of availing the full credit of the
period of his preventive imprisonment

c. 4/5 time credit - An accused who has

undergone preventive imprisonment and who does
not agree to abide by the same disciplinary rules
imposed upon prisoners convicted by final judgment
shall be credited by the service of his sentence with
four-fifths (4/5) of the time during which he has
undergone preventive imprisonment if;

85 | P a g e
 a. He shall do in writing
b. With the assistance of counsel.

In sum, the detainee must execute a written

waiver, which is called detainees waiver defined as a
written declaration of a detained prisoner, with the
assistant of a counsel, stating his refusal to abide by
the same disciplinary rules imposed upon a prisoner
convicted by final judgment and thus be entitled to a
credit of four-fifths (4/5) of the time during
preventive imprisonment.

d. Full time credit for child in conflict with

the law - If the offender is a child, the applicable
rule for crediting the period of commitment and
detention is not Article 29 of the Revised Penal Code
but Section 41, RA 9344. Under the said provision,
the full time spent in actual commitment and
detention of juvenile delinquent shall be credited in
the services of his sentence.
2. Immediate release Under Article 29 of RPC
as amended by RA No. 10592, whenever an accused
has undergone preventive imprisonment for a period
equal to the imposable maximum imprisonment of
the offense charged to which he may be sentenced
and his case is not yet decided, he shall be released
immediately without prejudice to the continuation of
the trial thereof or the proceeding on appeal, if the
same is under review, except for the following:

1) Recidivist
2) Habitual Delinquent
3) Escapee
4) Person charged with heinous crimes

86 | P a g e
 If the maximum penalty to which the accused
may be sentenced is destierro, he shall be released
after thirty (30) days of imprisonment.

The computation of preventive imprisonment for

purposes of immediate release shall be the actual
period of detention with good conduct time
allowance; provided, however, that if the accused is
absent without motu propio order the re-arrest of
the accused.

3. Good conduct time allowance (GCTA)

Before, only prisoner service sentence is entitled to
allowance for good conduct. However, under Article
94 of RPC as amended by RA 10592, the following
shall be entitled to good conduct time allowance:

a. A detention prisoner qualified for credit for

preventive imprisonment for his good conduct
and exemplary behaviour; and

b. A prisoner convicted by the final judgment in

any penal institution, rehabilitation or detention
center or any other local jail for his good
conduct and exemplary behaviour.

The good conduct time allowances under Article 97

as amended are as follows:

First 2 years of imprisonment 20 days for each

month of good behavior
3rd to 5th year 23 days for each month of good
behavior
6th to 10th year 25 days for each month of good
behavior
11th year and successive years 30 days for each
month of good behavior
87 | P a g e
 An appeal by the accused shall not deprive him
of entitlement to the above allowances for good
conduct.

4. Time Allowance for Study, Teaching and

Mentoring (TASTM) - A prisoner is also entitled to
Time Allowance for Study, Teaching and Mentoring,
which is privilege granted to a prisoner, whether
detained or convicted by final judgment, as a reward
for having earned a post post-graduate degree or
collage degree, a certificate of completion of a
vocational or technical skills or values development
course, a high school or elementary diploma or to
one serving his fellow prisoner as a teacher or
mentor while incarcerated, equivalent to a deduction
of a maximum of fifteen (15) days for every month of
study or mentoring services

5. Special time allowance for loyalty (STAL) -

Special time allowance for loyalty is a privilege
granted to a prisoner, whether detained or convicted
by final judgment, who has evaded preventive
imprisonment or service of sentence during said
calamity, and surrendered to the authorities within
forty-eight (48) hours following the proclamation
announcing the passing away of the calamity and
the catastrophe referred to in the said article in the
form of the deduction of one fifth (1/5) from his
preventive imprisonment or service of sentence or a
deduction of two fifth (2/5) if prisoner opted to stay
in jail or prison during the calamity.

However, prisoner is not entitled to special time

allowance for loyalty if he has committed other
offense or any act in violation of the law.

88 | P a g e
 In case of disorder in the penal institution
resulting from a conflagration, earthquake,
explosion, or similar catastrophe, or during a mutiny
in which the prisoner has not participated, the
prisoner, entitled to special time allowance for
loyalty (STAL) or liable for evasion of sentence.

a. No evasion - In case said prisoner chose to

stay in the place of his confinement notwithstanding
the existence of a calamity or catastrophe, he is
entitled to deduction of two-fifths (2/5) of the period
of his sentence. This a new rule introduced by RA
No. 10592.

Article 98 under the original version does not

grant special allowance for loyalty to prisoner who
did not escape despite the existence of calamity
(Losada vs. Acenas, GR NO. L-810, March 31, 1947;
Fortuno vs. Director of Prisons, GR NO. L-1782,
February 2, 1948). RA No. 10529 sought to correct
this rule since a prisoner who did not escape despite
of the calamity manifests a higher degree of loyalty
to the penal system than those who evaded their
sentence but thereafter gives themselves up upon
the passing away of the calamity.

b. Evasion In case the prisoner chose to evade

evaded his preventive imprisonment or the service of
his sentence during the calamity and the President
issued a proclamation by the President announcing
the passing away of such calamity, he has to
options:

1. He may give himself up to the authorities

within forty-eight hours following the issuance of a
proclamation by the President announcing the
passing away of such calamity. In such case, he is
89 | P a g e
entitled to one fifth (1/5) special time allowance for
loyalty under Article 98; or

2. He may not give himself up to the authorities

within said period of forty-eight hours. In such case,
he is liable for evasion of sentence under Article 158.
The penalty for evasion under Article 158 is
equivalent to one-fifth of the time still remaining to
be served under the original sentence, which in no
case shall exceed six months.

Prisoner is entitled to special time allowance for

loyalty whether he is a convicted or detention
prisoner. Article 98 of RPC as amended by RA No.
10592 provides "This Article shall apply to any
prisoner whether undergoing preventive
imprisonment or serving sentence." Special
allowance is given to prisoner, who evaded his
preventive imprisonment or the service of his
sentence during calamity but give himself up within
the required period.

However, a detention prisoner is not liable for

evasion of sentence under Article 158 of RPC if he
fails to give himself up within forty-eight hours
following the announcement of the passing away of
such calamity. RA No. 10592 amended Article 98 to
extend the benefit of a special allowance to
preventive prisoner but the amendment does not
include Article 158. The crime of evasion under
Article 158 is committed only by a convict, who shall
evade the service of his sentence during calamity and
fail to give himself up within the period.

PENALTY

90 | P a g e
 In De Castro vs. People, G.R. No. 171672,
February 02, 2015, the court should prescribe the
correct penalties in complex crimes in strict
observance of Article 48 of the Revised Penal Code.
In estafa through falsification of commercial
documents, the court should impose the penalty for
the graver offense in the maximum period.
Otherwise, the penalty prescribed is invalid, and will
not attain finality.

RECLUSION PERPETUA AND LIFE

IMPRISONMENT

If the law was amended to change the penalty

from life imprisonment to reclusion perpetua, the
amendatory law, being more lenient to the accused
than the previous law, should be accorded
retroactive application. The penalty of reclusion
perpetua is a lighter penalty than life imprisonment.
(People vs. Pang, G.R. No. 176229, October 19,
2011).

ISLAW
RA 9165 provides that illegal possession of less
than five (5) grams of shabu is penalized with
imprisonment of 12 years and 1 day to 20 years. The
court sentenced the accused to suffer a straight
penalty of imprisonment of 12 years and 1 day. Is
the penalty imposed by the court correct? No. The
indeterminate Sentence Law mandates that, in case
of a special law, the accused shall be sentenced "to
an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said
law and the minimum shall not be less than the
minimum term prescribed by the same." (Asiatico vs.
People, G.R. No. 195005, September 12, 2011)

91 | P a g e
 SPECIAL MITIGATING CIRCUMSTANCE:
Under Article 64 (5), the presence of two or more
mitigating circumstances will graduate the divisible
penalty prescribed by law to one degree lower. This
is called special mitigating circumstance. However,
the appreciation of this circumstance is subject to
two conditions: (1) the penalty prescribed by law
must be divisible; and (2) there must be no
aggravating circumstance. In People vs. Takbobo,
G.R. No. No. 102984, June 30, 1993 - Accused was
found guilty of parricide punishable by the penalty
of reclusion perpetua to death. Applying Article 63,
when the penalty is composed of two indivisible
penalties, the penalty cannot be lowered by one
degree, no matter how many mitigating
circumstances are present. The rule on special
mitigating circumstance is found in Article 64 (5)
which provides the "rules for the application of
penalties which contain three periods," meaning,
divisible penalties. Article 64 (5) is inapplicable.
Thus, the rule applicable in said case is found in
Article 63, and not in Article 64.

If there are two mitigating circumstances, the

penalty prescribed law shall graduated to one
degree lower, and the graduated penalty shall be
applied in it medium period. If there are three
mitigating circumstances taken as special mitigating,
the penalty prescribed law shall graduated to one
degree lower, and the graduated penalty shall be
applied in it minimum period. Reason: The two
mitigating circumstances were taken to constitute
special mitigating circumstance; while the
remaining mitigating circumstance was used to
apply the graduated penalty in its minimum period.

92 | P a g e
 GRADUATING DEATH PENALTY - For purposes
of graduating penalty, the penalty of death is still the
penalty to be reckoned with. RA No. 9346, which
prohibits the imposition of death penalty, does not
exclude death penalty in the order of graduation of
penalties. In qualified rape, the penalty for
accomplice is reclusion perpetua, the penalty next
lower in degree than death prescribed for the crime
(See: People vs. Jacinto, G.R. No. 182239, March 16,
2011).

SUPPLETORY APPLICATION - A special law

prescribes the penalty of 10 years of imprisonment
for violation thereof while another law prescribes the
penalty of arresto mayor. Can the rules on
graduation of penalties or application of penalty on
its proper imposable period under RPC applicable to
violation of these special laws?(a) Where the special
law has not adopted the Spanish penalties (10 years
of imprisonment) under RPC, rules on graduation of
penalties or application of penalty on its proper
imposable period is not applicable. Article 10 of RPC
on suppletory effects of the Code cannot be invoked
where there is a legal or physical impossibility of
such supplementary application (People vs.
Mantalba, G.R. No. 186227, July 20, 2011). The
penalty of 10 years of imprisonment can neither be
graduated by decrees nor divided into three periods.
(b) Where the special law has adopted the Spanish
penalty (arresto mayor) under RPC, rules on
graduation of penalties or application of penalty on
its proper imposable period are applicable. Where
the penalty under a special law is actually taken
from the Revised Penal Code in its technical
nomenclature, the penal system under the Code is
necessarily applicable to this law (See: People vs.
Mantalba, supra). This adoption reveals the
93 | P a g e
statutory intent to give the provisions on penalties
for felonies under RPC the corresponding application
to said special law, in the absence of any express or
implicit proscription in these special laws (See:
People vs. Simon, G.R. No. 93028, July 29, 1994).

SUBSIDIARY PENALTY UNDER RA No. 10159

Article 39 of the Revised Penal Code as amended

by RA No. 10159 provides: If the convict has no
property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall be
subject to a subsidiary personal liability at the rate
of one day for each amount equivalent to the highest
minimum wage rate prevailing in the Philippines at
the time of the rendition of judgment of conviction by
the trial court, subject to the following rules:

1. If the principal penalty imposed be prision

correctional or arresto and fine, he shall remain
under confinement until his fine referred in the
preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term
of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day
shall be counted against the prisoner.

2. When the principal penalty imposed be only a

fine, the subsidiary imprisonment shall not exceed
six months, if the culprit shall have been prosecuted
for a grave or less grave felony, and shall not exceed
fifteen days, if for a fight felony.

3. When the principal penalty imposed is higher

than prision correctional, no subsidiary
imprisonment shall be imposed upon the culprit.

94 | P a g e
 4. If the principal penalty imposed is not to be
executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules,
shall continue to suffer the same deprivations as
those of which the principal penalty consists.

5. The subsidiary personal liability which the

convict may have suffered by reason of his
insolvency shall not relieve him from the fine in case
his financial circumstances should improve.

Special law - In Escalante vs. People, G.R. No.

192727, January 9, 2013 - The penalty for election
offense is imprisonment of not less than one year
but not more than six years. Under ISLAW, if the
offense is punished by special law, the court shall
sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by
the same. Applying the ISLAW, the imposable
penalty for violation of the election gun ban should
have a maximum period, which shall not exceed six
(6) years, and a minimum period which shall not be
less than one (1) year.

THREE-FOLD AND 40 YEARS LIMITATION RULE

Simultaneous service - When the culprit has to

serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so
permit. Thus, convict could serve simultaneously
arresto mayor and fine, prision correccional and
perpetual absolute disqualification, or reclusion
perpetua and civil interdiction. In sum, while
lingering in prison, convict could pay fine, return the
95 | P a g e
property confiscated, be disallowed to cast his vote
or to act function as a public officer. In Rodriguez
vs. Director of Prisons, G.R. No. L-35386, September
28, 1972, En Banc - Penalties which could be served
simultaneously with other penalties, are perpetual or
temporary absolute disqualification, perpetual or
temporary special disqualification, public censure,
suspension from public office and other accessory
penalties. There are only two modes of serving two or
more (multiple) penalties: simultaneously or
successively. Successive service When the culprit
has to serve two or more penalties, he shall serve
them successively if the nature of the penalties will
not permit simultaneous service. Convict must
serve multiple penalties successively: (1) where the
penalties to be served are destierro and
imprisonment; and (2) where the penalties to be
served are imprisonment. However, the successive
service of sentences is subject to the three-fold rule
and 40-year limitation rule.

a. Three-fold rule - The maximum period of the

imprisonment that convict must suffer in serving
multiple penalties must not exceed threefold the
length of time corresponding to the most severe of
the penalties imposed upon him. A was sentenced
to suffer penalty of 7 years of prision mayor for
serious physical injuries, 6 years of prision
correccional for qualified less serious physical
injuries, 5 years of prision correccional for robbery
and 5 years of prison correccional for theft. The
total duration of the penalties imposed on him is 23
years. The most severe penalty imposed on him is 7
years of prision mayor. Thus, threefold the length of
time corresponding to the most severe of the
penalties is 21 years. A will be imprisoned for 21
years because of the three-fold rule.
96 | P a g e
 b. Forty-year limitation rule The maximum
period of the imprisonment that convict must suffer
in serving multiple penalties must not exceed forty
years. A was sentenced to suffer three penalties of
15 years of reclusion temporal for three counts of
homicide and the penalty of 10 years of prision
mayor for serious physical injuries. The total
duration of the penalties imposed on him is 55
years. The most severe penalty imposed on him, is
15 years of reclusion temporal. Thus, threefold the
length of time corresponding to the most severe of
the penalties is 45 years. A will be imprisoned for
40 years because of the forty year limitation rule.

Article 70 provides that the maximum duration

of the convicts sentence shall not be more than
threefold the length of time corresponding to the
most severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be
inflicted after the sum total of those imposed equals
the said maximum period. Such maximum period
shall in no case exceed forty years. Applying said
rule, despite the four penalties of reclusion
perpetua for four counts of qualified theft, accused-
appellant shall suffer imprisonment for a period not
exceeding 40 years (People vs. Mirto, G.R. No.
193479, October 19, 2011).

In Mejorada vs. Sandiganbayan, G.R. No. L-

51065-72, June 30, 1987, En Banc - This article is
to be taken into account not in the imposition of the
penalty but in connection with the service of the
sentence imposed. Article 70 speaks of "service" of
sentence. Nowhere in the article is anything
mentioned about the "imposition of penalty". It
merely provides that the prisoner cannot be made to
97 | P a g e
serve more than three times the most severe of these
penalties the maximum of which is forty years.

SPECIAL COMPLEX CRIME

KIDNAPPING WITH HOMICIDE

Old rule: (1) Where the accused kidnapped the

victim for the purpose of killing him, and he was in
fact killed by his abductor, the crime committed was
the complex crime of kidnapping with murder as the
kidnapping of the victim was a necessary means of
committing the murder. (2) Where the victim was
kidnapped not for the purpose of killing him but was
subsequently slain as an afterthought, two (2)
separate crimes of kidnapping and murder were
committed. Present rule: Where the person
kidnapped is killed in the course of the detention,
regardless of whether the killing was purposely
sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer
be complexed, nor be treated as separate crimes, but
shall be punished as a special complex crime (People
vs. Ramos, G.R. No. 118570, October 12, 1998, En
Banc, People vs. Larranaga, 138874-75, February 3,
2004, En Banc; People vs. Montanir, GR No.
187534, April 04, 2011; People vs. Dionaldo, G.R.
No. 207949, July 23, 2014)

However, where there is no actual detention

(People vs. Masilang, 1986) or intent to deprive
liberty (People vs. Estacio Jr., G.R. No. 171655, July
22, 2009, En Banc) killing the person is murder.
Demand for ransom will not convert the crime into
kidnapping.

98 | P a g e
 If kidnapping is a necessary means to commit
frustrated murder, special complex crime of
kidnapping and serious illegal detention with
frustrated homicide. Homicide as a component of
special complex crime must be at the consummated
stage. In this situation, the crime committed is
complex crime of kidnapping and serious illegal
detention with frustrated murder (See: People vs.
Roxas, GR No. 172604, August 17, 2010)

RAPE WITH HOMICIDE

Raping a dying victim Stabbing the victim

and raping her while she was dying is not a special
complex crime of rape with homicide because the
original design of the victim is kill and not to rape
the victim. These are not separate crimes of murder
and rape since the bestiality at the threshhold of
death of the victim shall be regarded either as a form
of ignominy causing disgrace or as a form
of cruelty which aggravated the murder because it
was unnecessary to the commission thereof (People
vs. Laspardas, G.R. No. L-46146, Oct. 23, 1979).
Hitting the victim thrice with a piece of wood and
inserting toothbrush into the anal orifice while the
victim was dying is not special complex crime of rape
through sexual assault with homicide because the
original design of the victim is kill and not to
sexually assault the victim. These are not separate
crimes of murder and rape through sexual assault
since the bestiality at the threshhold of death of the
victim shall be regarded as a form of cruelty which
aggravated the murder because it was unnecessary
to the commission thereof (People vs. Bernabe, G.R.
No. 185726, October 16, 2009, Justice De Castro)
99 | P a g e
 Homicide - In the special complex crime of rape
with homicide, the term "homicide" is to be
understood in its generic sense, and includes
murder and slight physical injuries committed by
reason or on occasion of the rape. Hence, even if the
circumstances of treachery, abuse of superior
strength and evident premeditation are alleged in the
information and duly established by the prosecution,
the same would not qualify the killing to murder and
the crime committed is still rape with homicide.
However, these circumstances shall be regarded as
ordinary aggravating (People vs. Laog, G.R. No.
178321, October 5, 2011).

By reason or on occasion of rape - The

phrase by reason of the rape obviously conveys the
notion that the killing is due to the rape, which is
the crime the offender originally designed to commit.
The victim of the rape is also the victim of the killing.
The indivisibility of the homicide and the rape
(attempted or consummated) is clear and admits of
no doubt. In contrast, the import of the phrase on
the occasion of the rape may not be as easy to
determine. The phrase on the occasion of the rape
as shown by Senate deliberations refers to a killing
that occurs immediately before or after, or during
the commission itself of the attempted or
consummated rape, where the victim of the homicide
may be a person other than the rape victim
herself for as long as the killing is linked to the rape,
became evident (People vs. Villaflores, G.R.
No. 184926, April 11, 2012).

A and B were walking along the rice paddies

when X suddenly assaulted them with a lead pipe.
X killed A, and thereafter, raped B. X is liable
100 | P a g e
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).

Stabbing after the rape - In People vs. Isla,

G.R. No. 199875, November 21, 2012 - With respect
to the stabbings, it appears that Isla committed two
acts. The first was while he was ravishing AAA. The
Court considers this and the rape as one continuous
act, the stabbing being necessary, as far as he was
concerned, for the successful perpetration of the
crime. When he testified, Isla claimed that he had to
use the knife so he could have sexual intercourse
with her. The second stabbing took place after
consummation of the rape act. According to AAA,
after her defilement, she noticed the knife bloodied
and she tried to wrest it from him. In their struggle,
she was stabbed under her lower left breast but she
was able to force Isla to drop the knife. This second
stabbing is a separate and distinct offense as it was
not a necessary means to commit the rape. It was
intended to do away with her life.

COMPLEX CRIME

There are two kinds of complex crimes. The first

is known as compound crime, or when a single act
constitutes two or more grave or less grave
felonies. The second is known as complex crime
proper, or when an offense is a necessary means for
committing the other (People vs. Rebucan, G.R. No.
182551, July 27, 2011).The underlying philosophy
101 | P a g e
of complex crimes in the Revised Penal Code, which
follows the pro reo principle, is intended to favor the
accused by imposing a single penalty irrespective of
the crimes committed. The rationale being, that the
accused who commits two crimes with single
criminal impulse demonstrates lesser perversity
than when the crimes are committed by different
acts and several criminal resolutions (People vs.
Gaffud, Jr., G.R. No. 168050, September 19, 2008)

COMPLEX CRIME AND COMPOSITE CRIME -

A composite crime, also known as a special complex
crime, is composed of two or more crimes that the
law treats as a single indivisible and unique offense
for being the product of a single criminal impulse. It
is a specific crime with a specific penalty provided by
law. The distinctions between a composite crime, on
the one hand, and a complex or compound crime
under Article 48 are as follows: (1) In a composite
crime, the composition of the offenses is fixed by
law; In a complex or compound crime, the
combination of the offenses is not specified but
generalized, that is, grave and/or less grave, or one
offense being the necessary means to commit the
other; (2) For a composite crime, the penalty for the
specified combination of crimes is specific; for a
complex or compound crime, the penalty is that
corresponding to the most serious offense, to be
imposed in the maximum period; and (3) A light
felony that accompanies a composite crime is
absorbed; a light felony that accompanies the
commission of a complex or compound crime may be
the subject of a separate information (People vs.
Villaflores, G.R. No. 184926, April 11, 2012).

COMPOUND CRIME

102 | P a g e
 The single act of pitching or rolling the hand
grenade on the floor of the gymnasium which
resulted in the death of one victim and injuries to
other victims constituted a compound crime of
multiple murders qualified by means of explosion
(People vs. Mores, GR No. 189846, June 26, 2013,
Justice De Castro). The single act of running over
the victims with a van constitutes compound crime
of multiple murders (People vs. Punzalan, Jr., G.R.
No. 199892, December 10, 2012 (Justice De Castro)

X was charged with complex crime with murder

and attempted murder. The information alleges that
the accused shot the victim, but it does not allege
that he did so several times. However, the evidence
show that accused shot her and her father several
times. Can X be convicted of separate crimes of
murder and attempted murder or complex crime?
Answer: On the basis of evidence, X committed
separate crimes of murder and attempted murder.
Several shootings rule out the application of the
concept of complex crime. However, evidence does
not conform to the Information, which contains no
allegation accused shot the victims several times. In
the absence of a clear statement of several shootings
in the Information, the accused may be convicted
only of the complex crime of murder with attempted
murder. After all, the concept of complex crimes is
intended to favor the accused by imposing a single
penalty irrespective of the number of crimes
committed. Information merely states that accused
shot the victims. This is a compound crime since
murder and attempted murder was produced by a
single act of shooting. To rule that the accused
should be convicted of two separate offenses of
murder and attempted murder pursuant to the
evidence presented but contrary to the allegations in
103 | P a g e
the Information is to violate the right of the accused
to be informed of the nature and cause of the
accusation against him (People vs. Bernardo, GR No.
198789, June 03, 2013).

Single act rule - If there is more than one death

resulting from different acts there is no compound
crime of multiple homicides or murder. Article 48
speaks of a single act. In People vs. Toling, G.R. No.
L-27097, January 17, 1975 - Twin brothers, who ran
amok like juramentados in a passenger train, and
killed their eight co-passengers, were held liable for
eight (8) murders and one attempted murder. The
conduct of the twins evinced conspiracy and
community of design. The eight killings and the
attempted murder were perpetrated by means of
different acts. Hence, they cannot be regarded as
constituting a complex crime under Article 48 of the
Revised Penal Code, which refers to cases where "a
single act constitutes two or more grave felonies, of,
when an offense is a necessary means for
committing the other.

In People vs. Punzalan G .R. No. 199892,

December 1, 2001 - Appellant was animated by a
single purpose, to kill the navy personnel, and
committed a single act of stepping on the
accelerator, swerving to the right side of the road
ramming through the navy personnel, causing the
death of two persons and, at the same time,
constituting an attempt to kill others. The crime
committed is complex crime of multiple murders and
attempted murder.

Single criminal impulse Several acts

committed by several offenders with one criminal
impulse resulting in several deaths constitute one
104 | P a g e
crime: the compound crime of multiple homicides or
murders. In People vs. Lawas, L-7618-20, June 30,
1955 - Members of the Home Guard, upon order of
their leader, Lawas, simultaneously and successively
fired at several victims. After a short time, the firing
stopped immediately when Lawas ordered his men to
cease fire. As a result of the firing, fifty (50)
persons died. It was held that the evidence positively
shows that the killing was the result of a single
impulse, which was induced by the order of the
leader to fire, and continued with the intention to
comply therewith, as the firing stopped as soon as
the leader gave the order to that effect. There was no
intent on the part of the accused either to fire at
each and every of the victims as separately and
distinctly from each other. If the act or acts
complained of resulted from a single criminal
impulse, it constitutes a single offense - compound
crime of multiple homicides.

Under the Lawas principle, if accused fired their

guns killing several victims pursuant to a single
impulse, they shall be held liable for continued
crime of murder. The Lawas principle should only be
applied in a case where (1) there is no conspiracy
(People vs. Hon. Pineda, G.R. No. L-26222, July 21,
1967) and (2) it is impossible to ascertain the
number of deaths caused by each accused (People
vs. Tabaco, G.R. No. 100382-100385, March 19,
1997). In conspiracy, each conspirator is not only
liable for deaths attributable to him but also for
deaths caused by others because in conspiracy the
act of one is the act of all. Thus, the Lawas doctrine
should not be applied if there is conspiracy since the
number of victims actually killed by each
conspirator is not anymore material if there is

105 | P a g e
conspiracy (People vs. Elarcosa, G.R. No. 186539,
June 29, 2010).

In People vs. Nelmida, G.R. No.

184500. September 11, 2012 - Significantly, there
was no conspiracy in Lawas case. However, the
Lawas doctrine is more of an exception than the
general rule. With the presence of conspiracy in the
case at bench, appellants had assumed joint
criminal responsibility the act of one is the act of
all. The ascertainment of who among them actually
hit, killed and/or caused injury to the victims
already becomes immaterial. Collective responsibility
replaced individual responsibility. The Lawas
doctrine, premised on the impossibility of
determining who killed whom, cannot be applied.

In Lawas, this Court was merely forced to apply

Article 48 of RPC because of the impossibility of
ascertaining the number of persons killed by each
accused. Since conspiracy was not proven therein,
joint criminal responsibility could not be attributed
to the accused. Each accused could not be held
liable for separate crimes because of lack of clear
evidence showing the number of persons actually
killed by each of them.

In conspiracy, the act of one is the act of all. It is

as though each one performed the act of each one of
the conspirators. Each one is criminally responsible
for each one of the deaths and injuries of the several
victims. The severalty of the acts prevents the
application of Article 48. The applicability of Article
48 depends upon the singularity of the act, thus the
definitional phrase "a single act constitutes two or
more grave or less grave felonies." To apply the first
half of Article 48, there must be singularity of
106 | P a g e
criminal act; singularity of criminal impulse is not
written into the law.

Single purpose rule - In People vs. Abella, 93

SCRA 25, the Lawas principle was applied despite
the presence of conspiracy. In the said case, sixteen
prisoners, who are members of the OXO gang, were
able to break into the cell of Sigue-Sigue gang and
killed fourteen (14) inmates. All accused were
convicted for a compound crime. It was held: Where
a conspiracy animates several persons with a single
purpose, their individual acts done in pursuance of
that purpose are looked upon as a single act, the act
of execution, giving rise to a complex offense.
Various acts committed under one criminal impulse
may constitute a single complex offense. Basis - The
single purpose rule was actually adopted in
consideration of the plight of the prisoners.
Requisites -There are two requisites to apply the
Abella principle: (1) there must be a conspiracy,
which animates several persons to commit crimes
under a single criminal purpose; and (2) the
offenders committed crimes in prison against their
fellow prisoners (People vs. Pincalin, et al., G.R. No.
L-38755, January 22, 1981).

In People vs. Nelmida, G.R. No.

184500. September 11, 2012 - The application of the
Abella doctrine, has already been clarified in
Pincalin, thus: where several killings on the same
occasion were perpetrated, but not involving
prisoners, a different rule may be applied, that is to
say, the killings would be treated as separate
offenses. If the killings did not involve prisoners or it
was not a case of prisoners killing fellow prisoners,
Abella would not apply.

107 | P a g e
 COMPLEX CRIME PROPER - In U.S. vs.
Hernandez, 29 Phil. 109, accused Hernandez, who
seduced a 15-year-old girl to live with him by
procuring the performance of a fictitious marriage
ceremony with the help of Bautista, who pretended
to be a Protestant minister, was held liable for the
complex crime proper of simple seduction (Art. 338)
through usurpation of official function (Art. 177).
Usurping the function of a priest to solemnize
marriage is a necessary means to seduce a minor.
Comment: The case of Hernandez was decided prior
to the effectivity of the RPC. At that time, a religious
official such as a bishop is a person in authority
within the purview of the Old Penal Code (Smith,
G.R. No. 14057, January 22, 1919). However, Article
152 of RPC does not include religious minister as a
person in authority. Hence, performing the function
of religious minister in solemnizing marriage is not
usurpation of official function.

DOCTRINE OF ABSORPTION - What is the

effect of the elimination of the overt acts of violence
in Article 135 by RA No. 9668? In People vs.
Hernandez, G.R. No. L-6025, July 18, 1956 The
Supreme Court justified the doctrine of absorption
in rebellion since murder, robbery, and arson are
just a part of the engaging in war against the forces
of the government", "committing serious violence",
and destroying property in Article 135. However,
RA No. 6968 eliminated the phrases "engaging in
war against the forces of the government",
"committing serious violence" and destroying
property in Article 135. According to Florenz
Regalado, the amendment of Article 135 does not
affect the accepted concept of rebellion and these
overt acts of violence are deemed subsumed in
the provision on rebellion in Article 134. Under this
108 | P a g e
 principle of subsumption, engaging in combat
against the forces of the Government, destroying
property or committing serious violence is an
essential ingredient of rebellion.

If the accused committed robbery, but

thereafter, they detained the victims to forestall their
capture by the police, the crime committed is
robbery only. Robbery absorbs kidnapping and
serious illegal detention. The detention was only
incidental to the main crime of robbery, and
although in the course thereof women and children
were also held, that threats to kill were made, the
act should not be considered as a separate offense
(People vs. Astor, G.R. Nos. L-71765-66, 29 April
1987). If the accused committed robbery, but
thereafter, they detained the victims to demand
additional money, and later forestall their capture by
the police, the crime committed is complex crime of
robbery through kidnapping and serious illegal
detention. The detention was availed of as a means
of insuring the consummation of the robbery. The
detention was not merely a matter of restraint to
enable the malefactors to escape, but deliberate as a
means of extortion for an additional amount. Hence,
the Astor principle is not applicable (People vs.
Salvilla, G.R. No. 86163 April 26, 1990). If the
accused committed robbery by band, but thereafter,
they took one of the victims and detained him for
seven days in another place for purpose of
demanding ransom, they are liable of separate
crimes of robbery by band and kidnapping for
ransom (People vs. Basao, G.R. No. 189820, October
10, 2012, Justice De Castro).

ABDUCTION AND MULTIPLE RAPES

109 | P a g e
 Main objective is to rape If the main objective
of the accused is to rape the victim, the crime
committed is rape. Forcible abduction (People vs.
Mejoraday, G.R. No. 102705, July 30, 1993; People
vs. Almanzor, G.R. No. 124916, July 11, 2002) or
illegal detention (People vs. Nuguid, G.R. No.
148991, January 21, 2004), which is incidental to
the commission of rape, is absorbed. The doctrine of
absorption rather than Article 48 of RPC is
applicable since forcible abduction or illegal
detention is an indispensable means to commit rape.

Abduction with lewd design If forcible

abduction is a necessary means to commit rape, this
is a complex crime proper under Article 48 of RPC.
However, multiple rapes were committed, forcible
abduction will be considered as a necessary means
to commit the first rape but not the subsequent
rape. Hence, with respect to the first rape, the crime
committed is rape though forcible abduction while
the subsequent rapes will be treated as separate
crimes (People vs. Jose, G.R. No. L-28232, February
6, 1971; People vs. Garcia, G.R. No. 141125,
February 28, 2002, En Banc; People vs. Amaro, G.R.
No. 199100, July 18, 2014).

As a rule, forcible abduction is an indispensable

means to commit rape; hence, the latter absorbs the
former. However, if the victim was brought in a
house or motel or in a place with considerable
distance from the place where she was abducted,
forcible abduction will be considered as a necessary
means to commit rape; hence, the crime committed
is complex crime proper.

Abduction to deprive liberty If the accused

abducted the victim without clear showing of lewd
110 | P a g e
design, the crime committed is kidnapping and
serious illegal detention since it will appear that the
intention of the accused is to deprive victim of his
liberty. If as a consequence of illegal detention, the
victim was rape, the crime committed is a special
complex crime of kidnapping and serious illegal
detention with rape. This is the crime committed
regardless of the number of rapes. Multiple rapes
will be considered as a component of this special
complex crime (People vs. Mirandilla, Jr., G.R. No.
186417, July 27, 2011; People vs. Anticamaray, G.R.
No. 178771, June 8, 2011). If as a consequence of
illegal detention, the victim was rape and then killed,
the crime committed is a special complex crime of
kidnapping and serious illegal detention with
homicide and rape. Both the homicide and rape will
be considered as a component of this special
complex crime (People vs. Larranaga, 138874-75,
February 3, 2004, En Banc).

The difference between rape through forcible

abduction and kidnapping with rape lies on the
criminal intention of the accused at the precise
moment of abduction. If the abduction is committed
with lewd design, the crime committed is rape
through forcible abduction. On the other hand, if the
abduction is committed without lewd design, the
crime committed is kidnapping and serious illegal
detention with rape (People vs. Mirandilla, Jr., G.R.
No. 186417, July 27, 2011). Even if the victim was
detained for one week and in the course thereof, she
was rape, the crime committed is rape through
forcible abduction if the abduction is committed with
lewd design (People vs. Amaro, G.R. No. 199100,
July 18, 2014).

111 | P a g e
 MULTIPLE KIDDNAPPINGS - In People v Tadah,
G.R. No. 186226, February 1, 2012 - Since the
prosecution adduced proof beyond reasonable doubt
that the accused conspired to kidnap the 5 victims
for ransom, and kidnapped and illegally detained
them until they were released by the accused after
the latter received the P2,000,000.00 ransom xxx
Appellant Yusop Tadah is found guilty beyond
reasonable doubt of 5 counts of kidnapping.

DELICTO CONTINUADO

In order that continuous crime may exist, there

should be: (1) plurality of acts performed separately
during a period of time; (2) unity of criminal intent
and purpose and (3) unity of penal provision
infringed upon or violated (Santiago vs. Garchitorena
, GR NO. 109266, December 2, 1993).

a. Single criminal impulse to steal - In People

vs. Tumlos, G.R. No. 46428, April 13, 1939, En
Banc - The theft of the thirteen cows owned by six
owners involved thirteen (13) acts of taking.
However, the acts of taking took place at the same
time and in the same place; consequently, accused
performed but one act. The intention was likewise
one, namely, to take for the purpose of
appropriating or selling the thirteen cows which he
found grazing in the same place. The fact that eight
of said cows pertained to one owner and five to
another does not make him criminally liable for as
many crimes as there are owners, for the reason
that in such case neither the intention nor the
criminal act is susceptible of division.

b. Single criminal impulse to commit robbery

- In People vs. Dela Cruz, G.R. No. L-1745, May 23,
112 | P a g e
1950, it was held that ransacking several houses
located within the vicinity of a sugar mill while two
of the bandits guarded the victims with guns leveled
at them is a continued crime of robbery. Several acts
of robbery were made pursuant to general plan to
despoil all those in the said place, which is an
indicative of a single criminal design.

Accused intended only to rob one place; and that

is the Energex gasoline station. That they did; and in
the process, also took away by force the money and
valuables of the employees working in said gasoline
station. Clearly inferred from these circumstances
are the series of acts which were borne from one
criminal resolution. A continuing offense is a
continuous, unlawful act or series of acts set on foot
by a single impulse and operated by an
unintermittent force, however long a time it may
occupy. The perpetrated acts were not entirely
distinct and unconnected from one another. Thus,
there is only single offense or crime (People vs. De
Leon, GR No. 179943, June 26, 2009).

c. Single criminal impulse to satisfy lust - In

People vs. Aaron, G.R. NOS. 136300-02, September
24, 2002 - The accused inserted his penis into the
victims vagina; he then withdrew it and ordered the
latter to lie down on the floor and, for the second
time, he inserted again his penis into the victims
vagina; the accused, thereafter, stood up and
commanded the victim to lie near the headboard of
the makeshift bed and, for the third time, he
inserted again his penis into the victims vagina and
continued making pumping motions. Accused is
convicted of only one count of rape. Accused thrice
succeeded in inserting his penis into the private part
of victim. However, the three penetrations occurred
113 | P a g e
during one continuing act of rape in which the
accused obviously motivated by a single criminal
intent. Accused decided to commit those separate
and distinct acts of sexual assault merely because of
his lustful desire to change positions inside the room
where the crime was committed.

In People vs. Lucena, GR No. 190632, February

26, 2014 - Accused thrice succeeded in inserting his
penis into the private part of victim. The three (3)
penetrations occurred one after the other at an
interval of five (5) minutes wherein the accused
would rest after satiating his lust upon his victim
and, after he has regained his strength, he would
again rape the victim. When the accused decided to
commit those separate and distinct acts of sexual
assault upon victim, he was not motivated by a
single impulse, but rather by several criminal
intents. Hence, his conviction for three (3) counts of
rape is indubitable.

d. Foreknowledge doctrine - In Gamboa vs.

CA, G.R. No. L-41054, November 28, 1975 -
Accused cannot be held to have entertained
continuously the same criminal intent in making
the first abstraction on October 2, 1972 for the
subsequent abstractions on the following days and
months until December 30, 1972, for the simple
reason that he was not possessed of any fore-
knowledge of any deposit by any customer on any
day or occasion and which would pass on to his
possession and control. At most, his intent to
misappropriate may arise only when he comes in
possession of the deposits on each business day but
not in future, since petitioner company operates
only on a day-to-day transaction. As a result, there
could be as many acts of misappropriation as there
114 | P a g e
 are times the private respondent abstracted and/or
diverted the deposits to his own personal use and
benefit (People vs. Dichupa, G.R. No. L-16943,
October 28, 1961).

X as punong barangay was angered when he

discovered a tap from the main line of the public
water tank. On separate occasions, X threatened
to kill and crack the skulls of A, B, and C, who
suspected to be responsible for the tapping of water
line. There is no continued crime since the three
crimes of grave threat were not committed under a
single criminal impulse. Xs intent to threaten A,
B, and C with bodily harm arose only when he
chanced upon each of his victims. Moreover, X has
no foreknowledge that will change upon the second
and third victims at the time he was committing the
first threat. Several threats can only be considered
as continued crime if the offender threatened three
individuals at the same place and at the same time
(Paera vs. People, G.R. No. 181626, May 30, 2011).

NOVATION

The novation theory may perhaps apply prior to

the filing of the criminal information in court by the
state prosecutors because up to that time the
original trust relation may be converted by the
parties into an ordinary creditor-debtor situation,
thereby placing the complainant in estoppel to insist
on the original trust. But after the justice authorities
have taken cognizance of the crime and instituted
action in court, the offended party may no longer
divest the prosecution of its power to exact the
criminal liability, as distinguished from the civil. The
crime being an offense against the state, only the

115 | P a g e
latter can renounce it (Degaos vs. People, GR No.
162826, October 14, 2013).

It may be observed in this regard that novation

is not one of the means recognized by the Penal
Code whereby criminal liability can be extinguished;
hence, the role of novation may only be to either
prevent the rise of criminal liability or to cast doubt
on the true nature of the original basic transaction,
whether or not it was such that its breach would not
give rise to penal responsibility, as when money
loaned is made to appear as a deposit, or other
similar disguise is resorted to (Degaos vs. People,
GR No. 162826, October 14, 2013).

Although the novation of a contract of agency to

make it one of sale may relieve an offender from an
incipient criminal liability, that did not happen here,
for the partial payments and the proposal to pay the
balance the accused made during
the barangay proceedings were not at all
incompatible with Degaos liability under the
agency that had already attached. Rather than
converting the agency to sale, therefore, he even
thereby confirmed his liability as the sales agent of
the complainants. The acceptance of partial
payments, without further change in the original
relation between the complainant and the accused,
cannot produce novation. For the latter to exist,
there must be proof of intent to extinguish the
original relationship, and such intent cannot be
inferred from the mere acceptance of payments on
account of what is totally due. Much less can it be
said that the acceptance of partial satisfaction can
effect the nullification of a criminal liability that is
fully matured, and already in the process of
enforcement. Thus, this Court has ruled that the
116 | P a g e
offended partys acceptance of a promissory note for
all or part of the amount misapplied does not
obliterate the criminal offense (Degaos vs. People,
GR No. 162826, October 14, 2013).

DEATH OF THE ACCUSED

Novation can only be used as a defense in a

crime where one of its elements is the existence of
contractual relationship between the offender and the
victim. Defense of novation is applicable to estafa
through misappropriation because the contractual
trust relationship between the parties can be validly
novated or converted by the parties into an ordinary
creditor-debtor situation, thereby placing the
complainant in estoppel to insist on the original
trust (People vs. Nery, G.R. No. L-19567, February 5,
1964, En Banc). Novation cannot be used as a
defense in case of theft or estafa through falsification
of document. In theft case, there was no contractual
relationship or bilateral agreement which can be
modified or altered by the parties (People vs.
Tanjutco, G.R. No. L-23924, April 29, 1968, En
Banc).In estafa through falsification of public
documents, the liability of the offender cannot be
extinguished by mere novation (Milla vs. People, G.R.
No. 188726, January 25, 2012).

In People v. Bayotas, the Court laid down the

rules in case the accused dies prior to final
judgment:

1. Death of the accused pending appeal of his

conviction extinguishes his criminal liability as well
as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, the death of the
accused prior to final judgment terminates his
117 | P a g e
criminal liability and only the civil
liability directly arising from and based solely on the
offense committed, i.e., civil liability ex
delicto in senso strictiore.

2. Corollarily, the claim for civil liability survives

notwithstanding the death of accused, if the same
may also be predicated on a source of obligation
other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from
which the civil liability may arise as a result of the
same act or omission: law; contracts; quasi-
contracts; quasi-delicts;

3. Where the civil liability survives, as explained

in Number 2 above, an action for recovery therefor
may be pursued but only by way of filing a separate
civil action and subject to Section 1, Rule 111 of the
1985 Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against
the executor/administrator or the estate of the
accused, depending on the source of obligation upon
which the same is based as explained above.

4. Finally, the private offended party need not

fear a forfeiture of his right to file this separate civil
action by prescription, in cases where during the
prosecution of the criminal action and prior to its
extinction, the private-offended party instituted
together therewith the civil action. In such case, the
statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal
case, conformably with provisions of Article 1155 of
the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by
prescription (People vs. Amistoso, GR No. 201447,
August 28, 2013)
118 | P a g e
 PRESCRIPTION

The crime of falsification of a public document

involving a deed of sale which was registered with
the Registry of Deeds, the rule on constructive
notice can be applied in the construction of Article
91. Hence, the prescriptive period of the crime shall
have to be reckoned from the time the notarized
deed of sale was recorded in the Registry of Deeds
(People vs. Reyes, G.R. No. 74226, July 27, 1989).
Constructive notice rule is not applicable to
registration of bigamous marriage in the Office of
the Civil Registrar. Furthermore, P.D. 1529, which
governed registration of document involving real
property, specifically provides the rule on
constructive notice. On the other hand, Act No.
3753 or the Family Code, which governed
registration of marriage do not provide rule on
constructive notice (Sermonia vs. Court of Appeals,
G.R. No. 109454, June 14, 1994); hence the period
of prescription commences to run on the date of
actual discovery of the bigamous marriage.

COMMENCEMENT - As a rule, period of

prescription commence to run from the date of
discovery of its commission. However, if the crime is
not yet actionable at the time of its commission,
period of prescription will commence to run from the
time it becomes actionable. In false testimony, the
crime was committed at the time the accused falsely
testified in court. However, the period of prescription
for false testimony commences to run from the date
of the finality of judgment of a case in which the
offender testified falsely. Prior to the date of finality,
the crime is not yet actionable (People vs. Maneja,
G.R. No. 47684, June 10, 1941).
119 | P a g e
 In violation of BP Blg. 22, the crime is
consummated upon the dishonor of the check by
the drawee bank (Bautista vs. Court of Appeals,
G.R. No. 143375, July 6, 2001). However, the period
of prescription for such crime commences to run
from the date of the expiration of the five-day period
from receipt of notice of dishonor by the drawer.
Prior to that date, the crime is not yet actionable
since the offender can still avert criminal
prosecution by satisfying the amount of the check
or making arrangement for its payment within five
day grace period.

Moreover, the running of prescription for crime

punishable under special law shall be interrupted
upon filing of complaint with prosecutor office for
preliminary investigation. It would be absurd to
consider the prescriptive period for crime under BP
Blg. 22 as already running even prior to the
expiration of the grace period despite the fact that
the complainant could not cause its interruption by
filing a complaint for preliminary investigation since
it is not yet actionable.

In People vs. Pangilinan, G.R. No. 152662, June

13, 2012 - This Court reckons the commencement of
the period of prescription for violations of BP Blg. 22
imputed to accused sometime in the latter part of
1995, as it was within this period that the accused
was notified by the private complainant of the fact of
dishonor of the subject checks and, the five (5) days
grace period granted by law had elapsed. The
private complainant then had, pursuant to Act 3326,
four years there from or until the latter part of 1999
to file her complaint or information against the
petitioner before the proper court.
120 | P a g e
 Blameless ignorance doctrine - Generally, the
prescriptive period shall commence to run on the
day the crime is committed. An exception to this
rule is the "blameless ignorance" doctrine,
incorporated in Section 2 of Act No. 3326. Under
this doctrine, "the statute of limitations runs only
upon discovery of the fact of the invasion of a right
which will support a cause of action. Considering
that during the Marcos regime, no person would
have dared to assail the legality of the transactions
involving cronies such as behest loan, it would be
unreasonable to expect that the discovery of the
unlawful transactions was possible prior to 1986
(Disini vs. Sandiganbayan, G.R. No. 169823-24 and
174764-65, September 11, 2013). Hence, the
prescriptive period for violation of RA No. 3019
commenced from the date of its discovery in 1992
after the Committee made an exhaustive
investigation (Presidential Ad hoc fact-finding
committee vs. Hon. Desierto, G.R. No. 135715, April
13, 2011)

INTERRUPTION OF PRESCRIPTION Under

Act No. 3326, the running of the prescription of
offense punishable under special law shall be
interrupted when judicial proceedings for
investigation and punishment are instituted
against the guilty person. The proceeding is
described as judicial since when Act No. 3326 was
passed on December 4, 1926, preliminary
investigation of criminal offenses was conducted by
justices of the peace. Considering that preliminary
investigation in criminal case for purposes of
prosecution has become the exclusive function of
the executive branch, the term proceedings should
now be understood either executive or judicial in
121 | P a g e
 character: executive when it involves the
investigation phase and judicial when it refers to the
trial and judgment stage. Hence, institution of
proceeding, whether executive or judicial, interrupts
the running of prescriptive period (Panaguiton vs.
Department of Justice, G.R. No. 167571, November
25, 2008).

Thus, the commencement of the following

proceedings for the prosecution of the accused
effectively interrupted the prescriptive period for the
offense charged: (1) Filing of complaint for violation
of BP 22 with the Office of the City Prosecutor
(Panaguiton vs. Department of Justice, supra); (2)
Filing of complaint for violations of the Revised
Securities Act and the Securities with the Securities
and Exchange Commission (SEC vs. Interport
Resources Corporation, G.R. No. 135808, October 6,
2008, the Supreme Court En Banc); and (3) Filing of
complaint for violation of RA No. 3019 with the
Office of the Ombudsman (Disini vs.
Sandiganbayan, G.R. No. 169823-24 and 174764-
65, September 11, 2013)
Exceptions:

1. Violation of ordinance In Zaldivia v. Reyes,

Jr., G.R. No. 102342, July 3, 1992 - The proceedings
referred to in Section 2 of Act No. 3326 are judicial
proceedings (which does not include administrative
proceedings). Thus, a crime such as violation of
ordinance may prescribe even if the complaint is
filed seasonably with the prosecutor's office if,
intentionally or not, he delays the institution of the
necessary judicial proceedings until it is too late.

122 | P a g e
 In Jadewell Parking Systems Corp. vs. Lidua,
Sr., GR No. 169588, Oct. 7, 2013, the Supreme
Court applied the Zaldivia principle to prescription of
violation of ordinance. In this case, what is involved
in this case is violation of ordinance of Baguio City,
a chartered city. Accordingly, when the
representatives of the petitioner filed the Complaint
before the Provincial Prosecutor of Baguio, the
prescription period was running. It continued to run
until the filing of the Information. They had two
months to file the Information and institute the
judicial proceedings by filing the Information with
the Municipal Trial Court.

While the case of Pangilinan categorically

abandoned the Zaldivia principle, the Supreme
Court in Jadewell case ruled the doctrine of
Pangilinan pertains to violations of special laws
but not to ordinances. In sum, if what is involved is
prescription of violation of special law, institution of
administrative proceeding for investigation
interrupts the prescriptive period. Zaldivia is not
controlling. If what is involved is prescription of
violation of ordinance, institution of judicial
proceeding is required to interrupt the running of
prescription. Zaldivia case is controlling.

2. Invalid proceeding In People vs.

Romualdez and Sandiganbayan, G.R. No. 166510,
April 29, 2009 - The investigatory power of the
PCGG extended only to alleged ill-gotten wealth
cases, absent previous authority from the President
for the PCGG to investigate such graft and
corruption cases involving the Marcos cronies.
Accordingly, the preliminary investigation
conducted by the PCGG leading to the filing of the
first information is void ab initio, and thus could not
123 | P a g e
 be considered as having tolled the fifteen (15)-year
prescriptive period for violation of RA No. 3019.
After all, a void ab initio proceeding such as the first
preliminary investigation by the PCGG could not be
accorded any legal effect.

MARRIAGE IN RAPE

There are two rules under Article 334 of RPC in

connection with marriage as a mode of criminal
extinction. First, in cases of seduction, abduction,
acts of lasciviousness and rape, the marriage of the
offender with the offended party shall extinguish
the criminal action or remit the penalty already
imposed upon him. Second, the provisions of this
paragraph shall also be applicable to the co-
principals, accomplices and accessories after the
fact of the abovementioned crimes.

According to Regalado, since rape is now a

crime against person, it should be considered ad
deleted from the text of Article 334. In case of rape,
the applicable rule is Article 266-C of RPC as
amended by RA 8353. Under this provision,
subsequent marriage between the offender and
offended party shall extinguish the criminal action
or penalty. It seems that RA 8353 adopted the first
rule in Article 344 of RPC but not the second rule.
Hence, marriage between the offender and offended
party will not extinguish the criminal liability of the
co-principal, accomplice or accessory of the crime
of rape

PROBATION

124 | P a g e
 Probation distinguished from parole and pardon
(1) Grant of probation is judicial while that of
parole and pardon is executive. (2) Probation and
parole are suspension sentence while pardon is
remission of penalty. (3) Offender can only apply for
probation within the period of perfecting an appeal;
offender is eligible for pardon after conviction by
final judgment; offender is eligible for parole after
serving the minimum of the indeterminate penalty.
(4) Offender, who was sentenced to suffer a penalty
of more than 6 years of imprisonment, is
disqualified to apply for probation. Offender, who
was sentence to suffer reclusion perpetua or death
penalty, is not qualified for parole. However, the
President can pardon offender even if the penalty
imposed upon him is reclusion perpetua or death
penalty.

a. Mutual exclusive remedies - Probation is not

a right but a mere privilege, an act of grace and
clemency conferred by the State, and may be
granted by the court to a deserving defendant.
Accordingly, the grant of probation rests solely upon
the discretion of the court. It is to be exercised
primarily for the benefit of organized society, and
only incidentally for the benefit of the accused
(Almero vs. People, GR No. 188191, March 12,
2014).

Probation is a special privilege granted by the

state to a penitent qualified offender. It essentially
rejects appeals and encourages an otherwise eligible
convict to immediately admit his liability and save
the state of time, effort and expenses to jettison an
appeal. The law expressly requires that an accused
must not have appealed his conviction before he can
avail of probation. This outlaws the element of
125 | P a g e
speculation on the part of the accused to wager
on the result of his appeal that when his
conviction is finally affirmed on appeal he now
applies for probation as an escape hatch thus
rendering nugatory the appellate court's affirmance
of his conviction (Almero vs. People, GR No. 188191,
March 12, 2014).

Aside from the goals of according expediency

and liberality to the accused, the rationale for the
treatment of appeal and probation as mutually
exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for
probation is deemed to have accepted the judgment.
The application for probation is an admission of guilt
on the part of an accused for the crime which led to
the judgment of conviction. This was the reason why
the Probation Law was amended: precisely to put a
stop to the practice of appealing from judgments of
conviction even if the sentence is probationable
for the purpose of securing an acquittal and
applying for the probation only if the accused fails in
his bid (Almero vs. People, GR No. 188191, March
12, 2014).

While accused did not file an appeal before

applying for probation, he assailed the validity of the
conviction in the guise of a petition supposedly
assailing the denial of probation. In so doing, he
attempted to circumvent P.D. No. 968, as amended
by P.D. 1990, which seeks to make appeal and
probation mutually exclusive remedies (Almero vs.
People, GR No. 188191, March 12, 2014).
b. Non-probationable offense - The accused,
who was convicted by the lower court of a non-
probationable offense (frustrated homicide), but on

126 | P a g e
 appeal was found guilty of a probationable offense
(attempted homicide), may apply for probation upon
remand of the case to the RTC because of the
following reasons: (1) The Probation Law never
intended to deny an accused his right to probation
through no fault of his. The underlying philosophy
of probation is one of liberality towards the accused.
Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions;
(2) If the accused will not be allowed to apply for
probation, he will be made to pay for the trial
courts erroneous judgment with the forfeiture of his
right to apply for probation; (3) While it is true that
probation is a mere privilege, the accused has the
right to apply for that privilege; (4) It is true that
under the probation law the accused who appeals
"from the judgment of conviction" is disqualified
from availing himself of the benefits of probation.
But, as it happens, two judgments of conviction
have been meted out to accused: one, a conviction
for frustrated homicide by the regional trial court,
now set aside; and, two, a conviction for attempted
homicide by the Supreme Court (Colinares vs.
People, G.R. No. 182748, December 13, 2011). The
SC reaffirmed the Colinares case in Villareal vs.
People, G.R. No. 151258, December 1, 2014,
accused was convicted of homicide, a non-
probationable crime, by the trial court. However, the
SC found them liable for reckless imprudence
resulting in homicide, which is a probationable
crime, because of lack of dolo. They can still apply
for probation.
CRIMES AGAINST FUNDEMENTAL LAW

UNLAWFUL ARREST AND ARBITRARY

DETENTION

127 | P a g e
 In unlawful arrest, the private individual or
public officer in its private capacity arrests or
detains the victim without reasonable ground or
legal authority for purpose of delivering him to the
proper judicial authority. In arbitrary detention, the
public officer, who has authority to make arrest,
detains the victim without legal grounds (People vs.
Bringas G.R. No. 189093, April 23, 2010) for the
purpose of: (1) Delivering him to judicial authority
(U.S. us. Gellada, 15 Phil. 120); (2) Conducting
criminal investigation (People vs. Oliva, 95 Phil. 962;
U.S. vs. Agravante, G.R. No. 3947, January 28,
1908); or (3) Determining if he committed or is
committing a crime [U.S. vs. Hawchaw, G.R. No. L-
6909, February 20, 1912].

Arbitrary detention is a crime against

fundamental law of the law or the Constitution. A
public officer, who is vested with the authority to
detain or to order the detention of a person accused
of a crime, is acting in behalf of the State in
arresting or detaining a person. If such public officer
detained a person in violation of his constitutional
right against unreasonable seizure (or not in
accordance with Section 5, Rule 113 of the Revised
Rules of Criminal Procedure), the crime committed is
arbitrary detention. Unlawful arrest is a crime
against personal liberty and security. A public
officer, who is not vested with the authority to detain
or to order the detention of a person (e.g.
stenographer, researcher or municipal treasurer), is
not acting in behalf of the State in making a
warrantless arrest. Such public officer acting in his
private capacity (or a private individual) could not
violate the Constitution (People vs Marti, G.R. No.
81561, January 18,1991); hence, if he arrests or
detains a person not in accordance with Section 5,
128 | P a g e
Rule 113 of the Revised Rules of Criminal Procedure,
the crime committed is unlawful arrest. The
essence of this crime is not violation of fundamental
law of the law but deprivation of liberty of the victim.

CRIMES AGAINST PUBLIC INTEREST

FALSIFICATION

Affidavit - In Lonzanida vs. People, G.R. Nos.

160243-52, July 20, 2009, Justice De Castro -
Petitioner as mayor, who is authorized to administer
oath, attested to the fact that the affiants swore and
signed their affidavits in his presence when in fact
they never did. He committed falsification by causing
it to appear that persons have participated in an act
or proceeding when in fact and in truth, they did not
participate in the act or proceeding.
Commercial document - Commercial
documents are, in general, documents or
instruments which are used by merchants or
businessmen to promote or facilitate trade or credit
transactions. Promissory notes facilitate credit
transactions while a check is a means of payment
used in business in lieu of money for convenience in
business transactions. A cashiers check necessarily
facilitates bank transactions for it allows the person
whose name and signature appear thereon to encash
the check and withdraw the amount indicated
therein (Tanenggee vs. People, GR No. 179448, June
26, 2013).

Damage as an element - Is intent to cause

damage an element of falsification of public or
official document? No. In falsification of public or
official documents, it is not necessary that there be

129 | P a g e
present the idea of gain or the intent to injure a third
person because in the falsification of a public
document, what is punished is the violation of the
public faith and the destruction of the truth as
therein solemnly proclaimed (Regidor, Jr., vs. People,
G. R. Nos. 166086-92 Feb. 13, 2009).

Falsification and estafa, malversation or theft

When the offender commits falsification of

public, official or commercial document as a
necessary means to commit malversation (People vs.
Barbas, G.R. No. L-41265, July 27, 1934), estafa
(Ilumin vs. Sandiganbayan, G.R. No. 85667,
February 23, 1995; Intestate Estate of Gonzales vs.
People, G.R. No. 181409, February 11, 2010; Ambito
vs. People, G.R. No. 127327, February 13, 2009,
Justice De castro, Tanenggee vs. People, GR No.
179448, June 26, 2013) or theft (People vs. Salonga,
G.R. No. 131131, June 21, 2001), the crime
committed is complex crime proper under Article 48
of RPC.

If the public officer is an accountable officer,

misappropriation of public funds is malversation
(People vs. Barbas). If the public officer is not an
accountable officer, misappropriation of funds is
estafa (Ilumin vs. Sandiganbayan).

Using a falsified check to defraud the bank is

estafa through falsification of commercial document
(Tanengee vs. People). Using a stolen and falsified
check to defraud the bank is theft through
falsification of commercial document (People vs.
Salonga).

130 | P a g e
 When the offender commits falsification of
public, official or commercial document as a means
to conceal malversation (People vs. Sendaydiego,
G.R. Nos. L-33252-54, January 20, 1978; People vs.
Villanueva, G.R. No. 39047, October 31, 1933, En
Banc), estafa (People vs. Monteverde, G.R. No.
139610, August 12, 2002; People vs. Benito, G.R.
No. 36979, November 23, 1932) or theft, the crimes
are separate. This is not complex crime proper since
one is not a necessary means to commit another.

Other view: If falsification is committed for

purpose of enabling the accused to commit
malversation (People vs. Silvanna, G.R. No. L-43120,
July 27, 1935; Zafra vs. People, G.R. No. 176317,
July 23, 2014) or estafa (People vs. Go, G.R. No.
191015, August 06, 20140, the accused is liable for
complex crime proper.
Under the doctrine of common element, an
element used to complete one crime cannot be
legally re-used to complete the requisites of a
subsequent crime (Regalado). The common element
of estafa or malversation and falsification is damage
to the victim. Thus, falsification of private document
and estafa cannot co-exist. The use of damage as an
element in falsification precludes the re-use thereof
to complete the elements of estafa, and vice versa.

If the falsification of a private document is

committed as a means to commit estafa, the proper
crime to be charged is falsification. If the estafa can
be committed without the necessity of falsifying a
private document, the proper crime to be charged is
estafa (Batulanon vs. People, G.R. NO. 139857,
September 15, 2006).

131 | P a g e
 If the offender commits falsification of private
document as a means to commit estafa, he is liable
for falsification only. Falsification absorbs estafa.
(See: U.S. vs Chan Tiao, G.R. No. 12609, October 30,
1917; People vs. Reyes, G.R. No. L-34516, November
10, 1931).

If a person commits falsification of private

document to conceal malversation or estafa, the
crime is malversation or estafa only. Falsification of
private document is not committed because: (a) the
use of damage as an element in estafa precludes the
re-use thereof to complete the elements of
falsification; and (b) the damage to third person is
not caused by the falsity in the document but by the
commission of estafa (See: People vs. Beng, 40 O.G.
1913).

If falsification of private document was used as a

means to commit estafa, the former was committed
ahead of the latter; hence, falsification absorbs the
element of damage of estafa. If falsification of private
document was used as a means to conceal estafa,
the latter was committed ahead of the former; hence,
estafa absorbs the element of damage of falsification.

USURPATION OF FUNCTION

Usurpation of authority is committed by

knowingly and falsely representing himself to be an
officer, agent or representative of any department or
agency of the government or of any foreign
government. Usurpation of function is committed by
performing any act under pretense of official
position pertaining to any person in authority or
public officer of the government or any foreign
government, or any agency thereof, without being
132 | P a g e
lawfully entitled to do so (Ruzol vs. Sandiganbayan,
GR Nos. 186739-960, April 17, 2013).

In Ruzol vs. Sandiganbayan, GR Nos. 186739-

960, April 17, 2013 - Accused, a mayor issued
permits to transport salvaged forest products.
According to prosecution, DENR is the only
government instrumentality that can issue the
permits to transport salvaged forest products. The
prosecution asserted that accused usurped the
official functions that properly belong to the DENR.

Accused chose to exercise the right to protect

the environment and to share in this responsibility
by exercising his authority as municipal mayoran
act which was executed with the cooperation of non-
governmental organizations, stakeholders, and
concerned citizens. His acts may be invalid but it
does necessarily mean that such mistakes
automatically justify his conviction.

There is no showing that accused possessed that

criminal mind when he in his capacity as mayor
issued the subject permits. What is clear from the
records is that accused, as municipal mayor,
intended to regulate and monitor salvaged forest
products in order to avert the occurrence of illegal
logging in the area.

Good faith is a defense in criminal prosecutions

for usurpation of official functions. The requirement
of permits to transport was accuseds decision alone;
it was a result of the collective decision of the
participants during the 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
133 | P a g e
authority and credibility to publicly object against
accuseds allegedly intended usurpation. Thus, the
presence of DENR official during the Multi-Sectoral
Assembly strengthens accuseds claim of good faith.

The DENR is not the sole government agency

vested with the authority to issue permits relevant to
the transportation of salvaged forest products,
considering that, pursuant to the general welfare
clause, LGUs may also exercise such authority.

CRIMES COMMITTED BY PUBLIC OFFICER

MALVERSATION

The essential elements common to all acts of

malversation under Article 217 of the Revised Penal
Code are: (1) That the offender be a public officer; (2)
That he had the custody or control of funds or
property by reason of the duties of his office; (3) That
he had the custody or control of funds or property by
reason of the duties of his office; (4) That those
funds or property were public funds or property for
which he was accountable; and (5) That he
appropriated, took, misappropriated or consented, or
through abandonment or negligence, permitted
another person to take them (Legrama vs.
Sandiganbayan, GR No. 178626, June 13, 2012).

Accountable officer An accountable public

officer is one who has custody or control of public
funds or property by reason of the duties of his
office. The nature of the duties of the public officer
or employee, the fact that as part of his duties he
received public money for which he is bound to
account and failed to account for it, is the factor
which determines whether or not malversation is

134 | P a g e
committed by the accused public officer or
employee. Hence, a school principal of a public high
school may be held guilty of malversation if he or
she is entrusted with public funds and
misappropriates the same (Torres vs. People, GR No.
175074, August 31, 2011).

The municipal mayor initiated the request for

obligation of allotments and certified and approved
the disbursement vouchers. The municipal
accountant obligated the allotments despite lack of
prior certification from the budget officer. Municipal
treasurer certified to the availability of funds and
released the money even without the requisite
budget officers certification. The signatures of
beneficiaries, who supposed to have received the
money, were forged. Can the mayor and accountant
be held liable for malversation even though they are
not accountable officer? Yes. Ordinarily, a
municipalitys mayor and accountant are not
accountable public officers as defined under the
law. However, a public officer who is not in charge
of public funds or property by virtue of his official
position, or even a private individual, may be liable
for malversation if such public officer or private
individual conspires with an accountable public
officer to commit malversation. In this case,
combined acts of the mayor and accountant, and
treasurer, an accountable officer, conspired to
defraud the government (People vs. Pajaro, G.R. Nos.
167860-65, June 17, 2008).

In addition, municipal mayors are chief

executives of their respective municipalities. Under
the Government Auditing Code of the Philippines, he
is responsible for all government funds pertaining to
the municipality. As a required standard procedure,
135 | P a g e
the signatures of the mayor and the treasurer are
needed before any disbursement of public funds can
be made. No checks can be prepared and no
payment can be effected without their signatures on
a disbursement voucher and the corresponding
check. In other words, any disbursement and release
of public funds require their approval. The mayor
and treasurer had control and responsibility over the
funds of the municipality. Hence, they are
accountable officers. Any unlawful disbursement or
misappropriation of the municipal funds would
make them accountable for malversation
(Evangelista vs. Hon. Sandiganbayan, G.R. No.
158413, February 08, 2012).

Intentional and culpable malversation

Malversation may be committed either through a
positive act of misappropriation of public funds or
property, or passively through negligence. To
sustain a charge of malversation, there
must either be criminal intent or criminal negligence,
and while the prevailing facts of a case may not
show that deceit attended the commission of the
offense, it will not preclude the reception of evidence
to prove the existence of negligence because both are
equally punishable for malversation (Torres vs.
People, GR No. 175074, August 31, 2011).

Even when the Information charges intentional

malversation, conviction for malversation through
negligence may still be adjudged if the evidence
ultimately proves the mode of commission of the
offense. Malversation is committed either
intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in
the perpetration of the felony. Even if the mode
charged differs from mode proved, the same offense
136 | P a g e
of malversation is involved and conviction thereof is
proper (Torres vs. People, GR No. 175074, August
31, 2011).

Presumption of malversation - Mere absence of

funds is not sufficient proof of conversion; neither is
the mere failure of the public officer to turn over the
funds at any given time sufficient to make even the
prima facie case. In fine, conversion must be
proved. However, an accountable officer may be
convicted of malversation even in the absence of
direct proof of misappropriation so long as there is
evidence of shortage in his account which he is
unable to explain.

Under Article 217, a presumption was installed

that upon demand by any duly authorized officer,
the failure of a public officer to have duly
forthcoming any public funds or property with
which said officer is accountable should be prima
facie evidence that he had put such missing funds or
properties to personal use. When these
circumstances are present, a presumption of law
arises that there was malversation of public funds or
properties. To be sure, this presumption is
disputable and rebuttable by evidence showing that
the public officer had fully accounted for the alleged
cash shortage (Legrama vs. Sandiganbayan, G.R. No.
178626, June 13, 2012).

In the crime of malversation, all that is

necessary for conviction is sufficient proof that the
accountable officer had received public funds, that
he did not have them in his possession when
demand therefor was made, and that he could not
satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the
137 | P a g e
accused is hardly necessary as long as the accused
cannot explain satisfactorily the shortage in his
accounts (Icdang vs. Sandiganbayan, G.R. No.
185960, January 25, 2012).

FAILURE TO RENDER ACCOUNTING

In People vs. Lumauig, G.R. No.166680, July 7,
2014 - Article 218 of RPC consists of the following
elements: (1) that the offender is a public officer,
whether in the service or separated therefrom; (2)
that he must be an accountable officer for public
funds or property; (3) that he is required by law or
regulation to render accounts to the Commission on
Audit, or to a provincial auditor; and (4) that he fails
to do so for a period of two months after such
accounts should be rendered.
Petitioner received cash advance for payment of
the insurance coverage of motorcycles purchased by
the Municipality in 1994. Under COA Circular,
petitioner is required to liquidate the same within 20
days after the end of the year or on ore before
January 20, 1995. To avoid liability under Article
218, he should have liquidated the cash advance
within two months from the time it was due, or on or
before March 20, 1995. Petitioner was liable for
failure to render account under Article 218 because
it took him over six years before settling his
accounts. Demand before an accountable officer is
held liable for a violation of the crime is not required.
Article 218 merely provides that the public officer be
required by law and regulation to render account.
KNOWINGLY RENDERING UNJUST JUDGEMENT

To commit the offense of knowingly rendering an

unjust judgment, the offender must be a judge who

138 | P a g e
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).
139 | P a g e
In usurpation of judicial function, the accused, who
is not a judge, attempts to perform an act the
authority for which the law has vested only in a
judge (Mioso v. Pamulag, A.M. No. P-05-2067, 31
August 2005; Pace v. Leonardo, A.M. No. P-03-1675,
6 August 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).

CRIMES AGAINST PERSONS

PARRICIDE

Parricide is committed when: (1) a person is killed;

(2) the deceased is killed by the accused; and (3) the
deceased is the father, mother, or child, whether
legitimate or illegitimate, or a legitimate other
ascendant or other descendant, or the legitimate
spouse of the accused (People vs. Gamez, GR No.
202847, October 23, 2013).

MURDER

Murder, the prosecution must prove that: (1) a

person was killed; (2) the accused killed him; (3) the
140 | P a g e
killing was attended by any of the qualifying
circumstances mentioned in Article 248; and (4) the
killing is neither parricide nor infanticide (People vs.
Camat, G.R. No. 188612, July 30, 2012

ATTEMPTED MURDER - Accused opened the

door of his vehicle and then drew a gun and shot
victim once, hitting him just below the left armpit.
Victim immediately ran at the back of the car, while
accused sped away. Is the accused liable for
attempted murder? No. Accused only shot the victim
once and did not hit any vital part of the latters
body. If he intended to kill him, accused could have
shot the victim multiple times or even ran him over
with the car. When such intent is lacking but
wounds are inflicted upon the victim, the crime is
not attempted murder but physical injuries only
(Pentecoste, Jr. vs. People, G.R. No. 167766, April 7,
2010).

EXCESSIVE CHASTISEMENT

X tied his son to a coconut tree and, there after

hit on his right eye and right leg. As a consequence,
his son sustained injuries that would heal in one
week upon medication. Is X liable for slight
physical injuries despite the fact that his intention
in beating his son is merely to discipline him? Yes.
X cannot evade criminal culpability by the
circumstance that he merely intended to discipline
his son (People vs. Sales, G.R. No. 177218, October
3, 2011).

RAPE

INTIMIDATION - It is a well-entrenched law

that intimidation in rape includes the moral kind of
141 | P a g e
intimidation or coercion. Intimidation is a relative
term, depending on the age, size and strength of the
parties, and their relationship with each other. It
can be addressed to the mind as well. For rape to
exist it is not necessary that the force or intimidation
employed be so great or of such character as could
not be resisted. It is only necessary that the force or
intimidation be sufficient to consummate the
purpose which the accused had in mind.
Intimidation must be viewed in the light of the
victim's perception and judgment at the time of the
rape and not by any hard and fast rule. It is
therefore enough that it produces fear -- fear that if
the victim does not yield to the bestial demands of
the accused, something would happen to her at the
moment or thereafter, as when she is threatened
with death if she reports the incident. Intimidation
would also explain why there are no traces of
struggle which would indicate that the victim fought
off her attacker (People vs. Leonardo G.R. No.
181036. July 6, 2010).

Tenacious resistance - Among the amendments

of the law on rape introduced under RA No. 8353 is
Section 266-D, which provides Any physical overt
act manifesting resistance against the act of rape in
any degree from the offended party, or where the
offended party is so situated as to render her/him
incapable of giving valid consent, may be accepted as
evidence in the prosecution rape (People vs.
Sabadlab, G.R. No. 175924, March 14, 2012). The
legislators agreed that Article 266-D is intended to
soften the jurisprudence on tenacious resistance
(People vs. Dulay, G.R. Nos. 144344-68, July 23,
2002, En banc). Failure to shout should not be
taken against the victim (People vs. Rivera, GR No.
200508, September 04, 2013; see: People vs. Rubio,
142 | P a g e
G.R. No. 195239, March 7, 2012; People vs. Penilla,
GR No. 189324, March 20, 2013). It necessary for
the victim to sustain physical injuries. She need not
kick, bite, hit or scratch the offender with her
fingernails to prove that she had been defensive. It
is sufficient that she yielded because of a real
application of bodily harm (People vs. Torres, G.R.
No. 134766, January 16, 2004). The use of a
weapon, by itself, is strongly suggestive of force or at
least intimidation, and threatening the victim with a
gun is sufficient to bring her into submission (People
vs. Tubat, G.R. No. 183093, February 1, 2012;
People vs. Penilla, GR No. 189324, March 20, 2013).

In incestuous rape of a minor, actual force or

intimidation need not even be employed where the
overpowering moral influence of appellant, who is
private complainants father, would suffice (People
vs. Samandre, G.R. No. 181497, February 22, 2012)
In rape committed by a father, his moral ascendancy
and influence over the victim substitute for the
requisite force, threat, and intimidation, and
strengthen the fear which compels the victim to
conceal her dishonor (People vs. Ortega, G.R. No.
186235, January 25, 2012; People vs. Broca, GR No.
201447, January 09, 2013 People vs. Candellada,
G.R. No. 189293, July 10, 2013, Justice De
Castro). The absence of violence or offer of
resistance would not affect the outcome of the case
because the overpowering and overbearing moral
influence of the father over his daughter takes the
place of violence and offer of resistance required in
rape cases committed by an accused who did not
have blood relationship with the victim (People vs.
Osma, G.R. No. 187734, August 29, 2012, Justice
De Castro). In People vs. Abanilla, G.R. Nos.
148673-75, October 17, 2003, En Banc - Being the
143 | P a g e
father, appellants force or threat was sufficient to
create fear in the mind of the complainant
compelling her to submit to his sexual abuse.
Sweetheart theory - The sweetheart theory, as
a defense, necessarily admits carnal knowledge, the
first element of rape. This admission makes the
sweetheart theory more difficult to defend, for it is
not only an affirmative defense that needs
convincing proof; after the prosecution has
successfully established a prima facie case, the
burden of evidence is shifted to the accused, who
has to adduce evidence that the intercourse was
consensual (People vs. Deligero, GR No. 189280,
April 17, 2013).

Sweetheart defense will not exculpate accused

from liability for rape against mentally retarded
person. In the rape of a woman deprived of reason or
unconscious, the victim has no will. The absence of
will determines the existence of the rape. Such lack
of will may exist not only when the victim is
unconscious or totally deprived of reason, but also
when she is suffering some mental deficiency
impairing her reason or free will. Carnal knowledge
of a woman so 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

144 | P a g e
subjected to other sexual abuse cannot validly give
consent to sexual intercourse with another person
(Caballo vs. People, GR No. 198732, June 10, 2013).

MENTAL RETARDATION In People vs. Dalan,

G.R. No. 203086, June 11, 2014 - The term
statutory rape should only be confined to situations
where the victim of rape is a person less than 12
years of age. If the victim of rape is a person with
mental abnormality, deficiency, or retardation, the
crime committed is simple rape committed against a
person "deprived of reason" . In short, carnal
knowledge with a mental retardate with mental age
of below 12 years, while akin to statutory rape
should still be designated as simple rape. At any
rate, proof of force, threat or intimidation is
dispensed with in both statutory rape and rape with
a person who is deprived of reason.
In rape, the phrase "deprived of reason" refers to
mental abnormality, deficiency or retardation, which
includes (a) idiot (equivalent to two-year old child);
(b) imbecile (seven-year old child); (c) moron or
feebleminded (twelve-year old child) and (d)
borderline intelligence. A person is guilty of rape
when he had sexual intercourse with a female who
was suffering from a "borderline mental deficiency
(People vs. Butiong, G.R. No. 168932, October 19,
2011; G.R. No. 140209, December 27, 2002, People
vs. Dalandas)

Intimidation - Mental retardation was not

alleged in the information. However, the accused can
be convicted of with rape though intimidation alleged
in the Information. Having sex with a mentally

145 | P a g e
retarded person even with consent constitutes rape
through intimidation (People vs. Balatazo, G.R. No.
118027, January 29, 2004).

Demented person - The term demented refers to

a person who has dementia, which is a condition of
deteriorated mentality, characterized by marked
decline from the individuals former intellectual level
and often by emotional apathy, madness, or
insanity. On the other hand, the phrase deprived of
reason includes those suffering from mental
abnormality, deficiency, or retardation. Thus, a
mental retardate can be properly classified as a
person who is deprived of reason, and not one who
is demented.

Accused was charged in the Information with

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

Accused was charged in the Information with

rape of a demented person with mental capacity
below 18 years old. Evidence however shows that the
victim is not demented but mentally retarded.
Mistake in the information will not exonerate the
accused he failed to raise this as an objection, and
the particular facts stated in the Information were
protestation sufficient to inform him of the nature of
146 | P a g e
the charge against him (People vs. Ventura, Sr. GR.
No. 205230, March 12, 2014).

Deafmute - The deprivation of reason need not

be complete. Mental abnormality or deficiency is
enough. Cohabitation with a feebleminded, idiotic
woman is rape. Sexual intercourse with an insane
woman was considered rape. But a deafmute is not
necessarily deprived of reason. These circumstances
must be proven. Intercourse with a deafmute is not
rape of a woman deprived of reason, in the absence
of proof that she is an imbecile (People vs. Caoile, GR
No. 203041, June 05, 2013).

Borderline intelligence - The traditional but

now obsolescent terms applied to those degrees of
mental retardation were (a) idiot, having an IQ of 0-
19, and a maximum intellectual factor in adult life
equivalent to that of the average two-year old child;
(b)imbecile by an IQ of 20 to 49 and a maximum
intellectual function in adult life equivalent to that of
the average seven-year old child;
(c) moron or feebleminded, having an IQ of 50 to 69
and a maximum intellectual function in adult life
equivalent to that of the average twelve-year old
child. Psychiatrists and psychologists apply the term
borderline intelligence to those with IQ between 70
to 89. A person is guilty of rape when he had sexual
intercourse with a female who was suffering from a
borderline mental deficiency (People vs. Bayrante,
G.R. No. 188978, June 13, 2012 (Justice De
Castro).
STATUTORY RAPE - In statutory rape, what the
law punishes is carnal knowledge of a woman below
12 years of age. Thus, the only subject of inquiry is
the age of the woman and whether carnal knowledge

147 | P a g e
took place. The law presumes that the victim does
not and cannot have a will of her own on account of
her tender years (People vs. Dollano, Jr., GR No.
188851, October 19, 2011).

QUALIFIED RAPE - RPC punishes the rape of a

mentally disabled person regardless of the
perpetrators awareness of his victims mental
condition. However, the perpetrators knowledge of
the victims mental disability, at the time he
committed the rape, qualifies the crime (People vs.
Caoile, GR No. 203041, June 05, 2013). Since
knowledge is an element of this qualifying
circumstance, it must be formally alleged in the
information and duly proved by the prosecution
(People vs. Obogne, GR No. 199740, March 24,
2014). In People vs. Lascano, G.R. No. 192180,
March 21, 2012 the information in the present
case merely stated that the victim was blind; it did
not specifically allege that the appellant knew of her
blindness at the time of the commission of the rape.
Hence, the crime committed is simple rape.

In qualifying circumstances of minority and

relationship in rape and special aggravating
circumstance under Section 31(c) of RA No. 7610 in
sexual abuse under Section 5, the guardian must be
a person who has legal relationship with his
ward. He must be legally appointed was first (People
vs. Flores G.R. No. 188315, August 25, 2010).

MARITAL RAPE In People vs. Jumawan, G.R.

No. 187495, April 21, 2014 -
Husbands do not have property rights over their
wives bodies. Sexual intercourse, albeit within the
realm of marriage, if not consensual, is rape. This is
the clear State policy expressly legislated in Section
148 | P a g e
266-C of RPC as amended by RA No. 8353 or the
Anti-Rape Law of 1997, which provides in case it is
the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended
party shall extinguish the criminal action or the
penalty. RA No 8353 eradicated the archaic notion
that marital rape cannot exist because a husband
has absolute proprietary rights over his wifes body
and thus her consent to every act of sexual intimacy
with him is always obligatory or at least, presumed.
Husbands are once again reminded that marriage is
not a license to forcibly rape their wives. A husband
does not own his wifes body by reason of marriage.
By marrying, she does not divest herself of the
human right to an exclusive autonomy over her own
body and thus, she can lawfully opt to give or
withhold her consent to marital coitus. A husband
aggrieved by his wifes unremitting refusal to engage
in sexual intercourse cannot resort to felonious force
or coercion to make her yield. He can seek succor
before the Family Courts that can determine
whether her refusal constitutes psychological
incapacity justifying an annulment of the marriage.

CONSPIRACY - Accused are liable for two (2)

counts of rape on account of a clear
conspiracy between them, shown by their obvious
concerted efforts to perpetrate, one after the other,
the rapes. Each of them is responsible not only for
the rape committed personally by him but also for
the rape committed by the other as well (People vs.
Lascano, G.R. No. 192180, March 21, 2012).
PARDON - For crimes of seduction, abduction,
and acts of lasciviousness, pardon and marriage
extinguish criminal liability. However, pardon should
have been made prior to the institution of the

149 | P a g e
criminal actions (People vs. Dollano, Jr., GR No.
188851, October 19, 2011). Rape is no longer a
crime against chastity for it is now classified as a
crime against persons. Consequently, rape is no
longer considered a private crime or that which
cannot be prosecuted, except upon a complaint filed
by the aggrieved party. Hence, pardon by the
offended party of the offender in the crime of rape
will not extinguish the offender's criminal liability
(People vs. Bonaagua, GR No. 188897, June 06,
2011).

UNTENABLE DEFENSE - In crimes against

chastity, the medical examination of the victim is not
an indispensable element for the successful
prosecution of the crime as her testimony alone, if
credible, is sufficient to convict the accused thereof
(People vs. Ortega, G.R. No. 186235, January 25,
2012).

In Sison vs. People, G.R. No. 187229, February

22, 2012 -While petitioner was portraying AAA as a
prostitute, the latter cried. AAA's crying shows how
she might have felt after being raped by the
petitioner and yet be accused of a woman of loose
morals. The victim's moral character in rape is
immaterial where it is shown that intimidation was
used for the victim to have sex with the accused.

Time and again, we have taken into

consideration how rapists are not deterred by the
presence of people nearby, such as the members of
their own 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)

150 | P a g e
 It is not absurd nor contrary to human
experience that AAA gave birth ten (10) months after
the alleged sexual assault as there may be cases of
long gestations. In any event, we dismiss appellants
contention as immaterial to the case at bar because
jurisprudence tells us that impregnation is not an
element of rape. Whether the child which the rape
victim bore was fathered by the accused, or by some
unknown individual, is of no moment. What is
important and decisive is that the accused had
carnal knowledge of the victim against the latters
will or without her consent, and such fact was
testified to by the victim in a truthful manner (People
vs. Gahi, G.R. No. 202976, February 19, 2014,
Justice De Castro).
STAGES

CONSUMMATED RAPE If the touching" of the

female organ constitutes the sliding of the penis into
or the touching of either labia majoraor labia
minoraof the pudendum, the crime committed is
consummated rape. Anything short of that will only
result in either attempted rape or acts of
lasciviousness (People vs. Publico, April 13, 2011,
G.R. No. 183569). However, the penis that touches
the external genitalia must be capable of
consummating the sexual act to constitute
consummated rape (People vs. Butiong, G.R. No.
168932, October 19, 2011). Touching must be made
in the context of the presence or existence of an
erect penis capable of penetration (People vs.
Campuhan, G.R. No. 129433, March 30, 2000).

Circumstantial evidence - In People vs.

Castillo, GR No. 193666, February 19, 2014,
Justice De Castro - Absent any showing of the

151 | P a g e
slightest penetration of the female organ, i.e,
touching of either labia of the pudendum by the
penis, there can be no consummated rape. However,
even though the victim testified that there was no
penetration and the accused simply rubbed his
penis in the victim's vagina, accused will be
convicted of consummated Rape if there are evidence
that the pain felt by the victim, the sex organ of the
victim suffered injury, and there is bleeding of the
victim's genitalia.

Hymen is intact - Sexual penetration even

without laceration of the hymen or even the briefest
of contact consummates rape (People vs. Pangilinan,
G.R. No. 183090, November 14, 2011). It is possible
for the victims hymen to remain intact despite
repeated sexual intercourse. Likewise, whether the
accuseds penis fully or only partially penetrated the
victims genitalia, it is still possible that her hymen
would remain intact because it was thick and
distensible or elastic. The strength and dilability of
the hymen varies from one woman to another such
that it may be so elastic as to stretch without
laceration during intercourse, or on the other hand,
may be so resistant that its surgical removal is
necessary before intercourse can ensue. In some
cases even, the hymen is still intact even after the
woman has given birth (People vs. Deligero, GR No.
189280, April 17, 2013; People vs. Broca, GR No.
201447, January 09, 2013).

ATTEMPTED RAPE If the touching merely

constitutes an epidermal contact, stroking or grazing
of organs, a slight brush or a scrape of the penis on
the external layer of the victims vagina, or the mons
pubis, the crime committed is either attempted rape
or acts of lasciviousness (People v. Campuhan, G.R.
152 | P a g e
No. 129433, March 30, 2000). Attempted rape is
committed when the touching of the vagina by the
penis is coupled with the intent to penetrate;
otherwise, there can only be acts of
lasciviousness. The difference between attempted
rape and acts of lasciviousness lies in the intent of
the perpetrator as deduced from his external acts.
(People vs. Dadulla, G. R. No. 172321, February 9,
2011; People vs. Collado G.R. Nos. 135667-70,
March 1, 2001).

To be held liable of attempted rape, it must be

shown that erectile penis is in the position to
penetrate (Cruz vs. People, G.R. No. 166441, October
08, 2014) or the offender actually commenced to
force his penis into the victim's sexual organ (People
vs. Banzuela, G.R. No. 202060, December 11, 2013,
Justice De Castro).

Mother of the victim saw X was kneeling before

victim whose pajamas and panty were already
removed, while his short pants were down to his
knees. Accused was forcing his penis into victims
vagina. Horrified, she cursed the accused and boxed
him several times. Is X liable for acts of
lasciviousness or attempted rape? X should be held
liable for attempted rape since it was not shown that
his penis was able to penetrate vagina of victim
however slight (People vs. Campuhan, G.R. No.
129433, March 30, 2000, En Banc). Intent to have
sexual intercourse was clearly established in this
case.

The victims statements that the accused was

trying to force his sex organ into mine and
binundol-undol ang kanyang ari did not prove that
the accuseds penis reached the labia of the
153 | P a g e
pudendum of the victims vagina. Accused was
convicted of attempted rape (People vs. Pareja, G.R.
No. 188979, September 5, 2012).

ACTS OF LASCIVIOUNESS - The elements of

acts of lasciviousness, punishable under Article 336
of the RPC, are: (1) That the offender commits any
act of lasciviousness or lewdness; (2) That it is done
under any of the following circumstances: a. By
using force or intimidation; or b. When the offended
party is deprived of reason or otherwise
unconscious; or c. When the offended party is under
12 years of age; and (3) That the offended party is
another person of either sex (People vs. Garcia, G.R.
No. 200529, September 19, 2012; (People vs. Rellota,
GR No. 168103 , August 03, 2010). The modes of
committing acts of lasciviousness are the same as
those of committing rape under the old version.

Undressing the victim (People vs. Sanico, G.R.

No. 208469, August 13, 2014) or touching her
vagina by the hand of the accused (People vs.
Banzuela) or rubbing his penis on the mons pubis of
the pudendum (People vs. Abanilla, G.R. Nos.
148673-75, October 17, 2003) is merely acts of
lasciviousness.

RAPE THROUGH SEXUAL ASSAULT

It is commonly denominated as organ rape or

penile rape and must be attended by any of the
circumstances enumerated in subparagraphs (a) to
(d) of paragraph 1. On the other hand, rape under
paragraph 2 of Article 266-A is commonly known as
rape by sexual assault. The perpetrator, under any
of the attendant circumstances mentioned in
paragraph 1, commits this kind of rape by inserting
154 | P a g e
his penis into another persons mouth or anal
orifice, or any instrument or object into the genital
or anal orifice of another person. It is also called
instrument or object rape, also gender-free rape
(People vs. Soria, G.R. No. I 79031, November 14,
2012).

A, a child, testified that X touched her private

part and licked it but he did not insert his finger
inside her vagina. What is the crime committed?
Answer: If the tongue, in an act of cunnilingus,
touches the outer lip of the vagina, the act should
also be considered as already consummating the
crime of rape through sexual assault, not the crime
of acts of lasciviousness. This testimony of the
victim, however, is open to various interpretation,
since it cannot be identified what specific part of the
vagina was defiled by X. Thus, X cannot be convicted
of rape through sexual assault. Thus, X is liable for
acts of lasciviousness (People vs. Bonaagua, GR No.
188897, June 06, 2011).

Prior to RA No. 8353, rape through sexual

assault is considered as acts of lasciviousness.
However, upon the passage of RA No. 8353, acts,
which were as acts of lasciviousness before, are now
treated as rape through sexual assault. However, the
concept of rape through sexual assault has not
acquired some of the characteristic of acts of
lasciviousness.

1. Doctrine of absorption If the accused

commits rape and acts of lasciviousness, the latter is
absorbed by the former (People vs. Dy, G.R. Nos.
115236-37, January 29, 2002). But if the accused
commits rape through sexual intercourse and rape
through sexual abuse, the doctrine of absorption is
155 | P a g e
not applicable. The accused will be convicted of
separate crimes of rape through sexual intercourse
and rape through sexual abuse.

In People vs. Crisostomo, GR No. 196435,

January 29, 2014 Accused on the same occasion
inserted a lit cigarette stick into genital orifice of
victim (6 years of age) and her anal orifice, and had
sexual intercourse with her. He is guilt for two
counts of rape by sexual assault and rape through
sexual intercourse.

In People vs. Espera, G.R. No. 202868, October

02, 2013 - Justice De Castro Accused inserted his
penis into the mouth of the victim, and thereafter,
rape her. He was convicted of rape through sexual
assault by inserting his penis into the mouth of the
victim and rape by sexual intercourse. Doctrine of
absorption was not applied.
2. Variance rule If the crime charged is rape,
but the crime proven is acts of lasciviousness, the
accused will be convicted of the latter because of the
variance rule. Acts of lasciviousness is necessarily
included in the charge of rape.
If the crime charged is rape through sexual
intercourse, but the crime proven is rape through
sexual assault, the accused cannot be convicted of
the latter. The variance rule is not applicable since
rape through sexual assault is not necessarily
included in the charge of rape through sexual
intercourse. The elements of these two crimes are
materially and substantially different. In such case,
the accused will be convicted of acts of
lasciviousness (People vs. Pareja, GR No. 202122,
January 15, 2014, Justice De Castro; People vs.
Cuaycong, G.R. No. 196051, October 02, 2013,
156 | P a g e
Justice De Castro; People vs. CA, G.R. No. 183652,
February 25, 2015).
CHILD PROSTITUION AND SEXUAL ABUSE

Sexual abuse under Section 5(b) of R.A. No.

7610 has three elements: (1) the accused commits
an act of sexual intercourse or lascivious conduct;
(2) the said act is performed with a child exploited in
prostitution or subjected to other sexual abuse; and
(3) the child is below 18 years old.

Sexual abuse and lascivious conduct - "Sexual

abuse" includes the employment, use, persuasion,
inducement, enticement or coercion of a child to
engage in, or assist another person to engage in,
sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children;

"Lascivious conduct" means the intentional

touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or
pubic area of a person (Section 2(g) and (h) of the
Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases)

Child exploited in prostitution or subject to

other sexual abuse - Children, whether male or
female, who for money, profit, or any other
consideration or due to the coercion or influence of
any adult, syndicate or group, indulge in sexual

157 | P a g e
intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual
abuse (Section 5 of RA No 7610).

The averments in the information against the

accused clearly make out a charge for sexual abuse
under Section 5(b) of RA No. 7610 although the
caption charged him with child abuse under Section
10 (a). However, the character of the crime is not
determined by the caption or preamble of the
information nor from the specification of the
provision of law alleged to have been violated (People
vs. Rayon, G.R. No. 194236, January 30, 2013)

Sexual intercourse or lascivious conduct under

the coercion or influence of any adult exists
when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the
offended partys free will (Caballo vs. People, GR No.
198732, June 10, 2013).

Accused (23 years of age) repeatedly assured the

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

The Information alleged that accused committed

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

Child 12 years of age or above X taking

advantage of his ascendancy committed sexual
intercourse with his daughter (15 years of age). What
crime can X be prosecuted for? The child is under
the influence of an adult. This is sexual abuse under
Section 5 (b) of RA No. 7610. The act is committed
with psychological intimidation or grave abuse
authority. This is rape. Hence, X can be prosecuted
for either (1) sexual abuse under violation of RA No.
7610; or rape under Article 266-A of RPC. X should
not be charged for Rape in relation to sexual abuse.
Existing jurisprudence, however, proscribes
159 | P a g e
charging an accused for both crimes, rather, he may
be charged only for either (Alberto vs. Hon. Court of
Appeals, GR No. 182130, June 19, 2013). X cannot
be accused of both crimes for the same act because
his right against double jeopardy will be prejudiced.
A person cannot be subjected twice to criminal
liability for a single criminal act. Likewise, rape
cannot be complexed with a violation of Section 5(b)
of RA 7610. Under Section 48 of RPC, a felony
cannot be complexed with an offense penalized by a
special law (People v. Abay, G.R. No. 177752,
February 24, 2009; People vs. Pangilinan, G.R. No.
183090, Nov. 14, 2011, , People v. Dahilig, G.R. No.
187083, June 13, 2011, People v. Matias, G.R. No.
186469, June 13, 2012 and Alberto vs. Hon. Court
of Appeals, G.R. No. 182130, June 19, 2013).

Child under 12 years Those who commit the

act of sexual intercourse or lascivious conduct with
a child exploited in prostitution or subject to other
sexual abuse; Provided, That when the victims is
under twelve (12) years of age, the perpetrators shall
be prosecuted for rape and for rape or lascivious
conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is
under twelve (12) years of age shall be reclusion
temporal in its medium period (Section 5).

X taking advantage of his ascendancy

committed sexual intercourse with his daughter (9
years of age). What crime can X be prosecuted for?
The child, who is under the influence of an adult, is
under 12 years of age. Hence, X should be
prosecuted for statutory rape. Section 5 (b) of RA No.
7610 provides that when the victim (child subjected
to sexual abuse) is under 12 years of age, the

160 | P a g e
perpetrators shall be prosecuted for rape (People vs.
Jalosjos, G.R. Nos. 132875-76, November 16, 2001).

Accused was convicted of rape through sexual

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

Rape through sexual assault and sexual

abuse - X forced A, a minor, in an isolated place and
inserted his finger into her vagina. (a) For what
crimes can X be prosecuted if A is 17 years of age at
the time?

Answer: X committed rape through sexual

assault, or object or instrument rape under RPC
since he inserted object, his finger, into the vaginal
orifice of A by using force. The crime of sexual abuse
under Section 5 of RA No. 7160 is also committed
since A is indulged in lascivious conduct under
coercion of an adult. However, X can only be
prosecuted either for rape or sexual abuse.
(b) Would your answer be the same if the age A
is 10 years old?

Answer: Since A, who is a child indulged in

lascivious conduct under coercion of an adult, is
under 12 years of age, X should be prosecuted for
rape through sexual assault under RPC. Under

161 | P a g e
Section 5 of RA No. 7610, when the child subjected
to sexual abuse is under twelve (12) years of age, the
perpetrators shall be prosecuted for rape under RPC
(People vs. Pangilinan, GR No. 183090, November
14, 2011, ).

(c) The penalty for rape through sexual assault

under RPC as amended by RA No. 8353 is prision
mayor while the penalty under RA No. 7610 for acts
of lasciviousness committed against a child
subjected to sexual abuse, under 12 years of age, is
reclusion temporal in its medium period. If the age of
A is 10 years old, would you impose the penalty
under RA No. 8353 or under RA No. 7610?

Answer: One who commits acts of

lasciviousness in relation to RA No. 7610 suffers the
more severe penalty of reclusion temporal in its
medium period than the one who commits rape
through sexual assault, which is merely punishable
by prision mayor. This is undeniably unfair to the
child victim. To be sure, it was not the intention of
the framers of RA No. 8353, to have disallowed the
applicability of RA No. 7610 to sexual abuses
committed to children. Despite the passage of RA No.
8353, R.A. No. 7610 is still good law, which must be
applied when the victims are children (People vs.
Chingh, G.R. No. 178323, March 16, 2011). The
penalty under RA No. 7160 should be imposed.

(d) The penalty for qualified rape through sexual

assault is reclusion temporal under RPC as
amended by RA No. 8353. If A is the 10 year-old
daughter of X, would you impose penalty penalty
under RA No. 8353 or under RA No. 7610?

162 | P a g e
 Answer: Since the crime committed is rape
through sexual assault with qualifying circumstance
of minority and relationship, the rationale of
unfairness to the child victim that Chingh case
wanted to correct is absent because RPC as
amended by RA No. 8353 already prescribes the
penalty of reclusion temporal for this crime. Hence,
there is no more need to apply the penalty
prescribed by RA No. 7610 for sexual abuse (People
vs. Bonaagua, G.R. No. 188897, June 6, 2011). The
penalty under RPC should be imposed.
CONSENT OF THE VICTIM - Is consent of the
victim a defense in rape, or child prostitution or
sexual abuse? A child exploited in prostitution may
seem to "consent" to what is being done to her or
him and may appear not to complain. However, a
child who is "a person below eighteen years of age or
those unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of their age or
mental disability or condition" is incapable of giving
rational consent to any lascivious act or sexual
intercourse (People vs. Dulay, GR No. 193854,
September 24, 2012; People vs. Delantar, G.R. No.
169143, February 2, 2007). Submissiveness of child
under influence or psychological coercion of adult is
not likewise a defense in sexual abuse (People vs.
Larin, G.R. No. 128777, October, 7 1998).

But if the sexual abuse is committed as alleged

in the information against a child, who indulges in
sexual intercourse under coercion, the prosecution
must show lack of consent on the part of the victim.
Showing that the child consented to the sexual
intercourse will negate coercion as an element of

163 | P a g e
the crime (see: People vs. Abello, G.R. No. 151952,
March 25, 2009).

CHILD PROSTITUTION

The elements of child prostitution are: (1) The

accused engages in, promotes, facilitates or induces
child prostitution; (2) The act is done through, but
not limited to, the following means: (a) Acting as a
procurer of a child prostitute; Inducing a person to
be a client of a child prostitute by means of written
or oral advertisements or other similar means; (c)
Taking advantage of influence or relationship to
procure a child as a prostitute; (d) Threatening or
using violence towards a child to engage him as a
prostitute; or giving monetary consideration, goods
or other pecuniary benefit to a child with intent to
engage such child in prostitution; (3) The child is
exploited or intended to be exploited in prostitution
and (4) The child, whether male or female, is below
18 years of age (People vs. Dulay, GR No. 193854,
September 24, 2012).

X convinced A to accompany her. When they

reached Kubuhan, X suddenly pulled A inside a
room where Y. Y gives money to X and tells her to
look for a younger girl. Thereafter, Y wielded a knife
and tied As hands to the papag and raped her. A
asked for X's help when she saw the latter peeping
into the room while she was being raped, but X did
not do so. After the rape, X and Y told A not to tell
anyone what had happened or else they would get
back at her. What is the crime committed by X?

Answer: X is not liable as principal by

indispensable cooperation. From the time X
convinced A to go with her until X received money
164 | P a g e
from Y are not indispensable in the crime of rape.
Anyone could have accompanied A and offered the
latter's services in exchange for money and A could
still have been raped. Note: Conspiracy was not
alleged in the information.

X is liable for child prostitution under Section 5

of RA No. 7610. X facilitated or induced child
prostitution. The act of X in convincing A, who was
12 years old at that time, to go with her and
thereafter, offer her for sex to a man in exchange for
money makes her liable for child prostitution (People
vs. Dulay, GR No. 193854, September 24, 2012).

CHILD ABUSE

Under Section 10 (a) of RA No. 7610, child abuse

or cruelty is committed by any person who shall
commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions
prejudicial to the childs development including
those covered by Article 59 of PD No. 603 but not
covered by the RPC.

Under Section 3 (b), "child abuse" refers to the

maltreatment, whether habitual or not, of the child
which includes any of the following: (1) Psychological
and physical abuse, neglect, cruelty, sexual abuse
and emotional maltreatment; (2) Any act by deeds or
words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human
being; (3) Unreasonable deprivation of his basic
needs for survival, such as food and shelter; or (4)
Failure to immediately give medical treatment to an
injured child resulting in serious impairment of his
growth and development or in his permanent
incapacity or death.
165 | P a g e
 Section 10 (a) punishes not only those
enumerated under Article 59 of PD No. 603, but also
four distinct acts, i.e., (a) child abuse, (b) child
cruelty, (c) child exploitation and (d) being
responsible for conditions prejudicial to the child's
development. We stress that Section 10 refers to acts
of child abuse other than child prostitution and
other sexual abuse under Section 5, attempt to
commit child prostitution under Section 6, child
trafficking under Section 7, attempt to commit child
trafficking under Section 8, and obscene
publications and indecent shows under Section 9
(People vs. Rayon, G.R. No. 194236, January 30,
2013).

In Bongalon vs. People, G.R. No. 169533, March

20, 2013 - Accused saw the victim and his
companions hurting his minor daughters. Angered,
accused struck minor-victim at the back with his
hand and slapped his face. Since the accused
committed the act at the spur of the moment, they
are perpetrated without intent to debase his
"intrinsic worth and dignity" as a human being, or to
humiliate or embarrass him. Without such intent,
the crime committed is not child abuse under RA
7610 but merely slight physical injuries.

In Rosaldes vs. People, G.R. No. 173988,

October 08, 2014 - Although the accused, as a
schoolteacher, could duly discipline her minor
student, her infliction of the physical injuries on him
was unnecessary, violent and excessive. The boy
even fainted from the violence suffered at her
hands. She could not justifiably claim that she acted
only for the sake of disciplining him. Her physical
166 | P a g e
maltreatment of him was precisely prohibited by no
less than the Family Code, which has expressly
banned the infliction of corporal punishment by a
school administrator, teacher or individual engaged
in child care exercising special parental authority.
Accused was convicted of child abuse under Section
10 (a) of RA No. 7610.
CRIMES AGAINST PROPERTY

ESTAFA
ESTAFA THROUGH MISAPPROPRIATION
The elements of estafa under Article 315, par. 1 (b)
of the Revised Penal Code are the following: (a) that
money, goods or other personal property is received
by the offender in trust or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of or to return
the same; (b) that there be misappropriation or
conversion of such money or property by the
offender, or denial on his part of such receipt; (c)
that such misappropriation or conversion or denial
is to the prejudice of another; and (d) there is
demand by the offended party to the offender
(Tabaniag vs. People, GR No. 165411, June 18,
2009; Magtira vs. People, G.R. No. 170964, March 7,
2012). However, demand is not necessary if there is
evidence of misappropriation.

Misappropriation as an element of the offense

of estafa connotes an act of using, or disposing of,
anothers property as if it were ones own, or of
devoting it to a purpose or use different from that
agreed upon. Failure to account upon demand for
funds or property held in trust without offering any
satisfactory explanation for the inability to account
167 | P a g e
is circumstantial evidence of misappropriation.
Demand for the return of the thing delivered in trust
and the failure of the accused to account are
similarly circumstantial evidence that the courts can
appreciate (Magtira vs. People, G.R. No. 170964,
March 7, 2012).

The essence of estafa under Article 315, par.

1(b) is the appropriation or conversion of money or
property received to the prejudice of the owner. The
words "convert" and "misappropriate" connote an act
of using or disposing of another's property as if it
were one's own, or of devoting it to a purpose or use
different from that agreed upon. To misappropriate
for one's own use includes not only conversion to
one's personal advantage, but also every attempt to
dispose of the property of another without right
(Tabaniag vs. People, GR No. 165411, June 18,
2009).

X received from A jewelry with obligation to

return the same if unsold or deliver the proceeds of
sale. In the acknowledgement receipt, X is prohibited
from selling jewelry the jewelry on credits or giving it
for safekeeping. X transferred the jewelry to Y, a
subagent. Y failed to return the jewelry. Is X liable
for estafa through conversion?

Answer: No. It must be pointed out that the law

on agency in our jurisdiction allows the appointment
by an agent of a substitute or sub-agent in the
absence of an express agreement to the contrary
between the agent and the principal. In the case at
bar, the appointment of sub-agent was not expressly
prohibited by A. Neither does it appear that X was
verbally forbidden by A from passing on the jewelry
to another person. Thus, it cannot be said that X's
168 | P a g e
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).

Can X be held liable for estafa through

negligence? Answer: No. In estafa, the profit or gain
must be obtained by the accused personally,
through his own acts, and his mere negligence in
permitting another to take advantage or benefit from
the entrusted chattel cannot constitute estafa
(Tabaniag vs. People, GR No. 165411, June 18,
2009).

Can X be held liable for estafa on the basis of

conspiracy? Answer: No. If an agent acted in
conspiracy with subagent in carrying out the actual
misappropriation, then the former would be
answerable for the acts of his 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,

169 | P a g e
June 18, 2009).
ESTFA THROUGH ISSUANCE OF BOUNCING
CHECK - The essential elements of estafa through
bouncing check: (1) the accused shall defraud
another by issuing or postdating check in payment
of an obligation contracted at the time the check is
issued; (2) lack or insufficiency of funds to cover the
check; (3) check was issued or postdated prior to or
simultaneously with the parting of money or
property by the payee; and (4) damage to the payee
thereof.

It is the criminal fraud or deceit in the issuance

of a check that is punishable, not the non-payment
of a debt. Prima facie evidence of deceit exists by law
upon proof that the drawer of the check failed to
deposit the amount necessary to cover his check
within three days from receipt of the notice of
dishonor. To be guilty of estafa the accused must
have used the check in order to defraud the
complainant. What the law punishes is the fraud or
deceit, not the mere issuance of the worthless check.
Accused could not be held guilty of estafa simply
because he had issued the check used to defraud
complainant. The proof of guilt must still clearly
show that it had been accused as the drawer who
had defrauded complainant by means of the check.
Complainant admitted that it was another person
who received the rice from him and who delivered
the bearer check to him (People vs. Reyes, GR No.
157943, September 04, 2013).
In order to constitute estafa under this statutory
provision, the act of postdating or issuing a check in
payment of an obligation must be the efficient cause
of the defraudation. This means that the offender
must be able to obtain money or property from the

170 | P a g e
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 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
171 | P a g e
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 released money for the initial
172 | P a g e
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
173 | P a g e
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 make an
express representation in the deed of conveyance
that the property sold or disposed of is free from any
encumbrance (Naya vs. Abing, G.R. No. 146770,
February 27, 2003, ).

THEFT

QUALIFIED THEFT - The elements of the crime

of theft are: (1) that there be taking of personal
property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4)
that the taking be done without the consent of the
owner; and (5) that the taking be accomplished
without the use of violence against or intimidation of
persons or force upon things. Theft becomes
qualified "if committed by a domestic servant, or
with grave abuse of confidence, or if the property
stolen is a motor vehicle, mail matter or large cattle,
or consists of coconuts taken from the premises of a
174 | P a g e
plantation, fish taken from a fishpond or fishery, or
if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance
(People vs. Bayon, GR No. 168627, July 02, 2010).

ABUSE OF CONFIDENCE - To warrant the

conviction and, hence, imposition of the penalty for
qualified theft, there must be an allegation in the
information and proof that there existed between the
offended party and the accused such high degree of
confidence]or that the stolen goods have been
entrusted to the custody or vigilance of the
accused. In other words, where the accused had
never been vested physical access to, or material
possession of, the stolen goods, it may not be said
that he or she exploited such access or material
possession thereby committing such grave abuse of
confidence in taking the property (Viray vs. People,
GR No. 205180, November 11, 2013).

In Zapanta vs. People, G.R. No. 170863, March

20, 2013 - Accused betrayed the trust and
confidence reposed on him when he, as project
manager, repeatedly took construction materials
from the project site, without the authority and
consent of Engr. Marigondon, the owner of the
construction materials. He is liable for qualified
theft.

Taking committed by accused cannot be

qualified by the breaking of the door, as it was not
alleged in the Information. Moreover, the same
breaking of the door does not constitute the
qualifying element of grave abuse of confidence. The
very fact that accused forced open the main door
because he was denied access to complainants
175 | P a g e
house negates the presence of such confidence in
him by private complainant. Without ready access to
the interior of the house where the properties were
taken, it cannot be said that complaint had a firm
trust on accused and that the same trust facilitated
taking of the personal properties (Viray vs. People,
GR No. 205180, November 11, 2013).

If the subject matter of a crime against property

was money, identity of the offended party is material
and necessary for the proper identification of the
offense charged. Since money is generic and has no
earmarks that could properly identify it, the only
way that it (money) could be described and identified
in a complaint is by connecting it to the offended
party or the individual who was robbed as its owner
or possessor. Thus, the erroneous designation of the
offended party would also be material, as the subject
matter of the offense could no longer be described
with such particularity as to properly identify the
offense charged (Senador vs. People, GR No. 201620,
March 06, 2013).

If the subject matter of a crime against property

is specific or one described with such particularity
as to properly identify the offense charged, then an
erroneous designation of the offended party is not
material and would not result in the violation of the
accuseds constitutional right to be informed of the
nature and cause of the accusation against her.
Such error would not result in the acquittal of the
accused (Senador vs. People, GR No. 201620, March
06, 2013).

Accused asserted that the person named as the

offended party in the Information is not the same
person who made the demand and filed the
176 | P a g e
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
accuseds constitutional right to be informed of the
nature and cause of the accusation against her.

THEFT THROUGH MISAPPROPRIATION -

Misappropriation of personal property in possession
177 | P a g e
of the accused may constitute estafa or theft
depending upon the nature of possession. If his
possession of the property is physical or de facto,
misappropriation thereof is constitutive of theft. If
the possession is juridical or legal, misappropriation
thereof is estafa through misappropriation.

1. Agency - A travelling sales agent, who failed

to return to his principal the proceeds of goods he
was commissioned or authorized to sell, is liable for
estafa because his possession is juridical. Under the
Civil Code Article 1914 of the Civil Code, an agent
can even assert, as against his own principal, an
independent, autonomous, right to retain money or
goods received in consequence of the agency; as
when the principal fails to reimburse him for
advances he has made, and indemnify him for
damages suffered without his fault (Guzman v. Court
of Appeals, 99 Phil. 703). On the other hand, branch
manager of the company, who misappropriate
payments from customers that he collected and
accepted, is liable for qualified theft. Because of this
employer-employee relationship, he cannot be
considered an agent of the company and is not
covered by the Civil Code provisions on agency.
Money received by an employee in behalf of his
employer is considered to be only in the material
possession of the employee (People vs. Mirto, G.R.
No. 193479, October 19, 2011).

In Carganillo vs. People, G.R. No. 182424,

September 22, 2014 Accused received money from
complainant for the purpose of buying palay with
the corresponding obligations to (1) deliver
the palay to the Palay Buying Station or (2) return

178 | P a g e
the money in case of failure to purchase palay.
Possession is juridical. Failure to return is estafa.
In Tria vs. People, G.R. No. 204755, September
17, 2014 - By selling the jewelry on credit, the
petitioner used the property for a purpose other than
that agreed upon. The words convert and
misappropriate connote an act of using or
disposing of anothers property as if it were ones
own or devoting it to a purpose or use different from
that agreed upon.
In Velayo vs. People, G.R. No. 204025, November
26, 2014 Accused induced to complainant to
entrust to her the funds for the taxes because she
knew someone at the BIR who could help her
facilitate the remittance, and even reduce the
amounts due. She received the money for remit the
same to the BIR with full freedom and discretion.
Thus, she had juridical possession of money. The
crime committed is estafa,
2. Employer-employee relationship As a
rule, the possession of the employee is only physical
possession. Hence, misappropriation of property is
considered as theft. If the property is accessible to
the employee, the qualifying circumstance of abuse
of confidence can be appreciated.

In People v. Locson, G.R. No. L-35681, October

18, 1932 - The receiving teller of a bank, who
misappropriated the money received by him for the
bank, is liable for qualified theft. The possession of
the teller is the possession of the bank. Payment by
third persons to the teller is payment to the bank

179 | P a g e
itself. The teller has no independent right or title to
retain or possess the same as against the bank.

In Balerta vs. People, G.R. No. 205144,

November 26, 2014 Accused was handling the
funds lent by Care Philippines to his employer as
cash custodian. Over the funds, she had mere
physical or material possession, but she held no
independent right or title, which she can set up
against employer. Hence, juridical possession of the
funds as an element of the crime of estafa by
misappropriation is absent.
In Benabaye vs. People, G.R. No. 203466,
February 25, 2015 - Accused was merely
a collector of loan payments from clients of his
employer. Hence, as an employee of the Bank,
specifically, its temporary cash custodian whose
tasks are akin to a bank teller, she had no juridical
possession over the missing funds but only their
physical or material possession. Since the accused
was charged with estafa, but the crime proven is
theft, the case was dismissed without prejudice,
Driver of jeepney under boundary arrangement,
who did not return the vehicle to its owner, is liable
for carnapping. In People v. Isaac G.R. No. L-7561,
April 30, 1955, the rules prohibits motor vehicle
operator from allowing the use and operation of his
equipment by another person under a fixed rental
basis. In the eye of the law the driver was only an
employee of the owner rather than a lessee. For
being an employee, his possession of the jeepney is
physical, and misappropriation thereof is qualified
theft. In People vs. Bustinera, G. R. No. 148233,
June 8, 2004, the Supreme Court affirmed the
principle in Isaac case, but found the accused guilty

180 | P a g e
of carnapping in view of the passage of RA No.
6539(Anti-Carnapping Act).

However, there are instances where the

possession of the employee is considered as
juridical.
1. In Aigle vs. People, G.R. No. 174181, June 27,
2012 - A corporate officer received the property to be
utilized in the fabrication of bending machines in trust
from the corporation and he has absolute option on
how to use them without the participation of the
corporation. Upon demand, the officer failed to
account the property. Since the corporate officer
received the property in trust with absolute option
on how to use them without the participation of the
corporation, he acquired not only physical
possession but also juridical possession over the
equipment. He is liable for estafa through
misappropriation.

2. In People vs. Go, G.R. No. 191015, August 6,

2014 The President of the Bank is holding the
banks fund in trust or for administration for the
banks benefit. His possession is juridical. Hence,
misappropriating the funds by making fictitious loan
is estafa.

3. In Gamboa vs. People, G.R. No. 188052, April

21, 2014 - Accused employed as Liaison Officer of a
pawnshop received money in trust to secure or
renew licenses and permits. His possession is
juridical. Hence, misappropriating the money is
estafa.
THEFT OF INTANGIBLE PROPERTY - The
term "personal property" in the Revised Penal Code
181 | P a g e
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.
182 | P a g e
International long distance calls take the form of
electrical energy. It cannot be said that such
international long distance calls were personal
properties belonging to PLDT since the latter could
not have acquired ownership over such calls. PLDT
merely encodes, augments, enhances, decodes and
transmits said calls using its complex
communications infrastructure and facilities. PLDT
not being the owner of said telephone calls, then it
could not validly claim that such telephone calls
were taken without its consent (Laurel vs. Abrogar).
Telephone calls belong to the persons making the
calls.

Can phreaker be held criminally liable for

engaging in ISR involving the telephone facilities of
PLDT? Yes. Phreaker can be held liable for access
device fraud under RA No. 8484 and theft under the
Revised Penal Code.PLDTs business of providing
telecommunication or telephone service is personal
property which can be the object of theft. While
telephone calls are not properties belonging to PLDT
that can be stolen, it is the use of these
communications facilities without the consent of
PLDT that constitutes the crime of theft, which is the
unlawful taking of the telephone services and
business.The act of conducting ISR operations by
illegally connecting various equipment or apparatus
to PLDTs telephone system, through which
petitioner is able to resell or re-route international
long distance calls using respondent PLDTs facilities
constitutes acts of subtraction (taking)penalized
under the said article(Laurel vs. Abrogar).

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
183 | P a g e
theft? No. In Valenzuela vs. People, G. R. No.
160188, June 21, 2007, the Supreme Court En
Banc expressly abandoned the principle in Dio case.
It was held that: The ability of the offender to freely
dispose of the property stolen is not a constitutive
element of the crime of theft. Such factor runs
immaterial to the statutory definition of theft, which
is the taking, with intent to gain, of personal
property of another without the latters consent.
While the Dio dictum is considerate to the mindset
of the offender, the statutory definition of theft
considers only the perspective of intent to gain on
the part of the offender, compounded by the
deprivation of property on the part of the victim.

Unlawful taking is deemed complete from the

moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.
Unlawful taking, which is the deprivation of ones
personal property, is the element which produces
the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution,
the offense could only be attempted theft, if at all.
Thus, theft cannot have a frustrated stage. Theft can
only be attempted or consummated (Valenzuela vs.
People, G. R. No. 160188, June 21, 2007, En Banc).

THEFT OF CHECK - In Miranda vs. People,

G.R. No. 176298, January 25, 2012 - Petitioner was
entrusted with checks payable to complainant by
virtue of her position as accountant and bookkeeper.
She deposited the said checks to the joint account
maintained by complainant, then withdrew a total
of P797,187.85 from said joint account using the
pre-signed checks, with her as the payee. Petitioner
argued that full ownership of the thing stolen needed
to be established first before she could be convicted
184 | P a g e
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).

Assuming that robbery was indeed committed,

the prosecution must establish with certitude that
the killing was a mere incident to the robbery, the
latter being the perpetrators main purpose and
objective. It is not enough to suppose that the
purpose of the author of the homicide was to rob; a
mere presumption of such fact is not sufficient.
185 | P a g e
 Stated in a different manner, a conviction requires
certitude that the robbery is the main purpose, and
objective of the malefactor and the killing is merely
incidental to the robbery. The intent to rob must
precede the taking of human life but the killing may
occur before, during or after the robbery. What is
crucial for a conviction for the crime of robbery with
homicide is for the prosecution to firmly establish
the offenders intent to take personal property before
the killing, regardless of the time when the homicide
is actually carried out (People vs. Gatarin, GR NO.
198022, April 07, 2014).

b. Intent to kill and rob - However, the law

does not require that the sole motive of the
malefactor is robbery and commits homicide by
reason or on the occasion thereof. In one case, it
was ruled that even if the malefactor intends to kill
and rob another, it does not preclude his conviction
for the special complex crime of robbery with
homicide. The fact that the intent of the felons was
tempered with a desire also to avenge grievances
against the victim killed, 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
186 | P a g e
 primordial is the result obtained without reference
or distinction as to the circumstances, cause,
modes or persons intervening in the commission of
the crime (People vs. Daniela, G.R. No. 139230,
April 24, 2003).

d. One of the robbers is the victim of

homicide - It is immaterial that the death would
supervene by mere accident; or that the victim of
homicide is other than the victim of robbery, or that
two or more persons are killed or that aside from the
homicide, rape, intentional mutilation, or usurpation
of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact
that the victim of homicide is one of the robbers; the
felony would still be robbery with homicide. Once a
homicide is committed by or on the occasion of the
robbery, the felony committed
is robbery with homicide. All the felonies committed
by reason of or on the occasion of the robbery are
integrated into one and indivisible felony
of robbery with homicide. The word homicide is
used in its generic sense. Homicide, thus, includes
murder, parricide, and infanticide (People vs. Laog,
G.R. No. 178321, October 5, 2011; (People vs. Ebet,
GR No. 181635, November 15, 2010; People vs. De
Leon, GR No. 179943, June 26, 2009; People vs.
Diu, GR No. 201449, April 03, 2013).

In People vs. Concepcion, G.R. No. 200922, July

18, 2012 - Accused snatched victims shoulder bag
which was hanging on her left shoulder. No violence,
intimidation or force was used in snatching her
shoulder bag. Given the facts, the snatching of
shoulder bag constitutes the crime of theft, not
robbery. Accuseds co-conspirator, who was driving
the motorcycle, died because he lost control of the
187 | P a g e
motorcycle and crashed in front of a taxi. Since
accused as passenger in the motorcycle, did not
perform or execute any act that caused the death of
his companion, he cannot be held liable for
homicide.

e. Homicide through reckless imprudence - In

robbery with homicide, the original criminal design
of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of
the robbery. The intent to commit robbery must
precede the taking of human life. The homicide may
take place before, during or after the robbery. It is
only the result obtained, without reference or
distinction as to the circumstances, causes or modes
or persons intervening in the commission of the
crime that has to be taken into consideration. There
is no such felony of robbery with homicide through
reckless imprudence or simple negligence. The
constitutive elements of the crime, namely, robbery
and homicide, must be consummated (People vs.
Ebet, GR No. 181635, November 15, 2010; People
vs. De Leon, GR No. 179943, June 26, 2009; People
vs. Diu, GR No. 201449, April 03, 2013).

f. Failure to present the stolen property -

Intent to rob is an internal act but may be inferred
from proof of violent unlawful taking of personal
property. When the fact of taking has been
established beyond reasonable doubt, conviction of
the accused is justified even if the property subject
of the robbery is not presented in court. After all, the
property stolen may have been abandoned or thrown
away and destroyed by the robber or recovered by
the owner. The prosecution is not burdened to prove
the actual value of the property stolen or amount
stolen from the victim. Whether the robber knew the
188 | P a g e
actual amount in the possession of the victim is of
no moment because the motive for robbery can exist
regardless of the exact amount or value involved
(People vs. Ebet, GR No. 181635, November 15,
2010; People vs. De Leon, GR No. 179943, June 26,
2009; People vs. Diu, GR No. 201449, April 03,
2013).

g. Direct connection between robbery and

homicide - Essential for conviction of robbery with
homicide is proof of a direct relation, an intimate
connection between the robbery and the killing,
whether the latter be prior or subsequent to the
former or whether both crimes were committed at
the same time (People vs. Buyagan, G.R. No.
187733, February 8, 2012). Homicide is said to have
been committed by reason or on the occasion of
robbery if, for instance, it was committed to (a)
facilitate the robbery or the escape of the culprit; (b)
to preserve the possession by the culprit of the loot;
(c) to prevent discovery of the commission of the
robbery; or, (d) to eliminate witnesses in the
commission of the crime. As long as there is a nexus
between the robbery and the homicide, the latter
crime may be committed in a place other than
the situs of the robbery (People vs. Ebet, GR No.
181635, November 15, 2010,).

h. Claim of ownership - The 10th floor unit of a

building is owned by a corporation and served as the
family residence prior to the death of the parents of
X and A. The unit, including the personal properties
inside, is the subject of estate proceedings pending
in another court and is, therefore, involved in the
disputed claims among the siblings. X armed with a
Board Resolution authorizing him to break open the
door lock system of 10th floor unit of a building and
189 | P a g e
to install a new door lock system went up to the
subject unit to implement said resolution. According
to A, X brought out from the unit her personal
belongings. Is X liable for robbery?

Answer: No. X took property openly and

avowedly under that claim of ownership. The fact
that these properties were taken under claim of
ownership negates the element of intent to gain. One
who takes the property openly and avowedly under
claim of title offered in good faith is not guilty of
robbery even though the claim of ownership is
untenable. X should not be held liable for the alleged
unlawful act absent a felonious intent. Actus non
facit reum, nisi mens sit rea. A crime is not
committed if the mind of the person performing the
act complained of is innocent (Sy vs. Gutierrez, GR
No. 171579, November 14, 2012).

i. Robbery with rape - To be convicted of

robbery with rape, the following elements must
concur: (1) the taking of personal property is
committed with violence or intimidation against
persons; (2) the property taken belongs to another;
(3) the taking is characterized by intent to gain or
animus lucrandi; and (4) the robbery is accompanied
by rape (People vs. Evangelio, GR No. 181902,
August 31, 2011).

The following circumstantial evidence presented

by the prosecution, when analyzed and taken
together, lead to the inescapable conclusion that the
accused raped AAA: first, while two of the robbers
were stealing, appellant and one of the robbers
brought AAA inside the comfort room; second, inside
the comfort room, AAA was stripped off her clothes
and her panty; third, when AAA resisted and
190 | P a g e
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).

UNINHABITED HOUSE - In Marquez vs. People,

G.R. No. 181138, December 3, 2012 - The records
show that the store alleged to have been robbed by
petitioners is not an inhabited house, public
building or building dedicated to religious worship
and their dependencies under Article 299 and as
defined under Article 301. From Valderosas
testimony, it can be deduced that the establishment
allegedly robbed was a store not used as a dwelling.
In fact, after the robbery took place, there was a
need to inform Valderosa of the same as she was
obviously not residing in the store. If the store was
not actually occupied at the time of the robbery and
was not used as a dwelling, since the owner lived in
a separate house, the robbery committed therein is
punished under Article 302. Neither was the place
where the store is located owned by the government.
It was actually just a stall rented by Valderosa from
a private person. Hence, the applicable provision in
this case is Article 302 and not Article 299 of the
RPC.

CARNAPPING - Under the Anti-Carnapping Act,

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

Under RA 9346, persons convicted of offenses

punishable with reclusion perpetua or whose
sentences will be reduced to reclusion perpetua by
reason of this law, shall not be eligible for parole.

ARSON

Is it necessary for the prosecution to prove

wrongful intent to burn on the part of the accused to
establish arson? No. Although intent may be an
ingredient of the crime of arson, it may be inferred
from the acts of the accused. There is a
presumption that one intends the natural
consequences of his act; and when it is shown that
one has deliberately set fire to a building, the
prosecution is not bound to produce further
evidence of his wrongful intent. If there is an
eyewitness to the crime of arson, he can give in
detail the acts of the accused. When this is done the
only substantial issue is the credibility of the
witness (People vs. De Leon, G. R. No. 180762,
March 4, 2009).

What is the crime committed if the offender

burned the building and there is person who died?
In the classification of crimes committed by fire
involving the killing of the victim, attention must be
given to the intention of the author. Main objective of
the offender determines the kind of crime
192 | P a g e
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.
193 | P a g e
Simple arson contemplates crimes with less
significant social, economic, political, and national
security implications than destructive arson (People
vs. Macabando, GR No. 188708, July 31, 2013).
Burning of inhabited house or dwelling is simple
arson under Section 3 of P.D. No. 1613, and not
destructive arson under RPC. Burning personal
property is also simple arson under Section 1 of PD
No. 1613.

The nature of Destructive Arson is distinguished

from Simple Arson by the degree of perversity or
viciousness of the criminal offender. The acts
committed under Art. 320 of The Revised Penal Code
constituting Destructive Arson are characterized as
heinous crimes "for being grievous, odious and
hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and
outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered
society." On the other hand, acts committed under
PD 1613 constituting Simple Arson are crimes with
a lesser degree of perversity and viciousness that the
law punishes with a lesser penalty. In other words,
Simple Arson contemplates crimes with less
significant social, economic, political and national
security implications than Destructive Arson (People
vs. Macabando, GR No. 188708, July 31, 2013).

The Information alleged that the appellant set

fire to his own house, and that the fire spread to
other inhabited houses. These allegations were
established by evidence. The accused testified that
his burnt two-story house was used as a residence.
That the appellants act affected many families will
not convert the crime to destructive arson, since the
194 | P a g e
appellants act does not appear to be heinous or
represents a greater degree of perversity and
viciousness when compared to those acts punished
under Article 320 of the RPC. The established
evidence only showed that the appellant intended to
burn his own house, but the conflagration spread to
the neighboring houses (People vs. Macabando, GR
No. 188708, July 31, 2013). Note: Setting fire to his
own property under circumstances which expose to
danger the life or property of another is arson under
Section 1 of PD No. 1613.

CRIMES AGAINST LIBERTY AND SECURITY

KIDNAPPING

As for the crime of kidnapping, the following

elements, as provided in Article 267 of the Revised
Penal Code, must be proven: (a) a person has been
deprived of his liberty, (b) the offender is a private
individual, and (c) the detention is unlawful. (People
vs. Jovel, G.R. No. 189820. October 10, 2012).

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).
195 | P a g e
 The essence of the crime of kidnapping is the
actual deprivation of the victim's liberty, coupled
with the intent of the accused to effect it. It includes
not only the imprisonment of a person but also the
deprivation of his liberty in whatever form and for
whatever length of time. It involves a situation where
the victim cannot go out of the place of confinement
or detention, or is restricted or impeded in his liberty
to move (People vs. Jacalney, GR No. 168552,
October 03, 2011).

X dragged A, a minor, to his house after the

latter refused to go with him. Upon reaching the
house, X tied her hands. When A pleaded that she
be allowed to go home, he refused. After more or less
one hour, X released A and instructed her on how
she could go home. What is the crime committed?
Answer: The crime committed is kidnapping and
serious illegal detention. When X tied the hands of
A, the former's intention to deprive the latter of her
liberty has been clearly shown. For there to be
kidnapping, it is enough that the victim is restrained
from going home. Because of her tender age, and
because she did not know her way back home, she
was then and there deprived of her liberty. This is
irrespective of the length of time that she stayed in
such a situation. If the victim is a minor, the
duration of his detention is immaterial (People vs.
Jacalney, GR No. 168552, October 03, 2011).

X seized A, 9 years of age, him by twisting his

right arm, pointed a knife at him. X brought A to a
in a place strange and unfamiliar to him. Because of
his tender age, he did not know the way back home.
X called victims mother to inform her that the child
is in his custody and of threatening her that she will
196 | P a g e
no longer see her son if she failed to show his wife to
him. In a case for kidnapping and serious illegal
detention, X argued s free to go home if he wanted to
because he was not confined, detained or deprived of
his liberty. Is the argument tenable? Answer: No. For
kidnapping to exist, it is not necessary that the
offender kept the victim in an enclosure or treated
him harshly. Where the victim in a kidnapping case
is a minor, it becomes even more irrelevant whether
the offender forcibly restrained the victim. Leaving a
child in a place from which he did not know the way
home, even if he had the freedom to roam around
the place of detention, would still amount to
deprivation of liberty. For under such a situation,
the childs freedom remains at the mercy and control
of the abductor (People vs. Baluya, GR No. 181822,
April 13, 2011, ).

In this case, victim, a minor, was not locked up.

However, she was seized and taken from her house
through force and dragged to the mountain. Since
then, she was restrained of her liberty by and kept
under the control of accused. She was prevented
from going back home for a period of about six days.
Accused is guilty of kidnapping and illegally
detaining victim even if she was not lock-up. Under
the Spanish Penal Code, the modes of committing
illegal detention is "Secuestrare" and "Encerrare".
"Secuestrare" means sequestration. To sequester is
to separate for a special purpose, remove or set
apart, withdraw from circulation. It also means to
lock-up or imprison. "Encerrare" is a broader concept
than secuestrare. Encerrare includes not only the
imprisonment of a person but also the deprivation of
his liberty in whatever form and for whatever length
of time (People vs. Baldago, G.R. No. 128106-07,
January 24, 2003).
197 | P a g e
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
198 | P a g e
choose between two alternatives: to part with their
money, or suffer the burden and humiliation of
prosecution and confiscation of the logs (Sazon vs.
Sandiganbayan, G.R. No. 150873, February 10,
2009).

CRIMES AGAINST CIVIL STATUS

A priest, who performed a marriage ceremony

despite knowledge that the couple had no marriage
license, is liable for illegal marriage. The non-filing of
a criminal complaint against the couple does not
negate criminal liability of the petitioner. Article 352
does not make this an element of the crime.

Bigamy

Even if the first marriage is null and avoid

because of psychological incapacity of either or both
parties (Wiegel v. Sempio-Diy, 143 SCRA 499) or the
absence of a marriage license or of an affidavit of
cohabitation (Lasanas vs. People, G.R. No. 159031,
June 23, 2014), contracting a second marriage
constitutes the crime of bigamy unless a judicial
declaration of the nullity of the first marriage has
been secured beforehand.

However, the principle that one who enters into

a subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy is not
applicable where the parties merely signed the
marriage contract without marriage ceremony
performed by a duly authorized solemnizing
officer. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and
thus, needs no judicial declaration of nullity. Such
act alone, without more, cannot be deemed to
199 | P a g e
constitute an ostensibly valid marriage for which one
might be held liable for bigamy unless he first
secures a judicial declaration of nullity before he
contracts a subsequent marriage. The law abhors an
injustice and the Court is mandated to liberally
construe a penal statute in favor of an accused and
weigh every circumstance in favor of the
presumption of innocence to ensure that justice is
done (Morigo vs. People, G.R. No. 145226, February
06, 2004).

X married A, but during the subsistence of such

marriage X married B. A filed a complaint for
bigamy against X. X filed a petition for the
annulment of his first marriage with A on the ground
of psychological incapacity which was granted. X
moved for the quashal of the information and
dismissal of the criminal complaint alleging that his
first marriage had already been declared void ab
initio. (a) Is the argument tenable?

No. Article 40 of the Family Code has settled

once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause
of action or a ground for defense. It has been held in
a number of cases that a judicial declaration of
nullity is required before a valid subsequent
marriage can be contracted; or else, what transpires
is a bigamous marriage, reprehensible and immoral.

What makes a person criminally liable for

bigamy is when he contracts a second or subsequent
marriage during the subsistence of a valid
marriage. Parties to the marriage should not be
permitted to judge for themselves its nullity, for the
same must be submitted to the judgment of
200 | P a g e
competent courts and only when the nullity of the
marriage is so declared can it be held as void, and so
long as there is no such declaration, the
presumption is that the marriage exists. Therefore,
he who contracts a second marriage before the
judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy.
Otherwise, a person who commits bigamy can
simply evade prosecution by immediately filing a
petition for the declaration of nullity of his earlier
marriage and hope that a favorable decision is
rendered therein before anyone institutes a
complaint against him (People vs. Odtuhan, GR No.
191566, July 17, 2013).

(b) Would your answer be the same if the

declaration of nullity of the first marriage was
obtained before the filing of the complaint for bigamy
against X?

Yes. Settled is the rule that criminal culpability

attaches to the offender upon the commission of the
offense and from that instant, liability appends to
him until extinguished as provided by law and that
the time of filing of the criminal complaint or
information is material only for determining
prescription (People vs. Odtuhan, GR No. 191566,
July 17, 2013, ).

(c) Would your answer be the same if the first

marriage was contracted prior to the Family Code?
Yes. Article 40, which is a rule of procedure,
should be applied retroactively because Article 256
of the Family Code itself provides that said "Code
shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights." The

201 | P a g e
fact that procedural statutes may somehow affect
the litigants' rights may not preclude their
retroactive application to pending actions.
The retroactive application of procedural laws is not
violative of any right of a person who may feel that
he is adversely affected. The reason is that as a
general rule, no vested right may attach to, nor arise
from, procedural laws (Jarillo vs. People, GR No.
164435, June 29, 2010, ).

(d) Would your answer be the same if the second

marriage was the one declared null and void?

Yes. It is a settled rule that the criminal

culpability attaches to the offender upon the
commission of the offense, and from that instant,
liability appends to him until extinguished as
provided by law. It is clear then that the crime of
bigamy was committed by X from the time he
contracted the second marriage with B. Thus, the
finality of the judicial declaration of nullity of Xs
second marriage does not impede the filing of a
criminal charge for bigamy against him (Walter vs.
People, GR No. 183805, July 03, 2013, ).

(e) Would your answer be the same if both the

first marriage and the second marriage are declared
null and void?

Yes. The subsequent judicial declaration of

nullity of Xs two marriages cannot be considered a
valid defense in the crime of bigamy. The moment X
contracted a second marriage without the previous
one having been judicially declared null and void,
the crime of bigamy was already consummated
because at the time of the celebration of the second
marriage, first marriage, which had not yet been
202 | P a g e
declared null and void by a court of competent
jurisdiction, was deemed valid and subsisting.
Neither would a judicial declaration of the nullity of
second marriage make any difference. Since a
marriage contracted during the subsistence of a
valid marriage is automatically void, the nullity of
this second marriage is not per se an argument for
the avoidance of criminal liability for bigamy. What
the law penalizes is the mere act of contracting a
second or subsequent marriage during the
subsistence of a valid marriage" (Jarillo vs. People,
GR No. 164435, September 29, 2009)

Illegal marriage

In Ronulo vs. People, G.R. No. 182438, July 02,

2014 - Article 352 of the RPC, as amended, penalizes
an authorized solemnizing officer who shall perform
or authorize any illegal marriage ceremony. The
elements of this crime are as follows: (1) authority of
the solemnizing officer; and (2) his performance of an
illegal marriage ceremony. The law sets the
minimum requirements constituting a marriage
ceremony: first, there should be the personal
appearance of the contracting parties before a
solemnizing officer; and second, their declaration in
the presence of not less than two witnesses that they
take each other as husband and wife. For purposes
of determining if a marriage ceremony has been
conducted, a marriage certificate is not included in
the requirements.

CRIMES AGAINST HONOR

DEFAMATION

203 | P a g e
 Is truthful defamatory imputation against
private individual and government employee a
defense in libel? Proof of truth of defamatory
imputation against private individual is a defense if it
is published with good motives and for justifiable
ends. Proof of the truth of defamatory imputation
against government employees is a defense: (1) if it is
published with good motives and for justifiable ends;
or (2) if the act or omission imputed constitutes a
crime; or (3) if the imputation not constituting a
crime is related to the discharge of his duties.
Truthfulness of imputation of a crime or a function-
related defamatory act against a public officer is a
defense even though he does not prove that the
imputation was published with good motives and for
justifiable ends (Vasquez vs. CA, G.R. No. 118971,
September 15, 1999).

MALICE - What are the different rules on

presumption involving malice as an element of libel
or oral defamation? 1. Disputable presumption of
malice - Every defamatory imputation is presumed to
be malicious. Presumed malice is also known as
malice in law. However, the following
circumstances negate the presumption of malice in a
defamatory statement: (1) if there is a good intention
and justifiable motive for making it is shown; (2) if
the defamatory statements is a qualified privilege
communication such (a) A private communication
made by any person to another in the performance
of any legal, moral or social duty; and (b) A fair and
true report, made in good faith, without any
comments or remarks, of any judicial, legislative or
other official proceedings which are not of
confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of
204 | P a g e
their functions (Article 354 of RPC). The
enumeration under Article 354 is not an exclusive
list of qualifiedly privileged communications since
fair commentaries on matters of public interest are
likewise privileged (Borjal vs. CA, G.R. No. 126466
January 14, 1999). 2. Conclusive presumption of lack
of malice If the defamatory statements are an
absolute privilege communication, lack of malice is
conclusively presumed. Thus, the person making
defamatory imputation is not answerable for libel.
Absolutely privileged communications are those
which are not actionable even if the author has
acted in bad faith such as speech or debate in the
Congress or in any Committee thereof (Philippine
Journalists, Inc vs. Thoenen, G.R. No. 143372,
December 13, 2005) or words uttered or published
in the course of judicial proceedings, provided the
statements are pertinent or relevant to the case
(Malit vs. People, G.R. No. L-58681, May 31, 1982).

FAIR COMMENT DOCTRINE - What is the

doctrine of fair comment? Under this doctrine, fair
commentaries on matters of public interest are
privileged and constitute a valid defense in an action
for libel or slander. The doctrine of fair comment
means that while in general every defamatory and
public imputation is deemed false, and every false
imputation is deemed malicious, nevertheless, when
the defamatory imputation is directed against a
public person in his public capacity, it is not
necessarily actionable. In order that such
defamatory imputation to a public official may be
actionable, it must either be a false allegation of fact
or a comment based on a false supposition. If the
comment is an expression of opinion, based on
established facts, then it is immaterial that the
opinion happens to be mistaken, as long as it might
205 | P a g e
reasonably be inferred from the facts (Borjal vs. CA,
G.R. No. 126466, January 14, 1999).

What is the difference between fair and true

report, and fair comment as a privilege
communications? (1) In fair and true report, the
accused makes a report on the function-related acts
performed by public officers without any comments
or remarks. On the other hand, in fair comment, the
accused is making a comment on the function-
related acts performed by public officers. (2) In fair
and true report, the prosecution must prove actual
malice i.e., such as the report was made in bad faith.
In fair comment, the prosecution must actual malice
i.e., comment was made with knowledge that
comment was false or with reckless disregard of
whether it was false or not (Sulivan vs. Newyork
Times doctrine; Guingguing vs. the Honorable Court
of Appeals, G.R. No. 128959, September 30, 2005)
Only false statements made with the high degree of
awareness of their probable falsity demanded by
New York Times may be the subject of either civil or
criminal sanctions (Flor vs. People, G.R. No. 139987,
March 31, 2005). (3) In fair and true report, the
report involving defamatory statement must be true.
In fair comment, the defamatory imputation in the
commentary is not true but the accused has no
knowledge that it is false and has not recklessly
disregarded to know whether it is false or not.

Is error or misstatement in commentaries on

function related acts of public officer actionable in a
news articles for being libelous? Even assuming that
the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable
in any scheme of truly free expression and debate.
206 | P a g e
Consistent with good faith and reasonable care, the
press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in
the choice of language. There must be some room for
misstatement of fact as well as for misjudgment.
Only by giving them much leeway and tolerance can
they courageously and effectively function as critical
agencies in our democracy (Borjal vs. CA, G.R. No.
126466, January 14, 1999).

Brillante implicated Jejomar Binay, then the OIC

Mayor of Makati, and Dr. Nemesio Prudente, then
President of the Polytechnic University of the
Philippines in a planned assassination of Syjuco as
well as election-related terrorism. Is the doctrine of
fair comment applicable in this libel case? The New
York Times principle is not applicable since the
utterances are unrelated to a public officers
performance of his duties (Brillante vs. CA, G.R. Nos.
118757 & 121571, October 19, 2004). Obviously,
commission of murder and terrorism is not related
to the performance of their duties as public officers.

Cristy Fermin imputed to Annabelle Rama

Gutierrez an actress the crime of malversation and
of vices or defects for being fugitives from the law
and of being a wastrel. Is the doctrine of fair
comment applicable in this libel case? No. It is
unrelated to public figures work (Fermin vs. People,
G.R. No. 157643, March 28, 2008). The defamatory
imputation has nothing to do to with works of
Annabelle as a as an actress.

In his series of articles of Erwin Tulfo, he

targeted one Atty. "Ding" So of the Bureau of
Customs as being involved in criminal activities, and
was using his public position for personal gain. He
207 | P a g e
went even further than that, and called Atty. So an
embarrassment to his religion, saying
"ikawnayataangpinakagago at
magnanakawsamiyembronito." He accused Atty. So
of stealing from the government with his alleged
corrupt activities. And when Atty. So filed a libel suit
against him, Tulfo wrote another article, challenging
Atty. So, saying, "Nagalititongtarantadongsi Atty. So
dahilbinabantayankosiya at in-expose
angkagaguhanniyasa [Bureau of Customs]." In his
testimony, Tulfo admitted that he did not personally
know Atty. So, and had neither met nor known him
prior to the publication of the subject articles. He
also admitted that he did not conduct a more in-
depth research of his allegations before he published
them, and relied only on his source at the Bureau of
Customs. Is Tulfo liable for Libel? Yes. Journalists
bear the burden of writing responsibly when
practicing their profession, even when writing about
public figures or matters of public interest. The
report made by Tulfo cannot be considered as "fair"
and "true" since he did not do research before
making his allegations, and it has been shown that
these allegations were baseless. The articles are not
"fair and true reports," but merely wild accusations.
He had written and published the subject articles
with reckless disregard of whether the same were
false or not (Erwin Tulfo vs. People, G.R. No.
161032, September 16, 2008).

The article in Bander newspaper details the

sexual activities of a certain Miss S and one Philip
Henson who had a romantic liaison. The words
used in the article convey that Miss S is a sexual
libertine with unusually wanton proclivities in the
bedroom. Is the article defamatory and malicious? Is
the writer liable for libel? Yes. In a society such as
208 | P a g e
ours, where modesty is still highly prized among
young ladies, the behavior attributed to Miss S by
the article in question had besmirched both her
character and reputation. Since on its face the
article is defamatory, there is a presumption that the
offender acted with malice. However, the writer
cannot be held liable for libel. The libelous article,
while referring to "Miss S," does not give a sufficient
description or other indications which identify "Miss
S." In short, the article fails to show that "Miss S"
and complainant are one and the same person.
Although the article is libelous, complainant could
not have been the person defamed therein (Diaz v.
People, G.R. No. 159787, May 25, 2007).

INTERNET LIBEL - Under Article 355, a libel

committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or
any similar means. Is the internet used to post a
malicious defamatory imputation through facebook
within the contemplation of the phrase any similar
means in Article 355? Yes. Writing, printing,
lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition has
a common characteristic, and that is, their
permanent nature as a means of publication, and
this explains the graver penalty for libel than that
prescribed for oral defamation (People vs. Santiago,
G.R. No. L-17663, May 30, 1962). Hence, the phrase
any similar means should be understood in the
lights of the said common characteristic of the
means to commit libel. Since nature of internet as a
means of publication is likewise permanent, it
should be considered as a means to commit libel.

209 | P a g e
 What is the venue for internet libel committed?
As a general rule, the venue of libel cases where the
complainant is a private individual is limited to only
either of two places, namely: 1) where the
complainant actually resides at the time of the
commission of the offense; or 2) where the alleged
defamatory article was printed and first published
(Article 360 of RPC).However, the place where
libelous article was accessed by the offended party in
the internet is not equivalent to the place where the
libelous article is printed and first published. To
rule otherwise is to allow the evil sought to be
prevented by the amendment to Article 360, and
that was the indiscriminate laying of the venue in
libel cases in distant, isolated or far-flung areas, to
harass an accused. At any rate, Article 360 still
allow offended party to file the civil or criminal
complaint for internet libel in their respective places
of residence (Bonifacio vs. RTC, Makati, Branch 149,
G.R. No. 184800, May 5, 2010).

Libel is not a constitutionally protected speech

and that the government has an obligation to protect
private individuals from defamation. Indeed, cyber
libel is actually not a new crime since Article 353, in
relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely
affirms that online defamation constitutes similar
means for committing libel (Disini vs. Secretary of
Justice, G.R. No. 20335, February 18. 2014).

VENUE - The rules on venue for libel in Article

360 of RPC are as follows: (1) Whether the offended
party is a public official or a private person, the
criminal action may be filed in the Regional Trial
Court of the province or city where the libelous
article is printed and first published; (2) If the
210 | P a g e
offended party is a private individual, the criminal
action may also be filed in the Regional Trial Court
of the province where he actually resided at the time
of the commission of the offense. (3) If the offended
party is a public officer whose office is in Manila at
the time of the commission of the offense, the action
may be filed in the Regional Trial Court of Manila. (4)
If the offended party is a public officer holding office
outside of Manila, the action may be filed in the
Regional Trial Court of the province or city where he
held office at the time of the commission of the
offense (Foz, Jr., vs. People, GR No. 167764, October
09, 2009, ).

Information alleged that the libelous writings

were published in Panay News, a daily publication
with a considerable circulation in the City of Iloilo
and that complainant (private individual) is a
physician in Iloilo. Is the Information quashable for
improper venue?

Answer: Yes. The allegations in the Information

that "Panay News, a daily publication with a
considerable circulation in the City of Iloilo" only
showed that Iloilo was the place where Panay
News was in considerable circulation but did not
establish that the said publication was printed and
first published in Iloilo City.

The Information failed to allege the residence of

complainant. While the Information alleges that
complainant is a physician in Iloilo City, such
allegation did not clearly and positively indicate that
he was actually residing in Iloilo City at the time of
the commission of the offense. It is possible that
complainant was actually residing in another place

211 | P a g e
(Foz, Jr., vs. People, GR No. 167764, October 09,
2009).

RECKLESS IMPRUDENCE

Following a vehicular collision in August 2004,

Jason Ivler was charged with reckless imprudence
resulting in slight physical injuries for injuries
sustained by Maria and reckless imprudence
resulting in homicide and damage to property for the
death of Nestor and damage to their vehicle. Court
convicted Jason for the first charged. Should the
information for the second charge be quashed on the
basis of the rule on double jeopardy? Reckless
imprudence under Article 365 is a single quasi-
offense by itself and not merely a means to commit
other crimes; hence conviction or acquittal of such
quasi-offense bars subsequent prosecution for the
same quasi-offense, regardless of its various
consequences. The essence of the quasi offense of
criminal negligence under article 365 of the Revised
Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be
punishable as a felony. The law penalizes thus the
negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into
account to determine the penalty. It does not qualify
the substance of the offense. And, as the careless act
is single, whether the injurious result should affect
one person or several persons, the offense criminal
negligence remains one and the same, and cannot be
split into different crimes and prosecutions (Ivler vs.
Modesto-San Pedro, G.R. No. 172716, November 17,
2010). Note: The principle in Ivler case has
abandoned the principle (Ortega view) that culpa is
just a modality by which a felony may be committed.

212 | P a g e
 In People vs. Dumayag, G.R. No. 172778, 26
November 2012 - The evidence indubitably shows
that before the collision, the passenger bus was
cruising along its rightful lane when the tricycle
coming from the opposite direction suddenly
swerved and encroached on its lane. The accident
would not have happened had Genayas, the tricycle
driver, stayed on his lane and did not recklessly try
to overtake another vehicle while approaching a
blind curve. Section 37 of R.A. No. 4136 mandates
all motorists to drive and operate vehicles on the
right side of the road or highway. When overtaking
another, it should be made only if the highway is
clearly visible and is free from oncoming vehicle.
Overtaking while approaching a curve in the
highway, where the drivers view is obstructed, is not
allowed. Corollarily, drivers of automobiles, when
overtaking another vehicle, are charged with a high
degree of care and diligence to avoid collision. The
obligation rests upon him to see to it that vehicles
coming from the opposite direction are not taken
unaware by his presence on the side of the road
upon which they have the right to pass.

In Sevilla vs. People, G.R. No. 194390, August

13, 2014 - That in answer to the question of whether
there is a pending criminal case against him,
accused, a a municipal councilor marked the box
corresponding to the no answer despite the
pendency of a criminal case against him for direct
assault. According to the accused, the PDS was
prepared by his secretary. It was held that there was
a legal obligation on the part of accused a to
disclose in his PDS that there was a pending case
against him. However, accused cannot be convicted
of falsification of public document since he did not
act with malicious intent to falsify the
213 | P a g e
aforementioned entry in his PDS. However,
considering that accuseds PDS was haphazardly
and recklessly done, which resulted in several false
entries therein, accused was convicted of reckless
imprudence resulting in falsification of document.

In Solidum vs. People, GR No. 192123, March

10, 2014 - The standard of medical care of a prudent
physician must be determined from expert testimony
in most cases; and in the case of a specialist (like an
anesthesiologist), the standard of care by which the
specialist is judged is the care and skill commonly
possessed and exercised by similar specialists under
similar circumstances. The specialty standard of care
may be higher than that required of the general
practitioner. Here, the Prosecution presented no
witnesses with special medical qualifications in
anesthesia to provide guidance to the trial court on
what standard of care was applicable. It would
consequently be truly difficult, if not impossible, to
determine whether the first three elements of a
negligence and malpractice action were attendant.

VIOLENCE AGAINST WOMAN

Are the acts of attaching the face of his ex-
girlfriend on a nude body of a woman in a picture,
sending the picture to her through cell phone text
message and threatening to post it in the internet for
all to see that caused substantial emotional and
psychological distress to her constitutive of
psychological violence against woman under Section
5 (h) of RA No. 9262? Yes. Under Section 5 (h) of RA
No. 9262 the following conduct that caused
substantial emotional and psychological distress to
the woman with whom the offender has a marital,
sexual or dating relationship is punishable: (1)

214 | P a g e
Stalking (2) Peering in the window or lingering
outside the residence of the woman or her child; (3)
Entering or remaining in the dwelling against her
will; (4) Destroying property and inflicting harm to
animals; and (5) Engaging in any form of
harassment or violence. The acts described above
are considered harassment within the contemplation
of the phrase any form of harassment in Section 5
(h) (5) (Ang vs. The Honorable CA, G.R. No. 182835,
April 20, 2010).

Is habituality an element of violence against

women and their children under Section 5 (h)? No.
Section 3(a) of R.A. 9262 punishes "any act or series
of acts" that constitutes violence against women.
This means that a single act of harassment
contemplated in Section 5 (h), which translates into
violence, would be enough. The object of the law is to
protect women and children. Punishing only violence
that is repeatedly committed would license isolated
ones (Ang vs. The Honorable CA, G.R. No. 182835,
April 20, 2010).

HAZING
The night before the commencement of the rites,
the neophytes of AngGaling fraternity were briefed
on what to expect. They were told that there would
be physical beatings, that the whole event would last
for three days, that that they could quit anytime.
A, a neophyte, consented to the initiation ritual,
having asked his parents for permission to join the
fraternity. Even after going through the fraternitys
grueling tradition ritualsmainly being beaten by a
paddle on the arms and legsduring the first day,
A continued and completed the second day of
initiation. As consequence of the hazing, A died.

215 | P a g e
What is the crime committed by members of the
fraternity, who directly participated in the infliction
of harm against A? The crime committed is hazing.
The principle in Villareal vs. People, G.R. No.
151258, February 1, 2012 finding the accused liable
for reckless imprudence resulting in homicide is not
anymore controlling in the light of RA No. 8049
(Anti-hazing Law).

The crime of hazing is thus committed when the

following essential elements are established: (1) a
person is placed in some embarrassing or
humiliating situation or subjected to physical or
psychological suffering or injury; and (2) these acts
were employed as a prerequisite for the persons
admission or entry into an organization (People vs.
Bayabos, G.R. No. 171222, February 18, 2015).

Failure to allege that the physical or

psychological harm were employed as a prerequisite
for admission or entry into the organization would
prevent the successful prosecution of the criminal
responsibility of the accused, either as principal or
as accomplice, for the crime of hazing. Plain
reference to a technical term in this case, hazing
is insufficient and incomplete, as it is but a
characterization of the acts allegedly committed and
thus a mere conclusion of law (People vs. Bayabos).
Under Section 4 of RA 8049, the officers and
members of the fraternity, sorority or organization
who actually participated in the infliction of physical
harm upon recruit, neophyte or applicant on
occasion of hazing shall be liable as principals for
the crime of hazing. Hazing is an initiation rite or
practice as a prerequisite for admission into
216 | P a g e
membership in a fraternity, sorority or organization
or a requirement for employment in a corporation by
placing the recruit, neophyte or applicant in some
embarrassing or humiliating situations.

Organization includes but is not limited to

groups, teams, fraternities, sororities, citizen army
training corps, educational institutions, clubs,
societies, cooperatives, companies, partnerships,
corporations, the PNP, and the AFP. The Philippine
Merchant Marine Academy is included in the term
organization within the meaning of the law (People
vs. Bayabos).

What are the differences between hazing and

homicide or murder? The differences of homicide or
murder and hazing are as follows: (a) In homicide or
murder, what is criminal is the killing of person.
Hence, intent to kill is an indispensable element.
Death of the victim consummates the crime. In
hazing, what is prohibited is the infliction of the
infliction of physical or psychological suffering on
another in furtherance of the latters admission or
entry into an organization (People vs. Bayabos).
Hence, intent to kill is not material. Death of the
neophyte is only important to determine the proper
imposable penalty. (b) Homicide or murder is malum
in se. Consent of the victim to the infliction of harm
may negate dolo or criminal intent, which would
make the killing punishable as reckless imprudence
(Villareal vs. People, G.R. No. 151258, February 1,
2012). Hazing is malum prohibitum. Consent of the
neophyte is not a defense. (c) In homicide or murder,
praeter intentionem is appreciable as a mitigating
circumstance. In hazing, the law expressly disallows
the appreciation of this circumstance. In homicide or
murder, the basis of criminal liability is the actual
217 | P a g e
and conspiratorial participation of the offender in
killing the victim. In hazing, criminal responsibility
is based on (1) actual participation in inflicting
physical harm, (2) presumed participation (of those
who are present during the hazing), (3) the presence
of adviser, (4) participation in the planning (by
officers, former officers and alumni of the fraternity);
(5) knowledge (of the parent of frat member in the
home of whom hazing occurred, owner of the place
commission, and school authorities).

The owner of the place commission, and school

authorities are liable for hazing as accomplices.

In the case of school authorities and faculty

members who have had no direct participation in the
act, they may nonetheless be charged as
accomplices if it is shown that (1) hazing, as
established by the above elements, occurred; (2) the
accused are school authorities or faculty members;
and (3) they consented to or failed to take preventive
action against hazing in spite actual knowledge
thereof (People vs. Bayabos).

The corresponding responsibilities of the

principal, accomplice, and accessory are distinct
from each other. As long as the commission of the
offense (hazing) can be duly established in evidence,
the determination of the liability of the accomplice or
accessory can proceed independently of that of the
principal (People vs. Bayabos).

In hazing, taking action to prevent the

occurrence of hazing is a defense by any offender
except (1) those who actually inflicted physical harm
and (2) those (officers, former officers and alumni of
the fraternity), who planned the hazing.
218 | P a g e
 LOOSE FIREARM

Section 29 of RA No. 10591 provides:

SEC. 29. Use of Loose Firearm in the

Commission of a Crime. The use of a loose firearm,
when inherent in the commission of a crime
punishable under the Revised Penal Code or other
special laws, shall be considered as an aggravating
circumstance: Provided, That if the crime committed
with the use of a loose firearm is penalized by the
law with a maximum penalty which is lower than
that prescribed in the preceding section for illegal
possession of firearm, the penalty for illegal
possession of firearm shall be imposed in lieu of the
penalty for the crime charged:Provided, further, That
if the crime committed with the use of a loose
firearm is penalized by the law with a maximum
penalty which is equal to that imposed under the
preceding section for illegal possession of firearms,
the penalty of prision mayor in its minimum period
shall be imposed in addition to the penalty for the
crime punishable under the Revised Penal Code or
other special laws of which he/she is found guilty.

If the violation of this Act is in furtherance of, or

incident to, or in connection with the crime of
rebellion of insurrection, or attempted coup d
etat,such violation shall be absorbed as an element
of the crime of rebellion or insurrection, or
attempted coup d etat.

If the crime is committed by the person without

using the loose firearm, the violation of this Act shall
be considered as a distinct and separate offense.

219 | P a g e
 USE OF LOOSE FIREARM AS AGGRVATING
CIRCUMSTANCE - As a rule, when use of a loose
firearm in committing is inherent in the commission
of other crime, such circumstance shall be
considered as an aggravating circumstance. For
example, if a loose firearm was used in committing
homicide, the penalty of reclusion temporal
prescribed for shall be applied in its maximum
period.

However, if the penalty for illegal possession of

loose firearm is graver than that prescribed for other
crime committed, the penalty for the latter shall be
applied. For example, the penalty for simple robbery
is prision correccional in its maximum period to
prision mayor in its medium period while the penalty
for illegal possession of small arm under Section 28
of RA No. 10591 is prision mayor in its medium
period. If a loose firearm classified as small arm is
used in committing simple robbery, the penalty of
prision mayor in its medium period prescribed under
RA 10591 shall be imposed.

Furthermore, if the maximum penalty prescribed

for the other crime is equal to that for illegal
possession of loose firearm, prision mayor in its
minimum period shall be imposed in addition to the
penalty for the other crime. For example, the penalty
of reclusion perpetua is prescribed for homicide and
illegal possession of a Class B light weapon. If a
loose firearm involving a Class B light weapon is
used to commit homicide, the penalty of prision
mayor in its minimum period in addition to
reclusion perpetua shall be imposed.

220 | P a g e
 Lastly, if a loose firearm is used in the
commission of rebellion, sedition or coup d etat, the
latter shall be absorbed in the former.

DISTINCT AND SEPARATE CRIME - If the

crime is committed by the person without using the
loose firearm, the violation of this Act shall be
considered as a distinct and separate offense (RA No.
10591). Conversely, if the crime is committed by the
person with the use of loose firearm, illegal
possession of loose firearm is not a separate offense.
In such a case, the illegal possession of loose firearm
shall be considered as an aggravating circumstance
or a special circumstance that justifies that
imposition of graver penalty or additional penalty, or
as a mere element of rebellion, sedition or coup d
etat.

QUASABLE INFORMATION - Prior to RA 8294,

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

Under PD 1866 as amended by RA 8294, the

rules, if the offender killed a person with the use of
unlicensed firearm, are as follows: (1) offender is
liable for homicide or murder with aggravating
circumstance of use of unlicensed firearm; and (2)
the crimes of murder or homicide and illegal use or
possession of firearm are integrated into a single
offense.

In People vs. Bergante, G.R. No. 120369-70,

February 27, 1998 - The violation of PD No. 1866
221 | P a g e
 should have been punished separately conformably
with our ruling in the case of Quijada G.R. No.
115008-09, July 24, 1996, En Banc. Nevertheless,
fortunately for appellant, PD No. 1866 was recently
amended by RA No. 8294, which provides that if
homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating
circumstance. In short, only one offense should be
punished, viz., either homicide or murder, and the
use of the unlicensed firearm should only be
considered as an aggravating circumstance.

In Celino vs. CA, G.R. No. 170562, June 29,

2007, the Supreme Court ruled that:

When the other crime involved is one of those

enumerated under RA 8294 (e.g. homicide, murder,
rebellion, sedition or coup d etat) any information for
illegal possession of firearm should be quashed
because the illegal possession of firearm would have
to be tried together with such other offense, either
considered as an aggravating circumstance in murder
or homicide,, or absorbed as an element of rebellion,
insurrection, sedition or attempted coup detat.

When the other crime involved is not one of those

enumerated under RA 8294, any information for
illegal possession of firearm should not be quashed.
The separate case for illegal possession of firearm
should continue to be prosecuted. Settled is the rule
that an accused cannot be convicted for illegal
possession of firearm if another crime was committed
at the same time. Since accusation is not synonymous
with guilt, it cannot establish outright that other
crime was committed. However, the accused must be

222 | P a g e
 exonerated of illegal possession of firearms if he is
convicted of some other crime.

Considering that under RA No. 10591 use of

loose firearm is not only an aggravating
circumstance in murder or homicide but also in
other crime such as robbery or grave threat, the
illegal possession of firearm should not be
considered a separate and distinct crime if other
crime is committed and the use of loose firearm in
inherent therein. Following the same line of
reasoning in the case of Celino, any information for
illegal possession of firearm should be quashed
because the illegal possession of loose firearm would
have to be tried together with such other offense,
either considered as an aggravating circumstance in
murder or homicide,, robbery, grave threat, alarm
and scandal, physical injuries or absorbed as an
element of rebellion, insurrection, sedition or
attempted coup detat.

DANGEROUS DRUGS

POSSESSION OF DRUGS For a prosecution

for illegal possession of a dangerous drug to prosper,
it must be shown that (a) the accused was in
possession of an item or an object identified to be a
prohibited or regulated drug; (b) such possession is
not authorized by law; and (c) the accused was freely
and consciously aware of being in possession of the
drug (David vs. People, Gr No. 181861, October 17,
2011, ).

This crime is mala prohibita, and, as such,

criminal intent is not an essential element. However,
the prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs.
223 | P a g e
Possession, under the law, includes not only actual
possession, but also constructive possession. Actual
possession exists when the drug is in the immediate
physical possession or control of the accused. On
the other hand, constructive possession exists when
the drug is under the dominion and control of the
accused or when he has the right to exercise
dominion and control over the place where it is
found. Exclusive possession or control is not
necessary. The accused cannot avoid conviction if
his right to exercise control and dominion over the
place where the contraband is located, is shared
with another (Del Castillo vs. People, GR No.
185128, January 30, 2012, ).

Mere possession of a dangerous drug per

se constitutes prima facie evidence of knowledge
or animus possidendi sufficient to convict an
accused absent a satisfactory explanation of such
possession - the onus probandi is shifted to the
accused, to explain the absence of knowledge
or animus possidendi (Miclat, Jr. vs. People, GR No.
176077, August 31, 2011, ).

KNOWLEDGE - Is knowledge an element of

dangerous drugs despite this crime is malum
prohibitum? Yes. For illegal possession of dangerous
drugs, the prosecution must establish that the
accused freely and consciously possessed the
dangerous drug without authority. However, mere
possession of dangerous drug constitutes prima
facie evidence of knowledge or animus possidendi
sufficient to convict an accused in the absence of
any satisfactory explanation (Asiatico vs. People,
G.R. No. 195005, September 12, 2011).

224 | P a g e
 ATTEMPTED SALE - A, poseur buyer, asked
X if he has available shabu for sale. X answered
in the affirmative and showed to A a plastic sachet
containing shabu. A immediately identified himself
as a policeman, and then, apprehended X and
confiscated the shabu from his pocket. What is the
crime committed by X? X is liable for attempted
sale of shabu punishable under Section 26 of RA
9165. Attempt to sell shabu was shown by the overt
act of appellant therein of showing the substance to
the poseur-buyer. The sale was aborted when the
police officers identified themselves and placed
appellant under arrest (People vs. Figueroa, G.R.
No. 186141, April 11, 2012).

DELIVERY - Is the absence of marked money as

evidence fatal to prosecution of sale and delivery of
dangerous drugs? No. The law defines deliver as a
persons act of knowingly passing a dangerous drug
to another with or without
consideration. Considering that the appellant was
charged with the sale and the delivery of prohibited
drugs, the consummation of the crime of delivery of
marijuana may be sufficiently established even in
the absence of the marked money (People vs.
Domingcil, G.R. No. 140679, January 14, 2004).

LACK OF COORDINATION WITH PDEA -

Silence of the law as to the consequences of the
failure on the part of the law enforcers to seek the
prior authority of the PDEA cannot be interpreted as
a legislative intent to make an arrest without such
PDEA participation illegal or evidence obtained
pursuant to such an arrest inadmissible (People vs.
Clarite, G.R. No. 187157, February 15, 2012). Lack
of coordination with the PDEA will not invalidate a
buy-bust operation. Such coordination is not an
225 | P a g e
indispensable requirement in buy-bust
operations. Neither Section 86 of Republic Act No.
9165 nor its Implementing Rules and Regulations
make PDEAs participation a condition sine qua
non for the conduct of a buy-bust operation (People
vs. Mendosa, G.R. No. 189327, February 29, 2012)

CONFIRMATORY TEST - In Ambre vs. People,

G.R. No. 191532. August 15, 2012 - In no instance
did accused challenge, at the RTC, the supposed
absence of confirmatory drug test conducted on
her. Accused only questioned the alleged omission
when she appealed her conviction before the CA. It
was too late in the day for her to do so. Well
entrenched is the rule that litigants cannot raise an
issue for the first time on appeal as this would
contravene the basic rules of fair play and justice.

PHOTOGRAPHY AND INVENTORY Under

Section 21 of RA No. 9165, the apprehending team
having initial custody and control of the drugs shall,
immediately after seizure and confiscation,
physically inventory and photograph the same in the
presence of the accused or the person/s from whom
such items were confiscated and/or seized, or
his/her representative or counsel, a representative
from the media and the Department of Justice
(DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be
given a copy thereof; However, the Implementing
rules of RA No. 9165 provides that non-compliance
with these requirements under justifiable grounds,
as long as the integrity and the evidentiary value of
the seized items are properly preserved by the
apprehending officer/team, shall not render void and
invalid such seizures of and custody over said items.

226 | P a g e
 Non-compliance with the requirements of
Section 21 of R.A. No. 9165 will not necessarily
render the items seized or confiscated in a buy-bust
operation inadmissible. Strict compliance with the
letter of Section 21 is not required if there is a clear
showing that the integrity and the evidentiary value
of the seized items have been preserved, i.e., the
items being offered in court as exhibits are, without
a specter of doubt, the very same ones recovered in
the buy-bust operation. Hence, once the possibility
of substitution has been negated by evidence of an
unbroken and cohesive chain of custody over the
contraband, such contraband may be admitted and
stand as proof of the corpus delicti notwithstanding
the fact that it was never made the subject of an
inventory or was photographed pursuant to Section
21 (1) of Republic Act No. 9165 (David vs. People, Gr
No. 181861, October 17, 2011, ; Marquez vs. People,
G.R. No. 197207, March 13, 2013; People vs.
Morate, GR No. 201156, January 29, 2014; People
vs. Ladip, GR No. 196146, March 12, 2014; People
vs. Bis, GR No. 191360, March 10, 2014).

In People vs. Gonzales, G.R. No. 182417, April 3,

2013 - By way of exception, Republic Act No. 9165
and its IRR both state that the non-compliance with
the procedures thereby delineated and set would not
necessarily invalidate the seizure and custody of the
dangerous drugs provided there were justifiable
grounds for the non-compliance, and provided that
the integrity of the evidence of the corpus delicti was
preserved. But the non-compliance with the
procedures, to be excusable, must have to be
justified by the States agents themselves.
Considering that PO1 Dimla tendered no
justification in court for the non-compliance with the
procedures, the exception did not apply herein. The
227 | P a g e
absolution of accused should then follow, for we
cannot deny that the observance of the chain of
custody as defined by the law was the only
assurance to him that his incrimination for the very
serious crime had been legitimate and insulated
from either invention or malice. In this connection,
the Court states that the unexplained non-
compliance with the procedures for preserving the
chain of custody of the dangerous drugs has
frequently caused the Court to absolve those found
guilty by the lower courts.

CHAIN OF CUSTODY As a method of

authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding
that the matter in question is what the proponent
claims it to be. It would include testimony about
every link in the chain, from the moment the item
was picked up to the time it is offered into evidence,
in such a way that every person who touched the
exhibit would describe how and from whom it was
received, where it was and what happened to it while
in the witness possession, the condition in which it
was received and the condition in which it was
delivered to the next link in the chain. These
witnesses would then describe the precautions taken
to ensure that there had been no change in the
condition of the item and no opportunity for
someone not in the chain to have possession of the
same (People vs. Constantino, Jr. GR No. 199689,
March 12, 2014).

Thus, the following links must be established in

the chain of custody in a buy-bust situation: first,
the seizure and marking, if practicable, of the illegal
drug recovered from the accused by the
228 | P a g e
apprehending officer; second, the turn over of the
illegal drug seized by the apprehending officer to the
investigating officer; third, the turn over by the
investigating officer of the illegal drug to the forensic
chemist for laboratory examination; and fourth, the
turn over and submission of the marked illegal
drugs seized from the forensic chemist to the court
(People vs. Constantino, Jr. GR No. 199689, March
12, 2014)

MARKING - Crucial in proving the chain of

custody is the marking of the seized dangerous
drugs or other related items immediately after they
are seized from the accused, for the marking upon
seizure is the starting point in the custodial link that
succeeding handlers of the evidence will use as
reference point. Moreover, the value of marking of
the evidence is to separate the marked evidence from
the corpus of all other similar or related evidence
from the time of seizure from the accused until
disposition at the end of criminal proceedings,
obviating switching, planting or contamination of
evidence. A failure to mark at the time of taking of
initial custody imperils the integrity of the chain of
custody that the law requires (People vs.
Constantino, Jr. GR No. 199689, March 12, 2014)

The rule requires that the marking of the seized

items should be done in the presence of the
apprehended violator and immediately upon
confiscation to ensure that they are the same items
that enter the chain and are eventually the ones
offered in evidence. There are occasions when the
chain of custody rule is relaxed such as when the
marking of the seized items immediately after
seizure and confiscation is allowed to be undertaken
at the police station rather than at the place of
229 | P a g e
arrest for as long as it is done in the presence of an
accused in illegal drugs cases. However, even a less-
than-stringent application of the requirement would
not suffice to sustain the conviction in this case.
There was no categorical statement from any of the
prosecution witnesses that markings were made,
much less immediately upon confiscation of the
seized items. There was also no showing that
markings were made in the presence of the accused
in this case (Lopez vs. People, GR No. 188653,
January 29, 2014).

Drug peddling in schools is prevalent; the

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

PARAPHERNALIA WITH TRACES OF SHABU

In People vs. Matinez, G.R. No. 191366, December
13, 2010 - This Court notes the practice of law
enforcers of filing charges under Sec. 11 in cases
where the presence of dangerous drugs as basis for
possession is only and solely in the form of residue,
being subsumed under the last paragraph of Sec.
11. Although not incorrect, it would be more in
keeping with the intent of the law to file charges
under Sec. 15 instead in order to rehabilitate first

230 | P a g e
time offenders of drug use, provided that there is a
positive confirmatory test result as required under
Sec. 15. The minimum penalty under the last
paragraph of Sec. 11 for the possession of residue is
imprisonment of twelve years and one day, while the
penalty under Sec. 15 for first time offenders of drug
use is a minimum of six months rehabilitation in a
government center. To file charges under Sec. 11 on
the basis of residue alone would frustrate the
objective of the law to rehabilitate drug users and
provide them with an opportunity to recover for a
second chance at life.

In order to effectively fulfill the intent of the law

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

PENALTY FOR POSSESSION OF MARIJUANA

AND SHABU - Possession of different kinds of
dangerous drugs in a single occasion
constitutes a single offense of possession of
dangerous drugs (David vs. People, G.R. No.
181861, October 17, 2011).

231 | P a g e
 PLANTING OF EVIDENCE - As a general rule,
planting of evidence to incriminate an innocent
person constitutes the crime of incriminating an
innocent person under Article 363 of RPC. However,
if the incriminatory evidence planted is dangerous
drugs or unauthorized explosives, loose firearm, the
crime committed is planting of evidence under RA
9165 for the dangerous drug, PD 1866 as amended
by RA 9516 for the explosive and RA No. 10591.

PLEA BARGAINING - Section 23 of RA No.

9165, any person charged under any crime
involving dangerous drugs regardless of the
imposable penalty shall not be allowed to avail of
the provision on plea-bargaining.

TRAFFICKING IN PERSON

Can accused be convicted of illegal recruitment

and trafficking in person for the same of act of
recruiting a person for prostitution without violating
the rule on double jeopardy? Yes. When an act or
acts violate two or more different laws and constitute
two different offenses, a prosecution under one will
not bar a prosecution under the other. The
constitutional right against double jeopardy only
applies to risk of punishment twice for the same
offense, or for an act punished by a law and an
ordinance. The prohibition on double jeopardy does
not apply to an act or series of acts constituting
different offenses (People vs. Lalli, G.R. No. 195419,
October 12, 2011).

Is trafficking in persons limited to transportation

of victims? No. Trafficking in Persons under Sections
3(a) and 4 of RA 9208 is not only limited to
transportation of victims, but also includes the act of
232 | P a g e
recruitment of victims for trafficking (People vs. Lalli,
G.R. No. 195419, October 12, 2011).

Is recruitment of the victim for prostitution with

her consent or knowledge constitutive of the crime of
trafficking in person? Yes. The crime of Trafficking in
Persons can exist even with the victims consent or
knowledge (People vs. Lalli, G.R. No. 195419,
October 12, 2011).

In People vs. Casio, G.R. No. 211465, December

03, 2014 - Accused took advantage of AAAs
vulnerability as a child and as one who need money.
The victims consent is rendered meaningless due to
the coercive, abusive, or deceptive means employed
by perpetrators of human trafficking. Even without
the use of coercive, abusive, or deceptive means, a
minors consent is not given out of his or her own
free will.

If the accused sell the child to another for purpose

of prostitution on a single occasion, the crime
committed is child prostitution under Section 5 (a) of
RA No 7610 (People vs. Dulay, GR No. 193854,
September 24, 2012). If the accused maintained the
child for prostitution, the crime committed is
qualified trafficking in person under Section 4 and 6
of RA No. 9208 (People vs. Casio).

ILLEGAL RECRUITMENT

It is well-established in jurisprudence that a

person may be charged and convicted for both illegal
recruitment and estafa. The reason therefor is not
hard to discern: illegal recruitment is malum
prohibitum, while estafa is mala in se. In the first,
233 | P a g e
the criminal intent of the accused is not necessary
for conviction. In the second, such intent is
imperative (People vs. Chua, G. R. No. 187052,
September 13, 2012).

BP BLG. 22

What Batas Pambansa Blg. 22 punished was the

mere act of issuing a worthless check. The law did
not look either at the actual ownership of the check
or of the account against which it was made, drawn,
or issued, or at the intention of the drawee, maker or
issuer. Also, that the check was not intended to be
deposited was really of no consequence to her
incurring criminal liability under Batas Pambansa
Blg. 22 (Resterio vs. People, G.R. No.
177438. September 24, 2012).

The giving of the written notice of dishonor does

not only supply the proof for the second element
arising from the presumption of knowledge the law
puts up but also affords the offender due process.
The law thereby allows the offender to avoid
prosecution if she pays the holder of the check the
amount due thereon, or makes arrangements for the
payment in full of the check by the drawee within
five banking days from receipt of the written notice
that the check had not been paid. The Court cannot
permit a deprivation of the offender of this statutory
right by not giving the proper notice of dishonor
(Resterio vs. People, G.R. No. 177438. September 24,
2012).

Where the check is drawn by a corporation,

company or entity, the person or persons who
actually signed the check in behalf of such drawer
shall be liable under this Act." This provision
234 | P a g e
recognizes the reality that a corporation can only act
through its officers. Hence, its wording is
unequivocal and mandatory that the person who
actually signed the corporate check shall be held
liable for a violation of BP 22. This provision does
not contain any condition, qualification or limitation
(Mitra Vs. People and Tarcelo, G.R. No. 191404. July
5, 2010)

NOTICE OF DISHONOR IN ESTAFA CASE -

The essential elements of the felony are: (1) a check
is postdated or issued in payment of an obligation
contracted at the time it is issued; (2) lack or
insufficiency of funds to cover the check; and (3)
damage to the payee thereof. It is criminal fraud or
deceit in the issuance of a check which is made
punishable under the RPC, and not the non-
payment of a debt. The postdating or issuing of a
check in payment of an obligation when the offender
had no funds in the bank or his funds deposited
therein are not sufficient to cover the amount of the
check is a false pretense or a fraudulent act.
However deceit is presumed if the drawer of the
check fails to deposit the amount needed to cover
his check within three days from receipt of notice of
dishonor.

a. No notice of dishonor - If there is no notice

of dishonor, the prosecution can still prove the
existence of deceit such as in a case where the
accused knows that his checking account is closed.
The receipt by the drawer of the notice of dishonor
is not an element of the estafa through bouncing
check.

b. With notice of dishonor - If there is notice of

dishonor, the presumption of deceit can still be
235 | P a g e
 rebutted by: (1) proof that the check is issued in
payment of a pre-existing obligation or (1) evidence
of good faith, a defense in estafa by postdating a
check. Good faith may be demonstrated, for
instance, by a debtors offer to arrange a payment
scheme with his creditor or making full payment of
the entire amount of the dishonored checks.
However, simply empty promise to pay complainant
the value of the bum checks issued in order to
induce her to part with her property in favor of
accused is not an evidence of good faith that will
rebut the presumption of deceit. (See: People vs.
Ojeda, G.R. Nos. 104238-58, June 3, 2004, Corona;
Lopez vs. People, G.R. No. 166810, June 26, 2008,
De Castro; Recuerdo vs. People, G.R. No. 168217,
June 27, 2006, )

NOTICE OF DISHONOR IN BP BLG. 22 -

Notice of dishonor of a check to the maker in BP
Blg. 22 must be in writing. A mere oral notice to the
drawer or maker of the dishonor of his check is not
enough. If the maker or drawer pays, or makes
arrangements with the drawee bank for the
payment of the amount due within the five-day
period from notice of the dishonor given to the
drawer, it is a complete defense; the accused may
no longer be indicted for violation of Section 1, B.P.
Blg. 22. If he is so indicted, he may set up the
payment of the amount due as a complete defense.
Assuming that the accused had knowledge that he
had insufficient funds in the drawee bank when he
issued the questioned checks, he could still have
paid the checks or made arrangements with the
drawee bank for the payment of the said checks if
he had been duly notified of their dishonor. In not
sending a notice or letter of dishonor to the
petitioner as required by law, the complaint
236 | P a g e
 deprived the accused of his right to avoid
prosecution for violation of B.P. Blg. 22 (Sia vs. G.R.
No. 149695, April 28, 2004).

In San Mateo vs. People, G.R. No. 200090,

March 6, 2013 - Complainant tried to serve the
notice of dishonor to the accused two times. On the
first occasion, complainants counsel sent a demand
letter to accuseds residence at Greenhills, San Juan
which the security guard refused to accept. Thus,
the liaison officer left the letter with the security
guard with the instruction to hand it to accused. But
the prosecution failed to show that the letter ever
reached accused. On the second occasion, counsel
sent a demand letter to accused by registered mail
which was returned with the notation "N/S Party
Out 12/12/05" and that accused did not claim it
despite three notices to her. Since there is
insufficient proof that accused actually received the
notice of dishonor, the presumption that she knew of
the insufficiency of her funds cannot arise. For this
reason, the Court cannot convict her with moral
certainty of violation of B.P. 22.

Nevertheless, accuseds acquittal does not entail

the extinguishment of her civil liability for the
dishonored checks. An acquittal based on lack of
proof beyond reasonable doubt does not preclude
the award of civil damages. For this reason, the trial
courts directive for San Mateo to pay the civil
liability in the amount representing the total value of
the checks plus 12% interest per annum from the
time the said sum became due and demandable
until fully paid, stands.

In Campos vs. People. G.R. No. 187401,

September 17, 2014 - Exerting efforts to reach an
237 | P a g e
amicable settlement with her creditor after the
checks which she issued were dishonored by the
drawee bank is a circumstantial evidence of receipt
of notice of dishonor. Accused would not have
entered into the alleged arrangements if she had not
received a notice of dishonor from her creditor, and
had no knowledge of the insufficiency of her funds
with the bank and the dishonor of her checks.

Lopez vs. People, G.R. No. 166810, June 26,

2008, Justice De Castro -Under Section 114(d) of
the Negotiable Instruments Law, notice of dishonor
is not required to be given to the drawer in either of
the following cases where the drawer has no right to
expect or require that the drawee or acceptor will
honor the check. Since petitioner's bank account
was already closed even before the issuance of the
subject check, he had no right to expect or require
the drawee bank to honor his check. By virtue of the
aforequoted provision of law, petitioner is not
entitled to be given a notice of dishonor.
The crime involved in Lopez vs. People is estafa
through issuance of bouncing check. However, it is
submitted the Lopez principle can be applied to
violation of BP 22.

PAYMENT - In Lim vs. People, G.R. No. 190834,

November 26, 2014 - The fact that the issuer of the
check had already paid the value of the dishonored
check after having received the subpoena from the
Office of the Prosecutor should have forestalled the
filing of the Information in court. The spirit of the
law which, for B.P. Big. 22, is the protection of the
credibility and stability of the banking system, would
not be served by penalizing people who have
evidently made amends for their mistakes and made

238 | P a g e
restitution for damages even before charges have
been filed against them. In effect, the payment of the
checks before the filing of the informations has
already attained the purpose of the law.

It should be emphasized as well that payment of

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

Furthermore, to avoid any confusion, the Court's

ruling in this case should be well differentiated from
cases where the accused is charged with estafa
under Article 315, par. 2(d) of the Revised Penal
Code, where the fraud is perpetuated by postdating
a check, or issuing a check in payment of an
obligation when the offender had no funds in the
bank, or his funds deposited therein were not
sufficient to cover the amount of the check. In said
case of estafa, damage and deceit are the essential
elements of the offense, and the check is merely the
accused's tool in committing fraud. In such a case,
paying the value of the dishonored check will not
free the accused from criminal liability. It will merely
satisfy the civil liability of the crime but not the
criminal liability.

239 | P a g e
 SUSPENSION OF PAYMENT - X in his capacity
as officer of Z corporation issued a corporate check
in favor of A. The check bounced due to DAIF. Notice
of dishonor was received by X. After three months,
SEC issued order creating the Management
Committee and ordering the suspension of all
pending actions for claims against Z corporation. (a)
Is X liable for violation of BP Blg. 22?

Answer: Yes. X was formally notified of the

dishonor of the checks. Yet, it was only more than
three months after, that the SEC issued order for the
suspension of all pending actions for claims against
Z corporation. Thus, X was not precluded from
making good the checks during that three-month
gap when he received the letter and when the SEC
issued the order (Tiong Rosario vs. Co, G.R. No.
133608, August 26, 2008)

(b) Would your answer be the same if the order

of suspension was issued before the presentment for
payment of the check when the drawee bank and the
sending of notice of dishonor?

Answer: No. X is not liable for violation of BP

Blg. 22. Considering that there was a lawful Order
from the SEC, the contract is deemed suspended.
When a contract is suspended, it temporarily ceases
to be operative; and it again becomes operative when
a condition occurs - or a situation arises -
warranting the termination of the suspension of the
contract. When a contract is subject to a suspensive
condition, its birth takes place or its effectivity
commences only if and when the event that
constitutes the condition happens or is
fulfilled. Thus, at the time A presented the check for
encashment, it had no right to do so, as there was
240 | P a g e
yet no obligation due from X (Gidwani vs. People, GR
No. 195064, January 15, 2014).

ANTI-GRAFT AND CORRUPT PRACTICES LAW

RA NO. 3019

Conspiracy Only public officer can be held

criminally liable for violation of RA No. 3019.
However, if there is conspiracy, the act of the public
officer in violating RA No. 3019 is imputable to the
private individual although there are not similarly
situated in relation to the object of the crime.
Moreover, Section 9 provides penalty for public
officer or private person for crime under Section 3.
Hence, a private individual can be prosecuted for
violation of RA No. 3019 (Go vs. The Fifth Division,
Sandiganbayan, G.R. No. 172602, April 13, 2007).
Even if the public officer with whom the private
individual allegedly conspired, the latter can still be
prosecuted for violation of RA No. 3019. Death
extinguishes the criminal liability but not the crime.
Hence, if there is proof of the crime and conspiracy
of dead public officer with private individual, the
latter can still be convicted of violation of RA No.
3019 (People vs. Go, GR NO. 168539, March 25,
2014). However, the public officer with whom the
private individual allegedly conspired is acquitted,
the latter should also be acquitted (Marcos vs.
Sandiganbayan, G.R. No. 126995, October 6, 1998).

SECTION 3 (a) - The elements of Section 3(a) of

Republic Act No. 3019 are: 1. The offender is public
officer; 2. The offender persuades, induces or
influences another public officer to perform an act or
the offender allows himself to be persuaded,
induced, or influenced to commit an act; 3. That the
241 | P a g e
act performed by the other public officer or
committed by another constitutes a violation of ruled
and regulations duly promulgated by competent
authority or an offense in connection with the official
duty of the latter (Ampil vs. Hon. Ombudsman, G.R.
No. 192685, July 31, 2013.

In Baviera vs. Zoleta, G.R. No. 169098, Oct. 12,

2006 - The Supreme Court considered the Senate
deliberation of Section 3 (a) of RA No. 3019 in
resolving the case. According to Senator Tolentino, if
there is no proof of the consideration in the use of
the influence, the offense is not committed under the
bill. Because the logic and intention of the sponsor
(Senator TOLENTINO) of the aforecited provision, the
SC said that Acting Secretary of Justice did not
commit a violation of the same as there is no proof
that she received consideration in exchange for her
decision to allow Mr. Raman to travel abroad despite
the Hold Departure Order issued by the Secretary of
Justice.

SECTION 3 (b) - The elements of the crime

under Section 3 (b) of RA No. 3019 are: (1) the
offender is a public officer; (2) he requested or
received a gift, present, share, percentage or benefit;
(3) he made the request or receipt on behalf of the
offender or any other person; (4) the request or
receipt was made in connection with a contract or
transaction with the government and (5) he has the
right to intervene, in an official capacity under the
law, in connection with a contract or transaction has
the right to intervene (Merencillo vs. People, G.R.
Nos. 142369-70, April 13, 2007).

Section 3 (b) of RA No. 3019, directly or

indirectly requesting or receiving any gift, present,
242 | P a g e
share, percentage, or benefit, for himself or for any
other person, in connection with any contract or
transaction between the Government and any other
party, wherein the public officer in his official
capacity has to intervene under the law is
punishable. Section 3 (b) is limited only to contracts
or transactions involving monetary consideration
where the public officer has the authority to
intervene under the law. Preliminary investigation is
not a contract or transaction is not a contract or
transaction within the contemplated of Section 3 (b).
Hence, requesting or receiving money in connection
with a preliminary investigation is not a violation of
this provision (Soriano, Jr. vs. Sandiganbayan, G.R.
No. 65952, July 31, 1984; People vs.
Sandiganbayan. and Justice Secretary Perez).

SECTION 3 (e) - In Dela Cuersta vs.

Sandiganbayan, G.R. Nos. 164068-69, November 19,
2013 - The informations alleged that accused as
members of the Philippine Coconut Authority, acting
in conspiracy with each other and with evident bad
faith and manifest partiality, gave financial
assistance to COCOFED, a private entity, without an
appropriate budget, giving unwarranted benefit to
the same and causing undue injury to the
Government.

The element in the crime of technical

malversation that public fund be appropriated for a
public use requires an earmarking of the fund or
property for a specific project. For instance there is
no earmarking if money was part of the
municipalitys general fund, intended by internal
arrangement for use in paving a particular road but
applied instead to the payrolls of
different barangay workers in the municipality. That
243 | P a g e
portion of the general fund was not considered
appropriated since it had not been earmarked by law
or ordinance for a specific expenditure. Here, there
is no allegation in the informations that the P2
million and P6 million grants to COCOFED had been
earmarked for some specific expenditures.

What is more, the informations do not allege

that the subject P2 million and P6 million were
applied to a public use other than that for which
such sums had been appropriated. Quite the
contrary, those informations allege that those sums
were unlawfully donated to a private entity, not
applied to some public use. Clearly, the
constitutional right of the accused to be informed of
the crimes with which they are charged would be
violated if they are tried for technical malversation
under criminal informations for violation of Section
3(e) of R.A. 3019 filed against them.

This crime has the following essential elements:

1. The accused must be a public officer discharging
administrative, judicial or official functions; 2. He
must have acted with manifest partiality, evident
bad faith or gross inexcusable negligence; and 3. His
action caused any undue injury to any party,
including the government, or gave any private party
unwarranted benefits, advantage or preference in the
discharge of his functions (People vs. Atienza, GR
No. 171671, June 18, 2012).

First element - The accused must be a public

officer discharging administrative, judicial or official
functions. In Consigna vs. People, G.R. no. 175750,
April 2, 2014 Petitioner, a municipal treasurer, is
considered a public officer discharging official
functions when she misused such position to be able
244 | P a g e
to take out a loan from complainant, who was misled
into the belief that former, as municipal treasurer,
was acting on behalf of the municipality. The
petitioner misrepresented that the loan is to be used
to pay for the salaries of the employees of the
municipality and to construct the municipal
gymnasium. The victim could have been the
Municipality of General Luna since the checks
signed by the mayor was issued to the complainant.
It was just fortunate that the mayor instructed the
bank to stop payment of the checks issued by
petitioner. Thus, the municipal treasurer can be
held liable for violation of Section 3 (e) of RA No.
3019 for causing damage to complainant.

Mejorada principle - In Stilgrove vs. Sabas,

A.M. No. P-06-2257, March 28, 2008 Admittedly,
the Court made a statement in Zoomzat that for one
to be held liable under Section 3 (e), he must be an
officer or employee of offices or government
corporations charged with the grant of licenses or
permits or other concessions. The earlier case of
Mejorada however, squarely addressed the issue on
the proper interpretation of Section 3 (e). Mejorada
was decided by the Court en banc. Following the
constitutional mandate that no doctrine or principle
of law laid down by the Court in a decision rendered
en banc or in division may be modified or reversed
except by the Court sitting en banc, the case of
Zoomzat cannot reverse the pronouncement in
Mejorada, the former case having been decided by a
Division of the Court. In Consigna vs. People, G.R.
No. 175750, April 2, 2014, the SC re-affirmed the
principle in Mejorada.

Second element - The accused must have acted

with manifest partiality, evident bad faith or gross
245 | P a g e
inexcusable negligence. Section 3(e) of RA 3019 may
be committed either by dolo, as when the accused
acted with evident bad faith or manifest partiality, or
by culpa, as when the accused committed gross
inexcusable negligence (Plameras vs. People, GR No.
187268, September 04, 2013).

Arias principle - In Arias v. Sandiganbayan,

G.R. Nos. 81563 & 82512, 19 December 1989 - All
heads of offices have to rely to a reasonable extent
on their subordinates and on the good faith of those
who prepare bids, purchase supplies, or enter into
negotiations. If a department secretary entertains
important visitors, the auditor is not ordinarily
expected to call the restaurant about the amount of
the bill, question each guest whether he was present
at the luncheon, inquire whether the correct amount
of food was served, and otherwise personally look
into the reimbursement voucher's accuracy,
propriety, and sufficiency. There has to be some
added reason why he should examine each voucher
in such detail. Any executive head of even small
government agencies or commissions can attest to
the volume of papers that must be signed. There are
hundreds of documents, letters, memoranda,
vouchers, and supporting papers that routinely pass
through his hands. The number in bigger offices or
departments is even more appalling. There should be
other grounds than the mere signature or approval
appearing on a voucher to sustain a conspiracy
charge and conviction.

Non-applicability of the Arias principle The

principle of Arias case where reliance on the
subordinate was considered as a defense in case of
violation of Section 3 (e) RA No. 3019 is not
applicable:
246 | P a g e
 (1) Where the accused has foreknowledge of
existing anomaly - e.g. mayor signed the inspection
report and the disbursement voucher despite the
fact that he had foreknowledge that the materials
delivered by Guadines have already been confiscated
by the DENR (Escara vs. People, G.R. No.
164921, July 8, 2005);

(2) Where there is deviation from ordinary

procedure e.g. mayor issued and encashed
municipal checks despite the facts that the
disbursement vouchers were in the name of Kelly
Lumber but the checks were not payable to the
supplier, Kelly Lumber and that checks were payable
upon his order (Cruz vs. The Hon. Sandiganbayan,
G.R. No. 134493, August 16, 2005).

(3) Where the public official invoking the Arias

principle is not acting in his capacity as head of
office, who is relying on his subordinate e.g. head of
the office of the city administrator relied on the acts
of the heads of the Office of the City Treasurer, the
Office of the City Accountant in granting cash
advance to a paymaster (Jaca vs. People, G.R. No.
166967, January 28, 2013).

4. Rivera vs. People, G.R. No. 156577, December

03, 2014 - In the case at bench, Perez should have
placed himself on guard when the documents and
vouchers given to him by his subordinates did not
indicate the retention money required by P.D. No.
1594. Moreover, when he personally inspected the
construction site of PAL Boat, he should have
noticed the financial weakness of the contractor and
the defective works. Deplorably, Perez kept mum and
chose to continue causing undue injury to the
247 | P a g e
government. No other conclusion can be inferred
other than his manifest partiality towards PAL Boat

Conspiracy of silence or inaction -As a rule,

the principle of conspiracy as a mode of committing
a crime or for purpose of applying the collective
responsibility rule is only applicable to intentional
felony. The concept of conspiracy, the elements of
which are agreement and decision to commit a
crime, are not consistent with culpable felony.
Persons cannot definitely agree and decide to
commit a culpable crime.

Exception:

Public officers can incur collective criminal

responsibility through a conspiracy for violation of
Section 3(e) of RA No. 3019 through gross and
inexcusable negligence, and of incurring. This is
called conspiracy of silence and inaction arising from
gross inexcusable negligence. To establish this kind
of conspiracy, it is essential to prove the breach of
duty borders on malice and is characterized by
flagrant, palpable and willful indifference to
consequences insofar as other persons may be
affected. Conspiracy of silence or inaction would
almost always be inferred only from the surrounding
circumstances and the parties' acts or omissions
that, taken together, indicate a common
understanding and concurrence of sentiments
respecting the commission of the offense. The duties
and responsibilities that the occupancy of a public
office carry and the degree of relationship of
interdependence of the different offices involved here
determine the existence of conspiracy where gross
inexcusable negligence was the mode or commission

248 | P a g e
of the offense (Jaca vs. People, G.R. No. 166967,
January 28, 2013).

In Jaca vs. People, supra - A paymaster obtained

cash advances despite the fact that she has previous
unliquidated cash advances. The cash advance
remained unliquidated to the damage of the city. The
City Treasurer certified that the cash advances are
necessary, lawful and incurred under my direct
supervision. The City Accountant certified that the
expenditures are supported by documents and
previous cash advances are liquidated and
accounted for. The City Administrator approved the
voucher and countersigned the check. The
paymaster is liable for violation of Section 3 (e) of RA
No. 3019. The City Treasurer, City Accountant and
City administrator are liable because of conspiracy
of silence or inaction. According to SC, the
petitioners are all heads or their respective offices
that perform interdependent functions in the
processing of cash advances. The petitioners'
attitude of buck-passing in the face of the
irregularities in the voucher and the absence of
supporting documents and their indifference to their
individual and collective duties to ensure that laws
and regulations are observed in the disbursement of
the funds of the local government of Cebu can only
lead to a finding of conspiracy of silence and
inaction.

Erroneous interpretation of the law - An

erroneous interpretation of a provision of law
regarding the entitlement of a government employee
who was wrongfylly removed to RATA, absent any
showing of some dishonest or wrongful purpose,
does not constitute and does not necessarily amount

249 | P a g e
to bad faith (Ysidoro vs. Hon. Leonardo-De Castro,
G.R. No. 171513, February 06, 2012).
Third element - His action caused undue injury
to any party, including the government or gave any
private party unwarranted benefits, advantage or
preference in the discharge of his functions.

There are two ways by which a public official

violates Section 3(e) of RA No. 3019 in the
performance of his functions, namely: (1) by causing
undue injury to any party, including the
Government; or (2) by giving any private party any
unwarranted benefit, advantage or preference. The
accused may be charged under either mode or both.
The disjunctive term or connotes that either act
qualifies as a violation of Section 3(e) (Rivera vs.
People, G.R. No. 156577, December 03, 2014).

The concept of "undue injury," in the context of

Section 3(e) RA No. 3019 is the same as the civil law
concept of "actual damage." It is required that
undue injury must be specified, quantified and
proven to the point of moral certainty. Speculative or
incidental injury is not sufficient. The damages
suffered cannot be based on flimsy and non-
substantial evidence or upon speculation, conjecture
or guesswork but must depend on competent proof
and on the best evidence obtainable regarding
specific facts which could afford some basis for
measuring compensatory or actual damage (M.A.
Jimenez Inc. vs. The Hon. Ombudsman, G.R. No.
155307, June 06, 2011).

In Braza vs. the Hon. Sandiganbayan, G.R. No.

195032, February 20, 2013 - There are two (2) ways
by which a public official violates Section 3(e) of R.A.

250 | P a g e
No. 3019 in the performance of his functions,
namely: (1) by causing undue injury to any party,
including the Government; or (2) by giving any
private party any unwarranted benefit, advantage or
preference. The accused may be charged under
either mode or under both. The disjunctive term or
connotes that either act qualifies as a violation of
Section 3(e) of R.A. No. 3019.] In other words, the
presence of one would suffice for conviction. "To be
found guilty under the second mode, it suffices that
the accused has given unjustified favor or benefit to
another, in the exercise of his official, administrative
and judicial functions." The element of damage is not
required for violation of Section 3 (e) under the
second mode.

Private party - In Ambil vs. Sandiganbayan,

G.R. No. 175457, July 06, 2011 - In drafting the
Anti-Graft Law, the lawmakers opted to use "private
party" rather than "private person" to describe the
recipient of the unwarranted benefits, advantage or
preference for a reason. The term "party" is a
technical word having a precise meaning in legal
parlance as distinguished from "person" which, in
general usage, refers to a human being. Thus, a
private person simply pertains to one who is not a
public officer. While a private party is more
comprehensive in scope to mean either a private
person or a public officer acting in a private capacity
to protect his personal interest. In the present case,
when petitioners transferred Mayor Adalim from the
provincial jail and detained him at petitioner Ambil,
Jr.'s residence, they accorded such privilege to
Adalim, not in his official capacity as a mayor, but
as a detainee charged with murder. Thus, for
purposes of applying the provisions of Section 3(e),
R.A. No. 3019, Adalim was a private party.
251 | P a g e
 SECTION 3 (g) In Braza vs. the Hon.
Sandiganbayan, G.R. No. 195032, February 20,
2013 - For conviction of violation of Sec. 3(g), the
prosecution must establish the following elements:
1. The offender is a public officer; 2. He entered into
a contract or transaction in behalf of the
government; and 3. The contract or transaction is
manifestly and grossly disadvantageous to the
government.

On the other hand, an accused may be held

criminally liable of violation of Section 3 (e) of R.A.
No. 3019, provided that the following elements are
present: 1. The accused must be a public officer
discharging administrative, judicial or official
functions; 2. The accused must have acted with
manifest partiality, evident bad faith or gross
inexcusable negligence; and 3. His action caused
undue injury to any party, including the government
or gave any private party unwarranted benefits,
advantage or preference in the discharge of his
functions.

Although violation of Sec. 3 (g) of R.A. No.

3019 and violation of Sec. 3(e) of the same law share
a common element, the accused being a public
officer, the latter is not inclusive of the former. The
essential elements of each are not included among
or do not form part of those enumerated in the
other. For double jeopardy to exist, the elements of
one offense should ideally encompass or include
those of the other. What the rule on double jeopardy
prohibits refers to identity of elements in the two
offenses.

252 | P a g e
 Overpricing In Sajul vs. Sandiganbayan,
supra - To substantiate the assertion that the price
of Bato-Bato Enterprises was exorbitant, the
prosecution presented a quotation from Zodiac
Trading which states that a fire extinguisher of the
same make and kind would allegedly cost only about
P1,500 which was P1,000 less of Bato-Batos price.
It was held that: The comparison of prices between
Bato-bato Enterprises with that of Zodiac Trading is
rather unacceptable. In the first place, Zodiac
trading was not properly identified as a company
dealing with fire extinguishers or a leading company
selling fire extinguishers, for that matter. Nobody
from the company appeared in court to testify about
its company or its product. The components of its
fire extinguishers were not actually proven to be the
same as that of Bato-Bato Enterprises. The
quotation of Zodiac Trading was merely solicited.
The veracity of such quotation was not proven.
Considering all these circumstances, it is rather
unfair to compare the prices of Bato-Bato
Enterprises with that of Zodiac Trading when the
basis of the comparison has not been established. It
could not be concluded that there was an
overpricing of the fire extinguishers when the
prosecution single out only one company, which
apparently quoted a lower price than that of Bato-
Bato Enterprises.

In order to show that there was an overpricing in

the subject transaction, a canvass of different
suppliers with their corresponding prices should have
been procured which could readily show the
differences in the price quotations. Absent this
competent evidence, it is rather unfair to conclude
that the price of Bato-Bato Enterprises was
exorbitant on the basis alone of a submitted
253 | P a g e
quotation of one company and to further rule that
the contract was grossly injurious to the
government. The contract entered into by the
petitioner would not cause obvious or glaring injury
to the government when petitioner merely continued
the purchase from a regular supplier, which he had
authority to do so even without the benefit of
bidding.

In Caunan vs. People, G.R. Nos. 181999 &

182001-04 and Marquez vs. Sandiganbayan, Fourth
Division, G.R. Nos. 182020-24, September 2, 2009
The evidence of the prosecution did not include a
signed price quotation from the walis tingting
suppliers of Paraaque City. In fact, even the walis
tingting furnished the audit team by petitioners and
the other accused was different from the walis
tingting actually utilized by the Paraaque City
street sweepers at the time of ocular inspection by
the audit team. At the barest minimum, the evidence
presented by the prosecution, in order to
substantiate the allegation of overpricing, should
have been identical to the walis tingting purchased
in 1996-1998. Only then could it be concluded that
the walis tingting purchases were disadvantageous
to the government because only then could a
determination have been made to show that the
disadvantage was so manifest and gross as to make
a public official liable under Section 3(g) of R.A. No.
3019.

SECTION 4 (a) - In Disini vs. Sandiganbayan,

G.R. No. 169823-24 and 174764-65, September 11,
2013 The elements of the offense under Section 4
(a) of R.A. No. 3019 are: (1) That the offender has
family or close personal relation with a public
official; (2) That he capitalizes or exploits or takes
254 | P a g e
advantage of such family or close personal relation
by directly or indirectly requesting or receiving any
present, gift, material or pecuniary advantage from
any person having some business, transaction,
application, request, or contract with the
government; (3) That the public official with whom
the offender has family or close personal relation has
to intervene in the business transaction, application,
request, or contract with the government.

The allegations in the information charging the

violation of Section 4(a) of R.A. No. 3019, if
hypothetically admitted, would establish the
elements of the offense, considering that: (1) Disini,
being the husband of Paciencia Escolin-Disini, the
first cousin of First Lady Imelda Romualdez-Marcos,
and at the same time the family physician of the
Marcoses, had close personal relations and intimacy
with and free access to President Marcos, a public
official; (2) Disini, taking advantage of such family
and close personal relations, requested and received
$1,000,000.00 from Burns & Roe and
$17,000,000.00 from Westinghouse, the entities
then having business, transaction, and application
with the Government in connection with the PNPPP;
(3) President Marcos, the public officer with whom
Disini had family or close personal relations,
intervened to secure and obtain for Burns & Roe the
engineering and architectural contract, and for
Westinghouse the construction of the PNPPP.

SECTION 7 Section 7 of RA No. 3019 provides:

Section 7. Statement of assets and liabilities. Every
255 | P a g e
public officer, within thirty days after the approval of
this Act or after assuming office, and within the
month of January of every other year thereafter, as
well as upon the expiration of his term of office, or
upon his resignation or separation from office, shall
prepare and file with the office of the corresponding
Department Head, or in the case of a Head of
Department or chief of an independent office, with the
Office of the President, or in the case of members of
the Congress and the officials and employees thereof,
with the Office of the Secretary of the corresponding
House, a true detailed and sworn statement of assets
and liabilities, including a statement of the amounts
and sources of his income, the amounts of his
personal and family expenses and the amount of
income taxes paid for the next preceding calendar
year: Provided, That public officers assuming office
less than two months before the end of the calendar
year, may file their statements in the following
months of January.

On the other hand, Section 8 of RA No. 6713

provides: SECTION 8. Statements and Disclosure.
Public officials and employees have an obligation to
accomplish and submit declarations under oath of,
and the public has the right to know, their assets,
liabilities, net worth and financial and business
interests including those of their spouses and of
unmarried children under eighteen (18) years of age
living in their households. (A) Statements of Assets
and Liabilities and Financial Disclosure. All public
officials and employees, except those who serve in an
honorary capacity, laborers and casual or temporary
workers, shall file under oath their Statement of
Assets, Liabilities and Net Worth and a Disclosure of
Business Interests and Financial Connections and
those of their spouses and unmarried children under
256 | P a g e
eighteen (18) years of age living in their households.
XXXXXX The documents must be filed: (a) within
thirty (30) days after assumption of office; (b) on or
before April 30, of every year thereafter; and (c)
within thirty (30) days after separation from the
service.

The rule directing full disclosure of wealth in the

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

It is imperative that every public official or

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

Failure to file SALN as required by law is a

violation of Section 8 of RA No. 6713 and Section 7
of RA No. 3019 (Concerned Taxpayer vs. Doblada,
A.M. No. P-99-1342, June 8, 2005). Since both laws
provide a penalty for failure to file SALN, the offender
should only be prosecuted and punished either
under one or the other.

However, it is submitted that Section 7 of RA No.

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

Section 8 of RA No. 6713 excludes public

officials and employees, who serve in an honorary
capacity, laborers and casual or temporary workers
from the requirement of filling SALN. If these public
officers are excused from filling SALN under RA
6713, it would be absurd to criminally make them
responsible under RA No. 3019 for failure to file it.
By parity of reasoning, if a public officer filed a SALN
in April of a certain year in compliance of RA No.
6713 he should not be made criminally liable under
RA No. 3019 which requires that the SALN should
be filed within the month of January.
258 | P a g e
 RA No. 3019 is enacted in 1960 or prior to the
1987 Constitution, while RA No.6713 is passed
precisely to implement the constitutional provision
on SALN. Section 8 of RA No. 6713 is the latest
legislative expression that gives spirit and substance
to State policy of transparency and public
accountability. Hence, the time regulation and the
exclusionary rule under RA No. 6713 regarding the
filing of SALN is controlling even if the accused is
charged for failure to file SALN under Section 7 of
RA No. 3019.

SECTION 13 - Any incumbent public officer

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

Presumption of innocence - The preventive

suspension under Section 13 of RA No. 3019 is not
penalty. Thus, suspension, which is being ordered
before a judgment of conviction is reached, is not
violation of constitutional right to be presumed
innocent (Bunye vs. Escareal, G.R. No. 110216,
259 | P a g e
September 10, 1993). The suspended accused,
whose culpability remains to be proven, are still
entitled to the constitutional presumption of
innocence (Juan vs. People, G.R. No. 132378,
January 18, 2000).

Ex post facto law - Article 24 (3) of the Revised

Penal Code clearly states that suspension from the
employment or public office during the trial or in order
to institute proceedings shall not be considered as
penalty. It is not a penalty because it is not imposed
as a result of judicial proceedings. In fact, if
acquitted, the official concerned shall be entitled to
reinstatement and to the salaries and benefits,
which he failed to receive during suspension. This is
merely preventive measures before final judgment.
Not being a penal provision, therefore, the
suspension from office, pending trial, of the public
officer charged with crimes mentioned in the
amendatory provision committed before its effectivity
does not violate the constitutional provision on ex
post facto law (Bayot vs. Sandiganbayan, G.R. No. L-
61776 to L-61861, March 23, 1984).

Pre-suspension hearing - While the suspension

of a public officer under this provision is mandatory,
the suspension requires a prior hearing to determine
the validity of the information filed against him,
taking into account the serious and far reaching
consequences of a suspension of an elective public
official even before his conviction. The accused
public officials right to challenge the validity of the
information before a suspension order may be issued
includes the right to challenge the (i) validity of the
criminal proceeding leading to the filing of an
information against him, and (ii) propriety of his
prosecution on the ground that the acts charged do
260 | P a g e
not constitute a violation of R.A. No. 3019 or of the
provisions on bribery of the Revised Penal Code
(Miguel vs. Hon. Sandiganbayan, G.R. No. 172035,
July 04, 2012).

In Luciano vs. Mariano, G.R. N L-32950, July 30,

1971 Where the preliminary investigation was for
falsification, the office of the prosecutor could not
validly charged the petitioner with the graver crime
of violation of RA No. 3019. Thus, he is entitled to a
new preliminary investigation. The ruling on the
validity of the information is to be held in abeyance
until after the outcome of the preliminary
investigation of violation of RA No. 3019, and hence
no suspension order can issue. Should the fiscal
find no case, he will then so inform the trial court
and move to dismiss the case. In the contrary case,
respondent court will then have to hear and decide
petitioners' pending motion to quash before it, which
squarely raises question that the facts charged do
not constitute an offense and are not punishable
under section 3 (a) and (e) of Republic Act No. 3019,
contrary to the information's averment.

Procedure - Upon the filing of such information,

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

No specific rules need be laid down for such pre-

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

Period of preventive suspension- Even though

the law is silent on the duration of the preventive
suspension, the suspension should not be indefinite.
Section 13 of RA No. 3019 does not provide the
period of preventive suspension. Hence, the duration
of suspension under the Administrative Code, which
provides that the suspension may not exceed 90
days (Layus M.D. vs. Sandiganbayan, G.R. No.
134272, December 8, 1999) may be adopted in fixing
the duration of suspension under RA 3019. The said
90-day maximum period for suspension shall apply
to all those who are validly charged under RA 3019,
whether elective or appointive officer or employee
(Gonzaga vs. Sandiganbayan, G.R. No. 96131,
September 6, 1991).

262 | P a g e
 SPEEDY DISOPOSITION OF CASES - In People
vs. Hon. Sandiganbayan, and Perez, G.R. No.
188165, December 11, 2013 - There was really no
sufficient justification tendered by the State for the
long delay of more than five years in bringing the
charges against the respondents before the proper
court. On the charge of robbery, the preliminary
investigation would not require more than five years
to ascertain the relevant factual and legal matters.
The basic elements of the offense, that is, the
intimidation or pressure allegedly exerted on Cong.
Jimenez, the manner by which the money extorted
had been delivered, and the respondents had been
identified as the perpetrators, had been adequately
bared before the Office of the Ombudsman. The
obtention of the bank documents was not
indispensable to establish probable cause to charge
them with the offense. In fine, the Office of the
Ombudsman transgressed the respondents right to
due process as well as their right to the speedy
disposition of their case. Because of the inordinate
delay in resolving the criminal complaint by the
Ombudsman against respondent, the cases against
respondent were dismissed.

PLUNDER
RA No. 7080

1. The elements of plunder are:

(1) That the offender is a public officer who acts

by himself or in connivance with members of his
family, relatives by affinity or consanguinity,
business associates, subordinates or other persons;

263 | P a g e
 (2) That he amassed, accumulated or acquired
ill-gotten wealth through a combination or series of
the following overt or criminal acts:

(a) through misappropriation, conversion,

misuse, or malversation of 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 its subdivisions, agencies
or instrumentalities of Government owned or
controlled corporations or their subsidiaries;

(d) by obtaining, receiving or accepting

directly or indirectly any shares of stock, equity
or any other form of interest or participation
including the promise of future employment in
any business enterprise or undertaking;

(e) by establishing agricultural, industrial or

commercial monopolies or other combinations
and/or implementation of decrees and orders
intended to benefit particular persons or special
interests; or

(f) by taking advantage of official position,

authority, relationship, connection or influence
to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the
264 | P a g e
 Filipino people and the Republic of the
Philippines; and,

(3) That the aggregate amount or total value of

the ill-gotten wealth amassed, accumulated or
acquired is at least P50,000,000.00 (Joseph Ejercito
Estrada vs. Sandiganbayan, G.R. No. 148560,
November 19, 2001).

2. A Senator on three occasions identified

Napoles bogus non-governmental as recipient of his
PDAP in the total amount of 100 million. Instead of
using the fund for legitimate purpose, the Senator
and Napoles divided the money on the basis of 40-60
sharing. Napoles got the lions share. Did they
commit plunder?

No. The Senator as a public officer did not

amassed, accumulated or acquired ill-gotten wealth
through series of misuse or malversation of public
funds in the aggregate amount of at least
P50,000,000.00. The Senator merely acquired 40
million pesos in this modus operandi. On the other
hand, Napoles on her private capacity cannot
commit plunder.

3. Would you answer be the same if the Senator

got the lions share of 60%?

Yes. The Senator, who acquired 60 million

pesos, is liable for plunder. Under RA 7080, plunder
can be committed by a public officer who acts by
himself or in connivance other persons

Napoles is likewise liable on the basis of

conspiracy. Because of conspiracy, the acts of
plunder committed by the Senator, a public officer,
265 | P a g e
is attributable to Napoles, a private individual,
although they are not similarly situated in relation
to the object of the crime.

4. Can the Senator use the defense in

malversation that he is not responsible for the
misuse of his PDAP since it is the duty of the
appropriate implementing agency of the government
to check that the recipient of the fund is not bogus?

No. Assuming that the duty to check that the

recipient of the Senators PDAP is not bogus belongs
to the appropriate agency of the government, the
Senator is still liable since malversation can be
committed through culpa.

CYBERLIBEL

Writing, printing, lithography, engraving, radio,

phonograph, painting, theatrical exhibition,
cinematographic exhibition are means of publication
in libel (2002 Bar Examination). They have a
common characteristic, and that is, their permanent
nature as a means of publication and this explains
the graver penalty for libel than that prescribed for
oral defamation. Hence, the phrase any similar
means should be understood in the lights of the
said common characteristic of the means to commit
libel. Thus, defamation thorough amplifier
constitutes slander under Article 358 and not libel
since its nature as means of publication is not
permanent, and thus, it is not similar to radio or
other means mentioned in Article 355 since (People
vs. Santiago, G.R. No. L-17663, May 30, 1962). On
the other hand, television though not expressly
mentioned in Article 355 easily qualifies under the
general provision or any similar means (People vs.
266 | P a g e
Casten, CA-G.R. No. 07924-CR, December 13, 1974;
2005 Bar Examination). Since nature of internet as
a means of publication is permanent, it should be
considered as a means to commit libel. In Disini, the
Supreme Court ruled:

The Court agrees with the Solicitor General

that libel is not a constitutionally protected
speech and that the government has an
obligation to protect private individuals from
defamation. Indeed, cyberlibel is actually not a
new crime since Article 353, in relation to Article
355 of the Penal Code, already punishes it. In
effect, Section 4(c)(4) above merely affirms that
online defamation constitutes "similar means" for
committing libel.

Venue of cyber libel - As a general rule, the

venue of libel cases where the complainant is a
private individual is limited to only either of two
places, namely: 1) where the complainant actually
resides at the time of the commission of the offense;
or 2) where the alleged defamatory article was
printed and first published (Article 360 of the
Revised Penal Code).

However, the place where libelous article

was accessed by the offended party in the internet is
not equivalent to the place where the libelous article
is printed and first published within the
contemplation of the rule on venue under Article 360
of the Revised Penal Code.

To rule otherwise is to allow the evil sought to be

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

To equate the first access to the defamatory

article on website with "printing and first
publication of the article" would spawn the very ills
that the amendment to Article 360 of the RPC
sought to discourage and prevent. It hardly requires
much imagination to see the chaos that would ensue
in situations where the websites author or writer, a
blogger or anyone who posts messages therein could
be sued for libel anywhere in the Philippines that the
private complainant may have allegedly accessed the
offending website.

At any rate, Article 360 still allow offended party

to file the civil or criminal complaint for internet libel
in their respective places of residence (Bonifacio vs.
RTC, Makati, Branch 149,G.R. No. 184800, May 5,
2010)

268 | P a g e